Opinion
Index No: 400956/12
02-01-2013
PROPERTY CLERK, NEW YORK CITY POLICE DEPARTMENT, Plaintiff, v. CARMEN BONGIOVANNI, Defendant.
Decision & Order
Hon. Martin Shulman, J.:
Plaintiff, Property Clerk, New York City Police Department ("Property Clerk" or "plaintiff") commenced this action by filing the summons and verified complaint on April 26, 2012 seeking forfeiture of a 1995 Chevrolet automobile bearing Vehicle Identification Number 1GNFK16K9SJ415700 (the "subject vehicle") pursuant to N.Y.C. Adm. Code §14-140. The subject vehicle was seized from defendant Carmen Bongiovanni ("defendant" or "Bongiovanni") and vouchered under Property Clerk Invoice Number 5000008623 at the time of defendant's November 19, 2011 arrest on charges of violating New York Penal Law §265.03(3) (criminal possession of a weapon in the second degree: loaded firearm) and §120.14(1) (menacing in the second degree: weapon).
On March 28, 2012, defendant pled guilty to the former charge, a class D felony. At oral argument on January 15, 2013, counsel for the parties informed the court that defendant had been sentenced and is now incarcerated.
In motion sequence 001, Bongiovanni moves pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action. In motion sequence 002, the Property Clerk moves by order to show cause ("OSC") for a preliminary injunction enjoining Bongiovanni "from selling, leasing, gifting, assigning, pledging or otherwise disposing of "or transferring his right, title and interest therein ... or from otherwise removing the subject vehicle from the jurisdiction of this Court during the pendency of the instant action". On November 13, 2012, this court issued a temporary restraining order ("TRO") prohibiting the foregoing acts and also enjoining defendant from "possessing" the subject vehicle pending the hearing of the OSC. Motion sequences 001 and 002 are consolidated for disposition. Defendant's Pre-Answer Motion to Dismiss
Bongiovanni requested a retention hearing before the New York City Office of Administrative Trials and Hearings ("OATH"). On October 25, 2012, OATH administrative law judge Tynia D. Richard issued a memorandum decision (the "OATH decision") directing the Property Clerk to release the subject vehicle to defendant on procedural grounds, to wit, the Police Department's failure to properly serve defendant with a notice of his right to a retention hearing at the time of his arrest as required by Krimstock v Kelly, 306 F3d 40 (2d Cir 2002), cert den 539 US 969 (2003). The TRO plaintiff obtained thus prevents the release of the subject vehicle to defendant, effectively staying the OATH decision pending the hearing of plaintiff's OSC.
On a motion to dismiss a complaint for failure to state a cause of action (CPLR 3211 (a) [7]), a court must take all allegations of the complaint as true and resolve all inferences that reasonably flow therefrom in favor of the plaintiff. Caron v Hargro Fabrics, Inc., 91 NY2d 362, 366 (1998); Marini v D'Apolito, 162 AD2d 391, 392 (1st Dept 1990). The court must deem the complaint to allege whatever can be reasonably inferred therefrom however imperfectly or informally its facts may be stated. Barrows v Rozansky, 111 AD2d 105, 107 (1st Dept 1985). Accordingly, a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7) is available only where the dispute pertains to law, not facts. Abrams v Richmond County S.P.C.C., 125 Misc2d 530, 534-535 (Sup Ct, Richmond, 1984).
The complaint alleges that the subject vehicle is subject to forfeiture under Adm. Code §14-140 because Bongiovanni used it as the instrumentality of and/or to aid and further the commission of the crimes of second and third degree weapons possession (first and third causes of action, respectively) and second degree menacing (second cause of action). In support of his motion to dismiss, Bongiovanni argues that: 1) the first and third causes of action predicated upon possession of a firearm fail to satisfy Adm. Code §14-140's "in furtherance" requirement (i.e., as a matter of law there can be no nexus between a vehicle and the crime of weapons possession); and 2) the second cause of action predicated upon defendant using the subject vehicle to flee the scene of the crime of menacing fails to allege so-called "additional factors" purportedly needed to satisfy Adm. Code §14-140's requirements. The Property Clerk opposes the motion to dismiss.
Adm. Code §14-140(b) permits forfeiture of inter alia "all property or money suspected of having been used as a means of committing crime or employed in aid or furtherance of crime . . ."
First and Third Causes of Action
In support of his motion to dismiss the first and third causes of action, both of which are predicated upon possession of a loaded firearm, Bongiovanni attempts to distinguish the case at bar from various cases wherein vehicles were forfeited due to drug use or prostitution occurring therein, or due to use of a vehicle as a place of transacting a sale of narcotics or as a means of transportation to or from the point of sale in a drug transaction. In such cases, defendant urges that the vehicle was essential to the crime committed and/or "integrally involved in the offense". Memo, of Law in Supp. of Motion to Dismiss Complaint, p. 3. By contrast, Bongiovanni emphasizes that he did not commit any of the foregoing offenses or engage in any other act which furthered or facilitated his admitted crime of possessing a loaded firearm.
In opposition, the Property Clerk disputes that any "in furtherance" requirement exists, citing additional language in Adm. Code §14-140(b) permitting forfeiture of property "suspected of having been used as a means of committing crime ..." See footnote 3, supra. Plaintiff submits that defendant overlooks this language which supports its position that a vehicle can be used "as a means of committing [the] crime" of weapons possession. Plaintiff notes that the only requirement for forfeiture is that the property contributed directly and materially to the crime. See Borzuko v City of New York Police Dept. Property Clerk, 136 Misc2d 758, 765 (Sup Ct, NY 1987). As such, the Property Clerk contends that its complaint sufficiently states a cause of action for forfeiture by virtue of its allegations that Bongiovanni used the subject vehicle to possess, transport, conceal and/or store a loaded firearm. Finally, plaintiff cites this court's decision in Property Clerk, New York City Police Dept. v Miranda, 2010 WL 3626986 (2010), as well as its various unpublished decisions, wherein this court granted the Property Clerk's motion for summary judgment allowing forfeiture of a vehicle where, as here, the defendant pled guilty to weapons possession and it was "undisputed that at the time of his arrest defendant possessed a firearm and was in control of the subject vehicle ..."
This court rejects defendant's arguments and finds that, taking the complaint's allegations as true, the complaint alleges facts sufficient to establish a nexus between the underlying crime of weapons possession and the subject vehicle. The factual distinctions Bongiovanni strains to draw between this case and those he cites are unavailing. Here, the complaint alleges that the subject vehicle was used to transport, conceal and store defendant's illegal firearm. There can be no dispute that using the subject vehicle in this manner, if ultimately proved, facilitated defendant's ability to possess and conceal an illegal weapon.
True, unlike a crime such as driving while intoxicated, a vehicle is not essential to a crime such as weapons possession. Nonetheless, at this stage defendant does not establish as a matter of law that the subject vehicle was merely incidental to the crime charged. Nor does Bongiovanni cite any case expressly holding that more than the mere possession of a firearm is required for forfeiture of a vehicle in which the weapon transported and/or concealed. For the foregoing reasons, the portion of Bongiovanni's motion seeking dismissal of the first and third causes of action is denied.
Second Cause of Action
Plaintiff's second cause of action seeks forfeiture of the subject vehicle predicated upon its alleged use as the instrumentality of and/or to aid and further defendant's commission of the crime of second degree menacing. The complaint alleges in relevant part "that the defendant operated the subject vehicle to flee from the scene of a dispute in which defendant did point a firearm at the victim and make verbal threats." Motion at Exh. A, ¶11.
In support of his motion to dismiss this cause of action, Bongiovanni maintains that, as a matter of law, use of a vehicle merely to flee the scene of a crime, without more, is an insufficient basis for forfeiture under Adm. Code §14-140. Rather, defendant argues that the act of fleeing must be combined with other "aggravating factors" to warrant forfeiture.
Bongiovanni primarily relies upon Price v Property Clerk of New York City Police Dept., 74 AD3d 1078 (2d Dept 2010), which involved a scenario where the defendant used a vehicle to travel to the victim's home in violation of an order of protection and then attempted to evade arrest by fleeing the scene. In the process of fleeing, the defendant ran over an officer's foot (assault on a police officer) and drove in and out of traffic at a high rate of speed (reckless endangerment, resisting arrest). However, neither Price nor the other cases defendant cites stands for the proposition that so-called "aggravating factors" must be alleged to warrant forfeiture of a "getaway car".
To the contrary, in DiFiore v Ramos, 62 AD3d 643, 644 (2d Dept), Iv den 13 NY3d 703 (2009), the plaintiff claiming authority established entitlement to forfeiture, albeit under CPLR Article 13-A, where the defendant possessed a weapon in his vehicle while fleeing the scene of an assault. The foregoing scenario is indistinguishable from this case, wherein Bongiovanni admittedly possessed a weapon in his vehicle while allegedly fleeing the scene of the crime of menacing. As this court can find no support for Bongiovanni's novel argument, the portion of his motion seeking dismissal of the second cause of action must be denied. Plaintiff's Motion for a Preliminary Injunction
Plaintiff's OSC includes a transcript of Bongiovanni's March 28, 2012 plea hearing, wherein he admits he possessed a loaded firearm in the subject vehicle. OSC at Exh. 16, pp. 7-8.
Bongiovanni indicates that should this court denies his motion to dismiss he will not oppose the relief requested in plaintiffs OSC, viz., an order enjoining him from disposing of the subject vehicle pending the final determination of this forfeiture action. See Defendant's Response to Plaintiff's Application by OSC for Preliminary Injunctive Relief, p. 2. Accordingly, in light of the denial of Bongiovanni's motion to dismiss as set forth above, the Property Clerk's OSC is granted on consent and Bongiovanni shall be enjoined from selling, leasing, gifting, assigning, pledging or otherwise disposing of the subject vehicle or transferring his right, title and interest therein in any manner or from otherwise removing the subject vehicle from this court's jurisdiction during the pendency of this forfeiture action.
However, defendant asks this court to order the immediate release of the subject vehicle to him or his wife during the pendency of this action in light of the OATH decision directing its release. Thus, the only issue that remains for this court to determine is whether the subject vehicle should be released to defendant pendente lite.
As Bongiovanni notes, unlike the TRO this court granted when it signed plaintiff's OSC, the OSC itself does not specifically request that defendant be enjoined from possessing the subject vehicle during this action's pendency. Accordingly, defendant's responsive papers do not address this issue.
In the event this court deems the OSC to contain such a request, Bongiovanni requests an additional week to submit further briefing on this subject. Id. at fn. 1. Defense counsel reiterated this request during oral argument. However, the court acknowledged that defendant's objection to plaintiff's continued possession of the subject vehicle was noted and ultimately counsel opted not to submit further written opposition.
This court has discretion to grant relief not specifically requested where the motion or order to show cause contains a prayer for general relief, such relief is warranted by the facts plainly appearing on both parties' papers and is not too dramatically unlike the relief sought and no prejudice results. HCE Assocs. v 3000 Watermill Lane Realty Corp., 173 AD2d 774, 774-775 (2d Dept 1991). In this case the foregoing elements are met and as such, this court will consider whether Bongiovanni should be enjoined from possessing the subject vehicle notwithstanding the discrepancy between the language of the OSC and the TRO.
The OSC contains a general prayer "[f]or such other relief as this Court may deem just and proper." Moreover, the Property Clerk's supporting affirmation does in fact request the court to enjoin Bongiovanni's possession of the subject vehicle, albeit in the conclusion. See Mazur Aff. in Supp. of Plaintiff's OSC, at ¶36 and "Wherefore" clause. There is no prejudice to defendant since the TRO's language and plaintiff's supporting affirmation provide defendant notice that the topic might be raised at the OSC's hearing. Indeed, defendant's reservation of his right to submit further papers indicates his awareness of the issue. Finally, the court has noted that Bongiovanni opposes such relief and thus will not grant plaintiff a preliminary injunction on default.
In order to establish entitlement to a preliminary injunction in this action, plaintiff must demonstrate (1) a likelihood of ultimate success on the merits, (2) irreparable injury if no preliminary injunction is issued and (3) a balancing of the equities in its favor. CPLR § 6301; Aetna Ins. Co. v Capasso, 75 NY2d 860 (1990). Such relief is appropriate "where it appears that the defendant threatens or is about to do, or is doing or procuring or suffering to be done, an act in violation of the plaintiff's rights respecting the subject of the action, and tending to render the judgment ineffectual..." See CPLR §6301.
This court agrees that plaintiff is likely to succeed on the merits and be granted a judgment of forfeiture in light of Bongiovanni's guilty plea to criminal possession of a weapon. While a guilty plea to possessing a weapon does not foreclose the claim that the subject vehicle was not the instrumentality of and/or used to aid or further the commission of that particular crime (Property Clerk, New York City Police Dept. v Miranda, supra), in the instant case defendant acknowledged at the time of his guilty plea that he transported the weapon in the subject vehicle. OSC at Exh. 16, pp. 7-8.
As to the second element, the Property Clerk argues there is a substantial risk Bongiovanni will remove the subject vehicle from this court's jurisdiction or transfer or otherwise dispose of it because it is registered in New Jersey and needed to support his wife and two infant children. Plaintiff argues it will be irreparably injured if the subject vehicle is made unavailable for forfeiture and for discovery purposes. Plaintiff further emphasizes that a monetary judgment will not fulfill the ultimate goal of forfeiture to protect the public by removing an instrumentality of a crime from the streets.
Defendant does not deny that the subject vehicle is registered in New Jersey but alleges he is a resident of Staten Island, New York.
Plaintiff maintains that defendant is likely to transfer the subject vehicle to his wife, ultimately resulting in it ending up back in his hands.
The Property Clerk contends that the subject vehicle is crucial evidence in this action and needed for inspection and discovery, but provides no detail as to why.
On this point plaintiff fails to establish its entitlement to retain the subject vehicle pending forfeiture. Although he had not been sentenced at the time the Property Clerk brought this OSC Bongiovanni is now incarcerated and unable to use the subject vehicle. With respect to disposing of it, as stated above Bongiovanni has consented to and this court has granted a preliminary injunction enjoining any transfer or removal of the subject vehicle from this court's jurisdiction. In light of the foregoing, there is little risk that any forfeiture judgment will be rendered ineffective. See County of Nassau v Canavan, 1 NY3d 134, 144 (2003) (county's continued retention of defendant's car during pendency of forfeiture action is not the only means available to accomplish its goal of preventing vehicle from being sold or destroyed before forfeiture judgment is rendered; preliminary injunction prohibiting vehicle's sale or destruction accomplishes the same goal).
Finally, plaintiff also fails to establish that the equities are balanced in its favor. The Property Clerk argues that: 1) the subject vehicle was operated and used for illicit purposes; and 2) due to his then impending incarceration defendant would be unable to use it, thus suffering no harm if a preliminary injunction is granted. However, plaintiff itself makes a passing reference to Bongiovanni's need to support his wife and two infant children (Mazur Aff. in Supp. of Plaintiffs OSC, at ¶¶ 18 and 30). Most compellingly, OATH has already determined that plaintiff is not entitled to retain the subject vehicle during the pendency of this action because the Police Department could not establish compliance with required protocols at the time Bongiovanni was arrested. Plaintiff should not be rewarded for its oversight and its interests are protected by virtue of the preliminary injunction granted herein. For all of the foregoing reasons, it is hereby
Despite his incarceration, a properly authorized representative can retrieve the subject vehicle. See 38 RCNY §12-17.
ORDERED that defendant's motion (seq. 001) is denied; and it is further
ORDERED that plaintiff's OSC (seq. 002) is granted to the extent that defendant Carmen Bongiovanni is hereby enjoined from selling, leasing, gifting, assigning, pledging or otherwise disposing of the subject vehicle or transferring his right, title and interest therein in any manner or from otherwise removing the subject vehicle from this court's jurisdiction during the pendency of this forfeiture action; and it is further
ORDERED that plaintiff's OSC (seq. 002) is denied to the extent it seeks to enjoin defendant or an authorized representative from possessing the subject vehicle during the pendency of this forfeiture action, and the TRO enjoining such possession is vacated; and it is further
ORDERED that, pursuant to CPLR 3211(f), defendant shall serve his answer to the complaint within ten (10) days of service of notice of entry of this decision and order.
This constitutes this court's decision and order. Courtesy copies of same have been provided to the parties. Dated: New York, New York
January 28, 2013
_________________________
HON. MARTIN SHULMAN, J.S.C.