Office of Administrative Trials and Hearings

ADDITIONAL INFORMATION FOR ATTORNEYS AND OTHERS REPRESENTING DRIVERS AND OWNERS OF VEHICLES SEIZED BY THE POLICE DEPARTMENT IN CONNECTION WITH ARRESTS

I OATH's Rules of Practice

The hearing at OATH is governed by OATH's rules of practice, which are found in title 48 of the Rules of the City of New York (Title 48 of the RCNY). You are expected to be familiar with those rules, and the additions to those rules, before the hearing.

Representatives must file a written notice of appearance. See 48 RCNY § 1-11(c). The notice confirms that you are the representative for your party. See 48 RCNY § 1-11(d).

OATH strictly prohibits what are called "ex parte" communications. This is when one party talks to the judge without the other party's knowledge. See 48 RCNY § 1-14. However, communications to OATH may be made by telephone conference call, by fax, by mail, by e-mail, or in person at a scheduled conference or hearing in the case. We suggest that you check with the assigned judge's secretary to be sure that the judge is available before placing your conference call. In vehicle forfeiture cases, the parties are the Police Department, the owner of the vehicle, and, only in the event that the owner does not appear, the driver at the time of the seizure.

II Precedent

Vehicle forfeiture cases before OATH are governed by Krimstock v. Kelly, 99 Civ. 12041 (HB), third amended order and judgment (S.D.N.Y. Sept. 27, 2007) and, to a lesser degree, the New York Court of Appeals decision in Canavan v. County of Nassau, 1 N.Y.3d 134, 770 N.Y.S.2d 277(2003).

Under Krimstock v. Kelly, the Police Department must mail notice of the hearing to the driver and the owner of the vehicle within two business days of receipt of the demand for a hearing.

The hearing must be within 10 business days of receipt of the demand, unless postponed or cancelled. See 48 RCNY § 1-32.

Unless the judge directs otherwise, the owner or driver of the car has the right to file an answer to the police petition at any time before the hearing. See 48 RCNY §§1-24, 2-43(b).

Pursuant to Krimstock v. Kelly, the registered owner has the superior right over the driver and the titled owner. In other words, the driver or the titled owner can have a hearing only if the registered owner does not appear.

If someone other than the person who the Police Department thought was the registered or titled owner claims to be the registered or titled owner, that person must produce proof of ownership, such as proof of registration or the original title document.

After taking the car, the Police Department may bring a civil lawsuit known as a forfeiture action, seeking to permanently retain the vehicle.

To research prior OATH decisions in vehicle retention matters go to Citylaw.org.

III Law Review Article

Link to article, How to Win a Krimstock Hearing; Litigating Vehicle Retention Proceedings Befor New York's Office of Administrative Trials and Hearings, by Gregory L. Acquaviva & Kevin M. M^cDonough, 18 Widener Law Jornal 23 (2008).