Elias Bochner, et al. v. City of New York, et al.

23-683
Elias Bochner, et al. v. City of New York, et al.
In the
United States Court of Appeals
for the Second Circuit
A UGUST TERM 2023
No. 23-683
E LIAS B OCHNER , 287 7 TH A VENUE R EALTY LLC,
Plaintiffs-Appellees,
v.
C ITY OF NEW Y ORK, a municipal entity, MAYOR E RIC L. A DAMS ,
as Mayor of the City of New York, COMMISSIONER A DOLFO CARRIÓN JR .,
Commissioner of New York City Department of
Housing Preservation & Development, ACTING C OMMISSIONER
D YNISHAL G ROSS , Acting Commissioner of New York City Department
of Small Business Services,
Defendants-Appellants.*
__________
On Appeal from the United States District Court
for the Southern District of New York
__________
A RGUED: MAY 29, 2024
D ECIDED: O CTOBER 7, 2024
__________
* The Clerk of Court is directed to amend the official case caption as set forth above.
Commissioner Carrión and Acting Commissioner Gross are automatically substituted as
defendants. See Fed. R. App. P. 43(c)(2).

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Before: C ABRANES , R AGGI, and C ARNEY , Circuit Judges.
________________
Defendants the City of New York and certain of its named officials (“the
City”) appeal from an award of summary judgment entered in the United States
District Court for the Southern District of New York (Abrams, J.) in favor of
plaintiffs on their Contracts Clause challenge to the City’s Guaranty Law. That
law, enacted in response to the COVID-19 pandemic, (1) rendered personal
guaranties of commercial lease obligations arising between March 7, 2020, and
June 30, 2021, permanently unenforceable; and (2) identified efforts to collect on
such guaranties as proscribed commercial tenant harassment. See N.Y.C. Admin.
Code §§ 22-902(a)(14), 22-1005. The City does not here dispute the district court’s
determination that the Guaranty Law violates the Contracts Clause. Instead, it
argues that there is no federal jurisdiction to hear this case because plaintiffs lack
standing to challenge the Guaranty Law in an action against the City, which does
not enforce that law. On this ground, the City seeks vacatur not only of the district
court’s award of summary judgment but also of this court’s earlier judgment
reversing dismissal of plaintiffs’ Contracts Clause challenge for failure to state a
claim. See Melendez v. City of New York, 16 F.4th 992 (2d Cir. 2021).
The Court denies the City’s request to vacate its judgment in Melendez
because, at the pleadings stage of this case, plaintiffs satisfactorily carried their
standing burden by alleging the City’s enforcement of the Guaranty Law, which
the City did not then disavow.
On summary judgment, however, plaintiffs failed to carry their heightened
burden to demonstrate standing by coming forward with factual evidence of the
City’s likely enforcement of the Guaranty Law against them. On this record, we
must vacate the district court’s award of summary judgment and remand the case
with instructions to dismiss this action for lack of subject matter jurisdiction.

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We nevertheless note that the City unnecessarily prolonged litigation in this
case by failing to raise its enforcement challenge to standing throughout almost
two years of dismissal litigation and, thereafter, failing to provide the district court
and this court with a complete and accurate account of the City’s enforcement
authority. Because this conduct appears to have been negligent rather than
strategic, we do not impose sanctions, but, in our equitable discretion, we deny the
City costs on this appeal
VACATUR G RANTED IN PART AND D ENIED IN PART; C ASE R EMANDED.
________________
C LAUDE G. S ZYFER (Darya Anichkova, on the brief), Hogan
Lovells US LLP, New York, NY; David Kahne, Steptoe
LLP, New York, NY, for Plaintiffs-Appellees.
JAMISON D AVIES , Assistant Corporation Counsel
(Richard Dearing & Devin Slack, Assistant Corporation
Counsels, on the brief), for Sylvia O. Hinds-Radix,
Corporation Counsel of the City of New York, New York,
NY, for Defendants-Appellants.
_________________
REENA R AGGI, Circuit Judge:
The first time this case came before this court, plaintiffs, a group of New
York City landlords, appealed from a judgment of the United States District Court
for the Southern District of New York (Ronnie Abrams, Judge), which, pursuant to
Fed. R. Civ. P. 12(b)(6), dismissed their constitutional challenges to laws enacted
by New York City in response to the COVID-19 pandemic. See Melendez v. City of
New York [“Melendez I”], 503 F. Supp. 3d 13 (S.D.N.Y. 2020). Those laws prohibit
“threatening” residential or commercial tenants based on their COVID-19 status,
see N.Y.C. Admin. Code §§ 22-902(a)(11), 27-2004(48)(f-7) (together, the

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“Harassment Law Amendments”), and render permanently unenforceable
personal liability guaranties of commercial lease obligations arising during the
pandemic between March 7, 2020, and June 30, 2021, see id. §§ 22-902(a)(14),
22-1005 (the “Guaranty Law”). This court affirmed dismissal of plaintiffs’ free
speech and due process challenges to the Harassment Law Amendments, see U.S.
C ONST. amends. I, XIV, but reversed dismissal of their Contracts Clause challenge
to the Guaranty Law, see id. art. I, § 10, cl. 1. See Melendez v. City of New York
[“Melendez II”], 16 F.4th 992 (2d Cir. 2021).
On this appeal, it is defendants, the City of New York and certain of its
named officials (together, “the City”), who appeal from the district court’s March
31, 2023 award of summary judgment in favor of plaintiffs 287 7th Avenue Realty
LLC and its owner Elias Bochner (together, “the Bochner Plaintiffs”) on their
Contracts Clause challenge to the Guaranty Law. See Melendez v. City of New York
[“Melendez III”], 668 F. Supp. 3d 184 (S.D.N.Y. 2023). The City does not here
dispute the district court’s determination that the Guaranty Law is
unconstitutional. Rather, it challenges the court’s jurisdiction to hear the action at
all, arguing that the Bochner Plaintiffs cannot demonstrate standing because the
City does not enforce the Guaranty Law, which thus poses no imminent threat of
injury to plaintiffs that could be redressed in this action. On that ground, the City
asks this court to vacate not only the district court’s award of summary judgment
in Melendez III but also this court’s Melendez II judgment reversing dismissal of the
Bochner Plaintiffs’ Contracts Clause claim pursuant to Fed. R. Civ. P. 12(b)(6).
Throughout extensive litigation at the dismissal stage of this case, the City
never disavowed enforcement of the Guaranty Law or challenged plaintiffs’
standing or federal jurisdiction on that ground. Because plaintiffs plausibly
alleged the City’s enforcement of the Guaranty Law at the pleadings stage of this
action, this court denies the City’s request to vacate its judgment in Melendez II for
lack of jurisdiction.

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Only on remand, when the parties cross-moved for summary judgment, did
the City assert its non-enforcement of the Guaranty Law to challenge the Bochner
Plaintiffs’ standing and federal jurisdiction. At that stage of the proceedings, the
Bochner Plaintiffs bore a heightened burden to demonstrate standing by adducing
factual evidence showing that they faced a credible threat of imminent and
redressable injury from the City’s enforcement of the Guaranty Law. Plaintiffs
having failed to carry that burden, and the City having now unequivocally
disavowed any intent to enforce the Guaranty Law against them, we must
conclude that the Bochner Plaintiffs lack standing to pursue a Contracts Clause
challenge to the Guaranty Law in this action against the City. Accordingly, we
vacate the district court’s award of summary judgment in favor of the Bochner
Plaintiffs, and we remand with instructions to dismiss the action for lack of subject
matter jurisdiction.
We nevertheless note that the City unnecessarily prolonged litigation in this
case by failing to raise its enforcement challenge to standing throughout almost
two years of dismissal litigation and, thereafter, by failing to provide a complete
and accurate account of the City’s relevant enforcement authority. Because this
conduct appears to have been negligent rather than strategic, we do not impose
sanctions, but, in our equitable discretion, we deny the City costs on this appeal.
See Fed. R. App. P. 39(a).
BACKGROUND
I. The Guaranty Law
Because some understanding of the Guaranty Law is necessary to address
the standing question here at issue, we begin by detailing its two substantive
provisions, which amended the City’s Administrative Code. First, the Guaranty
Law added a section to the Code entitled, “Personal liability provisions in
commercial leases,” which rendered permanently unenforceable certain personal

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liability guaranties on commercial lease obligations arising between March 7, 2020,
and June 30, 2021. See N.Y.C. Admin. Code § 22-1005.1 Second, the Guaranty Law
added to the list of specified acts or omissions proscribed by the Commercial
Harassment Law “attempting to enforce a personal liability provision that the
1 As initially enacted, the Guaranty Law applied to lease obligations arising between
March 7, 2020, and September 30, 2020. See N.Y.C. Local L. 2020/55 § 1. It was
subsequently extended through March 31, 2021, see id. 2020/98 § 2, and then again through
June 30, 2021, see id. 2021/50 § 2. As most recently amended, § 22-1005 reads as follows:
A provision in a commercial lease or other rental agreement involving real
property located within the city, or relating to such a lease or other rental
agreement, that provides for one or more natural persons who are not the
tenant under such agreement to become, upon the occurrence of a default
or other event, wholly or partially personally liable for payment of rent,
utility expenses or taxes owed by the tenant under such agreement, or fees
and charges relating to routine building maintenance owed by the tenant
under such agreement, shall not be enforceable against such natural
persons if the conditions of paragraph[s] 1 and 2 are satisfied:
1. The tenant satisfies the conditions of subparagraph (a), (b) or (c):
(a) The tenant was required to cease serving patrons food or
beverage for on-premises consumption or to cease operation under
executive order number 202.3 issued by the governor on March 16,
2020;
(b) The tenant was a non-essential retail establishment subject to in-
person limitations under guidance issued by the New York state
department of economic development pursuant to executive order
number 202.6 issued by the governor on March 18, 2020; or
(c) The tenant was required to close to members of the public under
executive order number 202.7 issued by the governor on March 19,
2020.
2. The default or other event causing such natural persons to become wholly
or partially personally liable for such obligation occurred between March 7,
2020 and June 30, 2021, inclusive.

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landlord knows or reasonably should know is not enforceable pursuant to section
22-1005.” Id. § 22-902(a)(14).2 In sum, the Guaranty Law renders certain specified
commercial lease guaranties permanently unenforceable and generally proscribes
landlord attempts to enforce those guaranties.
II. Procedural History
In summarizing the procedural history of this case, we pay particular
attention to pleadings, arguments, and rulings pertaining to standing.
A. Dismissal Litigation
1. First Standing Challenge: The City Questions and then
Concedes Plaintiffs’ Possession of a Commercial Lease
Guaranty Subject to § 22-1005
a. Plaintiff Top East Realty LLC
On July 10, 2020, a group of New York City landlords—not yet including
the Bochner Plaintiffs—filed this action for declaratory and injunctive relief
claiming, inter alia, that the Harassment Law Amendments and Guaranty Law
were unconstitutional.
On August 12, 2020, the City, represented by its Corporation Counsel,
moved to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(6), arguing that
plaintiffs failed plausibly to plead constitutional violations. Only in a footnote to
its memorandum in support of that motion did the City first question plaintiffs’
2 The City’s Commercial Harassment Law states that “landlord[s] shall not engage in
commercial tenant harassment,” which it defines as specified acts or omissions that
“would reasonably cause a commercial tenant to vacate a covered property, or to
surrender or waive any rights.” N.Y.C. Admin. Code § 22-902(a). The law affords
commercial tenants a private cause of action for such harassment, which can result in an
award of compensatory and punitive damages, a civil penalty of not less than $10,000 or
more than $50,000, as well as equitable relief, attorneys’ fees, and costs. See id. § 22-903.

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standing to challenge the Guaranty Law—based not on the City’s non-
enforcement of that law, but rather on purported record ambiguity as to whether
plaintiff Top East Realty LLC in fact held a guaranty agreement subject to
§ 22-1005.3
In opposing dismissal generally, plaintiffs similarly addressed standing
only in a footnote. They argued that Top East Realty LLC and its owner Ling Yang
“’reasonably fear’ that in light of [the Guaranty] Law and the substantial penalties
the Law provides, they will be unable to enforce their personal guaranty.” Pls.’
Reply Supp. Mot. Prelim. Inj. & Opp’n Defs.’ Mot. Dismiss [“Pls.’ Opp’n Defs.’
Mot. Dismiss”] at 12 n.10, Dist. Ct. Dkt. 48 (alteration adopted) (citing Pacific Cap.
Bank, N.A. v. Connecticut, 542 F.3d 341 (2d Cir. 2008)).
In reply, the City continued to question plaintiffs’ standing to challenge the
Guaranty Law, but only on the ground that plaintiffs had failed to show that Top
East Realty LLC held a commercial lease guaranty subject to § 22-1005.
b. The Bochner Plaintiffs
On September 2, 2020—before the district court ruled on the City’s motion
to dismiss—plaintiffs filed the operative Amended Complaint, adding the
Bochner Plaintiffs as parties asserting a Contracts Clause challenge to the
Guaranty Law.4 Like the original Complaint, the Amended Complaint alleges that
3 On other grounds, the City also questioned certain plaintiffs’ standing to pursue First
Amendment and due process challenges to the Harassment Law Amendments. The
district court rejected that challenge, which ruling is not at issue on this appeal, this court
having affirmed the district court’s Rule 12(b)(6) dismissal of plaintiffs’ First Amendment
and due process challenges to the Harassment Law Amendments in Melendez II, 16 F.4th
at 1047.
4 By letter, plaintiffs advised the district court that Top East Realty LLC and Ling Yang
had settled their claim for back rent, thus mooting their Contracts Clause challenge to the
Guaranty Law.

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certain City officials, specifically, the Mayor and the City’s Commissioner of Small
Business Services, are responsible for the enforcement of City laws generally and
the City’s Administrative Code in particular.
Two days later, the City sent the district court a letter asserting that
questions remained as to plaintiffs’ standing. As to the Contracts Clause claim,
the City again did not disavow its enforcement of the Guaranty Law. Rather, it
submitted that it was not clear from the documents provided that the Bochner
Plaintiffs held a commercial lease guaranty subject to § 22-1005.
That same day, the district court ordered the parties to brief, inter alia,
“[w]hether the plaintiffs have standing to challenge the Harassment Laws and
which plaintiffs, if any, have standing to challenge the Guaranty Law.” Order
(Sept. 4, 2020), Dist. Ct. Dkt. 61.
In a letter brief filed September 9, 2020, plaintiffs submitted, primarily with
respect to the Harassment Law Amendments, that they satisfied the causation and
redressability elements of standing because (1) “the named defendants possess
authority to enforce the complained-of provision[s]” of law, Pls.’ Letter Br. (Sept.
9, 2020) at 4–5, Dist. Ct. Dkt. 64 (quoting Digital Recognition Network, Inc. v.
Hutchinson, 803 F.3d 952, 958 (8th Cir. 2015)); (2) “as to [the] municipal
defendants,” allegations that the law is unconstitutional are “always sufficient" to
establish causations, id. at 5 (quoting Amnesty Am. v. Town of W. Hartford, 361 F.3d
113, 125–26 (2d Cir. 2004); (3) the City had not disavowed an intent to enforce the
challenged laws, see id. at 6 (“Courts presume that the government intends to
enforce a law ‘in the absence of a disavowal by the government or another reason
to conclude’ it has no such intent.” (quoting Tweed-New Haven Airport Auth. v.
Tong, 930 F.3d 65, 71 (2d Cir. 2019), cert. denied, 140 S. Ct. 2508 (2020)); and (4) “the
court could prevent enforcement of the unconstitutional restriction[s],” id. at 5.
Further, as to the Guaranty Law, the Bochner Plaintiffs attached exhibits
demonstrating that they held a commercial lease guaranty subject to § 22-1005.

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They also asserted that, by “enacting the Guaranty Law,” the City had injured the
Bochner Plaintiffs by “permanently depriv[ing them] of their only remedy” for
collecting unpaid rent from “defaulting commercial tenants.” Id. at 8.
In its own letter brief, the City conceded plaintiffs’ standing to maintain
challenges to both the Harassment Law Amendments and the Guaranty Law. As
to the former, the City simply agreed that one or more plaintiffs “appear[ed] to
have standing” to challenge the Harassment Law Amendments because they had
sufficiently shown that they were landlords of residential and/or commercial
tenants—the “minimum” required to satisfy standing. Defs.’ Letter Br. (Sept. 9,
2020) at 2, Dist. Ct. Dkt. 65. As to the latter, the City acknowledged that the
Bochner Plaintiffs “appear to have standing to challenge the Guaranty Law under
the Contract[s] Clause” because they satisfied the “minimum” requirement to
show that they held an effective personal guaranty agreement with an individual
who was not the commercial tenant. Id. at 3. Indeed, the City reiterated this last
concession at oral argument on the motion to dismiss, acknowledging that
“documents that were belatedly provided to us do seem to establish that [the
Bochner] plaintiffs appear to have standing.” Hearing Tr. (Sept. 11, 2020) at 4, Dist.
Ct. Dkt. 66. At no time did the City disavow its ability to enforce the Guaranty
Law, or challenge plaintiffs’ standing or the court’s jurisdiction on that ground.
2. The Dismissal Judgment
On November 25, 2020, the district court granted the City’s motion to
dismiss the Amended Complaint. See Melendez I, 503 F. Supp. 3d at 38.
Presumably relying on defendants’ concessions as to standing, the district court
did not address that jurisdictional issue. Instead, the district court concluded
pursuant to Fed. R. Civ. P. 12(b)(6) that plaintiffs failed to state any plausible
claims for relief because (1) the Harassment Law Amendments did not implicate
plaintiffs’ First Amendment rights and were not so vague as to violate the Due
Process Clause of the Fourteenth Amendment, see id. at 27–31; and (2) while the

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Guaranty Law substantially impaired the Bochner Plaintiffs’ contract rights as
against the lease guarantor, it did not violate the Contracts Clause because it was
a reasonable and necessary means to advance a legitimate public interest in
addressing pandemic-related concerns, see id. at 32–36.5
3. The City Raises No Standing Challenge in Defending
Dismissal on Appeal
On appeal, this court affirmed the district court’s Rule 12(b)(6) dismissal of
plaintiffs’ First Amendment and due process challenges to the Harassment Law
Amendments, see Melendez II, 16 F.4th at 1010–16, but reversed its dismissal of the
Bochner Plaintiffs’ Contracts Clause challenge to the Guaranty Law and remanded
to the district court for further consideration of that claim, see id. at 1016–47.
Because we assume familiarity with that decision, we do not here repeat its lengthy
analysis. We note only that, in urging this court to affirm the district court’s
judgment of dismissal as to all claims, the City never suggested that it did not
enforce the Guaranty Law, that the Bochner Plaintiffs lacked standing to assert a
Contracts Clause claim, or that the district court or this court lacked jurisdiction to
hear the case.
We proceed now to review how the City eventually came to raise an
enforcement-based challenge to standing and jurisdiction on remand.
5 The district court also declined to exercise supplemental jurisdiction over plaintiffs’ due
process claim under the New York State Constitution. See Melendez I, 503 F. Supp. 3d at
27 n.8.

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B. Summary Judgment Litigation
1. City Moves for Discovery on Standing Without Disavowing
Enforcement
On return of this case to the district court, the Bochner Plaintiffs, on March
28, 2022, moved for summary judgment on their Contracts Clause challenge to the
Guaranty Law, clarifying that they sought only a declaratory judgment and
abandoning any claim for injunctive relief. The City responded by moving for a
three-month period of discovery limited to “the question of standing.” Defs.’
Letter Mot. (Apr. 11, 2020) at 1, Dist. Ct. Dkt. 95.
The City did not profess to need discovery to clarify its enforcement
authority over the Guaranty Law as that pertained to standing or jurisdiction, a
matter presumably already within its knowledge. Rather, it stated that it sought
discovery to explore “certain holes in the documents previously provided [by
plaintiffs] in September 2020”—an apparent reference to documents provided to
show that the Bochner Plaintiffs held a commercial lease guaranty subject to
§ 22-1005. Id.at 1–2. The City explained:
While Defendants may have[,] for the purposes of preliminary
injunctive relief[,] accepted the minimal discovery that Plaintiffs
provided back in September 2020, now, for the purposes of
determination on the merits, Defendants require further discovery to
address the standing issue, particularly regarding certain holes in the
documents previously provided to Defendants in September 2020,
and to develop the record regarding events impacting standing issues
that may have transpired since September 2020.
Id. (citation omitted). The district court granted the City’s request.

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2. The City Cross Moves for Summary Judgment and First
Disavows Enforcement of the Guaranty Law
Some five months later, on September 23, 2022, the City filed its opposition
to the Bochner Plaintiffs’ motion for summary judgment and its own cross-motion
for summary judgment. It devoted most of its twenty-five-page brief to
challenging the merits of the Bochner Plaintiffs’ claim, arguing that the record
demonstrated, as a matter of law, that the Guaranty Law did not violate the
Contracts Clause. In a single paragraph—and for the first time in the more than
two years since the action commenced—the City also challenged the court’s
subject matter jurisdiction on the ground that the Bochner Plaintiffs lacked
standing because “[t]he City does not enforce the Guaranty Law.” Defs.’
Cross-Mot. Summ. J. & Opp’n Pls.’ Mot. Summ. J. (“Defs.’ Cross-Mot. Summ. J.”)
at 9, Dist. Ct. Dkt. 103. It argued that, in these circumstances, a judgment for the
Bochner Plaintiffs would “amount to no more than a declaration that the statutory
provision they attack is unconstitutional,’ which . . . ‘is the very kind of relief that
cannot alone supply jurisdiction otherwise absent.’” Id. (quoting California v.
Texas, 593 U.S. 659, 673 (2021)).6
The Bochner Plaintiffs offered only a brief reply to this new standing
argument, asserting that California v. Texas was inapt because the statutory
provision there in question “failed to include a penalty for noncompliance[,]
rendering the provision unenforceable,” while here “[t]hat is plainly not the case.”
Pls.’ Reply Supp. Mot. Summ. J. & Opp’n Defs.’ Cross-Mot. Summ. J. at 6, Dist. Ct.
Dkt. 110.
6 The City also raised a ripeness challenge to jurisdiction. Insofar as that issue is presented
on this appeal, we address it infra at 30–36 in considering the Bochner Plaintiffs’ ability
to satisfy the injury requirement for standing. See National Org. for Marriage, Inc. v. Walsh,
714 F.3d 682, 688 (2d Cir. 2013) (“Often, the best way to think of constitutional ripeness is
as a specific application of the actual injury aspect of Article III standing.”).

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In its own reply brief, the City expanded on its standing argument.
Repeating that the “City does not enforce the Guaranty Law” and continuing to
rely on California v. Texas, it argued that any declaration running against
defendants as to the constitutionality of the Guaranty Law could not redress the
Bochner Plaintiffs’ alleged injury. Defs.’ Reply Supp. Cross-Mot. Summ. J. at 1,
Dist. Ct. Dkt. 114; see id. at 2 (“[T]he logic of [California v. Texas] is that litigants may
not proceed in federal court if the defendants have no capacity to enforce the law
against them and have not caused them any redressable injury[.]”). Because “the
only conceivable, potential controversy would be between Plaintiffs and their
lessee,” a declaratory judgment or even “an injunction from this court could not
affect the legal rights of either Plaintiffs or Defendants here.” Id. at 2 (internal
quotation marks omitted).
On November 30, 2022, the district court ordered supplemental briefing on
defendants’ standing challenge.
3. Bochner Plaintiffs Concede Guaranty Law Is “Not ‘Enforced’
by Anyone”
In its supplemental filing, the City repeated its argument that the
declaratory relief sought by the Bochner Plaintiffs could not redress their alleged
injury because “the City does not enforce the Guaranty Law against the Plaintiffs.”
Defs.’ Suppl. Letter (Dec. 7, 2022) at 2, Dist. Ct. Dkt. 120 (quoting Whole Woman’s
Health v. Jackson, 595 U.S. 30, 43 (2021), for proposition that “court lacks jurisdiction
where plaintiffs could point to no ‘enforcement authority the [defendant]
possesses in connection with [the challenged law] that a federal court might enjoin
him from exercising’” (alterations in original)).
In their supplemental filing, the Bochner Plaintiffs agreed that “the
Guaranty Law is not ‘enforced’ by anyone.” Pls.’ Suppl. Letter Br. (Dec. 7, 2022)
at 5 n.3, Dist. Ct. Dkt. 119. Nonetheless, they urged rejection of the City’s standing

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challenge because the “suggestion that the action must be brought against an
entity ‘enforcing’ the Guaranty Law would render it completely immune from any
constitutional challenge.” Id. The Bochner Plaintiffs maintained that they suffered
a redressable injury at the moment the City “enact[ed] the Guaranty Law.” Id. at
4; see id. at 5 (“To the extent there is no ‘threatened action’ here, it is because the
City’s action—and resulting injury to Plaintiffs—occurred when the City enacted
the Guaranty Law, stripping Plaintiffs of their contractual rights in violation of the
Contracts Clause.”).
4. District Court Rejects the City’s Standing Challenge and
Awards Summary Judgment to Bochner Plaintiffs
The district court rejected the City’s standing challenge. Identifying the
three “irreducible constitutional minimum” requirements of standing—“injury-
in-fact, causation, and redressability”—the district court concluded that the
Bochner Plaintiffs satisfied the first because the Guaranty Law’s “permanent[]
bar[]” on their ability to recoup “unpaid rent for a prime commercial tenancy in
the heart of Manhattan” from a guarantor was a concrete and particularized injury.
Melendez III, 668 F. Supp. 3d at 194–95 (internal quotation marks omitted). They
satisfied the second because “[w]here, as here, a plaintiff is ‘threatened by the
enforcement of a statute that specifically targets the plaintiffs, the [causation]
requirement [of standing] is met.’” Id. at 195 (quoting Tweed-New Haven Airport
Auth. v. Tong, 930 F.3d at 71). Finally, the district court concluded that the Bochner
Plaintiffs demonstrated that their injury was redressable because a favorable court
decision on their constitutional challenge would remove the “absolute barrier to
recovering unpaid rent” imposed by the Guaranty Law. Id. at 196.
In granting summary judgment to the Bochner Plaintiffs on their Contracts
Clause challenge to the Guaranty Law, the district court concluded that (1) “the
contractual impairment imposed by the Guaranty Law on Plaintiffs was
substantial”; (2) “the City’s effort to mitigate the devastating economic impact of

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the COVID-19 pandemic constituted a legitimate public purpose”; but (3) the
Guaranty Law was not a reasonable and appropriate means to advance that
interest. Id. at 197. In reaching the last conclusion, the district court examined five
areas of concern identified by this court in reversing dismissal of plaintiffs’
Contracts Clause challenge in Melendez II.
First, it observed that the Guaranty Law “permanently barred [commercial
landlords] from recovering any rent owed during the [covered] period,” which
weighed against constitutionality in the tailoring analysis. Id. at 200 (citing
Melendez II, 16 F.4th at 1039–40).
Second, noting that the City had chosen to “rel[y] upon the same record
evidence” as at the dismissal stage, the district court found that it failed to show
that “permanently eviscerat[ing]” commercial lease guaranties was an appropriate
means to advance the City’s professed purpose “to help shuttered small
businesses survive the pandemic.” Id. at 200–02 (quoting Melendez II, 16 F.4th at
1040). Specifically, the City failed to justify the Guaranty Law’s permanent bar
“irrespective of (1) a showing that the affected guarantor owned the small
business, (2) that such owner guarantor had financial need, and (3) that such
owner-guarantor would reopen the closed business following the pandemic
emergency if provided the [statutory] aid.” Id. at 202 (citing Melendez II, 16 F.4th
at 1041–43).
Third, the district court found that the City was “unable to justify its decision
to exclusively allocate the [economic] burden” of defaulted commercial leases on
landlords by rendering their guaranty agreements unenforceable. Id. at 204; see id.
at 203 (noting “no record support for the proposition that commercial landlords
were in any way responsible for the economic crisis that the Guaranty Law sought
to mitigate” (citing Melendez II, 16 F.4th at 1042)).

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Fourth, the district court found that the City’s “generalized evidence” of
small business owners’ need for urgent economic relief during the pandemic was
insufficient to justify “the lack of any hardship requirement in the [Guaranty]
Law.” Id. at 204–05 (citing Melendez II, 16 F.4th at 1043). Nor did the fact that the
Guaranty Law afforded relief only to natural-person guarantors demonstrate the
requisite means-end fit, because a natural person requirement “by itself, does not
mean that a particular guarantor cannot pay rent arrears.” Id. at 206 (quoting
Melendez II, 16 F.4th at 1043).
Fifth, finding that the “record now confirms” that the Bochner Plaintiffs had
sustained a loss of “approximately $150,000” in unpaid rent, the district court
noted the Guaranty Law’s failure to provide any compensation or relief for
landlords or their principals who were unable to mitigate such losses by enforcing
guaranties. Id. (citing Melendez II, 16 F.4th at 1046).
Thus finding that the City was “unable to provide record evidence to
answer the ‘five serious concerns’” identified by this court as to the Guaranty Law
being “a reasonable and appropriate means to pursue the professed public
purpose,” id. at 207 (quoting Melendez II, 16 F.4th at 1047), the district court entered
summary judgment in favor of the Bochner Plaintiffs on their Contracts Clause
claim.
5. Instant Appeal
a. Parties’ Initial Agreement that the City Lacks Authority to
Enforce Guaranty Law
In timely appealing from the award of summary judgment in this case, the
City does not challenge that judgment on the merits. It challenges only the district
court’s subject matter jurisdiction to hear the case at all, arguing that the Bochner
Plaintiffs lack standing to bring this pre-enforcement challenge to the Guaranty
Law because the City does not and, indeed, cannot enforce that law. See

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Appellants’ Br. at 11 (“[T]he City . . . has absolutely no role in enforcing the [Guaranty
Law].” (emphasis added)); Appellants’ Reply Br. at 19 (“[T]here is no threatened
enforcement by the government here because none of the defendants has any power
to enforce the challenged law.” (emphasis added)).
In their initial brief to this court, the Bochner Plaintiffs agreed that “the
Guaranty Law is not ‘enforced’ by anyone.” Appellees’ Br. at 25 (emphasis in
original). Nevertheless, they argued that “[t]here is no requirement that only
enforcers of a statute may be sued in a Contracts Clause constitutional challenge.”
Id. Further, plaintiffs asserted that their case “is not a pre-enforcement challenge”
but, rather, “a Contracts Clause action where the passage of the Guaranty Law itself
caused the injury.” Id. at 22.
b. Supplemental Briefing and Identification of City
Enforcement Authority
At oral argument, this court expressed some skepticism as to the City’s
claim that it was completely lacking in authority to enforce the Guaranty Law. It
also questioned whether the City had strategically delayed raising its
enforcement-based challenge to standing and jurisdiction until after this court’s
reversal of a dismissal judgment in its favor—conduct that might be sanctionable.
See generally International Shipping Co., S.A. v. Hydra Offshore, Inc., 875 F.2d 388, 393
(2d Cir. 1989) (affirming imposition of sanctions under Fed. R. Civ. P. 11 for
“attorney’s failure to conduct a proper pre-trial inquiry into the court’s subject
matter jurisdiction”). The City requested an opportunity to brief the sanctions
issue, which this court granted.
In a supplemental letter brief arguing that it did not engage in strategic
delay, the City included a brief passage that—at odds with its disavowal of “any
power” to enforce the Guaranty Law, Appellants’ Reply Br. at 19—acknowledged
that two laws, one state and one local, provide the City with at least “generalized

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authority to maintain actions seeking to remedy violations of its laws.”
Appellants’ 1st Suppl. Letter Br. at 3, Dkt. 83. The first of these laws, N.Y. Gen.
City L. § 20(22), empowers all cities within New York State “[t]o maintain an action
or special proceeding in a court of competent jurisdiction to compel compliance
with or restrain by injunction the violation of any such ordinance or local law.”
The second law, N.Y.C. Charter § 394(c), authorizes the City, through its
Corporation Counsel, “to institute actions in law or equity . . . to maintain, defend
and establish the rights, interests, revenues, property, privileges, franchises or
demands of the city . . . or of the people thereof, or to collect any money, debts,
fines or penalties or to enforce the laws.” The City, nevertheless, submitted that
“such generalized authority has consistently been held insufficient to support
standing.” Appellants’ 1st Suppl. Letter Br. at 3 & n.1 (collecting out-of-circuit
cases).
The Bochner Plaintiffs responded to the City’s supplemental submission by
abandoning their own prior concession that no one enforces the Guaranty Law
and instead arguing that the enforcement authority conferred on the City by N.Y.
Gen. City L. § 20(22) and N.Y.C. Charter § 394(c) establishes the credible risk of
enforcement and, therefore, redressable injury, required to satisfy standing to
maintain this action. See Appellees’ 1st Suppl. Letter Br. at 3, Dkt 85.
Concluding that “Plaintiffs’ standing cannot be determined on the present
record,” this court ordered further briefing. Order (July 1, 2024), Dkt. 92.7
7 Further briefing was ordered as to the following issues:
(1) the scope of enforcement authority conferred by [N.Y. Gen. City L.]
§ 20(22) and [N.Y.C. Charter] § 394(c), including their application to [the
Guaranty Law as reflected in N.Y.C. Admin. Code] §§ 22-1005, 22-
902(a)(14);
(2) all instances over the last ten (10) years . . . in which the City . . . has
relied on § 20(22) and/or § 394(c) to enforce any law or regulation, and

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c. Identification of Cases in which the City Invoked § 20(22)
or § 394(c) Authority or Appeared to Defend Guaranty
Law
In the second round of supplemental briefing, the City disclosed that it
frequently invokes the authority conferred by N.Y. Gen. City. L. § 20(22) and
N.Y.C. Charter § 394(c) to enforce various laws and regulations. See Appellants’
2d Suppl. Br. at 2 & Addendum A (listing more than 2,500 cases), Dkt. 94. Indeed,
as the City acknowledges, these authorizing laws “mean what they say: the
Corporation Counsel may bring suit in the City’s name to enjoin violations of a
local law or regulation proscribing or requiring specific conduct.” Id. at 1.
Nevertheless, the City submits that § 20(22) and § 394(c) are irrelevant to the
question of the Bochner Plaintiffs’ standing to maintain this action, not because the
enforcement authority they confer is general but because the Guaranty Law is
“unusual” in that it does not bar or require any specific conduct, but only provides
guarantors with a defense in certain contract actions brought by landlords. Id. at
how those cases do (or do not) demonstrate a risk of similar enforcement
of the Guaranty Law;
(3) whether the City . . . intends to enforce the Guaranty Law under § 20(22),
§ 394(c), or any other provision of law, and if not, whether Defendants
are prepared to submit an affidavit (by an authorized person in the case
of the City) categorically disavowing any future enforcement;
(4) in what, if any, actions arising under the Guaranty Law, has [the City]
appeared, either as a party or an amicus, and what positions, if any, has
[the City] taken in any such litigation with respect to the
constitutionality of the Guaranty Law; and
(5) in any such litigation, what, if any, preclusive effect will a decision by
this Court to vacate (or not to vacate) the challenged summary judgment
award have on any position the City . . . might take.
Id.

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2 (quoting N.Y.C Admin. Code § 22-1005 stating that covered guaranties “shall not
be enforceable”). Insofar as § 22-902(a)(14) does proscribe attempts to collect
guaranties rendered unenforceable by § 22-1005 as commercial tenant harassment,
the City submits that plaintiffs never raised a Contracts Clause challenge to that
law. See id. at 7.
The City also acknowledges appearing—either as an amicus or an
intervening party—in at least five state actions arising under the Guaranty Law
and, in each, arguing that the law is constitutional. See id. at 14 & Addendum B.
Nevertheless, it maintains that merely defending the constitutionality of a law
does not constitute enforcement of the law sufficient to confer standing. See id.
(citing Mendez v. Heller, 530 F.2d 457, 460 (2d Cir. 1976)). Moreover, it states that it
has no intention of using § 20(22), § 394(c), or any other law to enforce the
Guaranty Law against the Bochner Plaintiffs—“full stop.” Id. at 13.
In their own supplemental submission, the Bochner Plaintiffs downplay the
significance of defendants’ disavowal and emphasize the large volume and variety
of cases in which the City has invoked its enforcement authority under § 20(22)
and § 394(c). See Appellees’ 2d Suppl. Br. at 4, Dkt. 95. At the same time, the
Bochner Plaintiffs reiterate that, without regard to City enforcement, their
standing to sue is established by the fact that their “injury was complete the minute
the Guaranty law was passed.” Id. at 9.
DISCUSSION
The long history of this case just detailed leads us to two conclusions. First,
the Bochner Plaintiffs met their standing burden at the pleadings stage. The
Amended Complaint adequately alleged the City’s enforcement of the Guaranty
Law, and defendants failed to rebut—indeed twice conceded—the presumption
that the government will enforce proscriptive laws. Second, on remand following
this court’s decision in Melendez II, the Bochner Plaintiffs failed to meet the more

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demanding burden on summary judgment to provide factual evidence
demonstrating a credible threat of imminent enforcement. They failed to come
forward with a single instance in which the City sued or threatened to sue any
commercial landlord for violating the Guaranty Law. Moreover, the City has now
unequivocally disavowed any intent to enforce the Guaranty Law against the
Bochner Plaintiffs.
On this record, we deny the City’s request to vacate the judgment in
Melendez II, but we must vacate the district court’s award of summary judgment
to the Bochner Plaintiffs in Melendez III and remand the case with instructions to
dismiss the action for lack of subject matter jurisdiction.
I. Article III Standing
A. Legal Standards
“Article III confines the federal judicial power to the resolution of “’Cases’
and ‘Controversies.’” TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021) (quoting
U.S. CONST. art III, § 2). To satisfy this jurisdictional requirement, a plaintiff cannot
simply complain of some wrong in the abstract. Rather, he must have a “personal
stake” in the litigation at issue. Id. (internal quotation marks omitted). To
demonstrate such a stake, a plaintiff must satisfy the three requirements of
standing by showing, “(i) that he suffered an injury in fact that is concrete,
particularized, and actual or imminent; (ii) that the injury was likely caused by the
defendant; and (iii) that the injury would likely be redressed by judicial relief.” Id.
(citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)).
The first requirement, i.e., injury in fact, cannot be merely “conjectural” or
“hypothetical.” Lujan v. Defs. of Wildlife, 504 U.S. at 560 (internal quotation marks
omitted). This does not mean, however, that a party must wait until he sustains
an actual injury before filing suit. An anticipated future injury may suffice if the
threatened injury is “imminent,” a term the Supreme Court construes to mean

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“certainly impending.” Id. at 564 n.2 (emphasis in original) (internal quotation
marks omitted); accord Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409, 414 n.5 (2013)
(requiring “substantial risk” that feared future harm will occur (internal quotation
marks omitted)); Vitagliano v. Cnty. of Westchester, 71 F.4th 130, 136 (2d Cir. 2023)
(quoting Clapper). Thus, a plaintiff intending “to engage in a course of conduct
arguably affected with a constitutional interest, but proscribed by a statute,” may
demonstrate standing to bring a pre-enforcement challenge to that statute by
asserting a “credible threat” of imminent enforcement, whether criminal or civil,
by a government defendant. Susan B. Anthony List v. Driehaus, 573 U.S. 149, 159
(2014) (quoting Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979));
see Hedges v. Obama, 724 F.3d 170, 196–97 (2d Cir. 2013).
In pre-enforcement challenges, the second and third requirements for
standing—causation and redressability—are “often flip sides of the same coin.”
Food & Drug Admin. v. All. for Hippocratic Med., 602 U.S. 367, 380 (2024) (internal
quotation marks omitted); see California v. Texas, 593 U.S. at 670–71 (analyzing
pre-enforcement standing infirmity “from the point of view of” both causation and
redressability). As the Supreme Court has explained, the future injury asserted in
a pre-enforcement challenge to a particular law must be “the result of a statute’s
. . . threatened enforcement.” California v. Texas, 593 U.S. at 670 (emphasis in
original). Thus, an unenforceable statute cannot cause injury “fairly traceable” to
a government actor because “there is no action—actual or threatened”; “[t]here is
only the statute’s textually unenforceable language.” Id. at 671 (internal quotation
marks omitted). Applying this reasoning in California v. Texas to a challenge to the
Affordable Care Act’s insurance-coverage mandate, the Supreme Court held that
the absence of any penalty for noncompliance with that mandate precluded
plaintiffs from asserting an injury that was traceable to the statute, as required for
standing. See id.

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Similarly, as to redressability, the Supreme Court has stated that, where a
challenged statute is unenforceable, “[t]here is no one, and nothing, to enjoin.” Id.
at 673. In such circumstances, relief for plaintiffs “could amount to no more than
a declaration that the statutory provision they attack is unconstitutional, i.e., a
declaratory judgment[,] . . . the very kind of relief that cannot alone supply
jurisdiction otherwise absent.” Id.; see Haaland v. Brackeen, 599 U.S. 255, 292–94
(2023) (holding plaintiffs lacked standing to challenge constitutionality of Indian
Child Welfare Act in action against federal officials because statute was not
enforced by them but only by state officials).
The standing requirements of injury in fact, causation, and redressability are
“not mere pleading requirements but rather [are] indispensable part[s] of the
plaintiff’s case.” Lujan v. Defs. of Wildlife, 504 U.S. at 561. This means each “must
be supported in the same way as any other matter on which the plaintiff bears the
burden of proof, i.e., with the manner and degree of evidence required at the
successive stages of the litigation.” Id.; see Cacchillo v. Insmed, Inc., 638 F.3d 401,
404 (2d Cir. 2011) (“A plaintiff’s burden to demonstrate standing increases over
the course of litigation.”). “At the pleading stage, general factual allegations of
injury resulting from the defendant’s conduct may suffice, for on a motion to
dismiss we presume that general allegations embrace those specific facts that are
necessary to support the claim.” Lujan v. Defs. of Wildlife, 504 U.S. at 561 (internal
quotation marks omitted) (alteration adopted). However, where “the parties have
taken discovery, the plaintiff cannot rest on ‘mere allegations,’ but must instead
point to factual evidence.” Murthy v. Missouri, 144 S. Ct. 1972, 1986 (2024) (quoting
Lujan v. Defs. of Wildlife, 504 U.S. at 561).
B. Plaintiffs Satisfied Standing at the Pleadings Stage
In applying these standing principles here, we start with the operative
Amended Complaint, which effectively alleges that (1) the Guaranty Law
proscribes as commercial tenant harassment the attempted enforcement of those

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commercial lease guaranties rendered unenforceable by the Guaranty Law, and
(2) the Bochner Plaintiffs face a threat that the City will enforce this proscription
against them if they attempt to recoup unpaid rents from their commercial lease
guarantor. As to the first point, the Amended Complaint pleads that the Guaranty
Law both (a) “forever prohibits landlords from enforcing personal guaranties” on
certain commercial leases, Am. Compl. ¶ 144, App’x 1046 (citing N.Y.C. Admin.
Code § 22-1005), and (b) proscribes landlord attempts to do so as commercial
tenant harassment, see id. ¶ 145, App’x 1046 (citing N.Y.C. Admin. Code
§ 22-902(a)). See also id. ¶ 201, App’x 1057 (alleging that “Commercial Harassment
Law and the Guaranty Law, operating in tandem, destroy the economic vitality of
Plaintiffs’ leases”). As to the second point, the Amended Complaint alleges that
certain named City officials are charged with “enforcement” of City laws,
including the City’s Administrative Code, which encompasses the Guaranty Law
and Commercial Harassment Law. See id. ¶¶ 58, 60, App’x 1020. 8
These allegations sufficed to demonstrate the Bochner Plaintiffs’ standing at
the pleadings stage. As this court has held, “[w]here a statute specifically
proscribes conduct, the law of standing does ‘not place the burden on the plaintiff
to show an intent by the government to enforce the law against it’”; rather, the law
“presume[s] such intent in the absence of a disavowal by the government or
another reason to conclude that no such intent existed.” Tweed-New Haven Airport
Auth. v. Tong, 930 F.3d at 71 (quoting Hedges v. Obama, 724 F.3d at 197); see
Vitagliano v. Cnty. of Westchester, 71 F.4th at 138 (“The credible-threat standard ‘sets
a low threshold and is quite forgiving to plaintiffs seeking such preenforcement
review, as courts are generally willing to presume that the government will
8 The City claims that plaintiffs incorrectly ascribe enforcement authority for the
Administrative Code to the Small Business Commissioner. The City did not raise that
argument at the pleadings stage. In any event, it does not alter our standing analysis
here, as the City does not dispute the Amended Complaint’s assertion that the Mayor is
“charged with enforcement” of all City laws. Id. ¶ 58, App’x 1020.

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enforce the law as long as the relevant statute is recent and not moribund.’”
(quoting Cayuga Nation v. Tanner, 824 F.3d 321, 331 (2d Cir. 2016))). The City not
having disavowed either authority to enforce §§ 22-902(a)(14), 22-1005, or intent to
exercise that authority at any time during the lengthy dismissal litigation in this
case, we conclude that the cited “general factual allegations” in the Amended
Complaint, and the “specific facts . . . necessary to support the claim” that they
embrace, here sufficed to establish the Bochner Plaintiffs’ standing at the pleadings
stage. Lujan v. Defs. of Wildlife, 504 U.S. at 561 (citation omitted).
In urging otherwise, the City seeks to cast its disavowal of enforcement at
the summary judgment stage back in time to the pleadings stage. It cannot do that
here because the City, in litigating its motion to dismiss, not only failed to disavow
enforcement but also twice appears to have conceded the presumption of
enforcement.
To explain, as discussed supra at 7–8, when the City initially questioned the
Top East Realty LLC plaintiff’s standing (based on ambiguity as to its possession
of a commercial lease subject to § 22-1005), plaintiffs argued they had standing to
assert a pre-enforcement challenge to the Guaranty Law “in light of . . . the
substantial penalties the Law provides.” Pls.’ Opp’n Defs.’ Mot. Dismiss at 12 n.10.
Further, plaintiffs argued that they had standing to challenge amendments to the
Commercial Harassment Law—which includes the Guaranty Law amendment
proscribing attempts to collect on guaranties it rendered unenforceable, see
§ 22-902(a)(14)—because they reasonably feared enforcement of those laws if they
attempted to collect rent arrears. In reply, the City did not address plaintiffs’
allegation of “substantial penalties.” And, as to plaintiffs’ professed fear of
enforcement, the City disputed neither its authority nor its intent to enforce the
Guaranty Law. It stated only that it “never argued that Plaintiffs lacked standing
for this reason.” Defs.’ Reply Supp. Mot. Dismiss at 2 n.3. This disavowal

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effectively conceded the presumption of enforcement, at least at the pleadings
stage.
The City again conceded this point after the Bochner Plaintiffs joined the
case. As discussed supra at 9–10, in response to the district court’s order for
supplemental briefing, the Bochner Plaintiffs submitted that a feared threat of
enforcement supported their standing to bring a pre-enforcement challenge. In
arguing that the Amended Complaint satisfactorily pleaded such a feared threat,
plaintiffs submitted that “[c]ourts presume that the government intends to enforce
a law ‘in the absence of a disavowal by the government or any other reason to
conclude’ it has no such intent,” and asserted that the City was “empowered to
enforce [§] 22-902(a),” and had “not disavowed any intention to enforce the law
against landlords.” Pls.’ Letter Br. (Sept. 9, 2020) at 6 (quoting Tweed-New Haven
Airport Auth. v. Tong, 930 F.3d at 71). While this section of plaintiffs’ letter brief
specifically addressed the City’s enforcement authority with respect to the
Commercial Harassment Law, because the Guaranty Law amended the
Commercial Harassment Law to define proscribed harassment to include attempts
to collect on guaranties rendered unenforceable by § 22-1005, see § 22-902(a)(14),
the City’s authority to enforce the Commercial Harassment Law presumptively
includes the authority to enforce the Guaranty Law to the extent incorporated
therein. In any event, in response to plaintiffs’ arguments, the City made no
disavowal of its enforcement authority or intent but, rather, acknowledged that all
plaintiffs then before the court—including the Bochner Plaintiffs—had standing to
challenge both the Harassment Law Amendments and the Guaranty Law. This is
reasonably understood as a second concession of the presumption of enforcement
at the pleadings stage.
In seeking to avoid that conclusion, the City argues that a presumption of
enforcement cannot apply to the Guaranty Law because it “does not specifically
proscribe any conduct,” but “simply deems a contractual provision unenforceable

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in private disputes.” Appellants’ 2d Suppl. Br. at 5. 9 As should by now be
apparent, this argument fails because it overlooks § 22-902(a)(14), which
proscribes landlord attempts to collect on guaranties rendered unenforceable by §
22-1005 as commercial tenant harassment. The City acknowledges the
proscriptive character of § 22-902(a). See Defs.’ Mem. Supp. Mot. Dismiss at 16
(“[T]he Harassment Laws . . . proscribe the conduct of harassing residential or
commercial tenants[.]”); Defs.’ Reply Supp. Mot. Dismiss at 3 (referring to
“proscribed forms of conduct” under Harassment Law Amendments). That
acknowledgement necessarily extends to § 22-902(a)(14). Moreover, before this
court, the City acknowledged that N.Y. Gen. City L. § 20(22) and N.Y.C. Charter §
394(c) empower the City to sue “to enjoin violations of a local law or regulation
proscribing or requiring specific conduct,” Appellants’ 2d Suppl. Br. at 1, which
presumably includes harassment in violation of §§ 22-902(a)(14), 22-1005. In these
circumstances, we see no basis to conclude that a presumption of enforcement
does not apply to these Guaranty Law provisions at the pleadings stage.
The City nevertheless argues that the Bochner Plaintiffs never faced a real
threat of enforcement because their commercial tenant had “returned the keys” to
the leased premises before this action was commenced and, thus, the City would
have had no plausible basis for charging the Bochner Plaintiffs with conduct that
caused a commercial tenant to vacate or give up rights under the lease.
Appellants’ 2d Suppl. Br. at 7 (noting that proscribed harassment pertains to
conduct that “would reasonably cause a commercial tenant to vacate covered
property” or to surrender or waive “any rights under a lease or other rental
agreement” (quoting N.Y.C. Admin. Code § 902(a) (emphasis omitted)). The City
9 As already noted, on this appeal, the City does not dispute that the Bochner Plaintiffs’
desire to enforce their guaranty agreement is “affected with a constitutional interest”
protected by the Contracts Clause. Susan B. Anthony List v. Driehaus, 573 U.S at 159
(internal quotation marks omitted).

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did not make such an argument during dismissal litigation in this case. In doing
so now, it fails to point to any evidence in the record as to the circumstances
attending the tenants’ return of keys. We thus cannot conclude that the
unlikelihood of the City succeeding on a Guaranty Law claim against the Bochner
Plaintiffs is so clearly established as to defeat the presumption of enforcement as
a matter of law at the pleadings stage. See Vitagliano v. Cnty. of Westchester, 71
F.4th at 138 (noting “low threshold” for demonstrating credible threat of
enforcement at pleadings stage); see also Vermont Right to Life Comm. v. Sorrell, 221
F.3d 376, 383 (2d Cir. 2000) (stating that “while there may be other, perhaps even
better,” constructions of challenged law, plaintiff’s interpretation was “reasonable
enough” to support “legitimat[e] fear that it will face enforcement of the statute”).
Finally, the City suggests that the Bochner Plaintiffs fail, in any event, to
satisfy the redressability requirement of standing because a judgment against the
City would not preclude commercial lease guarantors from themselves
“enforcing” the Guaranty Law against landlords. Appellants’ 2d Suppl. Br. at 6–
7. The argument fails because the law of standing does not require that the relief
sought by a plaintiff completely redress the asserted injury. See American Cruise
Lines v. United States, 96 F.4th 283, 286 (2d Cir. 2024) (“[A] plaintiff ‘need not show
that a favorable decision will relieve [his] every injury.’” (quoting Larson v. Valente,
456 U.S. 228, 243 n.15 (1982) (emphasis in original)); Soule v. Connecticut Assoc. of
Schs., Inc., 90 F.4th 34, 47 (2d Cir. 2023) (en banc) (“A plaintiff makes this
[redressability] showing when the relief sought ‘would serve to . . . eliminate any
effects of’ the alleged legal violation that produced the injury in fact.” (quoting
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 105–06 (1998) (emphasis added)).
Presuming City enforcement of the Guaranty Law at the pleadings stage, a
declaration that the law is unconstitutional would eliminate the risk of such
enforcement against the Bochner Plaintiffs and, at least to that extent, “directly and
tangibly benefit[]” them in a way sufficient to satisfy the redressability
requirement of standing. Lujan v. Defs. of Wildlife, 504 U.S. at 574.

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In sum, we conclude that the Bochner Plaintiffs sufficiently demonstrated
standing at the pleadings stage of this action. Therefore, we deny the City’s
request to vacate this court’s judgment in Melendez II for lack of subject matter
jurisdiction.
C. The Bochner Plaintiffs Failed To Satisfy Standing at the Summary
Judgment Stage
In cross-moving for summary judgment on remand, the City for the first
time challenged the Bochner Plaintiffs’ standing and federal jurisdiction on the
ground that it “does not enforce the Guaranty Law” and, thus, the Bochner
Plaintiffs cannot show the requisite credible threat of imminent enforcement.
Defs.’ Cross-Mot. Summ. J. at 9. The City repeated this assertion unequivocally to
both the district court and this court, indicating that its disavowal of enforcement
was grounded not merely in an exercise of discretion but in a lack of authority. See
Defs.’ Reply Supp. Cross-Mot. Summ. J. at 1 (“The City does not enforce the
Guaranty Law . . . against the Plaintiffs[.]”); Defs.’ Suppl. Letter Br. (Dec. 7, 2022)
at 2 (“[T]he City does not enforce the Guaranty Law against the Plaintiffs[.]”);
Appellants’ Br. at 11 (“[T]he City . . . has absolutely no role in enforcing the
[Guaranty Law].”); Appellants’ Reply Br. at 19 (“[T]here is no threatened
enforcement by the government here because none of the defendants has any
power to enforce the challenged law.”).
In response, the Bochner Plaintiffs also changed their position on standing,
conceding in the district court and initially in this court that they do not face a
threat of enforcement by the City because “the Guaranty law is not ‘enforced’ by
anyone.” Pls.’ Suppl. Letter Br. (Dec. 7, 2022) at 5 n.3; see Appellees’ Br. at 25
(stating “Guaranty Law is not ‘enforced’ by anyone” (emphasis in original)); id. at
28 (stating Guaranty Law does not “fall into [the] category” of “governmentally
enforceable law[s]”). In conceding as much, the Bochner Plaintiffs necessarily fell
short of meeting their heightened burden on summary judgment to adduce

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“factual evidence” proving a credible threat of imminent and redressable
enforcement injury by the City. Murthy v. Missouri, 144 S. Ct. at 1986; see Babbitt v.
United Farm Workers Nat’l Union, 442 U.S. at 298–99 (“When plaintiffs ‘do not claim
that they have ever been threatened with prosecution, that a prosecution is likely,
or even that a prosecution is remotely possible,’ they do not allege a dispute
susceptible to resolution by a federal court.” (quoting Younger v. Harris, 401 U.S.
37, 42 (1971))).
Resisting that conclusion, the Bochner Plaintiffs submit that this action is not
a pre-enforcement challenge but, rather, a backward-looking claim to redress
injury already sustained by them upon enactment of the Guaranty Law, which
deprived them of their ability to enforce their guaranty agreement for commercial
lease arrears. But that only serves to highlight the Bochner Plaintiffs’ standing
problem. On remand, the Bochner Plaintiffs indicated that the only relief sought
against the City was a declaratory judgment. But, as the Supreme Court has made
plain, relief that can “amount to no more than a declaration that the statutory
provision they attack is unconstitutional, i.e., a declaratory judgment” is “the very
kind of relief that cannot alone supply jurisdiction otherwise absent.” California v.
Texas, 593 U.S. at 673. The Bochner Plaintiffs seek no other form of relief from the
City for past injury, which is hardly surprising because, to date, the City has never
tried to enforce the Guaranty Law against them—or apparently any other
landlord. Thus, the Bochner Plaintiffs cannot recast what is plainly a forward-
looking pre-enforcement action as a backward-looking claim and, thereby, avoid
the burden of adducing evidence of injury in the form of a “real and immediate
threat” of enforcement. Murthy v. Missouri, 144 S. Ct. at 1986 (“[B]ecause the
plaintiffs request forward-looking relief, they must face a real and immediate
threat of repeated injury.” (internal quotation marks omitted)). Put another way,
remedies “operate with respect to specific parties”; “they do not simply operate
on legal rules in the abstract.” California v. Texas, 593 U.S. at 672 (internal quotation
marks omitted). Here, a judgment declaring the Guaranty Law unconstitutional

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could run only against the City. But if, as plaintiffs conceded on summary
judgment, the City does not enforce the Guaranty Law, a declaratory judgment
against the City could afford plaintiffs no relief from the injuries they claim flow
from its enactment, i.e., the defenses and/or penalties afforded private parties
pursuant to §§ 22-902(a)(14), 22-903, 22-1005. See California v. Texas, 593 U.S. at 673
(concluding asserted injury from unenforceable statutory mandate was not
redressable because “[t]here is no one, and nothing, to enjoin”).10
Nor can plaintiffs avoid this conclusion by arguing that, even in the absence
of any enforcement of the Guaranty Law by the City, the declaratory judgment
they seek would redress injury from the enactment of that law because of its likely
persuasive effect on New York State courts presiding over future private litigation
between the Bochner Plaintiffs and their lease guarantor. This argument fails
because, as the Supreme Court has made clear, “the views of the federal courts of
appeals do not bind [a state court] when it decides a federal constitutional
question.” Johnson v. Williams, 568 U.S. 289, 305 (2013).11 The conclusion applies
10 This fact distinguishes this case from others cited by the Bochner Plaintiffs in which a
challenged law authorized the government defendant to impose penalties. See Iten v. Los
Angeles, 81 F.4th 979, 982 (9th Cir. 2023) (recognizing plaintiffs’ standing to challenge
eviction moratorium that not only provided tenants with defense to eviction but also
“imposed civil and criminal penalties to landlords who violate the [m]oratorium”);
Heights Apartments, LLC v. Walz, 30 F.4th 720, 724 (8th Cir. 2022) (addressing Contracts
Clause challenge to eviction moratorium that “made willful violations a misdemeanor
punishable by imprisonment or a fine” and granted Attorney General “discretion to
impose other penalties on landlords”); Apartment Ass’n of Los Angeles Cnty., Inc. v. City of
Los Angeles, 10 F.4th 905 (9th Cir. 2021) (affirming denial of preliminary injunction against
eviction moratorium without considering standing where government was authorized to
issue administrative citations for noncompliance).
11 A few New York State trial courts have already chosen not to follow the district court’s
reasoning in Melendez III holding the Guaranty Law unconstitutional. See 141 Ave. A
Assocs., LLC v. Sneak EZ LLC, 80 Misc.3d 1225(A), at *1 (N.Y. Sup. Ct. 2023) (explaining
“this court is not bound by Melendez” in holding landlord could not pursue damages

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with equal force to the views of federal district courts. As such, the potential
influence of a federal court opinion in a state action is insufficient to satisfy
redressability. That standing requirement demands that a federal court “be able
to afford relief through the exercise of its power, not through the persuasive or even
awe-inspiring effect of the opinion explaining the exercise of its power.” Haaland
v. Brackeen, 599 U.S. at 294 (quoting Franklin v. Massachusetts, 505 U.S. 788, 825
(1992) (Scalia, J., concurring in part and concurring in judgment) (emphasis in
original)).
Our standing analysis, however, cannot simply end there because, as
discussed supra at 18–19, in their post-argument supplemental filings with this
court, the parties changed their positions on enforcement yet again. The City,
instead of continuing to insist that it lacks “any power to enforce the [Guaranty
Law],” Appellants’ Reply Br. at 19, belatedly identified state and local laws
affording it “generalized authority . . . to remedy violations” of any City law,
Appellants’ 1st Suppl. Letter Br. at 3 (citing N.Y. Gen. City L. § 20(22), N.Y.C.
Charter § 394(c)). Indeed, in response to a specific question from this court, the
City conceded that it has relied on this generalized authority in more than 2,500
actions involving various provisions of City law. Not surprisingly, the Bochner
Plaintiffs respond to these disclosures by abandoning their concession that “the
Guaranty Law is not ‘enforced’ by anyone.” Appellees’ Br. at 25 (emphasis in
original). They now argue that the authority conferred on the City by § 20(22) and
§ 394(c) establishes a credible threat of enforcement sufficient to support
standing.12
under Guaranty Law); see also Mansion Realty LLC v. 656 6th Ave. Gym LLC, 79 Misc.3d
372, 380 n.4 (N.Y. Sup. Ct. 2023).
12 Insofar as one or both parties have sometimes taken contrary positions, we need not
here decide whether earlier concessions waive contrary later arguments because, in any
event, this court is not bound by litigants’ concessions on points of law. See Kamen v.

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On the record before this court, it appears that the City regularly invokes
the authority conferred by N.Y. Gen. City L. § 20(22) and N.Y.C. Charter § 394(c)
in enforcing a variety of local laws. While there is no obvious reason why this
enforcement authority would not extend to the Guaranty Law, at least insofar as
it expands the definition of commercial harassment proscribed by the City’s
Commercial Harassment Law, see N.Y.C. Admin. Code §§ 22-902(a)(14), 22-1005,
the Bochner Plaintiffs point to nothing in the record indicating that the City has
ever so used this enforcement authority. The City does not seem to have initiated
any of the Guaranty Law cases in which it tells us it has entered appearances.
Rather, it has appeared in those cases as an amicus or intervening party, frequently
at the behest of the state court, and in that context defended the constitutionality
of the Guaranty Law. See Mendez v. Heller, 530 F.2d at 460 (holding that where
New York Attorney General “has a duty to support the constitutionality of
challenged state statutes, and to defend actions in which the state is interested, [he]
does so, not as an adverse party, but as a representative of the State’s interest in
asserting the validity of its statutes” (internal quotation marks and citations
omitted)). On this record, we must conclude that the Bochner Plaintiffs failed to
carry their standing burden at summary judgment.
Indeed, the City has now unqualifiedly disavowed any intent to enforce the
Guaranty Law against the Bochner Plaintiffs: “Neither the City nor any other
defendant has any intention of enforcing the guaranty law—full stop.” Appellants’
2d Suppl. Br. at 13. Indeed, the City’s Acting Corporation Counsel, “who controls
litigation on the City’s behalf and enjoys the general enforcement powers”
conferred by law, id. at 14, has reiterated that disavowal in a declaration submitted
Kemper Fin. Servs. Inc., 500 U.S. 90, 99 (1991) (holding parties’ legal theories not binding
on Court, which “retains the independent power to identify and apply the proper
construction of governing law”); accord Becker v. Poling Transp. Corp., 356 F.3d 381, 390 (2d
Cir. 2004).

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under penalty of perjury. Therein Counsel “categorically disavow[s] any future
enforcement of the Guaranty Law . . . by the city of New York under General City
Law § 20(22), New York City Charter § 394(c), or any other provision of law.” Decl.
of Muriel Goode-Trufant, Acting Corporation Counsel (Sept. 9, 2024) at 2, Dkt. 99.
In the face of such a disavowal, the Bochner Plaintiffs can no longer rely on a
presumption of enforcement. See Tweed-New Haven Airport Auth. v. Tong, 930 F.3d
at 71 (explaining that court presumes intent to enforce proscriptive statute “in the
absence of a disavowal by the government or another reason to conclude that no such
intent existed” (emphasis added) (internal quotation marks omitted)); see also
HealthNow New York Inc. v. New York, 448 F. App’x 79, 81 (2d Cir. 2011) (identifying
no Article III injury from threatened enforcement of statute where “Attorney
General has denied his office intends to use [it] against [plaintiff]”). Rather, on
summary judgment, it was their burden to adduce “factual evidence,” Murthy v.
Missouri, 144 S. Ct. at 1986, showing “certainly impending” injury from City
enforcement of the Guaranty Law, or a “substantial risk” of such injury, Clapper v.
Amnesty Int’l USA, 568 U.S. at 414 & n.5; see Vitagliano v. Cnty. of Westchester, 71
F.4th at 136. They failed to adduce any such evidence.13
13 The Seventh Circuit recently suggested that “state officials’ promises not to enforce a
statute receive less weight” than other parties’ disavowals “especially when they cannot
bind their successors in office.” Indiana Right to Life Victory Fund v. Morales, 66 F.4th 625,
631 (7th Cir. 2023) (emphasis in original). By contrast, the Tenth Circuit has stated that
to identify standing in the face of such a disavowal would be to “conclude the highest-
ranking law enforcement official” in the county “had engaged in deliberate
misrepresentation to the court.” Brown v. Buhman, 822 F.3d 1151, 1170 (10th Cir. 2016);
see also Gordon v. Lynch, 817 F.3d 804, 807 (D.C. Cir. 2016) (holding case moot where
government unequivocally stated it would not enforce challenged statute). We need not
here decide when, if ever, the caution urged by the Seventh Circuit is warranted because,
in this case, it is the Bochner Plaintiffs’ failure to adduce factual evidence of likely
enforcement that defeats standing.

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The Bochner Plaintiffs nevertheless submit that, even in the absence of any
threat of City enforcement, their standing to maintain this action must be
recognized because, otherwise, the Guaranty Law would be “completely immune
from any constitutional challenge.” Appellees’ Br. at 25. The Supreme Court,
however, has “long rejected that kind of ‘if not us, who?’ argument as a basis for
standing.” Food & Drug Admin. v. All. for Hippocratic Med., 602 U.S. at 396. In any
event, there is no reason to think that a commercial landlord suing a guarantor for
unpaid lease obligations will not be able to challenge the constitutionality of the
Guaranty Law if the guarantor raises it as a defense in the action. Nor is there
reason to think that a landlord sued under § 22-903 for harassment in violation of
§§ 22-902(a)(14), 22-1005, will not be able to challenge the constitutionality of the
Guaranty Law in seeking dismissal of such a claim. Such opportunities are
sufficient to “vindicate the supremacy of federal law.” Whole Woman’s Health v.
Jackson, 595 U.S. at 48; see DeVillier v. Texas, 601 U.S. 285, 291 (2024) (explaining that
constitutional rights are often “invoked defensively in cases arising under other
sources of law”). While plaintiffs may have preferred to challenge the Guaranty
Law in this federal action against the City, “those seeking to challenge the
constitutionality of state laws are not always able to pick and choose the timing
and preferred forum for their arguments.” Whole Woman’s Health v. Jackson, 595
U.S. at 49. In so stating, the Supreme Court emphasized that it “has never
recognized an unqualified right to pre-enforcement review of constitutional claims
in federal court.” Id.
In sum, the Bochner Plaintiffs failed to carry their heightened burden on
summary judgment to demonstrate standing through factual evidence of the
City’s likely enforcement of the Guaranty Law against them. On this record, we
must vacate the award of summary judgment in favor of the Bochner Plaintiffs
and remand the case to the district court with instructions to dismiss for lack of
subject matter jurisdiction.

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II. Sanctions and Costs
This court expressed concern that the City had engaged in sanctionable
strategic delay in not raising an enforcement challenge to standing until this court
partially reversed the Rule 12(b)(6) dismissal judgment in its favor. See generally
International Shipping Co., S.A. v. Hydra Offshore, Inc., 875 F.2d at 393. Upon review
of papers submitted by the City, we are persuaded that this delay was not strategic
and, therefore, we give no further consideration to sanctions.
At the same time, however, the City’s delay in raising an enforcement
challenge to standing appears to have been negligent. The City was represented
in this action by the City’s Corporation Counsel, who “controls litigation on the
City’s behalf and enjoys the general enforcement powers” conferred by law.
Appellants’ 2d Suppl. Br. at 14. Thus, during the lengthy dismissal stage of this
case, the City had every reason to explore the scope of its authority to enforce the
Guaranty Law. Similarly, it had every reason to decide at that stage of the
litigation whether to disavow enforcement of the Guaranty Law against the
Bochner Plaintiffs, as it now unequivocally has done. The City’s failure to conduct
such due diligence, coupled with its concession of standing on two occasions,
failed timely to alert the district court and this court to an enforcement issue
determinative of standing that, if raised earlier, might have shortened or
streamlined this years-long litigation. Similarly, the need for multiple submissions
to learn the scope of the City’s authority to enforce the Guaranty Law, and the
history of its appearances to defend that law, unnecessarily prolonged resolution
of this appeal.
In these circumstances, although the City prevails in part on this appeal, we
deny it costs because its actions unreasonably and unnecessarily delayed
consideration of plaintiffs’ standing and federal jurisdiction. See Fed. R. App. P.
39(a)(4) (providing that, where district court’s judgment is vacated, “costs are
taxed only as the court orders”); City of San Antonio v. Hotels.com, L.P., 593 U.S. 330,

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341, 343 (2021) (identifying “equitable discretion” of courts of appeals “over costs
relating to their own proceedings”); Moore v. Cnty. of Delaware, 586 F.3d 219, 221
(2d Cir. 2009) (stating that while “prevailing party is presumptively entitled to an
award of costs,” the court has “wide discretion” to choose a different cost
allocation (internal quotation marks omitted)).
Although federal courts must address jurisdictional questions at any time
in a case, they need not condone a party’s failure to exercise reasonable diligence
in identifying and raising jurisdictional questions early in a case to avoid putting
courts and adversaries to unnecessary time and expense. See Transatlantic Marine
Claims Agency, Inc. v. Ace Shipping Corp., Div. of Ace Young Inc., 109 F.3d 105, 111
(2d Cir. 1997) (denying costs to prevailing party to “emphasize” that court “in no
way condone[s party’s] cavalier disregard of the earlier proceedings in this case”).
Accordingly, we deny the City costs on this appeal.
CONCLUSION
To summarize, we conclude,
1. At the pleadings stage of this case, the Bochner Plaintiffs sufficiently
demonstrated standing to challenge the Guaranty Law because their
Amended Complaint alleged the City’s enforcement of that law, a
presumption of enforcement applied, and defendants did not challenge
that presumption but, rather, conceded standing.
2. On summary judgment, the Bochner Plaintiffs failed to carry their
heightened burden to adduce factual evidence showing a likelihood of
City enforcement of the Guaranty Law against them, particularly where
the City has not enforced or threatened to enforce the Guaranty Law
against them or anyone else in the past, and it unqualifiedly disavows
intent to enforce the law against the Bochner Plaintiffs in the future.

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3. Although the City unreasonably delayed raising the enforcement-based
challenge to standing and, therefore, to jurisdiction, and then failed to
provide complete information as to their enforcement authority, because
the conduct was negligent rather than strategic, sanctions are not
warranted, but the City is denied costs on this appeal.
Accordingly, the district court’s award of summary judgment is VACATED
and the case is REMANDED with directions to DISMISS this case for lack of subject
matter jurisdiction consistent with this opinion. Defendants’ request to vacate this
court’s judgment in Melendez v. City of New York, 16 F.4th 992 (2d Cir. 2021), is
DENIED. No sanctions are warranted against defendants, but they are DENIED
costs on this appeal.

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