Police Dep't v. Paynter

OATH Index No. 1204/06, mem. dec. (Feb. 3, 2006)

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 -

JAMES PAYNTER

Respondent

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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. The respondent is James Paynter, 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).

Respondent’s vehicle was seized on December 15, 2005, following his arrest (Pet. Ex. 2). Upon receipt of respondent’s demand for a hearing (Pet. Ex. 3), petitioner scheduled a hearing before this tribunal for February 3, 2006, and duly served notice of the hearing on respondent (Pet. Exs. 2 & 4). Despite such notice, neither respondent nor anyone on his behalf appeared for trial, and I therefore declared respondent to be 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, and his right to a hearing is deemed to be waived.

Charles D. McFaul

Administrative Law Judge

February 3, 2006

APPEARANCES:

KATE DMOCHOWSKI, ESQ.

Attorney for Petitioner

No appearance for Respondent