DeCastro et al v. The City Of New York , et al

Filing 107

OPINION AND ORDER: re: 59 MOTION for Summary Judgment filed by Susan Calvo, Angel DeCastro, Kelly Macon, 77 CROSS MOTION for Summary Judgment filed by David Yassky, The City Of New York, New York City Taxi And Limousine Commission, Me era Joshi. For the foregoing reasons, Plaintiffs' motion for summary judgment and Defendants' cross-motion for summary judgment are both granted in part and denied in part. Specifically, Plaintiffs' motion is granted with respect to a ll claims asserted by Angel DeCastro and granted with respect to the Fourth Amendment claim and New York constitutional claim asserted by Susan Calvo and Kelly Macon. Defendants' motion is granted with respect to the Due Process claim asserted b y Susan Calvo and Kelly Macon. All claims against the New York City Taxi and Limousine Commission (the "TLC"), are dismissed, as "agencies of New York City are not suable entities in§ 1983 actions." Nnebe, 644 F.3d at 158 n.8 . Count Five of the Amended Complaint is dismissed under 28 U.S.C. § 1367(a). The motions are otherwise denied. No later than October 9, 2017, the parties shall submit a joint letter proposing a briefing schedule on Plaintiffs' motion for class certification. The Clerk of Court is respectfully directed to terminate the motions pending at Docket Entries 59 and 77. SO ORDERED. (Signed by Judge Ronnie Abrams on 9/30/2017) (ama) Modified on 10/2/2017 (ama).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

USDC-SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:
DATE FILED: 09/30/2017

ANGEL DECASTRO, MICHAEL
WALKER, SUSAN CALVO, YONG
ZHANG, IOSIF MULLAEV, and KELLY
MACON, individually and on behalf of all
others similarly situated,

Plaintiffs,

No. 16-CV-3850 (RA)
OPINION & ORDER

v.
THE CITY OF NEW YORK, DAVID
YASSKY, MEERA JOSHI, and THE NEW
YORK CITY TAXI and LIMOUSINE
COMMISSION,

Defendants.

RONNIE ABRAMS, United States District Judge:
Plaintiffs Angel DeCastro, Susan Calvo, and Kelly Macon bring this putative class action
against the City of New York and the New York City Taxi and Limousine Commission (“TLC”),
challenging the warrantless seizure of vehicles they owned or operated under the Fourth and
Fourteenth Amendments. Before the Court are the parties’ cross-motions for summary judgment.
Bound in large part by the decisions of the Hon. Valerie Caproni in Harrell v. City of New York,
the Court concludes that the City’s policy or practice of seizing vehicles suspected of being
operated for hire without proper licensing, as applied to individuals whose vehicles bear TLC
license plates and to vehicle owners who have been found liable for a licensing violation in the 36
months before their vehicles are seized, violates the Fourth Amendment. The Court concludes,
however, that the City’s procedure for seizing and retaining vehicles allegedly subject to forfeiture

does not violate the Due Process Clause of the Fourteenth Amendment. Accordingly, both parties’
cross-motions for summary judgment are granted in part and denied in part.1
BACKGROUND2
A. Statutory Framework and Enforcement Policy
1. Vehicle Seizures
Under § 19–506(b)(1) of the New York City Administrative Code, it is illegal to knowingly
operate or allow another to operate any vehicle for hire “without first having obtained or knowing
that another has obtained a license” for the vehicle. N.Y.C. Admin. Code § 19–506(b)(1).3 A
violation of § 19–506(b)(1) is a crime, punishable by a fine, a term of imprisonment, or both. See
id.4
Under § 19–506(h)(1), any officer or designated TLC employee may seize a vehicle he or
she has “probable cause to believe is operated or offered to be operated without a license” in

1

Plaintiffs have withdrawn their claims against Defendants David Yassky and Meera Joshi. See
Pls.’ Mem. in Further Supp. of Mot. for Summ J. & in Opp’n to Defs.’ Cross-Mot. for Summ J. (“Pl. Reply
Mem.”) at 25 (Dkt. 92). The Clerk of Court is respectfully directed to remove these Defendants from the
caption.
2
These facts are drawn from the parties’ submissions in connection with their cross-motions for
summary judgment, including Plaintiffs’ Rule 56.1 Statement in Support of Their Motion for Summary
Judgment (“Pl. 56.1”) (Dkt. 62), Defendants’ Rule 56.1 Statement of Material Undisputed Facts (“Def.
56.1”) (Dkt. 88), Defendants’ Responses and Objections to Plaintiffs’ Statement Pursuant to Local Rule
56.1 (“Def. 56.1 Resp.”) (Dkt. 89), and Plaintiffs’ Response to Defendants’ Rule 56.1 Statement (“Pl. 56.1
Resp.”) (Dkt. 93). Where facts stated in a party’s Rule 56.1 statement are supported by testimonial or
documentary evidence, and denied by any conclusory statement by the other party without citation to
conflicting testimonial or documentary evidence, the Court finds such facts to be true. See S.D.N.Y. Local
Rule 56.1(c)–(d).
3
Under the Rules of the City of New York, a “for-hire vehicle” is defined as “a motor Vehicle
licensed by the Commission to carry Passengers for-hire in the City,” which: (1) “[h]as a seating capacity
of 20 or fewer Passengers”; (2) “[h]as three or more doors”; and (3) “[i]s not a Taxicab, a Commuter Van,
or an authorized bus as defined by NYS law.” 35 R.C.N.Y. § 51–03.
4
Under § 19–506(b)(2), which the parties do not address in this case, it is unlawful for any person
to “permit another to operate” or to “knowingly operate or offer to operate for hire any vehicle licensed” as
a for-hire vehicle “in a manner that is beyond the scope of the activities permitted by such vehicle’s license.”
N.Y.C. Admin. Code § 19–506(b)(2). A violation of § 19–506(b)(2), like a violation of § 19–506(b)(1), is
punishable by a fine, a term of imprisonment, or both. See id.

2

violation of § 19–506(b)(1). See id. § 19–506(h)(1). Under § 19–506(h)(2), an owner’s interest
in an unlicensed vehicle for hire is “subject to forfeiture” if the owner has been convicted of or
found liable for at least two violations of § 19–506(b)(1) within 36 months. See id. § 19–506(h)(2).
At least six TLC employees have provided testimony or declarations regarding the TLC’s
enforcement of these provisions. Four TLC inspectors have submitted declarations describing the
procedures they follow when determining whether to seize a vehicle based on a suspected violation
of § 19–506(b). See Decl. of Philip White (“White Decl.”) (Dkt. 84); Decl. of Ronald Prioleau
(“Prioleau Decl.”) (Dkt. 85); Decl. of Sherif Issa (“Issa Decl.”) (Dkt. 86); Decl. of Zbigniew
Fimiarz (“Fimiarz Decl.”) (Dkt. 87). Each of these inspectors states that, at the time of a vehicle
stop, he obtains the driver’s license and the vehicle owner’s registration, then relays this
information to an operator in a TLC radio room. According to these inspectors, the operator then
enters this information into a New York State Department of Motor Vehicles (“DMV”) database
and a TLC database to determine whether the license and registration are valid and whether the
driver and vehicle are licensed by the TLC. The inspectors explain that, if a vehicle is unlicensed,
a search in the TLC database will yield a response of “no records” or “unlicensed entity.” A “no
records” response means that “the vehicle owner never previously received a summons” under
§ 19–506(b)(1). An “unlicensed entity” response, on the other hand, means that “the vehicle owner
previously received a summons” under § 19–506(b)(1). Each inspector states that TLC radio room
operators “routinely inform” him “whether the database search produced ‘no records’ or a record
of an ‘unlicensed entity.’”
According to Edwin Mulero, the Deputy Chief of Enforcement at the TLC, TLC inspectors
do not consider whether a vehicle owner or driver has been cited for a prior violation of § 19–506

3

in determining whether to seize her vehicle.

Specifically, Mulero provided the following

deposition testimony:
Q: Now [at the time of a vehicle seizure], would the TLC inspector learn whether
or not that vehicle or that driver had previously been cited for a violation of Section
19–506?
A: We don’t look. We don’t get the history on the – at that car stop, we don’t get
the history if that vehicle’s been seized before or not.
Q: Does there come a time later in the process when you do get that information?
A: Normally, there’s what they call a 900 number that’s generated. And if that
comes up that vehicle has been seized before. But that does not play into any
decision if that vehicle’s going to be seized or not.
Decl. of Andrew M. St. Laurent (“St. Laurent Decl.”) Ex. 3 at 77:6–20 (Dkt. 61).
Finally, Rafeael Torres, a lieutenant in the Uniformed Services Bureau at the TLC, has
submitted a declaration regarding his experience in the TLC radio room, where he has been
assigned on “numerous occasions” to provide field inspectors with information on vehicle owners
and drivers from the TLC and DMV databases. See Reply Decl. of Rafael Torres (“Torres Reply
Decl.”) ¶ 1 (Dkt. 97). Torres states that records in the TLC database, to which he “and all others
who operate the radio room have access,” include “the summons history for each entity, licensed
or unlicensed,” including “the date the entity was summonsed, the disposition of the summons,
and any fines paid on the summons.” Id. ¶ 7.
2. Post-Seizure Hearings
When a vehicle is seized for suspected unlicensed activity, a hearing must be held within
five business days before the Taxi and Limousine Tribunal at the City’s Office of Administrative
Trials and Hearings (“OATH”). See 35 R.C.N.Y. § 68–17(c)(1). At the hearing, “a determination
will be made” with respect to the following issues:

4

(A) Whether the Owner engaged in the Unlicensed Activity alleged in the
summons[;]
(B) If the Owner is found to have engaged in such Unlicensed Activity, then:
(i) Whether the Owner has two or more violations of §§ 19–506(b), (c), or (k)
of the Administrative Code in the past 36 months . . .; and
(ii) Whether it is necessary that the vehicle remain impounded pending a
judgment of forfeiture.
Id.
If the vehicle owner is found not guilty at the hearing, her vehicle will be released. See id.
§ 68–17(d)(1). If, however, the TLC tribunal finds the vehicle owner guilty and determines that
the vehicle is subject to forfeiture on the basis of the owner’s prior violations, the TLC “will retain
the vehicle and commence a forfeiture action.” Id. § 68–17(d)(2)(A).5
Between September 8, 2011 and May 24, 2016, the City did not initiate any forfeiture
proceedings under § 19–506(h)(2). See St. Laurent Decl. Ex. 4. On October 27, 2016, Mulero
testified that, to his knowledge, the TLC had never sought forfeiture of a vehicle that was seized
on the basis of a § 19–506 violation. See St. Laurent Decl. Ex. 3 at 124:10–14. On April 24,
2017—as the parties were briefing their respective motions for summary judgment in this case—
the City filed a forfeiture complaint against a non-party defendant. See Compl., City of New York
v. Harris, No. 451060/2017 (N.Y. Sup. Ct. Apr. 24, 2017).
B. Harrell v. City of New York
This Court is not the first to consider constitutional challenges to the City’s warrantless
seizure of vehicles based on suspected violations of § 19–506(b)(1). In Harrell v. City of New
York, which is currently pending before the Hon. Valerie Caproni, a putative class of individuals

5

If the vehicle owner is found guilty but her vehicle is not subject to forfeiture, the TLC will release
the vehicle “upon payment of applicable penalties.” 35 R.C.N.Y. § 68–17(d)(2)(B).

5

and entities “whose vehicles have been seized by the TLC based on allegations of first-time
violations” of § 19–506 claim that the City’s alleged seizures of their vehicles violate the Fourth
and Fourteenth Amendments. Am. Compl. ¶ 94, Harrell v. City of New York, No. 14-CV-7246
(VEC) (Nov. 13, 2014) (Dkt. 24) (“Harrell Am. Compl.”).6
On September 30, 2015, Judge Caproni granted the Harrell plaintiffs summary judgment
against the City on their Fourth and Fourteenth Amendment claims. See Harrell v. City of New
York, 138 F. Supp. 3d 479, 484 (S.D.N.Y. 2015). Judge Caproni held that “the City’s procedure
of seizing vehicles that are suspected of being used for hire without proper licensing is
unconstitutional under the Fourth and Fourteenth Amendments as it applies to vehicle owners with
no prior violations in the preceding 36 months.” Id. In ruling that the City’s procedure violates
the Fourth Amendment, Judge Caproni rejected the City’s arguments that either the
“instrumentality of crime” or “exigent circumstances” exceptions to the Fourth Amendment’s
warrant requirement justified the failure to obtain warrants before seizing the plaintiffs’ vehicles.
See id. at 489–92. In Judge Caproni’s view, the City’s argument that it could seize vehicles as
contraband or as instrumentalities of crime “simply does not fly” because, unlike child
pornography, “[s]traight tag for-hire vehicles are simply not contraband,” and because the City
“never intend[ed] to criminally prosecute” the alleged violations of § 19–506(b)(1). Id. at 490.
The exigent circumstances exception did not apply, Judge Caproni reasoned, because the City’s
“intent” when seizing the vehicles was “to return them to their owner upon payment of the bond
or penalty”—not, as the City had claimed, to protect the public from unsafe or inadequately insured

6

At oral argument on their motion for summary judgment, the Harrell plaintiffs indicated that they
sought relief only on behalf of individuals with “straight plates,” that is, individuals whose seized vehicles
did not bear TLC license plates. See Tr. of Oral Arg. at 6:19–20, Harrell v. City of New York, No. 14-CV7246 (VEC) (Sept. 24, 2015) (Dkt. 55) (“Harrell Oral Arg. Tr.”) (“If we’re defining the class, it would only
be for straight-plate drivers.”).

6

vehicles. Id. at 491. In resolving the Fourth Amendment question presented, however, Judge
Caproni was careful to note that Harrell did not involve the question of whether the City could,
consistent with the Fourth Amendment, seize a vehicle without a warrant based on “probable cause
to believe that the vehicle to be seized is subject to civil forfeiture.” Id. at 487.
Judge Caproni then determined that the City’s procedure for seizing vehicles, as applied to
vehicle owners with no violations of § 19–506(b) in the 36 months before their vehicles were
seized, violates the Due Process Clause of the Fourteenth Amendment. See id. at 492. In reaching
this conclusion, Judge Caproni first stated that, because the seizures of vehicles belonging to firsttime violators “are unconstitutional under the Fourth Amendment,” the initial seizure of a vehicle
without notice or an opportunity to be heard violates the Due Process Clause as well. Id. at 493.
Turning to the City’s post-seizure procedures, Judge Caproni applied the familiar balancing test of
Matthews v. Eldridge, 424 U.S. 319 (1976), and concluded that an individual’s private interest in
the “possession of [her] vehicle” outweighed the City’s interest in “ensur[ing] payment of a fine.”
Id. at 493–94. Judge Caproni specified, however, that her ruling did not address whether vehicles
subject to forfeiture could, consistent with due process, be seized without a prior hearing.
Specifically, Judge Caproni noted that police departments have an interest in “preventing vehicles
‘from being sold or destroyed before a court can render judgment in future forfeiture
proceedings,’” but found this justification for seizures inapplicable because the TLC “does not
forfeit vehicles of first-time offenders.” Id. at 494 (quoting Krimstock v. Kelly, 306 F.3d 40, 64
(2d Cir. 2002)). After concluding that the City’s “official, codified municipal policy” violated the
Fourth and Fourteenth Amendments, Judge Caproni held that the City was liable under Monell v.

7

Department of Social Services of the City of New York, 436 U.S. 658 (1978), “for whatever
damages Plaintiffs who were first time violators can prove.” Id. at 495.7
On December 18, 2015, Judge Caproni granted in part and denied in part the City’s motion
to reconsider her summary judgment decision. See Harrell v. Joshi, 2015 WL 9275683, at *1
(S.D.N.Y. Dec. 18, 2015). In resolving the City’s motion for reconsideration, Judge Caproni
reiterated that, as she had previously held, “the City’s policy of seizing the vehicles of first time
violators” was unconstitutional. Id. at *2. Judge Caproni also rejected the City’s argument that
her prior decision was erroneous because it did not “address the individual circumstances and
evidence surrounding each plaintiff’s vehicle seizure,” which she viewed as a challenge to her
“determination that [she] could defer the adjudication of individual claims in this putative class
action and decide only the legal issue presented.” Id. Judge Caproni did, however, conclude that
two individual plaintiffs, Susan Calvo and John Peters Limousines, were not entitled to summary
judgment based on “evidence that they were not first time violators when the complained of
seizures occurred.” Id. at *4.8 On reconsideration, therefore, Judge Caproni denied the plaintiffs’
cross-motion for summary judgment as to Calvo and John Peters Limousines but granted the
motion as to all other plaintiffs. See id.
After resolving the motion for reconsideration, Judge Caproni granted plaintiffs’ request
for leave to amend their complaint, but denied their request “to add claims on behalf of second or
subsequent violators” of § 19–506. Order, Harrell v. City of New York, No. 14-CV-7246 (VEC)
(Feb. 9, 2016) (Dkt. 80). In a conference addressing plaintiffs’ request for leave to amend, Judge
Caproni stated that “a claim for subsequent seizures of vehicles” would constitute “a whole

7

Judge Caproni dismissed the claims against individual defendants, finding that the plaintiffs had
alleged no facts that these defendants were personally involved in the alleged constitutional violations. See
Harrell, 138 F. Supp. 3d at 495–96.
8
Susan Calvo is a named plaintiff in both Harrell and in this case.

8

different case” and that “[t]here are different issues than are involved in the case you’ve got in
front of me.” Tr. of Feb. 8, 2016 Conf. at 2:7–12, Harrell v. City of New York, No. 14-CV-7246
(VEC) (Mar. 8, 2016) (Dkt. 91). Judge Caproni also denied the plaintiffs’ request to add Angel
DeCastro, who “was driving a vehicle that was licensed by the Taxi and Limousine Commission
as a car for hire,” as a named plaintiff. See Order at 1, Harrell v. City of New York, No. 14-CV7246 (VEC) (Mar. 31, 2016) (Dkt. 96). Judge Caproni explained that “[t]his case was brought on
the theory that straight tag vehicles were being improperly seized; it is too late in the case to alter
the fundamental premise of the case.” Id. at 2 (internal citation omitted).9
C. The DeCastro Plaintiffs
Against this backdrop, Calvo, DeCastro, and Macon filed a complaint in this action on May
24, 2016. See Compl. (Dkt. 7). According to the Amended Complaint, which is now the operative
complaint in this action, “[t]his action is based on substantially the same legal theories alleged in
Harrell.” Am. Compl. ¶ 9 (Dkt. 27). As in Harrell, the Plaintiffs in this case claim that the City’s
warrantless seizure of vehicles they owned or operated violates the Fourth and Fourteenth
Amendments. See id. ¶¶ 128–37, 145–54.10 There are, however, two principal differences
between the Plaintiffs in this case and those in Harrell: (1) the named Plaintiffs here include
“second or subsequent violators” of § 19–506, and (2) the named Plaintiffs include one individual
who operated a “TLC-licensed vehicle,” rather than a “straight-plate” vehicle. See id. ¶¶ 9, 11.

9

The plaintiffs thereafter filed a motion for class certification, which Judge Caproni denied without
prejudice on September 21, 2017. See Op. & Order, Harrell v. City of New York, No. 14-CV-7246 (VEC)
(Sept. 21, 2017) (Dkt. 223).
10
Plaintiffs also assert a claim for a violation of Article I, Section 12 of the New York Constitution,
which is identical to their Fourth Amendment claim for purposes of this opinion, see Am. Compl. ¶¶ 138–
44, and for a violation of the New York City Administrative Procedure Act, see id. ¶¶ 161–64. Although
the Amended Complaint asserts two causes of action under the Due Process Clause of the Fourteenth
Amendment, see id. ¶¶ 145–60, Plaintiffs clarified at oral argument that they assert a claim only for
procedural due process, not substantive due process, see Tr. of Oral Arg. at 4:12–14.

9

It is undisputed that, between November 2013 and May 2015, TLC inspectors seized
vehicles owned or operated by each Plaintiff without a warrant. The Court recounts the details of
each of these seizures below.
1. Susan Calvo
On three occasions between November 2013 and March 2015, TLC inspectors seized a
2010 GMC Suburban owned by Susan Calvo and bearing the license plate “SSVIP.” In the 36
months before this period began, Calvo had been found liable for at least two violations of § 19–
506(b)(1). See Def. 56.1 ¶¶ 28, 30, 38; Decl. of Karen B. Selvin (“Selvin Decl.”) Exs. H, I (Dkt.
82).
On November 27, 2013, TLC Inspectors Sherif Issa and Thomas Ryan seized Calvo’s
vehicle, which was being driven by Rafael Castillo-Jiminez, at the John F. Kennedy International
Airport (“JFK Airport”) in Queens, New York. See Def. 56.1 ¶ 33; Pl. 56.1 ¶ 27. According to
the inspectors’ notes, Castillo-Jiminez arrived at the airport with a passenger seated in the rear of
the vehicle. See Def. 56.1 ¶ 34; Issa Decl. Ex. A. After exiting the vehicle, the passenger told the
inspectors that the vehicle “was a car service arranged and paid for by her boyfriend,” and that the
vehicle “had picked her up at the W Hotel.” Def. 56.1 ¶ 34; Issa Decl. Ex. A. The inspectors
noted that the vehicle “is not duly licensed to operate for hire point-to-point in NYC,” and that the
vehicle owner had “allowed [the] vehicle to be used for illegal [for-hire-vehicle] activity.” Issa
Decl. Ex. A. The inspectors’ notes further indicate that Castillo-Jiminez stated that he “works for
the owner who dispatched him for the trip.” Id. The inspectors issued Calvo a summons, which
indicated that a hearing would be held on December 4, 2013. See id. Later that day, Calvo, acting
through Castillo-Jiminez as her representative, pled guilty to a violation of § 19–506, paid a $600
fine, and received a vehicle release form. See Def. 56.1 ¶ 37; Pl. 56.1 ¶ 28; Selvin Decl. Ex. G.

10

On June 4, 2014, TLC Inspector Philip White seized the same vehicle, this time driven by
Calvo herself, at the JFK Airport. See Def. 56.1 ¶ 40; Pl. 56.1 ¶ 31; White Decl. Ex. A. According
to White’s notes, two passengers exited the vehicle at the airport and told him that they had
“ordered this vehicle online,” paid for the ride with a credit card, and were picked up in Manhattan.
White Decl. Ex. A. White issued Calvo four summonses, including one for a violation of § 19–
506(b)(1), which indicated that a hearing was scheduled for June 17, 2014. See Def. 56.1 ¶¶ 43–
44; White Decl. ¶ 4, Ex. A. Calvo posted a $2,000 bond and received a vehicle release form. See
Def. 56.1 ¶ 48; Pl. 56.1 ¶ 32; Selvin Decl. Ex. K. According to Plaintiffs, the case against Calvo
was “ultimately resolved,” and her $2,000 bond was returned. See Pl. 56.1 ¶ 33.
On March 16, 2015, TLC Inspector Zbigniew Fimiarz seized the same vehicle, driven this
time by Susan Calvo’s son, Jason Calvo, at the JFK Airport. See Def. 56.1 ¶ 49; Pl. 56.1 ¶ 35;
Fimiarz Decl. ¶ 4, Ex. A. According to his notes, Fimiarz observed two passengers seated in the
rear of the vehicle exit outside the airport. See Def. 56.1 ¶ 54; Fimiarz Decl. Ex. A. Fimiarz noted
that the passengers told him the vehicle was a “car service,” which picked them up at the St. Regis
Hotel in Manhattan. Fimiarz Decl. Ex. A. Fimiarz further noted that the “vehicle is not duly
licensed to be operated for hire.” Id. Fimiarz issued Jason Calvo six criminal summonses,
including one for a violation of § 19–506(b)(1), which indicated that a hearing was scheduled for
March 24, 2015. See Def. 56.1 ¶ 51; Fimiarz Decl. Ex. B. The next day, Susan or Jason Calvo
posted a $2,000 bond and received a vehicle release form. See Def. 56.1 ¶ 58; Pl. 56.1 ¶ 36; Selvin
Decl. Ex. M. The charges were “resolved” at a hearing, and the bond was returned. See Pl. 56.1
¶ 36.

11

2. Kelly Macon
On December 8, 2014, TLC Inspectors Taufiq Ahasan and Ronald Prioleau seized a 2003
Lincoln Towncar owned and operated by Kelly Macon in Brooklyn. See Def. 56.1 ¶ 68; Pl. 56.1
¶ 38; Prioleau Decl. ¶ 4, Ex. A. According to their notes, the inspectors observed Macon pick up
a passenger, who entered the rear of the vehicle. See Def. 56.1 ¶ 69; Prioleau Decl. Ex. A. When
the vehicle had stopped,11 the passenger told the inspectors that he had agreed to pay Macon $8
for a ride to a shopping mall. See Def. 56.1 ¶ 70; Prioleau Decl. Ex. A. At the time of this incident,
Macon had been found liable for violating § 19–506(b)(1) within the past 36 months, as he had
pled guilty to another violation on July 29, 2014. See Def. 56.1 ¶ 67; Selvin Decl. Ex. N. The
officers issued Macon a summons, which indicated that a hearing was scheduled for December 17,
2014. See Prioleau Decl. Ex. A. On December 8, 2014, Macon pled guilty, paid a $950 fine, and
received a vehicle release form. See Def. 56.1 ¶¶ 76, 78; Pl. 56.1 ¶ 39; Selvin Decl. Ex. O.
3. Angel DeCastro
On May 28, 2015, a TLC inspector seized a 2012 Toyota Camry operated by Angel
DeCastro in Manhattan. See Def. 56.1 ¶ 10; Selvin Decl. Ex. A; Selvin Decl. Ex. D at 43:11:12.
The vehicle bore “T&LC” license plates. See Def. 56.1 ¶¶ 13, 15; Selvin Decl. Ex. D at 41:4–6.
The inspector reported observing DeCastro driving the vehicle with two passengers seated in the
rear of the vehicle, one of whom was holding money. See Selvin Decl. Ex. A. According to the
inspector’s notes, DeCastro and the passengers “confirmed fhv activity”12 when the vehicle
stopped, explaining that the ride was “arranged via preferred care transportation” and that the fare
was to be paid by an insurance company. See Selvin Decl. Ex. A. The inspector further noted that

11

The inspectors’ notes appear to indicate that they pulled Macon over after he failed to signal for
a left turn. See Prioleau Decl. Ex. A.
12
There is no dispute that “fhv” refers to “for-hire vehicle.”

12

DeCastro “started yelling, screaming, and was extremely disorderly,” stated that “the NYC TLC
is a mafia agency,” and gave the inspector “the middle finger.” Selvin Decl. Ex. A. The following
day, DeCastro pled guilty to a violation of § 19–506, agreed to pay a $750 fine, and received a
vehicle release form. See Def. 56.1 ¶ 20; Selvin Decl. Ex. C.
D. Procedural History
On February 3, 2017, Plaintiffs filed a motion for summary judgment. See Pl. Mot. for
Summ. J. (Dkt. 59). On May 8, 2017, Defendants filed a cross-motion for summary judgment.
See Def. Cross-Mot. for Summ J. (Dkt. 77). On June 5, 2017, Plaintiffs filed a reply in support of
their motion for summary judgment and in opposition to Defendants’ motion. See Pl. Reply Mem.
(Dkt. 92). On June 19, 2017, the City filed a reply in further support of their cross-motion for
summary judgment. See Def. Reply Mem. (Dkt. 95). On September 6, 2017, the Court held oral
argument.
LEGAL STANDARD
To prevail on a motion for summary judgment, the movant must show “that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “A genuine issue of material fact exists if ‘the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’” Pollard v. New York Methodist
Hosp., 861 F.3d 374, 378 (2d Cir. 2017) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986)). “Summary judgment is appropriate when there can be but one reasonable conclusion
as to the verdict, i.e., it is quite clear what the truth is, and no rational factfinder could find in favor
of the nonmovant.” Soto v. Gaudett, 862 F.3d 148, 157 (2d Cir. 2017) (internal citations and
quotation marks omitted). “When a motion for summary judgment is properly supported by
documents or other evidentiary materials, the party opposing summary judgment may not merely

13

rest on the allegations or denials of his pleading; rather his response, by affidavits or otherwise as
provided in the Rule, must set forth ‘specific facts’ demonstrating that there is ‘a genuine issue for
trial.’” Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) (quoting Fed. R. Civ. P. 56(e)); see
also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “On a motion for summary judgment,
the court must ‘resolve all ambiguities and draw all permissible factual inferences in favor of the
party against whom summary judgment is sought.’” Reyes v. Lincoln Auto. Fin. Servs., 861 F.3d
51, 54 (2d Cir. 2017) (alterations omitted) (quoting Burg v. Gosselin, 591 F.3d 95, 97 (2d Cir.
2010)). In considering cross-motions for summary judgment, “the court must evaluate each party’s
motion on its own merits, taking care in each instance to draw all reasonable inferences against
the party whose motion is under consideration.” Coutard v. Mun. Credit Union, 848 F.3d 102,
114 (2d Cir. 2017) (quoting Schwabenbauer v. Bd. of Educ., 667 F.2d 305, 314 (2d Cir. 1981)).
DISCUSSION
A. Issue Preclusion
The outcome of the parties’ motions in this case turns, in part, on the preclusive effects of
Judge Caproni’s decisions in Harrell. Invoking the doctrine of issue preclusion, or collateral
estoppel, Plaintiffs argue that the City is barred from litigating several issues that were decided in
Harrell. See, e.g., Pl. Mem. at 18–19; Pl. Reply Mem. at 2–4. The Court agrees.
“Collateral estoppel, or issue preclusion, prevents parties or their privies from relitigating
in a subsequent action an issue of fact or law that was fully and fairly litigated in a prior
proceeding.” Marvel Characters, Inc. v. Simon, 310 F.3d 280, 288 (2d Cir. 2002). “Collateral
estoppel saves parties and the courts from the waste and burden of relitigating stale issues, and, by
discouraging inconsistent results, forwards public policy favoring the establishment of certainty in
legal relations.” United States v. Alcan Aluminum Corp., 990 F.2d 711, 719 (2d Cir. 1993) (citation

14

omitted); see also Envtl. Def. v. EPA, 369 F.3d 193, 202 (2d Cir. 2004) (“The doctrine serves to
‘relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by
preventing inconsistent decisions, encourage reliance on adjudication.’” (quoting Allen v.
McCurry, 449 U.S. 90, 94 (1980))).
Issue preclusion “bars litigation of an issue when (1) the identical issue was raised in a
previous proceeding; (2) the issue was actually litigated and decided in the previous proceeding;
(3) the party had a full and fair opportunity to litigate the issue; and (4) the resolution of the issue
was necessary to support a valid and final judgment on the merits.” Proctor v. LeClaire, 715 F.3d
402, 414 (2d Cir. 2013) (citation omitted). For purposes of issue or claim preclusion, summary
judgment is considered a decision on the merits. See, e.g., Ranasinghe v. Kennell, No. 16-CV2170 (JMF), 2017 WL 384357, at *4 (S.D.N.Y. Jan. 25, 2017); Smith v. City of New York, 130 F.
Supp. 3d 819, 828 (S.D.N.Y. 2015), aff’d, 664 F. App’x 45 (2d Cir. 2016) (summary order); Rafter
v. Liddle, 704 F. Supp. 2d 370, 375 (S.D.N.Y. 2010); 18 James W. Moore et al., Moore’s Federal
Practice § 132.03 (3d ed. 2015) (“Issue preclusion generally applies when the prior determination
is based on a motion for summary judgment.”); see generally Alcan Aluminum Corp., 990 F.2d at
719 (“We have taken a broad view of the application of collateral estoppel to rulings made at an
interim stage of litigation. Estoppel is applied when ‘the litigation of a particular issue has reached
such a stage that a court sees no really good reason for permitting it to be litigated again.’” (quoting
Lummus Co. v. Commonwealth Oil Ref. Co., 297 F.2d 80, 89 (2d Cir. 1961))).13

13

The City and the TLC do not argue that they are, as a general matter, shielded from the doctrine
of nonmutual offensive collateral estoppel. In United States v. Mendoza, 464 U.S. 154 (1984), which
neither party has cited here, the Supreme Court held that this doctrine does not apply against the federal
government. See id. at 158. In reaching this conclusion, the Court noted that the federal government
litigates issues of “substantial public importance” on a “nationwide basis,” and that a rule permitting the
use of nonmutual offensive collateral estoppel against the federal government would deprive the Court of
“the benefit it receives from permitting several courts of appeals to explore a difficult question before [it]
grants certiorari.” Id. at 159–60. Courts are split on the question of whether Mendoza prohibits the use of

15

Three issues raised in this case were decided in Harrell. First, Judge Caproni decided
whether the seizure of a vehicle on the basis of a suspected violation of § 19–506(b)(1) falls within
the so-called “instrumentality of crime” exception to the Fourth Amendment’s warrant
requirement. See Defs.’ Mem. in Supp. of Cross-Mot. for Summ J. (“Defs. Mem.”) at 11–15, 19–
20, 21–22 (Dkt. 81); see generally Horton v. California, 496 U.S. 128, 136–37 (1990); 3 Wayne
R. LaFave, Search & Seizure § 7.3(a) (5th ed.). The “identical issue” was raised in Harrell: in that
case, the City argued, as it does here, that TLC inspectors could seize vehicles without a warrant
based on probable cause to believe that the vehicles were “instrumentalities” used in the “crime”
of operating or allowing another to operate a vehicle for hire without proper licensing. See Defs.
Reply Mem. in Supp. of Mot. to Dismiss & in Opp’n to Cross-Mot. for Summ J. at 3–7, Harrell
v. City of New York, No. 14-CV-7246 (VEC) (Feb. 19, 2015) (Dkt. 41) (“Defs. Harrell Summ J.
Mem.”); Harrell Oral Arg. Tr. at 15:10–16. This issue was actually litigated and decided: in
entering summary judgment against the City, Judge Caproni specifically rejected the City’s
argument that its “seizures pursuant to § 19–506(b)(1) do not violate the Fourth Amendment
because they are reasonable and fall within an exception to the warrant requirement,” including

nonmutual offensive collateral estoppel against state or municipal governments. Compare, e.g., Idaho
Potato Comm’n v. G & T Terminal Packaging, Inc., 425 F.3d 708, 714 (9th Cir. 2005) (holding that
Mendoza applies in a suit against a state agency), and Hercules Carriers, Inc. v. Claimant State of Fla.,
Dep’t of Transp., 768 F.2d 1558, 1579 (11th Cir. 1985) (same), with Milton S. Kronheim & Co. v. District
of Columbia, 91 F.3d 193, 209 n.4 (D.C. Cir. 1996) (declining to extend Mendoza’s rule against nonmutual
offensive collateral estoppel to an action against the District of Columbia), In re Stevenson, 40 A.3d 1212,
1222 n.8 (Pa. 2012) (declining to extend “the Mendoza doctrine” to state governments), and State v. United
Cook Inlet Drift Ass’n, 895 P.2d 947, 951 (Alaska 1995) (declining to extend Mendoza to a suit against a
state government). The Second Circuit has not extended Mendoza to suits involving state or local
governments. See Benjamin v. Coughlin, 905 F.2d 571, 576 (2d Cir. 1990) (distinguishing Mendoza and
permitting the use of nonmutual collateral estoppel against a state agency). In the absence of any argument
from the parties or Second Circuit authority to the contrary, the Court assumes that Plaintiffs may invoke
the doctrine of nonmutual offensive collateral estoppel against the City and the TLC.

16

the “instrumentalities of crime” exception. Harrell, 138 F. Supp. 3d at 489.14 The City had a full
and fair opportunity to litigate the issue: the City advanced its “instrumentalities of crime”
argument throughout its briefing and at oral argument before Judge Caproni.

Finally, the

resolution of this issue was necessary to support the decision on the merits: Judge Caproni held
that “the City’s procedure of seizing vehicles that are suspected of being used for hire without
proper licensing is unconstitutional” under the Fourth Amendment because no exception to the
warrant requirement, including the “instrumentalities of crime” exception, applied. Id. at 483.
Therefore, under the doctrine of issue preclusion, the City is barred from relitigating whether the
“instrumentality of crime” exception to the Fourth Amendment’s warrant requirement applies to
the warrantless seizure of vehicles based on suspected violations of § 19–506(b)(1).
The City argues that the “instrumentality of crime” issue in this case is not identical to the
issue raised in Harrell because the named Plaintiffs in this case differ in two respects from those
in Harrell. See Defs. Mem. at 13. First, unlike in Harrell, some Plaintiffs in this case—Susan
Calvo and Kelly Macon—had been found liable for at least one prior violation of § 19–506(b)(1)
within the 36 months prior to the seizure of their vehicles. See id. at 13. This distinction, while
relevant in analyzing other preclusion questions in this case, is not material to the issue of whether
the “instrumentality of crime” exception applies. In both cases, the “crime” for which Plaintiffs’
vehicles could be viewed as “instrumentalities” is the same: the Plaintiffs in this case, like those
in Harrell, were suspected of violating § 19–506(b)(1). The City is also correct that this case,
unlike Harrell, involves one Plaintiff—Angel DeCastro—whose vehicle bore TLC licensing
plates at the time that it was seized. As the City has presented its “instrumentality of crime”

14

Although this passage in Harrell indicates that the seizures were made “pursuant to § 19–
506(b)(1),” 138 F. Supp. 3d at 489, it appears that Harrell intended to reference seizures made pursuant to
§ 19–506(h)(1), on the basis of suspected violations of § 19–506(b)(1).

17

argument in this case, however, this distinction is also immaterial: in both cases, the City has
argued that a vehicle—whatever its license plates may read—may be seized without a warrant as
an instrumentality used in violating § 19–506(b)(1). Compare, e.g., Defs. Mem. at 12, with Defs.
Harrell Summ J. Mem. at 5. In claiming that the “instrumentality of crime” exception applies to
the warrantless seizure of DeCastro’s vehicle, the City has not argued that DeCastro’s alleged use
of TLC license plates should play any role in determining whether the officers could, consistent
with the Fourth Amendment, seize his vehicle without a warrant.15 Thus, despite the distinctions
between the Plaintiffs in this case and those in Harrell, the issue of whether the “instrumentality
of crime” exception applies to the warrantless seizure of vehicles in this case is identical to the
issue decided in Harrell. See, e.g., Benjamin v. Coughlin, 905 F.2d 571, 575–76 (2d Cir. 1990)
(holding that a state department of corrections was precluded from relitigating the validity of a
directive that was found invalid in a prior § 1983 action, despite the state’s argument that the prior
decision only addressed directive’s applicability to a different group of individuals, where the state
asserted the same interests in defense of the directive); cf. Monahan v. New York City Dep’t of
Corr., 214 F.3d 275, 289–90, 293 (2d Cir. 2000) (holding that a municipal department of
corrections was barred, under the doctrine of claim preclusion, from litigating the validity of a
policy that was previously found unlawful and noting that “the mere assertion of new incidents

15

Notably, the City argues that DeCastro’s vehicle was seized on the basis of a suspected violation
of § 19–506(b)(1)—the same crime for which it claims that all other Plaintiffs’ vehicles were used as
“instrumentalities” in both this case and in Harrell. Compare, e.g., Defs. Mem. at 12, and Def. 56.1 ¶ 10,
with Defs. Harrell Summ. J. Mem. at 5 & n.6. The City has not argued that DeCastro’s vehicle was seized
on the basis of a suspected violation of § 19–506(b)(2), which prohibits any person from operating or
allowing another to operate a vehicle for hire “in a manner that is beyond the scope of the activities
permitted by such vehicle’s license.” N.Y.C. Admin. Code § 19–506(b)(2); see Defs. Mem. at 12 n.12
(rejecting Plaintiffs’ allegation that the City seized DeCastro’s vehicle on the grounds that DeCastro was
“acting beyond the scope of [his] license”). Accordingly, this case does not present the question of whether
TLC inspectors could seize a vehicle without a warrant as an “instrumentality of crime” used in the violation
of § 19–506(b)(2).

18

arising from the application of the challenged policy is insufficient to bar the application of res
judicata”); Maneely v. City of Newburgh, 256 F. Supp. 2d 204, 209–10 (S.D.N.Y. 2003)
(concluding that the issue of whether a city’s strip search policy for pre-arraignment detainees
violated the Fourth Amendment was “precisely the issue” decided in a prior § 1983 action, despite
factual differences between the searches at issue, but determining that the city did not have a full
and fair opportunity to litigate the issue); see generally Joshua M. D. Segal, Note, Rebalancing
Fairness and Efficiency: The Offensive Use of Collateral Estoppel in § 1983 Actions, 89 B.U. L.
Rev. 1305 (2009).
Second, Judge Caproni decided whether the so-called “exigent circumstances” exception
to the Fourth Amendment’s warrant requirement applies to the warrantless seizure of a vehicle,
where TLC inspectors allegedly suspect a violation of Section 19–506(b)(1). See Defs. Mem. at
16, 20, 22. The City raised the identical issue in Harrell, arguing that “exigent circumstances”
necessitated the warrantless seizure of vehicles. See Defs. Harrell Summ J. Mem. at 7–9; Harrell
Oral Arg Tr. at 19:11–16. Indeed, the City supported this argument with the same reasoning it
provides here: in both cases, the City has pointed to the New York City Council’s alleged
determination that illegal for-hire vehicles pose an immediate threat to public welfare and safety
as evidence of “exigent circumstances” that would necessitate an immediate seizure of a vehicle
suspected of violating § 19–506(b)(1). Compare, e.g., Defs. Mem. at 16, 20, 22, with Defs. Harrell
Summ J. Mem. at 3–9, and Harrell Oral Arg. Tr. at 19:11–16. This issue was actually litigated
and decided: Judge Caproni specifically rejected the City’s argument that “exigent circumstances
justify the seizures because the vehicles are inherently dangerous” or because “the seizures are
justified to protect public safety.” Harrell, 138 F. Supp. 3d at 489. The City had a full and fair
opportunity to litigate the issue, advancing its “exigent circumstances” theory throughout the

19

proceedings before Judge Caproni. See Defs. Harrell Summ J. Mem. at 7–9; Harrell Oral Arg Tr.
at 19:11–16. And like the “instrumentality of crime” issue, the applicability of the “exigent
circumstances” exception to the warrant requirement was necessary to support Judge Caproni’s
decision on the merits: Judge Caproni determined that the City’s warrantless seizure of vehicles
on the basis of suspected violations of § 19–506(b)(1) violated the Fourth Amendment in part
because “exigent circumstances” could not justify TLC inspectors’ failure to obtain warrants
before seizing vehicles. Accordingly, under the doctrine of issue preclusion, the City is barred
from relitigating whether the warrantless seizure of a vehicle, on the basis of a suspected violation
of § 19–506(b)(1), falls within the “exigent circumstances” exception to the Fourth Amendment’s
warrant requirement.16
Finally, Judge Caproni decided whether the seizure of vehicles belonging to “first-time
violators” of § 19–506(b)(1), without a prior hearing, violates the Due Process Clause. See Defs.
Mem. at 22–25.17 In Harrell, the City raised the identical issue: the City argued that a pre-seizure

16

The City claims that the seizures of vehicles belonging to Macon and DeCastro involved certain
“exigencies” that were absent in Harrell. For example, the City points to Macon’s criminal record and
DeCastro’s “disorderly” response to the TLC officer who seized his vehicle as distinctions between this
case and Harrell. This argument is not persuasive: Judge Caproni ruled that concerns about public safety
or perceived exigencies could not, as a matter of law, justify the City’s failure to obtain a warrant before
seizing vehicles pursuant to § 19-506(h)(1). Indeed, Judge Caproni’s decision on the City’s motion for
reconsideration made plain that her award of summary judgment to plaintiffs did not rest on any analysis
of “the individual circumstances and evidence surrounding each plaintiff’s vehicle seizure,” but rather on a
determination that “the City’s policy” was unconstitutional. Joshi, No. 14-CV-7246 (VEC), 2015 WL
9275683, at *1–2 (emphasis added). And in a later ruling on attorney’s fees, Judge Caproni stated that “the
issue at summary judgment was whether the City’s policy of seizing cars was unconstitutional; individual
distinctions between the named plaintiffs were not material to the Court’s decision at that time.” Order,
Harrell v. City of New York, No. 14-CV-7246 (VEC) (Sept. 15, 2017) (Dkt. 222). The “individual
circumstances” related to the seizures of vehicles belonging to Macon and DeCastro do not, therefore,
provide a basis for the City to avoid the preclusive effects of Judge Caproni’s decision that the “exigent
circumstances” exception does not apply to the warrantless seizure of vehicles pursuant to § 19–506(h)(1).
In any event, the City has not provided an adequate basis for concluding that either Macon’s criminal record
or DeCastro’s disorderly conduct presented any exigency that would justify the warrantless seizure of their
vehicles.
17
In this case, the City raises this issue only as to DeCastro, who had not been found liable for any
violations of § 19–506(b)(1) in the 36 months before his vehicle was seized.

20

hearing was not required before the vehicles of first-time violators were seized because it afforded
these individuals a “post-deprivation opportunity to be heard.” See Defs. Harrell Summ J. Mem.
at 9–13. At times using identical language as it does in this case, the City asserted that its
“significant enforcement and public safety interests in immediately seizing an unlicensed for-hire
vehicle,” including a vehicle owned or operated by a first-time violator of § 19–506(b)(1), justified
its failure to provide pre-seizure hearings. Id. at 9; Defs. Mem. at 23. This issue was also litigated
and decided: Judge Caproni held that the City denies first-time violators due process by seizing
their vehicles without first providing a hearing. See Harrell, 138 F. Supp. 3d at 492–95. The City
had a full and fair opportunity to litigate this issue, as it advanced its view that Due Process did
not require pre-seizure hearings throughout the Harrell proceedings, and Judge Caproni’s decision
on the issue was, of course, necessary to her determination that plaintiffs were entitled to summary
judgment on their Due Process claim. Thus, the City is barred from relitigating whether its failure
to provide a hearing before the seizing the vehicles belonging to first-time violators of § 19–
506(b)(1) satisfies the procedural requirements of the Due Process Clause.18
As Judge Caproni carefully noted, however, Harrell did not address the constitutionality
of the City’s procedure for seizing vehicles belonging to individuals whose vehicles are subject to
forfeiture under § 19–506(h)(2). Indeed, Judge Caproni explicitly stated Harrell did not involve
the questions of whether inspectors had “probable cause to believe that the vehicle to be seized is
subject to civil forfeiture” or whether the City could retain possession of vehicles “pending

18

The Court expresses no view on the merits of Judge Caproni’s decisions on the issues that the
City attempts to relitigate in this case. See Johnson v. Watkins, 101 F.3d 792, 795 (2d Cir. 1996) (“By
foregoing the opportunity to reexamine an issue, a degree of certainty about the correctness of the prior
result is sacrificed, that is to say, the bar of collateral estoppel carries with it the devastating danger that the
first decision on an issue may have been wrong and will remain unremedied. Use of the doctrine represents
an informed choice that the occasional permanent encapsulation of a wrong result is a price worth paying
to promote the worthy goals of ending disputes and avoiding repetitive litigation.” (citation omitted)).

21

forfeiture proceedings.” See 138 F. Supp. 3d at 487.19 These questions, which Harrell did not
decide, take center stage here, as the City argues that the vehicles belonging to two of the named
Plaintiffs—Susan Calvo and Kelly Macon—were subject to forfeiture under § 19–506(h)(2).
Thus, the central issue in this case, unlike in Harrell, is whether the forfeiture provision of § 19–
506(h)(2) justifies the City’s failure to obtain warrants or conduct hearings before seizing vehicles
owned or operated by individuals suspected of unlicensed activity.20
B. Fourth Amendment
The Fourth Amendment protects the rights of individuals “to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV.
“A seizure occurs when the Government interferes in some meaningful way with the individual’s
possession of property.” United States v. Ganias, 755 F.3d 125, 133 (2d Cir. 2014); accord United
States v. Jacobsen, 466 U.S. 109, 113 (1984). It is well established that warrantless searches or
seizures are presumptively unreasonable. See, e.g., Kentucky v. King, 563 U.S. 452, 459 (2011);
United States v. Babilonia, 854 F.3d 163, 178 (2d Cir. 2017). “Nevertheless, because the ultimate
touchstone of the Fourth Amendment is ‘reasonableness,’ the warrant requirement is subject to
certain exceptions.” Brigham City v. Stuart, 547 U.S. 398, 403 (2006) (quoting Flippo v. West
Virginia, 528 U.S. 11, 13 (1999) (per curiam)).
19

In passing in its briefing and its presentation at oral argument in Harrell, the City noted that a
vehicle belonging to Susan Calvo, who is also a named plaintiff in this case, was subject to forfeiture under
§ 19–506(h)(2) based on Calvo’s prior violations of § 19–506(b)(1). See Defs. Harrell Summ. J. Mem. at
16; Harrell Oral Arg. Tr. at 28:3–4, 28:17–22. The City did not, however, clearly present this argument to
Judge Caproni, who initially ruled on the motions without addressing the possible applicability of the
forfeiture provision to the Harrell plaintiffs.
20
The City’s arguments in opposition to DeCastro’s motion for summary judgment are entirely
precluded. The City argues that it did not violate DeCastro’s Fourth Amendment rights because the seizure
of his vehicle fell within the “instrumentality of crime” and “exigent circumstances” exceptions to the
warrant requirement, see Defs. Mem. at 11–15, and that it did not deny DeCastro due process because,
although DeCastro was a “first-time” violator of § 19–506(b)(1), a hearing was not required before his
vehicle was seized, see id. at 22–25. As discussed above, Judge Caproni decided all these issues against
the City in Harrell. Accordingly, DeCastro is entitled to summary judgment.

22

The relevant exception in this case is the so-called “forfeiture” exception, under which
“law enforcement officers who have probable cause to believe an automobile is subject to
forfeiture may both seize the vehicle from a public place and search it without a warrant.” United
States v. Gaskin, 364 F.3d 438, 458 (2d Cir. 2004) (citing Florida v. White, 526 U.S. 559, 561
(1999)); see also, e.g., United States v. Smith, 510 F.3d 641, 651 (6th Cir. 2007) (“When police
have probable cause to believe that an automobile is forfeitable contraband, it may be seized from
a public place without a warrant.”); United States v. Mendoza, 438 F.3d 792, 796 (7th Cir. 2006)
(“[T]he weight of authority holds that police may seize a car without a warrant pursuant to a
forfeiture statute if they have probable cause to believe that the car is subject to forfeiture.”
(alterations and citation omitted)); United States v. Brookins, 345 F.3d 231, 235 (4th Cir. 2003)
(holding that, under federal forfeiture statutes, “the police may seize an automobile without first
obtaining a warrant when they have probable cause to believe that it is forfeitable contraband”);
Matos v. City of New York, No. 11-CV-3107 (AJN), 2013 WL 425446, at *4 n.6 (S.D.N.Y. Feb.
1, 2013) (“[T]he warrantless seizure of a vehicle believed to be subject to forfeiture does not offend
the Constitution.”); see generally 3 Wayne R. LaFave, Search & Seizure § 7.3(b) (5th ed.). “To
establish probable cause, the Government bears the burden of demonstrating that it had ‘reasonable
grounds to believe the property is subject to forfeiture, and that these grounds must rise above the
level of mere suspicion.’” Oyekoya v. United States, 175 F. Supp. 2d 522, 524–25 (S.D.N.Y. 2001)
(quoting United States v. Daccarett, 6 F.3d 37, 55 (2d Cir. 1993)), aff’d, 28 F. App’x 82 (2d Cir.
2002) (summary order).
The City argues that TLC inspectors had probable cause to believe that the vehicles owned
by Calvo and Macon were subject to forfeiture under § 19–506(h)(2), which makes a vehicle
forfeitable if the owner has been convicted of or found liable for at least two violations of § 19–

23

506(b) within 36 months. N.Y.C. Admin. Code § 19–506(h)(2); see Defs. Mem. at 17–19, 21.
This argument is not persuasive. The City has provided no evidence that the TLC inspectors who
effected the seizures at issue had any reasonable basis for believing that Calvo or Macon had been
“convicted” of or “found liable” for any prior violations at the time of the seizures. N.Y.C. Admin.
Code § 19–506(h)(2). None of the inspectors involved in these seizures claims that he had any
specific information regarding the violation histories of these two individuals before seizing their
vehicles.21 None of the inspectors states that he even investigated the prior violations, if any, of
Calvo or Macon prior to the seizures at issue. The summonses issued by these inspectors, while
recounting details about the vehicles and the inspectors’ communications with the drivers and
passengers, do not mention the violation histories of either Calvo or Macon. See White Decl. Ex.
A; Prioleau Decl. Ex. A; Issa Decl. Ex. A; Fimiarz Decl. Ex. A.
To be sure, the inspectors’ declarations indicate that, in the course of vehicle stops more
generally, the inspectors determine whether the vehicle owner has “previously received a
summons.” See White Decl. ¶¶ 5–6; Prioleau Decl. ¶¶ 5–6; Issa Decl. ¶¶ 5–6; Fimiarz Decl. ¶¶ 5–
6. Knowledge that an owner has received a “summons,” however, does not provide a reasonable
basis for concluding that she has been “convicted” of or “found liable” for violating § 19–506(b).
Under the City’s rules, a “summons” refers only to an “alleged violation,” not a conviction or
finding of liability. 35 R.C.N.Y. § 68–06(a) (emphasis added); see also Black’s Law Dictionary
(10th ed. 2014) (defining a “summons” as a “writ or process commencing the plaintiff’s action
and requiring the defendant to appear and answer”). Moreover, under the undisputed facts of this
case, a summons is not a reliable indicator of a conviction or a finding of liability: several of the

21

Although four inspectors involved in these seizures have submitted declarations, none provides
any specific information about the seizures at issue. See White Decl.; Prioleau Decl.; Issa Decl.; Fimiarz
Decl. Rather, each declaration attaches a summons and verifies that the information contained in the
summons is accurate. See White Decl.; Prioleau Decl.; Issa Decl.; Fimiarz Decl.

24

summonses issued during the vehicle seizures at issue did not result in a conviction or finding of
liability. See Pl. 56.1 ¶¶ 33, 36. Thus, knowledge that a driver or owner has previously received
a summons provides inspectors too little information to infer that he or she has been convicted of
or found liable for the violation alleged therein.
Indeed, in a variety of contexts, courts have recognized that a document initiating a
criminal action, like a summons, fails to provide an adequate basis for ascertaining an individual’s
record of conviction. See, e.g., Shepard v. United States, 544 U.S. 13, 21 (2005) (holding that a
sentencing court may not look to charging documents to determine a defendant’s record of
conviction in prior cases); United States v. Dantzler, 771 F.3d 137, 146–47 (2d Cir. 2014) (holding
that a district court plainly erred in relying on “arrest reports” to determine whether a defendant
had been convicted of a prior offense for purposes of sentencing under the Armed Career Criminal
Act). Likewise here, the fact that Calvo or Macon had received a summons in a prior case, without
any further information about the case, does not provide TLC inspectors a reasonable basis for
concluding that their vehicles are subject to forfeiture under § 19–506(h)(2).
In its reply brief, the City invokes the so-called “collective knowledge doctrine,” arguing
that TLC radio room operators’ access to information regarding the “disposition of the summons”
provides a basis for inferring that the TLC inspectors who seized Calvo’s and Macon’s vehicles
knew whether their prior summonses had resulted in convictions or findings of liability. See Def.
Reply Mem. at 7; Torres Reply Decl. ¶ 7. “The collective knowledge doctrine provides that, for
the purpose of determining whether an arresting officer had probable cause to arrest, ‘where law
enforcement authorities are cooperating in an investigation, the knowledge of one is presumed
shared by all.’” Savino v. City of New York, 331 F.3d 63, 74 (2d Cir. 2003) (alteration omitted)
(quoting Illinois v. Andreas, 463 U.S. 765, 772 n.5 (1983)); accord Babilonia, 854 F.3d at 178.

25

The Second Circuit has, however, “decline[d] to extend the collective knowledge doctrine to cases
where . . . there is no evidence that an officer has communicated his suspicions with the officer
conducting the search, even when the officers are working closely together at a scene.” United
States v. Hussain, 835 F.3d 307, 316 n.8 (2d Cir. 2016); see also, e.g., United States v. Massenburg,
654 F.3d 480, 495 (4th Cir. 2011) (“Where officers working closely together have not
communicated pertinent information, the acting officer weighs the costs and benefits of performing
the search in total ignorance of the existence of that information—it is not known to her, so it
cannot enter into the calculus.” (emphasis in original)); United States v. Edwards, 885 F.2d 377,
382 (7th Cir. 1989) (“A supervising officer’s knowledge about a defendant cannot be relied upon
to provide probable cause for his arrest where there is no evidence that such knowledge was
communicated to the agents on the scene who actually made or ordered the defendant’s arrest.”);
see generally 3 Wayne R. LaFave, Search & Seizure § 3.5(c) (5th ed.). In this case, while TLC
radio room operators may have had access to information concerning the disposition of summonses
against Calvo or Macon, there is no evidence that any operator conveyed this information to the
inspectors who seized their vehicles. Accordingly, the collective knowledge doctrine provides no
basis for inferring that the inspectors who seized vehicles belonging to Calvo or Macon had
knowledge that they had been convicted or found liable for any prior violations of § 19–506(b)(1).
See Hussain, 835 F.3d at 316 n.8; see also, e.g., United States v. Colon, 250 F.3d 130, 137 (2d Cir.
2001) (finding that a 911 operator’s knowledge could not be imputed to dispatching or arresting
officers in determining whether the officers had reasonable suspicion to conduct a search, where
the operator did not convey this knowledge to the officers); Jackson v. Tellado, 236 F. Supp. 3d
636, 660–61 (E.D.N.Y. 2017) (concluding that, under Hussain, the collective knowledge doctrine
was inapplicable, where arresting officers’ knowledge about a plaintiff’s arguable crimes “was not

26

communicated” to two other officers accused of false arrest); United States v. Peterson, No. 12CR-409 (PAE), 2012 WL 4473298, at *8 (S.D.N.Y. Sept. 28, 2012) (finding that information
provided to 911 operator could not be imputed to arresting officers, where the operator did not
communicate this information to the officers, as “only the information conveyed to [the officers]
counts for purposes of determining reasonable suspicion”), aff’d, 559 F. App’x 92 (2d Cir. 2014)
(summary order); Hickey v. City of New York, No. 01-CV-6506 (GEL), 2004 WL 2724079, at *8
(S.D.N.Y. Nov. 29, 2004) (“[T]he evaluation of probable cause must depend solely on the
information relayed by the operators and dispatcher to the arresting officers themselves.”).
Because Plaintiffs bring this action against a municipality, they must show not only a
violation of their constitutional rights but also “the existence of a municipal policy or practice that
caused the alleged constitutional violation” to prevail. Mitchell v. City of New York, 841 F.3d 72,
80 (2d Cir. 2016) (citing Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 694–95
(1978)). Plaintiffs have satisfied this burden. The TLC’s Deputy Chief of Enforcement, Edwin
Mulero, testified at his deposition that the inspectors “don’t look” at “whether or not [a] vehicle or
[a] driver has been cited for a violation of Section 19–506” when seizing vehicles. St. Laurent
Decl. Ex. 3 at 77:6–13. Though Mulero acknowledged that inspectors could call a “900 number”
to determine “whether that vehicle has been seized before,” he unequivocally stated that this
information “does not play into any decision if that vehicle’s going to be seized or not.” Id. at
77:16–20. The City has provided no contrary evidence of its policy: the undisputed evidence
shows that TLC inspectors do not have probable cause to believe a vehicle is subject to forfeiture
under § 19–506(h)(2) when they seize vehicles for suspected violations of § 19–506(b)(1).
Accordingly, Plaintiffs are entitled to summary judgment against the City on their Fourth
Amendment claim.

27

C. Due Process
Plaintiffs next claim that the City’s procedure for seizing vehicles subject to forfeiture
pursuant to § 19–506(h)(2) violates the Due Process Clause of the Fourteenth Amendment. The
Court disagrees.
The Fourteenth Amendment provides that “No state shall . . . deprive any person
of . . . property, without due process of law.” U.S. Const. amend. XIV. “In a § 1983 suit brought
to enforce procedural due process rights, a court must determine (1) whether a property interest is
implicated, and, if it is, (2) what process is due before the plaintiff may be deprived of that interest.”
Nnebe v. Daus, 644 F.3d 147, 158 (2d Cir. 2011).22 “The appropriate process depends on the
balancing of three factors: (1) ‘the private interest that will be affected by the official action;’ (2)
‘the risk of erroneous deprivation of such interest through the procedures used;’ and (3) ‘the
Government’s interest, including the function involved and the fiscal and administrative burdens
that the additional or substitute procedural requirement would entail.’” Panzella v. Sposato, 863
F.3d 210, 218 (2d Cir. 2017) (quoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976)).
In this case, Plaintiffs argue that the City denied them due process by failing to conduct a
hearing prior to seizing their vehicles. See Pls. Mem. at 17–19. Plaintiffs are correct that “‘the
root requirement’ of the Due Process Clause” is “‘that an individual be given an opportunity for a
hearing before he is deprived of any significant property interest.’” Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 542 (1985) (emphasis in original) (quoting Boddie v. Connecticut, 401
U.S. 371, 379 (1971)). While “[t]he ‘general rule’ is that a pre-deprivation hearing is required,”
however, “the Mathews inquiry ‘provides guidance in determining whether to tolerate an exception
to the rule requiring pre-deprivation notice and hearing.’” Nnebe, 644 F.3d at 158 (citation and

22

The parties do not dispute that a property interest is implicated in this case.

28

some internal quotation marks omitted) (quoting Krimstock v. Kelly, 306 F.3d 40, 60 (2d Cir.
2002)). Thus, “[d]ue process does not, in all cases, require a hearing before the state interferes
with a protected interest, so long as ‘some form of hearing is provided before an individual is
finally deprived of the property interest.’” Id. (alterations omitted) (emphasis in original) (quoting
Brody v. Vill. of Port Chester, 434 F.3d 121, 134 (2d Cir. 2005)); see also Giglio v. Dunn, 732
F.2d 1133, 1135 (2d Cir. 1984) (“Where a pre-deprivation hearing is impractical and a postdeprivation hearing is meaningful, the State satisfies its constitutional obligations by providing the
latter.”).
In a series of cases beginning with Krimstock v. Kelly, 306 F.3d 40 (2d Cir. 2002)
(Krimstock I), the Second Circuit has addressed the requirements of procedural due process when
the government seizes vehicles and retains possession of them pursuant to civil forfeiture statutes.
In Krimstock I, the Second Circuit considered the constitutionality of a civil forfeiture statute,
pursuant to which the City of New York seized the vehicles of individuals “accused of driving
while intoxicated or of committing other crimes for which a motor vehicle could be considered an
instrumentality” and retained them for “months or sometimes years,” without a hearing before a
neutral fact-finder, pending the “ultimate resolution of the forfeiture action in court.” Id. at 43, 48.
Applying Matthews v. Eldridge, the Second Circuit balanced the individual’s interest in possessing
her vehicle against the government’s interest in “prevent[ing] a vehicle from being sold or
destroyed before a court can render judgment in future forfeiture proceedings.” Krimstock I, 306
F.3d at 64. The Second Circuit held that the forfeiture law was “constitutionally infirm” because
it did not afford vehicle owners a “prompt post-seizure hearing to test probable cause for the
vehicle’s seizure.” Id. at 45, 48. While the Second Circuit left the task of determining what this
hearing should entail to “the district court, in consultation with the parties,” it noted that “the

29

hearing must enable claimants to test the probable validity of continued deprivation of their
vehicles, including the City’s probable cause for the initial warrantless seizure,” and that “the
retention hearing [should] allow the [neutral magistrate] to consider whether less drastic measures
than continued impoundment, such as a bond or a restraining order, would protect the City’s
interest in the allegedly forfeitable vehicle.” Id. at 69–70.
On remand, the district court fashioned the standard for what is now known as a “Krimstock
hearing.” See Krimstock v. Kelly, 506 F. Supp. 2d 249, 251 (S.D.N.Y. 2007) (Krimstock III). The
district court determined that, at a post-seizure hearing, a municipality must prove, by a
preponderance of the evidence, that “a) probable cause existed for the arrest of the vehicle’s
operator, b) it is likely the City would prevail in an action to forfeit the vehicle, and c) it is
necessary that the vehicle remain impounded in order to ensure its availability in the eventual civil
forfeiture action.” Id. at 252. The Second Circuit affirmed these procedures, which the City did
not challenge on appeal. See Jones v. Kelly, 378 F.3d 198, 204 (2d Cir. 2004). So too did the New
York Court of Appeals, which has adopted essentially the same analytical framework. See County
of Nassau v. Canavan, 1 N.Y.3d 134, 144–45 (N.Y. 2003) (holding that, when retaining a vehicle,
a municipality must “establish that probable cause existed for the defendant’s initial warrantless
arrest, that it is likely to succeed on the merits of the forfeiture action, and that retention is
necessary to preserve the vehicle from destruction or sale during the pendency of the proceeding”).
Since these decisions, courts within the Second Circuit have routinely looked to Krimstock III as
the standard for evaluating procedural due process claims asserted by individuals whose vehicles
are seized as instrumentalities of crime and retained by the government pending forfeiture
proceedings. See, e.g., Reyes v. County of Suffolk, 995 F. Supp. 2d 215, 224–26 (E.D.N.Y. 2014);

30

Fasciana v. County of Suffolk, 996 F. Supp. 2d 174, 181–82 (E.D.N.Y. 2014); Ferrari v. County
of Suffolk, 790 F. Supp. 2d 34, 39 (E.D.N.Y.2011).23
In the context of vehicles seized pursuant to the forfeiture provision of § 19–506(h)(2), the
City’s post-seizure procedure satisfies due process. Although the City did not provide hearings
before seizing vehicles allegedly subject to forfeiture under § 19-506(h)(2), its procedures provide
a “prompt post-seizure hearing to test probable cause for the vehicle’s seizure.” Krimstock I, 306
F.3d at 45. In particular, the City’s rules provide that a hearing must be conducted “within five
business days following a seizure.” 35 R.C.N.Y. § 68–17(c)(1). At this hearing, each of the three
Krimstock factors must be decided. Id. First, the Taxi and Limousine Tribunal must determine
whether “probable cause existed for the arrest of the vehicle’s operator,” Krimstock III, 506 F.
Supp. 2d at 252, as the City’s rules require a determination as to “[w]hether the Owner engaged in
the Unlicensed Activity alleged in the summons,” 35 R.C.N.Y. § 68–17(c)(1)(A). Second, the
tribunal must determine whether the City is “likely to succeed on the merits of the forfeiture
action,” Krimstock III, 506 F. Supp. 2d at 252, as the City’s rules require the tribunal to determine
whether the statutory requirements for forfeiture—that is, “[w]hether the owner has two or more
violations of §§ 19–506(b), (c), or (k) . . . in the previous 36 months”—have been satisfied, 35
R.C.N.Y. § 68–17(c)(1)(B)(i). Finally, the tribunal must decide whether “it is necessary that the
vehicle remain impounded in order to ensure its availability in the eventual civil forfeiture action.”
Krimstock III, 506 F. Supp. 2d at 252; see 35 R.C.N.Y. § 68–17(c)(1)(B)(ii). Plaintiffs do not

23

In Ferrari v. County. of Suffolk, 845 F.3d 46 (2d Cir. 2016), the Second Circuit held that, at a
hearing following the seizure of a vehicle as an instrumentality of crime, the government may “after making
out a prima facia case that retention is necessary to protect [its] interests in the financial value of the vehicle
and/or in protecting the public from continued unsafe and illegal driving . . . shift the burden of going
forward to the title owner to identify an alternative measure that would satisfy the [government’s] interests.”
Id. at 48. While Ferrari clarified the allocation of burdens in post-seizure hearings, it did not change the
three substantive elements of the Krimstock analysis.

31

argue that the City’s procedures for conducting post-seizure hearings fail, in any way, to satisfy
Krimstock’s requirements for procedural due process.24 Nor is there any evidence that the City
has meaningfully departed from its own rules in seizing and retaining any vehicles in this case.
Accordingly, by providing for prompt post-seizure hearings at which the probable cause for the
vehicles seizures allegedly subject to forfeiture may be tested, the City has provided Calvo and
Macon due process.
Moreover, the City further ameliorates any further due process concerns with its retention
of vehicles pending forfeiture proceedings by permitting vehicle owners to post bonds and retrieve
their vehicles almost immediately after they are seized. On June 4, 2014, for example, Susan
Calvo posted a bond and retrieved her vehicle in a matter of hours after it was seized. See Def.
56.1 ¶ 48; Pl. 56.1 ¶ 32. While the Court recognizes that posting a bond may impose a substantial
financial burden on vehicle owners, the City’s procedure of making bonds available—and
returning vehicles to their owners—well in advance of its post-seizure hearings provides a form of
protection that the Second Circuit has long recognized as an important safeguard in any forfeiture
scheme. See, e.g., Krimstock I, 306 F.3d at 70 (explaining that a post-seizure hearing should “allow
the [neutral magistrate] to consider whether less drastic measures than continued impoundment,
such as a bond or a restraining order, would protect the City’s interest in the allegedly forfeitable
vehicle”); see also United States v. All Assets of Statewide Auto Parts, Inc., 971 F.2d 896, 905 (2d
Cir. 1992) (noting that, in the context of civil forfeiture statutes, courts “whenever possible should
favor less drastic measures, such as . . . bonds”). Accordingly, the City’s undisputed practice of

24

The Court notes, however, that the City’s rules do not explicitly provide that the City, and not
the vehicle owner, bears the burden of proving the first two Krimstock factors by a preponderance of the
evidence. Rather, the rules simply state that a “determination will be made” regarding each factor. 35
R.C.N.Y. § 68–17(c)(1). The Court need not address whether the absence of an explicit assignment of
burdens under the City’s rules renders its procedures constitutionally deficient, however, as Plaintiffs make
no such argument in this case.

32

permitting vehicle owners to retrieve their vehicles by posting bond before a post-seizure hearing
reinforces the Court’s conclusion that the City’s procedures comply with due process.
Plaintiffs argue that the City’s procedures for seizing their vehicles nonetheless violate due
process because the City does not, as a practical matter, pursue forfeiture against vehicle owners
pursuant to § 19–506(h)(2). Plaintiffs are correct that, during the proposed class period in this
case, the City did not bring any forfeiture proceedings under § 19–506(h)(2). See St. Laurent Decl.
Ex. 4.25 In Plaintiffs’ view, this fact is relevant because it suggests that the City does not, as the
government did in Krimstock, have any interest in “prevent[ing] a vehicle from being sold or
destroyed before a court can render judgment in future forfeiture proceedings.” Krimstock, 306
F.3d at 64. The Court disagrees. By providing that the vehicles belonging to certain repeat
offenders are “subject to forfeiture,” N.Y.C. Admin. Code § 19–506(h)(2), the law explicitly grants
the City an interest in forfeitable vehicles. The City does not lose this legal interest simply by
deciding not to exercise its forfeiture authority—a decision that may benefit many vehicle owners.
Although it has not sought forfeiture in the past, the City nonetheless has a legal interest in
forfeitable vehicles that may, under certain circumstances, justify its failure to provide a hearing
before seizing them.
The Court recognizes Plaintiffs’ practical concern that the City could, by invoking its
forfeiture authority, retain possession of vehicles pending forfeiture proceedings that may never
occur. The City’s post-seizure procedure, however, is tailored to address precisely this concern.
At the post-seizure hearing, the tribunal must determine “[w]hether it is necessary that the vehicle
remain impounded pending a judgment of forfeiture.” 35 R.C.N.Y. § 68–17(c)(1)(B)(ii). If the
City does not intend to seek forfeiture, as Plaintiffs argue, it will surely fail to show that continued

25

After this action was filed, the City has brought at least one forfeiture action against a non-party
defendant. See Compl., City of New York v. Harris, No. 451060/2017 (N.Y. Sup. Ct. Apr. 24, 2017).

33

retention is “necessary,” and the City would be required to release the vehicle under its own rules.
This procedure adequately balances the City’s interest in enforcing the forfeiture provisions of
City law—if only in the rare case—and the vehicle owner’s interest in retaining possession of her
vehicle. Thus, even if it is unlikely that the City will ultimately forfeit the vehicles it seizes under
§ 19–506(h)(2), its procedures for ensuring that it does not retain vehicles longer than
“necessary . . . pending a judgment of forfeiture” adequately protect vehicle owners’ procedural
due process rights. 35 R.C.N.Y. § 68–17(c)(1)(B)(ii).
In sum, the Court concludes that the City’s procedure for seizing and retaining vehicles
allegedly subject to forfeiture pursuant to § 19–506(h)(2) does not violate the Due Process Clause.

34