HVT, Inc. v. Port Authority of New York and New Jersey

Filing 77

REPORT AND RECOMMENDATIONS re the parties' draft proposals at 69 and 70 . For the reasons stated above, this Court respectfully recommends that the District Court grant in part the parties' proposed remedies, and requests that, within 45 days of the adoption of this report and recommendation, if it is adopted, the parties submit the additional information requested within in a joint submission. This Court thus respectfully recommends the District Court approve as satisfying due proc ess the following: (i) within five business days of a vehicle seizure, the PAPD must send notice of the seizure to titled owners, registered owners and lienholders via certified mail; (ii) the notice should indicate the right to a hearing; (iii) the notice should explain the hearing process; and (iv) the titled owner, registered owner or lienholder is responsible for paying the towing fee when a car must be seized and towed for safekeeping after the arrest of the driver. The Court will hold a hearing within 30 days of receipt of the joint submission. Objections to R&R due by 8/18/2021. Ordered by Magistrate Judge Vera M. Scanlon on 8/4/2021. (Scully, Nicole)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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HVT, INC.,
:
:
Plaintiff,
:
:
-against:
:
PORT AUTHORITY OF NEW YORK AND
:
NEW JERSEY,
:
:
Defendant.
:
:
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REPORT AND RECOMMENDATION
15 Civ. 5867 (MKB) (VMS)

Vera M. Scanlon, United States Magistrate Judge:
Presently before the Court are Plaintiff HVT, Inc.’s (“Plaintiff” or “HVT”) and
Defendant Port Authority of New York and New Jersey’s (“Defendant” or the “Port Authority”)
submissions on proposed revised rules and regulations for post-seizure procedures for notice and
opportunity for a hearing. ECF Nos. 69, 70. The Court assumes familiarity with the factual
background of the case. For the reasons stated herein, this Court respectfully recommends that
the District Court approve the parties’ four agreed-upon proposed remedies, and direct the parties
to prepare additional submissions on proposed revised rules and regulations for post-seizure
procedures for notice and opportunity for a hearing.
I.

BACKGROUND
a.

Procedural History

Plaintiff brought this action against Defendant pursuant to 42 U.S.C. §§ 1983 and 1988.
See generally Compl., ECF No. 1. The Complaint alleges that Defendant deprived Plaintiff of its
right to a 2012 Honda Odyssey (the “Subject Vehicle”) without due process when it impounded
the Subject Vehicle following an arrest of the vehicle driver made at John F. Kennedy
International Airport (“JFK”) on March 14, 2015. Compl. ¶¶ 6, 8, 13. Plaintiff, the title owner
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of the Subject Vehicle, first received notice of the impound on April 27, 2015, at which point
$4,491.09 in charges had already been assessed for towing and storage. Id. ¶¶ 16-17. Fees
continued to accrue. Plaintiff eventually recovered the Subject Vehicle, but fees remained
outstanding, subject to payment by bond if Plaintiff failed in this action.
The parties cross-moved for summary judgment, and the Court referred the motions to the
undersigned for a report and recommendation. Pl.’s Mot. for Summ. J., ECF No. 25; Def.’s
Cross-Mot. for Summ. J., ECF No. 18. Plaintiff argued that Defendant violated the Due Process
clause of the Fourteenth Amendment when it seized and detained the Subject Vehicle without
providing Plaintiff adequate notice of the deprivation and an opportunity for a post-deprivation
hearing. Pl.’s Memo., ECF No. 25-4 at 1, 5-16. Plaintiff argued that the notice it received on
April 27, 2015 was inadequate because 1) it was not sent to Plaintiff within a reasonable time
after the deprivation; 2) it was sent to Plaintiff after the imposition of some of the towing and
storage fees; and 3) it did not provide for a hearing. Id. at 7-8. Plaintiff argued that Defendant’s
rules and regulations which authorized the seizure and charging of storage fees, 21 NYCRR
1262.16, are unconstitutional on their face as they do not contain any notice requirement or
provide hearing procedures. Id. at 11-14.
Defendant, on the other hand, argued that it was entitled to seize the Subject Vehicle
pursuant to a lawful arrest and to promote road safety, and that it did not violate the procedural
due process protections of the Fourteenth Amendment. Def.’s Memo., ECF No. 20 at 5-7. The
Port Authority argued that impound of the Subject Vehicle was necessary under the
circumstances, because after the arrest of the driver, no other individual was able to operate the
Subject Vehicle such that the vehicle was abandoned, to which it consequently impeded traffic.
See Def.’s Memo. at 6-8. Defendant argued that in such a circumstance, the Port Authority

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Police Department (“PAPD”) was authorized to remove “from any area of an air terminal any
vehicle which is disabled, abandoned, parked in violation of the rules and regulations set forth in
this part, or which presents an operational problem . . . at the owner or operator’s expense.” See
21 NYCRR 1262.16; Def.’s Memo. at 7.
The Port Authority briefly claimed that the Subject Vehicle “may have also been impound
as evidence.” Def.’s Memo. at 10. In their respective briefings, neither party asserted, much less
litigated, that the Subject Vehicle had been seized because it constituted arrest evidence. Neither
party asserted that the Subject Vehicle was seized for forfeiture. Plaintiff argued this case does
not arise from vehicles impounded for evidence or forfeiture, see, e.g., Pl.’s Memo. at 1, and
Defendant repeatedly stated that the PAPD seized and impounded the vehicle for road safety
incident to the driver’s arrest. See, e.g., Def.’s Rule 56-1 Stmt., ECF No. 21 ¶ 25 (“PAPD
officers impounded the Subject Vehicle at the time of driver, Jean-Laurent’s arrest because the
unoccupied vehicle was located in an area in which parking was not permitted. N.Y. Unconsol.
Laws §6831(8) (McKinney 2015), 21 NYCRR §1262.16.”), ¶ 30 (“On April 22, 2015, the Port
Authority sent a notice to Plaintiff that it had possession of the Subject Vehicle because it had
been left unattended and that HVT could claim the Subject Vehicle.”); Def.’s Memo. at 9-10
(arguing Krimstock v. Kelly (“Krimstock I”), 306 F.3d 40 (2d Cir. 2002) inapplicable because it
was “limited to vehicles seized for civil forfeiture proceedings or for evidentiary purposes,” and
because the Subject Vehicle was seized “for a community caretaking function.”), 12 (arguing
Harrell v. City of New York, 138 F. Supp. 3d 479 (S.D.N.Y. 2015) inapplicable because the
Subject Vehicle was seized “in response to the registered owner’s arrest and the vehicle left [sic]
abandoned and impeding traffic and safety.”), 13 (“. . . the public safety concerns that prompted
PAPD to seize the Subject Vehicle stemmed from the disruption that would be caused by the

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abandoned vehicle after the registered owner’s arrest. . . . The vehicle was left in an unauthorized
parking area of JFK and would have been disruptive of traffic flow, which risked the safety of
pedestrians, drivers, and other airport patrons.”); Def.’s Opp. to Pl.’s Mot. for Summ. J., ECF
No. 23 at 5 (“PAPD’s seizure of the Subject Vehicle was necessary to secure the important
governmental and public interest of safety on the roads. . . . Here, when the driver, who was the
registered owner was arrested, the Subject Vehicle remained unoccupied within JFK roadway,
and removal by PAPD was necessary for safety.”), 9 (“Unlike Krimstock, PAPD seized the
Subject Vehicle to secure important governmental and public interest of safety on the roads. . . .
[T]he purpose of the seizure was to further police community caretaking functions.”); Def.’s
Reply ISO Mot. for Summ. J., ECF No. 24 at 2 (“The Port Authority Police Department
(“PAPD”)’s seizure of the Subject Vehicle was necessary to secure the important governmental
and public interest of safety on the roads. . . . Here, when the driver who was the registered
owner was arrested, the Subject Vehicle remained unoccupied in an unauthorized area within
JFK, and removal by PAPD was necessary for road safety.”), 4-5 (“The Port Authority’s
procedure of impounding vehicles that are impeding traffic at its airport terminals and requiring
the payment of towing and storage fee [sic] of such vehicle prior to its release, without a hearing,
does not violate due process.”). Plaintiff did not dispute Defendant’s legal right to arrest the
registered owner or to tow and impound the Subject Vehicle.
Instead, Plaintiff’s main concern is that the Port Authority impounded and assessed 39
days-worth of fees against the Subject Vehicle before providing Plaintiff with notice of the
seizure and that the Port Authority conditioned the Subject Vehicle’s release upon payment of
charges Plaintiff did not know were accruing. Pl.’s Memo. at 11-12, 17. Plaintiff also argued
the Port Authority failed to provide any opportunity for Plaintiff to not only contest the amount

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of the fees, but to contest whether Plaintiff should be responsible for the fees at all. See Pl.’s
Memo. at 10 n.3, 12-14, 18; see also June 19, 2020 Hearing Tr., ECF No. 74 at 14:18-15:1.
Thus, the issue on summary judgment was what notice and process was due to the owner of the
Subject Vehicle under these circumstances.
After finding New York Lien Law did not apply to this case, the undersigned limited the
Court’s review to the constitutionality of the Port Authority’s Rules and Regulations, 21 NYCRR
1260.1 et seq., and found they violate the Constitution by permitting seizure and retention of
vehicles without providing due process. HVT, Inc. v. Port Authority of New York and New
Jersey (“R&R I”), No. 15 Civ. 5867 (MKB) (VMS), 2018 WL 3134414, at *6 & n.4 (E.D.N.Y.
Feb. 15, 2018). The undersigned recommended that the Court direct the parties to submit joint
proposed revised regulations or procedures consistent with R&R I. Id. at *11. The undersigned
also recommended that, at a minimum, that proper procedures include that the notice must be
sent to titled owners, registered owners and record lienholders of the seized vehicles; that notice
must be sent promptly after the seizure; that the notice must clearly provide an opportunity for a
hearing; and that the government must be responsible for arranging and conducting the hearing.
Id. The Court adopted the unopposed report and recommendation. HVT, Inc. v. Port Authority
of New York and New Jersey, No. 15 Civ. 5867 (MKB) (VMS), 2018 WL 1409821 (E.D.N.Y.
Mar. 21, 2018). Plaintiff filed a motion for clarification as to the scope of the Court’s holding,
and the undersigned reiterated that the holding of the Court is limited to when the Port Authority
seizes a vehicle incident to an arrest. 1 Report and Recommendation (“R&R II”), ECF No. 66 at
4, report & recommendation adopted, Sept. 7, 2019 Order.
The parties exchanged multiple drafts of proposed rules and regulations and submitted

1

Neither party opposed the undersigned’s denial of Plaintiff’s motion for clarification.
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letters to the Court outlining their respective positions. See ECF Nos. 53, 61, 64, 67-70, 73, 75.
The parties have been unable to agree on a complete joint submission to the Court, requiring the
undersigned’s intervention.
b.

Submissions Regarding Proposed Rules And Regulations

The parties submitted partially competing proposed procedures, ECF Nos. 69 and 70,
regarding the process for a post-deprivation notice and a hearing. At the outset, the Court notes
the parties agree on multiple items in their respective submissions, and as to these provisions, the
Court agrees that they should be adopted by Defendant in partial satisfaction of the need to
provide due-process protections. Both parties agree that within five business days of a vehicle
seizure, the PAPD must send notice of the seizure to titled owners, registered owners and
lienholders via certified mail. ECF No. 69-1 at 2; ECF No. 70-2 at 2. The parties agree that the
notice should indicate the right to a hearing, see ECF No. 69-1 at 2; ECF No. 70-2 at 2; and the
notice should explain the hearing process, see ECF No.69-1 at 4; ECF No. 70-2 at 2. The parties
agree that an appropriate forum for the hearing is the Office of Administrative Trials and
Hearings (“OATH”). 2 ECF No. 53 at 2; see ECF No. 69-1 at 2; ECF No. 70-2 at 2. The parties
also agree that the vehicle owner is responsible for the towing fee when a car must be seized and
towed for safekeeping after the arrest of the driver. See, e.g., Feb. 27, 2020 Hearing Tr., ECF
No. 72 at 25:5-7, 101:15-102:8; June 19, 2020 Hearing Tr. at 54:13-55:1; see also R&R I, 2018

2

It appears the parties’ submissions only agree on OATH hosting post-deprivation procedures
relating to vehicles seized for forfeiture, as Defendant’s submission only addressed forfeiture
procedures. See ECF No. 69-1 at 3, 4. In their next submissions, the parties must confirm
whether OATH is the appropriate venue for the proceedings required herein, i.e., nonforfeiture
procedures.
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WL 3134414, at *15 (finding Plaintiff obligated to pay towing fee because Plaintiff concedes
that the Subject Vehicle was legally towed).
The parties have been unable to agree on certain facets of the post-seizure notice and
hearing procedure. First, the parties do not agree which types of seizures should be covered by
the proposed remedy. Plaintiff’s proposed procedures appear to encompass any type of seizure
by PAPD incident to an arrest. See ECF No. 70-2 at 2 (“PANYNJ POST-SEIZURE
PROCEDURES”). Defendant’s proposed procedures address when a vehicle is seized for
forfeiture by PAPD incident to an arrest. See ECF No. 69-1 at 2 (“FORFEITURE
PROCEDURE”).
Second, the parties do not agree on how the hearing should be arranged. Plaintiff
proposed that the notice should provide a date certain for the post-deprivation hearing within 21
days of the date of the notice letter. ECF No. 70-2 at 2. Defendant’s proposed notice letter alerts
the vehicle owner that the owner is entitled to a hearing and that one will be held within 10 days
of receipt of such request for a hearing. ECF No. 69-1 at 4.
Third, it is unclear whether the parties agree if there should be any tolling period during
which storage fees do not accrue in relation to notice that the vehicle was towed and can
immediately be claimed from the storage facility. The parties appear to agree that no storage
fees can be assessed before notice is mailed. See Pl.’s Memo. at 7 (“notice must be sent before
the assessment of towing fees and storage charges”) (emphasis in original); Def.’s Memo. at 14
(acknowledging that Plaintiff is only liable for the storage fees that accrued after notice mailed to
Plaintiff). Plaintiff also suggests that storage fees cannot accrue before notice is received by the
vehicle owner, and in addition, that there should be a 15-day grace period after receipt of notice
to give the owner a chance to collect the vehicle or pursue a hearing with either minimal or no

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storage fees. 3 See ECF No. 70-2 at 3; see also Feb. 27, 2020 Hearing Tr. at 27:24-28:3; 30:1220, 41:11-17; 80:2-12. Defendant’s position appears to be that there should be no explicit grace
period, see ECF No. 75 at 6 (only expressing position there should be a 72-hour grace period
after the issuance of a District Attorney Release Form), 4 but Defendant also described during the
June 19, 2020 Court teleconference its belief that the Port Authority’s procedures already contain
a built-in tolling period based on the process for mailing notice, which tends to result in some
“delay in the imposition of any fee.” See June 19, 2020 Hearing Tr. at 21:11-17, 31:11-24, 33:113. 5
As discussed further below, the parties have not supplied the Court with information
regarding the substance of the hearing by which the vehicle owner would contest the towing
and/or imposition of fees. Plaintiff’s submission does not contain details about the proposed
post-deprivation hearing. Defendant’s submission to the Court describes the post-seizure hearing
developed in Krimstock for vehicles retained as instrumentalities of a crime prior to forfeiture
proceedings, ECF No. 69-1 at 3, 4, but as discussed below, a remedy for vehicles seized for

3

Plaintiff has alternatively stated its position as no storage fees should accrue before the later of:
(i) 25 days after the date the Port Authority sends written notice to the vehicle owner, or (ii) three
days after the District Attorney issues a release of the subject vehicle. ECF No. 75 at 4.
4

As discussed below, the Court limits its review of the proposed remedies to seizures after an
arrest where a vehicle is towed for safekeeping purposes, not arrest evidence or forfeiture. What
the appropriate grace period should be after the District Attorney releases a vehicle held as
evidence, if any, is, therefore, beyond the Court’s analysis.
5

The Court does note that the notice procedures to which the Port Authority refers, ECF No. 73
at 13-14, do not state storage fees are tolled at any point during the process for mailing notice to
vehicle owners, and the attached letter notice exhibit seems to imply that fees are indeed
continuously accruing. See id. at 25 (“Please be aware that the person or corporation claiming
this vehicle is responsible for all towing and storage fees payable to [E]. Towing charges and
daily storage fees are being assessed. Whether you claim the vehicle or not, you must pay the
cost of its removal and storage, which will continue to accrue until the vehicle is claimed.”)
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arrest evidence or instrumentalities of a crime by PAPD is outside of the scope of the case before
the Court.
II.

LEGAL STANDARD

Where a plaintiff has established municipal liability under Monell v. Dep’t of Soc. Servs.
of City of New York, 436 U.S. 658 (1978), “it is within the power and discretion of the court to
remedy the constitutional deprivation by awarding monetary damages or equitable relief or both,
depending on its assessment of what the particularities of the case require.” MacIssac v. Town
of Poughkeepsie, 770 F. Supp. 2d 587, 596 (S.D.N.Y. 2011) (citation omitted); see Richard D.
Freer, 13D Fed. Prac. & Proc. Juris. § 3573.2 (3d ed. 2021) (“[Section 1983] allows relief ‘in an
action at law, suit in equity, or other proper proceeding for redress.’ This permits the federal
courts to use any available remedy to make good the wrong suffered.”). It is up to “the district
court, in consultation with the parties, to fashion appropriate procedural relief consistent with
[its] opinion.” Krimstock I, 306 F.3d at 69 (citing Fuentes v. Shevin, 407 U.S. 67, 97 n.33
(1972)).
III.

DISCUSSION
a.

The Procedures Must Be In Accordance With The Relief Already
Awarded In This Case, And Therefore, Must Address Community
Safekeeping Seizures After Driver’s Arrest

To recap, this case is about circumstances in which a vehicle is seized and towed after the
driver’s arrest because it would otherwise be illegally parked because no one else could drive
away with the car. As this Court noted in R&R II, the Court did not examine the arrest because
the parties did not dispute the officer had probable cause to arrest the driver, nor did the parties
dispute that the towing of the car was necessary for safekeeping purposes. See R&R II at 4;
R&R I, 2018 WL 3134414, at *5; Def.’s Memo. at 6-7; Pl.’s Opp. to Def.’s Mot. for Summ. J.,

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ECF No. 26 at 5. The relief Plaintiff sought focused on Plaintiff’s responsibility to pay the
towing and storage fees in these circumstances, in which a vehicle owner was not present at the
seizure, seeking declarations that: (i) Plaintiff is not liable for towing and storage fees assessed
before Plaintiff had notice of the charges; (ii) Plaintiff is not liable for prospective daily storage
charges where release of the Subject Vehicle was conditioned upon payment of back-charged
fees; and (iii) Plaintiff is not liable for any fees assessed against the Subject Vehicle because
Defendant did not provide an opportunity to be heard as to Plaintiff’s responsibility for those
fees. Pl.’s Memo. at 17-18. As such, the Court limits its review of the adequacy of the parties’
proposed remedies in light of the disputes in this case—notice of the deprivation and a
meaningful opportunity to challenge the fees.
As R&R II confirmed, the Court limits its review of the proposed remedies to the
situation of vehicles seized incident to criminal arrests, as the Court cannot speculate as to
whether a civil-incident car seizure presents the same legal questions regarding due process. See
R&R II at 4, 6. Likewise, the Court limits its review to seizures for community safekeeping
purposes only, as the parties did not dispute that this was the sole justification for the vehicle’s
seizure by the Port Authority. See, supra, Section I.a. It is commendable that the parties have
proposed procedures for vehicle seizures in the arrest-context that go beyond the circumstances
of this case and it may be that consistent with due-process principles, such procedures are
required. Nonetheless, the Court does not express an opinion on the adequacy of the parties’ due
process procedures for any other kind of seizure incident to a driver’s arrest, as there are
questions of fact regarding such other types of seizures unaddressed by the record, and

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“[j]udicial decision-making should not occur without fixed, established points of reference.”
Jones v. Kelly (“Krimstock II”), 378 F.3d 198, 204 (2d Cir. 2004).
The court in Krimstock found itself in a similar situation. The parties in Krimstock
agreed the vehicle at issue had been seized as an instrumentality of a crime (and therefore,
subject to forfeiture), rather than as “arrest evidence”. See Krimstock I, 306 F.3d at 69 n.32.
Following remand to the district court to “formulate, in consultation with the parties, the
appropriate injunctive relief needed to redress the constitutional violations examined in this
opinion,” id. at 70-71, the district court circulated a draft order for the parties’ comment “that
established a hearing for vehicles seized as arrest evidence or as an instrumentality of a crime.”
Krimstock II, 378 F.3d at 200 (emphasis added). The City of New York opposed the district
court’s inclusion of provisions for a hearing for vehicles seized as arrest evidence, and after the
district court entered such order, the City appealed. The Second Circuit affirmed the district
court’s order with respect to cars held for forfeiture, but vacated and remanded the order related
to cars held as arrest evidence, noting that the district court “made no findings as to the necessity
of including arrest evidence in its order.” Id. at 203. In this case, the Court has not made
findings as to a need for procedures for notice and an opportunity to be heard regarding vehicles
seized for arrest evidence or forfeiture, and it will not address procedures beyond those needed to
resolve this case.
With these considerations in mind, the Court turns to the adequacy of the parties
proposed procedures for post-deprivation notice and an opportunity to be heard.
b.

Adequacy Of The Parties’ Proposed Remedies

There is no universal approach to satisfying the requirements of meaningful notice and
opportunity to be heard in a situation such as this. See Fuentes, 407 U.S. at 96 (acknowledging
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that the “nature and form of [fair hearings] are legitimately open to many potential variations”).
“[D]ue process is flexible and calls for such procedural protections as the particular situation
demands.” Nnebe v. Daus, 644 F.3d 147, 158 (2d Cir. 2011) (citation omitted).
This Court respectfully recommends that the District Court grant in part the parties’
proposed remedies with respect to the items upon which they agree, finding that they comport
with due process: (i) within five business days of a vehicle seizure, the PAPD must send notice
of the seizure to titled owners, registered owners and lienholders via certified mail, see
Krimstock I, 306 F.3d at 68 (as to titled and registered owners); Ford Motor Credit Co. v. New
York City Police Dep’t, 394 F. Supp. 2d 600, 611 (S.D.N.Y. 2005) (as to lienholders), aff’d sub
nom., Ford Motor Credit Co. v. NYC Police Dep’t, 503 F.3d 186 (2d Cir. 2007); 6 (ii) the notice
should indicate the right to a hearing, see Krimstock v. Kelly (“Krimstock IV”), 506 F. Supp. 2d
249, 251 (S.D.N.Y. 2007) (New York Police Department “must give written notice to the
claimant of his or her right to a hearing”); (iii) the notice should explain the hearing process, see
Krimstock I, 306 F.3d at 68-69 & n.31 (ordering that claimants be given adequate notice) (citing
Butler v. Castro, 896 F.2d 698, 702 (2d Cir. 1990) (“[A] voucher must be given to an arrestee for
non-contraband property seized [and] must also give notice of the procedures to be followed to
recover such property.”)); and (iv) the titled owner, registered owner or lienholder is responsible
for paying the towing fee when a car must be seized and towed for safekeeping after the arrest of
the driver, see Scofield v. City of Hillsborough, 862 F.2d 759, 765 (9th Cir. 1988) (“The district
court found that even if a post-towing hearing had been held, it would not have relieved [the
plaintiff] from the obligation to pay the towing charges.”). The Court also accepts the parties’

6

The mailed notice is in addition to the notice handed immediately to the operator of the seized
vehicle, which the Court understands was already part of PAPD’s practice. See ECF No. 69-1 at
2.
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proposal to use OATH as the forum for the post-deprivation proceeding; however, it is unclear
from the parties’ submissions whether they only agree OATH is the proper forum to adjudicate
vehicles seized for forfeiture, or if they also agree OATH should adjudicate safekeeping tows
and the imposition of fees. As discussed below, further clarification on, inter alia, the use of
OATH is requested of the parties.
This Court respectfully recommends the District Court decline to approve the parties’
proposed remedies with respect to all else as there is not enough information presented to the
Court. See Nnebe, 644 F.3d at 160 (declining to hold whether hearing procedure satisfied
minimum requirements of due process because “the evidence in the record is insufficient”). The
parties have not submitted information on the substance of the hearing to challenge safekeeping
seizures and assessment of fees, 7 nor have they submitted a copy of the proposed notice to
registered owners, titled owners and lienholders regarding the safekeeping seizure and hearing.
It is unclear to the Court whether the parties agree in practice when storage fees start accruing

7

Defendant’s submission describes the hearing as such: “The hearing will provide you with an
opportunity to be heard, either yourself or through your attorney, with respect to three issues: (1)
whether probable cause existed for the arrest of the vehicle operator; (2) whether it is likely that
the PAPD will prevail in an action to forfeit the vehicle; and (3) whether it is necessary that the
vehicle remain impounded in order to ensure its availability for a judgment of forfeiture. The
burden of proof by a preponderance of the evidence as to [each of] these issues will be on the
PAPD, and the judge may consider such hearsay and other evidence as the judge may consider
reliable. . . . Additionally, a claimant who is an owner may present an ‘innocent owner’ defense,
namely that in some instances, a vehicle may not be forfeited if its owner did not know or have
reason to know that the vehicle would be used in the commission of a crime.” ECF No. 69-1 at 3,
4. As the post-deprivation process here need not address vehicles seized as instrumentalities of a
crime, these issues appear irrelevant to a vehicle owner contesting a road safety seizure and the
imposition of fees.
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against a seized vehicle. See, supra, Section I.b. 8, 9 The parties have submitted competing views
on how the hearing should be arranged, and because it may be the case that regardless of the
timing of the hearing, the parties agree on a fee tolling mechanism, the Court seeks further
clarification from the parties. See id. As to Plaintiff’s contention that an opt-in procedure for the
hearing is not permissible, see ECF No. 70-1 at 3, the process Defendant proposes—that a
hearing will be arranged by OATH within 10 days of OATH’s receipt of a hearing request—has
previously passed constitutional muster. See Krimstock IV, 506 F. Supp. 2d at 251-52
(describing procedure developed by district judge in consultation with parties). It is unclear if
Defendant proposes that same procedure for the type of hearing at issue here.
c.

The Court Requests Additional Submissions From The Parties

The Court is appreciative of Counsels’ diligence in trying to develop mutually agreeable
procedures. The Court reminds the parties that this remedy is about Defendant offering
constitutionally sufficient due process, not Plaintiff’s preferred process. See Brody v. Vill. of
Port Chester, 434 F.3d 121, 128 (2d Cir. 2005) (“The issue to be decided then is . . . what

8

The Court notes that it may be constitutionally permissible for some fee accrual post-seizure
and prior to when the vehicle is retrieved or the hearing is held, but also notes that permissible
fee accrual may be dependent upon how soon the hearing can take place. See, e.g., City of Los
Angeles v. David, 538 U.S. 715, 717-18 (2003) (finding that the private interest in maintaining
the use of money between the time of paying towing fees and the time of a post-deprivation
hearing minimal and mitigated by the possibility of interest payments); De Young v. City of New
York, 607 F. Supp. 1040, 1044-45 (S.D.N.Y. 1985) (finding New York City’s refusal to accept a
bond in lieu of full payment of towing and storage charges to retrieve vehicle prior to hearing is
constitutionally sound, noting hearings are available immediately on a walk-in basis).
9

Likewise, the Court also notes Plaintiff’s proposal for “return-on-demand” of the vehicle
without paying any storage fees prior to the hearing, ECF No. 70-2 at 3, may not be
constitutionally necessary. See De Young, 607 F. Supp. at 1044-45; see also Goichman v.
Rheuban Motors, Inc., 682 F.2d 1320, 1324 (9th Cir. 1982) (“government’s interest in efficient
and inexpensive towage of illegally parked automobiles is sufficient to outweigh the private
interest in return-on-demand”).
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[procedures] will satisfy the minimum requirements of due process. . . .”). With that in mind,
this Court respectfully requests additional submissions from the parties within 45 days of the
adoption of this report and recommendation, if it is adopted. The submission should provide a
joint proposal to the Court regarding the below items.
1. A copy of the draft notice letter;
2. Clarification whether OATH is the proposed forum for the post-deprivation hearing, or if
not, an alternative proposal;
3. Procedures regarding how the post-deprivation hearing would be arranged;
4. Procedures regarding when storage fees begin to accrue; and
5. The issues to be adjudicated in the post-deprivation hearing.
If the parties still cannot come to an agreement on certain aspects, the submission should
describe which items the parties do not agree and the due-process arguments in support of each
side.
IV.

CONCLUSION

For the reasons stated above, this Court respectfully recommends that the District Court
grant in part the parties’ proposed remedies, and requests that, within 45 days of the adoption of
this report and recommendation, if it is adopted, the parties submit the additional information
requested within in a joint submission. This Court thus respectfully recommends the District
Court approve as satisfying due process the following: (i) within five business days of a vehicle
seizure, the PAPD must send notice of the seizure to titled owners, registered owners and
lienholders via certified mail; (ii) the notice should indicate the right to a hearing; (iii) the notice
should explain the hearing process; and (iv) the titled owner, registered owner or lienholder is
responsible for paying the towing fee when a car must be seized and towed for safekeeping after

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the arrest of the driver. The Court will hold a hearing within 30 days of receipt of the joint
submission.
V.

OBJECTIONS

Written objections to this report and recommendation must be filed with the Clerk of the
Court within 14 days after service of the report and recommendation, and in accordance with the
Individual Rules of the District Judge. Failure to file objections within the specified time waives
the right to appeal any order or judgment entered based on this report and recommendation. See
28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see also Caidor v. Onondaga Cty., 517 F.3d 601,
604 (2d Cir. 2008). Any request for an extension of time to file objections or respond must be
directed to the District Judge.
Dated: Brooklyn, New York
August 4, 2021

Vera M. Scanlon
VERA M. SCANLON
United States Magistrate Judge

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