Smith v. New York City Police Department

CourtDistrict Court, E.D. New York
DecidedSeptember 30, 2025
Docket1:21-cv-03239
StatusUnknown

This text of Smith v. New York City Police Department (Smith v. New York City Police Department) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. New York City Police Department, (E.D.N.Y. 2025).

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK --------------------------------------------------------------- X : JEROME SMITH, : Plaintiff, : MEMORANDUM AND ORDER

– against – : 21-CV-3239 (AMD) (CHK)

: NEW YORK CITY POLICE DEPARTMENT, 106TH PRECINCT, CITY OF NEW YORK, : THE CITY OF NEW YORK, MARCOS : PICHARDO, MICHAEL COZIER, ANDRES GONZALEZ, EDWIN PEREZ, :

: Defendant. --------------------------------------------------------------- X

A NN M. DONNELLY, United States District Judge: The pro se plaintiff brought this action against the City of New York, the New York Police Department Property Clerk, and others pursuant to 42 U.S.C. § 1983, claiming that the defendants violated his due process rights when the NYPD seized his car and the property inside it during a 2015 arrest and has since failed to provide the plaintiff the opportunity to be heard.1 Before the Court is the defendants’ motion to dismiss the second amended complaint (the “SAC”) pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.2 For the reasons that follow, the motion is denied as to New York City and the New York City Police Department

1 On August 17, 2021, the Court granted the plaintiff’s request to proceed in forma pauperis. (ECF No. 10.) 2 In addition to the briefing related to the current motion to dismiss (ECF Nos. 88–91 (Motion to Dismiss and related filings), 93 (Opposition to Motion to Dismiss), 94–95 (Reply in Support of Motion to Dismiss), the Court also considers prior briefing related to the second amended complaint (ECF No. 44), including the defendants’ prior motion to dismiss (ECF Nos. 56–58), the opposition to the motion to dismiss (ECF No. 59), and the defendants’ reply briefing (ECF No. 61). Property Clerk (the “Property Clerk”) (collectively, the “City Defendants”) and granted as to Gonzalez, Perez, Picardo, and Cozier. BACKGROUND3 The 2015 Seizure of the Plaintiff’s Property On October 29, 2015, New York City Police Officer Andres Gonzalez arrested the plaintiff and seized his car. (ECF No. 44 ¶ 9.) Officer Gonzalez vouchered the car and filled out

a property clerk invoice — Invoice No. 400035199 — in which he represented that the vehicle was being held as “ARREST EVIDENCE” and that no personal property was removed from it. (ECF No. 44 ¶ 9; ECF No. 89-1 at Ex. A.) While the police gave the plaintiff a copy of the invoice, it is undisputed that they “failed to attach to the voucher the procedures for recovering the seized vehicle.” (ECF No. 44 ¶ 9; ECF No. 89-1 at Ex. A.) During the intake inspection at the impound lot approximately four days later, the officer noted that the “Missing/Damaged Parts” now included “CRACK WINDSHIELD.” (ECF No. 44 ¶ 9; ECF No. 44 at Exs. Q-2, Q-3.) The Plaintiff’s Requests for Return of the Seized Property Since January 2016, the plaintiff has made approximately a dozen requests and initiated

multiple proceedings to recover his car, all without the benefit of receiving notice of the procedures for doing so at the time of the seizure. These requests and proceedings are described below.

3 The facts are drawn from the allegations in the plaintiff’s complaint (ECF No.1), first amended complaint (ECF No. 37), second amended complaint (ECF No. 44), and documents attached to or integral to the complaints. See Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016). The Court has previously taken judicial notice of the complaint, attached exhibits, and decision in the prior SDNY action (ECF No. 27 at 6–7), which were attached by the defendants to their affidavit in support of their motion to dismiss in this action (see ECF Nos. 89-1, 89-2). The Court draws all reasonable inferences in the plaintiff’s favor and accepts the factual allegations in the complaints as true for purposes of this motion. See Town of Babylon v. Fed Hous. Fin. Agency, 699 F.3d 221, 227 (2d Cir. 2012). a. January 2016 Response to NYPD’s Initial Settlement Offer In a November 9, 2015 letter, the Property Clerk informed the plaintiff that the NYPD was going to file a civil action in New York State Supreme Court seeking forfeiture of his car, a 1999 Lexus. Although the plaintiff was incarcerated, the Property Clerk mailed the letter to the plaintiff’s home address (ECF No. 89-1 at Exs. B, C), and it is unclear when the plaintiff actually

received the letter. In the letter, the Property Clerk made a “settlement” offer that would remain open for ten business days: the plaintiff could get the car back if he paid a $1,500 fee and a non- waivable storage facility fee of $75. (ECF No. 89-1 at Ex. B.) The Property Clerk also explained that settlement was contingent upon the plaintiff showing “through documentation that the vehicle is not needed as evidence in the criminal proceeding by providing the NYPD Legal Bureau with a District Attorney’s release or a certified Court disposition.” (Id.) On January 23, 2016, the plaintiff sent the Property Clerk a hand-written letter objecting to “being charge[d] a large sum” — the $1,500 fee and the storage fee of $75 — to retrieve the car. (ECF No. 89-1 at Ex. C.) Additionally, in response to the request for “documentation that the vehicle is not needed as evidence in the criminal proceeding,” the plaintiff provided a copy of

the voucher that shows his “vehicle was seize[d] and impounded as evidence.” (Id.) He also explained that his family could not retrieve the car because it was “being held as evidence.” (Id.) He gave the Property Clerk his correctional facility mailing address for future correspondence. (Id.) b. January 2016 Request During Criminal Proceedings After his arrest on October 29, 2015, the plaintiff was prosecuted in Queens County Supreme Court for burglary in the first degree and grand larceny in the fourth degree. (ECF No. 89-1 at Ex. D.) On January 27, 2016, during a pre-trial hearing before Judge Barry Kron, the plaintiff inquired about the property voucher and the settlement letter from the Property Clerk. (ECF No. 1 ¶ 10; ECF No. 44 at Ex. B.) c. March 2016 Demand to Produce Complaint On February 18, 2016, the Property Clerk commenced a civil forfeiture action in New York County Supreme Court and sent the plaintiff a “summons with notice” informing him that

he had either 20 or 30 days from the date of the summons depending on method of service to serve a notice of appearance or a demand for a complaint. (ECF No. 89-1 at Ex. D.) The plaintiff received the summons on March 1, 2016. (Id.) The notice instructed, in part, that the plaintiff was “HEREBY SUMMONED and required to serve upon counsel for the City Defendants, at the address below, a notice of appearance or a demand for a complaint within twenty (20) days after services of this summons, exclusive of the day of service.” (Id.) The address listed was: ZACHARY W. CARTER, ESQ. Corporation Counsel, City of New York LAWRENCE BYRNE, ESQ. Deputy commissioner, Legal Matters New York City Police Dept. Attorney for Plaintiff ANDREW J BOTELHO, ESQ. 2 Lafayette Street, 5th Floor New York, New York 10007 (Id.) On March 8, 2016,4 about seven days after the plaintiff got the summons instructing him to serve a demand for a complaint, the plaintiff responded with a “DEMAND TO PRODUCE

4 While the plaintiff’s letter is dated March 5, 2016, the plaintiff’s notarized affidavit of service indicates that he mailed the “Demand to Produce Complaint” on March 8, 2016. (ECF No. 89-1 at Ex. E.) COMPLAINT.” (ECF No. 1 ¶ 12; ECF No. 44 at Ex.

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Smith v. New York City Police Department, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-new-york-city-police-department-nyed-2025.