Maxineau v. City of New York et al
MEMORANDUM AND ORDER. Maxineau lacks standing to pursue a§ 1988 claim, as well as § 1983 claims arising under the Fourth, Fifth, and Eighth Amendments. The City's motion to dismiss these claims for lack of standing is g ranted. Maxineau has standing to assert a § 1983 claim against the City under the Fourteenth Amendment, but may not recover damages based on the repossession of his vehicle by Sovereign. The City's motion to dismiss this count is denied except with regard to damages based on repossession of the Nissan by Sovereign. Ordered by Judge Eric N. Vitaliano on 6/6/2013. C/M. (Siegfried, Evan)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM AND ORDER
THE CITY OF NEW YORK.
On April 11, 2011, pro se plaintiff Brunei Ma)(ineau brought this action against the City
of New York ("the City") asserting causes of action arising under 42 U.S.C. § 1983. Ma)(ineau
seeks damages for what he claims was an unlawful seizure of his vehicle, which the City
confiscated for use as evidence in a criminal case against Ma)(ineau. Currently before the Court
is the City's motion to dismiss under Federal Rule 12(b)(l) for lack of subject matter
jurisdiction. The City contends that Ma)(ineau lacks standing to assert his claims. For the reasons
that follow, the City's motion is granted in part and denied in part.
The following facts are drawn from the pleadings, briefs, and attached e)(hibits. 1
"In resolving a motion to dismiss for lack of subject matter jurisdiction under Rule
12(b)(1) a district court may consider evidence outside the pleadings." Morrison v. Nat'/
Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008).
On February 22, 2008, officers of the New York City Police Department ("NYPD")
arrested Maxineau on charges, among others, ofthe kidnapping and rape of a 16-year-old girl.
(See Def.'s Mem. (Dkt. No. 24) at 2; MacFarlane Dec!. (Dkt. No. 25), Exh. A). At the time of the
arrest, Maxineau's vehicle-a 2007 Nissan Frontier ("the Nissan")-was undergoing repair work
at City Auto Body of Valley Stream ("the shop"). (See Compl. (Dkt. No. I) '1[2; Def.'s Mem. at
2). Employees at the shop surrendered the Nissan to NYPD officers on or about the same date as
the arrest; ostensibly, the officers sought possession of the vehicle for use as evidence in the
criminal prosecution of plaintiff. (See Compl. '1[2; Def.'s Mem. at 2; MacFarlane Dec!., Exh. EF). Maxineau now contends that the City violated his constitutional rights by seizing the Nissan
without his consent or a warrant, and without having followed the legally prescribed procedures
for seizing and returning private property. (See Campi. at '1['1[2, 6, 9, 11-12).
Maxineau purchased the Nissan on September 27, 2007, when he entered into a retail
installment contract ("the contract") with Sovereign Bank ("Sovereign") to finance the $22,152
payment price of the vehicle. (See Def. 's Mem. at 2; MacFarlane Dec!., Exh. B). Under the
contract, Maxineau was required to make monthly payments to Sovereign, which retained a lien
on the vehicle as well as a right to repossess it under various specified circumstances, including
its seizure "by a third party ... because of the Vehicle's alleged or actual involvement in actual
or alleged criminal or unlawful activity," or that "[a]ny amount owing under this Contract or any
other amount [the purchaser] owe[ s] [Sovereign] now or in the future is not paid by the day it
becomes due." (Def. 's Mem. at 2; MacFarlane Dec!., Exh. Bat Right to Demand Payment in Full
Events No. I, 9; Exh. C). In spite of Sovereign's lien, Maxineau had acquired property rights in
the Nissan on the day he purchased it.
There was nothing remarkable about Maxineau's car deal. According to the relevant
account balance records, he made a $2000 down payment on November 7, 2007 as well as
monthly payments of$400 from November 2007 through February 2008. (See MacFarlane
Decl., Exh. G). He made no payments following his arrest on February 22, 2008. (See id). The
record does not speak as to whether he remained at liberty or was detained during that period.
After pleading guilty to first-degree rape, a judgment of conviction was entered against
Maxineau on October 5, 2009. He is currently serving out a prison sentence at Coxsackie
Correctional Facility in Coxsackie, New York. (See Def.'s Mem at 3 (citing People v Maxineau,
78 A.D.3d 732, 909 N.Y.S.2d 659 (2d Dep't 2010); Compl.
On December 10, 2009, Sovereign's holding company, Santander, filed a notice of
repossession for the Nissan with the Indiana Bureau of Motor Vehicles and acquired title on
December 17, 2009. (MacFarlane Dec!., Exhs. H-1). The record is bare as to the specific event of
default on which Santander moved to repossess. The City released the Nissan to Santander on or
about February 23,2010. (ld, Exh. J). That same day or soon thereafter, a company identified as
Drive Financial Services mailed Maxineau a notice informing him of the repossession and
explaining that, within ten days, he could reinstate the contract by paying a total of $10,854.56,
or redeem full ownership rights by paying $23,647.67. (!d., Exh. K). Maxineau appears not to
have either reinstated the contract or redeemed full ownership rights. (See Compl.
that plaintiff "believes that his chattal [sic] is un-redeemable")).
Plaintiff filed this prose action on April!!, 2011 in the United States District Court for
the Southern District of New York naming as defendants the City and the shop. (See Compl.
1-7). The complaint asserted that "[t]his action arises under the Eight and Fourteenth
Amendments to the United States Constitution and under 42 U.S.C. §§ 1983 and 1988 and under
New York State common Jaw." 2 It also references the Fifth Amendment and (implicitly through
accusations ofNYPD's warrantless seizure of the Nissan) the Fourth Amendment.
11). The case was transferred to this Court on May 31,2011 (see Transfer Order (Dkt. No.4)).
The shop was dismissed from the case on July 15, 2011; as a private party, it was not a proper
defendant to a§ 1983 action. (See Mem. and Order (Dkt. No. 8)).
Standard of Review
Prose pleadings such as Maxineau's complaint are held to less stringent standards than
those drafted by attorneys, and the Court must read pro se complaints liberally and interpret them
to raise the strongest arguments they suggest. See Erickson v. Pardus, 551 U.S. 89, 94 (2007);
Ahlers v. Rabinowitz, 684 F.3d 53,60 (2d Cir. 2012). If a liberal reading of the pleadings
indicates that a valid claim might be stated, the court must grant leave to amend it. See Cuoco v.
Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). The Court must be particularly solicitous when
reviewing a complaint that alleges civil rights violations, as Maxineau's does. See Sealed
Plaintiffv. Sealed Defendant #1, 537 F.3d 185, 191 (2d Cir. 2008).
Nonetheless, a plaintiff must show that he has standing to sue on his claims for a federal
court to have subject matter jurisdiction over them. See Mahon v. Ticor Title Ins. Co., 683 F.3d
59,62 (2d Cir. 2012). "'[T]he irreducible constitutional minimum of standing' derives from
Article III, Section 2 of the U.S. Constitution, which limits federal judicial power to 'cases' and
'controversies."' Natural Res. Def Council, Inc. v. US. Food and Drug Admin, 710 F.3d 71, 79
Maxineau does not specify what causes of action under New York State common Jaw he
wishes to assert. In any event, there is no record that Maxineau submitted aN. Y. Gen.
Mun. Law § 50-e notice, which he must have done within 90 days to bring any state law
claims against the City in federal court. See Hardy v. New York City Health & Hosp.
Corp., 164 F.3d 789,793 (2d Cir. 1999). Hence, any claims against the City based on
New York law are procedurally barred.
(2d Cir. 2013) (quoting U.S. Const. art. III,§ 2 and Lujan v. Deftnders ofWildlift, 504 U.S. 555,
560 (1992)). "[A] plaintiff must demonstrate standing for each claim he seeks to press."
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006). The standing analysis is contextual,
and must comply with the "manner and degree of evidence required at the successive stages of
the litigation." Lujan, 504 U.S. at 561. Additionally, because this case is at the pleading stage,
"general factual allegations of injury resulting from the defendant's conduct may suffice," id.,
and the Court may look outside the pleadings to determine whether standing exists. Morrison,
547 F.3d at 170. Additionally, since defendant is moving to dismiss, the facts alleged by plaintiff
in his pleadings must be taken as true. Lujan, 504 U.S. at 561.
As taught in Lujan, Article III standing consists of three elements. First, plaintiff must
have suffered an "injury in fact"-that is, an invasion of a legally protected interest which is
concrete and particularized, as well as an injury that is "actual or imminent" rather than
"conjectural or hypothetical." Id. at 560 (internal quotations omitted). Second, "there must be a
causal connection between the injury and the conduct complained of-the injury has to be fairly
traceable to the challenged action of the defendant, and not [be] the result of independent action
of some third party not before the court." !d. (internal quotations and ellipses omitted). Third, "it
must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable
decision." Id. (internal quotations omitted).
A. 42 U.S.C. § 1988
As a preliminary matter, the Court observes sua sponte that 42 U.S.C. § 1988 does not
establish a separate cause of action for an alleged violation of a plaintiff's civil rights, but merely
provides a means for a prevailing party to recover reasonable attorney's fees in a§ 1983 action.
See 42 U.S.C. § 1988(b). In any event, the Supreme Court has instructed that this statute does not
apply to pro se litigants, even when they prevail on the merits of their § 1983 claim. See Kay v.
Ehrler, 499 U.S. 432, 437-38 (1991). Accordingly, it provides Maxineau no basis for jurisdiction
or relief in this case.
B. 42 U.S.C. § 1983
"Section 1983 provides a civil claim for damages against any person who, acting under
color of state law, deprives another of a right, privilege or immunity secured by the Constitution
or the laws ofthe United States." Sykes v. James, 13 F.3d 515,519 (2d Cir. 1993). Courts have
interpreted the word "person" in this context to include municipalities such as the City if the
plaintiff can show "(I) actions taken under color of law; (2) deprivation of a constitutional or
statutory right; (3) causation; (4) damages; and (5) that an official policy of the municipality
caused the constitutional injury." Roe v. City of Waterbury, 542 F.3d 31,36 (2d Cir. 2008)
(citing Monell v. Dep 't of Social Servs., 436 U.S. 658, 690-91 (1978)). See also Roe, 542 F.3d at
36 ("[M]unicipalliability under § 1983 attaches where-and only where-a deliberate choice to
follow a course of action is made from among various alternatives by the official or officials
responsible for establishing final policy with respect to the subject matter in question.").
Under Monell, an actionable municipal policy or custom exists in the following
(I) the existence of a formal policy which is officially endorsed by the
municipality; (2) actions taken or decisions made by municipal officials with final
decision making authority, which caused the alleged violation of plaintiffs civil
rights; (3) a practice so persistent and widespread that it constitutes a custom of
which constructive knowledge can be implied on the part of the policymaking
officials; or (4) a failure by policymakers to properly train or supervise their
subordinates, amounting to 'deliberate indifference' to the rights of those who
come in contact with the municipal employees.
Bliven v. Hunt, 478 F.Supp.2d 332, 336-37 (E.D.N.Y. 2007) (citing Moray v. City of Yonkers,
924 F.Supp. 8, 12 (S.D.N.Y. 1996)). Notably, if a plaintiff seeks to show municipal policy by
referring to only a single act, that act must have been committed by a city official "responsible
for establishing final policy with respect to the subject matter in question," and must represent a
deliberate and considered choice among competing alternatives. Pembaur v. City of Cincinnati,
475 U.S. 469,483-84 (1986). If the plaintiff challenges what he claims is an unofficial custom or
practice of the city, he must show that the practice "so widespread as to have the force oflaw."
Id (quoting Bd ofCnty. Comm 'rs, 520 U.S. at 404). The custom "need not [have] receive[ d)
formal approval by the appropriate decision-maker ... [but] plaintiff must prove ... that [it] is
permanent." Davis v. City ofNew York, 228 F.Supp.2d 327, 337 (S.D.N.Y. 2002) (internal
Consequently, ifMaxineau's lawsuit is to bear fruit, it must take root in the fertile soil of
§ 1983, Monell, and its progeny. The Court will consider each seed that plaintiff might arguably
In several places throughout his complaint, Maxineau asserts that NYPD seized the
Nissan from him "absent [his] consent ... or a warrant." (Compl.
2). The City objects to any
Fourth Amendment claim alleged to arise from NYPD's taking possession of the Nissan at the
repair shop. It argues that "plaintiffs vehicle was not seized-the body shop plaintiff left his
vehicle with released the vehicle to NYPD." (Def.'s Reply (Dkt. No. 26) at 2) (emphasis in
original). Given voluntary surrender ofthe car by the shop, the City presses the view that it did
not cause any legally cognizable injury to Maxineau supporting a Fourth Amendment claim.
The veil of voluntary surrender shielding the City is immodestly thin. The Supreme Court
has instructed that a seizure of property occurs whenever a government entity "meaningful[ly]
interfere[s] with an individual's possessory interests in that property." Soldal v. Cook Cnty., 506
U.S. 56, 61 (1992). When, for law enforcement purposes, police officers acquire private property
from a third party to whom it has been entrusted, they have meaningfully interfered with the
primary party's possessory interest in the property. See US. v. Jacobsen, 466 U.S. 109, 120, 120
n.18 (1984), (DEA agents that confiscated parcels from Federal Express "seized" the property by
"exert[ing] dominion and control over the package for their own purposes");Cardwe/1 v. Lewis,
417 U.S. 583 (1974) (police's removal of a car from a commercial parking lot and subsequent
impoundment was a "seizure" under the Fourth Amendment). Here, it is of no moment that the
shop "released" the Nissan to NYPD; the police exerted dominion and control over the vehicle
and interfered with Maxineau's possessory right to it. Plainly, the officers "seized" the vehicle
within the meaning of that term as used in the Fourth Amendment. 3
However, even ifMaxineau has articulated a cognizable claim arising out ofNYPD's
seizure of his Nissan from the shop, he has not demonstrated a causal chain linking the claimed
loss to the City. Assuming, arguendo, that the officers' warrantless seizure of the vehicle was
unreasonable, Maxineau has pleaded no facts whatsoever suggesting that their improper actions
were the result of any City policy, either official or unofficial, or that the City was grossly
negligent in its training and supervising its officers with regard to property seizures. Nor has he
pleaded facts indicating that high-ranking policymakers were responsible in any way for the
While the "third party consent" doctrine permits a third party in some circumstances to
consent to a search or seizure on behalf of the primary party, that doctrine relies upon the
"mutual use of the property by persons generally having joint access or control for most
purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right
to permit the [search or seizure] and that the others have assumed [that] risk." US. v.
Matlock, 415 U.S. 164, 171 n.7 (1974). The shop did not share with Maxineau "joint
access or control" over the Nissan "for most purposes." As a result, this doctrine is
seizure. There is simply no basis under Monell to link the City to the allegedly improper seizure
of the vehicle. Accordingly, there is no causation under Lujan's second prong, and Maxineau
lacks standing to pursue a Fourth Amendment claim under § 1983.
The Fifth Amendment provides an assortment of protections against government
intrusions in both a civil and criminal context. Maxineau does not specify which aspects of the
Fifth Amendment he seeks to assert in his § 1983 claim; with solicitude, the Court can identify
only two that might have any relevance to his stated grievances: the prohibition of
"depriv[ations] oflife, liberty, or property, without due process oflaw," and the proscription
against government "takings" of"private property ... for public use, without just
compensation." U.S. Const. amend. V. However, neither ofthese protections applies to
Maxineau's claims, and he lacks standing to assert them under§ 1983.
First, "[t]he Fifth Amendment's Due Process Clause protects citizens against only federal
government actors, not State officials." Mitchell v. Home, 377 F.Supp.2d 361, 372 (S.D.N.Y.
2005) (citing Dusenbery v. US., 534 U.S. 161, 167 (2002)). Consequently, with no federal
involvement in this matter, Maxineau has asserted no cognizable wrong under the Fifth
Amendment's due process clause; all of his complaints are directed at officials operating with
state authority. The takings clause, on the other hand, does apply to state actors through the
Fourteenth Amendment. See Palazzolo v. Rhode Island, 533 U.S. 606, 611 (2001). 4 However the
case law makes clear that a government's seizure of private property under a power other than
Similarly, the protections provided by the Fourth and Eight Amendments are
incorporated into the Fourteenth Amendment's Due Process Clause and thus apply to
state actors. See Bailey v. US., 133 S.Ct. 1031, 1038 (2013); Kennedy v. Louisiana,
554 u.s. 407,419 (2008).
that of eminent domain does not require compensation·, nor does it implicate the Fifth
Amendment. See, e.g., Bennis v. Michigan, 516 U.S. 442,452 (1996) ("The government may not
be required to compensate an owner for property which it has already lawfully acquired under
the exercise of governmental authority other than the power of eminent domain."); Acadia
Technology, Inc. v. U.S., 458 F.3d 1327, 1331 (Fed. Cir. 2006) (government seizure of property
as evidence in a criminal proceeding or as the suspected instrumentality in a crime does not
constitute a taking for Fifth Amendment purposes); AmeriSource Corp. v. U.S., 525 F.3d 1149,
1153 (Fed. Cir. 2008) ("Property seized and retained pursuant to the police power is not taken for
a 'public use' in the context of the Takings Clause.").
Certainly, it is beyond dispute that the seizure of the Nissan by NYPD did not result from
the exercise the power of eminent domain by the City. Rather, the officers impounded the
vehicle for use as evidence in the criminal case against its owner. It is equally clear that the
seizure of property for use as evidence in a criminal matter is a valid exercise of a state's police
power. See Ford Motor Credit Co. v. NY. C. Police Dept., 503 F.3d 186, 188 (2d Cir. 2007) ("If
the City also wishes to retain the vehicle as 'arrest evidence' or 'trial evidence' pending
conclusion of a criminal proceeding, it may do so.") (internal citations omitted). See also id.
("[l]t is clear that the police power encompasses the government's ability to seize and retain
property to be used as evidence in a criminal prosecution.") (citing Warden v. Hayden, 387 U.S.
294,309-10 (1967)). Even ifMaxineau alleges that NYPD failed to provide him with adequate
post-deprivation process following seizure of his vehicle, there is no doubt that the seizure itself
was an exercise of the City's power to seize probative evidence for use in criminal proceedings.
As such, putting aside the Fifth Amendment's inapplicability to nonfederal actions, there was no .
taking, nor was there any pre-impoundment process required before accepting the repair shop's
surrender of the vehicle. Maxineau therefore lacks standing to assert a Fifth Amendment claim
under§ 1983. 5
The Eighth Amendment mandates that "( e]xcessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. amend. VII.
Maxineau indicates in his complaint that the City violated the Eighth Amendment by seizing the
Nissan without gaining his consent and/or providing him with notice and other procedural
protections. To implicate the Eighth Amendment, the challenged action must have been taken for
the purpose of imposing a punishment. See, e.g., Rhodes v. Chapman, 452 U.S. 337,348 (1981)
(double ceiling of prisoners "simply [is] not punishment," and, as a result, does not run afoul of
the Eighth Amendment); Santelises v. Immigration and Naturalization Serv., 491 F.2d 1254,
1255-56 (2d Cir. 1974) ("It is settled that deportation, being a civil procedure, is not punishment
and the cruel and unusual punishment clause of the Eighth Amendment accordingly is not
applicable."); Ford Motor Credit Co. v. N.Y. C. Police Dept., 394 F.Supp.2d 600,618 (S.D.N.Y.
2005) ("Because plaintiff has failed to set forth any evidence suggesting that the 10% deduction
is punitive in nature, it is not susceptible to Eighth Amendment analysis.").
There are no facts in the record suggesting-and Maxineau certainly does not contend-that
the NYPD officers confiscated the Nissan in order to punish him. Indeed, there seems to be no
substantial dispute that the vehicle was removed from the shop as evidence to be used in
connection with the criminal case against Maxineau. Such a purpose is hardly punitive in nature.
The due process clause of the Fourteenth Amendment is treated separately at part IV,
infra. The issue of post-deprivation process is discussed in that section. Some courts have
held that the Fifth Amendment does apply in such a context, even to a state-level
official's activities. See, e.g., McClendon v. Rosetti, 460 F.2d 111, 116 (2d Cir. 1972).
Substantively, the analyses are the same.
With no showing of punitive intent on the part of a law enforcement official, there is no Eighth
Amendment injury. Nor, then, is there standing to assert and Eighth Amendment claim under§
Maxineau also brings a Fourteenth Amendment claim against the City. The amendment
prohibits "State[ s] ... [from] depriv[ing] any person oflife, liberty, or property, without due
process of law." U.S. Const. amend. VII. Maxineau charges that NYPD failed to provide him
with proper notice of the seizure of the Nissan, offered him no information "about where and
how to retrieve" the vehicle, and failed to comply with or give notice of other legally required
Pl.'s Opp. Mem. (Dkt. No. 22) at 1). He further contends that the
City's failure represents a decades-long pattern of"routine and systematic deprivation of arrested
defendants/plaintiffs [sic] property without Notice or commencement of proceedings allowing
lawful forfeiture." (Compl.
8 (citing McClendon v. Rosetti, 369 F.Supp. 1391 (S.D.N.Y. 1974);
see also Compl. ~ 2 (referring to the "oft-recurring pattern of deprivation of chattel by the City of
New York absent Notice for the return ofthe same")). Maxineau attributes this "routine" practice
to the City, which "promulgates and implements policies, including those with respect to giving
Notice for the return of property seized as a resort of arrest incident," and "is responsible for the
appointment, training, supervision, and conduct of its personnel" with regard to these actions.
(Compl. ~ 5). In sum, while his pleadings are not entirely clear on this point, plaintiff does
indicate that he seeks as relief a measure of damages equaling $23,64 7.67, the redemption
value of the Nissan demanded by Sovereign (via Drive Financial Services) following its
repossession of the vehicle from the City. (!d.
The City concedes that "plaintiff was arguably entitled to ... notice and a hearing
regarding the Nissan's continued seizure," (Def.'s Mem. at 5 (citing Ezagui v. NYC, 726 F.
Supp. 2d 275, 281 (S.D.N.Y. 2010)), but claims that Maxineau lacks standing to assert a
Fourteenth Amendment claim because "he had no right in the Nissan as of the moment it was
converted into arrest evidence." (Def.'s Mem. at 5). The City cites the clause in Maxineau's
contract with Sovereign that granted the bank the right to repossess the Nissan in the event that it
was seized as evidence in an alleged criminal activity. (!d.) The City submits that, "following the
seizure of the Nissan, Sovereign's interest in the Nissan extinguished any interest plaintiff might
have had in it. To the extent process was due upon seizure, it was due to Sovereign." (!d.). The
City further asserts that, with regard to the $23,647.67 redemption price, he "cannot demonstrate
that the City's failure to provide [him] with notice or a hearing regarding the Nissan's seizure
and retention discharged his financial obligations to Sovereign .... Plaintiff's loss of title is a
direct result of plaintiffs failure to make payments on his car loan." (!d. at 6).
The City is correct that Sovereign's repossession of the Nissan was not the City's doing.
Maxineau's obligation to pay Sovereign monthly installments on the vehicle is entirely unrelated
to the City's seizure of it. Regardless of whether he was given proper notice, hearing rights, or
other procedural protections as to any interference by the City with his rights in the Nissan,
Maxineau was still required to honor the contract between Sovereign and himself; the fact that he
no longer had possession of the automobile during the time it was in police or prosecutors'
possession had no bearing on his installment payment obligations. Indeed, he needed no notice
from the City of his obligation to make these payments. He was neither entitled to such notice,
nor does he allege any fact to suggest that the City hindered his ability in any way to arrange for
these payments to be made.
Although Maxineau asserts that "[his] family could have made payments or arrangement
to take possess [sic] of plaintiff [sic] properties if only Plaintiff were informed or received any
Notice his properties," (Pl.'s Opp. Mem. at 1), thisjumb1e of grievances merely underscores (but
does not repair) the chink in his armor. Again, Maxineau lost rights in the Nissan because he
failed to pay for it. He makes no showing that the City prevented him or anyone designated by
him from doing so. Maxineau cannot show a causal link between the City's actions, on the one
hand, and, on the other hand, either his missed car payments or his failure to reinstate the
financing agreement or outright redeem the vehicle when those opportunities were offered to
him. Accordingly, he lacks standing to seek damages related to the repossession of the Nissan by
Sovereign, or more precisely, Santander, its parent. 6
There is, however, a chink in the City's armor, too. The City founds its argument on the
proposition that Maxineau lost all possessory right to the Nissan once it was seized as evidence
in the criminal case against him. This is incorrect. First, the contract does not state that vehicle
title automatically reverts to Sovereign in the event of the car's seizure in connection with a
criminal proceeding. Rather, the clause merely pennits Sovereign to "require that the entire
balance of [the purchaser's]loan be paid at once, without prior notice or demand," in the event
of its seizure by a third-party on account of its actual or suspected use in criminal activity.
(MacFarlane Decl., Exh. B at 2). The City is therefore wrong to contend that Maxineau
automatically lost all possessory interest in the Nissan at the moment NYPD confiscated the
vehicle from the shop. As the record demonstrates, Sovereign did not seek to repossess the
vehicle until December 10, 2009, and did not acquire title until December 17 of that year,
approximately 22 months after NYPD's seizure of the vehicle. (MacFarlane Decl., Exhs. H-1).
But even if title to the Nissan had reverted directly to Sovereign upon seizure by NYPD,
For the ease offactua1 discussion, the Court will refer only to Sovereign and not
Maxineau would still have retained a property interest in the vehicle, if not contractually, at least
for due process purposes. The due process protection afforded by the Fourteenth Amendment
safeguards not only the rights of undisputed owners, but also the rights of those with "any
significant property interest." Fuentes v. Shevin, 407 U.S. 67, 86 (1972) (holding that, for the
purposes of the Fourteenth Amendment, plaintiffs had a property interest in household goods
bought under an installment sales contract, even though they lacked title to the goods). The
Second Circuit has held that a plaintiff who has purchased a vehicle through an installment plan
may retain a property right in the vehicle if he has made substantial payments on the agreement.
See, e.g., Alexandre v. Cortes, 140 F.3d 406,411 (2d Cir. 1998) (holding that a plaintiff who
lacked title to a Porsche nonetheless had a property interest in it, having paid approximately
$2,100 of a $3,400 loan); Barrett v. Harwood, 189 F.3d 297,301 (2d Cir.1999) (plaintiffs who
had paid off approximately $5-6000 of an $11,000 loan retained a property interest in a truck);
see also Pangburn v. Culbertson, 200 F.3d 65, 70 (2d Cir. 1999) (reversing district court and
citing Fuentes, Alexandre, and Barrett in holding that a lack of title ownership does not
necessarily defeat a plaintiff's property interest in a vehicle).
At the time the Nissan was seized by NYPD, Maxineau had already made a down
payment of $2,000 on it and had made four monthly installment payments of $400-a total of
$3,600. (Macfarlane Dec!. Ex. G). While it only amounts to some 16% of the vehicle's $22,152
purchase price, as an absolute value, $3,600 is a significant investment, and exceeds the $2,100
the plaintiff in Alexandre had paid on his Porsche. Furthermore, even after Sovereign reacquired
title to the Nissan, Maxineau received notice from Drive Financial Services that, by paying
certain specified fees, he could either reinstate the contract or reacquire full title to the vehicle.
(MacFarlane Dec!., Exhs. K). One of the factors the Alexndre court noted in its decision was that
"[t]he agreement also appears to have afforded Alexandre the right to redeem the car if it was
repossessed." 140 F.3d at 410. In light of this record, the Court concludes on this record that
Maxineau had enough equity in the Nissan to have a property interest in the vehicle under the
Assuming the truth of his claim that he did not receive notice ofNYPD's seizure of the
vehicle, Maxineau has articulated a cognizable injury for the purposes of standing. In Krimstock
v. Kelly (Krimstock !), 306 F.3d 40, 68-70 (2d Cir. 2002), the Second Circuit held that due
process requires "that claimants be given a prompt post-seizure retention hearing, with adequate
notice, for motor vehicles seized as instrumentalities of crime pursuant to N.Y.C.Code § 14140(b)," such that claimants have "opportunity to test the probable validity of the City's
deprivation of their vehicles pendente lite, including probable cause for the initial warrantless
seizure." The court subsequently ruled that, in the case of a vehicle seized as arrest evidence
only, where the government does not seek its forfeiture as an instrumentality in a crime, due
process requires "review by a neutral fact-finder of a prosecutor's decision to retain a vehicle as
potential evidence." Krimstock v. Kelly (Krimstock II), 464 F.3d 246, 249 (2d Cir. 2006).
On remand, the district court spelled out specific procedures that are required after police
seize an automobile for use as trial evidence (but not with an eye toward forfeiture as an
instrumentality of a crime). In these circumstances, the prosecutor may approach ex parte a judge
of the court where the criminal matter is pending for a retention. Krimstock v. Kelly (Krimstock
Ill), 506 F.Supp.2d 249, 254 (S.D.N.Y. 2007). The prosecutor "must affirm that there are reasons
for the retention, what they are, and that they relate to the contested issue in the underlying
criminal proceeding," and "must affirm that no other means besides impoundment ... will
suffice to preserve the evidentiary value of the vehicle." ld Claimants may then demand a copy
of the order and may, within 30 days of service, request a hearing 7 "wherein they may move to
vacate or amend the retention order via a challenge to the legitimacy or necessity of the
continued retention of the vehicle as evidence." Id at 256. If the judge vacates the retention
order, law enforcement must release the vehicle within 30 days "unless continued impoundment
is otherwise authorized by law." Id
As best deciphered from the record here, NYPD apparently seized the Nissan as arrest
evidence only, not as an instrumentality of a crime. Although Maxineau allegedly used the
vehicle in furtherance of a crime to which he later pleaded guilty, nothing in the record indicates
that NYPD sought forfeiture of the vehicle as criminal instrumentality; on the contrary, it
eventually released the vehicle to Sovereign. Yet Maxineau claims-and the City does not
dispute-he never received proper notice of the seizure or opportunity for pre-trial hearing
before a neutral factfinder to challenge the prosecutor's decision to retain the vehicle as arrest
evidence. Nor is any record provided that the prosecutors in his cause sought a retention order ex
parte from a judge after providing the required affirmations. Under the Krimstock line of cases,
due process entitles Maxineau to these safeguards, and he has stated a proper injury under the
A separate line of cases further describes the procedural injury that Maxineau claims to
have suffered. In 1972, the Second Circuit held that the ordinance governing the return of
property seized as evidence, N.Y. Admin. Code§ 14-140, was "unconstitutional ... as violative
This hearing would not be a full-dress adversarial hearing," with the "full panoply of
adversary safeguards," i.e., "counsel, confrontation, cross-examination, and compulsory
process for witnesses." Krimstock III, 506 F.Supp.2d at 256 (quoting Gerstein v. Pugh,
420 U.S. 103, 119 (1975)). What is overridingly significant, though, is that the
Fourteenth Amendment affords claimants at least "some opportunity to be heard" after
their car is impounded as arrest evidence, hence the court's ruling that claimants may
request a hearing to challenge the retention order within 30 days after service of the
retention order on the claimant. Krimstock III, 506 F.Supp.2d at 256.
of the due process clauses of the fifth and fourteenth amendments." See McClendon, 460 F .2d at
116. Subsequent litigation would bring harmony and clarity to the field. Judge Morris Lasker
entered an order in a case pending before him that provided a detailed prescription of procedures
governing the seizure and return of non-contraband property in connection with an arrest ("the
Lasker Order"). See Butler v. Castro, 896 F.2d 698, 700-02 (2d Cir. 1990) (describing the Lasker
Order). Among other things, the Lasker Order requires the City to provide potential claimants
(including arrestees) with a voucher notifying them of the seized property and methods for
eventual recovery. See id. at 701 n.l. Consequently, since Maxineau has alleged that he received
no such notice or voucher, and since the City does not dispute its failure to do so, plaintiff has
therefore properly alleged an injury for standing purposes.
What remains of the City's challenge to jurisdiction centers on plaintiffs obligation to
state a causal connection between this and an identifiable act or omission by the City itself. That
is, to establish standing, Maxineau must satisfy the requirements of Monell and demonstrate that
his injury resulted from an official policy, practice, or custom of the City. He has done so.
McClendon held that the City lacked adequate policies to ensure due process was
afforded to those whose property was confiscated for law enforcement purposes; the Lakser
Order sought to rectify this City-wide failure. Butler later held that the City had neglected to
implement the procedures specified in the Lasker Order, in contravention of McClendon, and
subsequent cases made clear that the City's ongoing failure to amend its administrative code per
the Lasker Order opened the door for Monell claims. See, e.g., Frith v. City ofNew York, No. 07CV-5899 (JSR)(DF), 2011 WL 3477083, at *5 (S.D.N.Y. July 7, 2011), report and
recommendation adopted, 2011 WL 3478141 (S.D.N.Y. Aug. 8, 2011); Palacio v. NYC, 489
F.Supp.2d 335, 340-42 (S.D.N.Y. 2007). Because Maxineau has alleged an injury that flows
from a plausibly pleaded unconstitutional policy or practice by the City, he has shown causation
for standing purposes.
Finally, Maxineau satisfies the test for redressability. Because he alleges constitutional
violations, a successful outcome in litigation would entitled him to, at the very least, nominal
damages. See, e.g., Robinson v. Cattaraugus County, 14 7 F .3d 153, 162 (2d Cir. 1998) ("If a jury
finds that a constitutional violation has been proven but that the plaintiff has not shown injury
sufficient to warrant an award of compensatory damages, the plaintiff is entitled to an award of
at least nominal damages as a matter oflaw."). This is sufficient availability of redress for the
purposes of Article III standing. See, e.g., Irish Lesbian and Gay Org. v. Giuliani, 143 F.3d 638,
651 (2d Cir. 1998) (plaintiff had standing to sue under § 1983 due to the possibility of nominal
damages); Suss v. Am. Soc. for Prevention ofCruelty to Animals, 823 F.Supp. 181, 191
(S.D.N.Y. 1993) (prospect of recovering nominal damages was "sufficient to support standing of
the plaintiff to sue in this case even if significant amounts cannot be recovered"). Accordingly,
because he has shown injury, causation, and redressability, Maxineau has standing to assert his
14'h Amendment claim under§ 1983. The City's motion to dismiss this count is denied.
For the foregoing reasons, Maxineau lacks standing to pursue a§ 1988 claim, as well as §
1983 claims arising under the Fourth, Fifth, and Eighth Amendments. The City's motion to
dismiss these claims for lack of standing is granted. Maxineau has standing to assert a § 1983
claim against the City under the Fourteenth Amendment, but may not recover damages based on
the repossession of his vehicle by Sovereign. The City's motion to dismiss this count is denied
except with regard to damages based on repossession of the Nissan by Sovereign.
The parties are directed to contact Magistrate Judge Lois Bloom to arrange for the swift
completion of discovery and the resolution of other issues relating to the pretrial management of
ERIC N. VITALIANO
United States District Judge
Dated: Brooklyn, New York
June 6, 2013
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