Prop. Clerk v. Nurse

185 A.D.3d 459

127 N.Y.S.3d 467

PROPERTY CLERK, New York City Police Department, Plaintiff–Appellant,

v.Anthony NURSE, Defendant–Respondent.

11798

Index 450320/18

Supreme Court, Appellate Division, First Department, New York.

ENTERED: JULY 9, 2020

Zachary W. Carter, Corporation Counsel, New York (Tahirih M. Sadrieh of counsel), for appellant.

Friedman, J.P., Renwick, Gische, Mazzarelli, Moulton, JJ.

Order, Supreme Court, New York County (Martin Shulman, J.), entered July 13, 2018, which denied plaintiff's motion for summary judgment on his civil forfeiture action and sua sponte dismissed the complaint, unanimously modified, on the law, to vacate the dismissal, and otherwise affirmed, without costs, and the matter is remanded for further proceedings in accordance herewith.

Defendant was arrested and his vehicle impounded following a traffic stop in which an unlicensed firearm was found beneath the driver's seat of the vehicle. Defendant subsequently pleaded guilty to criminal possession of a firearm, and was sentenced to five years of probation. Some time before this civil forfeiture action was commenced, defendant challenged NYPD's continued possession of his vehicle, and NYPD brought an administrative proceeding, pursuant to Krimstock v. Kelly, 306 F.3d 40 [2d Cir.2002], cert. denied 539 U.S. 969, 123 S.Ct. 2640, 156 L.Ed.2d 675 [2003], to determine whether it had the right to retain defendant's vehicle pending the outcome of the anticipated civil forfeiture action. The hearing resulted in a finding that NYPD had established probable cause for the arrest and a likelihood that it would prevail in a civil forfeiture action, but had not established that continued impoundment was necessary to address a heightened public safety risk.

Contrary to the motion court's ruling, the determination made at the Krimstock hearing that the defendant's retention of his vehicle pending determination of a forfeiture action does not pose a heightened risk to public safety does not preclude this action (see generally Buechel v. Bain, 97 N.Y.2d 295, 303, 740 N.Y.S.2d 252, 766 N.E.2d 914 [2001], cert denied 535 U.S. 1096, 122 S.Ct. 2293, 152 L.Ed.2d 1051 [2002] ). The issue in this action is whether the vehicle is actually subject to forfeiture under Administrative Code § 14–140, i.e., whether defendant used it as a means of committing the crime of criminal possession of a firearm ( Matter of Property Clerk of N.Y. City Police Dept. v. Ferris, 77 N.Y.2d 428, 430–431, 568 N.Y.S.2d 577, 570 N.E.2d 225 [1991] ). Accordingly, the action should not have been dismissed. However, we affirm the denial of plaintiff's motion for summary judgment.

Plaintiff established by a preponderance of the evidence that defendant, the registered and titled owner of the vehicle, who pleaded guilty to criminal possession of a firearm, used the vehicle as a means of committing the crime of criminal possession of a firearm (see Ferris, 77 N.Y.2d at 430, 568 N.Y.S.2d 577, 570 N.E.2d 225 ; Property Clerk, N.Y. City Police Dept. v. Miranda, 2010 N.Y. Slip Op. 32496(U), *4–5, 2010 WL 3626986 [Sup. Ct., N.Y. County 2010] ; Property Clerk, N.Y. City Police Dept. v. Bongiovanni, 2013 N.Y. Slip Op....