County of Nassau, respondent, v. Cynthia A. Urban, appellant, et al., defendant.

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Supreme Court, Appellate Division, Second Department, New York.

County of Nassau, respondent, v. Cynthia A. Urban, appellant, et al., defendant.

2017–05354

Decided: July 24, 2019

JOHN M. LEVENTHAL, J.P. JEFFREY A. COHEN SYLVIA O. HINDS–RADIX VALERIE BRATHWAITE NELSON, JJ. Phillips, Artura & Cox, Lindenhurst, N.Y. (Wayne J. Donovan of counsel), for appellant.

Submitted—February 19, 2019

DECISION & ORDER

In a civil forfeiture action pursuant to Nassau County Administrative Code § 8–7.0(g), the defendant Cynthia A. Urban appeals from an order of the Supreme Court, Nassau County (Norman Janowitz, J.), entered April 6, 2017.  The order, in effect, denied that defendant's motion pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against her, and granted the plaintiff's cross motion for summary judgment awarding civil forfeiture of the subject vehicle.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting the plaintiff's cross motion for summary judgment awarding civil forfeiture of the vehicle, and by deleting the second, third, fourth, fifth, and sixth decretal paragraphs of the order, and substituting therefor a provision denying the cross motion;  as so modified, the order is affirmed, without costs or disbursements.

The defendant Cynthia A. Urban (hereinafter the defendant) was arrested in Nassau County for driving while intoxicated.  At the time of her arrest, the defendant was given a “Notice of Vehicle Seizure and Notice of Retention Hearing” (hereinafter the notice of seizure), which notified her that the vehicle she was driving was subject to civil forfeiture and that a hearing on that issue would be held on a specified date.

The plaintiff, the County of Nassau, subsequently commenced this action pursuant to Nassau County Administrative Code § 8–7.0(g) to obtain civil forfeiture of the vehicle the defendant was driving at the time of her arrest.  Thereafter, the defendant served a verified answer which asserted, as an affirmative defense, that the complaint failed to state a cause of action.

By notice of motion dated October 3, 2016, the defendant moved pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against her for failure to state a cause of action, asserting that she had not been convicted of a violation of Vehicle and Traffic Law § 1192, and that she never received a copy of the notice of seizure by certified mail, return receipt requested.  The following day, October 4, 2016, the defendant pleaded guilty to a violation of Vehicle and Traffic Law § 1192.  The plaintiff subsequently cross-moved for summary judgment awarding civil forfeiture of the vehicle.  The Supreme Court denied the motion and granted the cross motion, and the defendant appeals.

Contrary to the defendant's contentions, the complaint, as amplified by the plaintiff's submissions establishing that the defendant pleaded guilty to a violation of Vehicle and Traffic Law § 1192, stated a cause of action for civil forfeiture of the vehicle pursuant to Nassau County Administrative Code § 8–7.0(g)(4) (see Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 635–636).  Accordingly, we agree with the Supreme Court's denial of the defendant's motion pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against her.  However, in opposition to the plaintiff's showing of its prima facie entitlement to judgment as a matter of law, the defendant raised a triable issue of fact by adducing evidence demonstrating that, while she was given a copy of the notice of seizure in person, the plaintiff failed to comply with the requirement of Nassau County Administrative Code § 8–7.0(g)(4)(a) that she also be served with the notice of seizure by certified mail, return receipt requested (see County of Nassau v. Fuentes, 64 AD3d 626).  Accordingly, the court should have denied the plaintiff's cross motion for summary judgment awarding civil forfeiture of the vehicle.

LEVENTHAL, J.P., COHEN, HINDS–RADIX and BRATHWAITE NELSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court