Police Dep’t v. Ferguson

OATH Index No. 1714//06, mem. dec. (May 3, 2006)

Upon respondent’s failure to appear at the hearing, she was found to be in default. Herright to a hearing was deemed waived.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

POLICE DEPARTMENT

Petitioner

-against-

MARKITA FERGUSON

Respondent

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MEMORANDUM DECISION

KEVIN F. CASEY, 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, Markita Ferguson, is the titled owner of the seized vehicle and was driving it at the time of the seizure. 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").

The Department seized respondent’s vehicle on March 11, 2006, following her arrest for driving while intoxicated. Petitioner received respondent’s demand for a hearing on April 19, 2006, scheduled a hearing at this tribunal for May 1, 2006, and duly served notice of the hearing on respondent (Pet. Exs. 2 and 3). Petitioner’s notice to respondent included the following warning: “If you fail to appear at the hearing, either in person or by an authorized representative, the presiding judge may declare you 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 that warning, neither respondent nor any representative on her behalf appeared for the hearing.

Based upon the evidence presented, I found respondent in default and concluded thatshe waived her 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. This decision would not have collateral estoppel effect at such a proceeding. Although respondent may not submit another demand or otherwise proceed de novo before this tribunal, she 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, respondent may contest the Department’s right to retain the vehicle pending resolution of the civil forfeiture action. If the motion is denied, respondent may seek judicial review of that denial.

A motion to vacate a default before this tribunal must show good cause for respondent's failure to appear and a meritorious defense to the petition. See, 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 requirements of section 1-52 of our rules.

ORDER

Respondent has been found in default, and has waived her right to a hearing.

Kevin F. Casey

Administrative Law Judge

May 3, 2006

APPEARANCES:

KATE DMOCHOWSKI, ESQ.

Attorney for Petitioner

No Appearance for Respondent