Opinion
401848/08.
April 8, 2009.
DECISION ORDER
In this civil forfeiture proceeding, plaintiff, Property Clerk, New York City Police Department ("plaintiff" or "Property Clerk"), seeks forfeiture of the subject vehicle, a 1998 Mercedes, bearing Vehicle Identification Number WDBGA51G1WA375322 (the "subject vehicle"), which was seized from defendant Isuf Bogdanovic ("Bogdanovic" or "defendant") and vouchered under Property Clerk Invoice Number B183388V (the "voucher") as a result of said defendant's May 22, 2008 arrest on charges of inter alia violating Vehicle and Traffic Law ("VTL") §§ 1192(2) (driving while intoxicated per se); 1192(3) (driving while intoxicated); 1192(1) (driving while ability impaired); 1212 (reckless driving); 1227(1) (consumption or possession of alcoholic beverages in motor vehicle); 1110(a) (failure to obey traffic control device); and 1180(a) (unreasonable speed). See Complaint at ¶ 3 (Exh. 12 to Samalin Aff. in Support).
Defendant moves to dismiss the action pursuant to CPLR 3211(a)(5) (statute of limitations) and (8) (lack of personal jurisdiction). Specifically, defendant claims: 1) plaintiff failed to commence this action within twenty-five (25) days of defendant's demand for the return of the subject vehicle; and 2) plaintiff failed to properly and timely serve the summons and complaint on defendant. The Property Clerk opposes the motion.
The court first addresses defendant's claim that plaintiff did not timely commence the action. The time in which the Property Clerk must commence a forfeiture action has been established in accordance with the decisions in McClendon v. Rosetti, 460 F.2d 111 (2nd Cir., 1972), McClendon v. Rosetti, 369 F.Supp. 1391 (S.D.N.Y., 1974) and the subsequent regulations set forth in McClendon v. Rosetti, 1993 WL 158525 (S.D.N.Y., 1993) by Federal District Judge Lasker, 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. RCNY § 12-36.
Defendant alleges that he demanded the subject vehicle be returned to him on numerous occasions, as follows:
• On July 3, 2008, defendant's counsel sent a letter to the New York City Police Department ("NYPD") Legal Bureau ("Legal Bureau") by telefax, demanding the return of the subject vehicle and enclosing copies of the district attorney's release, title and registration to the vehicle, defendant's driver's license, insurance card and Notice of Right to Retention Hearing (Exh. 3 to Samalin Aff. in Support);
The letter states that the Notice of Right to Retention Hearing contains the Property Clerk's voucher number and seizure number for the subject vehicle. Defendant alleges that he was not provided with a copy of the voucher at the time of his arrest or thereafter.
• The same letter and documentation were mailed to the Legal Bureau by certified mail, return receipt requested on July 3, 2008, and were delivered to the Legal Bureau on July 7, 2008 (Exh. 4 to Samalin Aff. in Support);
• On July 9, 2008, defendant's counsel sent a letter to the NYPD's Property Clerk Division in New York county by certified mail, which was delivered on July 10, 2008, again demanding the return of the subject vehicle and enclosing copies of the same documents sent to the Legal Bureau on July 3, 2008 (Exh. 5 to Samalin Aff. in Support);
• A similar letter and the same documentation were mailed to the NYPD Property Clerk Division in Kings county by certified mail, return receipt requested on July 8, 2008, and were delivered on July 14, 2008 (Exh. 6 to Samalin Aff. in Support); and
• On July 11, 2009, Bogdanovic personally delivered a copy of the July 9, 2008 letter and documents sent to the Manhattan Property Clerk to the College Point Auto Pound (Exh. 7 to Samalin Aff. in Support), where he was provided with a form entitled "Forfeiture Demands" which directed him to call the Civil Enforcement Unit in 10 business days (Exh. 8 to Samalin Aff. in Support).
As the Property Clerk filed this action on July 30, 2008, if defendant made a valid demand on July 3, 2008, then this action was not timely commenced. If the July 3, 2008 demand is invalid, then the action would be timely commenced since each of the subsequent demands was made within twenty-five (25) days of July 30, 2009.
RCNY § 12-35(b) states in relevant part:
Subject to the provisions of §§ 12-36 and 12-37, the police property clerk shall return all non-contraband arrest evidence . . . upon timely demand, to a claimant who produces proper identification and who presents a written district attorney's release covering such property and the voucher issued at the time of arrest. Failure to produce the voucher shall not preclude a lawful claim being made for property . . .
Where the vouchered property is a motor vehicle, "then title . . . may be required." RCNY § 12-35(f).
In opposition to the motion, the Property Clerk contends: 1) the demand must be made at the College Point auto pound (RCNY § 12-35); 2) demands by telefax are not accepted; and 3) the Legal Bureau, a division of the Civil Enforcement Unit, is not synonymous with the NYPD Property Clerk, thus the July 3, 2008 telefax was sent to the wrong entity and address.
Here, Bogdanovic made his demand by telefax and certified mail to the Legal Bureau on July 3, 2008. The letter clearly requests that the subject vehicle be returned and adequately identifies the vehicle. The letter also enclosed identification, a district attorney's release and title. The only issues are whether the demand is invalid because it was made by telefax and whether sending the demand to the Legal Bureau provides plaintiff with sufficient notice of the demand.
At the outset, the court finds nothing in Administrative Code § 14-140 or in the RCNY which authorizes a demand for the return of property to be made to the Property Clerk by telefax. To the contrary, RCNY § 12-32(e)(ii) refers to demands being made in person or by mail. As to the location where the demand is to be made, the RCNY refer to demands being made at "the office of the police property clerk located at a central location in each borough" (RCNY § 12-32[e][ii]) and/or at the auto pound (RCNY § 12-14).
Under the foregoing authority, the court finds that defendant's demand which was faxed and mailed to the Legal Bureau on July 3, 2008 was invalid. For the foregoing reasons, Bogdanovic fails to meet his burden of proving the Property Clerk failed to timely commence this action. Specifically, defendant fails to establish that he made a valid demand to plaintiff for the return of the subject vehicle on July 3, 2008. The complaint was filed within twenty-five (25) days of all of defendant's subsequent demands and as such, the action was timely commenced and the motion must be denied.
Finally, Bogdanovic argues that plaintiff failed to properly and timely serve the summons and complaint on him after commencing the action. Defendant cites CPLR § 306-b, which requires service to be made within fifteen (15) days of the expiration of the statute of limitations where such statute of limitations is four months or less. While CPLR § 306-b's application to forfeiture proceedings has yet to be judicially determined, it nonetheless has been rejected in treatises on the subject:
In fact, there is no basis in the [RCNY] for concluding that forfeiture proceedings commenced by the property clerk have statutes of limitations of four months or less, To the contrary, these proceedings are unique in that the time for the property clerk to file does not even begin to run until the claimant serves a demand and, when necessary, a District Attorney's Release and the criminal proceedings have terminated within the meaning of the [RCNY]. Thus, there is no statute of limitations for these proceedings in the traditional sense, since the time for commencement is not measured from the time the cause of action arose, but instead from the time that the claimant successfully performs a series of procedural acts that are distinct from the acts giving rise to the claim itself.
If there is no statute of limitations at all for property clerk forfeiture cases, there is certainly no reason to infer a four-month statute of limitations for such cases, and therefore no reason to infer a fifteen-day service of process requirement. To the contrary, it appears that the property clerk would have 120 days from the date of filing its forfeiture action to serve the summons and complaint on the claimant(s). Emphasis in original.
Steven L. Kessler, New York Criminal and Civil Forfeitures § 7.07[2], at 7-43 (2008 ed.). The court agrees with the above analysis and rejects defendant's lack of personal jurisdiction claims. For the foregoing reasons, it is hereby
ORDERED that defendant's motion to dismiss is denied in its entirety.
Pursuant to CPLR 3211(f), defendant shall serve its answer to the complaint within ten (10) days of service of notice of entry of this decision and order.
Counsel for the parties are directed to appear for a preliminary conference on May 12, 2009 at 9:30 a.m. at 111 Centre Street, Room 1127B, New York, New York.
The foregoing constitutes this court's Decision and Order. Courtesy copies of this Decision and Order have been provided to counsel for the parties.