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LEYH v. PROPERTY CLERK OF CITY OF N.Y. POL. DEPT.

October 1, 1991

EVELYN LEYH, PLAINTIFF,
v.
PROPERTY CLERK OF THE CITY OF NEW YORK POLICE DEPARTMENT AND CITY OF NEW YORK POLICE DEPARTMENT, DEFENDANTS.



The opinion of the court was delivered by: Glasser, District Judge:

MEMORANDUM AND ORDER

Plaintiff Evelyn Leyh brought this action to recover from the defendants an automobile that was seized by the New York City Police Department and that subsequently became the subject of state forfeiture proceedings. Defendants have moved for summary judgment, and plaintiff has filed a cross-motion for summary judgment. For the reasons stated below, the motion of the defendants is granted.

FACTS

The material facts of this action are not in dispute. Plaintiff Evelyn Leyh was arrested by New York City Police Officer Brian Costello on June 9, 1989 for criminal possession of a controlled substance under Section 220.03 of the New York Penal Law. At the time of her arrest, plaintiff was driving a 1989 Chevrolet, which she had recently purchased; Ralph Messinetti, her companion in the automobile, was also arrested by Officer Costello. The police seized plaintiff's car and consigned it to the custody of the Property Clerk of the New York City Police Department ("the Property Clerk"). She was issued a voucher for the automobile; the back of the voucher detailed the procedures for plaintiff to regain possession of the car.

The Queens District Attorney declined to prosecute plaintiff, and she was never formally charged in a criminal complaint. A release issued to her by the District Attorney indicated that her car was not needed for any prosecution. On June 15, 1989, plaintiff made a formal demand for the return of her car, and this demand was refused; on June 21, 1989, the Property Clerk began a forfeiture proceeding in the New York State Supreme Court, New York County, against the plaintiff for her automobile.

Plaintiff thereupon filed this action on September 29, 1989, and she has alleged: (1) that the seizure and detention of her automobile deny her the right to a presumption of innocence and constitute a deprivation of property without due process of law, complaint ¶¶ 25-26; (2) that the forfeiture provision of the New York City Administrative Code ("the Administrative Code") constitutes a bill of attainder, complaint ¶ 26; and (3) that the forfeiture proceedings brought by the Property Clerk constitute malicious prosecution, complaint ¶ 22. Her prayer for relief includes: (1) the return of her automobile; (2) a declaration that the retention of her vehicle is unlawful; (3) an injunction against the defendants' prosecution of the forfeiture proceedings; and (4) damages in the amount of $100,000.00.

On May 16, 1991, the New York State Supreme Court, per Toker, J.S.C., issued a decision in the forfeiture proceedings in favor of plaintiff Leyh. The present motion by the defendants for summary judgment was pending before this decision of the State Supreme Court.

DISCUSSION

Federal Rule of Civil Procedure 56(c) provides, in relevant part, that summary judgment shall be rendered if "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." In the instant matter, there is indeed no dispute as to any of the material facts; each party has alleged a statement of the relevant events underlying this action that does not differ from the statement of facts presented above.*fn1 Hence, the first prerequisite for summary judgment is satisfied here.

So too is the second requirement of Rule 56(c) satisfied: the defendants in this action are entitled to judgment as a matter of law. As a threshold matter, it should be noted that the first three of plaintiff's demands for judgment (declaration that she is entitled to immediate possession of her car; declaration that the defendants' custody and retention of the car is unlawful and improper; and injunction against the defendants' prosecution of the civil forfeiture proceedings in state court) may well have been rendered moot by the decision in the state forfeiture proceedings in favor of the plaintiff. See, e.g., People of State of New York by Abrams v. Seneci, 817 F.2d 1015, 1017 (2d Cir. 1987) ("By granting the Attorney General an order enjoining the defendants at any time in the future from engaging in fraudulent practices, the Supreme Court of New York has given the Attorney General all of the injunctive relief requested in the present case. We affirm, therefore, the dismissal of that part of the complaint that seeks injunctive relief on the grounds that it is moot." (emphasis added)). The relief sought by the plaintiff with respect to the return of her vehicle has, apparently, already been granted to her; for this court to inquire into the matter of the ownership of the automobile would be to duplicate the proceedings possibly terminated in the New York State Supreme Court.*fn2

However, despite plaintiff's prayer for relief, this federal action is not for replevin, and her constitutional claims, as well as her malicious prosecution claim, have not been rendered moot by the resolution of the forfeiture matter. Thus, it is proper for this court to rule on her allegations that she has been denied her presumption of innocence and deprived of property without due process of law, that the forfeiture provision of the Administrative Code constitutes a bill of attainder, and that the forfeiture proceedings brought by the Property Clerk constitute malicious prosecution.

1. The Due Process Claim

Although plaintiff does not clearly demarcate it as such, it appears clear that her claim of deprivation of property without due process of law is brought under 42 U.S.C. § 1983. She alleges that the defendants violated her "most basic right to a presumption of innocence by the retention of her motor vehicle without due process of law and without cause or legal justification." Complaint at ¶ 20. Her claim that her right to a presumption of innocence has been violated is opaque at best: She was never charged with the commission of any crime, and she was never tried in any criminal proceeding; furthermore, the judicial proceedings which were brought against her — those of civil forfeiture in the state court — place the burden of proof on the Property Clerk. Property Clerk v. Hyne, 147 Misc.2d 774, 557 N.Y.S.2d 244, 245 (N.Y.Cty. 1990), aff'd, 171 A.D.2d 506, 567 N.Y.S.2d 603 (1st Dept. 1991) ("Property Clerk, and not the claimant . . . bear[s] the burden of proving `by a preponderance of the evidence that the State is legally justified' in retaining the property." (quoting McClendon v. Rosetti, CV-70-3851, unpublished order of Judge Lasker, (S.D.N.Y. July 15, 1974))). It appears that plaintiff equates the retention of her automobile by the defendants during the initiation and the prosecution of the forfeiture action with a criminal proceeding — rather than with a provisional civil remedy. This court has found no case, nor does plaintiff cite any, to support this novel proposition.

Further, to the extent that plaintiff makes out a claim that she has been deprived of property without due process of law independently of her "presumption of innocence" claim, her argument fails as a matter of law. The procedures followed by the Property Clerk in this and in similar forfeiture matters are directly pursuant to an unpublished order issued by Judge Lasker on July 15, 1974. Prior to his order, New York City Administrative Code Section 435-4.0 placed the burden of initiating recovery proceedings, as well as the burden of proof in such proceedings, upon the claimant; the Second Circuit declared those procedures unconstitutional in McClendon v. Rosetti, 460 F.2d 111 (2d Cir. 1972). On remand, Judge Lasker issued an order that sets forth the procedures to be followed by the Property Clerk in such matters: the claimant is to be given a voucher for the retained property; the backside of the voucher must detail the manner by which the claimant may make a demand for the return of the property; such demand must be made within 90 days of either the termination of criminal proceedings against the claimant or within 90 days of a release obtained from the district attorney (whichever is earlier); upon receipt of such a timely demand for return of retained property, the Property Clerk must, within ten days, either return the property or initiate a judicial forfeiture proceeding; and, in the absence of such a timely demand, the Property Clerk may dispose of the property. After Judge Lasker's McClendon order was issued, ...


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