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Police Dep't v. Ayala
OATH Index No. 385/08, mem. dec. (Sept.5, 2007)
Upon the respondent’s failure to appear for the hearing, he was found to be in default, his right to a hearing was deemed to be waived, and 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 -
JAIRO SALADO AYALA
Respondent
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MEMORANDUM DECISION
ROBERTO VELEZ, Chief Administrative Law Judge
Petitioner, the Police 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, Jairo Salado Ayala, was the driver of the vehicle at the time it was seized. This proceeding is mandated by Krimstock v. Kelly, 99 Civ. 12041 (MBM), amended order and judgment (S.D.N.Y. Jan. 22, 2004), 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).
The vehicle in issue, a 1998Ford(voucher #B148100V), was seized on July 15, 2007, following respondent’s arrest fordriving while intoxicatedin the first degree. Veh. &Traf. Law§ 1192 (Pet. Exs. 4 & 7). Petitioner received respondent’s demand for a hearing on August 21, 2007(Pet. Ex. 2). Petitioner scheduled a hearingbefore this tribunal for August 31, 2007, at 9:30 a.m., and duly served notice of the hearing on respondent by mail at the address provided by respondent (Pet. Ex. 3).
The petition and notice of hearing notified respondent of his right to be represented by an attorney or any other representative, and properly warned him as 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). Despite such notice, neither respondent nor anyone on his behalf appeared for trial, and, therefore, the respondent is in default. I conclude that the 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).
Respondent retains the right to oppose the Department’s civil forfeiture action, and this decision should not have 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 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, and if it is denied, he may seek judicial review of that denial.
As established by a long line of our 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, his right to a hearing is deemed to be waived, and the Department is entitled to retain the vehicle identified in the Department’s voucher number B148100V.
Roberto Velez
Chief Administrative Law Judge
September 5, 2007
APPEARANCES:
NICHOLAS VOGLIO, ESQ.
Attorney for Petitioner
No appearance by or for Respondent.