1
Police Dep't v. Arevalo
OATH Index No. 1262/09, mem. dec. (Oct. 28, 2008)
Upon respondent's failure to appear for the hearing, a default was
declared and his right to a hearing was deemed waived.
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NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
POLICE DEPARTMENT
Petitioner
- against -
JOSE AREVALO
Respondent
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MEMORANDUM DECISION
TYNIA D. RICHARD, Administrative Law Judge
Petitioner, the Police Department, brought this proceeding to determine its right to retain a vehicle seized from its owner, Jose Arevalo,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).
Respondent Jose Arevalo was driving his vehicle on August 29, 2008, when he was arrested for possession of a loaded firearm, possession of a controlled substance, and a tail lamp violation(Pet. Ex. 1). The Department received respondent's demand for a hearing on October 15, 2008,scheduled a hearing before this tribunal for October 23, 2008, and duly served notice of the hearingto him and to an attorney listed in his request for a hearing (Pet. Ex. 5). Despite such notice, neither the respondent, his attorney, nor any other person appeared on his behalf. I therefore declared respondent to be in default andconclude that the 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).
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 or otherwise proceed de novo before this tribunal, respondent 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, he may pursue his hearing rights before this tribunal, and if it is denied, he may seek judicial review of that denial.
A motion to vacate a default must include two showings: good cause for the 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
Respondent is declared to be in default, and his right to a hearing is deemed to be waived.
Tynia D. Richard
Administrative Law Judge
October 28, 2008
APPEARANCES:
SGT. LAWRENCE SISTA, ESQ.
Attorney for Petitioner
No appearance by Respondent.