Police Dep't V. Green

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Police Dep't v. Green

OATH Index No. 727/06, mem. dec. (Oct. 21, 2005)

Upon the respondent’s failure to appear for the hearing, he was found to be in default, and his 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 -

BERNARD GREEN

Respondent

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MEMORANDUM DECISION

RAYMOND E. KRAMER, 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 is Bernard Green, the registered owner of the seized vehicle and 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 23, 2004. 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 at issue is a 1997 Toyota Avalon, property clerk voucher B117522, which was seized by petitioner on September 24, 2005, incident to respondent’s arrest for driving while intoxicated. Following receipt of respondent’s demand for a hearing on October 14, 2005 (Pet. Ex.1), petitioner scheduled a hearing before this tribunal for October 21, 2005. Petitioner duly served notice of the hearing on respondent, by mail, at two addresses: a Delaware address provided by respondent on his hearing request form; and a Pennsylvania address obtained from his registration information (Pet. Exs. 1, 5). Petitioner’s counsel also left several voicemail messages on respondent’s home and cell phone numbers, as provided by him on his hearingrequest form (Pet. Ex. 1), further remindinghim of the time, date and place of the hearing. Despite such notice, neither respondent nor anyone on his behalf appeared.

Therefore, I find respondent to be in default and conclude that his 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.

It is well settled that 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, and his right to a hearing is deemed to be waived.

Raymond E. Kramer

Administrative Law Judge

October 21, 2005

APPEARANCES:

KATE DMOCHOWSKI, ESQ.

Attorney for Petitioner

No appearance for Respondent