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Police Dep’t v. Quiles

OATH Index No. 1765/08, mem. dec. (May 12, 2008)

Upon respondent’s failure to appear at the hearing, he was found in default and his right to a hearing is deemed waived. The Department is entitled to retain respondent’s vehicle.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

POLICE DEPARTMENT

Petitioner

-against-

ALEXIE QUILES

Respondent

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MEMORANDUM DECISION

INGRID M. ADDISON, 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. Respondent, Alexie Quiles, who was driving the vehicle at the time of the seizure, is the vehicle’s titled and registered owner (Pet. Ex. 6). This proceeding is mandated by Krimstock v. Kelly, 99 Civ. 12041 (HB), third amended order and judgment (S.D.N.Y. Sept. 27, 2007) (the

“Krimstock Order”). See generally Krimstock v. Kelly, 306 F.3d 40 (2d Cir. 2002), cert. denied sub nom. Kelly v. Krimstock, 539 U.S. 969 (2003); County of Nassau v. Canavan, 1 N.Y.3d 134, 770 N.Y.S.2d 277 (2003).

Petitioner seized respondent’s vehicle, a 2002 Ford Explorer, voucher number B145990V, upon his arrest on December 31, 2006, for driving while intoxicated, vehicular assault and criminal possession of a weapon (Pet. Exs. 1, 2, 3, 5, 6, 8). Petitioner submitted a letter from respondent, dated October 12, 2007, authorizing Rosa Quiles or Santos Quiles “to attend to and resolve any and all matters concerning” the vehicle. Petitioner also submitted a document signed by respondent giving durable general power of attorney to Rosa Quiles and Santos Quiles. Petitioner received a request for a hearing on February 14, 2007, from Rosa Quiles, in which she indicated her availability as “any day after 3 p.m.” (Pet. Ex. 7). The Queens County District Attorney released the vehicle on February 21, 2008 (Pet. Ex. 4).

A hearing was scheduled for February 28, 2008 (Pet. Ex. 7). Petitioner properly served Rosa Quiles and respondent at the address provided on the request for the hearing and which also corresponds with respondent’s address on file with the New York State Department of Motor Vehicles (Pet. Exs. 6, 7). 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. 7). 48 RCNY § 1-28. On February 28, 2008, at Ms. Quiles’ request, an adjournment was granted because of a conflict with her work schedule. On March 20, 2008, another adjournment was granted to permit her to consult with an attorney. On April 24, 2008, another adjournment was granted. The hearing was scheduled for May 8, 2008 and marked final.

Neither respondent nor any representative appeared for the hearing. Based upon the evidence presented, I find respondent in default and conclude that his right to a hearing has been waived. 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 at which this decision should have no collateral estoppel effect. 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

The respondent is declared to be in default and his right to a hearing is deemed waived. The Police Department is entitled to retain the vehicle.

Ingrid M. Addison

Administrative Law Judge

May 12, 2008

APPEARANCES:

LAWRENCE SISTA, ESQ.

EVAN GLUCK, ESQ.

Attorneys for Petitioner

No Appearance by or for Respondent