Police Dep`t v. Romacho

Police Dep’t v. Romacho
OATH Index No. 2293/15, mem. dec. (Apr. 20, 2015)
Upon the respondents’ failure to appear for the hearing, they were
found to be in default, and their right to a hearing was deemed to
be waived.
_______________________________________________________
NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
POLICE DEPARTMENT
Petitioner
- against MICHAEL ROMACHO AND JESSICA ROMACHO
Respondents
______________________________________________________
MEMORANDUM DECISION
KARA J. MILLER, Administrative Law Judge
Petitioner, the Police Department, brought this proceeding to determine its right to retain
a vehicle seized as the alleged instrumentality of a crime pursuant to section 14-140 of the
Administrative Code. Respondent Michael Romacho is the titled and registered owner of the
seized vehicle (Pet. Exs. 11, 13, 14). The vehicle, a 2000 Ford Taurus, Vehicle Identification
No. 1FAFP5228YG210744, was seized on March 26, 2015, following the respondent Jessica
Romacho’s arrest for criminal possession of marijuana, criminal possession of a controlled
substance, and possession of narcotics with intent to sell (Pet. Exs. 4, 5, 6, 7, 8, 9). This
proceeding is mandated by Krimstock v. Kelly, 2007 U.S. Dist. LEXIS 82612 (S.D.N.Y. Sept.
27, 2007) (the “Krimstock Order”). See generally Krimstock v. Kelly, 306 F.3d 40 (2d Cir.
2002), cert. denied, 539 U.S. 969 (2003); County of Nassau v. Canavan, 1 N.Y.3d 134 (2003).
The Department received respondents’ demand for a hearing on April 10, 2015 (Pet. Ex.
1). Respondents left a number of spaces on the form blank, including dates that they would be
available to attend a hearing during the next four weeks, and the name and contact information of
-2their legal representative (Pet. Ex. 1). The Department scheduled a hearing before this tribunal
for April 20, 2015, at 9:30 a.m., and duly served notice of the hearing upon respondents (Pet.
Exs. 2, 3).
Petitioner’s notice of hearing included the following warning:
If you fail to appear at the hearing, either in person or by an
authorized representative, the presiding judge may declare you to
be in default, may determine that you have waived your right to a
hearing, may decide the case against you in your absence, and may
make other determinations in your absence.
(Pet. Ex. 2).
Based upon the evidence presented, I found respondents to be in default. Respondents’
default constitutes a waiver of their right to a hearing. Police Dep’t v. Hemraj, OATH Index No.
1844/13, mem. dec. at 2 (Apr. 5, 2013) (citing Police Dep’t v. Ganser, OATH Index No.
1275/04, mem. dec. at 2-3 (Mar. 22, 2004)). Respondents retain the right to oppose the
Department’s civil forfeiture action. An adverse trial decision from this tribunal does not serve
as collateral estoppel in the civil forfeiture action.
Respondents may move to vacate the default in the instant proceeding as provided for in
section 1-45 of this tribunal’s rules of practice. A motion to vacate a default must include two
showings: good cause for the respondent’s failure to appear and a meritorious defense to the
petition. Police Dep’t v. Rojas, OATH Index No. 434/15, mem. dec. at 2 (Aug. 29, 2014). See,
e.g., Police Dep’t v. Grant, OATH Index No. 508/07, mem. dec. at 2 (Oct. 12, 2006); Dep’t of
Correction v. Heyward, OATH Index No. 2041/00 at 3-5 (July 18, 2000); Transit Auth. v.
O’Connell, OATH Index No. 1076/91, mem. dec. at 3 (Nov. 8, 1991). Pursuant to section 1-45
of OATH’s rules of practice, such a motion must be made “as promptly as possible,” and must
comply with the formal requirements of section 1-52 of this tribunal’s rules.
If the motion to vacate is granted, respondents may pursue their hearing rights before this
tribunal. If the motion is denied, they may seek judicial review of that denial. Respondents may
not, however, submit another demand for a hearing or otherwise proceed de novo before this
tribunal.
-3ORDER
Respondents are declared to be in default, and their right to a hearing is deemed to be
waived.
Kara J. Miller
Administrative Law Judge
April 20, 2015
APPEARANCES:
JASON W. KRAWITZ, ESQ.
Attorney for Petitioner
No Appearance by or for Respondents