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Police Dep’t v. Edison

OATH Index No. 1451/07, mem. dec. (Mar. 15, 2007)

Respondent’s motion to reargue denied. ALJ found respondent’s arguments to be without merit. The appropriate avenue of review is an Article 78 proceeding.

______

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

POLICE DEPARTMENT

Petitioner

-against-

ANTONIOEDISON

Respondent

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MEMORANDUM DECISION

ALESSANDRA F. ZORGNIOTTI,Administrative Law Judge

By Notice of Motion dated March 7, 2007, respondent Antonio Edison seeks to reargue this tribunal’s decision in Police Dep’t v. Edison, OATH Index No. 1451/07, mem. dec. (Feb. 28, 2007) holding that petitioner, Police Department had the right to retain respondent’s vehicleseized as the alleged instrumentality of a crime pursuant to section 14-140 of the Administrative Code.[1] In the decision, I denied respondent’s motion to dismiss, finding that while it was unclear whether petitioner complied with notice requirements in Krimstock v. Kelly, 99 Civ. 12041 (MBM), second amended order and judgment (S.D.N.Y. Dec. 6, 2005) (“Krimstock Order”), any failure to do so was harmless error because respondent was not entitled to a hearing while the District Attorney held the vehicle as evidence in the criminal proceeding. Moreover, I found that return of the vehicle to respondent,who could post bail at anytime, would pose a heightened risk to public safety and that respondent’s wife was not entitled to the vehicle.

Respondent seeks to reargue these findings claiming that the District Attorney’s late release of the vehicle did not cure petitioner’s failure to give timely notice which resulted in prejudice to respondent and that petitioner did not demonstrate that return of the vehicle to respondent’s wife would pose a heightened risk to public safety. By letter dated March 12, 2007, petitioner opposed the motion and argued that this decision is subject to judicial review in an Article 78 proceeding only. For the reasons set forth below, the respondent’s motion to reargue is denied.

As a preliminary matter, the Krimstock Order provides that: “The decision of the OATH judge will be subject to review in New York State Supreme Court . . . .” Krimstock, Order, para. 8. It should also be noted that OATH’s rules of practice do not expressly provide for motions to reargue and that the CPLR, relied upon by respondent, does not govern proceedings before this tribunal.

This tribunal has stated that a motion to reargue, addressed to the discretion of the judge, is designed to afford a party an opportunity to establish that the judge overlooked or misapprehended relevant facts or misapplied any controlling principle of law. Its purpose is not to serve as a vehicle to the unsuccessful party to argue once again the very questions previously decided. Dep’t of Correction v. Taylor, OATH Index Nos. 717-18/92, 720/92, 768-73/92 (May 21, 1992); Pro Brokerage, Inc. v. Home Insurance Co., 99 A.D.2d 971, 472 N.Y.S.2d 661 (1st Dep’t 1984).

Generally, this tribunal has entertained a motion to reargue when the Administrative Law Judge is preparing a report and recommendation for an agency head, as opposed to a final decision, and the report has not yet been issued. See48 RCNY § 1-52; Dep’t of Buildings v. Goldberg, OATH Index No. 652/03, mem dec (Jan. 24, 2003). In Classic Electric v. Department of Citywide Administrative Services, OATH Index No. 214/03, mem. dec. (Aug. 2, 2004), rev’d, Classic Electric, Inc. v. Contract Dispute Resolution Bd., Sup. Ct. N.Y. Co. Index No. 112065/04 (Mar. 28, 2005), where the motion was made after a final decision was issued, the court reversed the Contract Dispute Resolution Board’s (“CDRB”) determination not to reopen the record to correct a mathematical error and stated: “The CDRB claims that any computational error in the Decision was introduced by petitioner’s post-argument submission. However, as a decision-making body, the CDRB is no more justified in blindly repeating a computational error than this Court would be justified in repeating a party’s misstatement as to the holding of a case. Indeed, that would be arbitrary and capricious and contrary to law.” Id. at 6-7.

Here, a final decision has been issued and there is no suggestion that I misapprehended the facts in this case. While respondent is arguing that Imisapplied the controlling principles of law, I find that respondent is merely seeking to argue the very questions previously presented and decided. I have reconsidered respondent’s arguments and find them to be without merit. Accordingly, the appropriate avenue of review is an Article 78 proceeding.

Alessandra F. Zorgniotti

Administrative Law Judge

March 15, 2007

APPEARANCES:

RICARDO ABRAHAM, ESQ.

Attorney for Petitioner

LATHAM & WATKINS LLP

Attorneysfor Respondent

BY: SABRINA HASSAN, ESQ.

[1] Counsel for respondent incorrectly states that the motion is brought on behalf of respondent’s wife, Analee Rosado, who obtained a power of attorney to appear for her husband who is currently incarcerated. Ms. Rosado is not a titled owner of the seized vehicle and has no standing in this proceeding.