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Police Dep't v. Wicks

OATH Index No. 805/08, mem. dec. (Dec. 12, 2007)

Respondent no longer had standing to contest the Police Department’s possession of the vehicle after the lien holder obtained title to it. Respondent’s request for a Krimstock hearing was rendered moot by the lien holder’s settlement with the Police Department. Petitioner’s motion to withdraw the proceeding is granted.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

POLICE DEPARTMENT

Petitioner

- against -

KELLI WICKS

Respondent

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MEMORANDUM DECISION

JULIO RODRIGUEZ, Administrative Law Judge

Petitioner, the Police Department (“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. This proceeding is mandated by Krimstock v. Kelly, 99 Civ. 12041 (MBM), second amended order and judgment (S.D.N.Y. Dec. 6, 2005) (the "Krimstock Order").[1] 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).

ANALYSIS

The vehicle in issue, a 2004 Honda (Voucher No. B148163), was seized by the Department on August 31, 2007, in connection with respondent’s arrest for driving while intoxicated, among other charges (Pet. Ex. 2). On October 10, 2007, the Department received respondent’s demand for a hearing, and it was scheduled for October 18, 2007. The hearing was adjourned twice while settlement discussions proceeded. When respondent’s lien holder, Capital One Auto Finance (“Capital One”), received notice that the vehicle had been seized, it exercised its rights pursuant to its contract with respondent and obtained legal title to the vehicle. Capital One then engaged the Department in settlement negotiations to gain possession of the vehicle (Letter of Maria D. Ramos-Persaud, attorney for Capital One, dated December 6, 2007 (“Capital One Letter”); Petitioner’s Motion to Withdraw Hearing).

On November 29, 2007, the Department moved to withdraw the proceeding on the grounds that respondent was no longer the titled owner and did not have standing to request a Krimstock hearing; and that even if respondent were to prevail, the Department could release the vehicle only to Capital One, the titled owner. Respondent opposes the motion to withdraw the proceeding and asserts that she has standing to request a Krimstock hearing as she was in lawful possession of the vehicle at the time it was seized, although she is no longer the titled owner (Respondent’s Reply to the Motion to Withdraw Hearing).

Standing is a pre-requisite to the relief sought by respondent, the return of the vehicle pending a civil forfeiture action. Police Dep’t v. Rodriguez, OATH Index No. 146/07, mem. dec. at 3 (Aug. 25, 2006). The Krimstock Order provides that:

The claimant seeking release of the vehicle at the hearing may be either the person from whom the vehicle was seized, if that person was then in lawful possession of the vehicle, or the owner if different from such person. Only one person or entity may appear as claimant at the hearing, and preference shall be given to the registered owner of the vehicle.

Krimstock Order, ¶ 5. Under the terms of the Krimstock order, the owner’s rights take precedence over those of the driver of the seized vehicle. See Police Dep’t v. Shim, OATH Index No. 145/06, mem. dec. at 8 (Aug. 5, 2005) (“the lawful claimant at the hearing is the ‘owner’ if different from the driver”). It is undisputed that Capital One is the current owner of the vehicle. Capital One has elected not to request a Krimstock hearing (Capital One Letter) and instead opted to settle the matter with the Department.[2] Therefore, respondent is not entitled to assert standing as a claimant in a Krimstock hearing. Police Dep’t v. Lord, OATH Index No. 770/08, mem. dec. at 3 (Oct. 22, 2007) (no standing for owner who signed title over to third party); Rodriguez, 146/07, mem. dec. at 3 (standing denied to wife, when husband alone was titled and registered owner of vehicle); Police Dep’t v. Scott, OATH Index No. 169/07, mem. dec. at 3 (Sept. 1, 2006) (respondent who failed to show that he was the titled or registered owner lacked standing). More importantly, the settlement between Capital One and the Department renders respondent’s claim moot. The purpose of the Krimstock hearing “is the limited one of determining whether the vehicle should be returned to its owner” while awaiting the outcome of the eventual forfeiture proceeding. Krimstock v. Kelly, 306 F.3d 40, 69-70 (2d Cir. 2002) (emphasis added).

Respondent’s assertion that she has a continuing property right in the vehicle is not a matter over which this tribunal has jurisdiction. See Lord, OATH 770/08, at 3 (no jurisdiction over respondent’s claim of fraud by titled owner).

ORDER

Petitioner’s motion to withdraw the proceeding is granted.

Julio Rodriguez

Administrative Law Judge

December 12, 2007

APPEARANCES:

CARRIE TALANSKY, ESQ.

Attorney for Petitioner

LATHAM & WATKINS, LLP

Attorney for Respondent

BY: JENNIFER SPERLING, ESQ.

MELINDA C. FRANEK, ESQ.

[1] A third amended order and judgment was issued on September 27, 2007, but it does not apply to this vehicle seizure, which predated the latest order. See Krimstock v. Kelly, 99 Civ. 12041 (HB), third amended order and judgment (S.D.N.Y. Sept. 27, 2007).

[2] By email dated December 12, 2007, the Department explained that Capital One has accepted its settlement offer and has provided all required documents, with the exception of the District Attorney’s release for the car, to the Department. Upon receipt of the District Attorney’s release, the Department will release the car to Capital One in accordance with their agreement.