Ferrari v. Cnty. of Suffolk

• Decision Date: 06 August 2013
• Docket Number: 10-CV-4218(JS)(GRB)
• Parties: JAMES B. FERRARI, Plaintiff, v. COUNTY OF SUFFOLK, Defendant.
• Court: U.S. District Court — Eastern District of New York

JAMES B. FERRARI, Plaintiff, v. COUNTY OF SUFFOLK, Defendant.

10-CV-4218(JS)(GRB)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Dated: August 6, 2013

MEMORANDUM & ORDER

APPEARANCES

For Plaintiff:

Andrew J. Campanelli, Esq.

David Antwork, Esq.

Campanelli & Associates, P.C.

For Defendant:

Christopher M. Gatto, Esq.

Suffolk County Attorney's Office

SEYBERT, District Judge:

On September 16, 2010, Plaintiff James B. Ferrari ("Plaintiff") commenced this action asserting claims under 42 U.S.C. § 1983 arising out of Suffolk County's seizure of his vehicle after he was arrested for driving while intoxicated. Pending before the Court are cross-motions for summary judgment filed by Plaintiff and Defendant Suffolk County (the "County"). For the following reasons, both motions are GRANTED IN PART and DENIED IN PART.

BACKGROUND

I. Legal Framework: Krimstock & its Progeny

In Krimstock v. Kelly, 306 F.3d 40 (2d Cir. 2002) ("Krimstock I"), the Second Circuit held that, although the police can temporarily seize a vehicle while arresting a drunk driver, the municipality cannot indefinitely hold the vehicle pending resolution of a civil forfeiture proceeding. Instead, the Second Circuit found that "the Fourteenth Amendment guarantee that deprivations of property be accomplished only with due process of law requires that plaintiffs be afforded a prompt post-seizure, pre-judgment hearing before a neutral judicial or administrative officer." Id. at 67. The Circuit "declin[ed] to dictate a specific form for the prompt retention hearing," but held that "at a minimum, the hearing must enable claimants to test the probable validity of continued deprivation of their vehicles, including the [municipality]'s probable cause for the initial warrantless seizure" and "whether less drastic measures than impoundment, such as a bond or a restraining order, would protect the [municipality]'s interest in the allegedly forfeitable vehicle during the pendency of proceedings." Id. at 69-70. The Circuit, in a footnote, also stated that "[a] claimant's proven history of persistent drunkenness or repeated DWI violations . . . might justify a fact-finder in denying release of the vehicle pendentelite." Id. at 66 n.28. The case was remanded to the district court to "fashion[] appropriate relief." Id. at 70.

On remand, the district court concluded that due process requires that, at a post-seizure hearing, the municipality prove by a preponderance of the evidence that: (1) "probable cause existed for the arrest of the vehicle operator," (2) "it is likely that the [municipality] will prevail in an action to forfeit the vehicle," and (3) "it is necessary that the vehicle remain impounded in order to ensure its availability for a judgment of forfeiture." Krimstock v. Kelly, No. 99-CV-12041, 2007 U.S. Dist. LEXIS 82612, at *2 (S.D.N.Y. Sept. 27. 2007).¹ A neutral magistrate must "decide those issues by a statement of findings on the record, or by a written statement to be made a matter of record." Krimstock, 2005 U.S. Dist. LEXIS 43845, at *4; accord Krimstock, 2007 U.S. Dist. LEXIS 82612, at *3. If the municipality fails to meet its burden on any of the three Krimstock elements, the vehiclemust be returned. See Krimstock, 2005 U.S. Dist. LEXIS 43845, at *6-7; Krimstock, 2007 U.S. Dist. LEXIS 82612, at *3.

Shortly after Krimstock I was decided, the New York Court of Appeals took up the issue and also concluded that due process requires "a prompt post-seizure retention hearing" where the municipality must "establish that probable cause existed for the defendant's initial warrantless arrest, that it is likely to succeed on the merits of the forfeiture action, and that retention is necessary to preserve the vehicle from destruction or sale during the pendency of the proceeding." Cnty. of Nassau v. Canavan, 1 N.Y.3d 134, 144-45, 770 N.Y.S.2d 277, 286, 802 N.E.2d 616, 625 (2003).

Courts in New York have consistently looked to the three requirements articulated in both the Krimstock line of cases and Canavan when analyzing whether a post-seizure vehicle retention hearing comports with due process, see, e.g., Boyle v. Cnty. of Suffolk, No. 10-CV-3606, 2010 WL 4340627, at *2 (E.D.N.Y. Oct. 19, 2010); Price v. Prop. Clerk of N.Y.C. Police Dep't, 74 A.D.3d 1078, 1079, 903 N.Y.S.2d 142, 144 (2d Dep't 2010), and the Krimstock standard has been incorporated into the Suffolk County Administrative Code, which states, in relevant part, as follows:

[T]here will be a hearing promptly scheduled before a neutral magistrate to determine whether probable cause existed for the defendant's warrantless arrest, whether the County is likely to succeed on the merits ofthe forfeiture action, whether retention is necessary to preserve the vehicle from destruction or sale during the pendency of the forfeiture proceeding, and whether any other measures would better protect the County's interest during the proceedings, including, but not limited to:

(a) Issuance of a restraining order prohibiting the sale, transfer, or loss of the vehicle with imposition(s) of appropriate penalties for violation of said restraining order;

(b) Taking of a bond; and/or

(c) Use of an interlock device.

(Gatto Decl. Ex. R.)²

II. Factual Background³

On May 26, 2009, Plaintiff was arrested after being pulled over for driving under the influence of drugs and/or alcohol. (Cnty. 56.1 Stmt. ¶ 4; Gatto Decl. Ex. B.) He was subsequently indicted and formally charged with driving while intoxicated in violation of N.Y. Veh.&Traf.Law § 1192.3, drivingwhile impaired by drugs in violation of N.Y. VEH.&TRAF.LAW § 1192.4, driving while impaired by the combined influence of drugs and alcohol in violation of N.Y. VEH.&TRAF.LAW § 1192.4-a, and criminal possession of a controlled substance in the seventh degree in violation of N.Y. PENAL LAW § 220.03. (Gatto Decl. Ex. I; Cnty. 56.1 Stmt. ¶ 5.) Upon his arrest, the 2003 Ferrari that he was driving was temporarily impounded pending a post-seizure retention hearing. (Cnty. 56.1 Stmt. ¶ 6; Gatto Decl. Ex. F.)

Plaintiff received a Notice of Seizure and Hearing, dated May 28, 2009, scheduling a retention hearing for June 9, 2009. (Cnty. 56.1 Stmt. ¶ 6, Pl. 56.1 Stmt. Ex. A.) At the hearing, which took place before now-retired Justice John DiNoto, Assistant County Attorney Kelly Green, Esq. represented the County and Andrew J. Campanelli, Esq. (Plaintiff's counsel in the present action) represented Plaintiff. (Pl. 56.1 Stmt. Ex. A, at 2.) At the hearing, the following colloquy between Mr. Campanelli and Justice DiNoto took place after Mr. Campanelli informed the court that Plaintiff would not be attending:

THE COURT: Where is he?

MR. CAMPANELLI: He will not be attending the hearing, Your Honor.

THE COURT: Oh, yes, he will. I am not going to conduct a hearing without him here.

MR. CAMPANELLI: I am here as his counsel. He has consented to my appearing on his behalf.

I don't think he is required to testify at his own hearing, [Y]our Honor.

THE COURT: As far as I am concerned, he is. Credibility is a big issue in any trial, and there may be a determination with respect to the issues that have to be addressed by Counsel asking questions of the Witness--a lot different th[a]n having him subject to cross-examination by the County Attorney. It is a lot different than having hearsay testimony from you.

MR. CAMPANELLI: I don't intend to offer any testimony, Your Honor.

(Id. at 3-4.) Mr. Campanelli then correctly explained that, pursuant to Krimstock, the County--not the Plaintiff--bore the burden of establishing the necessity of retention. (Id. at 4-5.) When Justice DiNoto asked for Ms. Green's response, she asserted that "[her] understanding of the Krimstock [sic] is entirely different th[a]n Counsel's" (id. at 10), and, even though she was prepared to conduct a Krimstock hearing that morning, she asked for time to conduct research on Mr. Campanelli's argument--i.e., the appropriate burden of proof at the hearing (id. at 11 ("Your Honor, I need time.")). Notwithstanding Ms. Green's request, Justice DiNoto interpreted Mr. Campanelli's request as a motion to proceed without Plaintiff and denied the motion. (Id. at 6-7, 12.) The hearing was adjourned to September 1, 2009. (Cnty. 56.1 Stmt. ¶ 8.)

The parties appeared before Judge DiNoto on September 1, 2009. Ms. Green represented the County, and Charles Martin, Esq.of Campanelli & Associates represented Plaintiff. (Pl. 56.1 Stmt. Ex. B, at 2-3.) Plaintiff did not personally appear, and the issue of whether Plaintiff was required to appear was again raised. Ms. Green incorrectly asserted that Plaintiff "should be present" because he "ha[s] the burden under the statute to show hardship." (Id. at 6.) She believed that his failure to appear entitled her to a missing witness charge. Nonetheless, she conceded that she was willing to move forward with the hearing without him. (Id. at 7.) Ms. Green did not call any witnesses. Instead, the parties stipulated to the admission of the following documentary evidence: (1) the felony complaint (Gatto Decl. Ex. B)⁴; (2) a "Drug/Alcohol Influence Report" which revealed that Plaintiff refused to submit to a chemical test (Gatto Decl. Ex. C); (3) a certificate of disposition for a 2007 conviction for driving while intoxicated (Gatto Decl. Ex. D)⁵; (4) his Abstract Driving Record, whichrevealed that Plaintiff had also been convicted of driving while impaired in 2005 and that his license had been suspended and revoked on multiple occasions (Gatto Decl. Ex. D; Cnty. 56.1 Stmt. ¶ 9); (5) Plaintiff's title and registration records for the Ferrari he was driving at the time of arrest, which revealed that he was the owner of the vehicle (Gatto Decl. Ex. E); (6) the May 28, 2009 Notice of Seizure and Hearing (Gatto Decl. Ex. F); and (7) a printout from the Department of Motor Vehicles revealing that Plaintiff also had a 2003 Land Rover registered in his name (Gatto Decl. Ex. G; Cnty. 56.1 Stmt. ¶ 9). Mr. Martin did not present any...