Police Dep't v. Butler
OATH Index No. 812/07, mem. dec. (Jan. 23, 2007)
Upon respondent's failure to appear for the hearing, a default was declared and the right to a hearing was deemed waived.
______
NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
POLICE DEPARTMENT
Petitioner
- against -
BRANTLEY L. BUTLER
Respondent
______
MEMORANDUM DECISION
CHARLES D. MCFAUL, 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. Respondent Brantley L. Butler was the driver of the vehicle at the time it was seized. This proceeding is mandated by Krimstock v. Kelly, 99 Civ. 12041 (MBM), second amended order and judgment (S.D.N.Y. Dec. 6, 2005); see County of Nassau v. Canavan, 1 N.Y.3d 134, 770 N.Y.S.2d 277 (2003).
-1-
Respondent was previously found in default in this vehicle retention proceeding on October 27, 2006. See Police Dep’t v. Butler, OATH Index No. 812/07, mem. dec. (Oct. 27, 2006). Respondent’s subsequent motion to vacate his default was granted by decision dated December 22, 2006. See Police Dep’t v. Butler, OATH Index No. 812/07, mem. dec. (Dec. 22, 2006). In the decision vacating the default, Iinstructed the parties to schedule a new hearing date by conference call to OATH’s calendar unit. Mutual selection of a new hearing date was intended to take account of respondent’s availability to attend the hearing and comport with OATH’s rules of practice, which encourage joint selection of calendar dates. See48 RCNY § 1-26(d) (Lexis 2007); Transit Auth. v. Rivera, OATH Index No. 418/92, mem. dec. (Jan. 22, 1992). Petitioner scheduled the reopened hearing for January 19, 2007 at 9:30 a.m., apparently without conferring with respondent. At the hearing, petitioner submitted proof of service showing that the notice of hearing was served by mail on January 9, 2007 at the address provided by respondent (Pet. Exs. 2 & 3). Actual notice of the hearing date and time was provided to respondent by telephone on January 11, 2007, when he called the OATH calendar unit to inquire about whether a new hearing had been scheduled. He was informed that the hearing had been scheduled for January 19th at 9:30 a.m. He stated that the date and time were acceptable to him. On January 19, 2007, respondent failed to appear and was again declared in default at 10:45 a.m. I therefore find 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).
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 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.
As established by a long line of our precedents, 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 Aas 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, and his right to a hearing is deemed to be waived.
Charles D. McFaul
Administrative Law Judge
January 23, 2007
APPEARANCES:
RALPH LEONART, ESQ.
Attorney for Petitioner
No appearance for Respondent.