produce any evidence by way of documents, testimony or affidavits to support his claim that the property was not used as alleged at trial and in the government's affidavits, no issue of fact exists and the government is entitled to judgment as a matter of law under Rule 56. Therefore, claimant Tapia-Ortiz has not set forth a cognizable claim to the property and the government's motion for summary judgment must be granted.
B. Claimant Maria Mendez
Maria Mendez asserts that she has a legal interest in the defendant premises that is not subject to forfeiture. Mendez claims that she has an interest in the property and/or the income from such property by virtue of her live-in relationship with Tapia-Ortiz at the defendant property that produced four children. Ans. at PP 16-24. In order "to establish standing in a civil forfeiture action, the claimant must demonstrate a possessory or ownership interest in the subject property." United States v. One 1982 Porsche 928, 732 F. Supp. 447, 451 (S.D.N.Y. 1990). This showing requires more than mere possession. Instead, the claimant must demonstrate "a domination or supremacy of authority over the property in question." Mercado v. United States Customs Service, 873 F.2d 641, 644 (2d Cir. 1989).
Mendez lacks any cognizable ownership or possessory interest in the defendant property. Mendez may not claim any personal interest in the defendant property merely from her longstanding consensual occupation of the premises. Under New York law, no property interest arises from the mere possession and occupation of property. Morillo v. City of New York, 178 A.D.2d 7, 582 N.Y.S.2d 387, 390 (App. Div.), appeal dismissed, 79 N.Y.2d 1039, 584 N.Y.S.2d 448, 594 N.E.2d 942 (1992). Indeed, the bulk of Mendez's claim to the defendant property rests upon rights derived from Tapia-Ortiz's ownership of the property. Although Mendez's occupancy of the building may be sufficient to confer standing upon her to contest the forfeiture, see Mercado, 873 F.2d at 645, the substantive rights she claims in the property derived from Tapia-Ortiz's ownership interest are no better than Tapia-Ortiz's interest in the property. See United States v. 1977 Porsche Carrera, 946 F.2d 30, 34-35 (5th Cir. 1991); United States v. $ 468,200.00 in U.S. Currency, 687 F. Supp. 317, 318 (E.D. Mich. 1988). Since neither Mendez nor Tapia-Ortiz have interposed any affidavits to contest the transaction of narcotics at the defendant property, Mendez's rights in the property, if any, must be forfeited concomitantly with the interests of Tapia-Ortiz.
Moreover, even if Mendez had any cognizable interest in the property independent of Tapia-Ortiz, that interest is also properly forfeited because Mendez has not pled sufficient facts to avoid forfeiture. Once the government establishes probable cause for forfeiture, the burden shifts to the claimants to plead and prove that the property was used lawfully or that the unlawful use occurred without the claimant's knowledge. Daccarett, 6 F.3d at 56. Mendez has made no claim nor adduced any proof that she had no knowledge of the drug activity occurring at the defendant property.
Therefore, judgment in favor of the government in this matter would be proper on this ground alone. See United States v. Two Acres of Land, 789 F. Supp. 220, 224 (S.D. Miss. 1992).
C. Claimant James Poirier
James Poirier asserts an interest in the defendant property by virtue of a $ 40,000.00 mortgage executed by Tapia-Ortiz on January 10, 1992 and recorded with the Clerk of King's County on March 27, 1992. However, the government has introduced evidence, which Poirier does not dispute, that notices of pendency were filed with the clerk's office on the defendant property on December 13, 1991 and again on March 4, 1992. Decl. of Allan Payne, Ex. K. Under New York law, Poirier's mortgage, entered into and recorded after the notices of pendency were filed, is subordinate to the interests of the government in the defendant property. See Tubbs v. Hendrickson, 88 Misc. 2d 917, 390 N.Y.S.2d 791, 793 (Sup. Ct. 1976). Where the government has superior title to the property and premises, the subordinate interests are worthless. 1977 Porsche, 946 F.2d at 35. Therefore, Poirier's claim has no merit and the government's motion for summary judgment must be granted.
The government has amply met its burden of proving probable cause to believe that the defendant premises bears a substantial connection to Tapia-Ortiz's drug activities. None of the parties who have filed a notice of claim in this proceeding have met their burden of proving an interest in the property notwithstanding the drug activities that occurred at the premises.
Therefore, the government's motion for summary judgment must be granted.
Thomas C. Platt
Chief Judge, U.S.D.C.
Dated: Uniondale, New York
April 21, 1994