El-Bey v NYPD 63rd Precinct

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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 Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON 71612012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY BARBARAJAFFE J.S.C. PRESENT: PART Justice / INDEX NO. MOTION DATE -V- MOTIONSECLNO. The following papem, numbered 1 to 00 / , were read on this motion tolfor Notlce of MotlonlOrder to Show Cause -Affidavits -Exhibits I W4. IW s ) . IWd. Answerlng Affldavlta - Exhlbits Replying AfRdavitP Upon the foregolng paper$, it Is ordered that this motion I s JuL 05 2012 Dated: & - -Lq -1% JliN 9 !J 208 ..................................................................... CHECK AS APPROPRIATE: ........................... MOTION IS: CHECK IF APPROPRIATE: ................................................ I CHECK ONE: . CASE DISPOSED 2. GRANTED 3. SETTLE ORDER DO NOT POST - 0WBMlT ORDER FIDUCIARY APPOINTMENT - 0REFERENCE [* 2] Index No. 107234111 Plaintiff, Motion subm.: Motion seq. nos.: 3/27/12 001, -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. Brooklyn, 1 1210 For Sollmlne: Kenneth D. Litwack, Esq. Kenneth D.Litwack, P.C. 38-08 Bell Blvd., 2"d F1. Bayside, NY 11361 718-428-4806 FILED Michael A. Cardozo Corporation Counsel 100 Church St., 4~ FI. New York, NY 10007 21 2-788-0627 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 [* 3] whom he proceeds by power of attorney, based on a judgment entered against h m in the sum of i $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[2], [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[5]; Admin. Code ยง 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 2 [* 4] 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 ds it 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 [2012] [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 3 [* 5] 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. FILED ENTER: DATED: NEW YORK COUNTY CLERKS OFFICE June 29,20 12 New York, New York J.S.C. JUN 2 o 20fz 4