Property Clerk, New York City Police Department v. Smith

62 A.D.3d 486, 878 N.Y.S.2d 726

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 12, 2009
• Status: Published

Opinion

Order and judgment (one paper), Supreme Court, New York County (Martin Shulman, J.), entered March 6, 2008, which, in a civil forfeiture action, granted plaintiffs motion for summary judgment, denied defendant’s cross motion for summary judgment, and declared that defendant’s vehicle be forfeited, unanimously reversed, on the law and the facts, without costs, the order and judgment vacated, the motion denied, the cross motion granted, and it is declared that plaintiff does not have any right of ownership or possession in the subject vehicle.

Defendant’s communications with plaintiffs personnel gave plaintiff notice, by no later than the date the Krimstock hearing was convened, that defendant was seeking the return of his vehicle; thus, this action, commenced more than 25 days later, was untimely (38 RCNY 12-36 [a]; see Matter of DeBellis v Property Clerk of City of N.Y., 79 NY2d 49, 58 [1992]). To the extent the Property Clerk may require a district attorney’s release (38 RCNY 12-35 [d]), defendant’s failure to provide one did not render his demand ineffective (see Matter of Camacho v Kelly, 57 AD3d 297, 298 [2008] [citing DeBellis at 58]). Similarly, to the extent the Property Clerk may require title when the seized property is a motor vehicle (38 RCNY 12-35 [f]), this cannot be understood as a required component of the demand; rather, it is a prerequisite to the release of the vehicle from police custody. In view of the foregoing, it is unnecessary to address the parties’ other contentions. Concur—Andrias, J.P., Friedman, Buckley, Acosta and DeGrasse, JJ.