Pre-answer motion to dismiss claim granted. Despite denial of earlier motion for late claim relief, claimant served and filed this claim seeking return of actual monies seized in criminal forfeiture proceeding. Claimant defaulted in appearing in forfeiture proceedings. Remedy would lie in the court that entered the default.
|Claimant short name:||BERDECIA|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The caption has been amended to reflect the only proper defendant.|
|Judge:||THOMAS H. SCUCCIMARRA|
|Claimant's attorney:||JOHN BERDECIA, PRO SE|
|Defendant's attorney:||HON. ANDREW M. CUOMO, NEW YORK STATE
BY: GWENDOLYN HATCHER, ASSISTANT ATTORNEY GENERAL
|Third-party defendant's attorney:|
|Signature date:||March 30, 2010|
|See also (multicaptioned case)|
The following papers were read and considered on defendant's pre-answer motion to dismiss:
1,2 Notice of Motion; Affirmation in Support by Gwendolyn Hatcher, Assistant Attorney General, and attached exhibits
3 Notice of Motion of Verified Answer (sic) by John Berdecia, Claimant, and attached exhibits
4,5 Filed papers: Claim Number 117606 filed October 30, 2009; Berdecia v State of New York, Claim No. None, Motion No. M-76602, unreported (Schweitzer, J., August 13, 2009)
Claimant alleges that on September 12, 2008 New York State Parole Officers improperly seized $1,608.00 belonging to him during a statutorily mandated "curfew check." [Claim No. 117606, Affidavit in Support of Notice of Claim ¶14]. More specifically, Mr. Berdecia and a Carmen Ortega were arrested for possession of cocaine purportedly in open view in a shared apartment. Sometime thereafter his criminal prosecution was, apparently, dismissed. Additionally, a default was entered against claimant in what seems to have been a forfeiture proceeding in Bronx County Supreme Court regarding the seized funds. [Claim No. 117606, Affidavit in Support of Notice of Claim ¶¶ 6, 8,-13].
An earlier motion for permission to serve and file a late claim in the Court of Claims with regard to the same factual scenario was denied on August 13, 2009. [See Affirmation in Support by Gwendolyn Hatcher, Assistant Attorney General, ¶3, Exhibit A; Berdecia v State of New York, Claim No. None, Motion No. M-76602, unreported (Schweitzer, J., August 13, 2009)]. Judge Schweitzer stated:
"The proposed claim seeks an order directing defendant to return funds seized during an arrest. This is a request for equitable relief, and it is well-settled that this court has 'no jurisdiction to grant strictly equitable relief . . . with the return of the money to follow as a consequence of the equitable relief, if granted.' Ozanam Hall of Queens Nursing Home, Inc. v State of New York, 241 AD2d 670, 671 (3d Dept 1997) quoting Psaty v Durea, 306 NY 413, 416-417 (1954); see also Threat v State of New York, Claim No. 102826, Motion No. M-63006 (Ct Cl, Collins, J., June 12, 2001 [UID # 2001-015-156]), where the court dismissed a claim seeking the return of funds seized during a narcotics investigation, stating 'The jurisdiction of the Court of Claims is 'limited to actions seeking money damages against the State in appropriation, contract or tort' and does not include 'strictly equitable relief . . . with the return of the money to follow as a consequence of the equitable relief, if granted.' "
Despite the denial of claimant's motion for permission to serve and file a late claim, the present claim was served on the Attorney General's Office on October 30, 2009. [See Affirmation in Support by Gwendolyn Hatcher, Assistant Attorney General, ¶4, Exhibit B]. By its terms, the claim is untimely, it is not filed with the previously sought leave of court, and, since it seeks "return of specific monies actually seized . . .", the court does not have subject matter jurisdiction over the claim in any event. Cf. Parisi v State of New York, UID # 2005-015-021, Claim No. 108864, Motion No. M-69970 (Collins, J., June 20, 2005). Claimant references Civil Practice Law and Rules Article 13-A which provides for the mechanics of forfeiture proceedings involving the proceeds of a crime; and confirms that he defaulted in appearing in such proceedings - perhaps because he was incarcerated at the time - it is not clear from the claim filed and associated papers. Appeal, or an application in the court that entered the default for vacatur, would seem the more appropriate avenue for seeking return of the monies.
As Judge Collins provided in Parisi v State of New York, supra, in denying a dismissal motion and finding that the claim sought monetary compensation for an allegedly illegal search and seizure, as opposed to a return of either monies or property seized incident to a criminal transaction,
"To the extent the claim seeks the return of property seized by the New York State Police the defendant has accurately stated that such relief is unavailable in this Court. Rather, the appropriate vehicle to secure the return of the property, in this case United States currency, is through an article 78 proceeding (Matter of Montecalvo v Columbia County, 274 AD2d 868; Matter of Lipscomb v Property Clerk of City of Newburgh Police Dept., 188 AD2d 993; see also Boyle v Kelley, 42 NY2d 88). Alternatively, if the property has been adopted by the Federal Drug Enforcement Administration as it appears . . . is the case here 'constructive custody of the property is vested in a designated "custodian", here the DEA "Special Agent-In-Charge" (21 CFR 1316.71 [b][e], 1316.73), subject only to the orders and decrees of the court or official having jurisdiction thereof (21 USC § 881[c]).'(Matter of Bruno v County of Monroe, 167 AD2d 872, 872-873) . . .
Should, however, the Court determine that . . . the claim actually seeks monetary compensation for the loss occasioned by an allegedly illegal search and seizure such a claim is, in fact, cognizable in this Court (Brown v State of New York, 89 NY2d 172; Lyles v State of New York, 3 NY3d 396; Matter of Matysiak, 17 NY2d 692; Della Pietra v State of New York, 125 AD2d 936, affd 71 NY2d 792; Williamsburg Candy & Tobacco v State of New York, 106 Misc 2d 728; Berk v State of New York, 82 Misc 2d 902). The critical nature of the actual relief sought in cases such as this was discussed by the Appellate Division, Third Department which noted in Matter of Parkinson v Leahy, 277 AD2d 810, at page 811:
. . . a CPLR article 78 proceeding is a proper vehicle to seek an order compelling the return of items of personal property under the circumstances presented herein (see, Boyle v Kelley, 42 NY2d 88). However, any claim seeking monetary compensation arising out of the seizure of such items of personal property is within the jurisdiction of the Court of Claims only (see, e.g., Matter of Harrison v Carpenter, 201 AD2d 848, 849)."
Based on the foregoing, defendant's motion to dismiss [M-77774] is hereby granted, and claim number 117606 is in all respects dismissed.
March 30, 2010
White Plains, New York
THOMAS H. SCUCCIMARRA
Judge of the Court of Claims