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Cohen v. a 1999 Pontiac

Supreme Court of New York, Suffolk

October 24, 2013

Dennis M. COHEN, Acting County Attorney for the County of Suffolk, Plaintiff(s),
v.
a 1999 PONTIAC, VIN NO. 1G2WJ52M1XF237001, Katherine Roca, Defendant(s).

[976 N.Y.S.2d 783] Dennis Cohen, Suffolk County Attorney, Hauppauge, for Plaintiff.

Katherine Roca, Stony Brook, Defendant Pro Se.

PETER H. MAYER, J.

Upon the reading and filing of the following papers in this matter: (1) Notice of Motion by the plaintiff, dated January 19, 2012, and supporting papers; and now

UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is

ORDERED

that, the motion (001) by the petitioner/claiming authority, Dennis M. Cohen, County Attorney for the County of Suffolk (" the County" ), which seeks a default judgment against the noncriminal defendant, Katherine Roca, and forfeiture of Ms. Roca's vehicle pursuant to Suffolk County Code (" SCC" ), Chapter 420 (formerly Ch. 270), is hereby denied for failure to produce clear and convincing evidence that the noncriminal defendant engaged in affirmative acts which aided, abetted or facilitated the conduct of the criminal defendant, as required by SCC § 420-7G; and it is further

ORDERED

that the County shall promptly make the subject vehicle, a 1999 Pontiac, VIN # 1G2WJ52M1XF237001, seized by the County on or about July 17, 2010, available for release to Ms. Roca at the current place of storage, as set forth herein; and it is further

ORDERED

that the County shall promptly serve notice upon Ms. Roca, by personal delivery, or by Certified Mail (return receipt requested) and First Class Mail to her address on file with the New York State Department of Motor Vehicles, that she has the right to take possession of the subject vehicle at the current place of storage (without any charge for towing, maintenance or storage fees), and that in the event of failure to take possession of the vehicle within 60 days after such notice, the vehicle will be subject to forfeiture upon application by order to show cause by the County for an order granting forfeiture on grounds of the noncriminal defendant's failure to take timely possession of the subject vehicle; and it is further

ORDERED

that counsel for the movant shall promptly serve a copy of this Order upon said noncriminal defendant by Certified Mail (return receipt requested) and First Class Mail, and shall thereafter file the affidavit(s) of such service with the Suffolk County Clerk, and annex a copy of such proof of service to any future motions submitted in this matter.

In this civil forfeiture action, the County alleges that on July 17, 2010, non-party Jordan K. Zabinsky was arrested and charged with operating a vehicle while under the influence of alcohol or drugs in violation of VTL § 1192.3. At the time of the arrest, Mr. Zabinsky was operating the vehicle which is the subject of this action, a 1999 Pontiac, VIN # 1G2WJ52M1XF237001, owned by the noncriminal defendant, Katherine Roca. Mr. Zabinsky had previously been convicted of a violation of VTL § 1192.2 on April 13, 2005 and on February 28, 2007. By summons and complaint filed December 28, 2010, the plaintiff seeks a judgment directing forfeiture of Katherine Roca's vehicle and permitting the County to dispose of the vehicle in accordance with the Suffolk County Code. The County now moves for a judgment of default against the noncriminal defendant for the alleged failure to answer the summons and complaint or otherwise appear in this action.

Pursuant to SCC § 420-7E, the County may commence a civil action against a noncriminal defendant to recover property which constitutes the proceeds of an offense, the substituted proceeds of an offense, [976 N.Y.S.2d 784] or the ...


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