O'Brien v. De Giammatteo

73 A.D.2d 647, 422 N.Y.S.2d 738, 1979 N.Y. App. Div. LEXIS 14475

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 17, 1979
• Status: Published

Opinion

In a proceeding pursuant to section 477-a of the Tax Law to declare the forfeiture of a motor vehicle used in the illegal transportation of untaxed cigarettes, the petitioner appeals from a judgment of the Supreme Court, Suffolk County, entered January 17, 1979, which denied the petition and directed that the vehicle be returned to the respondent. Judgment reversed, on the law, without costs or disbursements, petition granted, it is directed that the vehicle be sold subject to the intervenor’s lien, and the matter is remanded to Special Term for the implementation of this directive, and for the disposition of the proceeds of that sale. We believe that the omission from section 477-a of the Tax Law of any provision for the preservation of legitimate recorded liens by innocent third parties with no knowledge of the illegal activity was an oversight which should be corrected by the Legislature. On purely equitable grounds, therefore, we conclude that the statute should be interpreted so as not to destroy a bona fide contractual right. We are also not persuaded that the owner, by pleading guilty to one count of a three count indictment, which count was unrelated to the activities involving the use of his car, has thereby successfully avoided forfeiture, since he does not challenge the facts asserted in the petition. Damiani, J. P., Gulotta, Cohalan and Margett, JJ., concur. [97 Misc 2d 827.]