COUNTY OF NASSAU v. KLEIN

Tuesday, February 26, 2002

Supreme Court

Nassau County

Justice Roberto

COUNTY OF NASSAU v. KLEIN ” Upon the foregoing papers it is ordered that the motion by the defendant for dismissal of the action and cross motion by the plaintiff for a judgment on default are decided as follows:

The central facts of this case are undisputed. The defendant was arrested by officers of plaintiff County of Nassau (“County”)’s Police Department on October 11, 1999 and was charged with driving while intoxicated, along with other offenses. The vehicle he was driving, and which he owned, a 1997 Chevrolet Tahoe, was seized incident to that arrest. The defendant was also given written notice that County might start an action for forfeiture of the vehicle. On October 14, 1999, the defendant pled guilty, inter alia, to driving while ability impaired by the consumption of alcohol, which is a traffic infraction. Veh & Traf Law ?§1192.1, 1193.1(a). The County then started an action for forfeiture of the vehicle pursuant to applicable provisions of the Nassau County Code by the filing of a summons and complaint on February 1, 2000. The defendant was served with process on July 11, 2000 pursuant to CPLR 308(4). He never answered or moved to dismiss the complaint within the time allowed by law.

Departing from the route taken by most defaulting defendants, who seek relief from the default and an opportunity to answer on the merits (see, CPLR 5015(a)), the defendant here moves instead to dismiss the complaint as abandoned pursuant to Article 32 of the Civil Practice Law and Rules because the plaintiff took no steps to enter a default judgment within a year of the default.{1} CPLR 3215(c). In response to this motion, the County cross-moves for permission to enter judgment under the saving provision of the statute, with provides that dismissal shall occur “unless sufficient cause is shown why the complaint should not be dismissed.” CPLR 3215(c). As the County notes by citation to authority, a plaintiff is able to utilize this provision if it has a meritorious case and can advance a reasonable excuse for not acting timely. See, e.g., First Nationwide Bank v. Pretel, 240 AD2d 629. It claims it can meet this test.

However, another factor is at work here. Unlike most other civil cases, forfeiture actions such as the one at bar involve appropriation of private property by the government, and therefore actions against seized property must be prosecuted promptly as a constitutional matter. United States v. Eight Thousand Eight Hundred and Fifty Dollars, 461 U.S. 555, 562. This places the parties to the present action on a different footing from most movants and opponents under CPLR 3215(c). The cases relied on by the County are therefore not directly on point. Although the forfeiture context does not create a new category under CPLR 3215(c), it must be considered in the Court’s exercise of discretion thereunder.

Turning to the specifics of the instant case, the County has demonstrated, and the defendant does not contest, the merits of the County’s action. The motion and cross motion thus turn on the excuse. Essentially, the County argues that it had such a large volume of forfeiture cases to process that it first had to ensure that it did not miss the 120-day statute of limitations (see, Nass Cty Admin Code ?§8-7.0(g)(5)), and thus let slip those cases in which defendants had been served but had not answered or made a preanswer motion to dismiss. It thus asks to be excused.

Present counsel for the County has been diligent in processing these cases, which number approximately 1600, and has outlined the considerable efforts he has made to move them forward. However, he was retained in December of 2001, and the year ran on this default on or about August, 2001.

At that time these cases were being handled by the County Attorney’s Office which, as present counsel states, was “overwhelmed” by the caseload. Campanelli Aff., para 55. The County embarked on an automobile seizure program that had generated hundreds and hundreds of forfeiture cases since its inception in 1999, but clearly had not supported that program by giving the County Attorney’s Office the resources necessary to prosecute these actions in a prompt fashion. This Court, having dealt with large numbers of these cases, and not being unsympathetic to the plight of the very few attorneys in the County Attorney’s Office who were attempting to keep up with the volume, forgave the passing of the year and permitted entry of late default judgments under CPLR 3215 where the defendant did nothing to prevent it.

That sympathy, however, has its limits, and ends where a defendant takes any step that may be available under the law to protect his or her long-held property. See, County of Nassau v. Bigler, NYLJ, Nov 27, 2001 at 20. In such cases the Court must be mindful of the constitutional issue noted above, and insist that, when challenged on any viable ground, the County offer something more than what is presented here.

In essence, the Court is being asked to let the County’s insufficient commitment to the legal end of the program serve as the excuse ” a form of law office failure that cannot fairly be blamed on the law office. While law office failure can form a basis for relief from missed deadlines in a number of contexts (see, CPLR 2004, 2005), the Court will not accept it here. In view of the constitutional implications of holding the defendant’s property, and the fact that the County did not attempt to remedy its error in this particular case until the defendant moved for dismissal, the omission will not be excused. The Court also notes that the defendant was served more than 120 days after the commencement of the action by filing, and had not obtained an extension of time to serve. That constitutes a separate ground for dismissal. CPLR 306-b.

In sum, the motion is granted, the cross motion is denied, and this case is dismissed.

Upon presentation of a certified copy of this order, and proper proof of identity, the County’s property clerk, police or other agent currently in possession of defendants 1997 Chevrolet Tahoe, VIN 3GNEK18R5VG187996, is hereby directed to release such vehicle to the defendant.

(1) Although the County stresses the defendant’s conceded default, such a statement by the defendant is necessary; the fact of a default is required to make out a prima facie case for the relief afforded the defendant under the statute. See, Saunders v. Cental Brooklyn Coordinating Council, 273 AD2d 294.