GRINBERG v. SAFIR (1999)

Judgment, Supreme Court, New York County (Michael Stallman, J.), entered May 25, 1999, which, in a proceeding pursuant to CPLR article 78 challenging respondents' seizure of petitioner's automobile after his arrest for driving while intoxicated and challenging the commencement of civil forfeiture proceedings with respect to the seized automobile, denied the petition and dismissed the proceeding, unanimously affirmed, without costs.

 While the forfeiture of petitioner's vehicle would, in a broad sense, be susceptible of characterization as punitive (see, Matter of Attorney-General v. Green 1993 Four Door Chrysler, 217 A.D.2d 342, 345, 636 N.Y.S.2d 868, lv. denied and appeal dismissed 88 N.Y.2d 841, 644 N.Y.S.2d 682, 667 N.E.2d 332), we agree with the article 78 court that, unlike the penalty at issue in People v. Letterlough, 86 N.Y.2d 259, 631 N.Y.S.2d 105, 655 N.E.2d 146, which was the product of judicial improvisation untethered to any legislative grant of punitive power (id., at 269, 631 N.Y.S.2d 105, 655 N.E.2d 146), respondents' prerogative to seek forfeiture under the circumstances at bar is authorized by legislative enactment, namely New York City Administrative Code of NY § 14-140 (see also 38 RCNY 12-36), and accordingly constitutes no affront to the separation of powers doctrine.   Nor do we perceive any issue as to the validity of that Administrative Code provision.   Even if petitioner had properly preserved his argument that Administrative § 14-140 is preempted by the State Vehicle and Traffic Law, we would find that argument to be without merit since there is no evidence that the State enactment was intended to preclude the municipal civil forfeiture law (see, Matter of Levy v. City Commn. on Human Rights, 85 N.Y.2d 740, 746, 628 N.Y.S.2d 245, 651 N.E.2d 1264), and no evidence of a comprehensive effort by the State Legislature to regulate the field in question (see, Vatore v. Commr. of Consumer Affairs, 83 N.Y.2d 645, 649-650, 612 N.Y.S.2d 357, 634 N.E.2d 958).   We also agree with the article 78 court that the penalty faced by petitioner would not, if shown to be warranted under Administrative Code § 14-140, constitute an excessive fine (see, U.S. Const, 8 th Amend), since, in that event, forfeiture would not “notably exceed[ ] in amount that which is reasonable, usual, proper or just” (People v. Saffore, 18 N.Y.2d 101, 104, 271 N.Y.S.2d 972, 218 N.E.2d 686).   Finally, given the circumstances ordinarily attending the seizure of a vehicle operated by an intoxicated driver, Federal due process principles are not offended by the lack of pre-seizure notice or hearing (see, Calero-Toledo v. Pearson Yacht Leasing, Co., 416 U.S. 663, 676-680, 94 S.Ct. 2080, 40 L.Ed.2d 452;  United States v. One 1976 Mercedes, 5th Cir., 667 F.2d 1171, 1175).

We have considered petitioner's remaining arguments and find them unavailing.

MEMORANDUM DECISION.