22-2766

Byvalets v. 1053 Owners Corp.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY 

ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF 

APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY 

ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL 

APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY 

CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY 

COUNSEL. 

1 At a stated term of the United States Court of Appeals for the 

2 Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 

Foley Square, in the City of New York, on the 14 3 th day of December, two 

4 thousand twenty-three.

5

6 PRESENT:

7 GERARD E. LYNCH,

8 MICHAEL H. PARK,

9 STEVEN J. MENASHI,

10 Circuit Judges.

11 _____________________________________

12

13 Marko Byvalets,

14

15 Plaintiff-Appellant,

16

17 v. 22-2766

18

19 1053 Owners Corporation, Cornerstone 

20 Group Management,

21

22 Defendants-Appellees.
2

1 _____________________________________

2

3 FOR PLAINTIFF-APPELLANT: Marko Byvalets, pro se,

4 Brooklyn, NY.

5

6 FOR DEFENDANTS-APPELLEES: Joshua R. Bronstein, 

7 Joshua R. Bronstein & 

8 Associates, PLLC, Port 

9 Washington, NY.

10

11 Appeal from a judgment of the United States District Court for the Eastern

12 District of New York (Vitaliano, J.).

13 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 

14 ADJUDGED, AND DECREED that the judgment of the district court is

15 VACATED, and the matter is REMANDED for further proceedings consistent 

16 with this order. 

17 Pro se Appellant Marko Byvalets sued 1053 Owners Corporation and 

18 Cornerstone Group Management for violating his federal and state constitutional 

19 rights, as well as federal criminal law, by installing and operating video cameras 

20 in his apartment building. Byvalets paid the filing fee. The district court 

21 dismissed his amended complaint sua sponte without prejudice for lack of subject22 matter jurisdiction, denied leave to amend as futile, and entered judgment. See 
3

1 Byvalets v. Cornerstone Grp. Mgmt., No. 22-CV-5010 (ENV), 2022 WL 4662264

2 (E.D.N.Y. Sept. 30, 2022). Byvalets timely appealed. We assume the parties’

3 familiarity with the remaining facts, the procedural history, and the issues on 

4 appeal. 

5 Because Byvalets proceeds pro se, we liberally construe his brief to raise the 

6 strongest arguments it suggests. See Publicola v. Lomenzo, 54 F.4th 108, 111 (2d 

7 Cir. 2022). Byvalets argues, among other things, that he was deprived of due 

8 process by the way the district court disposed of his complaint. 

9 A district court may dismiss a complaint sua sponte “so long as the plaintiff 

10 is given notice and an opportunity to be heard.” Wachtler v. Cnty. of Herkimer, 35 

11 F.3d 77, 82 (2d Cir. 1994) (internal quotation marks omitted). Failure to provide 

12 such notice and opportunity to be heard can “by itself” be “grounds for reversal.” 

13 Catzin v. Thank You & Good Luck Corp., 899 F.3d 77, 83 (2d Cir. 2018) (quoting Square 

14 D Co. v. Niagara Frontier Tariff Bureau, Inc., 760 F.2d 1347, 1365 (2d Cir. 1985)). A 

15 dismissal without notice deviates from “the traditions of the adversarial system” 

16 and often produces the “very effect [it] seek[s] to avoid—a waste of judicial 
4

1 resources—by leading to appeals and remands.” Id. at 82 (internal quotation 

2 marks omitted). 

3 Here, the district court dismissed Byvalets’s complaint sua sponte without 

4 providing any advance notice that it was contemplating doing so. Nor was 

5 Byvalets otherwise on notice of any potential defects in his operative complaint. 

6 Defendants had not moved for dismissal and had instead filed only a verified 

7 answer that did not mention the ground—lack of state action—on which the 

8 district court ultimately relied for dismissal. 

9 When a court dismisses without prior notice for lack of subject-matter 

10 jurisdiction, the defect must be “unmistakably clear.” Catzin, 899 F.3d at 82. 

11 Here, however, Byvalets properly invoked the court’s subject-matter jurisdiction 

12 by bringing federal constitutional tort claims under 42 U.S.C. § 1983. Although

13 the district court reasoned that Byvalets failed to plead that Defendants acted 

14 under color of state law, see Byvalets, 2022 WL 4662264, at *2 & n.1, the “sufficiency 

15 of a color-of-law allegation” is a merits defect “to be tested under Rule 12(b)(6),” 

16 not a “jurisdictional deficiency.” Monsky v. Moraghan, 127 F.3d 243, 245 (2d Cir. 

17 1997).
5

1 The district court should have provided Byvalets notice and an opportunity 

2 to respond before dismissing his complaint. See, e.g., Brookins v. Figuccio, No. 22-

3 731, 2023 WL 2579043, at *2 (2d Cir. Mar. 21, 2023); Phillips v. Long Island R.R. Co., 

4 No. 22-123, 2023 WL 2317231, at *1 (2d Cir. Mar. 2, 2023); Nwoye v. Obama, No. 22-

5 1253, 2023 WL 382950, at *1 (2d Cir. Jan. 25, 2023).

6 Accordingly, we VACATE the judgment of the district court and REMAND

7 for further proceedings consistent with this order. 

8 FOR THE COURT: 

9 Catherine O’Hagan Wolfe, Clerk of Court

10