another in the property." Meese v. Miller, 79 A.D.2d 237, 436 N.Y.S.2d 496, 500 (4th Dep't 1981).
In Mubarez v. State, 115 Misc. 2d 57, 453 N.Y.S.2d 549, 554 (Ct. Cl. 1982), the court dismissed a conversion claim brought on behalf of a corporation based upon the seizure of $ 2500 by tax agents during a lawfully executed search. In doing so, it noted that the plaintiff's property interest was interfered with for only a short period of time while the agents tried to determine who owned it and that the money was returned within a short period of time. Id.
Likewise, in Gonzalez v. Port Authority of New York and New Jersey, 119 A.D.2d 628, 500 N.Y.S.2d 782 (2d Dep't 1986), the plaintiff was arrested by Port Authority police pursuant to an outstanding warrant for his arrest. At the time, he was carrying over $ 25,000 in cash. The money was vouchered, receipted, and transferred to the City's Property Clerk. The plaintiff was processed by the Police Department and the charges against him eventually dismissed. His suit for conversion was dismissed because the Port Authority had transferred the money to the Property Clerk in good faith, and thus no longer had possession. Id. at 783-84.
Here, however, East Coast challenges the legality of the seizure of its entire inventory. Whether or not the Defendants' conduct in executing the seizure was reasonable is still a question of fact before this Court. See supra. Moreover, the above two cases are readily distinguishable. In Mubarez, the seized money was returned to the plaintiff after a short period of time while in Gonzalez it was lawfully transferred to another government agency. Here, the Defendants retained possession of the fireworks until they destroyed the fireworks. Therefore, the cases do not apply and whether the Police Department had a superior right of possession when the property was destroyed is still a question of fact precluding summary judgment.
East Coast seeks to amend its original complaint to add six new defendants
and to state its First Claim for Relief with more particularity. Rule 15(a) of the Federal Rules of Civil Procedure allows a party to amend its pleading once a responsive pleading has been served only upon leave of court. Nevertheless, "leave shall be freely given when justice so requires."
The Defendants oppose this motion. They argue that the proposed amendments will be futile since all six of the proposed defendants are either immune from liability or not proper parties. See, e.g., Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962); Albany Insurance Co. v. Esses, 831 F.2d 41, 45 (2d Cir. 1987); Department of Economic Development v. Arthur Andersen & Co., 739 F. Supp. 804, 807 (S.D.N.Y. 1990).
The Court is not prepared at this stage to determine whether each of the defendants East Coast seeks to add is entitled to immunity. More than one is alleged to have been involved in directing the Police Department's activities during the day the seizure took place, and the extent of any immunity is not clear. East Coast's motion to amend its pleading may well not be futile and is therefore granted.
For the reasons set forth above, to the extent that East Coast's § 1983 claim seeks relief for an alleged violation of procedural due process, it is dismissed pursuant to Rule 56. East Coast is entitled to pursue its substantive due process claim based upon the execution of the search warrant and the seizure of the fireworks. Any claim for punitive damages against the City is also dismissed pursuant to Rule 12. The Police Department and the Property Clerk are not suable entities and Officer Vazquez is entitled to qualified immunity, so the claims against them are dismissed. The Defendants' remaining motions are denied.
East Coast's motion to amend its complaint is granted.
It is so ordered.
New York, N. Y.
January 2, 1992
ROBERT W. SWEET