2006 New York Code - Seizure; Forfeiture.

 
    §  22-262.1  Seizure;  forfeiture. a. Any police officer or authorized
  officer or employee of the department may, upon service of a  notice  of
  violation or criminal summons upon the owner or operator of a vehicle or
  other  property  or equipment, seize such vehicle or such other property
  or equipment which such police officer or authorized officer or employee
  has reasonable cause to believe is being used in connection with an  act
  constituting  a  violation  of  subdivision  a of section 22-253 of this
  chapter where such vehicle or other  property  or  equipment  is  owned,
  leased  or  rented  by  a  person  subject  to  the  provisions  of such
  subdivision or such vehicle or other property or equipment is owned by a
  person other than an employee and is used directly by a  person  subject
  to  the  provisions  of  such  subdivision.  Any  vehicle,  property  or
  equipment seized pursuant to this subdivision shall  be  delivered  into
  the  custody  of  the  department  or  other appropriate agency. Where a
  notice of violation  has  been  served,  a  hearing  to  adjudicate  the
  violation  underlying the seizure shall be held before the environmental
  control board within five business days after the seizure and such board
  shall render a decision within five business days after  the  conclusion
  of  the  hearing. Where a criminal summons has been served, a hearing to
  adjudicate the violation underlying the seizure shall be held  before  a
  court  of  competent  jurisdiction.  In the event that such court or the
  environmental control board determines that there has been no violation,
  the vehicle, property or equipment that was  seized  shall  be  released
  forthwith  to  the  owner  or any person authorized by the owner to take
  possession of such vehicle, property or equipment.
    b. Except as otherwise provided in subdivision a of  this  section  or
  where  notice  has been given that forfeiture will be sought pursuant to
  paragraph (ii) of subdivision e of this  section,  a  vehicle  or  other
  property  or  equipment seized pursuant to subdivision a of this section
  shall be released upon payment of a fine or civil  penalty  imposed  for
  the  violation  underlying  the  seizure  and  the  costs of removal and
  storage as set forth in the rules of the department. Where an action  or
  a proceeding relating to the violation underlying the seizure is pending
  in  a  court  of  competent jurisdiction or an administrative proceeding
  before the environmental control board, the vehicle or other property or
  equipment shall be released upon posting of a  bond  or  other  form  of
  security sufficient to cover the maximum fine or civil penalty which may
  be imposed for such violation and the costs of removal and storage.
    c.  Where  a  court  of  competent  jurisdiction  or the environmental
  control board makes a finding that the  vehicle  or  other  property  or
  equipment  has  not  been  used in connection with an act constituting a
  violation of subdivision a  of  section  22-253  of  this  chapter,  the
  vehicle  or  other  property or equipment shall be released forthwith to
  the owner or any person authorized by the owner to  take  possession  of
  such vehicle, property or equipment.
    d.  Any  vehicle  or  other  property  or  equipment that has not been
  claimed by the owner within ten business days  after  mailing  by  first
  class  mail  to  such  owner  of notice of a determination by a court of
  competent jurisdiction or by the environmental control board that  there
  has been no violation or that the vehicle or other property or equipment
  was  not used in connection with a violation of subdivision a of section
  22-253 of  this  chapter  shall  be  deemed  by  the  department  to  be
  abandoned.   Any   vehicle   unclaimed  under  the  provisions  of  this
  subdivision shall be disposed of by the department pursuant  to  section
  twelve  hundred  twenty-four of the vehicle and traffic law. Property or
  equipment other than a vehicle shall be disposed of by  sale  at  public
  auction  following  notice  by publication in the city record describing
  such property or equipment not less than ten business days prior to such


  sale. Such notice shall provide that the owner may reclaim such property
  or equipment until a date that shall be not  sooner  than  ten  business
  days from the date the notice is published.
    e.  (i)  In  addition  to  any  other  fines,  penalties, sanctions or
  remedies provided for in this chapter, a vehicle or  other  property  or
  equipment  which  has  been  seized  pursuant  to  subdivision a of this
  section and all rights, title and interest therein shall be  subject  to
  forfeiture  upon  notice and judicial determination thereof if the owner
  of such vehicle or other property or equipment has been found liable  by
  a  court of competent jurisdiction or the environmental control board on
  one or more prior  occasions  for  using  such  vehicle  or  such  other
  property or equipment in connection with an act constituting a violation
  of subdivision a of section 22-253 of this chapter.
    (ii)  A  forfeiture  proceeding  may  not  be  commenced more than ten
  business days after the receipt of a request by the owner for return  of
  the  vehicle, other property or equipment. If a forfeiture proceeding is
  not commenced within such ten day period, the property shall be returned
  to the owner upon payment of the fine or civil penalty imposed  and  the
  costs  of  removal and storage. A vehicle or other property or equipment
  which is the subject of such action shall remain in the custody  of  the
  department  or  other appropriate agency pending the final determination
  of the forfeiture action.
    (iii) Notice of the institution of  the  forfeiture  action  shall  be
  served  by first class mail on: (a) an owner of a vehicle at the address
  set forth in the records maintained by the department of motor vehicles,
  or for vehicles not  registered  in  New  York  state,  in  the  records
  maintained  by  the  state  of  registration;  (b) all persons holding a
  security interest in such vehicle which security interest has been filed
  with the department of motor vehicles  pursuant  to  the  provisions  of
  title  ten  of  the vehicle and traffic law, at the address set forth in
  the records of such department, or for vehicles not  registered  in  New
  York  state,  all  persons  who hold a security interest in such vehicle
  which security interest has been filed with such state  of  registration
  and  which persons are made known by such state to the department at the
  address provided by such state of registration; and (c) for property and
  equipment other than a  vehicle,  by  publication  in  the  city  record
  describing  such  property  or  equipment  and by notice served by first
  class mail to the address of the  person  from  whom  such  property  or
  equipment  was seized. Where such person is other than the owner of such
  property or equipment, notice shall be served by first class  mail  both
  to such person and to the owner of such property or equipment where such
  owner  is  known,  or can by reasonable effort, be ascertained or, where
  such owner is not known or cannot by reasonable effort  be  ascertained,
  to  the employer of the person from whom the property or other equipment
  was seized. Notice shall also be served  by  first  class  mail  to  any
  person  who holds a security interest in such property or equipment when
  the name and address of such person has been provided by  the  owner  of
  the  property  or  equipment  or  other person from whom the property or
  equipment was seized, or  is  otherwise  known  or  can,  by  reasonable
  effort, be ascertained.
    (iv)  Any owner who receives notice of the institution of a forfeiture
  action who wishes to claim an interest in the vehicle or other  property
  or equipment subject to forfeiture may assert a claim in such action for
  the   recovery  of  the  vehicle  or  other  property  or  equipment  or
  satisfaction of the owner's interest in such vehicle or  other  property
  or  equipment.  Any  person  with a security interest in such vehicle or
  property or equipment who receives notice  of  the  institution  of  the
  forfeiture  action  who  claims  an  interest  in  such vehicle or other


  property or equipment may assert a claim in such action for satisfaction
  of such person's security interest.
    (v)  Forfeiture  pursuant to this subdivision shall be made subject to
  the interest of a person who claims an interest in the vehicle or  other
  property  or  equipment  pursuant to paragraph (iv) of this subdivision,
  where such person  establishes  that:  (a)  the  use  of  such  vehicle,
  property or equipment in connection with an act constituting a violation
  of  subdivision  a  of section 22-253 of this chapter that was the basis
  for seizure occurred without the knowledge of such person,  or  if  such
  person  had  knowledge  of such use, that such person did not consent to
  such use by failing to do all that could reasonably have  been  done  to
  prevent  such  use,  and  that such person did not knowingly obtain such
  interest in the vehicle, property or equipment in  order  to  avoid  the
  forfeiture;  or (b) that the conduct that was the basis for such seizure
  was committed by any person other than such person claiming an  interest
  in  the vehicle, property or equipment while such vehicle was unlawfully
  in the possession  of  a  person  who  acquired  possession  thereof  in
  violation of the criminal laws of the United States or any state.
    (vi)  The  department,  after  judicial  determination  of forfeiture,
  shall, at its discretion, either: (a) retain such vehicle,  property  or
  equipment  for  the official use of the city; or (b) by public notice of
  at least five days, sell such forfeited vehicle, property  or  equipment
  at public sale. The net proceeds of any such sale shall be paid into the
  general fund of the city.
    (vii) In any forfeiture action commenced pursuant to this subdivision,
  where  the  court  awards  a  sum  of  money  to  one or more persons in
  satisfaction of such person's or  persons'  interest  in  the  forfeited
  vehicle, property or equipment, the total amount awarded to satisfy such
  interest or interests shall not exceed the amount of the net proceeds of
  the sale of the forfeited vehicle, property or equipment after deduction
  of  the  lawful  expenses incurred by the city, including the reasonable
  costs of removal and storage between the time of seizure and the date of
  sale.
    (viii) For purposes of this section, the term  "owner"  of  a  vehicle
  shall  mean  an owner as defined in section one hundred twenty-eight and
  in subdivision three of section three hundred eight of the  vehicle  and
  traffic  law.  The  term "owner" of the property or equipment subject to
  seizure or forfeiture pursuant to this section shall mean a  person  who
  demonstrates ownership of such property or equipment to the satisfaction
  of the commissioner.
    (ix)  For  purposes of this section, the term "security interest" in a
  vehicle shall mean a security interest as defined in  subdivision  k  of
  section  two  thousand  one  hundred one of the vehicle and traffic law.
  "Security interest"  in  other  property  or  equipment  shall  mean  an
  interest  reserved  or created by agreement and which secures payment or
  performance of an obligation. The term includes the interest of a lessor
  under a lease intended as security.