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Police Dep’t v. McEachern

OATH Index No. 1364/08, mem. dec. (Jan. 23, 2008)

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

DARRELL BROOKS-McEACHERN

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, Darrell Brooks-McEachern, 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 1996Chevrolet, voucher number B179130V, uponhis arrest on December 7, 2007, for driving while intoxicated (Pet. Ex. 2). Following the arrest and seizure, petitioner received respondent’s request for a hearing on or after December 22, 2007[1](Pet. Ex. 1). On December 28, 2007, petitioner scheduled a hearing to be held before this tribunal on January 22, 2008 (Pet. Ex. 2). Petitioner properly served notice on respondent (Pet. Ex. 2) at the address that respondent provided in his request and which corresponds with his address on file with the New York State Department of Motor Vehicles (Pet. Ex. 6). 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). 48 RCNY §1-28.Neither respondent nor any representative appeared for the hearing.

Based upon the evidence presented, I find respondent in default and conclude that he has 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 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 waived his right to a hearing. The Police Department is entitled to retain the vehicle.

Ingrid M. Addison

Administrative Law Judge

January 23, 2008

APPEARANCES:

NEIL BERMAN, ESQ.

Attorney for Petitioner

No Appearance by or for Respondent

[1] Respondent’s mailing was post-marked December 22, 2007.