Police Dep’t v. Miller

OATH Index No. 1030/08, mem. dec. (Nov. 19, 2007)

Upon respondent’s failure to appear at the hearing, he was found in default and waived his right to a hearing.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

POLICE DEPARTMENT

Petitioner

-against-

JEFFREY MILLER, JR.

Respondent

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MEMORANDUM DECISION

KEVIN F. CASEY, Administrative Law Judge

Petitioner brought this proceeding to determine its right to retain a vehicle seized as the alleged instrumentality of a crime pursuant to section 14-140 of the Administrative Code. James Harringtonwas driving the vehicle at the time of the seizure and respondent, Jeffrey Miller, Jr., is the vehicle’s titled and registered owner. This proceeding is mandated by Krimstock v. Kelly, 99 Civ. 12041 (MBM), second amended order and judgment (S.D.N.Y. Dec. 6, 2005), (the "Krimstock Order"). See generally Krimstock v. Kelly, 306 F.3d 40 (2d Cir. 2002); County of Nassau v. Canavan, 1 N.Y.3d 134, 770 N.Y.S.2d 277 (2003).

The Department seized respondent’s vehicle, a 1999 Chevrolet, following Harrington’s arrest on July 10, 2007, for criminal possession of a controlled substance in the fifth degree. N.Y. Pen. Law § 220.06(1) (possession of a controlled substance with intent to sell). After receiving respondent’s request for a hearing on November 8, 2007, petitioner scheduled the hearing for November 16, 2007, and properly served notice on respondent and Harrington (Pet. Exs. 2 and 3). The notice included the following warning: “If you fail to appear at the hearing, either in person or by an authorized representative, the presiding judge may declare you in default, may determine that you have waived your right to a hearing, may decide the case against you in your absence, and may make other determinations in your absence” (Pet. Ex. 2). Despite that warning, neither respondent nor Harrington nor any representativeappeared for the hearing.

Based upon the evidence presented, I found respondent in default and concluded thathe waived his right to a hearing. See Police Dep't v. Ganser, OATH Index No. 1275/04, mem. dec. (Mar. 22, 2004). Respondent retains the right to oppose the Department's civil forfeiture action. This decision would not have collateral estoppel effect at such a proceeding. Although respondent may not submit another demand or proceed de novo before this tribunal, he may move to vacate the default as provided for in section 1-45 of this tribunal's rules of practice. If that motion is granted, respondent may contest the Department’s right to retain the vehicle pending resolution of the civil forfeiture action. If the motion is denied, respondent may seek judicial review of that denial.

A motion to vacate a default before this tribunal must show good cause for respondent's failure to appear and a meritorious defense to the petition. See, e.g., Dep't of Correction v. Heyward, OATH Index No. 2041/00 (July 18, 2000); Transit Auth. v. O'Connell, OATH Index No. 1076/91, mem. dec. (Nov. 8, 1991). Pursuant to section 1-45 of this tribunal’s rules of practice, such a motion must be made "as promptly as possible," and must comply with the requirements of section 1-52 of our rules.

ORDER

Respondent has been found in default, and has waived his right to a hearing.

Kevin F. Casey

Administrative Law Judge

November 19, 2007

APPEARANCES:

LAURA MULLE, ESQ.

Attorney for Petitioner

No Appearance for Respondent