Opinion
December 21, 1993
Appeal from the Supreme Court, New York County (Eugene Nardelli, J.).
Pursuant to McClendon v Rosetti ( 369 F. Supp. 1391), if a demand for the return of property seized by police is made within 90 days after the termination of the criminal proceeding, the Property Clerk must return the property, or upon a determination that it should not be returned, start a proceeding to retain it. It has been determined that a criminal proceeding does not terminate for these purposes until the direct appeals have been exhausted or the time to take a direct appeal has expired (Matter of DeBellis v Property Clerk of City of N.Y., 79 N.Y.2d 49, 56). Judged accordingly, plaintiff's demand in this case was timely made.
Where a timely demand in accordance with McClendon v Rosetti (supra) has been made and the forfeiture proceedings have not been commenced, service of an additional notice of claim is not needed in order to be entitled to return of the property (see, DeBellis v Property Clerk of City of N.Y., 168 A.D.2d 313, 314, affd 79 N.Y.2d 49, supra). We acknowledge that plaintiff, in essence, is seeking relief in the nature of mandamus in order to compel the Property Clerk to do what is legally required. However, any claim by the defendant that the proceeding was not brought in the proper form does not warrant dismissal under the circumstances herein (CPLR 103 [c]).
While at the time of the IAS Court's decision in this case issue had not been joined and plaintiff's summary judgment motion was premature (City of Rochester v Chiarella, 65 N.Y.2d 92, 101), we have been made aware by the parties that the defendants' answer has since been served. In view thereof and the fact that it is conceded that there are no issues of fact, we now grant the plaintiff's motion for summary judgment in order to fashion complete relief to the appealing party (see, Hecht v City of New York, 60 N.Y.2d 57, 62; Bukhatir Mackinnon v Sarfraz, 130 A.D.2d 358, 362), and in the interests of justice and judicial economy.
Concur — Murphy, P.J., Sullivan, Rosenberger, Ross and Rubin, JJ.