FILED: NEW YORK COUNTY CLERK 05/05/ :32 PM INDEX NO /2015 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 05/05/2016 DEFENDANT'S REPLY MEMORANDUM

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1 FILED: NEW YORK COUNTY CLERK 05/05/ :32 PM INDEX NO /2015 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 05/05/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x PROPERTY CLERK, : NEW YORK CITY POLICE DEPARTMENT, : Plaintiff, : Index No /2015 : (Shulman, J.) - against - : : TORIN HYLOR, : Defendant. : : x DEFENDANT'S REPLY MEMORANDUM THE LEGAL AID SOCIETY 199 Water Street, 6th Floor New York, New York Attorney for Defendant Torin Hylor THOMAS M. O'BRIEN Special Litigation Unit Of Counsel 1 of 9

2 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x PROPERTY CLERK, : NEW YORK CITY POLICE DEPARTMENT, : DEFENDANT'S Plaintiff, : REPLY MEMORANDUM : - against - : Index No /2015 : (Shulman, J.) TORIN HYLOR, : Defendant. : : x In his cross-motion for summary judgment dated April 22, 2016, Defendant Torin Hylor argued that the untimely filing of this action was a jurisdictional defect requiring judgment in his favor. In particular, Plaintiff's attempted commencement of the case by a Summons with Notice pursuant to CPLR 305(b) failed to satisfy the requirements of that statute. Nor did that document meet the separate requirements for a forfeiture action set by Title 38 of the Rules of the City of New York, section 12-36(b). Plaintiff Property Clerk submitted a pleading in opposition to the cross-motion on April 29, This Reply Memorandum addresses the points made in that pleading. 1 2 of 9

3 POINT I PLAINTIFF URGES THE WRONG STANDARDS: (1) A "LIBERAL" CONSTRUCTION OF CPLR 305(b) AND (2) AN "ACTUAL NOTICE" BASIS FOR DECISION THAT HAS BEEN REJECTED BY THE COURT OF APPEALS. Plaintiff asserts that a "liberal construction" of CPLR 305 (b) should guide the Court. (Reply Affirmation of Nicholas Gaus ("Gaus Reply") at paras. 11, 21). As a general proposition, the First Department decisions cited in Defendant's Memorandum ("Def. Mem.") at 4-6 did not apply such a standard in those cases, none of which involved forfeiture. In forfeiture cases, the opposite of a "liberal construction" is closer to the required analysis. A strict standard must be applied in judging the pleadings of the government party. This is because, as the Supreme Court has reiterated, "a forfeiture proceeding is quasi-criminal in character. Its object, like a criminal proceeding, is to penalize for the commission of an offense against the law." One 1958 Plymouth Sedan v. Commonwealth of Pennsylvania, 380 U.S. 691, 700 (1965), cited in United States v. James Daniel Good, 510 U.S. 43, 49 (1993) New York courts apply this strict standard in forfeiture cases. "Forfeiture statutes such as the one at bar, which serve deterrent and retributive purposes, are considered to be punitive in nature (County of Nassau v. Canavan, 1 NY3d 134, , 770 NYS2d 277, 802 NE2d 616 (2003), and so should be strictly construed against the government" (citations omitted) (emphasis supplied). County of Nassau v. Bassen, 14 Misc.2d 633, (Sup. Ct. Nassau Co. 2006). 2 3 of 9

4 Allowing the mere word "forfeiture" to satisfy CPLR 305(b) would be to apply a most expansive interpretation of the statute in favor of the government, precisely the opposite of the rule of construction in forfeiture cases. Indeed, plaintiff cites no reported decision in which use of a Summons with Notice to commence a forfeiture case has been approved. Courts have rejected pleadings that left a defendant to guess at the true nature of the claim, as when "Labor Law" in a pleading failed to state whether the action was based upon "Labor Law 220 or 240(i) as distinguished from numerous other types of action." Scaringi v. Elizabeth Broome Realty Corp., 154 Misc.2d 786, 790 (Sup. Ct. NY Co.), aff'd, 191 AD2d 223 (1st Dept. 1993). Defendant was put in the same position by the Summons with Notice here. "New York had at least fourteen forfeiture statutes on the books," the author of a treatise on forfeiture law has observed. See Steven Kessler, Civil and Criminal Forfeiture: Federal and State Practice, Vol. 2, p (1996 ed.). Defendant noted three of those, as illustrations of how use of the word "forfeiture" only obscured the actual nature of the claim made here. (Def. Mem. at 6) Plaintiff did not respond to this point. Plaintiff also has not answered Defendant's reference to the Court of Appeals' emphatic statement that the purported "actual notice" of a particular claim has no bearing on the question of compliance with CPLR 305(b). See Parker v. Mack, 61 NY2d 114, (1984). Despite this clear authority, Plaintiff's argument rests heavily on the assertion that Defendant received 3 4 of 9

5 actual notice in one way or another and "should have known" the nature of the Plaintiff's claim. (Gaus Reply, para. 24) This is the exactly the analysis that the Court of Appeals had rejected. An "actual notice" analysis is also contrary to the rules governing Property Clerk forfeiture actions. Those rules, the so-called "McClendon Rules," from the outset were designed to protect "uneducated, uninformed" persons facing confiscation of their property by the police. McClendon v. Rosetti, 369 F.Supp. 1381, 1389 (SDNY 1974). The supposition that "notice" cloaked beneath the mere word "forfeiture" would apprise a member of this class that the claim was made under Section of the New York City Administrative Code -- and not one of the numerous state laws authorizing forfeiture -- exemplifies the type of unfair litigation practice that brought about the McClendon decision by the Second Circuit. POINT II PLAINTIFF HAS NO ANSWER FOR ITS FAILURE TO TIMELY SUPPLY A STATEMENT OF THE GROUNDS TO JUSTIFY FORFEITURE AS REQUIRED BY 38 RCNY 12-36(b). As a separate ground for dismissal, Defendant pointed out that the Summons with Notice put forth to commence this forfeiture proceeding nowhere contained the "statement of the grounds" upon which the Property Clerk sought to "justify" forfeiture. That showing is required by 38 RCNY 12-36(b). 4 5 of 9

6 Plaintiff has offered no meaningful legal response to this argument. Rather, it merely asserts, without quoting from CPLR 305(b), that it and Section 12-36(b) have "strikingly similar language." But Section 305(b) speaks of "the nature of the action," and does not require, as Section 12-36(b) does, a "statement of the grounds" to "justify" forfeiture. The term "forfeiture" in the Summons with Notice is simply a category; it does not justify anything. The Property Clerk did not file the complaint that attempted to do so until over four months later. A "statement of the grounds" to justify forfeiture, as opposed to the "nature of the case," is hardly "strikingly similar language." The two standards are as different, in the words of Mark Twain, as "lightning and a lightning bug." * * * Finally, Plaintiff complains that Defendant's cross-motion is "merely an effort to have this court deprive Plaintiff of the use of CPLR 305(b) in civil forfeiture proceedings." In fact, courts and civil procedure authorities have for years strongly advised litigants not to attempt to commence an action by Summons with Notice in cases with an impending lapse of the statute of limitations. The Second Department has expressed this advice unambiguously: "Commencement of an action with a summons and complaint is preferable to commencement with a summons with notice (see Siegel, NY. Proc. 60, at [3d ed.])." Micro-Spy Inc. v. Small, 9 AD3d 122, 125 (2d Dept. 2004). The reason is that inadequate notice makes the summons "jurisdictionally 5 6 of 9

7 defective," requiring dismissal of the action. Id. at "In view of these potential problems," the Court warned, "use of a summons with notice should be confined to those situations where there is insufficient time to draft a complaint." Id. at 126. The Property Clerk, an institutional litigant, can hardly plead "insufficient time" as an excuse for its untimely commencement of this case. It has commenced cases by Summons and Complaint for 40 years following the 1974 implementation of the McClendon Rules. It has done so either under the 25-day deadline in force since 1994 or the 10-day deadline from 1974 to As this Court has acknowledged, "there can be little doubt that the 25 day limitations period set forth in 38 RCNY 12-36(a) is a judicially inspired, albeit untraditional, statute of limitations." Property Clerk v. Ford, 30 Misc.3d 301, 307 (Sup. Ct. NY Co. 2010), aff'd, 92 AD3d 401 (1st Dept. 2012). The First Department had made that determination in People v. Smith, 62 AD3d 486 (1st Dept. 2009). Certainly since 2004 in Micro-Spy, and in the First Department since 2009 in repeated decisions, it was clear that the use of a Summons with Notice to commence an action that had a 25-day statute of limitations would be an imprudent, if not reckless, course of action. The Property Clerk should have heeded the advice of civil procedure authority David Siegel, given in 2009: "Any plaintiff's lawyers with a case having any substantial merit at all should add a couple of additional feet to the proverbial 10-foot pole and then use the extended instrument to keep distance from CPLR 305(b)." David Siegel, GRAND EXAMPLE OF WHY MERE CPLR 6 7 of 9

8 305(B) NOTICE SHOULD NOT BE USED TO COMMENCE ACTION, 209 Siegel's Practice Review 1. The Property Clerk, after all these warnings, nonetheless chose the labor-saving expedient of CPLR 305(b). There is probably no action less suited to attempt commencement in that way than a forfeiture with a 25-day statute of limitations. This Court should reject the Property Clerk's effort to save it from the inexorable, but foreseeable, consequences of its chosen litigation strategy. CONCLUSION For the foregoing reasons, as well as those in Defendant's Memorandum of Law, the cross-motion for summary judgment should be granted. Dated: May 5, 2016 New York, New York Respectfully submitted, THOMAS M. O'BRIEN THE LEGAL AID SOCIETY 199 Water Street, 6th Floor New York, New York Attorney for Defendant Torin Hylor 7 8 of 9

9 THOMAS M. O'BRIEN Special Litigation Unit Of Counsel 8 9 of 9