City Court of Poughkeepsie, June 28, 2019

Paul Ackermann, Corporation Counsel, Poughkeepsie (Victor Aqeel of counsel), for defendant.

Raymond Earl Warren, Jr., plaintiff pro se.

On December 14, 2018, plaintiff filed the instant small claims action seeking to recover $459 from defendant, said sum representing personal money seized from plaintiff by the City of Poughkeepsie Police Department upon his arrest in 1992. The criminal charges were dismissed in 2018. Shortly thereafter, plaintiff demanded return of his money, but defendant has failed to do so. On February 22, 2019, the parties stipulated in this court to certain facts, and defendant requested permission of the court to file a motion to dismiss, which was granted. In furtherance of defendant's application to dismiss the action, defendant filed the instant memorandum of law, dated March 8, 2019. Plaintiff has opposed the application to dismiss and has filed a memorandum of law, dated March 21, 2019. Having read and duly deliberated upon the defendant's application, the plaintiff's opposition, and all of the papers and proceedings filed herein and before, the court finds and determines the defendant's application to dismiss as follows:

On or about August 12, 1992, plaintiff was arrested by the City of Poughkeepsie Police Department for criminal possession{**66 Misc 3d at 540} of a controlled substance in the third degree in violation of Penal Law § 220.16 (1), a class B felony, and other related drug charges. At the time of his arrest, the police seized $459 in cash from plaintiff. The drug charges were held for action of the grand jury, but the People did not pursue prosecution. More than 25 years after plaintiff was first arrested, plaintiff moved in Dutchess County Court to dismiss the charges via motion, dated November 30, 2017. Plaintiff's motion was granted by Hon. Peter M. Forman in a decision and order, dated February 22, 2018.

After the charges were dismissed, plaintiff filed a petition in Dutchess County Court for "remission of forfeiture" which sought to recover the $459 in cash seized from plaintiff when he was arrested. The People opposed the motion on the grounds that "[t]he District Attorney is not in possession of the money Petitioner seeks to have returned, never was in possession of such money and never commenced a forfeiture proceeding to obtain that money." (Exhibit D of plaintiff's petition, Bridget Rahilly Steller affirmation, dated May 9, 2018, ¶ 2.) Via decision and order, dated May 11, 2018, Judge Forman denied plaintiff's petition seeking remission of personal property ($459) on the grounds that no forfeiture proceeding was ever commenced, and no stipulation and assignment consenting to forfeiture was ever entered. The court concluded that "[t]o the extent that the funds that were seized at the time of defendant's arrest remain in the possession of the City of Poughkeepsie Police Department, any remedy that defendant may have to seek the return of those funds lies outside the context of a forfeiture proceeding."

Shortly after Judge Forman issued his decision denying remittur of the money, plaintiff filed a "Demand for Return of Personal Property" upon the City of Poughkeepsie Police Department, dated May 31, 2018.^[FN1] When the police failed to return the money, plaintiff commenced the instant small claims lawsuit to recover his money. Defendant now moves to have the case dismissed on the grounds that (1) plaintiff is not entitled to the money now because it was disposed of in that it was paid over to the Commissioner of Finance after it was left unclaimed for more than six months (citing Poughkeepsie City Administrative Code § 10.09 [d]); and (2) plaintiff is barred by{**66 Misc 3d at 541} laches in asserting the instant claim because there was an unreasonable and inexcusable delay in demanding return of his money and this delay is prejudicial to the defendant.

In opposition, plaintiff argues that (1) neither the City Police Department nor the District Attorney's Office provided him with any written notice of the procedures describing how to recover the property it seized from his person; (2) the City Police Department failed to properly document the money it seized pursuant to Penal Law § 450.10 (8); (3) the District Attorney never authorized that the money be released; and (4) the City's claim that it could release it because there was no demand from the District Attorney's Office to hold onto the money is unsupported by the law.

It is undisputed that the City of Poughkeepsie Police Department seized $459 from the plaintiff at the time of his arrest. It is further undisputed that the charges upon which he was arrested were dismissed. Finally, it is undisputed that no proceeding was ever instituted by any government entity to deem the money seized from the plaintiff at the time of his arrest was subject to forfeiture. Defendant claims it no longer has the money to return because it was turned over to the City of Poughkeepsie Finance Department more than 12 years after plaintiff's arrest on December 9, 2004, which amounts to nearly 15 years ago. The best defendant can discern based upon records available to it now is that the Police Department released the cash from its possession because the funds were deemed "unclaimed."

The goal of the small claims part is to provide a simplified and expeditious manner for [*3]claims to be heard "without the burden of being bound by statutory rules of practice, procedure, pleading and evidence." (Celona v Celona, NYLJ, Mar. 25, 1994 at 7, col 3 [Westchester City Ct 1994], citing MacCollam v Arlington, 94 Misc 2d 692 [Albany City Ct 1978]; Weiner v Tel Aviv Car & Limousine Serv., 141 Misc 2d 339 [Civ Ct, NY County 1988]; Harding v New York State Teamsters Council Welfare Trust Fund, 60 AD2d 975 [4th Dept 1978], lv dismissed 44 NY2d 641 [1978].)

Motion practice is discouraged in these venues (id., citing Weiner v Tel Aviv Car & Limousine Serv., 141 Misc 2d 339 [Civ Ct, NY County 1988] [motion to dismiss for failure to state a claim is inappropriate]; Clegg v Bon Temps, 114 Misc 2d 805, {**66 Misc 3d at 542}809 [Civ Ct, NY County 1982]) and lawyers are discouraged from participating in small claims courts since their involvement often leads to delay. (Celona v Celona.)

Notwithstanding the above, this court granted defendant's request seeking permission to file a summary judgment motion to dismiss. While discouraged, such motions may be entertained in small claims court (Rozz v Village Auto Body Works, Inc., 35 Misc 3d 13 [App Term, 2d Dept, 9th & 10th Jud Dists 2012]; Anderson v Dutchess County, 12 Misc 3d 94 [App Term, 2d Dept, 9th & 10th Jud Dists 2006]; Spiegel v Continental Airlines, 11 Misc 3d 145[A], 2006 NY Slip Op 50812[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2006]). It is well settled that "the drastic remedy of summary judgment is appropriate [only] where a thorough examination of the merits clearly demonstrates the absence of any triable issue of fact." (Vamattam v Thomas, 205 AD2d 615, 615 [2d Dept 1994], citing Piccirillo v Piccirillo, 156 AD2d 748 [2d Dept 1989].) The party seeking summary judgment must sufficiently establish the cause of action (or defense) and must tender evidentiary proof in admissible form to warrant the court, as a matter of law, to direct judgment in his favor. (Bush v St. Clare's Hosp., 82 NY2d 738, 739 [1993], citing Zuckerman v City of New York, 49 NY2d 557, 562 [1980].) In short, the party moving for summary judgment relief bears the initial burden to show a prima facie case of entitlement to judgment by demonstrating the absence of any material issues of fact. (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; see North Fork Bank Corp. v Graphic Forms Assoc., Inc., 36 AD3d 676 [2d Dept 2007].) Here, this court finds that the defendant has failed to demonstrate the absence of any material issue of fact.

In support of its motion, defendant does not provide any evidentiary proof in admissible form to warrant judgment as a matter of law in its favor. While defendant relies upon Poughkeepsie City Administrative Code § 10.09 in support of its motion, defendant does not provide a copy of the City's required "book" demonstrating a recording of who seized the money, the amount of money seized, the name and address of the person from whom it was taken, the place and time of its seizure with the general circumstances surrounding its seizure, etc.—as is required by Poughkeepsie City Administrative Code § 10.09. If such book no longer exists, defendant has failed to provide an explanation as to why it does not exist, or the efforts made to find the book, witnesses, or any other information, nor does defendant{**66 Misc 3d at 543} provide the period of time with which such public records are required to be maintained by the City. Record retention laws vary depending upon the records. Likewise, the defendant fails to provide this court with the documentary proof defendant relies upon to support its claim of how it knew the exact date that the money was in fact released (Dec. 9, 2004), or how it knew the money was released to the Commissioner of Finance. Moreover, despite the fact that the law provides that the plaintiff be given notice prior to release of the property, the defendant makes no evidentiary claim with respect to whether proper notice was given or not. Instead, and despite the fact that clearly there [*4]exists some records available to defendant relative to this matter, defendant argues in conclusory terms that plaintiff's delay in bringing the action creates prejudice to the defendant to defend the claim. Defendant's vague arguments of general prejudice are insufficient to grant its motion to dismiss.

1. Defendant's claim that the action must be dismissed because it is barred by the doctrine of laches is without merit.

Defendant's claim that plaintiff's cause of action is barred by the equitable doctrine of laches is not supported by any evidence in its motion or controlling case law.

Defendant argues that the witnesses and documents are no longer available to them to defend the instant claim, and that plaintiff's filing 25 years after the cause of action arose greatly prejudices its ability to defend the claim. Defendant relies, in part, upon Railroad Telegraphers v Railway Express Agency, Inc. (321 US 342 [1944]), which held that the statute of limitations,

"like the equitable doctrine of laches, . . . [is] designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared. The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them." (Id. at 348-349.)

This argument is persuasive because we know that the primary purpose of the statute of limitations is to relieve a defendant of the need to investigate and prepare a defense where{**66 Misc 3d at 544} the action is commenced after the statute of limitations expires. (Matter of Parker v Port Auth. of N.Y. & N.J., 113 AD2d 763 [2d Dept 1985].) Here, it has been 25 years since the money was first seized, but it has been less than a year since the charges were dismissed. As such, the analysis must not end here.

[1] In this case, the City took control of the plaintiff's money only because of his arrest. The seizure and lawful taking possession of the plaintiff's money without present intent to appropriate same created a bailment. (Wikiert v City of New York, 128 AD3d 128, 132 [2d Dept 2015], citing Martin v Briggs, 235 AD2d 192 [1997], quoting Seaboard Sand & Gravel Corp. v Moran Towing Corp., 154 F2d 399, 402 [2d Cir 1946].) Since the instant action sounds in replevin arising out of a constructive bailment, and the statute of limitations for both replevin and bailment is three years (CPLR 214), a determination of when the cause of action accrued is in order. (Wikiert v City of New York, 128 AD3d 128, 139 [2d Dept 2015]; see Capezzaro v Winfrey, 153 NJ Super 267, 379 A2d 493 [1977] [court held that police department's release of money to the defendant, who had been charged with robbery, constituted a breach of a constructive bailment owed to plaintiff—whose money it was].) Plaintiff's claim here against the City of Poughkeepsie did not accrue until May 31, 2018—the date the plaintiff filed a demand upon the City of Poughkeepsie Police Department seeking a return of his money from the property clerk. (Wikiert v City of New York at 135 [the Court held that plaintiff's claim against the City accrued when plaintiff attempted to recover his property that was seized by police upon his arrest from the property clerk].) In short, the plaintiff herein demanded return of his money immediately after [*5]the matter was dismissed,^[FN2] albeit 25 years after the arrest. Plaintiff then commenced the instant action seeking return of the money less than 10 months after the charges were dismissed—on December 14, 2018. Therefore, the instant complaint is not time-barred, whether the action sounds in negligence, replevin, conversion, bailment, or even breach of contract.{**66 Misc 3d at 545}

2. Defendant's claim that the matter should be summarily dismissed because the money was left unclaimed for more than six months is without merit as well.

Defendant's argument that the case should be summarily dismissed on the grounds that the money was left unclaimed by plaintiff in excess of six months is also unsupported by the evidentiary proof in defendant's motion, as well as controlling case law. (Moreno v City of New York, 69 NY2d 432 [1987].)

As a preliminary matter, "[o]ne of the basic principles guiding public life in this country is that no governmental body may confiscate a citizen's property without due process of law." (Matter of Charles W., 125 Misc 2d 545, 548 [Fam Ct, Monroe County 1984], citing US Const, 14th Amend, NY Const, art I, § 6, Goldberg v Kelly, 397 US 254 [1970], Dobkin v Chapman, 21 NY2d 490 [1968], 28 USC § 1343, and McClendon v Rosetti, 460 F2d 111 [1972]; see Stengel v Smith, 18 AD2d 458 [4th Dept 1963].) In fulfilling this principle, the property clerk has a constitutionally mandated duty to return money and property to its rightful owner upon timely demand, or in the alternative, institute a forfeiture proceeding or other judicial proceeding. (Matter of Charles W. at 548.)

[2] Here, presuming that the money was lawfully seized from the plaintiff, it remains that after the criminal charges were dismissed, the City had a duty to return the money to its owner upon due demand. (Boyle v Kelley, 53 AD2d 457 [2d Dept 1976] [Court held that General Municipal Law § 50-e (notice of claim) was inapplicable, and that money should be returned to the plaintiff as a matter of fundamental fairness and justice. Defendant is not permitted to withhold money which does not belong to him and which rightfully belongs to the plaintiff]; compare Matter of Ramirez v City of White Plains, 306 AD2d 488 [2d Dept 2003]; Matter of DeBellis v Property Clerk of City of N.Y., 79 NY2d 49 [1992] [holding that the purpose of the procedures set forth in McClendon v Rosetti was to ensure that property be returned upon demand and in accordance with a claimant's due process rights. The procedure was to make it easier for claimants to retrieve property taken from them and not place procedural obstacles in their way to recovering property once those proceedings have been terminated or it is determined that the property is not needed for the criminal proceedings].) In sum, the government does not have a right to seize and then dispose of a person's property prior to termination of the criminal proceedings without due process of law.{**66 Misc 3d at 546}

Yet, here, it is undisputed that the money was seized and then disposed of prior to termination of the criminal proceedings, leaving unanswered questions as to whether it was disposed of by first affording the claimant due process of law. Plaintiff claims he never received notice, nor a copy of the procedures to recover his money, while defendant neither concedes nor [*6]disputes whether it provided plaintiff notice prior to releasing the money. This material question of fact warrants denial of defendant's motion to dismiss.

Defendant's motion relies largely upon the Poughkeepsie City Administrative Code § 10.09^[FN3] which provides no mechanism for notice to the claimant prior to disposing of detained property.^[FN4] Without such notice, the ordinance does not meet minimal due process requirements. (See McClendon v Rosetti, 460 F2d 111 [2d Cir 1972].) The court in McClendon held that the Administrative Code of the City of New York was unconstitutional as it applied to people who are dispossessed of their money or property, or other contraband, which has been taken but is not related to any criminal proceeding, on the grounds, in part, that the ordinance permitted the City to dispose of detained property without notice to any claimant.{**66 Misc 3d at 547}

In addition, Penal Law § 450.10 (8) specifically requires that the claimant from whom property is taken be served with a receipt of the property taken from him/her:

"Except in the city of New York, when money or other property is taken from a defendant, arrested upon a charge of an offense, the officer taking it must, at the time, give duplicate receipts therefor, specifying particularly the amount of property taken, one of which receipts he must deliver to the defendant, and the other of which he must forthwith file with the court in which the criminal action is pending."

Finally, the City of Poughkeepsie's contention that plaintiff's cause of action must be dismissed because his right to recover the money was lost after it was left unclaimed after six months was specifically rejected by the Court of Appeals in Moreno v City of New York (69 NY2d 432 [1987]).

In Moreno, the police seized money from plaintiff following his arrest. The charges were [*7]dismissed. The Administrative Code of the City of New York authorized the property clerk to dispose of property left unclaimed after 90 days measured from the date of the disposition of the criminal proceeding or the date of the district attorney's release, whichever was sooner. Moreno demanded return of his money more than 90 days after the charges were dismissed. The property clerk rejected the demand as untimely. Plaintiff commenced a replevin action to recover the money. The trial court dismissed plaintiff's complaint. The Appellate Division affirmed the dismissal, and the Court of Appeals reversed. The Court of Appeals held that while the Administrative Code of the City of New York fixed a time frame upon which the property clerk could be relieved of responsibility to retain money in its custody and transfer it from one fund to another, it did not impose an obligation on the claimant to demand the money within 90 days of the dismissal of the criminal charges, nor did it impair the claimant's right to demand return of the property seized or its value in a replevin action. (Moreno v City of New York at 436.)

Unlike the Administrative Code of the City of New York, here the Poughkeepsie City Administrative Code is vague and provides no instruction as to when the period of six months commences, but conveniently, this defendant concludes that it is measured from the arrest. Notwithstanding, like the Administrative Code of the City of New York in Moreno, the{**66 Misc 3d at 548} Poughkeepsie City Administrative Code imposes no obligation on the claimant to demand the money within six months. In fact, just like the Administrative Code of the City of New York in Moreno, the Poughkeepsie City Administrative Code

"simply fixes the point at which the property clerk may be relieved of the responsibility of retaining the moneys in custody, and provides for the transfer of the money from one fund to another at the termination of the statutory period. It does not impose an affirmative obligation on the owner to demand the money . . . or impose any penalty for failure to do so." (Moreno v City of New York at 436.)

Either way, it remains that plaintiff's right to demand the money or recover his money in the instant action was not abridged.

In conclusion, defendant has failed to tender evidentiary proof in admissible form to warrant that the court, as a matter of law, direct judgment in its favor. (Bush v St. Clare's Hosp., 82 NY2d 738, 739 [1993], citing Zuckerman v City of New York, 49 NY2d 557, 562 [1980].) Genuine issues of material fact exist. (Zuckerman at 562.)

Therefore, based upon all of the foregoing, it is hereby ordered that the defendant's motion to dismiss is denied.

"(a) All lost, found or abandoned property or property stolen or suspected of having been stolen or property being or suspected of being the proceeds of crime coming into the custody of any police officer or of any judge in the city shall be delivered to the custody of the police department by such police officer or by order of said judge to be held pending determination of its ownership or other disposition and shall be registered in a book kept for that purpose containing among other things, the name and address of the person from whom taken, a description of the property, the place and time of seizure with the general circumstances, the name and address of the police officer or judge by whom delivered, the name and address of the owner if ascertained, and if not, the claimants thereto and the final disposition thereof . . .

"(d) If any property described in this section shall remain in the custody of the police department unclaimed for a period of six months, the chief of police, unless the property shall be money, may cause the same to be sold at public auction on notice of the time and place of the sale published once . . . . If the property so held unclaimed for such period shall be money, it shall be paid by the chief of police to the commissioner of finance accompanied by a report of the chief of police of the circumstances surrounding the seizure, retention and payment thereof." (Poughkeepsie City Administrative Code § 10.09 [emphasis added].)