The opinion of the court was delivered by: CADEN
McLAUGHLIN, District Judge
It appearing that no objections have been filed, the attached Report and Recommendation of United States Magistrate John L. Caden is hereby adopted as the Opinion of the Court. Accordingly, the government's motion for summary judgment is granted.
JOSEPH M. McLAUGHLIN, U.S.D.J.
REPORT AND RECOMMENDATION
The United States commenced this action on January 8, 1979, pursuant to 21 U.S.C. § 881(a)(4) and 49 U.S.C.A. § 782, seeking forfeiture of one 1978 Chrysler LeBaron station wagon, owned by Ring-A-Round The Collar Laundermat, Inc., the sole claimant. It is undisputed that the defendant vehicle was used to facilitate the transportation, sale, receipt, possession or concealment of cocaine by criminal defendants who have been convicted of both conspiracy to possess with intent to distribute cocaine (21 U.S.C. §§ 841(a)(1), 846) and possession with the intent to distribute cocaine (18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1). See, United States v. Robert Masucci and Robert Delligatte, 78 CR 553.
Plaintiff submitted a motion for summary judgment to the Honorable Joseph M. mcLaughlin which was denied in a memorandum and order dated November 28, 1981, on the grounds that there were genuine issues of material fact to be resolved regarding the lawfulness of the possession and acquisition of the defendant vehicle by Robert Masucci on the night of the illegal narcotics transaction. See United States v. One 1978 Chrysler LeBaron Station Wagon, 531 F. Supp. 32 (E.D.N.Y. 1981).
Subsequent to the aforementioned order, Ralph Masucci, President of claimant, was deposed on June 9, 1982. Plaintiff now renews its motion for summary judgment, based on the deposition testimony of Ralph Masucci, and requests that a final order granting forfeiture be issued.
The deposition testimony reveals the following. Claimant, Ring-A-Round The Collar Laundermat, Inc., is a corporation which was organized on June 24, 1975, as a small business corporation engaged in the business of laundering clothes. Ralph Masucci is President of claimant and owns 90% of its stock. Robert Masucci is the son of Ralph Masucci. At the time of claimant's incorporation, Robert was issued 5% of claimant's stock and was designated the Secretary and a Director of Claimant. Robert was also employed from the outset of claimant's incorporation as Manager. However, in his deposition testimony, Ralph Masucci insisted that Robert really had just "a token job" and that his title of Manager was meaningless because Ralph actually managed the business. (Deposition Transcript of Ralph Masucci at 18, dated June 19, 1982).
The defendant vehicle was bought in June 1978 to be used primarily for the pickup and delivery of laundry. However, Ralph admitted that he sometimes used it for shopping. Claimant's store hours were from 8:00 a.m. to 7:00 p.m. six to seven days a week but there were no specific times for pickups or deliveries (Tr. at 20, 24-25).
There were three sets of keys to defendant vehicle. One set was kept by Ralph, one set was left at the laundromat, and one set was kept hidden in the defendant vehicle. According to Ralph, Robert had permission to use the vehicle only for business reasons - "primarily to pick up laundry." There were no written restrictions regarding Robert's use of ...