Opinion
278
April 23, 2002.
Order, Supreme Court, New York County (Martin Shulman, J.), entered January 3, 2001, which granted defendants' motion to dismiss the action for failure to state a cause of action pursuant to CPLR 3211(a)(7) and awarded costs and attorneys' fees to defendants for plaintiff's commencement of a frivolous action against them, unanimously modified, on the law and the facts, to provide that plaintiff may re-plead as against defendant Wilson and to vacate the award of attorneys' fees and costs, and otherwise affirmed, without costs.
PAUL L. HERZFELD, for plaintiff-appellant.
MICHAEL A. ROSENBERG KENNETH D. LAW, for defendants-respondents.
Before: Andrias, J.P., Saxe, Sullivan, Rosenberger, Friedman, JJ.
The motion court properly dismissed this civil forfeiture action as against defendant BMW, the owner and lessor of the subject vehicle, since BMW could not have known that defendant Wilson, the vehicle's lessee, would use the vehicle in the commission of a crime, as plaintiff alleges (see, Property Clerk v. Pagano, 170 A.D.2d 30, 35-36). While the complaint was also properly dismissed as against defendant Wilson, the dismissal should be premised on the facial insufficiency of the complaint in view of plaintiff's failure to allege the specific acts justifying the forfeiture of the vehicle (see, Administrative Code of City of New York § 14-140[b], [e][1]), rather than on the circumstance that Wilson was never formally charged with any criminal offense in connection with the vehicle's use (see, Matter of Property Clerk v. Ferris, 77 N.Y.2d 428, 430-431). Accordingly, we affirm the complaint's dismissal as against Wilson, but with leave to plaintiff to re-plead as against Wilson, should it be so inclined. While the complaint is facially inadequate, we perceive no basis for the conclusion that this action was frivolously instituted and, accordingly, vacate the award of costs and attorneys' fees against plaintiff.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.