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Police Dep’t v. Taricic

OATH Index No. 1069/08, mem. dec. (Nov. 27, 2007)

Uponrespondent’sfailure to appear for the hearinghe was declared in defaultand his right to a hearing is deemed waived. The Department is entitled to retain the vehicle.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

POLICE DEPARTMENT

Petitioner

- against -

LJUBISA TARICIC

Respondent

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MEMORANDUM DECISION

JULIO RODRIGUEZ, 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. 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).

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The vehicle at issue, a 2000 Ford Taurus, voucher number B171126V,was seized onOctober11, 2007, following respondent’s arrest for driving while intoxicated (Pet. Ex. 4). New York State Department of Motor Vehicles records indicate that Ljubisa Taricic is the titled and registered owner of the car (Pet. Ex. 8).

The Police Department received respondent’s demand for a hearingand scheduled a hearing before this tribunal for November 27, 2007. Respondentwas duly served with the petition and notice of hearing on November 14, 2007, at the addressprovided by respondent (Pet. Exs.1-3). The petition and notice of hearing informedrespondentof his right to be represented by an attorney or any other representative, and properly warned himas follows: “If you fail to appear at the hearing, either in person or by an authorized representative, the presiding judge may declare you to be 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). See 48 RCNY § 1-28(a) (Lexis 2007).

On November 27, 2007, neither respondent nor anyone on his behalf appeared for the hearing, despite having been given notice of potential consequences that may result from a failure to appear. The respondent is in default and therefore waivedhis 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, and this decision should have no collateral estoppel effect in such a proceeding. Although respondent may not submit another demand for a hearing or otherwise proceed de novo before this tribunal, respondent may move to vacate his default as provided for in section 1-45 of this tribunal’s rules of practice. If that motion is granted, he may pursue his hearing rights before this tribunal; if it is denied, he may seek judicial review of that denial.

As established by a long line of this tribunal’s precedents, a motion to vacate a default must include two showings: good cause for the respondent’s failure to appear and a meritorious defense to the petition. 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 formal requirements of section 1-52 of our rules.

ORDER

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

Julio Rodriguez

Administrative Law Judge

November 27, 2007

APPEARANCES:

MICHAEL DECILLIS, ESQ.

Attorney for Petitioner

No appearance by or for Respondent.