| County of Nassau v Velasquez |
| 2007 NY Slip Op 08177 [44 AD3d 987] |
| October 30, 2007 |
| Appellate Division, Second Department |
| County of Nassau, Appellant, v Yvette Velasquez et al.,Respondents, et al., Defendant. |
—[*1] Cheryl Kitton, Bellmore, N.Y., for respondent Alice E. Velasquez.
In a civil forfeiture action pursuant to Nassau County Administrative Code § 8-7.0 (g)(4) (L 1939, chs 272, 701-709, as amended) the plaintiff appeals, as limited by its brief, from somuch of an order of the Supreme Court, Nassau County (Palmieri, J.), entered July 18, 2006, as,upon converting the motion of the defendants Yvette Velasquez and Alice E. Velasquez todismiss the complaint insofar as asserted against them in the interest of justice pursuant to CPLR1311 (4) into one for summary judgment dismissing the complaint insofar as asserted againstthem, granted the motion.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and therespondents' converted motion for summary judgment dismissing the complaint insofar asasserted against them is denied, without prejudice to renewal upon the completion of discovery.
The defendant Yvette Velasquez (hereinafter the driver) was arrested on November 18, 2005,inter alia, for driving a motor vehicle while intoxicated in violation of Vehicle and Traffic Law§ 1192 (2). The driver pleaded guilty to a violation of Vehicle and Traffic Law §1192 (1), driving while ability impaired by alcohol. At the time of her arrest, the driver wasoperating a 2002 Mitsubishi motor vehicle (hereinafter the subject vehicle) owned by andregistered to her mother, the defendant Alice Velasquez (hereinafter the owner).
On or about March 14, 2006 the plaintiff County of Nassau commenced this civil forfeitureaction pursuant to Nassau County Administrative Code § 8-7.0 (g) (4) against the [*2]owner and the driver (hereinafter together the defendants) andMMCA, a lienholder.
In lieu of answering the complaint, the defendants, by notice of motion dated April 17, 2006,moved pursuant to CPLR 1311 (4) to dismiss the complaint insofar as asserted against them, inthe interest of justice. In support of their motion, the defendants submitted an affirmation of theircounsel, who attached copies of the registration, insurance card, and title pertaining to the subjectvehicle. The defendants' counsel argued in her affirmation that the complaint should be dismissedpursuant to CPLR 1311 (4) because the owner had legal title to the subject vehicle and "did notgive [the driver] actual or implied permission to operate the vehicle under an impaired ability."The defendants did not proffer any affidavits of their own in support of their motion.
By notice dated May 9, 2006, the County cross-moved for summary judgment on thecomplaint. In an affidavit relied upon by the County, the owner asserted "I was unaware nor [sic]did I have any reason to know that my vehicle would be used in violation of Section 1192.1 ofthe vehicle and traffic law. I neither participated in nor permitted my daughter, Yvette, to use myvehicle for an illegal use."
In an order entered June 21, 2006, the Supreme Court, pursuant to CPLR 3211 (c), convertedthe defendants' motion pursuant to CPLR 1311 (4) into one for summary judgment dismissingthe complaint insofar as asserted against them. No party challenged the conversion.
Thereafter, in an order entered July 18, 2006, the Supreme Court, inter alia, granted thedefendants' motion for summary judgment dismissing the complaint insofar as asserted againstthem. The court determined that the defendants, through the owner's affidavit, met their burdenof establishing, prima facie, that the owner did not know or have reason to know that the driverwould operate the vehicle in an impaired condition. The court also determined that the County, inopposition, failed to raise a triable issue of fact. We reverse.
The conclusory affidavit of the owner was insufficient to establish the defendants'entitlement to judgment as a matter of law (see JMD Holding Corp. v Congress Fin.Corp., 4 NY3d 373, 384-385 [2005]; McDonald v Sunstone Assoc., 39 AD3d 603,605 [2007]; Feldmus v Ryan Food Corp., 29 AD3d 940, 941 [2006]), as it failed todemonstrate, prima facie, that the owner "did not know, or ha[ve] reason to know, that there wasa reasonable likelihood that the vehicle would be used in violation of any provision of" "sectioneleven hundred ninety-two of the Vehicle and Traffic Law" (Nassau County Administrative Code§ 8-7.0 [g] [4] [f]; see County of Nassau v Aguilar, Sup Ct, Nassau County, Nov.29, 2005, Parga, J., index No. 9259/05).
In any event, the County demonstrated that it did not have an adequate opportunity toconduct discovery into the issue of whether the owner could establish innocent ownership underthe statute by exploring, inter alia, whether the driver was known to frequent places wherealcohol was served and had previously consumed alcohol while driving, the driver's prior use ofthe subject vehicle and any restrictions thereon, whether the owner knew of the driver's intendedwhereabouts on the night in question, and any other issues related to the question of innocentownership (see CPLR 3212 [f]; see e.g. Berchini v Silverite Constr. Co., 289AD2d 434 [2001]). Contrary to the Supreme Court's reasoning, County of Nassau vCanavan (1 NY3d 134 [2003]) cannot be read to shift the burden to the County to disprovethe affirmative defense of innocent ownership, which is available to the owner under NassauCounty Administrative Code § 8-7.0 (g) (4) (f) (see generally Manion v Pan Am.World Airways, 55 NY2d 398, 405 [1982]).[*3]
The defendants' failure to make a prima facie showingrequires the denial of the motion, regardless of the sufficiency of the opposition papers (seeWinegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Schmidt, J.P.,Goldstein, Skelos and Fisher, JJ., concur.