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Police Dep’t v. Colvin

OATH Index No. 2815/08, mem. dec. (July 21, 2008)

Vehicle owner’s motion to vacate default granted where excuse for missing the hearing was sufficient and there has been no prior consideration of the merits of the vehicle retention issue.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

POLICE DEPARTMENT

Petitioner

-against-

REGINALD COLVIN

Respondent

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MEMORANDUM DECISION

JOHN B. SPOONER, Administrative Law Judge

Before me is a motion to vacate respondent’s default and reopen the record submitted by respondent’s sister, Zoribel Renteria, in this vehicle retention proceeding. Respondent, Reginald Colvin, who was driving the vehicle at the time of the seizure, is the vehicle’s titled and registered owner. Respondent was arrested and charged with reckless endangerment in the first degree and offering a false instrument for filing in the first degree, in violation of sections 120.25 and 175.35 of the Penal Law. Respondent was also charged with two counts of failure to obey a traffic control signal, improper passing on the left, improper passing on the right, excessive speed, reckless driving, in violation of sections 1111(d)(1), 1122(a), 1123(b), 1180(a) and 1212 of the Vehicle and Traffic Law.

After receiving respondent’s demand for a hearing (see Pet. Ex. 2), petitioner scheduled a hearing for April 17, 2008. See Police Dep’t v. Colvin, OATH Index No. 2115/08 (July 7, 2008). Respondent appeared with an attorney on the scheduled hearing date but requested that the case be taken off calendar pending a resolution of the criminal charges. Subsequently, respondent was convicted, pursuant to a guilty plea, of offering a false instrument in the second degree. A second hearing date was scheduled at OATH for July 3, 2008, at 2:00p.m. and respondent was properly served with notice of the hearing by mail (Pet. Ex. 7)[1]. On July 3, 2008, counsel for petitioner appeared but respondent failed to appear. I found that respondent was properly served, declared him to be in default, and issued a memorandum decision was on July 7, 2008. The decision held thathis request for a hearing was deemed waived.48 RCNY § 1-45 (LEXIS 2008).

By letter faxed July 7, 2008, respondent, through his sister, Zoribel Renteria, moved to vacate the default. Petitioner did not file opposition papers. As set forth below, respondent’s motion to vacate the default is granted.

ANALYSIS

Pursuant to section 1-45 of this tribunal’s rules, a motion to vacate a default hearing must be brought as promptly as possible. We have long held that such motion requires a showing that respondent: (1) has a reasonable excuse for the default, and (2) a meritorious defense to the petition. Police Dep’t v. Grant, OATH Index No. 508/07, mem. dec. (Oct. 12, 2006); Police Dep’t v. Ayala, OATH Index No. 1539/05, mem. dec. (Apr. 5, 2005); 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).

By letter faxed on July 5, 2008 to petitioner’s counsel and to me, respondent’s sister, Zoribel Renteria, filed a motion to vacate respondent’s default. Ms. Renteria stated that respondent was unable to attend his OATH hearing because he was detained on June 30, 2008, by an officer from the Federal Bureau of Investigations and was currently in the custody of the MetropolitanDetentionCenter awaiting extradition to Wisconsin to answer charges brought against him. Ms. Renteria further stated that respondent was unable to contact family members regarding his pending hearing at this tribunal because he did not receive a pin number or approval for a list of numbers to call until July 4, 2008.

On July 7, 2008, I participated in a conference call between counsel for petitioner, Ms. Zenteria, and myself. During this call, Ms. Renteria reiterated most of the statements made in her letter. Counsel for petitioner opposed reopening the proceeding. I instructed Ms. Renteria to file a written notice of appearance by July 11. I also instructed counsel for petitioner to file a written statement of his position with regard to the motion to vacate by July 11. To date, neither party has complied with these filing deadlines.[2]

Turning to the merits of respondent’s motion, I find that respondent’s request to re-open the hearing is timely having been faxed on July 5, 2008, only two days after the scheduled hearing date. Further, I find respondent’s detention at MetropolitanDetentionCenter without access to a phone provides a reasonable excuse for his failure to appear.

Apart from a reasonable excuse for the default, respondent must also demonstrate that he has a colorable defense to the petition. In this particular proceeding the Department has the burden of establishing by a preponderance of the evidence: (i) that probable cause existed for the arrest pursuant to which the vehicle was seized; (ii) that it is likely that the Department will prevail in a civil action for forfeiture of the vehicle; and (iii) that it is necessary that the vehicle remain impounded to ensure its availability for a judgment in a civil forfeiture action. 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, 144-45, 770 N.Y.S.2d 277,286 (2003). Due process requires an “initial testing of the merits of the [Department’s] case,” not “exhaustive battles that might threaten to duplicate the eventual forfeiture hearing.” Krimstock, 306 F.3d, at 69-70.

Although Ms. Renteria’s letter provided little in the way of a defense to the petition, this tribunal has, in its discretion, relaxed the application of the required two prongs for prose respondents when it is in the interest of justice to do so. Dep't of Buildings v. Owners, Occupants, Mortgagors and Mortgagees of 517 Rowland Street, Bronx, OATH Index No. 896/00, mem. dec. (Mar. 13, 2002); Taxi & Limousine Comm'n v. Singh, OATH Index No. 618/00, mem. dec. (Oct. 20, 1999) (pro se application to vacate default should not be assessed on purely technical grounds); Human Resources Admin. v. Sanchez, OATHIndex No. 932/90 (May 3, 1990) (pro se status is factor for judge to consider when assessing motion to vacate default); McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (pro se pleadings should be construed liberally). The requirement of providing a meritorious defense should be further loosened here because no hearing on the merits of the vehicle retention issue has taken place, the consideration of this question having been foreclosed by respondent’s failure to appear.

Under the facts of this case, I therefore find that Ms. Renteria’s letter is sufficient to warrant vacating respondent’s default and holding a hearing.

ORDER

For the foregoing reasons, the motion to vacate the default is granted and the parties are instructed to contact the OATH calendar unit no later than July 28, 2008, to reschedule a new hearing date.

John B. Spooner

Administrative Law Judge

July 21, 2008

APPEARANCES:

LAWRENCE SISTA, ESQ.

Attorney for Petitioner

ZORIBEL RENTERIA

Representative for Respondent

[1] Although respondent is not disputing notice, it is worth noting that respondent’s counsel was not served with notice of the hearing.

[2] Pursuant to OATH’s rules, I have elected to consider Ms. Renteria’s July 7 letter as a notice of appearance sufficient to comply with the written notice requirement of 48 RCNY section 1-11(a).