Property Clerk of New York City Police Department v. Lizziano

302 A.D.2d 235, 754 N.Y.S.2d 277, 2003 N.Y. App. Div. LEXIS 1204

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 11, 2003
• Status: Published

Opinion

Order, Supreme Court, New York County (Martin Shulman, J.), entered on or about January 23, 2002, which granted plaintiff Property Clerk’s motion for summary judgment in a civil forfeiture proceeding involving defendant’s car, unanimously affirmed, without costs.

The instant petition originally sought forfeiture of defendant’s car on the ground that he operated it while intoxicated in violation of Vehicle and Traffic Law § 1192 (2) and (3). After commencement of the proceeding, defendant wrote a letter to the Mayor and the Public Advocate stating that the reason he turned the wrong way down a one-way street was not because he was intoxicated but because he was “disoriented and dizzy” by a “toxic combination” of the medically prescribed drug Xanax and “a drink of alcohol.” The letter further claimed that the charge of intoxication was undermined by questionable blood alcohol tests showing different levels of blood alcohol, and that defendant was under much stress due to his impending surgery and the death of his father on the day of the incident. After learning of this letter, and obtaining defendant’s sworn admission that it was genuine, plaintiff moved to amend the complaint so as to include a cause of action for forfeiture on the ground that defendant operated the car while impaired by a drug in violation of Vehicle and Traffic Law § 1192 (4), and then moved for summary judgment on the new cause of action. Summary judgment was properly granted on the basis of the admissions in defendant’s letter, which make out all of the elements of a violation of section 1192 (4) (see People v Kahn, 160 Misc 2d 594, 598). Concur — Mazzarelli, J.P., Andrias, Saxe, Buckley and Friedman, JJ.