Hudson Shore et al. v. State of New York et al.

24-1678-cv
Hudson Shore et al. v. State of New York et al.
In the
United States Court of Appeals
For the Second Circuit
________
A UGUST TERM 2024
ARGUED: FEBRUARY 4, 2025
D ECIDED: JUNE 2, 2025
No. 24-1678
H UDSON SHORE A SSOCIATES L IMITED PARTNERSHIP , H AVEN ON THE
H UDSON LLC, K ENNETH L EVINSON, AND H UDSON V ALLEY PROPERTY
O WNERS ASSOCIATION,
Plaintiffs-Appellants,
v.
S TATE OF NEW Y ORK, NEW Y ORK S TATE D IVISION OF HOUSING AND
C OMMUNITY R ENEWAL , V ILLAGE OF NYACK, NEW YORK, AND C ITY OF
POUGHKEEPSIE , NEW Y ORK,
Defendants-Appellees.
________
Appeal from the United States District Court
for the Northern District of New York.
________
Before: WALKER , L EVAL , AND B IANCO , Circuit Judges.
________
New York State has contended for decades with a scarcity in
affordable rental housing. It has deployed varying forms of rent

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regulation to tackle this problem, most prominently a scheme known
as “rent stabilization,” which it first adopted in 1974. Rent
stabilization caps annual rent increases, aiming to ameliorate the
situation in which low vacancy rates empower landlords to raise rents
above levels that would be competitive in a market with sufficient
supply. For most of its existence, rent stabilization has been available
only to New York City and certain other downstate municipalities
with particularly tight housing markets.
In 2019, the State amended its rent stabilization law to allow
any municipality to regulate rents upon (1) finding a vacancy rate of
five percent or less among its rental housing stock; and (2) declaring
a housing emergency. To calculate their vacancy rates, local
governments sent surveys to landlords requesting rent rolls and other
relevant information. These governments were stymied, however, by
landlords who ignored their requests or provided false information.
In 2023, the Legislature responded by further amending the law to
authorize local governments to impose civil penalties on
uncooperative landlords and presume from the lack of such
cooperation that they have zero vacancies (the “Vacancy Provisions”).
N.Y. Unconsol. Law §§ 8623(d)–(f) (McKinney 2025).
Plaintiffs-Appellants are an association of landlords and
individual property owners (the “Landlords”) in New York’s Hudson
Valley region who have been surveyed by municipalities conducting
vacancy studies. They sued the State, a State housing agency, and two
municipalities—Nyack and Poughkeepsie—seeking preliminary and
permanent injunctions and a declaratory judgment nullifying the
Vacancy Provisions as unconstitutional on their face. The Vacancy
Provisions are unconstitutional under the Fourth Amendment, the
Landlords allege, because they authorize warrantless searches of their

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records without providing an opportunity to challenge the searches’
scope. They also allege that the Vacancy Provisions violate
procedural due process under the Fourteenth Amendment by
preventing landlords from contesting local governments’ vacancy
calculations. The United States District Court for the Northern
District of New York (Kahn, J.) denied the preliminary injunction and
dismissed the complaint for failure to state a claim. The Landlords
appealed.
We find that there are sufficient opportunities for landlords to
challenge records demands and vacancy calculations to enable the
Vacancy Provisions to pass constitutional muster. Specifically, we
hold that (1) the Vacancy Provisions are facially valid under the
Fourth Amendment because adequate pre-compliance review of the
warrantless administrative searches they authorize is available under
Article 78 of the New York Civil Practice Law and Rules (“Article
78”); (2) the facial Fourth Amendment challenge to the searches
authorized by the Vacancy Provisions also fails because their ample
notice and minimal penalties present a low risk of coercion and abuse
by municipalities and, thus, the Landlords have failed to plausibly
allege that the searches will be unreasonable in every situation; and
(3) the Vacancy Provisions do not violate procedural due process
because landlords can contest municipalities’ vacancy calculations
both (a) before rent stabilization is adopted, at public hearings that
local governments must hold before declaring a housing emergency;
and (b) after rent stabilization is adopted, using Article 78. We
therefore AFFIRM the judgment of the district court.
________

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B ENJAMIN F. NEIDL , Hacker Murphy LLP,
Schenectady, NY, for Plaintiffs-Appellants Hudson
Shore Associates Limited Partnership, Haven on the
Hudson LLC, Kenneth Levinson, and Hudson Valley
Property Owners Association.
P ATRICK A. WOODS , Assistant Solicitor General
(Barbara D. Underwood, Solicitor General, Andrea
Oser, Deputy Solicitor General, on the brief), for
Letitia James, Attorney General of the State of New
York, Albany, NY, for Defendants-Appellees State of
New York and New York State Division of Housing and
Community Renewal.
MARISSA E MBOLA (Brian S. Sokoloff, on the brief),
Sokoloff Stern LLP, Carle Place, NY, for Defendant-
Appellee Village of Nyack.
R EBECCA A. V ALK, City of Poughkeepsie
Corporation Counsel, Poughkeepsie, NY, for
Defendant-Appellee City of Poughkeepsie.
Evan Henley, Edward Josephson, The Legal Aid
Society, New York, NY; Marcie Kobak, Legal
Services of the Hudson Valley, White Plains, NY,
for amici curiae Community Voices Heard & For the
Many.
________
JOHN M. WALKER , JR ., Circuit Judge:
New York State has contended for decades with a scarcity in
affordable rental housing. It has deployed varying forms of rent
regulation to tackle this problem, most prominently a scheme known
as “rent stabilization,” which it first adopted in 1974. Rent
stabilization caps annual rent increases, aiming to ameliorate the

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situation in which low vacancy rates empower landlords to raise rents
above levels that would be competitive in a market with sufficient
supply. For most of its existence, rent stabilization has been available
only to New York City and certain other downstate municipalities
with particularly tight housing markets.
In 2019, the State amended its rent stabilization law to allow
any municipality to regulate rents upon (1) finding a vacancy rate of
five percent or less among its rental housing stock; and (2) declaring
a housing emergency. To calculate their vacancy rates, local
governments sent surveys to landlords requesting rent rolls and other
relevant information. These governments were stymied, however, by
landlords who ignored their requests or provided false information.
In 2023, the Legislature responded by further amending the law to
authorize local governments to impose civil penalties on
uncooperative landlords and presume from the lack of such
cooperation that they have zero vacancies (the “Vacancy Provisions”).
N.Y. Unconsol. Law §§ 8623(d)–(f) (McKinney 2025).
Plaintiffs-Appellants are an association of landlords and
individual property owners (the “Landlords”) in New York’s Hudson
Valley region who have been surveyed by municipalities conducting
vacancy studies. They sued the State, a State housing agency, and two
municipalities—Nyack and Poughkeepsie—seeking preliminary and
permanent injunctions and a declaratory judgment nullifying the
Vacancy Provisions as unconstitutional on their face. The Vacancy
Provisions are unconstitutional under the Fourth Amendment, the
Landlords allege, because they authorize warrantless searches of their
records without providing an opportunity to challenge the searches’
scope. They also allege that the Vacancy Provisions violate
procedural due process under the Fourteenth Amendment by

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preventing landlords from contesting local governments’ vacancy
calculations. The United States District Court for the Northern
District of New York (Kahn, J.) denied the preliminary injunction and
dismissed the complaint for failure to state a claim. The Landlords
appealed.
We find that there are sufficient opportunities for landlords to
challenge records demands and vacancy calculations to enable the
Vacancy Provisions to pass constitutional muster. Specifically, we
hold that (1) the Vacancy Provisions are facially valid under the
Fourth Amendment because adequate pre-compliance review of the
warrantless administrative searches they authorize is available under
Article 78 of the New York Civil Practice Law and Rules (“Article
78”); (2) the facial Fourth Amendment challenge to the searches
authorized by the Vacancy Provisions also fails because their ample
notice and minimal penalties present a low risk of coercion and abuse
by municipalities and, thus, the Landlords have failed to plausibly
allege that the searches will be unreasonable in every situation; and
(3) the Vacancy Provisions do not violate procedural due process
because landlords can contest municipalities’ vacancy calculations
both (a) before rent stabilization is adopted, at public hearings that
local governments must hold before declaring a housing emergency;
and (b) after rent stabilization is adopted, using Article 78. We
therefore AFFIRM the judgment of the district court.
BACKGROUND
I. The Emergency Tenant Protection Act
New York has regulated its rental housing market in varying
forms for over a century. See Cmty. Hous. Improvement Program v. City

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of New York, 59 F.4th 540, 544–47 (2d Cir. 2023) (“CHIP”) (describing
the history of rent regulation in New York). Rent stabilization, the
now dominant form of regulation, was first enacted by New York City
in 1969. Id. at 545; N.Y.C. Admin. Code § 26-503.1 Since 1974, the
process under which municipalities can adopt and re-authorize rent
stabilization has been governed by the Emergency Tenant Protection
Act (“ETPA”). N.Y. Unconsol. Law §§ 8621–34 (McKinney 2025). For
most of this time, however, rent stabilization was available only to
New York City and municipalities in Nassau, Rockland, and
Westchester counties. 2019 N.Y. Laws ch. 36, Part G § 3.
That changed in 2019. In recognition of a state-wide crisis in
the availability and affordability of housing, New York’s Legislature
amended the ETPA to allow any municipality to opt into stabilization
by declaring a housing emergency. 2019 N.Y. Laws ch. 36, Part G § 3
(codified as N.Y. Unconsol. Law § 8634). To declare an emergency, a
local government must first determine that the vacancy rate among
all or a certain class of its housing units “is not in excess of five
percent.” N.Y. Unconsol. Law § 8623(a). “The emergency must be
declared at an end once the vacancy rate . . . exceeds five percent.” Id.
§ 8623(b).
The 2019 law gave municipalities little guidance on how to
carry out vacancy studies, however, and the process proved onerous
and hotly contested. The New York State Legislature grew concerned
that landlords were staving off regulation by refusing to respond to
1 The history of rent stabilization and related legislative history discussed here are
matters of public record of which we are entitled to take judicial notice. See Caha v.
United States, 152 U.S. 211, 222 (1894); see also Giraldo v. Kessler, 694 F.3d 161, 164
(2d Cir. 2012) (explaining that courts may take judicial notice of “relevant matters
of public record”).

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requests for vacancy information or by responding with “deliberately
manipulate[d] data.” App’x 284, N.Y. State Sen. Introducer’s Mem.
in Support of S.B. 2023-S1684A (2023). And municipalities that were
able to complete vacancy studies found their findings tied up in
litigation. See, e.g., Hudson Valley Prop. Owners Ass’n v. City of
Kingston, 208 N.Y.S.3d 322 (3d Dep’t 2024) (upholding Kingston’s
emergency declaration); Chadwick Gardens Assocs. v. City of Newburgh,
208 N.Y.S.3d 487 (N.Y. Sup. Ct. 2024) (unpublished op.) (overturning
Newburgh’s emergency declaration).
The Legislature responded in 2023 by further amending the
ETPA to streamline the vacancy study process by specifying the types
of information municipalities can demand from landlords and giving
them tools to complete studies expeditiously. 2023 N.Y. Laws ch. 698,
§ 1 (codified as N.Y. Unconsol. Law §§ 8623(d)–(g)). The Landlords’
claims in this case center on three of these additions, §§ 8623(d)–(f)
(the “Vacancy Provisions”), reproduced as follows.
First, § 8623(d) (the “Response Provision”) imposes a duty on
landlords to accurately respond to requests for information. Upon
receiving a request from a local government, owners “shall provide
the most recent records of rent rolls and, if available, records for the
preceding thirty-six months,” including
the tenant’s relevant information relating to finding the
vacancy rate of such municipality including but not
limited to the name, address, and amount paid or
charged on a weekly, monthly, or annual basis for each
occupied housing accommodation and which housing
accommodations are vacant at the time of the survey and
available for rent. Such records shall also include any
housing accommodations that are vacant and not

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available for rent and provide the reason why such unit
is not available for rent.
N.Y. Unconsol. Law § 8623(d).
Second, § 8623(e) (the “Penalty Provision”) provides that
municipalities “may impose a civil penalty or fee of up to five
hundred dollars” on landlords who “refuse[] to participate in [a]
vacancy survey” or “submit[] knowingly and intentionally false
vacancy information.” Id. § 8623(e).
Finally, § 8623(f) (the “Adverse Inference Provision”) provides
that “[a] nonrespondent owner shall be deemed to have zero
vacancies.” Id. § 8623(f).
Two other subsections, not challenged by the Landlords, are
relevant to evaluating those that are: (1) § 8623(g) (the
“Confidentiality Provision”) requires that “[i]dentifying data or
information” obtained during a vacancy study “shall be kept
confidential and shall not be shared, traded, given, or sold to any
other entity for any purpose outside of such vacancy study”; and
(2) § 8623(c) (the “Hearing Provision”) requires that municipalities
conduct a “public hearing held on not less than ten days public
notice” before opting to declare an emergency. Id. §§ 8623(c), (g).
II. Procedural History
After local governments embarked on new vacancy studies
under the 2023 amendments, landlords responded with more
lawsuits. Plaintiffs-Appellants here consist of property owners in
Nyack and Poughkeepsie who received vacancy surveys and the
Hudson Valley Property Owners Association (collectively, the
“Landlords”). They brought this action on March 18, 2024 against

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Defendants-Appellees State of New York, New York Division of
Housing and Community Renewal (together, the “State”),
Poughkeepsie, and Nyack, seeking, among other things, a declaration
voiding the Vacancy Provisions as unconstitutional. In doing so, they
join a tradition almost as old as rent regulation in New York itself:
suing to invalidate it under various provisions of the federal
Constitution. CHIP, 59 F.4th at 547 (listing failed challenges under the
Takings Clause, the Contracts Clause, the Equal Protection Clause,
and substantive and procedural due process). The Landlords’ claims
here allege unlawful searches of landlords’ books under the Fourth
Amendment and deprivation of their property interest without due
process under the Fourteenth Amendment.
The Landlords allege that the Response and Penalty Provisions
facially violate the Fourth Amendment by authorizing warrantless
searches of landlords’ books without providing an opportunity to
obtain review of the searches’ reasonableness. Their due process
claim, meanwhile, alleges that the Adverse Inference Provision
prevents them from contesting a locality’s vacancy rate calculation to
the extent that it relies on zero-vacancy inferences drawn against
nonresponsive landlords. The Landlords also asserted as-applied
constitutional claims, but abandon them on appeal.
On March 25, 2024, the Landlords moved for a preliminary
injunction to prevent the enforcement of the Vacancy Provisions
against them. The State, Nyack, and Poughkeepsie each filed separate
motions to dismiss.
On May 28, 2024, the district court denied the Landlords’
preliminary injunction motion, holding that their claims were
unlikely to succeed on the merits because they failed as a matter of

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law. Hudson Shore Assocs. v. New York, No. 1:24-CV-370, 2024 WL
3212689, at *4–8 (N.D.N.Y. May 28, 2024) (“Hudson Shore I”). On
June 10, 2024, the district court granted the State’s motion to dismiss
under Rule 12(b)(6), relying on the reasoning from its May 28 order,
and denied Nyack and Poughkeepsie’s motions to dismiss as moot.
See Hudson Shore Assocs. v. New York, No. 1:24-CV-370, 2024 WL
2923703, at *1–2 (N.D.N.Y. June 10, 2024) (“Hudson Shore II”).
DISCUSSION
On appeal, the Landlords challenge the district court’s denial
of their motion for a preliminary injunction and its dismissal of their
facial constitutional claims. We review its denial of a preliminary
injunction for abuse of discretion and the legal conclusions
underlying that decision de novo. JLM Couture, Inc. v. Gutman, 91
F.4th 91, 99 (2d Cir. 2024). The district court’s dismissal of the
Landlords’ Amended Complaint for failure to state a claim also gets
de novo review. CHIP, 59 F.4th at 548. We may affirm either decision
on any ground supported by the record. Olson v. Major League
Baseball, 29 F.4th 59, 84 (2d Cir. 2022) (Rule 12(b)(6) dismissal);
Gazzola v. Hochul, 88 F.4th 186, 195 (2d Cir. 2023) (per curiam) (denial
of a preliminary injunction).
“A plaintiff seeking a preliminary injunction must establish
that he is likely to succeed on the merits, that he is likely to suffer
irreparable harm in the absence of preliminary relief, that the balance
of equities tips in his favor, and that an injunction is in the public
interest.” Gazzola, 88 F.4th at 194.2 “To survive a motion to dismiss,
a complaint must contain sufficient factual matter, accepted as true,
2 Unless otherwise indicated, in quoting cases, all internal quotation marks and
citations are omitted, and all alterations are adopted.

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to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). We “draw[] all reasonable inferences in [the
Landlords’] favor” while undertaking this analysis. Singh v. Deloitte
LLP, 123 F.4th 88, 93 (2d Cir. 2024). Because the district court’s denial
of the Landlords’ motion for a preliminary injunction and its
dismissal of their Amended Complaint each rested on its holding that
their claims failed as a matter of law, our review of these decisions
merges into the question of whether the Landlords’ claims are legally
viable. Hudson Shore I, 2024 WL 3212689, at *4–8; Hudson Shore II, 2024
WL 2923703, at *1–2.
The Landlords’ challenges to the Vacancy Provisions are facial:
they “attack [the] statute itself as opposed to a particular application.”
City of Los Angeles v. Patel, 576 U.S. 409, 415 (2015). Facial challenges
“often rest on speculation” about laws’ coverage and enforcement,
risking the “premature interpretation of statutes on the basis of
factually barebones records.” Wash. State Grange v. Wash. State
Republican Party, 552 U.S. 442, 450 (2008). They also offend “the
fundamental principle of judicial restraint that courts should neither
anticipate a question of constitutional law in advance of the necessity
of deciding it nor formulate a rule of constitutional law broader than
is required by the precise facts to which it is to be applied.” Id.
Finally, they can “short circuit the democratic process by preventing
duly enacted laws from being implemented in constitutional ways.”
Moody v. NetChoice, LLC, 603 U.S. 707, 723 (2024).
Accordingly, the Supreme Court has made facial claims “the
most difficult challenge to mount successfully.” United States v.
Salerno, 481 U.S. 739, 745 (1987). Claimants must “establish[] that no
set of circumstances exists under which the [a]ct would be valid, i.e.,
that the law is unconstitutional in all of its applications.” Wash. State

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Grange, 552 U.S. at 449 (alteration in original omitted). In weighing
these claims, we look only to the bare “facial requirements” of the
statute at issue and decline invitations to “speculate about”
improbable “imaginary cases.” Id. at 450. We also “take pains to give
a statute a limiting construction in order to avoid a constitutional
difficulty,” Allstate Ins. Co. v. Serio, 261 F.3d 143, 150 (2d Cir. 2001),
favoring a constitutionally sound reading so long as it is not “plainly
contrary to the intent of the Legislature,” Lusk v. Vill. of Cold Spring,
475 F.3d 480, 496 (2d Cir. 2007).
We need not take such pains in disposing of the Landlords’
challenges here, which fail under a straightforward reading of the
Vacancy Provisions. As set forth below, we conclude that the facial
constitutional challenges fail as a matter of law because the Landlords
have failed to plausibly allege that the Vacancy Provisions are
unconstitutional “in all [their] applications.” Patel, 576 U.S. at 418.
I. The Landlords’ Fourth Amendment Claim
The Fourth Amendment guarantees the “right of the people to
be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.” U.S. Const. amend. IV. “This
expectation exists not only with respect to traditional police searches
conducted for the gathering of criminal evidence but also with respect
to administrative inspections designed to enforce regulatory
statutes.” New York v. Burger, 482 U.S. 691, 699–700 (1987). While
“reasonableness is . . . the ultimate standard” against which searches
are measured under the Fourth Amendment, Soldal v. Cook Cnty., 506
U.S. 56, 71 (1992), the Supreme Court has condemned warrantless
searches and those otherwise “conducted outside the judicial

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process” as “per se unreasonable subject only to a few specifically
established and well-delineated exceptions,” Patel, 576 U.S. at 419.
This case involves one such exception. No warrant is necessary
for “administrative search[es]”: those implicating “special needs” that
“make the warrant and probable-cause requirement impracticable,
and where the primary purpose of the searches is distinguishable
from the general interest in crime control.” Id. at 420. Warrantless
administrative searches are permissible so long as their subjects have
“an opportunity for precompliance review,” that is, an opportunity to
challenge the search’s reasonableness in front of a “neutral
decisionmaker” before “fac[ing] penalties for failing to comply.” Id.
at 419–21. Courts excuse the requirement for precompliance review,
however, when the searches in question target an industry that is so
“closely regulated” that its participants have “no reasonable
expectation of privacy” in their books or inventory. Id. at 424. This
“narrow exception” has been applied sparingly and comes with its
own set of additional requirements. Id. at 424–26.
The Supreme Court most recently considered administrative
searches in City of Los Angeles v. Patel, 576 U.S. 409 (2015). Patel
concerned a Los Angeles ordinance that required hotels to turn over
information about their guests to any police officer who requested
access. Id. at 412–13. Hotel owners who refused a search could be
arrested and charged with a misdemeanor. Id. at 413. The Court
deemed the ordinance facially unconstitutional on the basis that it
authorized warrantless administrative searches for which there was
no opportunity for precompliance review. Id. at 419–24. Absent this
review, the potential for criminal liability created “an intolerable risk
that searches authorized by [the ordinance] will exceed statutory

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limits, or be used as a pretext to harass hotel operators and their
guests.” Id. at 421.
Patel also confirmed that facial challenges to statutes can be
brought under the Fourth Amendment. Id. at 415. As in other
contexts, facial Fourth Amendment claims must show that the
challenged law is “unconstitutional in all of its applications.” Id. at
418; see CHIP, 59 F.4th at 549 (“Patel . . . only clarified the scope of
Salerno’s standard for facial challenges. It did not reject or relax the
Salerno standard.”).
In this case, the district court rejected the Landlords’ Fourth
Amendment claim on three grounds. First, it distinguished the
Vacancy Provisions from the law struck down in Patel. It found that
the Vacancy Provisions posed a lower threat of coercion because they
give a “far more generous timeframe” for compliance, do not
authorize in-person inspections or criminal liability, cover a narrower
set of information, and have guardrails against abuse, such as the
Confidentiality Provision. Hudson Shore I, 2024 WL 3212689, at *5.
Next, the district court held that no precompliance review is
necessary because the closely regulated business exception applied.
Id. at *6. Finally, the district court found that searches authorized by
the Vacancy Provisions are reasonable because they serve an
important purpose, demand easily accessible records, and do not
unduly invade landlords’ privacy. Id. at *7.
We affirm on the alternate ground that, under Article 78,
landlords have adequate opportunity to obtain precompliance review
of searches authorized by the Vacancy Provisions, and that they are
therefore not per se unreasonable. We also agree that these searches
are likely to be less coercive and more reasonable than those

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authorized by the Patel ordinance and, thus, Landlords have failed to
plausibly allege that the searches will be unconstitutional in every
application authorized by the Vacancy Provisions. Both conclusions
independently require us to reject the Landlords’ claims as a matter
of law. Because these conclusions are sufficient to dispose of the
Landlords’ Fourth Amendment claim, we decline to address the
district court’s holding regarding whether the rental housing industry
is eligible for the closely regulated business exception.
A. Requirement for Precompliance Review Satisfied
The Vacancy Provisions are valid under the Fourth
Amendment because they authorize administrative searches for
which landlords can obtain precompliance review using Article 78.
See Patel, 576 U.S. at 420. Although the district court did not reach this
issue, we may affirm “on any ground which finds support in the
record, regardless of the ground upon which the trial court relied.”
Olson, 29 F.4th at 73.
The Landlords do not contest that the searches authorized by
the Vacancy Provisions are “administrative.” Patel, 576 U.S. at 420.
Their purpose, which is to accurately measure the availability of
housing and need for regulation, differs starkly “from the general
interest in crime control.” Id. And the “special need[]” to quickly
collect data for hundreds or thousands of properties makes it
“impracticable” to obtain a warrant for each surveyed landlord. Id.
The focus of our inquiry, then, is whether landlords have an
adequate opportunity to challenge demands to see their books. They
do. The Supreme Court “has never attempted to prescribe the exact
form an opportunity for precompliance review must take,” but two

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requirements are clear: (1) the searched party must be able to question
the search’s reasonableness in front of “a neutral decisionmaker”; and
(2) this review must be available “before [the searched party] faces
penalties for failing to comply.” Id. at 421. The Supreme Court has
repeatedly blessed administrative subpoenas as satisfying these
criteria. See id. at 421–23; Donovan v. Lone Steer, Inc., 464 U.S. 408, 415
(1984) (providing that a subpoenaed party in an administrative search
proceeding is adequately protected by the opportunity to “question
the reasonableness of the subpoena, before suffering any penalties for
refusing to comply with it, by raising objections in an action in district
court”). Recipients of administrative subpoenas can challenge the
scope of their demands in court via a motion to quash before being
made to comply. Patel, 576 U.S. at 422–23.
Article 78 provides precompliance review similar to that
available from a motion to quash an administrative subpoena.
Article 78 actions are “expedited summary procedure[s]” for the
“speedy correction of improper action by a body or officer.”
Whitfield v. City of New York, 96 F.4th 504, 520 (2d Cir. 2024). They
offer relief against any administrative action that “was made in
violation of lawful procedure, was affected by an error of law or was
arbitrary and capricious or an abuse of discretion.” N.Y. C.P.L.R.
§ 7803(3). “[A]n error of law” can be demonstrated by showing that
the action was “‘contrary to Constitution or statute.’” Whitfield, 96
F.4th at 532 (quoting Meisner v. Hamilton, Fulton, Montgomery Bd. of
Coop. Educ. Servs., 108 N.Y.S.3d 206, 209–10 (3d Dep’t 2019)).
Article 78 affords a range of equitable relief, including orders to cease
or reverse the unlawful conduct. Id. at 520.

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Article 78 meets each of the requirements for precompliance
review. First, it provides access to a neutral decisionmaker: the New
York Supreme Court. N.Y. C.P.L.R. § 7804(b).
Next, Landlords can use Article 78 to challenge the scope of
demands under the federal Constitution or state law. Article 78 has
been used for decades to challenge the reasonableness of regulatory
searches under the Fourth Amendment, including searches of
television and radio repair businesses, Glenwood TV, Inc. v. Ratner, 480
N.Y.S.2d 98 (2d Dep’t 1984), aff'd, 65 N.Y.2d 642 (1985), vehicle scrap
yards, Murtaugh v. N.Y. State Dep’t of Env’t Conservation, 841 N.Y.S.2d
189 (4th Dep’t 2007), homes, Yee v. Town of Orangetown, 904 N.Y.S.2d
88 (2d Dep’t 2010), and taxi drivers’ GPS data, Carniol v. N.Y.C. Taxi
& Limousine Comm’n, 975 N.Y.S.2d 842 (Sup. Ct. 2013), aff'd, 2 N.Y.S.3d
337 (Mem) (1st Dep’t 2015). The Landlords give no reason why
similar Article 78 scrutiny will be unavailable here.
Article 78 can also be used to challenge demands under the
ETPA itself. The Landlords argue otherwise, pointing to the broad
discretion that the Response Provision gives local governments.
Because municipalities can demand whatever records they deem
“relevant . . . to finding the vacancy rate,” they argue, the ETPA
provides no legal standard under which a court could disapprove of
a search’s scope. N.Y. Unconsol. Law § 8623(d). But Article 78 allows
petitioners to challenge actions not only on the basis that they were
“affected by an error of law,” but also that they are “arbitrary and
capricious” or an “abuse of discretion,” however wide that discretion
may be. N.Y. C.P.L.R. § 7083(3). A landlord can therefore challenge
a survey’s scope by alleging that the municipality acted arbitrarily or
abused its discretion in determining that the requested information
would be relevant.

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Finally, landlords can file an Article 78 petition as soon as a
demand for records is made, meaning that review is available before
they “fac[e] penalties for failing to comply.” Patel, 576 U.S. at 421.
New York courts have adjudicated Article 78 petitions that were filed
before the challenged searches were carried out, or the consequences
for refusing the searches were administered. See Patchogue-Medford
Cong. of Tchrs. v. Bd. of Educ. of Patchogue-Medford Union Free Sch. Dist.,
70 N.Y.2d 57, 63–64 (1987) (adjudicating teachers’ Fourth Amendment
challenge to employee drug tests, which was filed “[p]rior to the date
for the scheduled examination” and before petitioners suffered denial
of tenure for refusal to test).
The Landlords argue that review will not be available fast
enough because local governments can demand compliance
“immediately, or on short notice.” Landlords’ Br. at 24; see also Oral
Arg. Audio Recording at 7:10–7:36. It is true that the Vacancy
Provisions do not specify a timeline for penalizing noncooperative
landlords, making it possible in theory that local governments could
demand immediate compliance. But the Landlords do not show that
this will happen in practice, let alone in all of the Vacancy Provisions’
applications, as is necessary to support their facial challenge. Wash.
State Grange, 552 U.S. at 449. And the Amended Complaint suggests
that municipalities have not demanded immediate compliance from
landlords. App’x 20, Amend. Compl. ¶ 42 (alleging that
“Plaintiffs . . . received these demands from Nyack in early February
2024 and responses were due by February 29”). This is sufficient time
to at least file an Article 78 petition and, in most circumstances, to
obtain preliminary relief using Article 78’s “expedited summary
procedure[s].” Whitfield, 96 F.4th at 520. We therefore decline the
Landlords’ invitation to “speculate about” improbable imaginary

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situations in which a landlord could be penalized for noncompliance
before being able to obtain Article 78 review. Wash. State Grange, 552
U.S. at 450.
Article 78 allows landlords to, in at least some circumstances,
obtain review before being forced to choose between handing over
their books or facing a penalty. That is enough to defeat any facial
challenge to the Vacancy Provisions under the Fourth Amendment.
See Patel, 576 U.S. at 421; Bell v. City of Chicago, 835 F.3d 736, 738 (7th
Cir. 2016) (“There is no categorical bar to mounting a facial challenge
under the Fourth Amendment, but, in doing so, Plaintiffs assume a
demanding burden—establishing that a law is unconstitutional in all
of its applications.”).
B. Contrast from Patel
Our holding regarding precompliance review is alone
sufficient to dispose of the Landlords’ Fourth Amendment claim. Id.
The “‘underlying command of the Fourth Amendment,’” however,
“‘is always that searches and seizures be reasonable,’ and ‘what is
reasonable depends on the context within which a search takes
place.’” Gudema v. Nassau Cnty., 163 F.3d 717, 722 (2d Cir. 1998)
(quoting New Jersey v. T.L.O., 469 U.S. 325, 337 (1985)). Patel reflects
this split focus between rigid doctrinal rules relating to the amount of
review available to contest a search, discussed at length above, and
the factual context in which a search takes place. While its holding
relied primarily on the lack of precompliance review, Patel also
repeatedly emphasized the consequences of a hotel owner’s refusal to
comply. Because hotel owners faced criminal liability for refusing a
search, the lack of precompliance review “alter[ed] the dynamic
between the officer and the hotel to be searched” and “create[d] an

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intolerable risk that searches . . . will exceed statutory limits, or be
used as a pretext to harass hotel operators and their guests.” Patel,
576 U.S. at 421–23. In view of the Fourth Amendment’s focus on
searches’ factual context, as well as the Landlords’ persistent
analogies to Patel’s facts, we briefly compare the searches at issue here
with those authorized by the ordinance condemned in Patel. This
comparison further reinforces our holding that searches authorized
by the Vacancy Provisions will not be unreasonable in every
application.
We agree with the district court that the circumstances here
present a significantly lower risk of abuse and coercion than the
searches in Patel. First, a civil penalty of up to $500 does not approach
the coercive power of criminal liability. The Supreme Court has long
maintained that the need for individualized review is greater where
noncompliance comes with the threat of arrest and prosecution. See
id. at 421 (“‘[B]road statutory safeguards are no substitute for
individualized review, particularly when those safeguards may only
be invoked at the risk of a criminal penalty.’” (quoting Camara v. Mun.
Ct. of City & Cnty. of S.F., 387 U.S. 523, 533 (1967))).
The Landlords suggest that the Adverse Inference Provision,
when combined with the $500 penalty, rivals the consequences at
stake in Patel. Because municipalities can deem nonresponsive
landlords to have zero vacancies and thus lower the overall vacancy
rate, the Landlords argue, landlords may feel coerced by the threat
that their non-response will lead to rent stabilization. Of course that
is true. But rent stabilization is not a punishment designed to compel
compliance with vacancy surveys; the surveys instead help
municipalities decide whether rent stabilization is necessary. See
Spring Valley Gardens Assocs. v. Marrero, 474 N.Y.S.2d 311, 315–16 (2d

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Dep’t 1984), aff'd, 68 N.Y.2d 627 (1986) (reasoning that “it would be
anomalous to hold that those who refused to co-operate with the
statistical study should benefit from their stubborn and studied
silence”). And rent stabilization is the policy choice of the State
Legislature and the municipalities enacting it. To view stabilization
chiefly as a punitive means to collect data would misread the ETPA,
turn the system on its head, and violate our duty to construe laws
“embodying the will of the people . . . in a manner consistent with the
Constitution.” Wash. State Grange, 552 U.S. at 451.
Second, the Landlords do not allege that records demands are
made in person; in practice, they are sent remotely via mail, email, or
phone. App’x 40–41, Amend. Compl. Ex. D, at 1–2. Landlords are
therefore not forced to choose immediately between handing over
their books or facing punishment, which was the choice put to hotel
owners in Patel, 576 U.S. at 421. The Landlords again suggest that
municipalities could demand records immediately, but such
speculation, without the slightest hint that they would actually do so,
cannot sustain a facial challenge. See Wash. State Grange, 552 U.S. at
450.
Third, while the searches in Patel could be conducted at the
momentary whimsy of any passing police officer, searches under the
Vacancy Provisions can only occur in limited circumstances that give
prior warning. Demands can only be made while local governments
are conducting vacancy studies, the commencement of which could
warn landlords to expect a survey. See N.Y. Unconsol. Law § 8623(d)
(allowing municipalities to request vacancy information “as a part of
a study to determine [their] vacancy rate”). While the Landlords
point out that Nyack undertook two studies in one year, that is a far
cry from the ever present possibility of being searched under the Patel

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ordinance. Relatedly, the Vacancy Provisions allow only
municipalities and their “designee[s]” to issue the demands, not any
passing police officer, further reducing the risk of abuse. Id. § 8623(d).
Finally, the Confidentiality Provision closes off another
potential avenue for abuse by keeping landlords’ and tenants’
information safe from misuse by third parties. Cf. Patel, 576 U.S. at
421 (noting risk that searches could be used “as a pretext to harass
hotel operators and their guests”). In sum, we agree with the district
court that the searches in Patel are distinguishable from the searches
at issue here, and conclude that searches authorized by the Vacancy
Provisions are not unreasonable in every application because their
ample notice and minimal penalties presents a low risk of coercion
and abuse by municipalities. Thus, the Landlords’ facial challenge
under the Fourth Amendment fails as a matter of law on this
independent ground.
II. The Landlords’ Procedural Due Process Claim
The Landlords complain that the Adverse Inference Provision
amounts to a deprivation of landlords’ property without procedural
due process in violation of the Fourteenth Amendment. We disagree.
Procedural due process claimants must (1) “identify a
constitutionally protected property or liberty interest”; and
(2) “demonstrate that the government has deprived [them] of the
interest without due process of law.” Weinstein v. Albright, 261 F.3d
127, 134 (2d Cir. 2001). As discussed above, a facial claim must go
further, showing that the challenged statute “cannot constitutionally
be applied to anyone” because due process will be deprived in all
circumstances. Copeland v. Vance, 893 F.3d 101, 110 (2d Cir. 2018).

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When the deprivation in question occurs in the course of an
“established state procedure,” due process is satisfied by the
“combination” of “some form of pre-deprivation hearing” and a
“post-deprivation remedy” with “the opportunity to obtain full
judicial review.” Rivera-Powell v. N.Y.C. Bd. of Elections, 470 F.3d 458,
466–67 (2d Cir. 2006). Pre-deprivation hearings “need not be
elaborate,” but must include “notice and an opportunity to respond.”
Id. at 467.
The Landlords claim that they will be deprived of a property
interest when zero-vacancy presumptions that apply to
nonresponsive landlords lower a municipality’s vacancy rate to five
percent or lower and the town subsequently enacts rent stabilization.
The Adverse Inference Provision deprives them of due process in this
scenario, they argue, because the Provision requires final, binding
determinations as to the number of vacancies among properties
owned by nonresponsive landlords, and prevents other landlords
from contesting the overall vacancy rate by presenting other data.
The district court dismissed the Landlords’ claim on the basis
that they had adequate pre- and post-deprivation means to contest
the results of vacancy studies. Hudson Shore I, 2024 WL 3212689, at
*7–8. It held that the Hearing Provision, which requires
municipalities to hold a public hearing on ten days’ notice before
declaring a housing emergency, provides a pre-deprivation remedy,
and that “nothing in the [ETPA] . . . precludes a municipality from
adjusting its calculation after hearing new evidence of a miscalculated
rate at the public hearing.” Id. at *7. Second, the district court found
that Article 78 provides post-deprivation process. Id. at *8. Finally, it
found that landlords have an additional post-deprivation remedy
under § 8623(b), which requires local governments to suspend any

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extant housing emergency on a showing that the vacancy rate has
exceeded five percent. Id. We affirm on the basis that adequate pre-
and post-deprivation process is available, and we express no view as
to whether the Vacancy Provisions implicate a protected property
interest.
A. Pre-Deprivation Process
We agree with the district court that hearings mandated by the
Hearing Provision can provide landlords “notice and an opportunity
to respond” to a municipality’s vacancy calculation, including any
zero vacancy inferences that may be applied. Rivera-Powell, 470 F.3d
at 467. Nothing in the ETPA describes what may or may not occur at
public hearings, prevents landlords from presenting corrective data,
or prevents towns from accepting it. N.Y. Unconsol. Law § 8623(c).
Indeed, Poughkeepsie accepted corrective data presented at a hearing
regarding its count of vacant units, leading to an upward revision in
its vacancy rate calculation.3 And even if a municipality declines to
revise its calculation when confronted with corrective data, it could
still use the data as a basis to decide against declaring a housing
emergency.
The Landlords claim that the Adverse Inference Provision
prohibits municipalities from accepting accurate vacancy counts
regarding properties owned by nonresponsive landlords. They argue
that the Provisions’ mandate that nonresponsive owners “shall” be
3 Resolution of the Common Council of the City of Poughkeepsie, No. R-24-45,
June 18, 2024, https://cityofpoughkeepsie.com/DocumentCenter/View/3361/R-24-
45-Resolution-Declaring-A-Housing-Emergency. The Landlords concede that
Poughkeepsie upwardly revised its calculation and that its resolution reflecting as
much “is a matter of public record.” Landlords’ Br. at 15 n.5. We therefore take
notice of it. Caha, 152 U.S. at 222; Giraldo, 694 F.3d at 164.

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assessed zero vacancies equates to a final determination. N.Y.
Unconsol. Law § 8623(f). They also highlight that the Hearing
Provision does not expressly allow local governments to consider
corrective data. These arguments ask us to narrowly interpret the
ETPA in a way that creates rather than avoids constitutional conflict,
and which rests on “speculation about the law’s coverage and its
future enforcement.” Moody, 603 U.S. at 723. Though the Provision
mandates that municipalities assess zero vacancies, it is silent as to
when this presumption must be applied and how long it must last.
And nothing in the Provision purports to ban municipalities from
considering more accurate information at a later date. Indeed, it more
closely resembles an evidentiary presumption that may be rebutted.
Our preferred reading of the Vacancy Provisions aligns with
the legislature’s purpose in enacting them. See Lusk, 475 F.3d at 496
(“[W]here an otherwise acceptable construction of a statute would
raise serious constitutional problems, we may construe the statute to
avoid such problems unless such construction is plainly contrary to
the intent of the Legislature.”). The Legislature intended the Vacancy
Provisions “to ensure that cities . . . are able to get accurate
information” about vacancies. App’x 284, N.Y. State Sen. Introducer’s
Mem. in Support of S.B. 2023-S1684A (2023) (emphasis added). A
reading of the ETPA that binds municipalities to zero-vacancy
presumptions indefinitely would undermine this purpose by
preventing them from collecting accurate data.
B. Post-Deprivation Process
We agree with the district court that Article 78 provides an
adequate opportunity for landlords to contest vacancy calculations,
including zero vacancy figures attributed to nonresponsive landlords,

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after a housing emergency is declared. We have long held that
Article 78 provides a meaningful post-deprivation remedy sufficient
to satisfy due process. Locurto v. Safir, 264 F.3d 154, 173–75 (2d Cir.
2001) (holding that “[a]n Article 78 proceeding . . . constitutes a
wholly adequate post-deprivation hearing for due process purposes”
and collecting cases). And New York courts have specifically blessed
Article 78 as a tool to challenge zero-vacancy presumptions. The
Adverse Inference Provision codified a practice that had been
employed by ETPA-eligible municipalities to streamline vacancy
studies for over four decades. See Spring Valley, 474 N.Y.S.2d at 315–
16. The Appellate Division, affirmed by the New York Court of
Appeals, allowed zero-vacancy inferences so long as vacancy
calculations were otherwise based on “a good-faith study . . . based
on precise data.” Id. at 316. Even then, however, non-party landlords
who felt that they “should not suffer the [distorting] consequences of
the nonco-operation of the others” could still challenge zero vacancy
presumptions by subpoenaing and “produc[ing] . . . the relevant
statistics of the . . . noncomplying” landlords. Id.
The Landlords argue that the Adverse Inference Provision
abrogates this remedy by codifying the zero-vacancy inference and
making it mandatory. Their argument again relies on the premise
that the Provision mandates final determinations as to the number of
vacant units owned by nonresponsive landlords. As discussed above,
we do not read the Adverse Inference Provision to create any more
than a rebuttable presumption. Even if it did require a final
determination, however, a municipality’s refusal to consider
corrective data could still be considered arbitrary and capricious
under the longstanding requirement that vacancy studies be
conducted in “‘good faith’” and be “derived from ‘precise data.’”

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Exec. Towers at Lido, LLC v. City of Long Beach, 831 N.Y.S.2d 445, 447
(2d Dep’t 2007) (quoting Spring Valley, 474 N.Y.S.2d at 316). We
decline to speculate what effect, if any, the Vacancy Provisions may
have on this standard. Wash. State Grange, 552 U.S. at 450.4
* * *
It is our duty to refrain from condemning democratically
enacted laws wholesale as unconstitutional, save for those
extraordinary circumstances in which a statute’s bare requirements
render its constitutional implementation impossible. Wash. State
Grange, 552 U.S. at 450. Under a straightforward reading of the
Vacancy Provisions, the Landlords have failed to plausibly allege that
the Vacancy Provisions are unconstitutional “in all [their]
applications.” Patel, 576 U.S. at 418. Their reliance on improbable
scenarios and tortured readings of the Vacancy Provisions would
have us actively seek out constitutional difficulty. Their claims were
therefore rightfully dismissed.5
4 In addition to holding that Article 78 provides a sufficient post-deprivation
remedy, the district court also found an additional source of post-deprivation
review in the form of § 8623(b). Hudson Shore I, 2024 WL 3212689, at *8. This
provision requires that a housing emergency “must be declared at an end,” and
stabilization suspended, “once the vacancy rate . . . exceeds five percent.” N.Y.
Unconsol. Law § 8623(b). We disagree that § 8623(b) represents “a meaningful
opportunity to challenge the state[] action” in question, as is required to constitute
adequate post-deprivation process. Rivera-Powell, 470 F.3d at 468 n.9. Ending an
erroneous declaration after it has been in effect is not equivalent to reversing the
initial declaration itself, as landlords may be subjected to stabilization for months
or years before showing a higher vacancy rate, consequences for which § 8623(b)
provides no remedy.
5 In its brief, Nyack renews standing arguments that the district court denied as
moot. We have considered these arguments and find them irrelevant to the claims
at issue on this appeal.

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C ONCLUSION
For the forgoing reasons, we AFFIRM the judgment of the
district court.

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