Williams v. Rosetti

• Decision Date: 25 June 1968
• Citation: 57 Misc.2d 62,291 N.Y.S.2d 738
• Parties: James WILLIAMS, Plaintiff, v. Thomas E. ROSETTI, Property clerk of the Police Department of the City of New York, Defendant.
• Court: New York City Court

Page 738

291 N.Y.S.2d 738

57 Misc.2d 62

James WILLIAMS, Plaintiff, v. Thomas E. ROSETTI, Property clerk of the Police Department of the City of New York, Defendant.

Civil Court of City of New York, Trial Term, New York County.

June 25, 1968.

S. S. Goldsmith, New York City, for plaintiff.

J. Lee Rankin, Corporation Counsel, Nathan B. Silverstein, New York City, of counsel, for defendant.

MAURICE WAHL, Judge.

In this plenary replevin action for a 1963 Chevrolet, the essential facts are not in dispute.

One Leon Williams, son of the plaintiff owned the aforementioned vehicle. At about 3 A.M., on October 8, 1966, Leon Williams drove his vehicle to the area of 71st Street and Broadway, New York City, and there parked it at the curb. He then proceeded on foot to a restaurant nearby. After leaving the restaurant he was accosted by a female who was engaged in prostitution. In return for twenty dollars, which Williams handed her, she arranged to meet him in a certain room in a neighboring hotel. They were to go to the hotel separately to avoid suspicion. Williams went to the hotel as planned and waited. When she failed to come, he departed. Soon after, he met this female with a male companion. A quarrel ensued and Leon Williams went back to his parked car, took a gun from the glove compartment, returned to the sidewalk where the other two were standing and with this gun shot and killed both the female and male companion. The act on the part of Leon Williams merely emphasizes the need for proper legislation to control the free use and ownership of firearms.

The culprit was apprehended some five or six hours after the shooting at his residence on West 80th Street, in New York City. The police at the same time also recovered the murder weapon at the residence. Thereafter the police also took possession of the parked vehicle at 71st Street and Broadway--some nine blocks from where Leon Williams was apprehended and the murder weapon was found.

On December 12th, 1966, Leon Williams sold his aforesaid motor vehicle to his father, James Williams, the plaintiff herein. On May 5th, 1967, Leon Williams was sentenced to a term of ten to twenty-five years in the State Prison, where he is presently confined at Auburn, New York.

The defense interposed here rests upon two grouns. First, that as Leon Williams' civil rights are suspended by reason of his conviction and sentence, as aforesaid, his sale and assignment of his motor vehicle to his father, plaintiff herein is invalid. Second, that the provisions of Section 435--4.0 of the New York City Charter and Administrative Code require the forfeiture of the vehicle.

The first contention and defense is specious and totally without merit. The authorities submitted were not in point and the Court was required to do independent research to demonstrate the invalidity of this defense.

Neither, In re Layton v. Rosetti, unreported, Geller, J.; Szell v. Nanna, Helman, J., nor Turley v. Police Property Clerk, Dickens, J., sustain the defense position. Each of those cases, were special proceedings, under Article 78, Civil Practice Act. As was properly pointed out by each of these learned jurists, the procedure is a plenary replevin suit. Thus the dismissals of each of those proceedings was proper, but are no authority for the defense herein. In each of those proceedings that a convicted felon is under a disability to prosecute a civil right is merely obiter dictum.

Even so, in a proper plenary suit, the court held with unassailable logic and reason, that since a convicted felon may be sued and thus afforded resort to defense, thereof, a resort to use of civil rights (sec. 165, Civil Practice Act omitted in CPLR but cf. Sec. 2103(b), 2103(c), 2303 CPLR) is available. This is amply demonstrated by the decision in Matter of Weber's Estate, 165 Misc. 815 at pp. 816, 817, 1 N.Y.S.2d 809, at p. 810, where the Court said:

Section 510 of the Penal Law now states a rule which has existed throughout the greater portion of the history of this State. Nevertheless, its meaning today, as in earlier times, is by no means well settled. LaChapelle v. Burpee, 69 Hun 436, 440, 23 N.Y.S. 453. There is no doubt that the use of court process is a civil right. Section 10 of the Civil Rights Law expressly so provides. Yet a literal proscription of use by a convict of all civil process under any and all circumstances would eventuate in forfeiture of property rights of convicts. No such forfeitures are today among the penalties inflicted upon felons. Moreover, commitment to prison does not afford immunity to a prisoner against suit brought by an aggrieved party. (Civ.Prac.Act, sec. 165.) And since a prisoner can be sued while at the same time he is subject to neither direct nor indirect forfeitures of property because of his criminality, he must have the right to use court process to the extent necessary to defend himself in a suit. The rule resulting from the necessities of the situation and one amply supported by authority is that though an imprisoned felon cannot prosecute a suit or institute a special proceeding he can defend himself in an action or proceeding instituted against him. (Bowles v. Habermann, 95 N.Y. 246, 250; Green v. State, 251 App.Div. 108, 295 N.Y.S. 672; Bonnell v. Rome W. & O.R.R. Co., 12 Hun 218, 219, 220.

This rationale was further supported in Rowland v. Smith, Sup., 52 N.Y.S.2d 362.

Even a convicted felon is not barred from making an assignment or sale of his property. Bamman v. Erickson, 259 App.Div. 1040, 21 N.Y.S.2d 40. There the court specifically overruled the contention that plaintiff's assignor, because he was a felon, could not while in a State prison make an assignment of the cause of action because of the disabilities imposed upon a felon by section 510 of the Penal Law.

Nor does a receiver of a felon's property, who succeeds thereto by operation of law, lose the right. In Kugel v. Kalik, 176 Misc. 49, 50, 25 N.Y.S.2d...