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Police Dep't v. Cozart
OATH Index No. 156/06, mem. dec. (July 21, 2005)
Upon the respondent’s failure to appear for the hearing, he was found to be in default, his right to a hearing was deemed to be waived, and the Department is entitled to retain the vehicle.
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NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
POLICE DEPARTMENT
Petitioner
- against -
GARY L. COZART
Respondent
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MEMORANDUM DECISION
ROBERTO VELEZ, Chief 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, Gary L. Cozart, was 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).
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The vehicle in issue, a 1996 Honda motorcycle (voucher # B087029), was seized on May 18, 2005, following respondent’s arrest for multiple vehicular infractions. Respondent’s charges include (1) reckless endangerment, second degree (PL 120.20); (2) resisting arrest (PL 205.30); (3) aggravated unlicensed vehicle operation, second degree (VTL 511 (2)(A)); (4) operating an unregistered motorcycle (VTL 410); (5) traffic device violation: ran a red light (VTL 1111 (D)) (Pet. Ex. E). Petitioner received respondent’s demand for a hearing on July 5, 2005 (ALJ Ex. 1). Petitioner scheduled a hearing before this tribunal for July 19, 2005, and duly served notice of the hearing on respondent by mail at the address provided by respondent (Pet. Exs. A and B). The petition and notice of hearing notified respondent of his right to be represented by an attorney or any other representative, and properly warned him as follows: “If you fail to appear at the hearing, either in person or by an authorized representative, the presiding judge may declare you to be 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. B). Despite such notice, neither respondent nor anyone on his behalf appeared for trial, and, therefore, the respondent is 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.
Petitioner moves for a factual determination regarding respondent’s ownership rights to the vehicle in issue. Petitioner also requests that if this tribunal were to find that respondent is not a legal or rightful owner of the vehicle, that this tribunal bar respondent from moving to vacate this default. In support of its motion, petitioner proffered evidence showing that on May 18, 2005, respondent was not a titled or registered owner of the vehicle (Pet. Ex. C and D). Petitioner’s motions are denied. Even if this tribunal were to make such a finding, respondent will not be barred from moving to vacate the default. Pursuant to the Krimstock order, section four, “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 in lawful possession of the vehicle, or the owner if different from such person.” Krimstock v. Kelly, 99 Civ. 12041. After a thorough review of the evidence, I cannot conclude that respondent’s possession of the vehicle was unlawful; therefore respondent may have standing to seek a hearing under the Krimstock order. As such, respondent may move to vacate the default regardless of his ownership status. Thus, the factual determination of ownership is not necessary at the present time.
ORDER
The respondent is declared to be in default, his right to a hearing is deemed to be waived, and the Department is entitled to retain vehicle in the Department’s voucher number B087029.
Roberto Velez
Chief Administrative Law Judge
July 21, 2005
APPEARANCES:
ALIZA FELIX, ESQ.
Attorney for Petitioner
No appearance by or for Respondent.