COUNTY OF NASSAU v. ROJAS (2008)

In a civil forfeiture action pursuant to Administrative Code of the County of Nassau § 8-7.0(g)(4), the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Alpert, J.), dated September 5, 2006, as denied that branch of his cross motion which was for summary judgment dismissing the complaint, granted the plaintiff's motion for summary judgment on the complaint, and directed the defendant to surrender possession of the subject vehicle to the plaintiff.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In the early morning hours of July 16, 2004, the defendant was driving along Old Country Road in Nassau County when the police stopped him for several traffic infractions.   After observing the defendant and administering a breathalyzer test, the police arrested him on a charge of driving while intoxicated.   At the time of the arrest, the police legally parked the defendant's car at the scene and transported him to the Nassau County Police Department Central Testing Unit. There, he was provided with a vehicle seizure notice informing him that his vehicle was subject to forfeiture, and requiring him to retain possession of the vehicle until the forfeiture action had concluded.   Subsequently, after the defendant entered a plea of guilty to a reduced charge of driving while ability impaired, the plaintiff, Nassau County, commenced this action pursuant to Nassau County Administrative Code § 8-7.0(g)(4) (hereinafter Code § 8-7.0[g][4] ) against him, seeking forfeiture of his vehicle.   Shortly thereafter, the County moved for summary judgment on the complaint and the defendant cross-moved, inter alia, for summary judgment dismissing the complaint.   The Supreme Court granted the County's motion, denied that branch of the defendant's cross motion which was for summary judgment dismissing the complaint, and directed the defendant to surrender possession of the subject vehicle to the plaintiff.   We affirm.

Contrary to the defendant's contention, Code § 8-7.0(g)(4) does not provide for a civil in rem forfeiture action which would have required the physical seizure of his vehicle.   Rather, it provides for a civil in personam forfeiture action similar in some respects to CPLR 1311.   While characterized as civil (see United States v. One Assortment of 89 Firearms, 465 U.S. 354, 363, 104 S.Ct. 1099, 79 L.Ed.2d 361;  Weinstein-Korn-Miller, N.Y. Civ. Prac. ¶ 1311.02 [2d ed.] ), Code § 8-7.0(g)(4) requires that there be an adjudication of guilt against the driver and affords an “innocent owner” the opportunity to assert an affirmative defense (County of Nassau v. Velasquez, 44 A.D.3d 987, 989, 844 N.Y.S.2d 439;  see Nassau County Administrative Code § 8-7.0(g)(4), (g)(5);  United States v. Bajakajian, 524 U.S. 321, 330, 118 S.Ct. 2028, 141 L.Ed.2d 314;  Holtzman v. Samuel, 130 Misc.2d 976, 978, 495 N.Y.S.2d 583;  cf. Various Items of Personal Property v. United States, 282 U.S. 577, 581, 51 S.Ct. 282, 75 L.Ed. 558;  Ford Motor Credit Co. v. Molomo, 179 A.D.2d 210, 213, 583 N.Y.S.2d 251, affd. 81 N.Y.2d 936, 597 N.Y.S.2d 661, 613 N.E.2d 567).   Moreover, the County proceeds against the defendant personally and not the vehicle (see United States v. Bajakajian, 524 U.S. at 331-332, 118 S.Ct. 2028;  cf. Various Items of Personal Property v. United States, 282 U.S. at 581, 51 S.Ct. 282;  Ford Motor Credit Co. v. Molomo, 179 A.D.2d at 213, 583 N.Y.S.2d 251).   Therefore, since Code § 8-7.0(g)(4) provides for a civil in personam forfeiture action, jurisdiction was not dependent upon the seizure of the defendant's vehicle (see County of Nassau v. Patel, 10 Misc.3d 1052 (A), 2005 WL 3134226;  cf. United States v. One Assortment of 89 Firearms, 465 U.S. at 363, 104 S.Ct. 1099).

The defendant's remaining contentions are without merit.