Defendant, DCFS TRUST (hereinafter referred to as "DCFS"), moves for an order, pursuant to CPLR §§3212, and 7109(b), granting it summary judgment declaring that it is an "innocent owner" as defined by Nassau County Administrative Code § 8-7.0(g)(4)(f) and, as such, has a superior possessory right to the vehicle that is the subject of this forfeiture action, specifically a 2003 Jeep Liberty bearing Vehicle Identification Number IJ4G;58K43W500781. Plaintiff, COUNTY OF NASSAU (hereinafter referred to as the "COUNTY"), submits an affirmation in partial support of the motion and defendant, LIANNE GONZALEZ, submits an affidavit in opposition. The motion is determined as follows:

In this action, pursuant to Nassau County Administrative Code (NAC) § 8-7.0(g)(4), the COUNTY seeks the forfeiture of the subject vehicle that was leased to GONZALEZ on October 25, 2002, under a Motor Vehicle Lease Agreement with DCFS, in which GONZALEZ agreed to make equal monthly lease payments of $358.14 for the term of the lease and to comply with various terms and conditions relating to the use of the vehicle in a safe manner. Counsel for DCFS states that the complaint alleges that GONZALEZ was arrested for driving while intoxicated which subjects the leased vehicle to loss by forfeiture which is a default pursuant to the terms of the lease agreement, and which entitles DCFS to repossession of the vehicle under the contract in that it had no knowledge that the vehicle was being used in violation of the contract or to further illegal purposes. Counsel for DCFS argues that, notwithstanding that GONZALEZ switched the subject vehicle from a lease to a finance agreement, on October 26, 2006, which was allegedly done without DCFS' knowledge, the security agreement of October 26, 2006 (allegedly annexed as Exhibit "B" to the moving papers but which has not been provided), was created at a time when the vehicle was subject to forfeiture claim and constitutes a default under the security agreement. It is DCFS' position that GONZALEZ immediately [*2]breached the promise to keep the vehicle free from the claims of others as, from the inception of the security agreement, it was subject to the claims of the COUNTY.

Counsel for the COUNTY partially supports the motion of DCFS and advises that, on May 6, 2006, GONZALEZ was arrested for driving while intoxicated, a per se violation of Vehicle and Traffic Law ( VTL) §1192.2, and after a breath test which indicated that her blood alcohol content was .15%, she was charged with violation of VTL §§1192.2, 1163(D), 1163(A) and 1160(A). Counsel for the COUNTY states that, at the time of her arrest, GONZALEZ was provided with a "Vehicle Seizure Notice", which was also mailed to all defendants by certified mail and, on May 26, 2006, GONZALEZ pled guilty to a violation of VTL §1192.2, driving while intoxicated per se. It appears that GONZALEZ was served with the summons and complaint in the instant action on September 15, 2006 but no answer has been submitted on GONZALEZ' behalf although her attorney has recently requested an extension of time to answer the complaint.

Although counsel for the COUNTY argues that DCFS has established that it is an "innocent owner" under Nassau County Administrative Code §8-7.0(g)(4) and, therefore, its interest in the vehicle is not subject to forfeiture, it acknowledges that, on or about October 26, 2006, after the natural expiration of the lease, GONZALEZ financed the subject vehicle from Daimler Chrysler Financial Services Americas, LLC, a separate entity from DCFS, at which time title to the vehicle was transferred from DCFS to GONZALEZ, and Daimler Chrysler Financial Services Americas, LLC was added to the title as a lienholder of the subject vehicle. It is the COUNTY's position that, because GONZALEZ was arrested while the car was under the lease with DCFS, that GONZALEZ defaulted under the lease and the then leaseholder, DCFS is an "innocent owner" within the definition of NAC § 8-7.0(g)(4), and is entitled to possession of the vehicle by the terms of the contract with GONZALEZ. In the alternative, counsel for the COUNTY states that, should the Court decline to grant DCFS' motion, the COUNTY will be able to proceed on its own motion for title and possession of the subject vehicle as against GONZALEZ , the current title owner, uninhibited by any innocent owner claim.

In opposition to the motion, GONZALEZ submits an affidavit in which she points out that she made all 48 payments required under the lease agreement with DCFS and that the lease terminated upon its natural expiration on October 25, 2006. Thereafter, she states that she entered into a Security Agreement with "Daimler Chrysler Financial Services LLC/DCFS Trust" for the purchase of the 2003 Jeep and agreed to pay 36 monthly installments of $344.41. She asserts that, notwithstanding DCFS' claim that it had no knowledge of said transaction, GONZALEZ contends that the finance agreement was entered into with the same company, DCFS, who had knowledge of the pending forfeiture action by the COUNTY because they had been served with the Summons and Complaint. It is GONZALEZ' position that she is currently the owner of said vehicle, subject to the lien of Daimler Chrysler Financial Services LLC, and that any rights of DCFS in the vehicle under the lease ended on October 25, 2006 when the lease expired. She claims that the interest she now holds in the vehicle did not exist at the time of her arrest and her counsel argues that the fact that GONZALEZ purchased the same vehicle and entered into a Security Agreement with the lender should have no bearing on the instant motion as there would likely be no pending claim against GONZALEZ had she chosen to purchase any other vehicle. [*3]

"On a motion for summary judgment pursuant to CPLR §3212, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact". Sheppard-Mobley v King, 10 AD3d 70, 778 NYS2d 98 (2d Dept. 2004), citing Alvarez v Prospect Hosp., 68 NY2d 320, 324; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853. "Failure to make such a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers." Sheppard-Mobley v King, supra ; Winegrad v New York Univ. Med. Ctr., supra . Once the movant's burden is met, the burden shifts to the opposing party to establish the existence of a material issue of fact. Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595, 404 NE2d 718 (C.A.1980).

Accordingly, after a careful reading of the submissions herein, it is the judgment of the Court that movant has not established that it is entitled to judgment as a matter of law. It does not appear that DCFS can be declared an "innocent owner" with a superior possessory interest to the vehicle that is the subject of the action, when it has been paid in full under the lease, which expired on October 25, 2006, particularly if it received notice of the forfeiture action. Clearly questions remain as to the rights to the vehicle by the financing company, Daimler Chrysler Financial Services Americas, LLC, under the security agreement of October 26, 2006, but that entity is not a party to this action, nor has copy of the security agreement been provided to the Court for review. The Court finds that movant has not established its prima facie entitlement to possession of the vehicle and the motion must be denied. Based on the foregoing, it is hereby

ORDERED, that "DCFS" motion, pursuant to CPLR §§3212, and 7109(b), granting it summary judgment declaring that it is an "innocent owner" as defined by Nassau County Administrative Code § 8-7.0(g)(4)(f) and, as such, has a superior possessory right to the vehicle that is the subject of this forfeiture action, specifically a 2003 Jeep Liberty bearing Vehicle Identification Number IJ4G;58K43W500781, is denied; and it is further

ORDERED, that the parties shall appear for a Preliminary Conference on September 16, 2008, at 9:30 A.M. in Differentiated Case Management Part (DCM) at 100 Supreme Court Drive, Mineola, New York, to schedule all discovery proceedings. A copy of this order shall be served on all parties and on DCM Case Coordinator Richard Kotowski. There will be no adjournments, except by formal application pursuant to 22 NYCRR §125.

All further requested relief not specifically granted is denied.

This constitutes the order and judgment of the Court.

Dated: August 15, 2008

_________________________

William R. LaMarca, J.S.C.

TO:

nassau-gonzalez & dcfstrust,#

1/sumjudg