[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 20-13753

____________________

5200 ENTERPRISES LIMITED, 

Plaintiff-Appellant,

versus

CITY OF NEW YORK, 

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 3:18-bk-01646-JAF

____________________

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2 Opinion of the Court 20-13753

Before JORDAN, NEWSOM, and ED CARNES, Circuit Judges.

NEWSOM, Circuit Judge:

In the mid-1980s, a single-asset real estate entity called 5200 

Enterprises Limited bought a piece of property in Brooklyn. To its 

consternation, it later learned that the property had been contaminated sometime between 1940 and 1950 by its then-owner, the City 

of New York.

As part of an ongoing bankruptcy proceeding, 5200 Enterprises filed an adversary proceeding contending (1) that the City’s 

earlier contamination constitutes a “continuing trespass” on the 

property, and (2) that the City improperly assessed property taxes. 

We must first address 5200 Enterprises’ trespass claim. We must 

then decide whether 5200 Enterprises may use its bankruptcy proceeding to challenge property taxes levied against it long ago. Finding 5200 Enterprises’ trespass claim barred by the statute of limitations and its property-tax challenge foreclosed by federal law, we 

affirm the bankruptcy court’s order dismissing its adversary proceeding.

I 

In the early 1900s, the City of New York used a powerhouse 

in Brooklyn to provide electricity for its trolley system. The City 

gave up on trollies in the 1930s, which eliminated its need for the 

powerhouse. Soon thereafter, in 1940, the City took ownership of 

the property where the power plant sat and—sometime during the 

ensuing decade—dismantled the plant. As part of that 

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20-13753 Opinion of the Court 3

deconstruction, the City removed a smokestack, placed it in the 

basement of the building—directly on top of a mechanical system 

that, as it turns out, was insulated with friable asbestos-containing 

material—and buried it under a concrete slab. In 1951, the City 

sold the property to a third party, which, in turn, sold it to 5200 

Enterprises in 1986. 

Less than a year after 5200 Enterprises bought the property, 

the City began negotiations to lease it. In connection with those 

negotiations, the City conducted an asbestos inspection, which revealed that the property was contaminated with PCBs. Based on

that discovery, the State of New York placed the property on its 

Registry of Inactive Hazardous Waste Disposal Sites, indicating 

that the property posed a significant threat to public health or the 

environment. That designation rendered the property effectively 

worthless. 

The State began remediation of the property in 2015. It was 

only then—during a pre-demolition sampling—that the buried 

smokestack was uncovered, along with the friable asbestos-containing material underneath it.1 That discovery required a variance 

in the remediation proposal, postponing the project indefinitely. 

Throughout the entirety of 5200 Enterprises’ ownership, the 

City taxed the property according to its “best intended use” as a 

1 Although the 1987 inspection found PCBs, none were discovered under the 

concrete slab until the later sampling was taken. 

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commercial and industrial warehouse, rather than assessing the 

property according to its present, contaminated condition. But 

during the 30-plus years in which taxes were assessed on the property, 5200 Enterprises purported to challenge only one of those tax 

bills—and even then, it failed to prosecute the action by filing a 

Note of Issue. Rather than paying the taxes or properly challenging 

their validity, 5200 Enterprises elected to ignore them. As a result, 

the taxes became liens on the property. 

In 2018, 5200 Enterprises filed for Chapter 11 bankruptcy. It 

thereafter initiated an adversary proceeding against the City in 

bankruptcy court. In its complaint, 5200 Enterprises (1) asserted a 

cause of action against the City for “continuous trespass,” and 

(2) sought a declaratory judgment that the City (a) is responsible 

for the hazardous waste on the property and the damage that it has 

caused and (b) improperly taxed the property according to its “best 

intended use” rather than as if it were worthless.

The City moved to dismiss the complaint for failure to state 

a claim under Federal Rule of Bankruptcy Procedure 7012(b) and 

Federal Rule of Civil Procedure 12(b)(6). The City argued that the 

trespass claim failed both (1) because it was not cognizable under 

New York law and (2) because it was time barred. Separately, the 

City contended that the Bankruptcy Code precluded 5200 Enterprises’ challenge to the decades-old tax assessments because the period to contest them had expired under the applicable nonbankruptcy law. 

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The bankruptcy court granted the City’s motion and dismissed the adversary proceeding with prejudice. It held that 5200 

Enterprises’ continuous-trespass theory wasn’t cognizable under 

New York law and that the Bankruptcy Code barred 5200 Enterprises’ challenge to the allegedly improper property taxes. 

5200 Enterprises sought certification to appeal directly to 

this Court on the ground that its complaint presented an issue of 

first impression under New York law. See 28 U.S.C. § 158(d)(2); 

Fed. R. Bankr. P. 8006(f). The City didn’t object, the district court 

certified the request, and a motions panel of this Court granted it.

Once before this Court, 5200 Enterprises moved to stay the 

briefing schedule and to certify the continuing-trespass question to 

the New York Court of Appeals. We denied the motion to stay the 

briefing schedule and carried the motion to certify with the case. 

We now deny the motion to certify and affirm the bankruptcy 

court’s order dismissing 5200 Enterprises’ complaint.2

II 

We divide our discussion into two parts. First, we address 

5200 Enterprises’ continuing-trespass claim. Second, we consider 

2 5200 Enterprises asks us to certify to the New York Court of Appeals the

question whether it has stated a claim for continuing trespass. But because we 

find that we needn’t reach the state-law question in resolving the case, we 

needn’t certify it either. See Royal Cap. Dev., LLC v. Md. Cas. Co., 659 F.3d 

1050, 1054 (11th Cir. 2011) (“[C]ertification of state law questions is a matter 

of discretion.”).

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6 Opinion of the Court 20-13753

whether the Bankruptcy Code precludes 5200 Enterprises from 

challenging allegedly improper property taxes in the course of its 

bankruptcy proceeding.3

A 

According to 5200 Enterprises’ complaint, the allegations of 

which we take as true for present purposes, the City contaminated 

the property that 5200 Enterprises now owns when the City lawfully possessed it. Because that contamination remains today, 5200 

Enterprises contends that the City is “continuous[ly] trespass[ing]” 

on its property. But because any claim that 5200 Enterprises might 

have had is barred by the statute of limitations, we elect not to 

reach the merits of its continuing-trespass theory.4

Whether New York law recognizes 5200 Enterprises’ continuing-trespass theory of liability is an open question. See 55 

3 “We review de novo a district court’s order granting a motion to dismiss for 

failure to state a claim.” Boyle v. City of Pell City, 866 F.3d 1280, 1286 (11th 

Cir. 2017). To survive a motion to dismiss, a plaintiff’s complaint must allege 

facts sufficient “to state a claim to relief that is plausible on its face.” Bell Atl. 

Corp. v. Twombly, 550 U.S. 544, 570 (2007). Thus, the plaintiff must plead 

“factual content that allows the court to draw the reasonable inference that 

the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 

662, 678 (2009). And the court “must accept as true all of the allegations contained in a complaint.” Id.

4 See, e.g., Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 

2007) (per curiam) (“We may affirm the district court’s judgment on any 

ground that appears in the record, whether or not that ground was relied upon 

or even considered by the court below.”).

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20-13753 Opinion of the Court 7

Motor Ave. Co. v. Liberty Indus. Finishing Corp., 885 F. Supp. 410, 

424 (E.D.N.Y. 1994) (“New York Courts have not addressed a trespass claim on facts similar to the instant case . . . .”). But even assuming that such a theory is viable in New York, 5200 Enterprises’ 

claim is barred by the applicable statute of limitations.5 

5200 Enterprises contends that a continuing trespass is a “recurring wrong[] that [is] not subject to any Statute of Limitations 

because [it] constantly accrue[s], thus giving rise to successive 

causes of action.” Reply Br. of Appellant at 7 (alterations adopted) 

(quoting Jensen v. Gen. Elec. Co., 581 N.Y.S.2d 917, 918 (N.Y. App. 

Div. 1993)). That used to be the law in New York—traditionally, a 

continuing trespass operated as an “exception to the Statute of Limitations.” Jensen v. Gen. Elec. Co., 623 N.E.2d 547, 552 (N.Y. 1993). 

But the case on which 5200 Enterprises relies—the intermediate 

appellate court’s Jensen decision—was subsequently reversed by 

the New York Court of Appeals, which expressly rejected 5200 Enterprises’ premise. Jensen, 623 N.E.2d at 548 (“We conclude that 

the order of the Appellate Division should be modified by reversing 

so much as reinstated the plaintiffs’ causes of action for damages 

based on continuing trespass and nuisance.”). Instead, the Court 

of Appeals held that the state legislature had statutorily abrogated 

5 Accordingly, we elect not to address the unresolved question of New York 

law. See United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966) (“Needless 

decisions of state law should be avoided both as a matter of comity and to 

promote justice between the parties, by procuring for them a surer-footed 

reading of applicable law.”).

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“the judicially engrafted exception to the Statute of Limitations for 

continuing wrongs.” Id. at 552. 

By virtue of that abrogation, New York General Law § 50-i 

provides the applicable statute of limitations. That provision states 

that any action maintained against a municipality “shall be commenced within one year and ninety days after the happening of the 

event upon which the claim is based.” N.Y. Gen. Mun. L. § 50-i(1). 

For “injury to property caused by the latent effects of exposure to 

any substance,” § 50-i’s statute of limitations begins to run only 

when the injury is discovered or should have been discovered 

“through the exercise of reasonable diligence.” N.Y. C.P.L.R. 

§ 214-c(3). Taken together, those provisions mean that 5200 Enterprises had to file suit within one year and 90 days from the date that 

it knew or had reason to know about its injury.

5200 Enterprises’ president and sole shareholder conceded 

during discovery that he became aware of “the contamination of 

the property that would be the basis” for the suit against the City 

“when the contractor dug test pits in the basement of the building,” 

which he “guess[ed]” occurred “sometime” in 2015 or 2016. The 

record shows that those pits were dug before the State of New York 

requested a variance in the remediation plan on July 27, 2015. 5200 

Enterprises doesn’t contest that—taking that testimony in conjunction with the variance request—the latest possible date on which it 

could have discovered its injury was July 27, 2015. 5200 Enterprises 

filed its bankruptcy petition on May 16, 2018—nearly three years 

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20-13753 Opinion of the Court 9

later. Thus, even assuming the latest possible date of discovery—

July 27, 2015—5200 Enterprises’ trespass claim is time-barred.

B 

5200 Enterprises separately sought “to have the bankruptcy 

court review assessed ad valorem taxes.” Br. of Appellant at 33. 

5200 Enterprises contended that the City incorrectly assessed taxes 

according to the property’s “best intended use” rather than its 

“then present and contaminated condition,” which rendered it “essentially worthless.” Compl. at ¶¶ 32–35. The bankruptcy court 

dismissed that claim, holding that the Bankruptcy Abuse Prevention and Consumer Protection Act, 11 U.S.C. § 505(a)(2)(C), prohibited it from redetermining any of the assessments. 

By its express terms, the BAPCPA precludes a bankruptcy 

court from redetermining “the amount or legality of any amount 

arising in connection with an ad valorem tax on real or personal 

property of the estate, if the applicable period for contesting or redetermining that amount under applicable nonbankruptcy law has 

expired.” 11 U.S.C. § 505(a)(2)(C). 5200 Enterprises concedes that

§ 505(a)(2)(C), if applicable, vitiates its tax-assessment claim.6 But 

it insists that applying § 505(a)(2)(C)—which was added to the 

6 The bankruptcy court thoroughly explained that the time for contesting the 

tax assessments under “applicable nonbankruptcy law”—which, here, is comprised of state and municipal laws governing the process by which an aggrieved New York City taxpayer may seek redress—long ago expired. Because 

5200 Enterprises does not contest that conclusion, we do not address it.

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Bankruptcy Code in 2005, see Pub. L. No. 109-8, 119 Stat. 23, 124 

(Apr. 20, 2005)— to pre-2005 taxes would give the statute improper 

retroactive effect. We disagree. 

If an interpretation of a statute would cause it to “operate 

retroactively, our traditional presumption teaches that it does not 

govern absent clear congressional intent favoring such a result.” 

Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994). But “[a] statute does not operate ‘retrospectively’ merely because it is applied 

in a case arising from conduct antedating the statute’s enactment 

or upsets expectations based in prior law.” Id. at 269 (citation omitted). Instead, a statute has “retroactive effect” only when “it would 

impair rights a party possessed when he acted, increase a party’s 

liability for past conduct, or impose new duties with respect to 

transactions already completed.” Id. at 280. 

Put simply, “retroactivity is to be judged with regard to the 

act or event that the statute is meant to regulate.” Antonin Scalia 

& Bryan A. Garner, Reading Law: The Interpretation of Legal 

Texts 264 (2012). It’s obvious to us that § 505(a)(2)(C) is “meant to 

regulate” federal bankruptcy proceedings—not an individual’s 

state or local tax liability. Accordingly, because 5200 Enterprises 

engaged in “the relevant conduct regulated by [§ 505(a)(2)(C)]”—

its federal bankruptcy proceeding—“after the [statute’s] effective 

date,” the statute’s application is prospective only. Republic of 

Austria v. Altmann, 541 U.S. 677, 697 & n.17 (2004) (quotation 

omitted).

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5200 Enterprises nonetheless asserts that applying 

§ 505(a)(2)(C) would impair (1) a preexisting “right to property,” 

Br. of Appellant at 33, and (2) a “substantive right guaranteed” by 

the Constitution—namely, bankruptcy itself, Reply Br. of Appellant at 13. We reject both contentions.

As to the former, 5200 Enterprises offers no support for its 

assertion that “the right to contest ad valorem tax assessments” is 

“an offspring” of the general “right to property.” Br. of Appellant 

at 33. And even assuming such a right existed, § 505(a)(2)(C) 

wouldn’t “impair” it. Landgraf, 511 U.S. at 280. Any right that 5200 

Enterprises possessed to contest its tax liability expired when it 

failed to do so through the proper means. At worst, then, 

§ 505(a)(2)(C) merely fails to resuscitate that already-expired right.

5200 Enterprises’ “substantive-right” argument fares no better. “There is no constitutional right to obtain a discharge of one’s 

debts in bankruptcy.” United States v. Kras, 409 U.S. 434, 446 

(1973). To the contrary, “[t]he Constitution, art. I, § 8, cl. 4, merely 

authorizes Congress to establish uniform laws on the subject of 

Bankruptcies throughout the United States.” Id. (cleaned up). And 

even if 5200 Enterprises has some “substantive” right at stake, it 

fails to explain how § 505(a)(2)(C) impairs it.

Applying § 505(a)(2)(C) in this case doesn’t give it retroactive 

effect. Therefore, it applies and, as 5200 Enterprises has conceded, 

eliminates its claim concerning the City’s allegedly improper taxes.

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12 Opinion of the Court 20-13753

* * * 

The bankruptcy court’s dismissal of 5200 Enterprises’ adversary complaint is AFFIRMED, and 5200 Enterprises’ motion to certify the question of New York law to the New York Court of Appeals is DENIED. 

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20-13753 NEWSOM, J., Concurring 1

NEWSOM, Circuit Judge, concurring:

Needless to say, I agree with the approach that the Court 

takes today, resolving 5200 Enterprises’ appeal on statute-of-limitations grounds. It’s clean, and it obviates any need to issue a precedential opinion on an open question of New York law. Nonetheless, because the “continuing trespass” issue has been fully briefed 

and argued—it was the focus of the parties’ presentations—and because that issue might recur in future cases, I’ll briefly explain why 

5200 Enterprises’ theory fails under New York law.

I 

Although the question whether New York law recognizes 

5200 Enterprises’ continuing-trespass theory of liability is technically open, it isn’t hard. New York caselaw—which sets out the 

elements of a trespass claim and explains how New York courts 

understand and apply the continuing-trespass doctrine—readily 

provides the answer: New York recognizes a concept of continuing 

trespass, but not the one that 5200 Enterprises advances here. 

In New York, the “elements of a cause of action sounding in 

trespass are [1] an intentional entry [2] onto the land of another 

[3] without justification or permission.” Marone v. Kally, 971 

N.Y.S.2d 324, 327 (N.Y. App. Div. 2013) (quotation omitted). The 

traditional view in New York was that “trespasses upon real property, effected by an unlawful structure or nuisance, are continuous

in their nature, and give successive causes of action from time to 

time, as the injuries are perpetrated.” Galway v. Metro. Elevated 

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2 NEWSOM, J., Concurring 20-13753

Ry. Co., 28 N.E. 479, 481 (N.Y. 1891) (emphasis added). To be 

clear, though, in New York, “continuing trespass” has never served 

as a distinct theory of liability; rather, it merely operated as an “exception to the Statute of Limitations.” Jensen v. Gen. Elec. Co., 

623 N.E.2d 547, 552 (N.Y. 1993).1 Accordingly, a “continuing trespass” must first be a trespass. 

To state a claim, therefore, 5200 Enterprises must at a minimum allege an intentional entry “onto the land of another.” 

Marone, 971 N.Y.S.2d at 327. It cannot do so. The injury from 

which it seeks relief—the City’s contamination—occurred when 

the City owned and possessed the property. Simply put, a landowner can’t trespass on its own property—it hasn’t, in that circumstance, entered “onto the land of another.” Id. Accordingly, 5200 

Enterprises has failed to state a claim for trespass—continuing or 

otherwise. Accord 55 Motor Ave. Co. v. Liberty Indus. Finishing 

Corp., 885 F. Supp. 410, 424 (E.D.N.Y. 1994).

5200 Enterprises resists that straightforward conclusion by 

pointing to the Restatement (Second) of Torts § 161 and a California case interpreting that provision. I am not persuaded. 

Section 161 states that “[a] trespass may be committed by 

the continued presence on the land of a structure, chattel, or other 

thing which the actor has tortiously placed there, whether or not 

1 As the Court explains, this exception has since been abrogated by statute and 

replaced with a discovery rule. See Majority Op. at 7–8; see also Jensen, 623 

N.E.2d at 552.

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20-13753 NEWSOM, J., Concurring 3

the actor has the ability to remove it.” Restatement (Second) of 

Torts § 161(1) (1965). One California court has interpreted § 161 to 

“sanction” a “continuing trespass theory in a situation” where 

“contaminants have been left on the property by a prior owner.” 

Newhall Land & Farming Co. v. Superior Ct., 19 Cal. App. 4th 334, 

345 (Cal. Ct. App. 1993).

5200 Enterprises contends that a reviewing court must either endorse its theory of liability or reject what it calls “the ‘Restatement’ approach.” Br. of Appellant at 26. But that’s a false 

choice. We might have needed to reject Newhall’s interpretation 

of the Restatement to affirm the dismissal on the merits, but we 

wouldn’t have needed to reject the Restatement itself.

Nothing in § 161 endorses a theory of trespass pursuant to 

which a landowner can incur continuing liability for contamination 

of its own property. All § 161 requires is that the trespassing “structure” or “other thing”—here the smokestack and the contamination that it created—have been “tortiously placed” on a parcel of 

land. Restatement (Second) of Torts § 161(1). The Restatement 

elsewhere defines “tortious” as “conduct which is carried on at the 

risk that the actor shall be subject to liability for harm caused 

thereby.” Id. § 6. Obviously, “plac[ing]” some “thing” on another’s 

land could subject the “place[r]” to tort liability. But 5200 Enterprises has failed to explain how the City, by contaminating its own 

property in the 1940s, would have subjected itself to tort liability. 

It’s therefore unsurprising that courts around the country 

have embraced § 161 while simultaneously rejecting 5200 

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4 NEWSOM, J., Concurring 20-13753

Enterprises’ novel liability theory.2 And, as I’ve explained, that approach comports with both § 161’s plain language and, more importantly, New York’s common-law trespass principles.

Accordingly, I agree with the “[c]ourts around the nation 

[that] have rejected . . . efforts to sue someone for having trespassed on what was his or her own property at the time the action 

was taken.” Lilly Indus., Inc. v. Health-Chem Corp., 974 F. Supp. 

702, 708 (S.D. Ind. 1997) (collecting cases). “[B]ecause an essential 

element of a claim for trespass”—the unlawful entry onto the land 

of another—“has not been alleged” here, 5200 Enterprises has 

failed to state a claim upon which relief can be granted under New 

York law. 55 Motor, 885 F. Supp. at 424.

2 See, e.g., Rosenblatt v. Exxon Co., U.S.A., 642 A.2d 180, 189–90 (Md. 1994) 

(holding that “[§] 161 does not support [the plaintiff’s] position” that the defendant “committed a trespass when it allegedly caused the property to be 

contaminated during its occupancy and the contamination continued into [the 

plaintiff’s] occupancy of the land”); Moore v. Texaco, Inc., 244 F.3d 1229, 1233 

(10th Cir. 2001) (applying Oklahoma law, which has embraced § 161, see Angier v. Mathews Expl. Corp., 905 P.2d 826, 830 (Okla. Civ. App. 1995), and 

concluding that the defendant’s pollution was “not a trespass” because the pollution occurred when the defendant “owned the property” and thus “did not 

involve a physical invasion of real estate owned by anyone except [the defendant] itself”); Triffler v. Hopf, No. 92 C 7193, 1994 WL 643237, at *7 (N.D. Ill. 

Nov. 4, 1994) (applying Illinois law, embracing the Restatement’s continuingtrespass definition, and concluding that a “prior land owner can simply not be 

held liable under a theory of continuing trespass for items he left on his own 

property”).

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