Abreu v. New York City Police Dept.

• Decision Date: 07 April 1992
• Parties: Jose Raphael ABREU, Plaintiff-Respondent, v. NEW YORK CITY POLICE DEPARTMENT, Defendant-Appellant
• Court: New York Supreme Court — Appellate Division

Page 148

582 N.Y.S.2d 148

182 A.D.2d 414

Jose Raphael ABREU, Plaintiff-Respondent, v. NEW YORK CITY POLICE DEPARTMENT, Defendant-Appellant

Supreme Court, Appellate Division,

First Department.

April 7, 1992.

Before MILONAS, J.P., and KUPFERMAN, ROSS and SMITH, JJ.

MEMORANDUM DECISION.

Order of the Supreme Court, New York County (Lewis R. Friedman, J.), entered on or about November 23, 1990, which, inter alia, denied defendant's cross-motion to dismiss the complaint, is unanimously reversed on the law to the extent appealed from and the cross-motion to dismiss granted, without costs or disbursements.

The New York City Police Commissioner, following an administrative hearing, declared a particular store to be a public nuisance because of illegal gambling conducted therein and ordered that the premises be closed for one year pursuant to New York City Administrative Code sections 10-155 and 10-156. Plaintiff purportedly became the owner of the store on August 9, 1990 and commenced this action to vacate the closing order and recover monetary damages for the duration of the closure. It is plaintiff's contention that the gambling violations occurred before he assumed occupancy. Defendant New York City Police Department subsequently moved unsuccessfully to dismiss the complaint for failure to exhaust administrative remedies. In that regard, the Police Department has issued regulations under Administrative Code 10-156(i) according to which anyone adversely affected by a closure order may attempt to vacate such order by filing a motion with the Police Department, which is then assigned for processing by a hearing officer. Plaintiff however, never availed himself of this procedure.

Between August 8, 1989 and July 31, 1990, there were six arrests on five separate occasions for gambling activities, and five criminal convictions ensued. As a result, the Police Department served a notice of closure, and an administrative hearing was held on September 26, 1990. The hearing officer, after taking testimony and reviewing documentary evidence, found the premises to constitute an illegal gambling operation. The lessee, Silvester Baez, had offered as mitigation the recent transfer of the business to plaintiff herein, but the hearing officer was unpersuaded. In his view, the proof did not establish that the transfer was a genuine one or that plaintiff was an independent party who could be expected to cease the gambling activities. Indeed, the hearing officer noted, plaintiff was affiliated with the business when it had been utilized for gambling, and he was also the brother of one of the men...