1
Police Dep't v. Abernathy
OATH Index No. 946/06, mem. dec. (Dec.16, 2005)
Upon respondent's failure to appear for the hearing, he was found to be in default, and the right to a hearing was deemed to be waived.
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NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
POLICE DEPARTMENT
Petitioner
-against-
PAUL ABERNATHY
Respondent
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MEMORANDUM DECISION
DONNA R. MERRIS, Administrative Law Judge
The petitioner, the Police Department ("Department"), 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. The respondent, Paul Abernathy, the driver of the seized vehicle at the time it was seized is also the registered owner of the seized vehicle. This proceeding is mandated by Krimstock v. Kelly, 99 Civ.12041 (MBM), amended order and judgment (S.D.N.Y. Jan. 22, 2004)(the "Krimstock Order"), as amended December 6, 2005. 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).
Respondent's vehicle was seized on November 15, 2005, and the Department received the respondent's demand for a hearing on December 2, 2005. The Department scheduled a hearing before this tribunal for December 16, 2005, and duly served notice of the hearing. Despite such notice, neither respondent nor any other person on his behalf appeared for trial. I therefore declared respondent to be in default. I conclude that respondent's default constitutes a waiver of
his right to a hearing. See Police Dep't v. Ganser, OATH Index No. 1275/04, mem. dec. (Mar. 22, 2004).
The respondent retains the right to oppose the Department's civil forfeiture action. Moreover, an adverse trial decision from this tribunal does not serve as collateral estoppel in the civil forfeiture action. The respondent may move to vacate the default in the instant proceeding 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 the motion is denied, he may seek judicial review of that denial. The respondent may not submit another demand or otherwise proceed de novo before this tribunal.
It is well settled that, a motion to vacate a default before this tribunal 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 OATH'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 this tribunal's rules.
ORDER
Respondent is declared to be in default, and his right to a hearing is deemed to be waived.
Donna R. Merris
Administrative Law Judge
December 16, 2005
APPEARANCES:
RALPH LEONART, ESQ.
Attorney for Petitioner