People v. Midland Ins. Co.

• Decision Date: 07 December 1978
• Parties: The PEOPLE of the State of New York v. MIDLAND INSURANCE COMPANY, Surety, for Jeffrey Jacobi, Principal.
• Court: New York Supreme Court

Page 521

411 N.Y.S.2d 521

97 Misc.2d 341

The PEOPLE of the State of New York v. MIDLAND INSURANCE COMPANY, Surety, for Jeffrey Jacobi, Principal.

Supreme Court, Trial Term, Bronx County, Part 19.

Dec. 7, 1978.

Mario Merola, Dist. Atty. (Robert J. Carlucci, Merrick, of counsel), for plaintiff.

James M. Newman, New York City, for Surety.

WILLIAM KAPELMAN, Justice:

The surety moves for remission of forfeiture of bail pursuant to Criminal Procedure Law § 540.30 on the ground that the principal is deceased and the indictment has been abated by death. In addition, the indemnitor on the bail bond alleges that he will suffer severe hardship if the collateral on the bail bond is not returned to him.

On August 15, 1977, the surety posted bail for the appearance of the principal in Supreme Court, Bronx County, in the form of a bail bond in the sum of Fifteen Thousand ($15,000) Dollars. The indemnitor on the bail bond had paid Eight Thousand Three Hundred ($8,300) Dollars to the surety as collateral.

On October 25, 1977, the principal failed to appear in Supreme Court, Bronx County, and the Court entered such facts in the minutes. A bench warrant was issued, and the bail bond was forfeited (CPL § 540.10(1)). On November 16, 1977, a judgment against the surety was entered by the Office of the Clerk, Bronx County (CPL § 540.10(3)). On March 17, 1978, the surety paid the sum of Fifteen Thousand Three Hundred Seventy-Five ($15,375) Dollars to the Comptroller of the City of New York in satisfaction of the judgment.

On May 1, 1978, the surety was informed by the indemnitor that the principal had died on April 29, 1978. On July 14, 1978, the indictment pending against the principal was abated by death on the application of the District Attorney (Cioffi, J.).

The surety's notice of motion for remission of forfeiture of bail and supporting papers were served and filed on October 23, 1978. The motion was made returnable on November 1, 1978.

The District Attorney argues that the motion should be denied because (1) it is untimely; and (2) the ground relied on by the surety does not provide a legal basis for granting the motion.

The Criminal Procedure Law specifically requires that an application for remission of forfeited bail must be made within one year after the forfeiture of the bail is declared and must be supported by an adequate affidavit and papers to provide the Court, in the exercise of its discretion, a basis for granting the application (CPL § 540.30(2); People v. Public Service Mutual Ins. Co., 37 N.Y.2d 606, 611-612, 376 N.Y.S.2d 421, 425, 339 N.E.2d 128, 132 (1975)). Since a surety has no vested right to a remission of bail after forfeiture except as allowed by statute, the terms of the statute must be strictly complied with and cannot be waived by a concession by the District Attorney (People v. Public Service Mutual Ins. Co., supra, at 612, 376 N.Y.S.2d at 425, 339 N.E.2d at 132; People v. Cohen, 245 N.Y. 419, 422, 157 N.E. 515, 516 (1927); People v. Martin, 225 App.Div. 572, 573, 233 N.Y.S. 643, 644 (1st Dept. 1929); People v. Grundy, 218 App.Div. 541, 543-544, 218 N.Y.S. 420, 421 (1st Dept. 1926); Matter of White, 41 Misc.2d 994, 246 N.Y.S.2d 891 (Sup.Ct. Kings Co. 1964)). Of course, it is well settled that the declaration of forfeiture occurs when the fact of the principal's nonappearance is entered in the minutes (CPL § 540.10(1)). On that date, the liability of the surety to pay the amount of bail accrues, and no formal judgment is necessary to fix the obligation of the surety. The maturity of the debt occurs on the date of the forfeiture while the entry of judgment relates merely to the application of the remedy for the enforcement of the debt (People v. Bennett, 136 N.Y. 482, 487-488, 32 N.E. 1044, 1047 (1893); People v. Brown, 408 N.Y.S.2d 927 (Sup.Ct. Queens Co. 1978) (N.Y.L.J., 9/21/78, pp. 12-13); People v. Bliss, 66 Misc.2d 398, 400, 321 N.Y.S.2d 182, 183 (Sup.Ct. Nassau Co. 1971); People v. Continental Casualty Co., 200 Misc. 546, 547-549, 105 N.Y.S.2d 566, 567 (Sup.Ct. N.Y. Co. 1951), Aff'd, 279 App.Div. 654, 108 N.Y.S.2d 990 (1st Dept. 1951)).

In the case at bar, the forfeiture of the bail was declared when the principal failed to appear in court and that fact was entered in the minutes on October 25, 1977. Consequently, the application for remission of forfeiture of bail must have been made by October 25, 1978. Because the surety's notice of motion and supporting papers were served on October 23, 1978 and the motion was made returnable on November 1, 1978, the issue exists as to when the motion was "made".

There is presently a division of authority as to whether a motion for remission of forfeited bail is made on the return date (see People v. Bradford, 73 Misc.2d 309, 342 N.Y.S.2d 364 (Sup.Ct. Queens Co. 1973); People v. Brenner, 167 Misc. 555, 4 N.Y.S.2d 291 (Co.Ct. Kings Co. 1938)) or when the notice of motion is served (see People v. Stuyvesant Ins. Co., 88 Misc.2d 300, 387 N.Y.S.2d 218 (Sup.Ct. Bronx Co. 1976)). Since this special proceeding is civil in nature, consisting of an independent application to a court for relief (People v. Public Service Mutual Ins. Co., supra, 37 N.Y.2d at 610, 376 N.Y.S.2d at 423, 339 N.E.2d at 130; People v. Fiannaca, 306 N.Y. 513, 516, 119 N.E.2d 363, 365 (1954); People v. Parkin, 263 N.Y. 428, 433, 189 N.E. 480, 483 (1934)), the Civil Practice Law and Rules, governing procedure in civil judicial proceedings in all courts of the state except where the procedure is regulated by inconsistent statute, is clearly applicable (CPLR §§ 101, 105(d)). A motion on notice is made when a notice of the motion is served (CPLR § 2211; see Practice Commentary, David D. Siegel, McKinney's Cons.Laws of N.Y., Book 7B, CPLR § 2211, p. 31). Prior to 1941, the courts held that a motion was "made" when it was returned in court and not when the notice was served (Low v. Bankers Trust Co., 265 N.Y. 264, 265, 192 N.E. 406, 407 (1934); Clinton Trust Co. v. Mahoney, 252 App.Div. 763, 299 N.Y.S. 32 (2d Dept. 1937); Cleary v. New York State Railways, 199 App.Div. 28, 29, 191 N.Y.S. 71, 72 (4th Dept. 1921)). In that year, Civil Practice Act § 113, the predecessor statute to Civil Practice Law and Rules § 2211, was amended to declare that a motion is "made" when notice is served (L.1941, c. 266). The District Attorney's reliance on Brenner is therefore misplaced, since that case was decided in 1938 under the prior statute. The Bradford case, decided in 1973, merely relied on Brenner, and this Court most respectfully believes that Bradford therefore incorrectly stated the law as it has existed since 1941.

Thus, service of the surety's notice of motion on the District Attorney on October 23, 1978, two days before the expiration of the one-year statute of limitations, satisfied the requirements of the statute. The fact that the statute requires that the application be made upon at least five days notice to the District Attorney (CPL § 540.30(2)) does not alter this conclusion, for the notice requirement concerns the return date for a hearing on the motion rather than a further limitation on the time...