Police Dep't v



Police Dep’t v. Martino

OATH Index No. 1420/07, mem. dec. (May 31, 2007)

On reconsideration at the request of respondent, denial of motion to vacate default sustained where (1) newly submitted papers confirmed absence of any valid excuse for missing hearing, and proved that excuse previously tendered was weaker than originally shown, and (2) new material was too limited to show meritorious defense. Absent the requisite two-prong showing, motion to vacate denied.

_______________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

POLICE DEPARTMENT

Petitioner

- against -

CHRISTOPHER MARTINO

Respondent

______________________________________________________

MEMORANDUM DECISION

JOAN R. SALZMAN, Administrative Law Judge

On April 18, 2007, by memorandum decision, I denied a belated motion to vacate respondent’s default where no valid excuse was offered and respondent failed to show a factually substantial, meritorious defense. Shortly thereafter, respondent sought reconsideration of that decision. I allowed respondent to make additional submissions, and also considered a reply affirmation that crossed in the mail with my decision, even though replies are not permitted as of right under the rules of this tribunal. Upon consideration of the new material submitted by respondent, I find that the unacceptable excuse tendered on the original motion for missing the hearing is now shown to be even weaker than originally appeared, and that the respondent’s new materials demonstrate at best only a very limited, insubstantial showing with regard to the merits. In the absence of the two necessary showings to support a vacatur (a reasonable excuse for failure to appear and a legally viable, factually substantial defense), and for the reasons set forth more fully below, I adhere to the original decision and deny the motion to vacate the default.

The Original Motion

Petitioner, the Police Department, brought this proceeding to determine its right to retain a vehicle seized as the alleged instrumentality of a crime pursuant to section 14-140 of the Administrative Code. The respondent is Christopher Martino, the owner of the seized vehicle and the driver of the vehicle at the time it was seized (Pet. Exs. 1, 4). This proceeding was mandated by Krimstock v. Kelly, 99 Civ. 12041, 2005 U.S. Dist. Lexis 43845 (MBM), second amended order and judgment (S.D.N.Y. Dec. 6, 2005) (the “Krimstock Order”). See generally Krimstock v. Kelly, 306 F.3d 40 (2d Cir. 2002), cert. denied sub nom. Kelly v. Krimstock, 539 U.S. 969 (2003); County of Nassau v. Canavan, 1 N.Y.3d 134, 770 N.Y.S.2d 277 (2003).

Respondent’s vehicle, a 2002 Mercedes Benz (Voucher No. B141181) (Pet. Exs. 5, 6), was seized on December 16, 2006, following his arrest for driving while intoxicated, aggravated unlicensed operation of a motor vehicle, and refusal to take a breath test (Pet. Ex. 3). Upon receipt of respondent’s demand for a hearing, the Department timely scheduled a hearing at OATH for February 20, 2007, and duly served notice of the hearing on respondent (Pet. Ex. 5). Following the hearing held on that date, I issued a memorandum decision, also on February 20, 2007, finding that respondent, who had failed to appear and on whose behalf no attorney or other representative appeared, despite proper service of notice of the hearing, had waived his right to a hearing and I declared him to be in default. In that decision, I noted that respondent could move to vacate his default as provided in section 1-45 of this tribunal’s rules of practice and that he could secure a hearing, notwithstanding his default, if he could make two showings required by a long line of our precedents: (1) a reasonable excuse for failure to appear, and (2) a meritorious defense to the petition. E.g., Police Dep’t v. Robinson, OATH Index No. 868/05, mem. dec. (Dec. 28, 2004); Dep’t of Correction v. Heyward, OATH Index No. 2041/00 (July 18, 2000); Transit Auth. v. O’Connell, OATH Index No. 1076/91, mem. dec. (Nov. 8, 1991).

With a cover letter dated April 2, 2007, Thomas F. Liotti, Esq., on behalf of respondent, filed a motion, supported by Mr. Liotti’s sworn affirmations dated March 15, 2007 (the “Liotti Aff. in Support” and the “Liotti Aff. of Engagement”), seeking vacatur of the default and a new hearing. There was no explanation as to why the motion was not filed immediately after the February 20th ruling, which was mailed to respondent and his counsel on that date, why the affirmation was done nearly a month thereafter, or why there was a two-week lag time between the March 15th affirmation and the mailing of the motion on April 3, 2007, the date of the sworn proof of service. The motion was received at this tribunal on April 5, 2007. As noted in the original memorandum decision in this matter, at page 2, such a motion must be made “as promptly as possible,” under section 1-45 of our rules, 48 RCNY § 1-45 (Lexis 2007). See Police Dep’t v. Robinson, OATH Index No. 868/05, mem. dec., at 2 (Dec. 28, 2004). That the application came a month and a half after the decision, without any explanation for that delay, weighed against the grant of the motion.

I found the original motion very sketchy. With respect to the reason for the failure to appear at the hearing, lead counsel claimed actual engagement in a specific trial in Nassau County on the date of the hearing here. He vaguely asserted without elaboration that all his associates were also “actually engaged in other matters” that day (Liotti Aff. of Engagement ¶ 3), but was silent as to what courts claimed their time and as to any particulars of scheduling, advance notice of other work and subject matter of other work. There was no explanation of why nobody at the firm could appear for the hearing or even call or email prior to or on February 20th to try to reschedule the matter here. I found that the excuse tendered here was not a reasonable one. See Police Dep’t v. Asmal, OATH Index No. 1652/05, mem. dec. (Apr. 7, 2005).

On April 6, 2007, I emailed counsel for both sides and directed counsel for the Department, Neil C. Berman, Esq., to file responsive papers by Thursday, April 12, 2007. Mr. Berman did so.[1] On April 12, 2007, Mr. Berman served and filed a telecopied response to the application for a new hearing and opposed the request on the grounds that respondent had not made either of the showings necessary to vacate the default. On the record presented, I agreed with the Department and denied the motion. On the day of the hearing, Tuesday, February 20, 2007, I waited for respondent until approximately 10:55 a.m. before commencing proceedings, even though the matter was to begin, according to the written, prior notice in the Petition and Notice of Hearing, at 9:30 a.m. that day (Pet. Ex. 5). Mr. Berman stated on the record that he had left a voice message for respondent’s counsel on the preceding Friday, February, 16, 2007, and that there was additional, actual, telephonic notice to counsel for respondent of the hearing date.

I found that respondent had not made out a reasonable excuse for having failed to appear. The Department noted that neither respondent nor his counsel notified OATH or the Department of their unavailability for the hearing, nor did they timely request an adjournment. Under OATH rules, requests for adjournment must be made to the assigned administrative law judge “as soon as the need for the adjournment becomes apparent”; moreover, “[d]elay in seeking an adjournment shall militate against grant of the request.” 48 RCNY § 1-32(b) (Lexis 2007). An “affirmation of actual engagement” must be filed “prior to a ruling on an adjournment sought on that basis.” 48 RCNY § 1-32(d). Counsel for respondent filed no affirmation of actual engagement prior to the hearing. I found that nothing in the motion papers suggested that respondent lacked sufficient prior notice of the Nassau County matter to explain his failure to act upon “the obvious scheduling conflict, permit some means of notifying others to act in his stead, or at least provide an impetus to mitigate matters and act accordingly,” as the Department’s counsel had noted in his responsive papers (Response ¶ 4). Nor was there any dispute that there was ample prior notice of the OATH trial scheduled for February 20, 2007, a date chosen for respondent’s convenience (Pet. Ex. 5). Despite this finding in the original decision, counsel for respondent has still offered no explanation in the application for reconsideration, despite ample opportunity to submit further information, for the failure to contact the tribunal prior to the scheduled hearing date, February 20th.

On the original motion, I found, respondent failed to show that he has a meritorious defense to the petition. The Department normally bears the burden of proving three points by a preponderance of the evidence: (i) that probable cause existed for the arrest pursuant to which the vehicle was seized; (ii) that it is likely that the Department will prevail in a civil action for forfeiture of the vehicle; and (iii) that it is necessary that the vehicle remain impounded to ensure its availability for a judgment in a civil forfeiture action. Canavan, 1 N.Y.3d at 144-46, 770 N.Y.S.2d at 286; Krimstock Order ¶ 2. Here, due process requires an “initial testing of the merits of the City’s case,” not “exhaustive evidentiary battles that might threaten to duplicate the eventual forfeiture hearing.” Krimstock, 306 F.3d at 69, 70.

Respondent’s burden on the motion was not to produce “‘a fully proved defense, but only a legally viable, factually substantial defense’ to the petition.” Police Dep’t v. Rivera, OATH Index No. 1272/04, mem. dec. at 2 (Apr. 19, 2004) (citing O’Connell, OATH 1076/91, mem. dec. at 6). Respondent argued that he should have his car returned solely because he is vigorously contesting the criminal charges against him. However, this was not a viable defense here. The Department argued that in many vehicle seizure cases, respondents’ “criminal trials are ongoing, they maintain their innocence and they hope to present a vigorous defense” (Motion ¶ 5; Response ¶ 5). The original motion failed to address the three prongs of Krimstock. In short, the showing here was simply too vague to amount to a “legally viable, factually substantial defense” to the petition.

In the absence of good cause to vacate the default, I found that the original motion must be denied. See, e.g., Police Dep’t v. Fernandez, OATH Index No. 1273/07, mem. dec. (Feb. 27, 2007) (defense insufficient); Police Dep’t v. Saint Louis, OATH Index No. 1970/06, mem. dec., at 2 (July 25, 2006) (“threadbare” defense insufficient to vacate default).

The Motion for Reconsideration

After the memorandum decision was issued to counsel for the parties on April 18, 2007 via email, Drummond C. Smith, Esq., of Mr. Liotti’s office, on April 19, 2007, faxed a letter to me stating that he had sent a reply affirmation in support of the motion to vacate the default. He stated further that “[d]ue to this Court’s failure to entertain our reply as well as the clear influence that Mr. Berman seems to hold over this Court, I will be making a motion to renew and reargue based on the Court’s failure to make our reply part of the record. If that strategy fails, I will be forced to move by Order to Show Cause in Supreme Court pursuant to Article 78 of the CPLR.” Although our rules do not expressly provide for motions for reconsideration, I informed the parties that in the interests of justice, I would consider respondent’s reply papers, which arrived at OATH on April 19, 2007, the day after the original memorandum decision was issued. On April 20, 2007, a full two months after the scheduled Krimstock hearing, Mr. Smith submitted another letter stating that on that date, respondent had a “refusal hearing” and “was found to have not refused a breathalyzer or any other type of sobriety test on his underlying DWI prosecution after a full hearing.” (First emphasis in original.) Mr. Smith went on to say that “[w]inning a refusal hearing is a rare occurrence, however, our case is so strong that we did in fact prevail. That part of his case is now closed. I bring this to Your Honor’s attention because it has a direct bearing on his pending criminal matter and the forfeiture of his vehicle.” Mr. Smith then indicated that his client “has stated from the beginning of his criminal case that he is not guilty of the charges against him and today’s refusal hearing supports that position.” Mr. Smith asked that I reconsider the memorandum decision and vacate the default, “which is based not on the merits, but on a simple scheduling conflict.” He wrote, “As today’s victory in his refusal hearing demonstrates, there are serious flaws in the People’s case.”

By email on the same date, April 20, 2007, I notified counsel for both sides that I considered Mr. Smith’s letter of April 20th a motion for reconsideration. I set a briefing schedule requiring Department counsel to file responsive papers by April 24, 2007, and respondent’s counsel to serve and file, also by April 24th, a copy of the written ruling, if any, that reflects the decision Mr. Smith described in his April 20th letter. In the same email, I also addressed the misapprehension on the part of respondent’s counsel of the rules of this tribunal, which rules provide for no reply papers except by permission of the administrative law judge, explained that at the time of the April 18th decision, the motion to vacate was fully submitted so that no additional papers were anticipated, and finally that I would consider the reply papers that had been mailed without prior permission, in the interests of justice:

I note that there appears to be a misapprehension on the part of Mr. Liotti’s firm about the rules of procedure applicable in this tribunal, and particularly about the rules governing the filing of reply papers on motions.  Our rules are found at 48 RCNY.  The CPLR does not govern proceedings here.  I issued my memorandum decision on the motion to vacate the default on April 18, 2007, because the matter at that point was fully submitted and no additional papers were expected.  Under OATH rules, sections 1-52 and 1-34(e), 48 RCNY, “[r]eply papers shall not be filed unless authorized by the administrative law judge.”  No reply papers were authorized with respect to the original motion.  There is no right of reply with respect to motions filed at OATH, and permission to file the reply was not sought.  In his letter faxed yesterday, Mr. [Smith] complained that I did not consider reply papers mailed on April 17, 2007, from his office on the original motion to vacate the default.  Those reply papers were received at OATH on April 19, 2007, one day after I issued my memorandum decision.  Notwithstanding respondent’s counsel’s lack of familiarity with our rules, I am deeming the Reply Affirmation of Mr. Smith, sworn to April 17, 2007, part of the record in connection with the motion for reconsideration, in order to have a full record and in the interests of justice.  If respondent’s counsel wishes to submit any further papers in the form of a reply on the new motion for reconsideration, counsel should make an appropriate application to submit such papers by close of business Wednesday, April 25, 2007.  I will address as necessary the matters raised in the April 19th and 20th letters and in the April 17th Reply Affirmation filed by respondent’s counsel when the motion for reconsideration is fully submitted. 

In his original Affirmation in Support of the Motion of March 15th, Mr. Liotti swore that on the date of the scheduled hearing in this matter: “As I was otherwise actively engaged on trial on the above date in Nassau County Supreme Court before Justice O’Connell in the matter of Uchendu v. Newsday, et al., Index No. 04-009231, I was unable to be present at the hearing for Mr. Martino on that same date” (Liotti Aff. in Support at ¶ 4). The “above date” can only be February 20, 2007, which is noted in paragraph 2 of the same Affirmation. In his accompanying Affirmation of Engagement of March 15, 2007, counsel put the sworn assertion differently and cryptically: “I was actually engaged in the Supreme Court, Nassau County in the matter of Rev. Cajetan Uchendu v. Newsday; Roman Catholic Diocese of Rockville Centre, et al. on that day which was scheduled for trial.” (Liotti Aff. of Engagement ¶ 2; emphasis supplied.) Again, the reference to “that day” can only mean February 20, 2007, the hearing date in this matter (Id. ¶¶ 1-2). With respect to the availability of others in his firm to handle this matter, he added, vaguely: “Unfortunately, my other Associates were also actually engaged in other matters on the same day” (Id. ¶ 3). This proffer was utterly inadequate not only because it was late (mailed April 3, 2007, a month and a half after the missed hearing); it also lacked the information normally required in an affirmation of actual engagement, which is due before the hearing and prior to a ruling on an adjournment sought on the basis of conflicting legal work: “the name and nature of the conflicting matter, the court or tribunal hearing the matter, the judge before whom it is scheduled, the date the conflicting engagement became known to counsel, and the date, time, place and approximate duration of the engagement.” 48 RCNY § 1-32(d) (Lexis 2007). There was no explanation as to why neither Mr. Liotti nor anyone associated with him in his law practice timely sought an adjournment in advance of the February 20th hearing, notice of which had been provided by the Department as early as February 6, 2007 by mail. That notice was mailed not only to respondent but to Mr. Liotti as well, at the same address he uses on this motion (Pet. Ex. 5). The hearing date here was scheduled to accommodate respondent, who had listed February 8, 15, 16, 22 and 28, on his written demand for a hearing at OATH as dates he would not be available for the hearing here (Pet. Ex. 5).

In Mr. Smith’s Reply Affirmation, sworn to April 17, 2007, he indicated at paragraph 6 that he was the only one of Mr. Liotti’s three associates who could handle the instant hearing on February 20th. Accepting that Mr. Liotti’s two associates could not handle this matter in any event, I note that Mr. Smith revealed for the first time that it was not clear at all that lead counsel was actually engaged in a trial on the date of the Krimstock hearing in this forum (because the conflicting trial matter that had supposedly been set for February 20th “ultimately settled”), nor was Mr. Smith actually in court that day. It appears from the reply papers, then, that both Mr. Liotti and Mr. Smith could have at least picked up the phone to call opposing counsel and this tribunal on or before February 20th to prevent the conflicting work they cited from affecting their client’s hearing rights here. Mr. Smith stated in his April 17th Reply Affirmation:

As stated in our motion to vacate the default, Mr. Liotti was actually engaged in a trial in Supreme Court, Nassau County, to wit: Uchendu v. Newsday, et al., Index No. 04-009231. This case ultimately settled, however, there is a stark difference between settlement and potential settlement. As such, a trial on the day in question was a very real probability.

(Smith Aff. ¶ 6).

As for Mr. Smith’s schedule, he stated: “My inability to attend the hearing was due to a time sensitive writ, which I was preparing for a case in the Fourth Circuit (U.S. v. Giannone, Docket No. 06CR849)” (Smith Aff. ¶ 6). Mr. Smith apparently was writing legal papers on February 20th, and there is no reason given why he himself could not have called Mr. Berman and OATH that day to protect Mr. Martino’s rights, even assuming he was under time pressure at the office.

The reply papers confirm that the original excuse tendered was even more thoroughly inadequate than originally appeared. Mr. Liotti’s Affirmation of Engagement was required to be submitted before February 20th and to reflect counsel’s anticipated schedule. It was not. That affirmation is dated March 15, 2007, nearly a month after the hearing date herein. With the February 20th date long past, respondent’s counsel should have been able to say more precisely and straightforwardly what actually happened in the Nassau County case on February 20th, but they never did so. A fair reading of Mr. Smith’s statement against Mr. Liotti’s is that Mr. Liotti’s case had not gone to trial on February 20, 2007, or that the trial commenced, but was aborted: Mr. Liotti swore in March both that he was engaged in the trial on February 20th and that the case was “scheduled for trial.” Mr. Smith swore in April that Mr. Liotti was “actually engaged in a trial” -- without specifying the date (implying strongly that the date was February 20th), but also, to the contrary, that the case settled and that trial was only a “probability,” impliedly before February 20th, suggesting that perhaps there was no trial as a matter of fact on that date. These lacunae -- the omission of the actual date of the settlement and of Mr. Liotti’s actual schedule on February 20th -- cast substantial doubt on the excuse tendered. One would have expected clarity on this point in papers filed well after the fact, but on the representations made, I am able to conclude, for lack of any clear statement from counsel himself of his precise whereabouts on February 20th, only that it appears undisputed that the trial did not go forward to completion because the case settled. Thus, Mr. Liotti could have called OATH himself or asked someone, even a secretary, from his office to call OATH on the date of the OATH hearing or before that date.

Although not necessary to the holding here, it is noteworthy that publicly available court records posted on the official website of the New York State Unified Court System, copies of which are appended hereto, (E-Courts, electronic minutes); (appearance details in the Uchendu case), show that according to the Clerk’s minutes, the cited case in Nassau County Supreme Court was actually settled five days before the February 20th hearing here, yet counsel asserted on March 15th that he was “actively engaged on trial” in that matter on February 20th before Justice O’Connell in that court. According to the electronic “Appearance Detail,” published as of May 29, 2007, the Nassau case was marked “Settled Before Trial,” on February 15, 2007. There is no court appearance shown after that date -- none for February 20, 2007. The “Case Detail” shows the case “Disposition Date” as “2/15/07.” If this information is reliable, the sworn March 15th representations about conflicting legal work are at best misleading, and, if there was indeed no court appearance required in the Uchendu case on February 20th, and if all counsel in that case knew this as of February 15th, deliberately so. I do not find these representations to have been cured by the reply affirmation because that affirmation of April 17th obfuscates further the true whereabouts of Mr. Liotti on February 20, 2007.

Most significantly, even if one were to accept the notion that Mr. Liotti and all of his associates or support staff were so pressed that day that they could not manage to spare a few minutes to take a break from settlement negotiations (if indeed the case had not settled before February 20th, a point which is curiously left unclear in the moving and reply papers) or from legal drafting to place a phone call to the tribunal on February 20th, the date of the scheduled hearing here, a proposition that is unsupported by their own papers, the motion papers utterly fail to address the fact that counsel never called to seek an adjournment in advance of the hearing date. Nothing is offered to show that they were prevented from following the adjournment rules here, which are not practically different from the adjournment rules of the courts generally -- it is well understood that adjournments are to be sought before the date of the hearing and that such applications are late if left to the hearing date itself. There was no indication that counsel lacked notice of the hearing date (the record is to the contrary, as it shows both written, mailed notice and telephonic notice from the Department), no indication of why respondent himself failed to appear here on February 20th, and no indication as to why counsel made no effort to contact this tribunal or opposing counsel between February 6, 2007, when the Department served both the Law Offices of Thomas F. Liotti and Mr. Martino with notice of the OATH hearing (Pet. Ex. 5), and April 3, 2007, when Mr. Liotti’s office served the motion to vacate the default.

Counsel’s assertions in the April 19th and 20th letters that the tribunal was biased in favor of the police were frivolous. Mr. Smith complained that the April 18th decision cited or “was a mirror image of Mr. Berman’s opposition to our motion,” but in fact, the decision also cited to the moving papers as well. Mr. Smith added that “there is also at least the appearance of impropriety with respect to Your Honor’s decision, due to its close resemblance to Mr. Berman’s opposition” and because a reply -- which was not permitted by the rules of this tribunal and which arrived post-decision -- was not considered on the original motion (Smith letter of April 20, 2007). In essence, counsel’s assertion about citing motion papers approximates the absurd notion that any ruling is biased against the losing party if it mentions the opposing legal papers or accepts an argument of a party. Where no compromise is possible there will always be a prevailing party and a losing party. As for the unauthorized reply, I ruled initially on a motion that was fully submitted. No additional papers were expected. Moreover, I have now permitted additional submissions by respondent’s counsel, in the interests of justice and to ensure that the record is complete. I have considered all submissions by both sides, including respondent’s reply and an administrative decision of the Department of Motor Vehicles (“DMV”), issued two full months after the hearing that was scheduled in this matter on an expedited basis pursuant to federal court mandate.[2]

Equally without merit were the ad hominem attacks on the Department’s counsel for not rescheduling the hearing automatically, even though respondent’s counsel failed even to request an adjournment, which is required by section 1-32(b) of our rules to be sought without delay, and were silent for a month and a half after the scheduled hearing before filing the motion to vacate. That motion was required to be filed “as promptly as possible” under OATH rules, section 1-45. On respondent’s theory, respondent was entitled to an adjournment and petitioner’s counsel had some sort of duty to consent to an adjournment that respondent’s counsel never even deigned to request or explain as warranted, because the proceedings in this forum were “simple,” “perfunctory and ministerial,” as if automatic adjournments for failure to appear were the “norm” (Smith Aff. ¶¶ (6-7, 13) (“a simple adjournment would have sufficed”). That has never been the standard of legal practice in this tribunal. Even if counsel were ignorant of our rules, it is not reasonable to assume that the norm is to fail to inform adversaries and judicial officers of a non-appearance ahead of time, if only as a courtesy because others clearly would be wasting their time and resources waiting for respondent and his counsel. Ignorance is not an excuse here.[3] The notion that the tribunal functions as respondent suggests is at odds with the rules of this tribunal, which provide that adjournments “shall be granted only for good cause” and that consent of the parties is not sufficient; adjournment applications are to be decided by the administrative law judge and “[d]elay in seeking an adjournment shall militate against grant of the request.” 48 RCNY § 1-32(b). The duty was on respondent to request a timely adjournment, not on petitioner’s counsel to save the opponent from his own failure to appear, despite both written and telephonic notice from petitioner’s counsel of the impending hearing. Thus, the vituperation in the application for reconsideration, directed as it was at all actors in this matter

other than the movant and his counsel, was a transparent effort to deflect attention from or mask the fact the it was respondent’s counsel who were in the wrong and had no excuse for missing the hearing, who defied or were ignorant of the applicable rules of procedure, and who failed to protect their client’s rights. Respondent’s counsel offered no excuse for failing to extend the courtesy of a phone call and seek an adjournment before or on the hearing date. Rather, they chose to make no application and never even claimed that it was law office failure that led them to default. They proceeded on the indefensible presumption that they were simply entitled to a rescheduled hearing date, whether or not they adhered to well-established conventions, considered the courtesies normally extended among attorneys and tribunals when scheduling cases, or followed the applicable rules of procedure. In short, there was no reasonable excuse for missing the hearing.

With respect to the merits, Mr. Smith wrote a letter on April 24, 2007, in response to my scheduling directive, indicating that he had written to DMV to request a copy of its decision and would supply it as soon as he received it. Having heard nothing further for a week, I emailed counsel on May 1, 2007, asking that Mr. Smith let me know by May 2nd the status of the request for the decision because “the matter here is governed by federal court rulings in the Krimstock litigation and proceedings here must be expedited under Krimstock.” Mr. Smith replied via telecopied letter on May 1st that he had made further inquiry and was informed that he must file a Freedom of Information Law request form in order to obtain a copy of the DMV findings. He stated that he had filed the request form and would forward the decision immediately upon receiving it. The Department opposed the reconsideration application and filed a Response to Respondent’s Motion for Reconsideration on April 24, 2007.

On May 7, 2007, Mr. Smith faxed a copy of the one-page, summary form decision of DMV Administrative Law Judge Marc Berger. The form, entitled “Findings and Disposition,” shows only a one line disposition: “Close case. Refusal was not established.” Significantly, the space for appearances shows that Mr. Martino appeared with Mr. Smith at DMV on April 20, 2007, for a hearing, but that the appearance entry for the “Police Officer” is blank. It is not clear from the face of the disposition that it was the result of a “full hearing.” In arguing for reconsideration, Mr. Smith recognized in his April 20th letter the difference between a default finding and a decision on the merits, but supplied no specific information as to whether the DMV ruling was itself in fact based upon a default. I had requested the answer to a number of questions about the nature and extent of the DMV proceedings in my email of May 1st, but those questions were never answered. The DMV ruling provided no elaboration of any rationale for the decision, which was issued in the absence of any police officer, except that the Department did not appear and, in the absence of any prosecution, the refusal was not proved. It is not clear that this was a substantive, as opposed to a procedural victory.

I find that the announced victory as to refusal does not by itself set up a meritorious defense to the pending misdemeanor charges here: driving while intoxicated (Vehicle and Traffic Law § 1192(3) (Lexis 2007) and aggravated unlicensed operation of a motor vehicle in the third degree (Vehicle and Traffic Law § 511(1)(a) (Pet. Ex. 3). See Vehicle and Traffic Law §§ 511(1)(b); 1193(1)(b) (misdemeanor provisions). The arrest and complaint reports indicate that the arresting officer reported on the date of the arrest that he observed respondent driving his Mercedes the wrong way on a one-way street. The officer stated that respondent had a strong odor of alcohol on his breath, “could not stand up on his own two feet,” was very combative, and refused to take the breathalyzer test (Pet. Exs. 1-3). The misdemeanor charges are the operative charges for purposes of the retention hearing -- the Department would have to show that respondent used the Mercedes as the instrumentality of a “crime” in order to retain and ultimately win forfeiture of the vehicle in a separate forfeiture hearing in Supreme Court under Ad. Code 14-140. Respondent was not arraigned on the refusal charge (Pet. Ex. 3), which, in any event, is only an infraction under Vehicle and Traffic Law section 1194(1)(b). See 15 NYCRR § 121.5(p) (Lexis 2007) (“Traffic infraction shall mean any traffic violation below the grade of misdemeanor. For the purposes of these regulations, traffic infraction shall not include . . . a violation of paragraph (b) of subdivision one of section 1194 of [the Vehicle and Traffic] Law . . . . A traffic infraction is not a criminal offense.”); Vehicle and Traffic Law § 155 (a traffic infraction is a violation of the law that is not declared to be a misdemeanor or a felony; “A traffic infraction is not a crime . . . . ”); People v. Smith, 21 A.D.3d 587, 800 N.Y.S.2d 636 (3d Dep’t), leave to appeal denied, 5 N.Y.3d 833, 804 N.Y.S.2d 47 (2005) (refusal of a breath test is an infraction). Refusal of a breath test, by itself, does not go to the alleged use of the vehicle as the instrumentality of a “crime.” A “crime” is defined in the Penal Law as “a misdemeanor or a felony.” See Penal Law § 10.00(6).

Even if the DMV disposition were to be given some sort of estoppel effect (and there is no indication in respondent’s submission as to whether the Police Department had a full and fair opportunity to litigate the refusal hearing),[4] the ruling does not squarely address the misdemeanor charges of driving while intoxicated and aggravated unlicensed operation of a motor vehicle, except possibly on the question of whether a negative inference should or should not be taken against respondent if the Department attempted to show that he refused a breath test. See Police Dep’t v. Lester, OATH Index No. 1049/06, mem. dec. (Jan. 10, 2006) (inference taken but not necessary to finding Department proved second prong of Krimstock); Police Dep’t v. Shim, OATH Index No. 145/06, mem. dec. (Aug. 5, 2005) (inference not taken because of lapse of time, but strong indicia of intoxication sustained the first prong of Krimstock). As the cited cases indicate, the decision whether to take such an inference or to decline to take it is not necessarily dispositive, depending on the other evidence to be presented in the case. Here, the Department relied on documentary evidence of indicia of intoxication supporting the first two prongs of the Krimstock Order (probable cause for arrest and likelihood of success in a forfeiture action), independent of refusal of a breath test -- the contemporaneous, recorded observation by the arresting officer that respondent drove the wrong way on a one-way street, could not stand on his own feet, was combative and smelled strongly of alcohol. Even if the refusal allegation were eliminated from the case, respondent would still have to defend against the other indicia of intoxication alleged by the arresting officer.

Under the Vehicle and Traffic Law, the DMV hearings concerning refusal to take a breath test cover four issues. A finding in the negative on any one of those issues results in the immediate termination of the suspension of the driver’s license:

1) did the police officer have reasonable grounds to believe that such person had been driving in violation of any subdivision of section eleven hundred ninety-two of this article; (2) did the police officer make a lawful arrest of such person; (3) was such person given sufficient warning, in clear or unequivocal language, prior to such refusal that such refusal to submit to such chemical test or any portion thereof, would result in the immediate suspension and subsequent revocation of such person’s license or operating privilege whether or not such person is found guilty of the charge for which the arrest was made; and (4) did such person refuse to submit to such chemical test or any portion thereof. If, after such hearing, the hearing officer, acting on behalf of the commissioner, finds on any one of said issues in the negative, the hearing officer shall immediately terminate any suspension arising from such refusal. If, after such hearing, the hearing officer, acting on behalf of the commissioner finds all of the issues in the affirmative, such officer shall immediately revoke the license or permit to drive or any non-resident operating privilege in accordance with the provisions of paragraph (d) of this subdivision.

Vehicle & Traffic Law § 1194(2)(c).

Administrative Law Judge Berger did not reach the reasonableness of the stop or the lawfulness of the arrest, which would have been highly relevant to this proceeding, and there apparently was no contest as to the refusal issue. For all of the foregoing reasons, the belated administrative decision of the DMV, coming two months after the expedited Krimstock hearing was scheduled, does not show a likelihood of success on the merits of a civil forfeiture action, does not set up a meritorious defense to the charges, and seems, in the absence of any explanation from respondent or DMV of the actual process underlying that disposition, to be the product of a default proceeding.

Nor do the reply papers articulate specific facts constituting respondent’s defense to the misdemeanor charges, but rather append his attorney’s affirmation in the criminal matter in connection with a motion to dismiss the criminal charges. Again, as on the original motion, the reply papers simply show that respondent is generally denying the charges through counsel in the Criminal Court in Queens, and promises to present “a vigorous defense” to the underlying charges in Criminal Court (Smith Aff. ¶ 10). But there is no factually substantial affidavit or documentation from any witness, and while respondent’s Omnibus Motion in Criminal Court shows that he is generally denying through counsel that he was drunk and that his license was suspended, and is challenging the legality of the stop and arrest, these legal challenges by counsel do not amount to a factually substantial showing beyond a set of generic denials. Even assuming the Criminal Court motion amplifies the original motion somewhat, the showing with respect to merits remains insufficient to warrant the vacatur of the default, and the motion is defeated by the complete failure to meet prong one -- the complete absence of a valid excuse for missing the hearing. While we have sometimes given consideration, in the interests of justice, to pro se litigants, and granted motions to vacate defaults in such cases, see, e.g., Police Dep’t v. Butler, OATH Index No. 812/07, mem. dec. (Dec. 22, 2006) (pro se respondent missed hearing because he was in a mandated addiction counseling session and failed to state his defense in his letter), respondent here is represented by counsel and has failed to make the showings required to vacate the default. The standards for granting a motion to vacate a default would become utterly meaningless if the first prong could be completely ignored where, as here, the litigant is represented by counsel, there is no excuse offered for missing the hearing, and the showing as to merits is insufficient.

Respondent’s Omnibus Motion does not demonstrate a viable defense for another reason. Significantly, the Court of Appeals has held that “the outcome of the underlying criminal charges is irrelevant to the outcome of the civil forfeiture proceeding. . . . Because of the differing degree of proof, even acquittal would not necessarily prevent a subsequent forfeiture action under the [Administrative] Code’s provisions.” Property Clerk, New York City Police Dep’t v. Ferris, 77 N.Y.2d 428, 430-31, 568 N.Y.S.2d 577, 579 (1991) (citations omitted).

Respondent’s reply papers do not specifically address the third prong of Krimstock, the necessity to retain the vehicle against loss, sale or destruction and the risk to the public safety if the vehicle were to be released. Police Dep’t v. Goldstein, OATH Index No. 1725/07 (Apr. 2, 2007).5

In sum, the motion must be denied for failure to meet the two-pronged test for relief from default. Respondent did not even claim “law office failure,” which has sometimes excused default where the excuse was found reasonable. But that defense requires a detailed explanation of the oversights. Here, respondent’s counsel do not admit error in failing to conduct the hearing; rather, they argue, in essence, that they chose not to appear or call the tribunal to seek an adjournment because of other work to which they claimed to have given priority on the day of the hearing. But the trial work upon which they relied is now revealed to have been an illusion. There was no other conflicting trial. There was no explanation here for failure to call and try to reschedule the hearing. “A party seeking to vacate a default judgment must establish both a reasonable excuse for the default and a meritorious defense.” Escobar v. Koeppel Volkswagen, Inc. Used Cars, 10 Misc. 3d 127A, 809 N.Y.S.2d 481 (2d Dep’t 2005) (delay in seeking to set aside default weighed against motion) (emphasis supplied); Facsimile Communications Industries, Inc. v. NYU Hospital Center, 28 A.D.3d 391, 812 N.Y.S.2d 869 (1st Dep’t 2006) (alleged law office failures did not satisfactorily account for prolonged failure to answer; no meritorious defense was made out by conclusionary assertions that defendant owed a significantly lower sum to plaintiff). Under the reasoning of Escobar, even a confession of neglect is insufficient. Here, there was no confession of anything and no detail given of the reasons for the failure even to offer any valid, good faith excuse for missing the hearing. Respondent’s failure to make a specific, factually substantial showing of any reasonable excuse requires denial of the motion. See, e.g., Moonstone Judge, LLC v. Shainwald, 38 A.D.3d 215, 831 N.Y.S.2d 62 (1st Dep’t 2007); Chiarello v. Alessandro, 38 A.D.3d 823, 832 N.Y.S.2d 634 (2d Dep’t 2007); Schneider v. Grubart, 143 A.D.2d 182, 531 N.Y.S.2d 630 (2d Dep’t 1988).

After full consideration and reconsideration of the complete record before me, including all motion papers, I find the motion here to be without merit. “The failure to make contact [with the tribunal] renders the absence from the scheduled hearing unreasonable.” Human Resources Admin. v. Jones, OATH Index Nos. 1517/02 and 1798/02, at 4-5 (Oct. 2, 2002) (respondent made no claim that she was unaware of hearing date and time or that she was unable to call OATH to notify the tribunal that she could not timely appear and should have made arrangements to attend the hearing in the days prior to the scheduled hearing; counsel had an obligation to inform the court that he could not timely appear).

ORDER

For the foregoing reasons, the motion to vacate the default is denied after full reconsideration.

Joan R. Salzman

Administrative Law Judge

May 31, 2007

APPEARANCES:

NEIL C. BERMAN, ESQ.

Attorney for Petitioner

thomas f. liotti, esq.

DRUMMOND C. SMITH, ESQ.

Attorneys for Respondent

-----------------------

[1] My email, the respondent’s motion, and the Department’s response opposing the motion are hereby incorporated into the record of this proceeding, as are all motion papers, letters, emails, reply and opposition papers referred to herein.

[2] In the April 19, 2007 letter from respondent’s attorney, the tribunal is criticized for the “swiftness” of its decision on the motion to vacate and, at the same time, because this litigation is purportedly “causing unnecessary delay and further expense” for respondent. It cannot be both ways.

[3] See 48 RCNY § 1-13(c) (Lexis 2007) (“Attorneys and other representatives appearing before OATH shall be familiar with the rules of this title”).

[4] Justice Martin Shulman of the Supreme Court, New York County ruled recently that OATH decisions, in Krimstock cases, do not have collateral estoppel effect in Supreme Court. See Property Clerk v. Dunn, Index No. 403779/06, Slip Op., at 3-4 (Feb. 20, 2007) (“the outcome of the OATH hearing is not dispositive of issues in this forfeiture proceeding”). According to the Krimstock Order, OATH hearings are not full-blown evidentiary hearings. It is not clear from the submissions that the DMV hearing in this case was a full hearing either.

5 The Department suggests that respondent’s counsel’s references to the proceedings here as forfeiture proceedings reflect a misunderstanding of the nature of the hearings at OATH. In fact, they are speedy, post-seizure, interim retention hearings as to whether vehicles should be retained pendente lite, pending the outcome of a full civil forfeiture action. Krimstock Order. Respondent made no effort to protect his right to a speedy Krimstock retention hearing. But all is not lost. Respondent has not lost all rights to a hearing with respect to forfeiture and retains the opportunity to oppose any civil forfeiture action the Department may institute or may already have commenced in Supreme Court.

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download