Our Reported Decision
On December 19, 2005 our firm was fortunate to have our successful challenge to Nassau County's vehicle forfeiture reported as a Decision of Interest in the New York Law Journal.

County of Nassau v. Gazzola

NASSAU COUNTY
Supreme Court

Justice Winslow

This motion by defendants Christopher P. and Roberta A. Gazzola for an order pursuant to CPLR 3212 dismissing the County's complaint which seeks forfeiture of Roberta A. Gazzola's Daimler-Chrysler vehicle pursuant to Nassau County Administrative Code §8-7.0(g)(4) and Daimler Chrysler Services North America, LLC's ("Daimler-Chrysler") cross-claim which conversely seeks repossession of Roberta A. Gazzola's Daimler-Chrysler vehicle pursuant to their purchase money security agreement and for an order pursuant to 22 NYCRR §130-1.1 imposing costs and sanctions is determined as provided herein.

This Court starts with a consideration of the cross-motion by defendant Daimler-Chrysler seeking an order pursuant to CPLR 3212 granting it summary judgment declaring that it is an "innocent lienholder" as provided at Nassau County Administrative Code §8-7.0(g)(4)(f) providing that it has a possessory right to a certain vehicle bearing VIN number 1J4GW48S14C350116 superior to defendants Christopher P. and Roberta A. Gazzola and that it is entitled to immediate possession of the vehicle to sell it and apply the proceeds to reduce the balance owed it under its purchase money security agreement with Roberta A. Gazzola pursuant to Section 8-7.0(g) of the Nassau County Administrative Code is denied.

In this action pursuant to Nassau County Administrative Code §8-7.0(g)(4), the County of Nassau seeks the forfeiture of a Daimler-Chrysler motor vehicle VIN Number 1J4GW48S14C350116 which vehicle is registered and titled to defendant Roberta A. Gazzola. Defendant Daimler-Chrysler is a lienholder. It has a duly perfected first priority security interest in the vehicle pursuant to a finance agreement which was executed by Roberta A. Gazzola. Roberta A. Gazzola has advanced an "innocent owner" defense pursuant to Nassau County Administrative Code §8-7.0(g)(4)(f). Daimler-Chrysler has advanced an "innocent lienholder" defense pursuant to Nassau County Administrative Code §8-7.0(g)(4)(f), as well as a cross-claim against the individual defendants pursuant to its purchase money security agreement with Roberta A. Gazzola thus seeking to repossess the vehicle.

Daimler-Chrysler presently seeks summary judgment declaring its absolute right to the vehicle. The County supports that application.

The pertinent facts are as follows:

On or about June 21, 2004, Roberta A. Gazzola financed the purchase of her Daimler-Chrysler vehicle via a written agreement. The vehicle is pledged to Daimler-Chrysler as collateral: Daimler-Chrysler is the lienor. In the parties' agreement, the Buyer Roberta A. Gazzola agrees, inter alia, to maintain the vehicle in good condition; to obey all laws; and, "to keep the vehicle free from the claims of others." The agreement provides that the Buyer is in default if, inter alia, she does not keep any promise in the contract; the vehicle is seized by any local, state or federal authority; or, she breaches any promise, representation or warranty undertaken by her in the contract. Daimler-Chrysler is afforded a right under the agreement to repossess Roberta A. Gazzola's vehicle in the event that she fails to comply with their agreement.

On November 20, 2004, Roberta A. Gazzola's son defendant Christopher P. Gazzola was arrested and charged with driving with .08 of 1 percent alcohol, in violation of Vehicle & Traffic Law §1192.2. In accordance with Nassau County Administrative Code §8-7.0(g)(4)(a), at the time of his arrest, Christopher P. Gazzola was given a "Vehicle Seizure Notice" advising him that the vehicle he was operating might become the subject of a forfeiture action if the County determines it to have been an instrumentality of the offense charged. This Notice advised that the owner must keep possession of the vehicle and give written notice to the County if he/she intends to transfer it. A copy of that notice was sent to both of the Gazzolas together with an advisory cover letter on December 8, 2004, by certified mail, return-receipt-requested. On November 30, 2004 Christopher P. Gazzola pled guilty to Driving While Impaired, a violation of Vehicle & Traffic Law §1192.1. He was sentenced to a $350 fine and a 90-day license suspension, and a conditional discharge after one year.

The County commenced this action seeking a judgment of civil forfeiture of the vehicle against the Gazzolas and Daimler-Chrysler pursuant to Nassau County Administrative Code §8-7.0(g) on March 18, 2005. Daimler-Chrysler interposed a cross-claim against the individual defendants seeking to repossess the vehicle pursuant to its purchase money security agreement with Roberta A. Gazzola.

Daimler-Chrysler presently seeks declaratory relief that it is entitled to the vehicle. The County does not oppose that application, however, the Gazzolas do.

The Gazzolas have in fact cross-moved for dismissal of the complaint and cross-claim.

"On a motion for summary judgment pursuant to CPLR 3212, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact." Sheppard-Mobley v. King, 10 AD3d 70 (2d Dept. 2004), citing Alvarez v. Prospect Hosp., 68 NY2d 320, 324; Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853. "Failure to make such a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers." Sheppard-Mobley v. King, supra; Winegrad v. New York Univ. Med. Ctr., supra. Once the movant's burden is met, the burden shifts to the opposing party to establish the existence of a material issue of fact. Zuckerman v. City of New York, 49 NY2d 557 (1980).

Nassau County Administrative Code §8-7.0(g)(4) provides that the County of Nassau may commence a civil action for forfeiture of any vehicle which has been operated by a person charged with a violation of Section 1192 of the Vehicle and Traffic Law and such person is convicted or pleads guilty to any subdivision of that section. However, Nassau County Administrative Code §8-7.0(g)(4)(f) provides:

"It shall be an affirmative defense to an action brought to this paragraph that the owner of the vehicle other than the person arrested for violation of any provision of section eleven hundred ninety-two of the Vehicle and Traffic Law did not know, or had no reason to know, that there was a reasonable likelihood that the vehicle would be used in violation of any such provision."

Christopher P. Gazzola pled guilty to driving while his ability was impaired by alcohol in violation of Vehicle & Traffic Law §1192.1, which fact cannot be contested here. See, Continental Casualty v. Rapid American Corp., 80 NY2d 540 (1993); Bazazian v. Logatto, 299 AD2d 433 (2d Dept. 2002). Even though the County has established that the vehicle was used in violation of Vehicle and Traffic Law §1192 and that the operator pled guilty to a subdivision of that statute, it has failed to establish that Roberta A. Gazzola is not entitled to the "innocent owner" defense set forth at Nassau County Administrative Code §8-7.0(g)(4)(f). Ms. Gazzola has established that she in fact is entitled to rely on that defense. She has attested that she did not give her son Christopher P. Gazzola permission to use her car nor did she have any reason to think that he would do so, let alone, a reason to think that he would do so in an illegal fashion; and no facts to the contrary have been presented.

Turning to Daimler-Chrysler's application, through the affidavit of its employee, Jeremy Lawrence, it has established that it had no knowledge that the subject vehicle would be used in violation of the agreement or to further illegal purposes. Daimler-Chrysler has accordingly established its entitlement to the benefit of the "innocent owner" defense set forth at Nassau County Administrative Code §8.7.0(g)(4)(f). That is, it has established that it did not know and had no reason to know that there was a reasonable likelihood that the vehicle would be used in violation of Vehicle & Traffic Law §1192. The County in fact recognizes that Daimler-Chrysler has a right to the vehicle superior to it. However, Daimler-Chrysler has not established that it is entitled to recover on its cross-claim against the vehicle's owner, defendant Roberta A. Gazzola. While pursuant to their agreement, Daimler-Chrysler has a right to repossess the vehicle from Roberta A. Gazzola under certain circumstances, those circumstances have not been demonstrated here. Daimler-Chrysler has not established that Roberta A. Gazzola has violated any of the terms of their agreement, i.e., that she has failed to keep the vehicle in good condition, obey all laws, or keep the vehicle free from the claims of others. As stated earlier, Roberta A. Gazzola is fully entitled to advance the "innocent owner" defense as against the County and the vehicle is accordingly free from a claim by it.

Daimler-Chrysler's motion for costs and sanctions pursuant to 22 NYCRR 30-1.1 is denied. Contrary to its characterization of the sequence of events here, neither the County nor Daimler-Chrysler have engaged in frivolous conduct by refusing to withdraw their claims. Requiring Roberta A. Gazzola to establish the legal vitality of her affirmative defense and her right to retain the vehicle was hardly frivolous.

In conclusion, Daimler-Chrysler's motion is denied. Roberta A. Gazzola's motion is granted to the extent that it is hereby declared that neither the County nor Daimler-Chrysler presently have rights superior to her to her vehicle bearing VIN 1J4GW48S14C350116.

The complaint and all cross-claims are dismissed.

This action is concluded.

We have also been successful in receiving an award of sanctions against Nassau County for frivolous conduct. The end result in this action was not only protection of the vehicle but a monetary award for our client to offset their legal expense and to admonish Nassau County for continuing to maintain its lawsuit under circumstances where there was not a legal basis to do so.