Facial Constitutionality of New York’s Vacancy Survey Provisions: Pre-Compliance Review via Article 78 Upholds Fourth and Fourteenth Amendment Rights

Introduction

Hudson Shore Associates Ltd. Partnership and related landlords (“Plaintiffs–Appellants” or the “Landlords”) challenged three 2023 amendments to New York’s Emergency Tenant Protection Act (“ETPA”)—the so-called Vacancy Provisions—on Fourth and Fourteenth Amendment grounds. These provisions require landlords to furnish rental records in municipal vacancy studies (Response Provision), authorize civil penalties up to \$500 for noncompliance or for providing false data (Penalty Provision), and mandate that non-responsive landlords be deemed to have zero vacancies (Adverse Inference Provision). The Landlords sued the State of New York, its housing agency, and two municipalities (Nyack and Poughkeepsie), seeking to invalidate these provisions as facially unconstitutional.

The United States District Court for the Northern District of New York dismissed their complaint for failure to state a claim and denied injunctive relief. On appeal, the Second Circuit affirmed, holding that:

Under the Fourth Amendment, landlords have adequate pre-compliance review through New York Civil Practice Law & Rules Article 78.
The Vacancy Provisions present a low risk of coercion and abuse and thus do not authorize unreasonable searches “in every application.”
Under the Fourteenth Amendment’s procedural due process guarantee, landlords can challenge vacancy calculations at required pre-declaration public hearings and via Article 78 afterward.

Summary of the Judgment

The Second Circuit unanimously affirmed the district court. It held that:

Fourth Amendment facial challenge fails. Administrative searches pursuant to the Vacancy Provisions are reasonable because they implicate a “special need” (measuring local vacancy rates in a housing emergency), and landlords receive meaningful pre-compliance review through Article 78 actions, akin to motions to quash administrative subpoenas. Moreover, civil penalties up to \$500 and confidentiality safeguards render the searches less coercive than the hotel-guest records scheme struck down in City of Los Angeles v. Patel.
Procedural due process challenge fails. Landlords can (a) present data and contest zero-vacancy inferences at public hearings required before a housing emergency declaration; and (b) obtain full judicial review of vacancy calculations—including inferences—via Article 78 after stabilization takes effect.
Accordingly, no set of facts exists under which the Vacancy Provisions would be unconstitutional in all applications. The district court’s dismissal of the Amended Complaint and its denial of injunctive relief were affirmed.

Analysis

1. Precedents Cited

The court’s decision rests primarily on a line of Supreme Court and Second Circuit precedent concerning administrative searches, warrants, and facial constitutional challenges:

City of Los Angeles v. Patel, 576 U.S. 409 (2015): Struck down a Los Angeles ordinance requiring hotels to turn over guest registries on demand without pre-compliance judicial review. Established that warrantless administrative searches are per se unreasonable unless (i) they fall within the “closely regulated industry” exception or (ii) the subject has an opportunity for pre-compliance review before a neutral decisionmaker.
Donovan v. Lone Steer, Inc., 464 U.S. 408 (1984): Confirmed that administrative subpoenas are permissible searches if targets can challenge their scope in Court before penalty.
Camara v. Municipal Court, 387 U.S. 523 (1967): Held that administrative searches must provide either a warrant or some substitute—i.e., individualized review—when civil or criminal penalties attach.
Salerno v. United States, 481 U.S. 739 (1987): Facial challenges require the challenger to demonstrate no set of circumstances exists under which the statute would be valid.
Whitfield v. City of New York, 96 F.4th 504 (2d Cir. 2024): Recognized Article 78 as an expedited, summary proceeding providing adequate post-deprivation process.
Locurto v. Safir, 264 F.3d 154 (2d Cir. 2001): Held that Article 78 actions satisfy due process’s post-deprivation remedy requirement.

2. Legal Reasoning

a. Administrative-Search Framework

The Fourth Amendment protects against “unreasonable searches and seizures,” applying equally to criminal and administrative inspections (Burger v. New York, 482 U.S. 691 (1987)). Warrantless searches are per se unreasonable absent either:

A “closely regulated industry” exception (rare and with strict prerequisites), or
An opportunity for pre-compliance judicial review before penalties attach (Patel).

Because rent-survey data collection implicates a “special need” of measuring vacancy rates for housing-emergency determinations, the ETPA’s warrant requirement is impracticable. Thus, the court concentrates on whether landlords can obtain pre-compliance review.

b. Article 78 as Pre-Compliance Review

Under New York Civil Practice Law & Rules Article 78, a party may promptly challenge any administrative action that is “contrary to law,” “arbitrary and capricious,” or an “abuse of discretion.” The Second Circuit found Article 78 provides:

Neutral decisionmaker: New York Supreme Court justices decide Article 78 petitions.
Constitutional grounds: A landlord can invoke the Fourth Amendment or state law to challenge the scope of any records demand.
Timeliness: Petitions may be filed immediately upon receiving a demand—well before any civil penalty is imposed, satisfying the “before compliance or penalty” requirement.

Analogous to a motion to quash an administrative subpoena, Article 78 petitions prevent coercion by enabling judicial review prior to compelled disclosure or monetary fine.

c. Distinctions from Patel Searches

Even if Article 78 review were unavailable, the Vacancy Provisions authorize far less coercive searches than those at issue in Patel:

Civil vs. criminal penalties: Up to \$500 in civil fines, rather than arrest and misdemeanor charges.
Remote notice: Landlords receive surveys by mail or electronic communication, not surprise in-person inspections.
Limited scope: Only rent rolls and vacancy status, rather than entire guest registries.
Restricted authority: Only municipalities or designated agents may demand records—not any law enforcement officer.
Confidentiality guarantees: Survey data must remain confidential and cannot be exploited or traded.

These safeguards collectively reduce any risk of abuse or pretextual enforcement, rendering a broad facial Fourth Amendment challenge untenable.

d. Fourteenth Amendment Procedural Due Process

For procedural due process, a plaintiff must show (1) a protected liberty or property interest, and (2) deprivation without adequate process. A facial challenge must establish deprivation in all applications.

Although the Second Circuit did not definitively decide whether the zero-vacancy inference constitutes a property deprivation, it found that adequate process exists in both pre- and post-declaration settings:

Pre-deprivation hearing: ETPA §8623(c) requires a public hearing—at least ten days after notice—before a municipality may declare a housing emergency. At that hearing, landlords can comment on, critique, and present alternate vacancy data.
Post-declaration review: Landlords may file an Article 78 petition contesting the entire vacancy study, including zero-vacancy inferences, on grounds that the study was “arbitrary and capricious,” “an abuse of discretion,” or “contrary to law.”

These mechanisms satisfy due process by providing meaningful opportunities to challenge any potentially erroneous vacancy determination.

3. Impact on Future Cases and Housing Regulation

This decision clarifies and reaffirms several important principles:

Pre-compliance review suffices: States can fulfill Fourth Amendment requirements in administrative-search contexts by providing meaningful judicial review—here via Article 78—prior to penalties.
Facial challenge standards upheld: Courts will not entertain speculative predictions of abuse; challengers must show unconstitutionality in every conceivable application.
Housing-emergency tools validated: Municipalities may employ civil penalties and presumptions to streamline data collection in housing emergencies, subject to constitutional process safeguards.
Article 78’s central role: New York’s summary proceeding remains the pivotal mechanism for both Fourth Amendment and procedural due process challenges to administrative actions.

Beyond rent regulation, lower courts will likely cite this case when evaluating warrantless administrative searches or due process in contexts where state statutes establish expedited judicial remedies.

Complex Concepts Simplified

Administrative search: A non-criminal inspection by a government agency to enforce regulatory laws (e.g., building safety, health codes, or, here, housing vacancy surveys).
Pre-compliance review: A judicial process by which subjects of an administrative demand can challenge its scope or legality before having to comply or face penalties.
Article 78: A New York state procedure for quickly challenging administrative decisions on grounds of illegality or arbitrariness. It functions similarly to motions to quash subpoenas in federal practice.
Facial challenge: A legal attack on a statute’s text rather than its application, requiring proof that the statute is unconstitutional in all possible scenarios.
Adverse inference: A legal presumption that, when a party fails to produce requested evidence, the facts would have been unfavorable to that party (here: zero vacancies for non-responsive landlords).

Conclusion

Hudson Shore v. State of New York affirms New York’s 2023 Vacancy Provisions against facial Fourth and Fourteenth Amendment challenges. The Second Circuit held that:

Administrative demand for rent rolls and vacancy data is a “special-needs” search for which landlords may obtain pre-compliance review through Article 78.
Civil penalties up to \$500, remote notice procedures, confidentiality requirements, and narrow subject matter ensure the searches are not oppressive or unreasonably broad.
Landlords may contest vacancy calculations—including zero-vacancy inferences—at required public hearings and via Article 78 afterward, satisfying procedural due process.

This decision underscores the proper balance between municipal efforts to address housing crises and individual constitutional protections from unreasonable searches and procedural deprivation. It establishes a clear roadmap: states can design expedited judicial remedies for administrative searches without sacrificing Fourth or Fourteenth Amendment rights.