Section 28-419.1
§28-419.1 General. On and after November 1, 2008 vehicles and tools
used in connection with unlicensed or unregistered activity at the work
site of a new residential structure containing no more than three
dwelling units shall be subject to seizure and forfeiture.
Section 28-419.2
§28-419.2 Definitions. For purposes of this article, the following
terms shall have the following meanings.
1. The term "owner" as applied to vehicles shall mean an owner as
defined in section one hundred twenty-eight and in subdivision
three of section three hundred eighty-eight of the vehicle and
traffic law.
2. The term "security interest" as applied to vehicles shall mean a
security interest as defined in subdivision k of section two
thousand one hundred one of the vehicle and traffic law.
3. The term "unlicensed activity" shall mean the conduct of any
activity at a work site for the construction of a residential
structure containing no more than three dwelling units without a
license for which a license is required under any law, rule or
regulation enforced by the commissioner of buildings, and the term
"unregistered activity" shall mean the conduct of any activity at a
work site for the construction of a residential structure
containing no more than three dwelling units without a registration
for which a registration is required under any law or regulation
enforced by the commissioner of buildings.
Section 28-419.3
§28-419.3 Seizure procedure. The following provisions shall govern
seizure of vehicles and tools pursuant to this article.
Section 28-419.3.1
§28-419.3.1 Seizure. Any police officer or authorized officer or
authorized employee of the department may seize any vehicle and any
tools contained therein that such police officer or authorized officer
or authorized employee has reasonable cause to believe is being used in
connection with unlicensed or unregistered activity, upon service on the
owner or operator of the vehicle of a notice of violation for engaging
in such activity. Any vehicle and tools seized pursuant to this section
shall be delivered into the custody of the department or other
appropriate agency.
Section 28-419.3.2
§28-419.3.2 Written demand. The owner or operator of the vehicle
and/or tools may make a written demand for a hearing for the return of
the seized property. Notice of the right to a hearing shall be provided
to the operator at the time of seizure of the vehicle and/or tools, and
a copy of such notice shall be sent by mail to the registered and/or
title owner of the vehicle, if other than the operator, and to the owner
of the tools if other than the owner or operator of the vehicle and if
reasonably ascertainable, within five business days of the seizure. The
department shall schedule the hearing at the office of administrative
trials and hearings (OATH) or its successor agency, as applicable, for a
date within ten business days after receipt of the demand and shall
notify the operator and the owner(s) of the opportunity to participate
in the hearing and the date thereof.
Section 28-419.3.3
§28-419.3.3 Claimant. A claimant seeking release of the vehicle and
tools at the hearing may be either the person from whom the vehicle and
tools were seized, if that person was in lawful possession of the
vehicle and tools, or the owner if different from such person.
Section 28-419.3.4
§28-419.3.4 Determination. The OATH judge shall issue a determination
within five business days after the conclusion of the hearing.
Section 28-419.3.5
§28-419.3.5 Return pending hearing. The department shall establish a
procedure whereby an owner or operator who wishes to have the vehicle
and/or tools returned pending the hearing shall post a bond in an amount
determined by the department, but in no event less than an amount
sufficient to cover any applicable removal and storage fees as well as
fines and penalties.
Section 28-419.3.6
§28-419.3.6 Return without hearing. The department shall establish a
procedure whereby an owner or operator may request the return of the
vehicle and/or tools without a hearing if such owner or operator:
1. Establishes that the vehicle and/or tools were seized in error,
or
2. Immediately applies for licensure or registration pursuant to the
applicable provisions of this code and pays an amount not to
exceed removal and storage fees and any fines or penalties that
could have been imposed under the provisions of this code.
Where the owner or operator establishes that the vehicle and/or tools
were seized in error, the department shall expeditiously return such
vehicle and/or tools.
Section 28-419.4
§28-419.4 Abandoned property. Any vehicle and/or tools for which a
written demand for return of the vehicle and/or tools or for a hearing
pursuant to section 28-419.3.2 has not been made within thirty days of
service of the notice of violation on the operator of the vehicle and/or
tools or within thirty days of service of the notice of violation on the
owner of the vehicle and/or tools if the owner is not the operator of
the vehicle and/or tools shall be deemed abandoned and shall be disposed
of by the department pursuant to applicable law.
Section 28-419.5
§28-419.5 Combined hearings. The department may choose to have the
underlying violation adjudicated before the office of administrative
trials and hearings in accordance with sections 28-419.5.1 through
28-419.5.3.
Section 28-419.5.1
§28-419.5.1 Combined hearing and determination. Upon notice to the
respondent, the department may choose to have the violation underlying
the seizure returnable to and heard at OATH and may combine the hearing
on the underlying violation with the hearing for the return of the
seized property. At such combined hearing the OATH judge shall make a
determination as to both and may impose any penalty that could be
imposed in a proceeding before the environmental control board for the
underlying violation. The OATH judge shall issue a determination within
five business days after the conclusion of the hearing.
Section 28-419.5.2
§28-419.5.2 Release following finding of no violation. If the OATH
judge finds that the vehicle and/or tools were not used in connection
with unlicensed or unregistered activity, the department shall promptly
release such vehicle and/or tools.
Section 28-419.5.3
§28-419.5.3 Release following finding of violation. If the OATH judge
finds that the vehicle and/or tools were used in connection with
unlicensed or unregistered activity, the department may release such
vehicle and/or tools upon payment of all applicable fines and civil
penalties and all reasonable costs of removal and storage, or may
commence a forfeiture action within twenty business days after the date
of the judge's determination.
Section 28-419.6
§28-419.6 Separate hearings. In the event that the adjudication of the
violation underlying the seizure is not held at OATH, and a
determination is made that the vehicle and tools were not used in
connection with unlicensed or unregistered activity, the department
shall promptly release such vehicle and/or tools.
Section 28-419.7
§28-419.7 Forfeiture procedure. The following provisions shall govern
forfeiture of vehicles and tools pursuant to this article.
Section 28-419.7.1
§28-419.7.1 Commencement of forfeiture. A forfeiture action pursuant
to this article shall be commenced by the filing of a summons with a
notice or a summons and complaint in accordance with the civil practice
law and rules. Such summons with notice or a summons and complaint shall
be served in accordance with the civil practice law and rules on the
vehicle operator, the owner of the tools, if different from the vehicle
operator, and owner of the vehicle, and on all owners of the subject
vehicle listed in the records maintained by the department of motor
vehicles, or for vehicles not registered in the state of New York, in
the records maintained by the state of registration. Except as otherwise
provided in this article, a vehicle and/or tools that are the subject of
such action shall remain in the custody of the department or other
appropriate agency pending the final determination of the forfeiture
action.
Section 28-419.7.2
§28-419.7.2 Notice of forfeiture. Notice of the institution of the
forfeiture action shall be given by certified mail to all persons
holding a security interest in such vehicle or tools, if known, if such
security interest in the vehicle has been filed with the department of
motor vehicles pursuant to the provisions of title ten of the vehicle
and traffic law, at the address set forth in the records of such
department, or, for vehicles not registered in the state of New York,
all persons holding a security interest in such vehicle if such security
interest has been filed with the state of registration and which persons
are made known by such state to the department, at the address provided
by such state of registration.
Section 28-419.7.3
§28-419.7.3 Security interest. Any person with a security interest in
such vehicle or tools who receives notice of the institution of the
forfeiture action who claims an interest in such vehicle or tools
subject to forfeiture may assert a claim in such action for satisfaction
of such person's security interest in such vehicle or tools.
Section 28-419.7.4
§28-419.7.4 Forfeiture subject to security interest. Forfeiture shall
be made subject to the interest of a person who claims an interest in
the vehicle or tools, where such person establishes that:
1. The use of the vehicle or tools for the conduct that was the
basis for the seizure of the vehicle and tools occurred without
the knowledge of such person, or if such person had knowledge of
such use, that such person did not consent to such use by doing
all that could reasonably have been done to prevent such use, and
that such person did not knowingly obtain such interest in the
vehicle or tools in order to avoid the forfeiture of such vehicle
or tools, or
2. The conduct that was the basis for such seizure was committed by
any person other than such person claiming an interest in the
vehicle or tools, while such property was unlawfully in the
possession of a person who acquired possession thereof in
violation of the criminal laws of the United States or any state.
Section 28-419.7.5
§28-419.7.5 Disposition. The department or agency having custody of
the vehicle and tools, after judicial determination of forfeiture,
shall, at its discretion, either (i) retain such vehicle and tools for
the official use of the city; or (ii) by public notice of at least five
days, sell such forfeited vehicle and tools at public sale. The net
proceeds of any such sale shall be paid into the general fund of the
city.
Section 28-419.7.6
§28-419.7.6 Amount of award. In any forfeiture action commenced
pursuant to this article, where the court awards a sum of money to one
or more persons in satisfaction of such person's interest in the
forfeited vehicle and tools, the total amount awarded to satisfy such
interest or interests shall not exceed the amount of the net proceeds of
the sale of the forfeited vehicle and tools after deduction of the
lawful expenses incurred by the city, including reasonable costs of
removal and storage of the vehicle and tools between the time of seizure
and the date of sale.
To the extent possible under law, Friends of Devin Balkind for Public Advocate has waived all copyright and related or neighboring rights to New York City Administrative Code. This work is published from: United States.
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