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This entry was published on 2017-10-20
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SECTION 1848
Forfeiture action with respect to motor fuel and diesel motor fuel and vehicle carrying such fuel
Tax (TAX) CHAPTER 60, ARTICLE 37, PART 6
§ 1848. Forfeiture action with respect to motor fuel and diesel motor
fuel and vehicle carrying such fuel.

(a) Temporary seizure. Whenever a police officer designated in section
1.20 of the criminal procedure law or a peace officer designated in
subdivision four of section 2.10 of such law, acting pursuant to his
special duties, shall discover any motor fuel or diesel motor fuel which
is being imported for use, distribution, storage or sale in the state
where the person importing or causing such motor fuel or diesel motor
fuel to be imported is not registered as a distributor under section two
hundred eighty-three or section two hundred eighty-two-a, of this
chapter, as the case may be, such police officer or peace officer is
hereby authorized to seize and take possession of such motor fuel or
diesel motor fuel, together with the vehicle or other means of
transportation used to transport such motor fuel.

(b) Retention of property. The department shall hold and safely keep
such motor fuel, diesel motor fuel, vehicle or other means of
transportation seized pursuant to subdivision (a) of this section.
Seized motor fuel or diesel motor fuel may be deposited to the credit of
the department at a terminal or other storage facility within the state
or may be sold by the department on the open market.

(c) Confirmation of temporary seizure. Within five business days after
the temporary seizure of motor fuel, diesel motor fuel, vehicle or other
means of transportation pursuant to subdivision (a) of this section, the
department shall move in supreme court in any county, on such notice as
the court shall direct to the owners of the property, to confirm the
temporary seizure. If the department fails to make such motion within
the required period, such seized property shall be restored to the
owners thereof as provided in subdivision (e) of this section. On a
motion for an order confirming the seizure, the department shall show,
by affidavit and such other written evidence as may be submitted, that
there is a cause of action for forfeiture under subdivision (d) of this
section and that there are grounds for confirmation of the seizure. The
department shall include, in its motion papers, an inventory of all
seized property. The court shall grant an application for an order
confirming the seizure when it determines that there is a substantial
probability that the department will prevail on the issue of forfeiture.

(d) Forfeiture action. (1) A forfeiture action shall be commenced
within forty-five days from the date of the seizure. Such action shall
be commenced by service of a summons with notice or summons and
complaint in accordance with the methods authorized by the civil
practice law and rules or the business corporation law with respect to
personal service of a summons. Upon such terms as may be just and upon
good cause shown the court may extend the time, not exceeding thirty
days, within which the summons must be served, provided that the
application for extensions made before the expiration of the time fixed.
If the department fails to commence the forfeiture action within the
required period, such seized property shall be restored to the owners
thereof as provided in subdivision (e) of this section.

(2) A forfeiture action under this subdivision shall be commenced in
supreme court. The proper venue for trial of an action for forfeiture is
the county in which the temporary seizure authorized by subdivision (a)
of this section occurred.

(3) Forfeiture of motor fuel or diesel motor fuel together with the
vehicle or other means of transportation used to transport such motor
fuel or diesel motor fuel shall be adjudged where the department proves,
by clear and convincing evidence, that the person importing or causing
such motor fuel or diesel motor fuel to be imported was not registered
as a distributor under section two hundred eighty-three or section two
hundred eighty-two-a of this chapter, as the case may be. All defendants
in a forfeiture action brought pursuant to this article shall have the
right to trial by jury on any issue of fact.

(4) The court in which a forfeiture action is pending may dismiss said
action in the interests of justice upon an application as provided for
herein.

(A) At any time during the pendency of a forfeiture action, the
department of taxation and finance or a defendant may apply for an order
dismissing the complaint and terminating the forfeiture action in the
interest of justice.

(B) Such application for the relief provided in subparagraph (A)
hereof must be made in writing and upon notice to all parties. The court
may, in its discretion, direct that notice be given to any other person
having an interest in the property.

(C) An application for the relief provided for in subparagraph (A)
hereof must be brought exclusively in the supreme court in the county in
which the forfeiture action is pending.

(D) The court may grant the relief provided in subparagraph (A) of
this paragraph if it finds that such relief is warranted by the
existence of some compelling factor, consideration or circumstance
demonstrating that forfeiture of the property or any part thereof, would
not serve the ends of justice. Reporting and payment of the tax imposed
pursuant to article twelve-A or article twenty-eight of this chapter
with respect to such motor fuel or diesel motor fuel subsequent to the
seizure of such fuel shall not constitute a compelling factor,
consideration or circumstance warranting the granting of the relief
provided for in subparagraph (A) of this paragraph. In determining
whether such relief is warranted by the existence of some compelling
factor, consideration or circumstances pursuant to this paragraph, the
court may, however, take into account the fact that such taxes with
respect to the seized fuel have been reported and remitted to the state
prior to the temporary seizure of such fuel if the unregistered
importation into the state was effected in good faith and without
knowledge of the requirement of registration and without intent to evade
tax. The court must issue a written decision, stating the basis for an
order issued pursuant to this paragraph.

(5) An action under this subdivision shall be stayed during the
pendency of a criminal action which is related to it; provided, that
upon motion of a defendant in the forfeiture action or the department of
taxation and finance, a court may, in the interest of justice and for
good cause, and with the consent of all parties, order that the
forfeiture action proceed despite the pending criminal action; and
provided that such stay shall not prevent the granting or continuance of
an order confirming the seizure provided under this section.

(6) The total that may be recovered shall not exceed the value of the
motor fuel or diesel motor fuel seized and, in addition, either the
value of the vehicle or other means of transportation used to transport
such fuel or three times the amount of the tax and penalty under
articles twelve-A, thirteen-A and twenty-eight and pursuant to the
authority of article twenty-nine of this chapter with respect to the
motor fuel or diesel motor fuel, whichever is less.

(e) Return of property. If (1) the department fails to move for
confirmation of the seizure pursuant to subdivision (c) of this section
or (2) a court denies an application for an order confirming the seizure
or (3) judgment is entered against the department in the forfeiture
action and that judgment is affirmed after all appeals are exhausted,
then the department shall restore such seized motor fuel or diesel motor
fuel, or motor fuel or diesel motor fuel of a like quantity and type, or
such seized vehicle or other means of transportation to the owners
thereof. Alternatively, if such seized motor fuel or diesel motor fuel
has been sold as provided in subdivision (b) of this section, the
department shall pay to the owners of such motor fuel or diesel motor
fuel the proceeds of such sale or, if greater, an amount of money
representing the fair market value of the motor fuel or diesel motor
fuel at the time of the seizure.

(f) Release of property. A person whose property has been seized may
move, upon notice to the department of taxation and finance, in the
supreme court in any county, provided that if the department shall have
moved to confirm the temporary seizure of such property, in the supreme
court of such county for an order releasing all or part of the property
seized upon payment of the department's fees and expenses, if any. On
such a motion, the defendant shall give an undertaking in accordance
with article twenty-five of the civil practice law and rules, in an
amount equal to the value of the property sought to be released, that he
will pay the department the value of such property which may be adjudged
forfeited (but in the case of the owner of a vehicle or other means of
transportation, the amount of the undertaking required shall not exceed
three times the amount of all taxes and penalties due under articles
twelve-A, thirteen-A and twenty-eight and pursuant to the authority of
article twenty-nine of this chapter).

(g) Disposal of property. The department, after a judicial
determination of forfeiture, shall, in its discretion, either retain
such seized property for its official use or sell such forfeited
property at public sale. The net proceeds of any such sale, or of any
sale of seized motor fuel or diesel motor fuel as provided in
subdivision (b) of this section, after deduction of the lawful expenses
incurred, shall be deposited and disposed of pursuant to the provisions
of section one hundred seventy-one-a of this chapter with respect to
deposit and disposition of revenue.

(h) Wrongful seizure. A defendant in a forfeiture action may recover
in an action for wrongful seizure all costs and damages, including
reasonable attorneys' fees, which may be sustained by reason of the
seizure if the defendant recovers judgment in the forfeiture action, or
if it is finally decided that there was no justification for the
seizure. In order to establish a claim for wrongful seizure, the
defendant must establish by a preponderance of the evidence that the
seizure was made without reasonable cause and not in good faith. An
action for wrongful seizure under this subdivision shall be the
defendant's exclusive remedy in connection with seizures made under this
section. No suit or action for wrongful seizure under this section shall
be instituted unless such suit or action is commenced within two years
after the time when the property was seized.

(i) The remedies provided to the department of taxation and finance by
this section shall be in addition to any other remedies provided by law.

(j) An action under this section is civil and remedial and shall not
be deemed to be a penalty or criminal forfeiture for any purpose. Except
as otherwise provided by statute, the proceedings under this section
shall be governed by the civil practice law and rules. An action under
this section is not a criminal proceeding and shall not be deemed to be
a previous prosecution under article forty of the criminal procedure
law.