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El-Bey v NYPD 63rd Precinct
2012 NY Slip Op 31755(U)
June 29, 2012
Supreme Court, New York County
Docket Number: 107234/11
Judge: Barbara Jaffe
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SCANNED ON 71612012
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
The following papem, numbered 1 to
, were read on this motion tolfor
Notlce of MotlonlOrder to Show Cause -Affidavits
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Answerlng Affldavlta - Exhlbits
Upon the foregolng paper$, it Is ordered that this motion I
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FIDUCIARY APPOINTMENT - 0REFERENCE
Index No. 107234111
Motion seq. nos.:
-againstDECISION AND ORDER
NYPD 631dPRECINCT, RICHARD W. LYMAN, DA
OF KINGS COUNTY,DA OF KINGS COUNTY,
For plaintiff self-represented:
Staniey Anstilde El-Bey
1653 Brooklyn Ave.
Kenneth D. Litwack, Esq.
Kenneth D.Litwack, P.C.
38-08 Bell Blvd., 2"d
Bayside, NY 11361
Michael A. Cardozo
100 Church St., 4~ FI.
New York, NY 10007
By order to show cause dated December 2 1 20 11, plaintiff moves for an order directing
Marshal Solimine, DOF Brooklyn Business Center, and the New York City Department of
Finance (DOF), whom plaintiff characterizes as defendants in this action, to release or return to
him his motor vehicle being held by them. He alleges, in essence, that the vehicle is illegally
held as "ransom." Solimine and the NYPD 63rdPrecinct (NYPD) oppose.
By notice of motion dated December 30,201 1, the NYPD moves pursuant to CPLR
321 l(a)(7) dismissing the complaint against it.
By notice of motion dated January 23,2012, Solimine moves pursuant to CPLR
321 l(a)(7) for an order dismissing the complaint against him.
The pertinent facts follow: On October 27,201 1, the DOF issued an execution
authorizing Solimine to seize a motor vehicle owned by plaintiffs brother Dave Aristilde, for
whom he proceeds by power of attorney, based on a judgment entered against h m in the sum of
$424.07 for unpaid parking violations. Solimine seized the vehicle on November 2,201 1.
(Afirrnation of Kenneth D. Litwack, Esq., dated Dec. 27,201 1, Exhs. A, B).
By summons and complaint dated June 21,201 1, plaintiff sues defendants for assault and
battery, usury, unlawfd detention and transportation, false imprisonment, and conspiracy.
Here, plaintiff has failed to allege or prove that his the parking violations were ever paid
or that a valid judgment was not entered against his brother. (Vehicle & Traffic Law 5 237,
[SI,8 241; Admin. Code of the City of New York 5 19-203[e]). There being no cognizable issue
raised as to the validity of the judgment, the DOF was authorized to enforce it by seizing the
vehicle. (Vehicle & TrafFc Law 8 237; Admin. Code § 19-207, 6 19-212 [motor vehicle may
be seized to satisfy judgment for outstanding parking violations ifjudgment greater than $3501;
see Matter ofFrierson
v NYC Parking Violations Bureau, 239 AD2d 190 [ 1'' Dept 19971
[seizure of vehicle authorized based on outstanding parking violations]).
Plaintiff has also not shown that that Dave Aristilde received no notice of the proposed
judgment or seizure, or that the execution issued for the seizure was invalid. (See Hindi v City of
w][App Term, lStDept 20061 [while
New York, 12 Misc 3d 132[A], 2006 NY Slip Op 51 151
plaintiff alleged that City improperly towed vehicle, he did not prove that outstanding parking
violations for which vehicle was towed were not issued against him or that City seized vehicle
without proper notice]; compare Firstar Equip. Fin.v Jonathan Travel & Tours, Inc.,292 AD2d
275 [lstDept 20023 [as no judgment was entered, execution was invalid and seizure of vehicle
was nullity]). Rather, he levels a variety of contentions without alleging any factual or legal
basis. Consequently, he has failed to establish any ground upon which defendants must be
directed to return the vehicle to him.
While plaintiffs motion is directed at Marshal Solimine, DOF Brooklyn Business Center,
and DOF, his complaint does not name them as defendants, nor is there any proof that they were
served with the summons and complaint. Consequently, the court has no basis upon which to
exercise jurisdiction over them in this action.
Moreover, as the NYPD cannot be sued, the complaint is dismissed against it. (New York
City Charter tj 396 [all actions and proceedings to be brought in name of City and not in that of
any City agency]; see Jenkins v City uflvew Yurk, 478 F3d 76, h 19 [2d Cir 20071 mYPD is
non-suable City agency]; Wims v New York City Police Dept., 201 1 WL 2946369 [SD NY 201 11
[dismissing claim against NYPD
could not be sued independently from City]).
And, as Solimine seized the vehicle pursuant to a lawful and valid execution, he may not
be held liable for it. (85 NY Jur 2d Police, Sheriffs, Etc.
5 174  [marshal not personally
liable if he or she obeys mandate of court]; see eg Rodriguez v 141 4-1422 Ogden Ave. Realty
C o p , 304 AD2d 400 [1st Dept 20031 [dismissing claim against marshal for executing invalid
warrant absent proof she knowingly or negligently executed warrant]; Mayes v UVIHuZdings,
Inc., 280 AD2d 153 [l"'Dept 20011 [same]).
Accordingly, it is hereby
ORDERED, that plaintiffs motion is denied; it is further
ORDERED, that defendant NYPD 63rdPrecinct's motion for summary judgment is
granted, and the complaint is hereby dismissed and severed against it, and the Clerk is directed to
enter judgment in favor of said defendant; it is further
ORDERED, that defendant Solimine's motion for summary judgment is granted, and the
complaint is hereby dismissed and severed against him, and the Clerk is directed to enter
judgment in favor of said defendant; and it is further
ORDERED, that as there is no longer a defendant in this matter being represented by
Corporation Counsel, the Trial Support Office is directed to reassign this case to a non-City part
and remove it from the Part 5 inventory. Plaintiff shall serve a copy of this order on all other
parties and the Trial Support Office, 60 Centre Street, Room 158. Any compliance conferences
currently scheduled are hereby cancelled.
COUNTY CLERKS OFFICE
June 29,20 12
New York, New York
JUN 2 o 20fz