County of Nassau v Patel

[*1] County of Nassau v Patel 2005 NY Slip Op 51913(U) [10 Misc 3d 1052(A)] Decided on November 14, 2005 Supreme Court, Nassau County Feinman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 14, 2005
Supreme Court, Nassau County

County of Nassau, Plaintiff,

against

Praful Patel and American Honda Finance Corp., Defendants.



15609/04

Thomas Feinman, J.

Upon the foregoing papers, and upon the affirmation in support submitted by the plaintiff, County of Nassau, the motion by defendant, American Honda Finance Corp., (hereinafter referred to as "Honda"), for an order pursuant to CPLR §3215 and CPLR §7101, declaring that Honda has a possessory right to the subject 2004 Honda vehicle, which is superior to the interests of the defendant, Praful Patel, (hereinafter referred to as "Patel"), and an order pursuant to CPLR §3212, CPLR §7101, and the Nassau County Administrative Code §8-7.0(g), (hereinafter referred to as the "Code"), declaring that Honda is entitled to retain and liquidate the subject vehicle pursuant to the "innocent owner/lienholder defense," is hereby granted.

This is an action for civil forfeiture of a motor vehicle based upon its use in violation of VTL §1192, driving while intoxicated and/or impaired. Honda has demonstrated that the contract in effect between Honda and Patel provides that upon default, the lender, Honda, can assert its right to [*2]immediate recovery of the vehicle collateral from Patel. The movant has shown that pursuant to the terms of the contract, as the subject vehicle is subject to civil forfeiture, Patel is in default. The movant has also demonstrated that it is an "innocent lienholder" pursuant to §8-7.0(g), and therefore, its interest as a lienholder is not subject to forfeiture. The plaintiff, the County of Nassau, has consented to the relief sought by the defendant, Honda, and recognized that Honda, as the owner and lessor of the subject vehicle, has a greater possessory right to the vehicle than the plaintiff and is entitled to the benefit of the "innocent owner" defense set forth in §8-7.0(g)(4)(f) of the Code.

The movant is direct to settle order on notice.

Cross-Motion for Summary Judgment

The defendant, Patel, cross-moves for an order dismissing the plaintiff's action pursuant to CPLR §3211 and §3212, an order dismissing Honda's cross-claims, and an order denying Honda's motion for summary judgment. Patel submits that the instant action for civil forfeiture of a motor vehicle is an in rem proceeding. Patel argues that since the subject Honda vehicle has not been "seized" by the plaintiff, nor delivered to the Property Clerk, and remains in his possession, this Court lacks jurisdiction, and therefore, the action must be dismissed as a matter of law. Furthermore, Patel submits that since the County has no legal right to forfeiture, Patel is not in default of the contract between Honda and Patel.

Pursuant to §8-7.0(g)(4), the County of Nassau is authorized to commence a civil action for forfeiture to the County of any vehicle operated in violation of §1192 of the VTL. Additionally, pursuant to §8-7.0(g)(4), the County is entitled to the forfeiture of the vehicle upon Patel's conviction on November 4, 2004 for violating VTL §1192.2, Driving While Intoxicated, per se. The Code authorizes in rem remedies, under §8-7.0(g)(2), in personam remedies under §8-7.0(g)(3), and under §8-7.0(g)(4), forfeiture of the interests of persons in vehicles who have been convicted of driving while intoxicated/impaired.

Here, the defendant, Patel, argues that the Code provides only in rem relief, and therefore, the County needs to maintain continuous physical possession of a vehicle in order to secure jurisdiction for the right to seek forfeiture. However, the Code does not only provide in rem relief, and the County has not relied upon §8-7.0(g)(2), in rem relief, but rather §8-7.0(g)(3), in personam relief, and/or §8-7.0(g)(4) relief, specifically addressed to forfeiture of the interests of persons in vehicles who have been convicted of driving while intoxicated. Therefore, Patels' further argument that the subject vehicle has not been delivered to the County Clerk, and therefore, the County has no "legal" right to forfeiture of his car, is misplaced as the County is not relying on in rem relief. Notably, the "Vehicle Seizure Notice" forwarded to Patel provides Patel written notice that a forfeiture action may be commenced regarding the subject vehicle in connection with his arrest, and that the owner of the subject vehicle "is required to keep possession of the vehicle until the forfeiture case is completed."

In light of the foregoing, Patels' cross-motion is denied in its entirety.

E N T E R : [*3]

________________________________

J.S.C.

Dated: November 14, 2005

cc: Office of the Nassau County Attorney

Perry & Campanelli, LLP

Law Offices of Miller & Meola