VUKSANAJ v. THE STATE OF NEW YORK, #2002-010-027, Claim No. 98748
Claimant lacked standing to challenge seizure of his car where he could not
establish that he was the rightful owner.
LEKA VUKSANAJ The Court has, sua sponte, amended the caption to reflect the only proper party defendant.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
Terry Jane Ruderman
ROBERT R. RACE, ESQ.
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Michael Rosas, Assistant Attorney General
July 18, 2002
See also (multicaptioned
On May 16, 1998, New York State Police entered claimant's private property,
without a warrant, and seized a 1993 General Motors (GM) Typhoon titled in the
name of claimant's cousin, Anton Shkreli, and registered to claimant. According
to police, this limited production, high performance sports utility vehicle was
believed to be stolen. The vehicle is currently being held as evidence by the
State Police and claimant seeks damages for the loss of his vehicle and the
resulting damages flowing from the loss
Defendant maintains that claimant has
no standing to challenge the validity of the seizure because he has not
established that he is the rightful owner and, in any event, the police had
probable cause to enter the property without a warrant and to seize the vehicle.
The trial of this claim was bifurcated and this Decision pertains solely to the
issue of liability.
Events Prior to the Seizure
Sylvester Hollingsworth testified that he retired in 1991 after working 29
years at the GM plant in Tarrytown, New York. During his tenure, Hollingsworth
was employed in various capacities and was an inspector on the motor line. In
1993, he purchased a Black Typhoon with VIN 1GDCT1BZ0P0811705(VIN 705), that was
fully equipped and had a roof rack. On September 9, 1997, Hollingsworth's
Typhoon was stolen in Mamaroneck.
In May 1998, Hollingsworth
saw what he believed was his stolen Typhoon on a street in Mamaroneck. However,
the vehicle was driven away before Hollingsworth had an opportunity to notify
the police. Days later, Hollingsworth again observed what he believed to be his
Typhoon. This time he approached the vehicle and noted two distinguishing
characteristics that had been present on his Typhoon: 1) the front right parking
lens cover was cracked and 2) the bumper was misaligned. According to
Hollingsworth, the front bumper was misaligned because his Typhoon had been hit
and the body shop had left it out of line after it was repaired
Hollingsworth called the Mamaroneck police. Two officers responded and
checked the VIN numbers, which appeared in order to them and were not 705.
According to Hollingsworth, the officers did not run a computer check on the
vehicle (T:289-90). Still convinced that the stolen Typhoon was his,
Hollingsworth contacted New York State Police Sergeant Kenneth Hughee, a
personal friend, and Hughee volunteered to investigate the matter.
laimant's cousin, George Djurasevic, testified that in May 1998, he drove
claimant in the Typhoon to a motorcycle class in Mamaroneck. Djurasevic waited
in the parked Typhoon for claimant to return. During claimant's absence,
several Mamaroneck police officers surrounded the vehicle and ordered Djurasevic
out of the car. The police informed Djurasevic that the car was stolen,
whereupon Djurasevic produced a registration and insurance card from the glove
box (T:14). Djurasevic did not testify as to whose name was on the registration
and insurance card; nor was a copy of either document produced at
Claimant returned to the car and was questioned by police. The police examined
the Typhoon's vehicle identification number 1GDCT1820P0S11980 (VIN 980) on the
windshield and under the hood and examined the stickers on the inside of the
door (T:35). According to claimant, the police ran the license plate in the
computer and, after approximately 10 minutes, Djurasevic and claimant were free
to leave. Claimant and Djurasevic maintained that claimant was the owner of
the Typhoon (T:18, 34).
New York State Police Sergeant Kenneth Hughee, who has been with the
department for 17 ½ years, testified that he was friendly with Sylvester
Hollingsworth and on May 13, 1998, Hollingsworth told Hughee about the
detaining the parked Typhoon. Hollingsworth maintained that the Typhoon with
VIN 980 was actually his stolen Typhoon which originally had VIN 705. Hughee
volunteered to look into the matter.
Hughee commenced an investigation and prepared a
On May 14, 1998 he contacted Investigator William H. Brinkman of the State
Police Auto Crime Section at the Department of Motor Vehicles in Albany (DMV).
Brinkman performed a history check of DMV records. The 1993 Typhoon with VIN
980 had been reported stolen in Connecticut on April 25, 1997 and was recovered
in a stripped condition on April 26, 1997 (Ex. A). The insurance company of
record, State Farm Mutual, took possession of the vehicle and sold it as a
salvaged vehicle on June 19, 1997 to Alpine Motor Cars. It was then titled to
Anton Shkreli and subsequently, on December 2, 1997, it was registered to
claimant. Hughee's report noted that it was a common practice for a salvaged
vehicle to be purchased so that its VIN could be transferred to a stolen vehicle
of the same make, model, year, and color. The vehicle is then inspected by DMV
and registered (Ex. A, ¶ 3).
Hughee testified that on May 15, 1998, he spoke to New York State
DMV Senior Investigator Owen McShane and advised him of Brinkman's findings
concerning the Typhoon. McShane, who was employed by DMV for nine and one half
years, was a supervising investigator for three and one half years and is
presently the Chief Investigator of the Auto Theft Unit (T:81-82). One of his
responsibilities is the hands-on examination of salvaged vehicles. He has
inspected more than 5000 cars, a few hundred of which were determined stolen
At Hughee's request, McShane did a history check of VIN 980 (T:91). McShane
testified that the National Insurance Crime Bureau database and New York DMV
records revealed that VIN 980 was a stolen vehicle that had been recovered in a
stripped condition by State Farm Insurance (T:92). Thus it was a salvaged
vehicle. The automobile had extensive damage in the amount of $14,212.00. All
removable parts had been taken off the car (i.e., doors, fender, hood, wheels,
tires) leaving the frame, motor, transmission and body shell (T:93). State Farm
sold the automobile to Alpine Motors in the Bronx for $5,900.00 (T:93). It was
then purchased by Anton Shkreli in August 1997, who applied for title in October
1997 (T:94). Shkreli is still the titled owner (T:95).
The vehicle information and discrepancy between the salvage report, noting
extensive damage, and the Typhoon in issue,
led McShane to recommend that somebody physically look at the vehicle
(T:157-59). McShane explained that the application for the salvage inspection
indicated that there was extensive body damage, yet the final report, in which
inspectors are required to identify all replaced parts, did not list any
replacement parts. McShane subsequently learned that, on October 23, 1997, upon
the application of Anton Shkreli, a salvage inspection was performed by DMV
Inspector Hicks. Original receipts for all replaced parts must be produced at
the inspection and the investigator is required to list the replaced parts on
the report (T:176-77). No parts were listed as replaced and McShane noted that
Hicks was not able to view the VIN number on the engine and transmission;
however he indicated that there was no problem with the public VIN, confidential
VIN and federal warranty label, nor were there any improprieties found in the
inspection. Significantly, Investigator Hicks was under investigation by the
State police and DMV at that time and he is no longer employed by DMV
On May 15, 1998, Hughee also contacted State Police Investigator Rodney C.
Polite, a New York State police officer for 18 years, assigned to the Auto Theft
Unit of Long Island for the past two and one half years.
Polite testified at trial that the history of VIN 980 was a salvaged vehicle
sold by Alpine Motors in the Bronx (T:52-56). Hughee learned from Polite that
there was an ongoing investigation of Alpine Motor Cars and several other used
car dealers in the Hunts Point section of the Bronx for crimes involving stolen
cars (Ex. A, ¶ 5). The car dealers were suspected of purchasing salvaged
vehicles to replace the VINS on stolen vehicles of the same make and model. The
stolen vehicle was then inspected by DMV and registered under the salvaged VIN.
The Typhoon in issue had been under investigation by DMV because Alpine Motors
had obtained an appointment from DMV to inspect the purported salvaged vehicle
with VIN 980 within one week after the reported theft of the Typhoon with VIN
705 in Mamaroneck on September 9, 1997. This aroused suspicions that a DMV
employee was working with Alpine Motors inasmuch as it usually takes
approximately six weeks to obtain an appointment (Ex. A, ¶ 5).
On May 15, 1998, Hughee decided to seize the Typhoon.
Hughee testified that he relied upon the following factors as a basis of
probable cause for the seizure: 1) Hollingsworth spotted the Typhoon on two
occasions after his Typhoon with VIN 705 had been stolen and he believed that it
was his stolen Typhoon because of certain identifying marks; 2) Brinkman's
reported history of the stolen vehicle and related documents; 3) Polite's
account of an ongoing Federal investigation of registered owner, Anton Shkreli,
trafficking stolen vehicles and 4) the short time period between the application
for and the salvage inspection, which indicated that someone within DMV was
probably involved in the criminal activity (T:265-67,
Hughee contacted the New Rochelle police as a courtesy and
to enlist their assistance in the seizure (T:243). In the afternoon of May 16,
1998, several New Rochelle police officers and State troopers arrived at 222
Lyncroft Road, New Rochelle, where claimant resided in a large house with his
wife, parents, brother, aunt, uncle, and two cousins. The property was enclosed
by a seven or eight foot fence and the extended family maintained approximately
ten cars. Milica and Kola Vuksanaj, claimant's aunt and uncle, and Paul
Vuksanaj, claimant's brother, were at the residence. The officers did not have
a warrant and they blocked the driveway with a police car as they placed the
Typhoon on a flatbed tow truck. The Typhoon was transported to a garage where
vehicles associated with criminal activity and altered VINs are usually kept as
evidence by the State police (T:53).
Claimant contacted his attorney. The attorney had a conversation with the State
police on May 18, 1998; the police refused to return the car (T:36-37).
Claimant testified at trial that, in December 1997, he purchased a Typhoon with
VIN 980 for $25,000.00 from Anton Shkreli, a distant cousin "in the automotive
business" (T:30, 39). When asked if his cousin is a car dealer, claimant stated
that he did not know (T:41). Shkreli had the title in his name and claimant
does not have, nor ever had, a certificate of title in his name (T:31, 38).
Prior to taking possession of the car, claimant had it inspected (T:31).
Claimant maintained that he signed a promissory note which provided for monthly
payments of $500.00 for five years (T:39). Claimant, however, could not produce
the note, and he testified that, despite the written agreement, he made payments
to Shkreli of different amounts at varying times.
On cross-examination of
claimant, the following ensued:
"Q: [D]o you have or did you ever have a certificate of title with your name on
it for this vehicle?
Q: Have you ever seen a certificate of title that pertained to this vehicle
that was confiscated on May 16th, 1998?
Q: Whose name is on it, if you know?
A: Anton Shkreli.
Q: When did you obtain that certificate of title from him?
A: I never actually received a title.
Q: What you received was a copy of the title?
Q: Who has the original, if you know?
A: Currently my attorney has the copy. I requested it from Mr. Shkreli.
Q: When did Mr. Shkreli transfer possession of the vehicle to you?
A: Sometime in December.
Q: Would that be of 1997?
A: Yes, excuse me, 1997.
Q: And at the time he transferred possession of the vehicle to you, what were
the terms and conditions, if any, with respect to the payment of money for it?
What was the arrangement?
A: It was a monthly payment.
Q: Okay. Do you remember what the amount of the monthly payments were?
A: The scheduled payments, I believe, we did it for five years and it was
somewhere approximately $500, somewhere in that vicinity. However, I've given
him payments sometimes of that amount, triple that amount, sometimes less. But
I never consistently gave him the set amount. It's not as if he sent me a bill
and I mailed him a check. This was -- I gave him monies at various times for
Q: Was there a written agreement for you to pay him?
Q: Was that in the form of a promissory note?
Q: Did you maintain a copy of that promissory note, or an original of it?
A: I had a copy of it, which at this point, I can't – between all the
times I've given paperwork back and forth, I can't locate it right now."
Experts' Examination of the Typhoon
On May 18, 1998, at the request of Hughee, McShane
performed an examination to discern the true VIN of the seized Typhoon and
McShane offered expert testimony at the trial on behalf of defendant (T:115).
Based upon McShane's physical inspection and the facts he had learned, he
concluded that the true VIN of the car was VIN 705 and not 980
McShane made several observations. While the public VIN on the left side of
the dashboard appeared to be properly affixed with rivets unique to GM, the
entire dashboard appeared to have been replaced (T:98). The bolts holding the
dashboard in place had been stripped and removed. McShane used a fiber optic
scope to go behind the dashboard and examine where the public VIN was connected
to the body of the vehicle and it appeared to have been reaffixed (T:98).
The federal warranty label on the inside of the driver's door post was a
counterfeit label with typed characters, rather than a standard 1993 GM Avery
label with a dot matrix printing and a color blending security feature
(T:99-100). He did not know what PAS Inc. was, but maintained that such an
indication would not be on a proper sticker and that GM advised him that they
use the same label on all vehicles, including limited production vehicles
McShane noted that the VIN on the left rear frame was
covered with a thin layer of bondo, a resin type material commonly used in auto
theft to try to conceal the true VIN (T:100). He explained that the salvaged
VIN is punched on top of the bondo to match the public VIN (T:100-01). McShane
used an electronic thickness gauge to measure the density of the metal in the
area of the bondo and found that the metal was thinner where the number was.
This indicated to McShane that the true VIN had been ground down and then the
salvaged VIN was punched onto the bondo (T:101).
Examination of the transmission revealed a ground down area and the full VIN
was pin stamped and cross-referenced to a 1989 Blazer (T:101-03)
. McShane testified that in 1989, GM did not use pin stamp numbers
The VIN on the engine was difficult to access, so McShane used a fiber scope
to magnify the number. The number was then cross-referenced to the full VIN 705
(T:104). McShane checked VIN 705 through the New York State police computer
system and confirmed that VIN 705 had been reported stolen in Mamaroneck on
September 9, 1997 (T:104-05). On June 2, 1998, McShane generated a report
indicating that he believed the Typhoon to be a stolen vehicle
Michael Higgins, a forensic chemist and investigator of automobile theft and
arson since 1981 offered expert testimony
on behalf of claimant (T:189). He has examined hundreds of cars to determine
their true VIN (T:194). On May 18, 1999, he performed an inspection of the
Typhoon in the presence of New York State Police Investigators Rodney Polite and
Robert Holman (T:189, 196).
Higgins examined the VIN on the window. He maintained that the rosette rivets
holding the number in place had not been moved (T:198). However, he observed
tool marks indicating that the entire dashboard may have been removed from the
vehicle (T:712). Higgins did not remove the dashboard to investigate further
because he felt that whether the dashboard had been removed or not did not
impact on the authenticity of the VIN on the window (T:213).
With regard to the federal warranty label on the door post, Higgins conceded
that it was not a dot matrix printer according to GM standards (T:215). Higgins
maintained, however, that the printing machine is not a significant factor;
rather the size and spacing of the numbers is the important factor (T:215-16).
He explained that PAS was the after market manufacturer and that this was the
proper sticker (T:207). He testified that the label
is applied with a special glue and that any alteration or sign of tampering
would have been apparent but was not (T:198, 207-08).
Higgins conceded that t
he transmission number did not match the other VIN numbers. Higgins did not
attempt to decode the number or to obtain a full VIN for the transmission
because he felt it had no bearing on the case (T:216). He did not recall if the
transmission number was pin stamped and he did not know what GM's practice was
regarding the use of pin stamping (T:217). During his inspection, Higgins did
not observe any evidence of the use of bondo (T:204,
Higgins concluded that the vehicle was properly VIN 980 because the VIN number
on the window, door frame, left wheel frame, and engine all matched (T:197-98).
He did not know the procedure for inspection of a salvaged vehicle; nor was he
shown any documentation regarding the salvage inspection (T:223).
The video conferenced deposition testimony of Michael Pocobello was received
into evidence (Ex. 27). Pocobello is a retired director of PAS Incorporated
(PAS). PAS manufactured the Typhoon for GM for model years 1992 and 1993. In
1993, approximately 1500 Typhoons were produced. PAS issued the stickers that
were placed on the door jam (Ex. 27, p. 13). They did not appear to be printed
on a dot matrix printer. Pocobello further testified that the transmissions and
casing were built by the hydromatic division of GM and then sent to PAS as a
total assembly which PAS installed (Ex. 27, p. 14). Pocobello also testified
that all Typhoons have a space between the bumper cover and the fender anchor
because the bumper cover is bolted to the frame and the fender arch is bolted to
the body (Ex. 27, p. 5).
Joseph Izzo, owner of Autobody Builders, Inc., testified that in August of
1997, he did repairs on Shkreli's 1993 Typhoon (T:330). Izzo replaced and
painted the hood, front bumper, both fenders, the doors and he repaired the back
panels and the tailgate (T:331). The car did not have a roof rack and no body
work or painting was performed on the roof of the car (T:332). The replacement
parts were purchased from Mt. Kisco Chevrolet (Ex. 28).
Upon consideration of all the evidence, including listening to the witnesses
testify and observing their demeanor as they did so, the Court finds that
claimant has not established that he is the owner of the vehicle; thus he has
not met the threshold requirement of standing and therefore cannot challenge the
warrantless seizure (see Matter of Frierson v New York City Parking
, 239 AD2d 190).
Claimant does not have a certificate of title in his name, nor was there any
testimony that he ever applied for a certificate of title. Anton Shkreli,
claimant's cousin who purportedly sold the car to claimant for $25,000.00 in
December of 1997, was still the title holder of record as of the date of the
trial of this matter, more than three years after the purported sale. Claimant
agreed to pay Shkreli $500.00 a month; however, claimant stated that he never
consistently paid the same amount on a specified date and that sometimes he paid
triple the agreed installment. Claimant did not know if his cousin was a car
dealer and claimant was not sent a bill each month. Claimant did not have a
copy of the promissory note, nor did he produce any canceled checks for the
money that he allegedly paid Shkreli. Upon careful consideration of claimant's
testimony, the absence of any documentary evidence relating to the purported
sale of the vehicle, and claimant's failure to call his cousin, Shkreli, to
and perhaps offer some explanation as
to these questionable circumstances (cf. Corrigan v DiGuardia
AD2d 408 [registered owner and insurer produced testimony from the seller
regarding the sale; thereby undermining the contention that the vehicle was
purchased by another], the Court finds that claimant has failed to meet his
While it was not disputed at trial that the Typhoon was registered to
claimant, a copy of the registration was not offered into evidence. In any
event, "the registration of a motor vehicle is only prima facie evidence of
ownership" and the presumption may be rebutted by proof that, in fact, the
vehicle is owned by someone other than the registered owner (Young v
, 74 AD2d 155, 159 [Damiani, P.J., concurring]; see also
Matter of Terranova v State of New York
, 111 Misc 2d 1089, 1091
[registration creates merely a rebuttable presumption of ownership]). In
, the Court noted that the cases applying the presumption have
been used principally against defendants in negligence cases who attempted to
avoid liability by disclaiming ownership despite being registered owners of the
vehicles involved. There is also a strong public policy in insuring that only a
rightful owner be permitted to establish liability and recover money
While there was testimony from claimant's cousin, George Djurasevic, that he
presented the police with an insurance card for the Typhoon, there was no
testimony as to whose name was on the insurance card; nor was an insurance card
offered into evidence by
claimant at trial. In any event, payment of insurance coverage, without more,
is insufficient to rebut the presumption of ownership created by the certificate
of title and registration together (see Van Wart v Robert Van Wart
, 221 AD2d 624 [payment of insurance coverage for vehicle was not
sufficient to rebut presumption of ownership created by certificate of title and
In sum, t
he Court finds that the evidence is insufficient to establish that claimant is
the owner of the Typhoon (see Aronov v Bruins Transp. Inc.
___AD2d___, 2d Dept, May 28, 2002 [certificate of title constitutes prima facie
evidence of ownership]; Sosnowski v Kolovas
, 127 AD2d 756 [defendant
still listed as record title holder some eight months after alleged sale of
vehicle constituted prima facie evidence that defendant was still the owner and
whether evidence of the sale was sufficient to rebut presumption was one of fact
to be resolved by the trier of fact] ). Accordingly, claimant does not have
standing to sue and the claim warrants
Defendant's motion to dismiss, upon which decision was reserved, is now
LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 98748.
July 18, 2002
Plains, New York
HON. TERRY JANE RUDERMAN
Judge of the Court of
There was no evidence offered to support the
other allegations of the claim, i.e., harassment, humiliation, injury to
reputation, emotional distress. All reference to the trial transcript are
preceded by the letter "T."
Hughee's investigative report was received
into evidence over claimant's hearsay objections because each investigator had a
business duty to accurately report information and Hughee was under a business
duty to record such data (see Johnson v Lutz
, 253 NY 124). It is
also noted that both McShane and Polite testified at trial. Despite the
opportunity granted by the Court, claimant did not pursue his objection with
supporting case law in his post-trial memorandum.
In 1999, he was arrested for passing stolen
The report was viewed in camera by the Court
and kept sealed as Exhibit 1 to maintain the privileged confidentiality
Claimant presented the testimony of 11
witnesses, four of whom are relatives.
An independent basis for denying claimant
recovery is Vehicle and Traffic Law § 423-a, which provides that the State
police may seize and confiscate a motor vehicle with a removed, altered, defaced
or concealed VIN, and, absent proof of ownership prior to the alteration, the
vehicle may be disposed of according to the statutory scheme (see
Carlone v Adduci
, 180 AD2d 282).