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Motion for dismissal is granted by Court.

Plaintiff brought an action before the court and sought the forfeiture of a motor vehicle as an instrumentality of a crime, particularly, a 2000 blue BMW, pursuant to the NYC Administrative Code.

On 17 June 2007, after the arrest and charging of defendant for committing various Penal Law, and Vehicle and Traffic Law violations, the NYPD police officers seized his vehicle, a BMW with defendant being the titled and registered owner. During the early morning hours of that day, the NYPD vouchered the said BMW under a Property Clerk Invoice.

Thereafter, the defendant was arraigned on various charges including VTL § 1192(3), a misdemeanor crime of operating a motor vehicle while intoxicated. On 30 March 2009, defendant pleaded guilty to VTL § 1192(3) and eventually received a District Attorney’s Release dated 21 July 2009. On 12 August 2009, defendant made a formal demand to the Property Clerk for the return of his vehicle, which receipt was preliminarily acknowledged. The next day, the Property Clerk issued a letter addressed to the defendant deeming the demand invalid because defendant allegedly did not submit a DA Release.

On 9 September 2009, plaintiff filed its summons and verified complaint. Thereafter, in December 2009, the Property Clerk attempted to complete service of process, more than 3 months later when its process server served defendant’s wife, a person of suitable age and discretion, at defendant’s dwelling place and/or place of abode on 3 December 2009, mailed the summons and verified complaint by first class mail to defendant at his last known residence and then filed proof of service with the court on 7 December 2009. On 17 December 2009, or ten days later, service was deemed to be complete.

Defendant then moved for an Order to Show Cause (OSC) to dismiss the civil forfeiture action pursuant to CPLR §§ 306-b and 3211. Plaintiff, the Property Clerk of New York City Police Department opposes the said motion.

According to defendant, plaintiff’s belated service of process in accordance with CPLR § 306-b warrants a dismissal of the action, with prejudice; according to the law, 38 RCNY §12-36(a), it is required that plaintiff must have commenced the action within 25 days after the defendant filed his demand for the return of his BMW and provided plaintiff with the DA Release; pursuant to CPLR §306-b, plaintiff is also required to complete service of process no later than 15 days after the expiration of the 25 day statute of limitations; utilizing the August 25th start date for statute of limitation purposes, plaintiff would have otherwise had to commence the action no later than 19 September 2009 and complete service of process no later than 14 October 2009; the Property Clerk obviously missed the statutory deadline when plaintiff effectuated and completed service of process in December 2009; thus, the Property Clerk’s belated service of process mandates the dismissal of the forfeiture action and the immediate return of his BMW. The defendant, in support of his argument, relies on appellate case law which views the 25 day time period to start a forfeiture action as a limitation period and refers the court to its own unpublished decision and order dated 4 August 2002 captioned Property Clerk, New York City Police Department v Perez.

According to plaintiff, in opposition, defendant cannot demonstrate any judicial, statutory or legislative history indicating that the aforementioned twenty-five (25) day rule codified in RCNY §12-36 is in fact a statute of limitations as traditionally defined and, therefore, plaintiff properly relied on the standard 120 day service period to complete service of process; service was complete on 7 December 2009 or 89 days after plaintiff filed its summons and verified complaint; and, to rebut defendant’s statute of limitations defense, the Property Clerk cites another unpublished decision and order the court at bar issued on 8 April 2009 captioned Property Clerk, New York City Police Department v Bogdanovic which appears to have rejected the statutory interpretation of 38 RCNY § 12-36(a) the defendant is advancing for the dismissal of the action.

In the case of Property Clerk, New York City Police Department v Bogdanovic , the impetus of federal case law led to the eventual codification of procedures for commencing forfeiture actions pursuant to NYC Administrative Code §14-140. The time in which the Property Clerk must commence a forfeiture action has been established in accordance with the decisions in the case of McClendon v Rosetti which was decided by the Second Circuit in 1972, modified in 1974 and the subsequent regulations set forth in the same case in 1993 by Federal District Judge, as codified in the Rules of the City of New York (RCNY), Title 38, Chapter 12. Where a valid demand for the return of seized property has been made, the Property Clerk has twenty-five (25) days within which to commence a forfeiture proceeding. If a forfeiture proceeding is not commenced within the twenty-five (25) day window period, the Property Clerk must advise the claimant that it will return the property forthwith.

In the decision of the court in the case of McClendon v Rosetti in 1974, the Federal Judge had to determine who, the claimant or the Property Clerk, is obligated to initiate a lawsuit to regain or retain the property as the case may be. The District Court ultimately concluded that to compel claimants such as the defendant to sue to recover property would perpetuate the very practices the 1972 decision outlawed. Relying on a US Supreme Court precedent, the court went on to say that it is rarely appropriate to require an individual to bring a replevin suit to obtain a constitutionally guaranteed hearing as to whether he has the right to possession of property, that plaintiffs and members of their class are generally likely to fall within the group described as uneducated, uninformed consumers with little access to legal help and little familiarity with legal procedures; that, nothing in the decision in 1972 was intended to impose the burden of initiating litigation on persons with practical disabilities, and to say nothing of the added obstacle which apprehension of suing the City or police officials might constitute to people so situated; and that the cost of a lawsuit also weighs against requiring suit by those in the plaintiff’s class, as described in 1972.

Against the aforesaid backdrop, when claimants such as the defendant submit timely demands or meeting the procedural requisites to the Property Clerk for the return of their vehicles, plaintiff, at that point in time, is being put on notice implicitly of the harm claimants continue to suffer from being deprived of their vehicles. Stated differently, the date of a timely notice of such property deprivation and a demand for its return in the context of civil forfeiture is the equivalent of the date of an accrued claim or occurrence of the injury. And, unless the Property Clerk can legally justify the continued retention of these seized vehicles and timely initiates forfeiture proceedings after timely demands are made, then the Property Clerk must immediately release these vehicles to claimants such as the defendant. This is pursuant to the court’s ruling in the landmark case of DeBellis v Property Clerk of the City of New York in 1992.

Furthermore, contrary to plaintiff’s argument, the Appellate Division, First Department has interpreted 38 RCNY §12-36(a) to be a statute of limitations. This is especially so when the Court recently held that the Property Clerk’s failure to commence a forfeiture action within the 25 day period, after a timely demand is made, fatal; as held in the case of Property Clerk, New York City Police Department v Smith, decided by the First Department in 2009; Property Clerk, New York City Police Department v Seroda, also decided by First Department in 1987. In the latter case, the First Department characterized the defendant’s challenge to plaintiff’s untimely filing of its forfeiture action within the prior 10 day limitations period, now 25 days, as a Statute of Limitations defense. After a more focused analysis of the controlling federal and state case law, there can be little doubt that the 25 day limitations period set forth in 38 RCNY §12-36(a) is a judicially inspired, albeit untraditional statute of limitations.

Without a doubt, there is an inconsistency in the decisions of the aforesaid cases of Perez and Bogdanovic. However, on a closer inspection, those decisions can be reconciled. First, the Perez Decision is in accord with First Department precedent. Second and more importantly, in the Bogdanovic Decision, the court never had to reach the question of whether the forfeiture action was timely commenced because defendant’s demand was invalid and therefore the 25 day limitations period never began to run. Third, the court’s then concurrence with a treatise analysis of the 25 day limitations period was a cursory afterthought and was merely a dictum. Lastly, and more controlling, the treatise analysis while colorably persuasive was clearly trumped by the case of Smith issued after the treatise’s publication in 2008.

Since the statute of limitations is clearly for a period less than 4 months, it implicates CPLR § 306-b which states that service of the summons and complaint must be made within one hundred twenty days after the filing of the summons and complaint, provided that, in an action where the applicable statute of limitations is four months or less, service must be made not later than fifteen days after the date on which the applicable statute of limitations expires. If service is not made upon a defendant within the time provided in the said section, the court, upon motion, must dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service.

Here, it is undeniable that the Property Clerk failed to complete service of process no later than the mandatory 15 day period after the last day of the 25 day limitations period it otherwise had to commence the forfeiture action, particularly, 19 October 2009, warranting a dismissal of the forfeiture action. More compelling, the Property Clerk never moved to extend its time to complete service of process. Given the 89 day delay in the serving process, plaintiff cannot possibly claim it exercised reasonable diligence in attempting service. Further, the Property Clerk has not shown good cause why the court should exercise its discretion in the interest of justice to deem its three month delay, 17 December 2009, rather than 19 October 2009, in completing service of process to be proper. What’s more, the dismissal of the action simply cannot be without prejudice because the commencement of a new forfeiture action would be legally impossible as the 25 day limitations period has expired.

Accordingly, the defendant’s motion for an Order to Show Cause for the dismissal of the forfeiture action was granted; the forfeiture action was dismissed, with prejudice; and, the plaintiff, the Property Clerk, was ordered to return to the defendant the BMW, without the imposition of any costs, fees or disbursements.

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