Case 1:16-cv-00156-DLC Document 1 Filed 01/08/16 Page 1 of 13

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

VICTOR ENCARNACION and THE BRONX DEFENDERS
Plaintiffs, – against – CITY OF NEW YORK
Defendant.

COMPLAINT 16 CV 156
JURY TRIAL DEMANDED

PRELIMINARY STATEMENT 1. It is axiomatic that the government may not seize property without due process of law. Yet the City of New York (the “City”), operating through and in conjunction with the New York City Police Department (“NYPD”), has a policy, pattern, and practice of unconstitutionally retaining cash and other personal property long after any legal basis to do so has expired. Each year thousands of New Yorkers lose their cash, phones, and other personal property because of the City’s unlawful policy and practice. 2. When someone is arrested, the NYPD routinely seizes their personal property and records it in a computerized invoicing system that tracks and categorizes it. Property that the NYPD presumes may be relevant to the underlying arrest—including non-contraband personal property like cell phones and cash—is categorized as “Arrest Evidence.” The NYPD requires that a person seeking to retrieve such personal property must first obtain a release from the District Attorney’s Office (“DA Release”). In theory, the purpose of the DA Release is to ensure that the prosecutor has an opportunity to determine whether the property is needed as evidence in the criminal case.

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3. Once the criminal case is terminated, however, and the time to appeal has lapsed, the District Attorney’s presumptive interest in Arrest Evidence dissolves. Where no trial or appeal could possibly occur, the personal property can no longer be putative evidence. Although the United States Constitution mandates that the government demonstrate a new legal basis to retain property once all criminal proceedings related to the property have terminated, the NYPD continues to retain property and refuses to release it until claimants obtain a DA Release—even where all charges have been dismissed and sealed.
4. Obtaining a DA Release is no easy task, especially because after a case is terminated there is no longer a prosecuting attorney assigned to it. In the Bronx, the District Attorney’s Office frequently fails to respond to requests for DA Releases after the termination or dismissal of criminal proceedings, even in response to a formal demand. When claimants inform the NYPD that a request for a DA Release has been ignored, the City fails to provide an alternate recourse or assistance.
5. Victor Encarnacion is one of the many people whose rights are being violated by the City’s unlawful policy and practice. He was arrested in November 2014 and his case was dismissed in May 2015. When he was arrested, the NYPD seized his Apple iPhone and $1,399 in wages that he was carrying from his employer. Although his case was dismissed, all records pertaining to his case were sealed, the time for the District Attorney to appeal lapsed, and although he has made multiple demands for his property, the NYPD still refuses to return his property.
6. Mr. Encarnacion was represented in his criminal case by The Bronx Defenders, a not-for-profit organization that provides criminal defense and civil legal services to low-income people in the Bronx. Advocates and attorneys at The Bronx Defenders assist hundreds of clients
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every year who are attempting to retrieve property seized pursuant to an arrest. The Bronx Defenders expends considerable resources attempting to obtain releases from the District Attorney and property from the NYPD for clients like Mr. Encarnacion whose property is being unlawfully held by the NYPD.
7. When a case is terminated, the time for appeal has lapsed, and the government has not established a new legal basis to retain property, the NYPD must return requested noncontraband Arrest Evidence to claimants, regardless of whether they seek or can obtain a DA Release. Mr. Encarnacion and The Bronx Defenders (collectively “Plaintiffs”) bring this civil rights lawsuit to remedy the continuing violation of their rights secured by 42 U.S.C. § 1983; the Fourth and Fourteenth Amendments to the United States Constitution; and the laws of the State of New York.
PARTIES 8. Plaintiff VICTOR ENCARNACION is a resident of Bronx County, New York. 9. Plaintiff THE BRONX DEFENDERS (“BXD”) is a 501(c)(3) not-for-profit organization that provides free legal services to tens of thousands of New Yorkers every year on a wide range of matters, from defending the accused in criminal cases to vindicating property owner’s rights in civil forfeiture cases to representing parents accused of abuse and neglect. BXD is duly incorporated in New York State and has its principal place of business in New York City. 10. Defendant CITY OF NEW YORK (the “City”) is a municipal corporation duly incorporated in New York State. The City of New York has established, maintains, and operates the NYPD as a constituent department or agency. Pursuant to local law, the Property Clerk Division of the NYPD (“NYPD Property Clerk”) is responsible for accepting, vouchering,
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safeguarding, storing, producing as required by court, returning to legal owner, or otherwise lawfully disposing of all property coming into custody of the NYPD.
JURISDICTION AND VENUE 11. This action is authorized by 42 U.S.C. § 1983. Subject matter jurisdiction is conferred on this Court by 28 U.S.C. §§ 1331, 1343(a)(3), and 1343(a)(4) because this action seeks redress for violations of Plaintiffs’ rights under the United States Constitution. 12. Pursuant to 28 U.S.C. §§ 2201 and 2202, this Court has jurisdiction to declare the rights of the parties and to grant all further relief deemed necessary and proper. 13. This Court has supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367(a) because they are so related to the claims within the original jurisdiction of this Court that they form part of the same case or controversy. 14. Venue is proper in the United States District Court for the Southern District of New York, pursuant to 28 U.S.C. § 1391(b), because a substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred in the Counties of the Bronx and New York.
FACTUAL BACKGROUND I. The City’s Property Retention Policy
15. Every year the NYPD makes over three hundred thousand arrests. In the vast majority of these cases, the arresting officers seize some form of property from the person arrested. This property is recorded in the Property and Evidence Tracking System (“PETS”) by an NYPD officer, who also designates the property as one or more categories; for instance, held for safekeeping during the booking and arraignment process, necessary as Arrest Evidence, or subject to an additional civil or criminal forfeiture process (“Forfeiture”).
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16. The authority to retain property after arrest as evidence in a criminal investigation or proceeding is vested in the NYPD Property Clerk by local law in the New York City Administrative Code (“Admin. Code”) § 14-140.
17. The City’s policy concerning the return of property seized pursuant to an arrest is set forth in the Rules of the City of New York (“RCNY”). See 38 RCNY 12-31, et seq.
18. The NYPD broadly exercises its discretion to hold non-contraband property as Arrest Evidence where it perceives any “relation to the matter for which the person has been arrested.” 38 RCNY § 12-3. In drug-related arrests, for example, the NYPD routinely designates seized U.S. currency as Arrest Evidence.
19. The City’s policy requires the NYPD to return Arrest Evidence to the claimant after timely demand, if the claimant presents proper identification, a property voucher created through the PETS system, and a DA Release. 38 RCNY § 12-35(b).
20. Pursuant to City regulations, a District Attorney is only permitted to retain Arrest Evidence after the termination of criminal proceedings if they establish that the property is still needed as evidence for: (a) a pending appeal; (b) a collateral attack or notice that a collateral attack will be commenced; (c) another specifically identified criminal proceeding; or (d) an ongoing identifiable criminal investigation. 38 RCNY § 12-34(d).
21. If the City seeks to retain Arrest Evidence for some reason other than the above, it must initiate a forfeiture action in court and prove that the claimant’s right to the property is superseded or nonexistent. 38 RCNY § 12-36.
22. The City does not require the District Attorney to take any affirmative steps or bear any burden to indicate their intention to retain personal property as Arrest Evidence after the criminal case related to the property is terminated. If the claimant is unable to secure a DA
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Release within 270 days of submitting a request to the NYPD Property Clerk for the return of Arrest Evidence after the termination of a criminal case, the City’s policy maintains that the NYPD “may dispose of the property according to law.” 38 RCNY § 12-35(d). Thus, if the District Attorney fails to respond to a request for a DA Release or refuses to produce one within 270 days after the claimant’s demand to the NYPD, the claimant will never get his or her personal property back. The City maintains this policy even where the case has been dismissed and thus “deemed a nullity,” N.Y. Crim. Proc. Law § 160.60, and regardless of whether the District Attorney or the NYPD has asserted any legal basis to retain the property. II. Facts Regarding Victor Encarnacion
23. In November 2014, Mr. Encarnacion was working for GT Plumbing & Heating Inc., and was paid his wages in cash.
24. On or about November 7, 2014, Mr. Encarnacion was arrested by the NYPD. 25. The Bronx Defenders was appointed by the court to represent Mr. Encarnacion. 26. At the time of his arrest, Mr. Encarnacion was carrying $1,399 in U.S. currency that he had received from his plumbing job (the “Cash”) and his Apple iPhone (the “Phone”). 27. The NYPD seized Mr. Encarnacion’s Cash and his Phone (collectively the “Property”). 28. The Property was subsequently recorded by the NYPD into the PETS system, and the NYPD provided Mr. Encarnacion with NYPD Property Clerk Invoice Nos. 2000377584 and 2000377577. 29. The Property was categorized as Arrest Evidence.
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30. After five court appearances, including his arraignment, Mr. Encarnacion’s case was dismissed on May 12, 2015. Thirty days later, all records pertaining to the case were sealed pursuant to C.P.L. § 160.50.
31. After dismissal, the District Attorney had 30 days to serve a notice of appeal under C.P.L § 460.10. A notice of appeal was never served.
32. On May 12, 2015, the day Mr. Encarnacion’s criminal court case was dismissed, he made a pro se demand for return of his Property at the Bronx Division of the NYPD Property Clerk in the sub-basement of the Bronx County Criminal Court Building. The NYPD memorialized this demand on a form captioned “Property Clerk Division Acknowledgment of Demand.”
33. Also on May 12, 2015, Mr. Encarnacion, through his counsel The Bronx Defenders, made a written request to the District Attorney for a DA Release.
34. Employees from The Bronx Defenders repeatedly left voicemail messages for the assigned Assistant District Attorney requesting a DA Release for Mr. Encarnacion’s Property, including but not limited to on June 18, 2015.
35. The District Attorney’s office never responded and never provided a DA Release for the Property.
36. On July 6, 2015, Mr. Encarnacion, through his counsel The Bronx Defenders, made another demand on the NYPD for return of his Property via certified mail.
37. On July 17, 2015, The Bronx Defenders went to the NYPD Property Clerk on behalf of Mr. Encarnacion and were provided a letter dated July 10, 2015, acknowledging the prior demands (“Acknowledgment Letter”). In the Acknowledgment Letter, the NYPD also acknowledged the May 12, 2015 pro se demand.
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38. The Acknowledgement Letter stated that Mr. Encarnacion’s Phone would only be returned to him with a DA Release.
39. The Acknowledgement Letter stated that the Cash had been “re-categorized” as Forfeiture in addition to Arrest Evidence. According to the Acknowledgement Letter, if the NYPD decided against pursuing civil forfeiture, a DA Release would still be required for return of the Cash.
40. On September 3, 2015, Mr. Encarnacion and an employee from The Bronx Defenders went to the District Attorney’s Office in the Bronx County Criminal Court Building and requested a DA Release. The request was orally denied without any justification or additional information. They then went to the NYPD Property Clerk’s office and requested the Property. The request was denied because, the Property Clerk stated, they did not have a DA Release.
41. At no time did the NYPD dispute that the case against Mr. Encarnacion had terminated. At no time did the NYPD proffer that the District Attorney had affirmatively established that the Property still needed to be retained as evidence for any reason whatsoever. To the extent the NYPD intended to seek forfeiture of the Cash, that time has lapsed. Beginning with the formal demand on July 9, 2015, the NYPD had 25 days to file a civil forfeiture proceeding in a court with proper jurisdiction. The NYPD never filed any such action and therefore they are statutorily barred from doing so. 38 RCNY 12-36(a).
42. Even though the criminal charges against Mr. Encarnacion have been dismissed and sealed, the possibility of appeal is null, and the NYPD is barred from filing a forfeiture action, the NYPD refuses to return Mr. Encarnacion’s Property.
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43. As a result of the NYPD’s refusal to return his Property, Mr. Encarnacion has suffered and continues to suffer the loss of his Cash and Phone. Additionally, as a direct result of the NYPD’s actions, Mr. Encarnacion also incurred expenses terminating the installment contract for the Phone and replacing it with a new phone. For these injuries, Mr. Encarnacion seeks compensatory damages. III. Facts Regarding The Bronx Defenders
44. The Bronx Defenders often assists clients whose property was improperly retained pursuant to the City’s unlawful policy and practice. Considerable staff resources are tied up in navigating the many bureaucratic hurdles required to retrieve property.
45. On average, The Bronx Defenders handles over 500 matters a year relating to retrieving clients’ property seized pursuant to an arrest. Many of these clients are similarly situated to Mr. Encarnacion—their criminal cases are terminated and the NYPD refuses to return their property without a DA Release.
46. Employees of The Bronx Defenders must routinely expend resources to make telephone calls and write e-mails or letters to the District Attorney’s Office requesting DA Releases for clients whose cases have been terminated. They also routinely assist clients in making and following up on demands to the NYPD.
47. The Bronx Defenders also assists people who are not clients when their property is retained by the NYPD. In fact, the Bronx Division of the NYPD Property Clerk refers claimants almost daily to The Bronx Defenders for assistance when it refuses to return property.
48. The Bronx Defenders must expend considerable resources trying to extract property from the NYPD as a result of the City’s unlawful policy and practice of requiring a DA Release to retrieve property after a case is closed.
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FIRST CLAIM FOR RELIEF Violation of Due Process under the Fourteenth Amendment
(All Plaintiffs against the City) 49. Plaintiffs hereby reallege and incorporate by reference paragraphs 1 through 48, above. 50. By adopting, implementing, and enforcing a policy and practice of refusing to return Arrest Evidence without a DA Release when the criminal proceeding related to the property is terminated, the City intentionally and under color of state law has denied Plaintiffs their right to due process in violation of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983.
SECOND CLAIM FOR RELIEF Violation of the Fourth Amendment
(All Plaintiffs against the City) 51. Mr. Encarnacion hereby realleges and incorporates by reference paragraphs 1 through 50, above. 52. By adopting, implementing, and enforcing, a policy and practice of refusing to return seized Arrest Evidence without a DA Release or new legal predicate when the criminal proceeding related to the property is terminated, the City intentionally and under color of state law has denied Plaintiffs their rights in violation of the Fourth Amendment to the United States Constitution and 42 U.S.C. § 1983.
THIRD CLAIM FOR RELIEF Recovery of Chattels: Replevin (Plaintiff Encarnacion against the City) 53. Mr. Encarnacion hereby realleges and incorporates by reference paragraphs 1 through 52, above.
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54. The conduct of the City in failing to return Mr. Encarnacion’s Cash and Phone unless a DA Release is provided is without lawful justification, is in wrongful disregard of Mr. Encarnacion’s ownership and superior rights to possession, and constitutes an unlawful detention of his Cash and Phone.
FOURTH CLAIM FOR RELIEF Conversion
(Plaintiff Encarnacion against the City) 55. Mr. Encarnacion hereby realleges and incorporates by reference paragraphs 1 through 54, above. 56. The conduct of the City in failing to return Mr. Encarnacion’s Cash and Phone unless a DA Release is provided is without lawful justification, is in wrongful disregard of Mr. Encarnacion’s ownership and superior rights to possession, and constitutes an unlawful conversion of his Cash and Phone.
FIFTH CLAIM FOR RELIEF Breach of Bailment Contract
(Plaintiff Encarnacion against the City) 57. Mr. Encarnacion hereby realleges and incorporates by reference paragraphs 1 through 56, above. 58. Upon seizure of Mr. Encarnacion’s Cash and Phone at the time of his arrest, the City became the bailee of the same by operation of law. 59. The conduct of the City in refusing Mr. Encarnacion’s demand for return of his Cash and Phone, and subsequent failure to return the Cash and Phone unless a DA Release is provided, is without lawful justification and constitutes breach of a bailment contract.
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PRAYER FOR RELIEF WHEREFORE, Plaintiffs request that this Court:
1. Declare that Defendant’s policy and practice have violated Plaintiffs’ rights under the Fourth and Fourteenth Amendments to the United States Constitution;
2. Declare that Admin. Code § 14-140 and 38 RCNY § 12-31, et seq. are unconstitutional as applied;
3. Order all appropriate injunctive relief as warranted, including but not limited to: a. ordering Defendant to release Mr. Encarnacion’s Phone to him; and b. ordering the City to promulgate, enact, follow, and enforce new policies
that ensure the NYPD properly releases non-contraband Arrest Evidence to a claimant once there is no longer a criminal proceeding pending and the time to file an appeal has lapsed; 4. Award compensatory damages to Mr. Encarnacion in the amount of the monies that were seized from him at his arrest, the replacement costs for his Phone, and all applicable interest; 5. Award disbursements, costs, and attorneys’ fees pursuant to 42 U.S.C. § 1988; and 6. Such other and further relief that may be just and proper.
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Dated: January 8, 2016 Bronx, New York

Respectfully submitted,
THE BRONX DEFENDERS
By: __________________________
Mariana (Molly) Kovel (MK 3789) Adam N. Shoop (AS 2015) Johanna B. Steinberg (JS 6289) 360 East 161st Street Bronx, New York 10451 (718) 838-7878 mollyk@bronxdefenders.org adams@bronxdefenders.org johannas@bronxdefenders.org
Attorneys for Plaintiffs

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

VICTOR ENCARNACION, KALEB HAGOS, KENNETH CLAVASQUIN, and THE BRONX DEFENDERS, individually and on behalf of a class of all others similarly situated;
Plaintiffs,
– against –
CITY OF NEW YORK;
Defendant.

16 Civ. 156 (DLC) AMENDED COMPLAINT [CLASS ACTION] JURY TRIAL DEMANDED

PRELIMINARY STATEMENT 1. It is axiomatic that the government may not seize property without due process of law. Yet the City of New York (the “City”), operating through and in conjunction with the New York City Police Department (“NYPD”), has a policy, pattern, and practice of unconstitutionally retaining cash and other non-contraband personal property seized pursuant to an arrest (“Personal Property”) long after the criminal case is over.1 Each year, the City of New York takes cash and cell phones from thousands of New Yorkers—particularly those who can least afford it—in violation of their constitutional rights. 2. When someone is arrested, the NYPD routinely seizes their Personal Property and categorizes it. Property that the NYPD asserts may be relevant to the underlying arrest is categorized as “Arrest Evidence.” Seized property is also sometimes categorized as

1 For the purposes of this complaint, cases or prosecutions are “over” or “terminated” when: (a) the charges against the property owner have been dismissed by the court or the prosecutor, and the time to appeal has lapsed; or (b) the property owner has entered a plea of guilty and waived the right to trial. In essence, cases or prosecutions are over or terminated where there is no longer a possibility of a trial against the property owner, and therefore no longer a need for the Personal Property that was seized in the underlying criminal case.

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“Forfeiture.”2 In practice, both Arrest Evidence property and Forfeiture property are often Personal Property like cell phones and cash. The City requires all persons seeking to retrieve such property to first obtain a release from the District Attorney’s Office (“DA Release”). In theory, the purpose of the DA Release is to ensure that the prosecutor has an opportunity to determine whether the Personal Property is still needed by the government.
3. The Rules of the City of New York specify that the District Attorney’s Offices must respond in writing within 15 days to a demand for a DA Release. Under the City’s rules, if the District Attorney’s Office takes the position that a claimant’s Personal Property should not be released, it must set forth specific grounds justifying continued retention. In practice, however, this deadline is often disregarded. Notably, obtaining any response to a request for a DA Release after a case is terminated is especially frustrating because there is no longer a prosecuting attorney actively working on the matter. In the Bronx, the District Attorney’s Office frequently fails to respond to requests for DA Releases after the termination of criminal proceedings, even in response to a formal demand. As a consequence of this inaction, claimants seeking the return of their Personal Property are left in limbo without either a DA Release or any articulated basis for why a DA Release could justifiably be denied. When property owners inform the City that a request for a DA Release has been ignored, the City nonetheless refuses to return the property and fails to provide an alternate recourse or any assistance.
4. The City’s policy and practice of withholding Personal Property even where no justification for continued retention exists is unconstitutional. Once a criminal case is terminated, the District Attorney’s presumptive interest in Arrest Evidence dissolves. If the City wants to retain the Personal Property, due process requires a new legal basis for doing so.
2 In practice, the City rarely files an affirmative forfeiture case in state court even when cash is labeled “Forfeiture.”
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Similarly, for property originally categorized as Forfeiture at the time of arrest, once the criminal case is terminated, the City cannot continue to withhold property even when the District Attorney has failed to commence a forfeiture proceeding.
5. The individual plaintiffs in this action—Victor Encarnacion, Kaleb Hagos, and Kenneth Clavasquin (collectively, the “Individual Plaintiffs”)—have each been denied due process as a result of the City’s policy, pattern, and practice regarding the return of seized Personal Property. Even after the original justification for seizing their property had long since disappeared, the City refused to return their phones and cash to them despite making no new showing for why retention of this property was justified.
6. The Individual Plaintiffs are all represented in their efforts to obtain their Personal Property by The Bronx Defenders, a not-for-profit organization that provides criminal defense and civil legal services to low-income people in the Bronx. Advocates and attorneys at The Bronx Defenders assist hundreds of clients every year who are attempting to retrieve property seized pursuant to an arrest. The Bronx Defenders expends considerable resources attempting to obtain property from the City and releases from the District Attorney for clients whose property is being unlawfully held.
7. In short, current NYPD policy and practice places an unconstitutional burden on property claimants seeking to retrieve their belongings. Where a criminal case is terminated, and the government has not established a new legal basis to retain Personal Property that was seized pursuant to an arrest, the City must return such property to its owner, regardless of whether they seek or can obtain a DA Release. The Individual Plaintiffs and The Bronx Defenders (collectively, “Named Plaintiffs”), on behalf of themselves and a class of similarly situated individuals, bring this civil rights lawsuit to remedy the continuing violation of their
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rights secured by 42 U.S.C. § 1983, and the Fourth and Fourteenth Amendments to the United States Constitution.
PARTIES 8. Plaintiffs VICTOR ENCARNACION, KALEB HAGOS, and KENNETH CLAVASQUIN are all residents of Bronx County, New York. 9. Plaintiff THE BRONX DEFENDERS (“BXD”) is a 501(c)(3) not-for-profit organization that provides free legal services to tens of thousands of New Yorkers every year on a wide range of matters, from defending the accused in criminal cases to vindicating property owner’s rights in civil forfeiture cases to representing parents accused of abuse and neglect. BXD is duly incorporated in New York State and has its principal place of business in New York City. 10. Defendant CITY OF NEW YORK (the “City”) is a municipal corporation duly incorporated in New York State. The City of New York has established, maintains, and operates the NYPD as a constituent department or agency. Pursuant to local law, the Property Clerk Division of the NYPD (“NYPD Property Clerk”) is responsible for accepting, vouchering, safeguarding, storing, producing as required by court, returning to legal owner, or otherwise lawfully disposing of all property coming into custody of the NYPD.
JURISDICTION AND VENUE 11. This action is authorized by 42 U.S.C. § 1983. Subject matter jurisdiction is conferred on this Court by 28 U.S.C. §§ 1331, 1343(a)(3), and 1343(a)(4) because this action seeks redress for violations of Plaintiffs’ rights under the United States Constitution. 12. Pursuant to 28 U.S.C. §§ 2201 and 2202, this Court has jurisdiction to declare the rights of the parties and to grant all further relief deemed necessary and proper.
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13. Venue is proper in the United States District Court for the Southern District of New York, pursuant to 28 U.S.C. § 1391(b), because a substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred in the Counties of the Bronx and New York.
FACTUAL BACKGROUND I. The City’s Property Retention Policy and Practice
14. Every year the NYPD effectuates over three hundred thousand arrests. In the vast majority of these cases, the arresting officers seize some form of property from the person arrested. This property is recorded in the Property and Evidence Tracking System (“PETS”) by an NYPD officer, who also designates the property in one or more categories; for instance, held for safekeeping during the booking and arraignment process, necessary as Arrest Evidence, or subject to a potential future civil or criminal forfeiture process (“Forfeiture”).
15. The authority to retain property after arrest as evidence in a criminal investigation or proceeding is vested in the NYPD Property Clerk by local law in the New York City Administrative Code (“Admin. Code”) § 14-140.
16. The City’s regulations concerning the return of property seized pursuant to an arrest are set forth in the Rules of the City of New York (“RCNY”). See 38 RCNY 12-31, et seq.
17. The NYPD broadly exercises its discretion to designate Personal Property as Arrest Evidence where it perceives any “relation to the matter for which the person has been arrested.” 38 RCNY § 12-31. In drug-related arrests, for example, the NYPD routinely designates seized cell phones as Arrest Evidence.
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18. Where over $1000 is seized from any defendant who is charged with a drugrelated crime, the NYPD routinely designates such property as Forfeiture. Forfeiture property may also be, and frequently is, Arrest Evidence. See New York Police Department Patrol Guide § 218-38.
19. The City requires the NYPD to return Arrest Evidence to a property owner upon timely demand, if the property owner presents proper identification, a property voucher created through the PETS system, and a DA Release. 38 RCNY § 12-35(b). The City will not return Arrest Evidence without a DA Release, even when the property owner’s case is over and even when no showing has been made regarding a need for continued retention, no matter how much time has passed. The City similarly requires a DA Release for Forfeiture property, even when the property owner’s case is over and the District Attorney’s Office has not initiated a forfeiture proceeding.
20. Pursuant to City regulations, when a property owner requests a DA Release, the District Attorney’s Office must either issue the DA Release or provide a written denial within 15 days of the request. 38 RCNY § 12-34(c)(e). If the request is denied, the District Attorney must identify the basis for retaining the property. When a case is over, City regulations permit the District Attorney to deny a DA Release only where they can show in good faith that the property is still needed as evidence for: (a) a pending appeal; (b) a collateral attack or notice that a collateral attack will be commenced; (c) another specifically identified criminal proceeding; or (d) an ongoing identifiable criminal investigation. 38 RCNY § 12-34(d). A denial must be in writing with the grounds set forth, and a property owner can appeal the denial to a supervisor who must respond in writing within ten days of a request for a review. 38
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RCNY § 12-34(e). The intention to file a Forfeiture action against the property owner is not an enumerated reason to withhold the DA Release.
21. In practice, the 15-day deadline to respond to a request for a DA Release has been brazenly ignored. In the Bronx, there is no formal system to record a claimant’s demand for a DA Release. It can take weeks and often months for the District Attorney’s Office to respond to a request for a DA Release, even when a formal written demand has been served upon their office. In many cases, the district attorneys do not respond at all. In the Bronx, even when the District Attorney’s Office refuses to issue a DA Release in response to a claimant’s demand, the prosecutor virtually never does so in writing as required by the City regulations.
22. If the property owner is unable to secure a DA Release within 270 days of submitting a request to the NYPD Property Clerk for the return of Arrest Evidence after the termination of a criminal case, the City’s regulations maintain that the NYPD “may dispose of the property according to law.” 38 RCNY § 12-35(d). Thus, if the District Attorney fails to respond to a request for a DA Release or refuses to produce one within 270 days after the claimant’s demand to the NYPD, the property owner may never get his or her property back as the NYPD regulations allow “disposal” of the property.
23. Rather than offering recourse for property owners who have attempted to get a DA Release and have received either no response or an inadequate response, the City’s policy and practice compounds the issue. Citing 38 RCNY § 12-35, the NYPD Property Clerk insists that a District Attorney’s inaction in providing a DA Release is an absolute bar to the return of Arrest Evidence and property marked as Forfeiture, even where more than 15 days has elapsed since the claimant demanded a DA Release. The City maintains this policy and practice even
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where the case has been dismissed and thus “deemed a nullity.” N.Y. Crim. Proc. Law § 160.60.
24. Most people who attempt to retrieve property do not have a lawyer to assist them, making the process even more daunting. As a result, many people give up trying to obtain their property rather than attempting to navigate the system. II. The Individual Plaintiffs Victor Encarnacion
25. Victor Encarnacion is a 35-year-old man who lives in the Bronx. 26. On or about November 7, 2014, Mr. Encarnacion was arrested by the NYPD. 27. The Bronx Defenders was appointed to represent Mr. Encarnacion. 28. At the time of his arrest, Mr. Encarnacion was carrying his Apple iPhone. The NYPD seized Mr. Encarnacion’s phone and categorized it as Arrest Evidence. 29. His phone was subsequently recorded by the NYPD into the PETS system, and the NYPD provided Mr. Encarnacion with NYPD Property Clerk Invoice No. 2000377577. 30. After five court appearances, including his arraignment, Mr. Encarnacion’s case was dismissed on May 12, 2015. 31. The District Attorney did not appeal this dismissal within the 30 day deadline under C.P.L § 460.10. 32. On May 12, 2015, the day Mr. Encarnacion’s criminal court case was dismissed, he made a pro se demand for return of his property at the Bronx Division of the NYPD Property Clerk in the sub-basement of the Bronx County Criminal Court Building. The NYPD memorialized this demand on a form captioned “Property Clerk Division Acknowledgment of Demand.”
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33. Also on May 12, 2015, Mr. Encarnacion, through his counsel The Bronx Defenders, made a written request to the ADA for a DA Release.
34. Employees from The Bronx Defenders repeatedly left voicemail messages for the assigned ADA requesting a DA Release for Mr. Encarnacion’s property, including but not limited to on June 18, 2015.
35. On July 6, 2015, Mr. Encarnacion, through his counsel The Bronx Defenders, made another demand on the NYPD for return of his property via certified mail.
36. On July 17, 2015, The Bronx Defenders went to the NYPD Property Clerk on behalf of Mr. Encarnacion and were provided a letter dated July 10, 2015, acknowledging the prior demands (“Encarnacion Acknowledgment Letter”). In the Acknowledgment Letter, the NYPD also acknowledged the May 12, 2015 pro se demand.
37. The Encarnacion Acknowledgement Letter stated that Mr. Encarnacion’s phone would only be returned to him with a DA Release.
38. On September 3, 2015, Mr. Encarnacion and an employee from The Bronx Defenders went to the District Attorney’s Office in the Bronx County Criminal Court Building and requested a DA Release. The request was orally denied without any justification, additional information, or memorialization. They then went to the NYPD Property Clerk’s office and requested Mr. Encarnacion’s property. The request was denied because, the Property Clerk stated, Mr. Encarnacion did not have a DA Release.
39. Only after this action was filed did the District Attorney suddenly produce a DA Release, eight months after Mr. Encarnacion’s case was dismissed and notwithstanding repeated prior requests.
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40. Mr. Encarnacion retrieved his phone from the NYPD Property Clerk on or about March 28, 2016.
41. At no time did the City dispute that the case against Mr. Encarnacion had terminated. At no time did the City proffer that the District Attorney or the City had any basis to continue to retain Mr. Encarnacion’s phone after his case was over.
42. As a result of the City’s unlawful policy and practice, Mr. Encarnacion was deprived of his rights under the Fourth and Fourteenth Amendments, suffered the loss of his phone, incurred expenses terminating the installment contract for the phone, and had to purchase a new phone. Kaleb Hagos
43. Kaleb Hagos is a 25-year-old man who resides in the Bronx with his mother. Mr. Hagos previously lived in Ohio but returned to the Bronx in October of 2015.
44. On September 23, 2015, Mr. Hagos was arrested by the NYPD. 45. On September 24, 2015, The Bronx Defenders was appointed to represent Mr. Hagos in his criminal proceeding. 46. At the time of his arrest, Mr. Hagos had $2,931.68 in cash in his right front pocket and an Apple iPhone in his left front pocket. There were three other cell phones in his car. The NYPD seized Mr. Hagos’s car, as well as his cash and all of the cell phones. Mr. Hagos was not provided with a voucher at the time of his arrest or arraignment. 47. Of the cell phones seized at the time of arrest, one was Mr. Hagos’ while two of the other cell phones belonged to Mr. Hagos’s friend—who was in the car with him just prior to the arrest but was not arrested—and the other belonged to Mr. Hagos’s brother.
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48. Although Mr. Hagos sought the return of his property at the NYPD 50th Precinct shortly after being released from his arraignment on September 24, 2015, he was given no invoice and no information about retrieving his property. He was informed that the person he needed to speak to about these matters was not available.
49. The Bronx Defenders subsequently learned that Mr. Hagos’s property had been recorded by the NYPD into the PETS system sometime after his arrest. The car and his phone were categorized as Arrest Evidence and the cash was categorized for Forfeiture. Mr. Hagos was subsequently provided with NYPD Property Clerk Invoice Nos. 2000471114 and 2000471076 on October 2, 2015.
50. On December 21, 2015, the District Attorney issued a DA Release for Mr. Hagos’s vehicle, but not for his phone or cash.
51. On March 2, 2016, Mr. Hagos’s case was dismissed on motion of the District Attorney.
52. Mr. Hagos also picked up his car in March 2016. 53. On March 9, 2016, Mr. Hagos’s counsel at The Bronx Defenders requested a DA Release for his remaining property from the assigned ADA. The ADA expressed a willingness to release his phone but said he would need to speak to his supervisors about the cash. He promised to call back with an answer about the cash. He never called back. Nor did he issue a DA Release for either the phone or the cash. 54. On March 31, 2016, Mr. Hagos, through his counsel at The Bronx Defenders, made a written request to the District Attorney for a DA Release via certified mail.
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55. Also on March 31, 2016, Mr. Hagos, through his counsel at The Bronx Defenders, made a written demand for the return of his property to the NYPD Property Clerk via certified mail.
56. On April 13, 2016, Mr. Hagos, through his counsel at The Bronx Defenders, sent another written demand to the NYPD Property Clerk via certified mail.
57. On May 24, 2016, an employee of The Bronx Defenders went to the District Attorney’s Office in the Bronx County Criminal Court Building to see if a DA Release was prepared. There was still no DA Release.
58. On June 2, 2016, an employee of The Bronx Defenders went to the Property Clerk’s window at the Bronx Criminal Court and was told that Mr. Hagos’s property could not be released without a DA Release.
59. At no time did the City dispute that the case against Mr. Hagos had terminated. At no time did the City proffer that the District Attorney or the City had any basis to continue to retain Mr. Hagos’s phone after his case was over. Nor has the NYPD ever filed a forfeiture action for Mr. Hagos’s cash.
60. Even though the criminal charges against Mr. Hagos have been dismissed and sealed, the City refuses to give Mr. Hagos his phone and cash back.
61. As a result of the City’s unlawful policy and practice, Mr. Hagos has been deprived of his rights under the Fourth and Fourteenth Amendments, has suffered and continues to suffer the loss of his cash and phone, incurred expenses under his phone carrier’s insurance policy, and had to purchase a replacement phone.
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Kenneth Clavasquin 62. Kenneth Clavasquin is a 23-year-old man who resides in the Bronx with his
mother. 63. On June 2, 2015, Mr. Clavasquin was arrested by the NYPD outside of his
apartment building. 64. At the time of his arrest. Mr. Clavasquin was carrying his Apple iPhone. 65. The NYPD seized his phone and subsequently it was entered into the PETS
database. The NYPD provided Mr. Clavasquin with Property Clerk Invoice No. 2000434528. The phone was categorized as Arrest Evidence.
66. On June 3, 2015, The Bronx Defenders was appointed to represent Mr. Clavasquin in his criminal proceeding.
67. On December 8, 2015, Mr. Clavasquin’s criminal case was dismissed. 68. On December 9, 2015, Mr. Clavasquin brought his certificate of disposition to the NYPD Property Clerk. The NYPD Property Clerk informed Mr. Clavasquin that because the phone was vouchered as Arrest Evidence, he would need a DA Release to retrieve his property. 69. Despite calling the assigned ADA to request a DA Release on several occasions between December 2015 and February 2016, Mr. Clavasquin’s counsel at The Bronx Defenders never obtained a DA Release or a written explanation as to why the Release was being denied. 70. On April 18, 2016, Mr. Clavasquin, through his counsel, submitted a written demand for the property to the NYPD Property Clerk and a written demand for a DA Release to the Bronx District Attorney’s Office, both by certified mail.
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71. To date, Mr. Clavasquin has not received a response from the NYPD Property Clerk or the District Attorney’s Office. Nor has his property been returned.
72. At no time did the City dispute that the case against Mr. Clavasquin had terminated. At no time did the City proffer that the District Attorney or the City had any basis to continue to retain Mr. Clavasquin’s property after his case was terminated.
73. As a result of the City’s unlawful policy and practice, he has been deprived of his rights under the Fourth and Fourteenth Amendments, and suffered and continues to suffer the loss of his phone, and incurs monthly costs on an installment contract associated with the phone. III. Facts Regarding The Bronx Defenders
74. The Bronx Defenders often assists clients whose property was improperly retained pursuant to the City’s unlawful policy and practice. Considerable staff resources are tied up in navigating the many bureaucratic hurdles required to retrieve property.
75. On average, The Bronx Defenders handles over 500 matters a year relating to retrieving clients’ Personal Property. Many of these clients are similarly situated to the Individual Plaintiffs —their cases are over, there is no longer any possibility that the seized property could be used in a trial, neither the City nor the District Attorney has made any affirmative showing of need to retain the property, and yet the City refuses to return it.
76. The Bronx Defenders must routinely expend resources to seek return of client property from the City. This includes making written demands on the NYPD Property Clerk, following up on those demands, and often going to the NYPD Property Clerk in person to make and follow up on demands. The Bronx Defenders also expends significant resources
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making telephone calls and writing e-mails or letters to the District Attorney’s Office requesting DA Releases.
77. In fact, the Bronx Division of the NYPD Property Clerk regularly refers property owners to The Bronx Defenders for assistance when it has refused to return their property. The Bronx Defenders also expends resources assisting those individuals who were not originally clients in the underlying criminal case.
78. Because it expends considerable resources trying to obtain the return of Arrest Evidence and Forfeiture property that the City has unlawfully withheld from its clients, The Bronx Defenders has been forced to divert resources from its core mission of providing legal services to low-income New Yorkers facing criminal charges, family court proceedings, deportation, or eviction.
CLASS ACTION ALLEGATIONS 79. The Plaintiffs bring this action on behalf of themselves and all others similarly situated, pursuant to Federal Rule of Civil Procedure 23(a) and (b)(2). The proposed class is composed of all individuals who have been or will be unable to secure the release from the NYPD Property Clerk of Personal Property seized in connection with an arrest where (i) the individual named on the voucher for the property can no longer be tried on any charge that was the original basis for the arrest, and (ii) the City has made no showing of any continued basis to retain the property. All of these people have had their rights violated or are at risk of having their rights violated by the City’s policy and practice regarding the retention of property seized pursuant to an arrest. 80. This action satisfies all four requirements of Rule 23(a):
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a. Numerosity: Joinder of all class members is impracticable because of the size of the class. Upon information and belief, there are hundreds if not thousands of people in the City of New York who have been or will be unable to obtain the release of their seized property, even though their cases are over, there is no possibility that the property could be used at a trial, and no new grounds have been provided to justify the continued retention of the property.
b. Commonality: There are questions of law and fact common to all members of the class, including, but not limited to, whether the City violates the Constitution when it refuses to return Personal Property to property owners after their cases are over where no new legal predicate for retention of the property has been proffered, let alone established.
c. Typicality: The claims of the Individual Plaintiffs are typical of those of the class. Each Named Plaintiff has been harmed by the City’s unconstitutional policy and practice of failing to release Personal Property after criminal cases are terminated without establishing a new basis to retain the property.
d. Adequacy of Representation: The Named Plaintiffs and class counsel will fairly and adequately represent the interests of the class. The Named Plaintiffs have no interests in this matter that are antagonistic to other class members. Class counsel is experienced in federal civil rights and class action litigation and has the necessary resources to pursue this litigation.
FIRST CLAIM FOR RELIEF Violation of Due Process under the Fourteenth Amendment
(All Plaintiffs against the City) 81. Plaintiffs hereby reallege and incorporate by reference paragraphs 1 through 80, above.
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82. By adopting, implementing, and enforcing a policy and practice of refusing to return Personal Property, when (i) there is no possibility that the arrested person can be tried on any charge that was the original basis for the arrest and (ii) the City has made no showing of any continued basis to retain the property, the City under color of state law has denied Plaintiffs and a class of similarly situated people their right to due process, in violation of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983.
SECOND CLAIM FOR RELIEF Violation of the Fourth Amendment
(All Plaintiffs against the City) 83. Plaintiffs hereby reallege and incorporate by reference paragraphs 1 through 82, above. 84. By adopting, implementing, and enforcing a policy and practice of refusing to return Personal Property that was seized in connection to an arrest, when (i) there is no possibility that the arrested person can be tried on any charge that was the original basis for the arrest and (ii) the City has made no showing of any continued basis to retain the property, the City under color of state law has denied Plaintiffs and a class of similarly situated people their right to be free of unreasonable seizures, in violation of the Fourth Amendment to the United States Constitution and 42 U.S.C. § 1983.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs request that this Court:
1. Certify this matter as a class action pursuant to Federal Rule of Civil Procedure 23(b)(2) on behalf of the proposed class;
2. Declare that Defendant’s policy and practice have violated Plaintiffs’ rights under the Fourth and Fourteenth Amendments to the United States Constitution;
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3. Declare that Admin. Code § 14-140 and 38 RCNY § 12-31, et seq. are unconstitutional as applied and on their face;
4. Order all appropriate injunctive relief as warranted, including but not limited to: a. ordering Defendant to release the Individual Plaintiffs’ property to them; and b. ordering the City to promulgate, enact, follow, and enforce new policies that ensure the NYPD releases Personal Property that was seized in connection to an arrest, when (i) there is no possibility that the arrested person can be tried on any charge that was the original basis for the arrest and (ii) the City has made no showing of any continued basis to retain the property;
5. Award compensatory damages to the Individual Plaintiffs; 6. Award disbursements, costs, and attorneys’ fees pursuant to 42 U.S.C. § 1988; and 7. Grant such other and further relief that may be just and proper. Dated: June 3, 2016 Bronx, New York
Respectfully submitted, THE BRONX DEFENDERS
By: __________________________ Mariana (Molly) Kovel Adam N. Shoop Johanna B. Steinberg 360 East 161st Street
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Bronx, New York 10451 (718) 838-7878 mollyk@bronxdefenders.org adams@bronxdefenders.org johannas@bronxdefenders.org BOIES, SCHILLER & FLEXNER LLP Eric J. Brenner Zachary J. F. Kolodin 575 Lexington Avenue New York, NY 10022 Telephone: (212) 446-2300 Facsimile: (212) 446-2350 ebrenner@bsfllp.com zkolodin@bsfllp.com Attorneys for Plaintiffs
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 Case 1:16-cv-00156-DLC Document 33 Filed 06/08/16 Page 1 of 19

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
VICTOR ENCARNACION, KALEB HAGOS, KENNETH CLAVASQUIN and THE BRONX DEFENDERS, individually and on behalf of a class of all others similarly situated;
Plaintiffs,
– against –
THE CITY OF NEW YORK
Defendant

16-cv-156 (DLC)

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION TO CERTIFY A CLASS UNDER
FEDERAL RULE OF CIVIL PROCEDURE 23

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PRELIMINARY STATEMENT Plaintiffs challenge the City of New York’s (the “City”) policy and practice of refusing to return non-contraband personal property seized by the City and designated as either arrest evidence or forfeiture (“Personal Property”), even after the criminal case is over1 and the government has made no new showing regarding why it has the right to retain such Personal Property. The constitutional dimensions of this issue have long been recognized in this Circuit. See McClendon v. Rosetti, 460 F.2d 111 (2d Cir. 1972). The City regulations at issue set forth specific guidelines governing the release of potential evidence that has been seized in connection with an arrest (“Arrest Evidence”). 38 RCNY § 12-31 et seq. These regulations require the New York City Police Department (“NYPD”) Property Clerk to return all non-contraband Arrest Evidence to a claimant who produces proper identification, the voucher for the property, and written authorization of release from a District Attorney’s Office (a “DA Release”). These regulations also provide that when a property owner requests a DA Release, the District Attorney’s Office (“DA’s Office”) must either issue the DA Release or provide a written denial within 15 days of the request. 38 RCNY § 12-34(c). If the request is denied, the DA’s Office must identify the basis for retaining the property. In practice, this fifteen-day deadline has been brazenly disregarded; for example, the Bronx DA’s Office often fails to respond to requests for DA Releases for months on end even
1 For the purposes of this memorandum, cases or prosecutions are “over” or “terminated” when: (a) the charges against the property owner have been dismissed by the court or the prosecutor, and the time to appeal has lapsed; or (b) the property owner has entered a plea of guilty and waived the right to trial. In essence, cases or prosecutions are over or terminated where there is no longer a possibility of a trial against the property owner, and therefore no longer a need for the Personal Property that was seized in the underlying criminal case.
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where the underlying criminal case has terminated. (Declaration of Alexandra Rockoff, June 6, 2016 (“Rockoff Decl.”), at ¶¶ 14-15; Declaration of Amalea Smirniotopoulos, June 6, 2016 (“Smirniotopoulos Decl.”), at ¶ 14.) Yet, the NYPD Property Clerk nonetheless obstinately adheres to the precise terms of the City’s regulations and refuses to release Arrest Evidence because claimants do not have a DA Release. (Rockoff Decl. ¶¶ 6, 15; Smirniotopoulos Decl. ¶ 6; Declaration of Lisa Schreibersdorf, June 7, 2016 (“Schreibersdorf Decl.”), at ¶¶ 6, 9.) Similarly, the NYPD Property Clerk also refuses to release property marked as Forfeiture without a DA Release even when the criminal case is over and no forfeiture proceeding could commence. (Declaration of Steven Wasserman, June 6, 2016 (“Wasserman Decl.”), at ¶ 5.) This leaves claimants in a Kafkaesque situation where the City conditions the return of Personal Property for cases that are over on the production of a DA Release that a claimant often cannot practically obtain—even when they are entitled to one under the City’s own rules.
The City’s absolute insistence on a DA Release, even where cases are terminated, violates the constitutional rights of Plaintiffs and a class of similarly situated individuals. The Second Circuit has previously held that due process requires that the government establish a new basis for detention if it is going to keep non-contraband property once criminal proceedings have terminated. McClendon v. Rosetti, 460 F.2d 111, 116 (2d Cir. 1972). The New York Court of Appeals has similarly recognized that “it would be inconsistent with due process . . . to allow the District Attorney to block the return of the property by simply refusing to issue a release in a case where all criminal matters to which the property is relevant have terminated.” DeBellis v. Property Clerk, 79 N.Y. 2d 49, 58-59 (1992).
Under these and related constitutional principles, the City—as the holder of the property—is required to establish a new basis for its retention after the underlying criminal case
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has terminated, or to return it to its owner. Instead, the City’s rules purport to authorize the NYPD Property Clerk’s indefinite retention of Personal Property simply by virtue of inaction on the part of the DA’s Office. The City cannot eliminate their constitutional obligations by shifting responsibility onto the DA’s Office.
To remedy these ongoing constitutional violations and ensure the City’s rules comply with the controlling constitutional standards, Plaintiffs seek certification of a class of individuals who have been, or will be, deprived of their due process rights in seeking to secure the release of their Personal Property from the City. Because the underlying practices are widespread (and, indeed, embodied in an unconstitutional City rule), the proposed class includes many hundreds if not thousands of individuals, all of whom face common injury and will similarly benefit from the declaratory and injunctive relief sought in the Amended Complaint. Accordingly, the Court should grant this motion and certify the proposed class pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2).
FACTUAL BACKGROUND A. The City’s rules governing the return of Personal Property When an individual is arrested in New York City, the NYPD routinely seizes property they are carrying. (Am. Cmplt. ¶ 2.) Although some property is designated as “Safekeeping” and returned to the owner upon demand, the NYPD broadly exercises its discretion to hold noncontraband property as Arrest Evidence where it perceives any “relation to the matter for which the person has been arrested.” 38 RCNY § 12-31. In drug-related arrests, for example, the NYPD routinely designates seized U.S. currency and cell phones as Arrest Evidence. (Am. Cmplt. ¶ 2.) After seizure, Arrest Evidence is vouchered and held by the NYPD Property Clerk. (Am. Cmplt.
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¶ 10.) The NYPD also broadly exercises its discretion to categorize cash seized during an arrest as Forfeiture. See New York Police Department Patrol Guide § 218-38.
The Rules of the City of New York require the return of Arrest Evidence to a claimant presenting proper identification, the governing voucher, and a DA Release.2 38 RCNY § 1235(b). The City’s rules further provide that the DA’s Office must, upon request, issue a DA Release within fifteen days or provide a written denial stating the grounds for retaining the property. 38 RCNY § 12-34(c)-(e). In circumstances where the underlying criminal proceeding relevant to the property has terminated, the DA’s Office can only refuse to return Arrest Evidence based on a good faith determination that the property is still needed as evidence for: (a) a pending appeal; (b) a collateral attack or notice that a collateral attack will be commenced; (c) another specifically identified criminal proceeding; or (d) an ongoing identifiable criminal investigation. 38 RCNY § 12-34(d). If the DA’s Office invokes one of these grounds as a basis to refuse to provide a DA Release, the property owner can appeal to a supervisor who must respond in writing within ten days of a request for a review. 38 RCNY § 12-34(e). The regulation does not include potential forfeiture of property as one of the valid reasons for the denial of a DA Release. 38 RCNY § 12-34(d).
In sum, as contemplated by the City’s rules, a claimant seeking the return of Personal Property after a criminal case is over is entitled to have the NYPD Property Clerk release the property or be informed of the grounds why such property is being withheld so the property owner can appeal the decision.
2 These regulations were promulgated in an attempt to comply with the final order in McClendon v. Rosetti, 460 F.2d 111 (2d Cir. 1972). See McClendon v. Rosetti, No. 70 Civ. 3851 (MEL), 1994 WL 17107022 (S.D.N.Y. 1994).
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B. The City’s policy and practice of unlawfully retaining Personal Property In practice, the fifteen-day deadline for the DA’s Office to respond to a request for a DA Release is systematically ignored. (Am. Cmplt. ¶ 21.) It can take weeks or even months for a prosecutor to respond, even when a formal demand has been issued. (Am. Cmplt. ¶ 21; Rockoff Decl. ¶ 14; Declaration of Michael Pope, June 7, 2016 (“Pope Decl.”), at ¶ 10; Smirniotopoulos Decl. ¶¶ 13-14.) In many cases, the prosecutor does not respond at all. (Am. Cmplt. ¶ 21; Pope Decl. ¶ 10; ) Once a case concludes, in at least some DA’s Offices, the prosecutor who previously worked on the case “does not prioritize a case that has ended, and has no motivation to assist in” securing a DA Release, “no matter how justified.”3 Nevertheless, citing 38 RCNY § 12-35(b), the NYPD Property Clerk steadfastly insists on a DA Release as a precondition to releasing Personal Property—no matter how egregious a prosecutor’s inattention to a claimant’s retrieval efforts. (Am. Cmplt. ¶ 23; Rockoff Decl. ¶ 15.) As a consequence, the City routinely deprives claimants of their Personal Property even when the original basis for holding the property is no longer conceivably relevant and no new showing has been offered for why retention of the property is justified. (Am. Cmplt. ¶ 19.) This situation is exacerbated by the fact that most people who attempt to retrieve property do not have a lawyer to assist them in trying to compel the City or the DA’s Office to act. (Am. Cmplt. ¶ 24.) Many claimants give up trying to obtain their Personal Property rather than attempting to navigate the system. (Am. Cmplt. ¶ 24; Schreibersdorf Decl. ¶ 13.) The only recourse for property owners whose requests for a DA Release are being ignored is to bring an Article 78 lawsuit – a
3 Public Hearings on Civil Forfeiture and Deferred Prosecution Agreements Before the New York State Assembly Committee on Codes and Judiciary, Dec. 9, 2014 (Statement of of Sergio Jimenez, Director Civil Justice Practice, Brooklyn Defender Services), http://bds.org/wp-content/uploads/Civil-Forfeiture-Testimony-Final-12.4.14.pdf (discussing the practices of the Brooklyn DA’s Office).
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proceeding whose filing fee alone usually exceeds the value of the property being unlawfully detained. (Pope ¶¶ 11-12.)
C. The harm that the City’s policy and practice has caused the Named Plaintiffs Plaintiffs Encarnacion, Clavasquin, Hagos, and The Bronx Defenders (the “Named Plaintiffs”) have all been harmed by the City’s policy and practice of refusing to release Personal Property even in the absence of any basis for continued retention. Victor Encarnacion was arrested in November 2014, and his phone was taken as Arrest Evidence. (Am. Cmplt. ¶¶ 26, 28.) The Bronx DA’s Office dismissed its criminal case against him in May 2015. (Am. Cmplt. ¶ 30.) Thereafter, he made multiple demands on both the NYPD Property Clerk and the Bronx DA’s Office for the return of his property. (Am. Cmplt. ¶¶ 32-38.) The Bronx DA’s Office did not act, and the NYPD Property Clerk refused to return his phone without a DA Release. (Am. Cmplt. ¶ 38.) At the time of the original complaint in this action, Mr. Encarnacion had been waiting eight months for the return of his phone, even though the Bronx DA’s Office had made no showing justifying the continued retention of this property. (Am. Cmplt. ¶ 39.) Only after commencing this action did the Bronx DA’s Office finally issue him the DA Release that the NYPD Property Clerk required to release his phone. (Am. Cmplt. ¶ 39.) Kaleb Hagos was arrested in September 2015, and his cell phone was taken as Arrest Evidence and his cash was designated Forfeiture. (Am. Cmplt. ¶¶ 44, 46, 49.) The Bronx District Attorney dismissed his case on March 2, 2016. (Am. Cmplt. ¶ 51.) Since then he has made several formal and informal demands for a DA Release, all in vain. (Am. Cmplt. ¶¶ 50-58.) During this time, the Bronx DA’s Office has made no showing justifying the continued retention
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of Mr. Hagos’s property. (Am. Cmplt. ¶ 59.) The NYPD Property Clerk has nevertheless refused to release his property, leaving Mr. Hagos without his phone and cash. (Am. Cmplt. ¶ 61.)
Kenneth Clavasquin was arrested in June 2015, and his cell phone was taken as Arrest Evidence. (Am. Cmplt. ¶¶ 63-65.) The Bronx DA’s Office dismissed his case on December 8, 2015. (Am. Cmplt. ¶¶ 67.) Thereafter, he made multiple demands on both the NYPD Property Clerk and the Bronx DA’s Office for the return of his property. (Am. Cmplt. ¶¶ 68-71.) The Bronx DA’s Office has not responded, despite Mr. Clavasquin sending a written demand by certified mail. (Am. Cmplt. ¶ 70-71.) In turn, the NYPD Property Clerk refused to return his phone without a DA Release. (Am. Cmplt. ¶ 71.) Since the dismissal of his criminal case, the Bronx DA’s Office has made no showing justifying the continued retention of Mr. Clavasquin’s property. (Am. Cmplt. ¶ 72.) The NYPD Property Clerk has nevertheless refused to release his property, leaving Mr. Clavasquin without his phone. (Am. Cmplt. ¶ 73.)
The Bronx Defenders is a 501(c)(3) not-for-profit organization that provides free legal services to tens of thousands of New Yorkers every year on a wide range of matters. (Am. Cmplt. ¶ 9; Declaration of Mariana Kovel, June 7, 2016 (“Kovel Decl.”), at. ¶ 5.) The Bronx Defenders regularly expends staff resources vindicating the property rights of its clients and attempting to retrieve Personal Property held by the City where the underlying criminal case is terminated but no new showing has been made to justify the retention. (Am. Cmplt. ¶ 74; Kovel Decl. ¶¶ 7-8.) The Bronx Division of the NYPD Property Clerk itself regularly refers property owners to The Bronx Defenders for assistance when it has refused to return their property. (Am. Cmplt. ¶ 77.) Because it expends considerable resources trying to obtain the return of Arrest Evidence and Forfeiture property that the City has unlawfully withheld from its clients and
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others who are referred are request help, The Bronx Defenders has been forced to divert

resources from its core mission. (Am. Cmplt. ¶ 78; Kovel Decl. ¶ 9.)

D. The Allegations of the Class Complaint

The Amended Complaint alleges that the City’s absolute insistence on a DA Release,

even where cases are terminated, violates the United States Constitution. Specifically, the

Amended Complaint alleges that the City—as the holder of the property—has an obligation

under the Fourth and Fourteenth Amendments to establish a new basis for its retention after the

underlying criminal case related to the property is over, or to return it to its owner. To remedy

these ongoing constitutional violations and ensure the City’s rules comply with the controlling

constitutional standards, Named Plaintiffs have brought this case on their own behalf and as a

proposed class action on behalf of other similarly situated individuals who are likewise harmed

by the City’s conduct.

ARGUMENT

Plaintiffs seek certification of the following class:

individuals who have been or will be unable to secure the release from the NYPD Property Clerk of Personal Property seized in connection with an arrest where (i) the individual named on the voucher for the property can no longer be tried on any charge that was the original basis for the arrest, and (ii) the City has made no showing of any continued basis to retain the property.

As the class meets all of the requirements of Federal Rule of Civil Procedure 23(a) and

Rule 23(b)(2), Plaintiffs respectfully submit that it should be certified by the Court.

I.

The Proposed Class Satisfies Rule 23(a).

Rule 23(a) sets forth four prerequisites to maintaining a class action: “(1) the class is so

numerous that joinder of all members is impracticable; (2) there are questions of law or fact

common to the class; (3) the claims or defenses of the representative parties are typical of the

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claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a). These requirements “effectively limit the class claims to those fairly encompassed by the named plaintiff’s claims.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349 (2011) (internal quotation marks omitted). The district court should apply a “preponderance of the evidence” standard in “resolving factual disputes relevant to each of the Rule 23 requirements” and “should not assess any aspect of the merits unrelated to a Rule 23 requirement.” Id. at 160-61. Moreover, “Rule 23 is given liberal rather than restrictive construction, and courts are to adopt a standard of flexibility . . . .” Marisol A. v. Giuliani, 126 F.3d 372, 377 (2d Cir. 1997).
The Named Plaintiffs here challenge a specific policy and practice of the City that deprives individuals seeking to recover property of due process. As set forth below, the proposed class readily meets the Rule 23(a) requirements.
A. The proposed class is sufficiently numerous that joinder is impracticable Numerosity requires that “the class is so numerous that joinder of all members is impracticable. Fed. R. Civ. P. 23(a)(1). This requirement “does not mandate that joinder of all parties be impossible—only that the difficulty or inconvenience of joining all members of the class make use of the class action appropriate.” Floyd, 283 F.R.D. at 161 (quoting Cent. States Se. & Sw. Areas Health & Welfare Fund v. MerckMedco Managed Care, LLC, 504 F.3d 229, 244-45 (2d Cir. 2007)). In the Second Circuit, there is a presumption that the numerosity element is satisfied if there are at least forty class members. See Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995); see also Floyd, 283 F.R.D. at 172 (finding numerosity requirement met because “[t]he preponderance of the evidence indicates that the proposed class and subclass easily exceed forty members”); Stinson v. City of New York, 282 F.R.D. 360, 369
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(S.D.N.Y. 2012) (finding numerosity requirement met because “the proposed class like[ly] exceeds forty members”). Plaintiffs may “reasonably estimate” the number of class members, and are not required to “show the exact number.” See, e.g., Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993); Williams v. Conway, No. 9:15-CV-427, 2016 WL 65064, at *2 (N.D.N.Y. Jan. 4, 2016).
Here, the proposed class includes at a minimum hundreds of individuals, and likely many more. Each year, The Bronx Defenders handles approximately 500 matters relating to retrieving clients’ property taken pursuant to an arrest. (Kovel Decl. ¶ 8.) Scores of these cases involve situations where the NYPD Property Clerk refused to return Personal Property after a case was over without a DA Release and without any new showing for why continued retention was justified. (Rockoff Decl. ¶ 2, 10-14.) Indeed, DA Offices throughout the City of New York, including at a minimum the DA Offices in The Bronx and Queens, have systematically failed to comply with the fifteen-day deadline in the City’s rules for providing DA Releases and regularly let requests for DA Releases linger indefinitely. (Rockoff Decl. ¶¶ 11-14; Pope Decl. ¶¶ 6-10.) In these cases, clients are unable to retrieve their Personal Property without resort to prohibitively expensive legal process. (Pope Decl. ¶¶ 11-12.) When the Bronx Division of the NYPD Property Clerk refuses to return claimant property, it regularly refers claimants to The Bronx Defenders for assistance. (Am. Cmplt. ¶ 77.)
Notably, The Bronx Defenders represents just 40% of indigent clients accused of crimes in Bronx County, New York, which itself accounts for only 25% of the arrests in New York City
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each year.4 (Kovel Decl. ¶ 5.) Even conservatively extrapolating from The Bronx Defenders’ experience indicates that many hundreds if not thousands of individuals fall into the proposed class. Indeed, from 2013-2015, the NYPD arrested over 50,000 individuals in connection with felony drug charges.5 NYPD commonly takes personal property as Arrest Evidence in felony drug cases. (Wasserman Decl. ¶ 4.) Yet a significant proportion of the individuals charged in these cases never succeed in securing the return of their Personal Property from the City even when their cases have terminated and no forfeiture actions have been filed. (Declaration of Adam Shoop, June 6, 2016 (“Shoop Decl.”), at ¶ 10.) Analysis of NYPD accounting documents provided to The Bronx Defenders through a Freedom of Information Law request reveal that every year, approximately $5 million in unclaimed cash seized pursuant to an arrest is counted as revenue toward the NYPD budget. (Shoop Decl. ¶¶ 9-11.) For all these reasons, Rule 23(a)’s numerosity requirement is satisfied.
B. There are questions of law and fact common to the proposed class. Plaintiffs must satisfy the commonality requirement of Rule 23(a) by “demonstrat[ing] that the class members have suffered the same injury.” See Wal-Mart Stores, Inc., 564 U.S. at 350. Adjudication of this injury must be “capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id. at 342. Where “a plaintiff alleges injury from a common policy, the commonality requirement is met.” Romano v. SLS Residential Inc., 246 F.R.D. 432, 444
4 See New York State Division of Criminal Justice Services, Adult Arrests 2006-2015 (NYC), available at http://www.criminaljustice.ny.gov/crimnet/ojsa/arrests/index.htm. 5 See New York State Division of Criminal Justice Services, Adult Arrests 2006-2015 (NYC), available at
http://www.criminaljustice.ny.gov/crimnet/ojsa/arrests/index.htm.
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(S.D.N.Y. 2007); see also Brown v. Kelly, 609 F.3d 467, 468 (2d Cir. 2010) (“[W]here plaintiffs were allegedly aggrieved by a single policy of the defendants, and there is strong commonality of the violation and the harm, this is precisely the type of situation for which the class action device is suited.”) (internal quotation marks and citation omitted).
The commonality requirement is readily met here because the class members all challenge a specific City policy and practice—refusing to return Personal Property originally taken in connection with an arrest, even when the case is over and the City has made no new showing regarding why the property cannot be returned. Class certification should not be denied for want of commonality when plaintiffs challenge an allegedly unconstitutional practice, even if such practice affects class members in different ways. See Port Auth. Police Benev. Ass’n, Inc. v. Port Auth. of New York & New Jersey, 698 F.2d 150, 153 (2d Cir. 1983) (“[T]he free speech claim can be litigated without application of Mt. Healthy’s procedure for determining whether any one officer is entitled to a promotion. [See Mt. Healthy City School Board v. Doyle, 429 U.S. 274 (1977).] If the plaintiff can prove that the Port Authority suppressed protected expression by denying or threatening to deny promotion, some relief would be warranted.”). This targeted focus is akin to the class certified by this court in Ligon v. City of New York, 288 F.R.D. 72 (S.D.N.Y. 2013), which consisted of individuals who had been or were at risk of being stopped outdoors without justification on suspicion of criminal trespassing inside of Clean Halls buildings in the Bronx. In Ligon, because “plaintiffs and the putative class members were allegedly subjected to the same unlawful conduct by NYPD officers under the auspices of a single NYPD program,” the plaintiffs were found to have “readily [met]” the commonality requirement. Ligon, 288 at 82.
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Here, the class members also “have suffered the same injury” and have “common contention[s],” and the Court can resolve the “issue[s] that [are] central to the validity of each one of the claims in one stroke.” Wal-Mart, 131 S. Ct. at 2551. In particular, class members pose common questions of facts and law that are dispositive of the issues in this case, such as:
 Does the City have a policy of absolute refusal to release Personal Property without a DA Release, even after a DA’s Office has not responded to a claimant’s demand?
 Do some or all of the District Attorney’s Offices of the five boroughs in the City routinely fail to comply with the fifteen-day deadline in the City’s rules for providing DA Releases?
 Do RCNY §§ 12-34–12-36 violate class members’ constitutional rights under the Fourth and Fourteenth amendments of the U.S. Constitution because they improperly place the burden on property owners to produce a DA Release, even when (i) the individual named on the voucher for the property can no longer be tried on any charge that was the original basis for the arrest, and (ii) the City has made no showing of any continued basis to retain the property?
 Does the City’s strict application of RCNY §§ 12-34–12-36, including its alleged absolute refusal to release Personal Property without a DA Release, violate class members’ constitutional rights under the Fourth and Fourteenth amendments of the U.S. Constitution where (i) the individual named on the voucher for the property can no longer be tried on any charge that was the original basis for the arrest, and (ii) the City has made no showing of any continued basis to retain the property? 14

Case 1:16-cv-00156-DLC Document 33 Filed 06/08/16 Page 15 of 19
C. The Named Plaintiffs’ claims are typical of the proposed class. Rule 23(a)(3)’s typicality requirement is “satisfied when each class member’s claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant’s liability.” See Kelen v. World Financial Network Nat. Bank, 295 F.R.D. 87, 92 (S.D.N.Y. 2013) (citing Marisol A. v. Guiliani, 126 F.3d 372, 376 (2d Cir. 1997)). Typicality ensures that “maintenance of a class action is economical and [that] the named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.” See Sykes v. Mel S. Harris and Assoc., 780 F.3d 70, 80 (2d Cir. 2015) (citing Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349 n. 5 (2011)). Typicality may be satisfied where “injuries derive from a unitary course of conduct by a single system.” See Floyd v. City of New York, 283 F.R.D. 153, 175 (S.D.N.Y. 2012) (finding complaints of four named black plaintiffs who sought to enjoin city’s allegedly unlawful stop and frisk practice were typical of the class of people who were unlawfully stopped by city police officers, or those who might be stopped by officers on basis of being black or Latino); see also Marisol A., 126 F.3d at 377 (finding typicality amongst eleven named plaintiffs and a class of children who were the legal responsibility of the child welfare system yet were deprived of services of the New York City child welfare system). Typicality may also be established when “all members of the class would benefit from the named plaintiffs’ action.” Gulino v. Bd. of Educ. of City Sch. Dist. of New York, 201 F.R.D. 326, 332 (S.D.N.Y. 2001) (citations omitted). Typicality does not require that the representative claims be identical to those of the class members, and factual variations among plaintiffs may exist. When the same unlawful conduct harmed both the named plaintiff and the class sought to be represented, typicality “is usually met irrespective of minor variations in the fact patterns underlying the individual claims.” Robidoux
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v. Celani, 987 F.2d 931, 936-37 (2d Cir. 1993) (finding typicality requirement satisfied where three recipients of Vermont’s public assistance sought to represent a class of persons whose applications for public assistance had been unlawfully delayed by the Vermont Department of Social Welfare). See also Gary Plastic Packaging Corp. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 903 F.2d 176, 180 (2d Cir. 1990) (“[I]t is settled that the mere existence of individualized factual questions with respect to the class representative’s claim will not bar class certification.” (citations omitted)). This “is ‘particularly true with respect to . . . (b)(2) certification.’” Charron v. Pinnacle Group N.Y. LLC, 269 F.R.D. 221, 232 (S.D.N.Y. 2010) (quoting Brown v. Kelly, 244 F.R.D. 228, 232 (S.D.N.Y. 2007)). That is because there is “no need for individualized determinations of the propriety of injunctive relief” when plaintiffs request such relief against a defendant “engaging in a common course of conduct toward them.” Id. (quoting Brown, 244 F.R.D. at 232) (emphasis in original).
Here, the Named Plaintiffs’ claims are typical of the class as a whole because, first, their claims arise from the same course of conduct by the City—namely, that the City has denied them due process of law and subjected them to the unreasonable seizure of their property by (i) improperly placing the burden on property owners to produce a DA Release once the underlying criminal proceeding relevant to their property has terminated, and (ii) refusing to release Personal Property without a DA Release in such circumstances. Second, Named Plaintiffs’ claims are typical of the class as a whole because they seek injunctive and declaratory relief from which all class members will benefit in common.
D. The Named Plaintiffs will fairly and adequately protect the proposed class. Plaintiffs and their counsel satisfy the adequacy requirement. Courts make two inquiries into whether the class representatives and their counsel will adequately protect the class. First,
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courts assess whether the interests of the named plaintiffs may be “antagonistic” to the interests

of other class members. Floyd, 283 F.R.D. at 161 (quoting Baffa v. Donaldson, Lufkin & Jenrette

Secs. Corp., 222 F.3d 52, 60 (2d Cir. 2000)). In so doing, the court seeks to unearth potential

conflicts of interest between the class representatives and the class they purport to represent. See

Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997). However, “[a] conflict or potential

conflict alone will not … necessarily defeat class certification.” Denney v. Deutsche Bank AG,

443 F.3d 253, 268 (2d Cir. 2006) (citation omitted). Rather, the conflict must be “fundamental.”

Id. Second, courts assess whether “plaintiff’s attorneys are qualified, experienced and able to

conduct the litigation.” Floyd, 283 F.R.D. at 161 (quoting Baffa, 222 F.3d at 60).

Here, the Named Plaintiffs are all challenging the same policy and practice and share a

common interest in ensuring the City provides due process to claimants seeking the return of

Personal Property taken in connection with an arrest. The Named Plaintiffs will fully protect the

interests of the entire class and do not suffer from any internal conflict.

Furthermore, counsel for the class representatives are more than qualified to represent the class adequately as they have extensive experience litigating class action and civil rights cases.6

II.

The proposed class is satisfies Rule 23(b)(2).

A class action is maintainable pursuant to Rule 23(b)(2) if “the party opposing the class

has acted or refused to act on grounds that apply generally to the class, so that final injunctive

relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R.

Civ. P. 23(b)(2). “Civil rights cases” are “prime examples” of Rule 23(b)(2) class actions.

Amchem Prods. Inc. v. Windsor, 521 U.S. 591, 614 (1997).

6 See Declaration of Eric Brenner, June 7, 2016 (“Brenner Decl.”); Kovel Decl.
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Maintainability under Rule 23(b)(2) “is almost automatically satisfied in actions
primarily seeking injunctive relief.” See Baby Neal for and by Kanter v. Casey, 43 F.3d 48, 58
(3d Cir. 1994). This is a quintessential Rule 23(b)(2) class, as (a) all class members have been
harmed by the same course of conduct; and (b) all class members seek reprieve from this harm
via injunctive and declaratory relief that will benefit the class as a whole.
CONCLUSION For the foregoing reasons, Plaintiffs request that the Court certify the proposed class
pursuant to Rules 23(a) and 23(b)(2), and appoint The Bronx Defenders and Boies, Schiller &
Flexner LLP as class counsel pursuant to Rule 23(g).
Date: New York, NY June 7, 2016
By: /s/ Eric Brenner
BOIES, SCHILLER & FLEXNER LLP Eric J. Brenner Zachary J. F. Kolodin 575 Lexington Avenue New York, NY 10022 Telephone: (212) 446-2300 Facsimile: (212) 446-2350 ebrenner@bsfllp.com zkolodin@bsfllp.com
THE BRONX DEFENDERS Johanna B. Steinberg Mariana (Molly) Kovel Adam N. Shoop 360 East 161st Street Bronx, New York 10451 (718) 838-7878 18

Case 1:16-cv-00156-DLC Document 33 Filed 06/08/16 Page 19 of 19 johannas@bronxdefenders.org mollyk@bronxdefenders.org adams@bronxdefenders.org Attorneys for Plaintiffs and the Proposed Class
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 Case 1:16-cv-00156-DLC Document 80 Filed 02/12/18 Page 1 of 22

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

VICTOR ENCARNACION, KALEB HAGOS, KENNETH CLAVASQUIN, and THE BRONX DEFENDERS,
Plaintiffs,

-againstTHE CITY OF NEW YORK,

Defendant.

16-cv-156 (DLC)(JCF)
-----

STIPULATION OF SETTLEMENT AND ORDER WHEREAS, Plaintiffs Victor Encarnacion and The Bronx Defenders commenced this action on January 8, 2016, alleging, inter alia, that the Defendant City of New York (hereinafter "the City") violated Plaintiffs' constitutional rights under the Fourth and Fourteenth Amendment through an alleged policy and practice of retaining personal property seized in connection with an an·est after a criminal case is over and without a continued basis to retain the property; and WHEREAS, the Amended Complaint, filed on June 3, 2016, asserted the same claims on behalf of Victor Encarnacion, Kaleb Hagos, Kenneth Clavasquin, and The Bronx Defenders (collectively "Plaintiffs"), individually and on behalf of a class of similarly situated individuals;
and WHEREAS, neither the initial complaint, nor the Amended Complaint, named the
Office of the Bronx District Attorney (the "Bronx DA'') as a defendant in the action; and WHEREAS, nonetheless, the Bronx DA determined it was in its best interest to
implement the procedures detailed herein; and

Case 1:16-cv-00156-DLC Document 80 Filed 02/12/18 Page 2 of 22

WHEREAS, in light of the foregoing, the instant matter will be resolved in accordance

with the terms below; NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and
between the undersigned, attorneys of record for Plaintiffs, and the City, and the Bronx DA, as

follows:

DEFINITIONS

I. "ADA" shall mean an assistant district attorney of the Bronx DA.

2. "Bronx DA Propetty Window" shall mean the publicly accessible location

maintained by the Bronx DA at the Bronx Criminal Court.

3.

"Claimant" shall mean an individual seeking the return ofpropetiy taken by the

New York City Police Department ("NYPD").

4. "DA Deferral Letter" shall mean the Bronx DA's written statement refusing or

deferring the release of Seized Property consistent with the requirements of38 RCNY § 12-34.

5.

"DA Release" shall mean a written statement from the Bronx DA that the Seized

Property is no longer needed as evidence, consistent with 38 RCNY § 12-34.

6. "DA Release Request" shall mean the submission of a request form to the Bronx

DA, by or on behalf of a Claimant, consistent with 38 RCNY § 12-34.

7. "DA Response" shall mean aDA Release or DA Deferral Letter.

8. "Defendant" shall mean the City of New York.

9. "Effective Date" shall mean the date this Stipulation is So Ordered by the District

Judge. I 0.

"Individual Plaintiffs" shall mean Plaintiffs Victor Encarnacion, Kaleb Hagos,

and Kenneth Clavasquin.

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II. "RCNY" shall mean Title 38 ofthe Rules of the City of New York at the time of the Effective Date.
12. "Settling Institutional Parties" shall refer to The Bronx Defenders, Defendant, and the Bronx DA.
13. "Seized Property" shall mean property that the NYPD has taken from a Claimant prior to, simultaneous with, or subsequent to an arrest because of its relation to the matter for which a person was arrested.
14. "Termination of Criminal Proceedings" shall have the same meaning as defined in 38 RCNY § 12-34, which is: "the earliest of(i) thirty-one days following the imposition of sentence, (ii) the date of acquittal of a person arrested for an offense, (iii) where leave to file new charges or to resubmit the case to a new grand jury is required and has not been granted, thirtyone days following the dismissal of the last accusatory instrument filed in the case, or, if applicable, upon expiration of the time granted by the comt or permitted by statute for filing new charges or resubmitting the case to a new grand jury, (iv) where leave to file new charges or to resubmit the case to a new grand jury is not required, thirty-one days following the dismissal of the last accusatory instrument filed in the case, or, if applicable, upon expiration of the time granted by the court or permitted by statute for filing new charges or resubmitting the case to a new grand jury, (v) six months from the issuance of an "Adjournment in Contemplation of Dismissal" order pursuant to C.P.L. § 170.55, or twelve months from the issuance of such an order pursuant to C.P.L. § 170.56, where the case is not restored to the court's calendar within the applicable six-month or twelve-month period, and (vi) the date when, prior to the filing of an accusatory instrument against a person arrested tor an offense, the district attorney elects not to prosecute such person." However, solely with respect to the return of Seized Propetty, a criminal
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case under the jurisdiction of the Bronx DA that is resolved with an Adjournment in Contemplation of Dismissal shall be considered "terminated" on the date the adjournment is issued.
15. "Voucher" shall mean the invoice prepared by the NYPD for each item of Seized Property, containing the name of the person, an itemized list of property taken, a brief description thereof, and notice of the procedures and deadlines to obtain the return of the property consistent with the requirements of 38 RCNY § 12-32.
REFORMS BY THE NYPD 16. The NYPD shall follow practices consistent with RCNY § 12-32 to provide an individual with a Voucher for all property seized pursuant to an arrest no later than the time of arraignment, or alongside Desk Appearance Ticket ("OAT") paperwork when a DAT is issued, absent extraordinary circumstances. The Voucher may be provided directly to the individual or to the individual by delivery to the individual's attorney. The NYPD shall implement policies and procedures, training, supervision, monitoring, and discipline sufficient to ensure compliance with RCNY § 12-32. 17. The NYPD shall provide the Bronx DA with the "ADA" copy of the Voucher(s) at the time that an officer meets with the ADA in court prior to arraignment, or alongside DAT paperwork when a OAT is issued, absent extraordinary circumstances. 18. Contact information for the Bronx DA's Propetty Release Unit, as described herein, shall be provided on notices available at the Bronx NYPD Property Clerk window. 19. Within 90 days of the Effective Date of this Stipulation, if it has not done so already, the NYPD shall provide in-service training to ensure that employees of the NYPD
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Property Clerk are aware of, and are following, the relevant policies and practices described in this Stipulation.
20. NYPD has agreed to modify Section 208-03, subsection 12e of the Patrol Guide to clarify that personal property, including proof of the arrestee's identity (i.e. Driver's Licenses, employee identification cards, etc.) will not be vouchered except in special circumstances such as where the arrestee is intoxicated, and/or where the proof of identity constitutes potential evidence in and of itself. A copy of the language for the proposed modification to Section 20803, subsection 12e of the Patrol Guide is attached hereto as Exhibit "B." Consistent with this clarification of policy, on January 16,2018, NYPD issued a "Finest Message/Training Bulletin," reminding members of service that identification documents should only be vouchered when a prisoner is unconscious or intoxicated, or if the documents are relative to the crime charged. A copy of this "Finest Message/Training Bulletin" is attached hereto as Exhibit "C."
21. Consistent with the memo issued by NYPD to the NYPD Propetty Clerk on November 30, 2017 and the January 18, 2018 Fourth Endorsement of the UF 49 (collectively referred to herein as the "UF 49"), in circumstances where a Claimant is seeking the return of Seized Property and a Claimant's proof of identity has been vouchered, NYPD Propetty Clerk staff shall retrieve the proof of identity from the inventory bag to attempt to verify the Claimant's identity, except in extraordinary circumstances. A copy of the UF 49 is attached hereto as Exhibit "D."
22. As memorialized in the UF 49, except in extraordinary circumstances, for Claimants seeking a copy of their Voucher or the release of Seized Propetty the NYPD Property Clerk shall accept a single, valid, government issued, photo 10 bearing the appropriate name and
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address of a Claimant, provided such ID is sufficient to establish the Claimant's identity. See Exhibit "D."
23. As set forth in the ur 49, except in extraordinary circumstances, the NYPD will,
upon presentation of proper identification, permit attorneys for Claimants and employees of attorneys' legal firms to obtain a copy of a Voucher from the NYPD Property Clerk by submitting a written request, signed by an attorney, on the law firm's letterhead, stating that his or her legal firm represents the Claimant, and designating by name any employee of his or her legal finn to request and obtain a copy of the Voucher on behalf of the Claimant. See Exhibit "D."
24. !fin Defendant's assessment Section208-03, subsection 12e of the Patrol Guide (Exhibit "B") or the practices set fotih in the UF 49 (Exhibit "D") or described in paragraphs 20 through 23 above require modification or revision dming the time period in which this Couti retains jurisdiction over this Stipulation, Defendant will follow the procedure for modifications set forth in paragraphs 47-51 herein. However, for the time period in which this Comt retains jurisdiction over this Stipulation, in the event of unforeseen or exigent circumstances, Defendant may change or deviate from the practices provided in the Section 208-03, subsection 12e of the Patrol Guide and the UF 49 or described in paragraphs 20 through 23 above pending the convening of the Working Group, as defined herein, upon written notice to Plaintiffs' counsel of the unforeseen or exigent circumstances, the modification or deviations sought, and the interim change in practice.
25. On January 16,2018, NYPD issued a "Finest Message/Training Bulletin" reminding members of the service to provide a Voucher to an arrestee no later than the time of arraignment in Court or the issuance of a Desk Appearance Ticket. See Exhibit "C."
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26. On January 16,2018, NYPD issued a "Finest Message/Training Bulletin" reminding all commands that notices setting forth the procedures to be followed to obtain the return of Seized Property must be posted in conformance with 38 RCNY § 12-33, in the holding areas of each station house, in all central booking facilities within the City, and in each courthouse holding area within the City which is within the control of the NYPD. A copy of this "Finest Message/Training Bulletin" is attached hereto as Exhibit "E."
27. As part of the Quality Assurance Division's ("QAD") routine evaluation of command compliance with NYPD's policies and procedures, QAD will audit compliance with Patrol Guide Section 218-30 "Invoicing Property Taken From a Person's Possession." Absent exigent circumstances, these QAD audits will be conducted at minimum on a quarterly basis throughout the time period in which this Court retains jurisdiction over this Stipulation. Defendant will inform Plaintiffs' counsel at the Working Group meetings, as described in paragraph 46 of this Stipulation, that the audits were conducted.
INTERVENTION OF THE BRONX DA 28. The Bronx DA, Plaintiffs, and Defendant consent to the intervention of the Bronx DA in this action solely for the purpose of this Stipulation and Order.
REFORMS BY THE BRONX DA 29. The Bronx DA shall follow practices consistent with 38 RCNY § 12-34(d) to ensure the timely issuance of DA Responses to DA Release Requests submitted to the Bronx DA for the release of Seized Property. The Bronx DA shall implement policies, procedures, training, and supervision sufficient to follow these practices. The Bronx DA has updated and will maintain a written Standard Operating Procedure for the Property Release Unit to establish and
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maintain protocols that ensure compliance with the RCNY (cun·ent version attached hereto as Exhibit "A").
30. The Bronx DA has created and will maintain a request form for Claimants to make aDA Release Request that seeks release of Seized Property ("Request Form"). The Request Form will be provided to Claimants at the Bronx DA Propetiy Clerk Window and will be date-stamped at the time of submission. A copy of the current Request Form is appended to Exhibit "A," the Property Release Unit Standard Operating Procedure.
31. The Bronx DA has created, implemented, and will maintain the BXDA Property Release Application or another suitable computer program, which tracks the date Request Forms are submitted to the Bronx DA and the response time for each request.
32. Consistent with 38 RCNY § 12-34(b), along with a Request Form, aDA Release Request shall be accompanied by (a) a copy of the Voucher or, if the Voucher is lost or absent, an explanation for its loss or absence, (b) proper identification, and (c) suitable case identification, such as an arrest number, criminal case docket number, New York State 10 number (NYSID), or Voucher number. The Bronx DA may waive the requirements for a Voucher as set fotih in 38 RCNY 12-34(b) where the ADA copy of the Voucher is available.
33. Consistent with RCNY § 12-34(d), except as otherwise provided for in paragraph 37 of this Stipulation, after the Termination of Criminal Proceedings, the Bronx DA shall provide aDA Release to a Claimant upon request unless the DA determines that the Seized Property needs to be retained as evidence due to (i) a pending appeal; (ii) a collateral attack or notice that a collateral attack will be commenced; (iii) another specifically identified criminal proceeding or (iv) an ongoing identifiable criminal investigation.
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34. For cases that reach a disposition at arraignments and cases where the Bronx DA has declined prosecution, the Bronx DA will make reasonable efforts to issue a DA Response on the same day that the request is made.
35. In all other instances, the Bronx DA will issue aDA Response to submitted Request Forms no later than fifteen (15) days after submission for general property and in accordance with the Third Amended Order in Krimstock v. Kelly, 99 Civ. 12041 (HB) (S.D.N.Y. Oct. 1, 2007) for vehicles.
36. The Bronx DA shall not issue aDA Deferral Letter on the basis that a Claimant: (a) has other open cases unrelated to the property at issue; (b) has outstanding sentencing conditions, such as probation, community service, or fines; or (c) in instances where the underlying criminal case was resolved based on an adjournment in contemplation of dismissal, but the charges have not yet been dismissed.
37. The Bronx DA shall not issue aDA Deferral Letter solely on the basis of a possible or planned civil forfeiture proceeding that has not yet been commenced. Where a civil forfeiture proceeding has been commenced, the DA Deferral Letter will attach, when available, paperwork documenting the commencement of the civil forfeiture action or other case information, such as the court, case number, case status, and the agency that commenced the action.
38. In cases where aDA Deferral Letter is issued, the Bronx DA will inform Claimants in writing of their ability to seek review of the decision pursuant to 38 RCNY § I 234(e).
39. The Bronx DA has created and will maintain a Propetty Release Unit. A designated Bronx ADA will be available during the Unit's standard business hours to consult
9

Case 1:16-cv-00156-DLC Document 80 Filed 02/12/18 Page 10 of 22
with Property Release Unit staff where necessary to respond to inquiries and issues concerning submitted Request Forms.
40. The Bronx DA has created and will maintain a dedicated inquiry phone line to respond to inquiries regarding the status of submitted Request Forms, including whether a response from the Bronx DA is available and, if so, whether aDA Release or a DA Deferral Letter was issued.
41. The Bronx DA will, upon presentation of proper identification, permit attorneys for Claimants and employees of attorneys' legal fim1s to obtain a copy of aDA Release or DA Deferral Letter by submitting a written request, signed by an attorney, on the law firm's letterhead, stating that his or her legal firm represents the Claimant, and designating by name any employee of his or her legal firm to obtain the DA Release or DA Deferral Letter on behalf of the Claimant.
42. The Bronx DA Property Window, Property Release Unit, and inquiry phone line will operate during standard business hours, or at a minimum from 8:30am-4:00pm Monday through Friday, excluding holidays and other court closures.
43. The Bronx DA has implemented and will maintain policies and procedures, training, supervision, and monitoring programs sufficient to follow, apply, and ensure that the standards and protocols set forth in this Stipulation are met.
44. The Bronx DA will comply with 38 RCNY § 12-32(f) regarding the provision of notice of the procedures for obtaining return of property when a Claimant appears at arraignment.
45. The Bronx DA shall provide Counsel for Plaintiffs with quarterly reports setting fDlih the following information for each case in which Seized Propetiy was vouchered pursuant
10

Case 1:16-cv-00156-DLC Document 80 Filed 02/12/18 Page 11 of 22
to a defendant's arrest: (a) status of the case (open or closed); (b) date ofDA Release Request, if applicable; (c) date ofDA Response; and the (d) response issued; i.e. DA Release or DA Deferral Letter.
THE WORKING GROUP 46. Immediately following the Effective Date of this Stipulation, a Working Group will be established, which shall include representatives from each Settling Institutional Patty, including NYPD and Bronx DA personnel fully familiar with the property release procedures referenced in this Stipulation, as well as other representatives of Plaintiffs' and Defendant's choosing. The purpose of this Working Group will be to meet periodically to share information relevant to implementation of the Stipulation, share expertise on issues concerning property seizure and release, and address any disputes or proposals to modify the Stipulation under the procedures set fmth in paragraphs 47-51 herein. The patties shall maintain the Working Group during the two year period immediately following the Effective Date. The Settling Institutional Patties may voluntarily continue the Working Group beyond that time period and outside of the scope of this Stipulation.
RECOURSE UNDER THE STIPULATION 47. During the time period in which this Court retains jurisdiction over this Stipulation as specified in paragraph 66 below, any dispute arising out of or related to this Stipulation concerning any asserted failure by NYPD or the Bronx DA to comply with any provision of this Stipulation, or a request for a modification to this Stipulation by a Settling Institutional Party, may be submitted to this Court after following the procedure set forth in paragraphs 48-51. This Cowt may adjudicate any such dispute and grant all appropriate relief.
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Case 1:16-cv-00156-DLC Document 80 Filed 02/12/18 Page 12 of 22
48. Any Settling Institutional Party raising a dispute or seeking a modification related to this Stipulation shall provide the other Settling Institutional Parties to this Stipulation with prompt written notice specifying the nature of the dispute, along with a demand to promptly convene and attend a meeting of the Working Group. The Settling Institutional Patties shall make good faith efforts to convene the Working Group within twenty-one (21) days following the written notice.
49. Should the Defendant or the Bronx DA agree that it is not in compliance with any of the specified term(s) of the Stipulation after receipt of notice pursuant to paragraph 48 above, Defendant or the Bronx DA shall have a reasonable period of time to specifically perform said tem1(s) prior to any requests for judicial intervention, with such time period to be mutually agreed through the good faith effotts of the Settling Institutional Parties and their counsel, but such period shall be no fewer than twenty-one (21) days. Should the Defendant or the Bronx DA specifically perform the term(s) raised in said notice within such reasonable period of time, the Settling Institutional Parties shall not be required to convene the Working Group, and the Plaintiffs shall not have recourse to apply to the Court for any relief.
50. If representatives of the Settling Institutional Parties in the Working Group fail to convene within twenty-one (21) days following the written notice the parties may apply to the Court for appropriate relief; however, if the Working Group convenes and the Settling Institutional Parties are unable to reach agreement to resolve a modification or dispute, the party alleging non-compliance or seeking modification may not apply to the Coutt for appropriate relief until at least seven (7) days after convening the Working Group. A party may apply to the Court sooner if it is able to demonstrate to the Court that such action is justified in the circumstances.
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Case 1:16-cv-00156-DLC Document 80 Filed 02/12/18 Page 13 of 22
51. If at any time during the two year period immediately following the Effective Date, Defendant and/or the Bronx DA becomes aware of any change in federal or state law (including regulations, interpretation of law and regulations by authorized governmental agencies, and/or interpretations by the Courts), that Defendant and/or the Bronx DA believes changes their legal obligations or responsibilities under this Stipulation, Defendant and/or the Bronx DA shall make good faith efforts to promptly notify Plaintiffs' counsel once it has been determined a change to the stipulation is required. Defendant and/or the Bronx DA may immediately commence acting in accordance with the change in state or federal law and shall notify Plaintiffs' counsel of said change in action within fourteen (14) days of implementing the change. Following the procedure for modifications set forth in paragraphs 48-50 above, the Settling Institutional Parties shall attempt to come to an agreement as to any proposed modifications to the Stipulation that arc warranted by the change in state or federal laws, interpretation of law and regulations by authorized governmental agencies, and/or interpretations by the Courts. If representatives of the Settling Institutional Parties in the Working Group fail to convene within twenty-one (21) days following the wl'itten notice, the party opposing the modification may submit the dispute to the Coutt; however, if the Working Group convenes and the Settling Institutional Parties are unable to reach an agreement, the patty opposing the modification may not submit the dispute to the Court until at least seven (7) days after convening the Working Group. A party may apply to the Court sooner if it is able to demonstrate to the Court that such action is justified in the circumstances. Any application to the Court with respect to alleged changes in the law shall be made pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. Should the party opposing the modification fail to submit a dispute to the Court pursuant to this paragraph, Defendant and the Bronx DA may continue acting in accordance with
13

Case 1:16-cv-00156-DLC Document 80 Filed 02/12/18 Page 14 of 22
the change, notwithstanding that it may not otherwise comply with the provisions of this Stipulation. The filing by Plaintiffs of an appeal of an adverse decision by the Court shall not operate as a stay of Defendant's right to implement the proposed modification without further order of the District Court or the Court of Appeals.
52. Subsequent to the two-year period immediately following the Effective Date of this Stipulation, Defendant and/or the Bronx DA may act in a manner consistent with the law notwithstanding the fact that their actions may not be consistent with the terms of this Stipulation; and the Defendant and Bronx DA shall not be required to notify Plaintiffs of any such change in their actions.
53. The remedies with regard to specific individuals for alleged improper delay in the issuance of a DA Response or denial of the issuance of a DA Release by the Bronx DA, or the denial of the release of Seized Property held by the NYPD Property Clerk, which do not suggest a systematic pattern of non-compliance with the terms of this Stipulation, shall lie exclusively in the available State and City administrative remedies, subject to review under the procedures governed by city and state laws and rules.
NOTICES 54. All notices under the Stipulation shall be delivered by overnight mail or overnight courier, with an additional copy by email, and shall be addressed as follows:
FOR THE PLAINTIFFS: Johanna B. Steinberg The Bronx Defenders 360 East 161 st Street Bronx, NY 10451 Email: johannas@bronxdefenders.org
FOR THE DEFENDANT
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Case 1:16-cv-00156-DLC Document 80 Filed 02/12/18 Page 15 of 22
Aviva Horowitz, Assistant Corporation Counsel New York City Law Depatiment, Administrative Law Division I 00 Church Street, New York, NY 10007 Email: ahorowit@law.nyc.gov
and
Sherrill Kurland, Assistant Corporation Counsel New Yorlc City Law Depmiment, Administrative Law Division I 00 Church Street, New York, NY 10007 Email: skurland@law.nyc.gov
FOR THE BRONX DA:
Julian B. O'Connor, General Counsel Office the District Attorney, Bronx County 198 E. 16lst Street Bronx, New York 10451 Email: OconnOtjb@Bronxda.nyc.gov 55. The Settling Institutional Parties may substitute the individual designated to receive notice by advising all other parties in a writing sent by overnight mail or overnight
courier, and by email. INDIVIDUAL PLAINTIFFS' DAMAGES CLAIMS
56. The Bronx DA has issued DA Releases to the Individual Plaintiffs for the Seized
Property referred to in the Amended Complaint. 57. The NYPD Property Clerk has released the Individual Plaintiffs' Seized Property
referred to in the Amended Complaint. 58. Defendant will pay a total of$10,000 in full and complete satisfaction of any and
all of the Individual Plaintiffs' damages claims, except for attorneys' fees and litigation expenses. The payments shall be made by check or check(s) within ninety (90) days of receipt
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Case 1:16-cv-00156-DLC Document 80 Filed 02/12/18 Page 16 of 22
by the Office of Corporation Counsel of the following executed documents and information by Plaintiffs: (1) the Stipulation of Settlement and Order; (2) the agreed upon Release forms; (3) Affidavits ofNo Liens; (4) W-9 forms; and (5) dates of birth and social security numbers. The check(s) will be made out to each Individual Plaintiff and delivered to Johanna B. Steinberg, The Bronx Defenders, 360 East 161'' Street, Bronx, NY 10451. Plaintiffs' counsel will be responsible for remitting this sum to the Individual Plaintiffs.
59. The Individual Plaintiffs represent that they are not Medicare recipients at the time this Stipulation is executed or at any time prior thereto. Plaintiffs shall hold Defendant and the Bronx DA harmless for any Medicare liens, and for past and/or future Medicare payments, presently known or unknown, in connection with this matter. If conditional and/or future anticipated Medicare payments have not been satisfied, Defendant reserves the right to issue a multiparty settlement check naming Medicare as a payee or to issue a check to Medicare directly based upon Medicare's final demand letter.
PLAINTIFFS' RELEASE OF CLAIMS 60. In consideration of the tenns and conditions called for herein, Plaintiffs remise, remit, release and completely and forever discharge Defendant and the Bronx DA, their departments, officials, agents, attorneys, servants, representatives, and employees and all other persons with whom any of the former have been, are now or may hereinafter be affiliated, of and from any and all past or present claims, demands, obligations, actions, causes of actions, suits, rights, damages, debts, sums of money, costs, expenses, and any claims, in law and equity, for relief or punitive or other damages of any type which have accrued as of the Effective Date of this Agreement, and which relate to the allegations contained in, or arising fi·om, the Complaint and Amended Complaint in this action, except as othetwise provided for in paragraph 61 of this
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Case 1:16-cv-00156-DLC Document 80 Filed 02/12/18 Page 17 of 22
Stipulation. Each of the Plaintiffs hereby acknowledges and agrees to sign the agreed upon release form as a condition for payment of damages. The Individual Plaintiffs further hereby waive, release and forever discharge Defendant and the Bronx DA from any and all claims, known or unknown, past and/or future conditional payments, arising out of the Plaintiffs Medicare eligibility and receipt of Medicare benefits related to the claimed injury in this matter and/or arising out of the provision of primary payment (or appropriate reimbursement) including causes of action pursuant to 42 U.S.C. §1395y(b)(3)A of the Medicare, Medicaid and SCHIP Extension Act of 2007.
ATTORNEYS' FEES AND COSTS 61. Defendant agrees to pay Plaintiffs' reasonable costs and attorneys' fees through the Effective Date, either pursuant to stipulation or if a stipulation is not entered into, pursuant to the Order of the Court. If the Defendant and Plaintiffs cannot resolve the matter of costs and attorneys' fees via stipulation, Defendant agrees to pay Plaintiffs' reasonable costs and attorneys' fees associated with negotiating and litigating a fee application to the Coutt, in the event that such fees associated with negotiating and litigating a fee application are awarded by the Court. Plaintiffs and Defendant agree that, if a stipulation to pay Plaintiffs' reasonable costs and attorneys' fees is not executed within 14 days after the Effective Date of this Stipulation, then the deadline set forth for filing a motion for attorneys' fees and related non-taxable expenses under Rule 54(d)(2)(B) of the Rules of Civil Procedure will be extended by four months and may be further extended by subsequent agreement of Plaintiffs and the Defendant or as the Coutt permits. 62. Plaintiffs reserve their rights to seek attorneys' fees and costs after the Effective Date of this Stipulation, and Defendant reserves its rights to oppose such fees and costs. If any
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Case 1:16-cv-00156-DLC Document 80 Filed 02/12/18 Page 18 of 22
dispute arises concerning attorneys' fees and costs after the Effective Date, Plaintiffs may submit an application to the Court for reasonable costs and attorneys' fees associated with the enforcement of this Stipulation.
63. Plaintiffs shall not seek any costs or attorney's fees from the Bronx DA in connection with this litigation.
MODIFICATION OF THE AGREEMENT 64. The terms of this Stipulation may only be modified by a written agreement signed by the attorneys for all of the Settling Institutional Parties, or upon an Order of the Comi.
EFFECT OF SETTLEMENT STIPULATION AND RELEASE 65. The terms of this Stipulation shall be a full, final, and complete resolution ofthis action. 66. Upon the execution and "so-ordering" of this Stipulation, the action will be dismissed. This Comi will retain Jurisdiction to hear and resolve disputes arising under or related to this Stipulation and to otherwise enforce the terms of this Stipulation for a period of two years following the Effective Date of this Stipulation. During the period in which this Court retains jurisdiction over this Stipulation, Plaintiffs shall not commence any action or proceeding against the Bronx DA or the Defendant arising from the terms of this agreement and Stipulation except as otherwise provided in this Stipulation. 67. This Stipulation contains all the terms and conditions agreed upon by the Individual Plaintiffs and the Settling Institutional Parties, and there are no other terms relied upon by the Individual Plaintiffs and the Settling Institutional Parties, verbal or otherwise. 68. This Stipulation may be signed in multiple counterparts and all counterpatis when so executed shall together be deemed one final original instrument.
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Case 1:16-cv-00156-DLC Document 80 Filed 02/12/18 Page 19 of 22
69. If for any reason any provision of this Stipulation is determined to be invalid or unenforceable, the remaining provisions of this Stipulation shall be construed, perfmmed, or enforced as if the invalidated or unenforceable provision had not been included in the text of the Stipulation.
70. The Individual Plaintiffs and the Settling Institutional Parties agree that this Stipulation shall not be construed as an admission of wrongdoing on the part of the Plaintiffs, the City, or the Bronx DA.
71. The Individual Plaintiffs and the Settling Institutional Parties agree that any discussion, admission, concession, or offer to settle, whether oral or written, made during any negotiation concerning this Stipulation, shall be treated as compromise offers and negotiations covered by the restrictions of Federal Rule of Evidence 408.
72. The Settling Institutional Parties agree that any matter raised in the context of the Working Group refened to in this Stipulation, including but not limited to any discussion, admission, concession or offer to settle, whether oral or written, shall be treated as compromise offers and negotiations covered by the restrictions of Federal Rule of Evidence 408.
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Case 1:16-cv-00156-DLC Document 80 Filed 02/12/18 Page 20 of 22

Dated: February 21., 2018
New York, NY
THE BRONX DEFENDERS
Attorneys for PlaintiffS
BOIES SCHILLER FLEXNER LLP Eric J. Brenner Nafees Syed 575 Lexington Avenue New York, NY 10022 Telephone: (212) 446-2300 Facsimile: (212) 446-2350 By:-------Attorneys for Plaintiffs Kaleb Hagos and The Bronx Defenders
SO ORDERED:
United States District Judge Dated:

ZACHARY W. CARTER Corporation Counsel of the City of New York Sherrill M. Kurland Aviva Horowitz I 00 Church Street, Room 2-113 New York, NY 10007 Telephone: (212) 356-2176 Facsimile: (213) 346-2019 By: _ _ _ _ _ __
Attorneys for Defendant City ofNew York
OFFICE OF THE BRONX COUNTY DISTRICT ATTORNEY Julian Bond O'Connor 198 E. 161st Street Bronx, New York 10451 Telephone: (718) 838-7456 Facsimile: (718) 992-0545 By: _ _ _ _ _ __
General Counsel, Bronx DA Office

20

Case 1:16-cv-00156-DLC Document 80 Filed 02/12/18 Page 21 of 22

Dated: February~O 18 New York, NY
THE BRONX DEFENDERS Niji Jain Johanna B. Steinberg Adam N. Shoop 360 East 161 st Street Bronx, New York I 0451 Telephone: (718) 838-7878 Facsimile: (718) 665-0 I 00 By: _ _ _ _ _ __
Altorneysfor Plaintiffs
BOIES SCHILLER FLEXNER LLP Eric J. Brenner Nafees Syed 575 Lexington Avenue New York, N 10022 Teleph e: 2) 446-2300 Facsi lie: ( 2 46-2350 By: -
Attorneysfor Plaintiffs Kaleb Hagos and The Bronx Defenders
SO ORDERED:
United States District Judge Dated:

ZACHARY W. CARTER Corporation Counsel of the City of New York Sherrill M. Kurland Aviva Horowitz 100 Church Street, Room 2-113 New York, NY I 0007 Telephone: (212) 356-2176 Facsimik: (213) 346-2019 By:--------
Attorneys for Defendant City ofNew York
OFFICE OF THE BRONX COUNTY DISTRICT ATTORNEY Julian Bond O'Connor 198 E. 161st Street Bronx, New York I 0451 Telephone: (718) 838-7456 Facsimile: (718) 992-0545 By:--------
General Counsel, Bronx DA Office

20

Case 1:16-cv-00156-DLC Document 80 Filed 02/12/18 Page 22 of 22

Dated: February~· 2018
New York, NY
THE BRONX DEFENDERS Niji Jain Johanna B. Steinberg Adam N. Shoop 360 East 16lst Street Bronx, New York 10451 Telephone: (718) 838-7878 Facsimile: (718) 665-0100 By:,._______________
Attorneysfor Plaintiffs
BOIES SCIDLLER FLEXNER LLP Eric J. Brenner Nafees Syed 575 Lexington Avenue New York, NY I 0022 Telephone: (212) 446-2300 Facsimile: (212) 446-2350
By:~-
Attorneys for Plaintiffs Kaleb Hagos and The Bronx Defenders
SO ORDERED:
United States District Judge Dated:

ZACHARY W. CARTER

Corporation Counsel of the City of

New York

,,C, Sherrill M. Kurland
Aviva Horowitz 100 Church Street, Room 2-113
New York, NY I 0007 Telephone: (212) 356-21J Facsin lc: (213) 346-2YY! . . ~.____

By: .

~)

~­
Attorneysfor Defendant City ofNew York

OFFICE OF THE BRONX COUNTY

DISTRICT ATTORNEY

Julian Bond O'Connor

198 E. 16lst Street

Bronx, New York 10451

Telephone: (718) 838-7456

Facsimile: (7,18) 99[.:'t-4~

~-

13(_y_-_:.-._--.-r<-7~,,Lu,,.,.__C( >'" £_ •=--oI.-._/___ 7

General Counsel, Bronx DA Office

20

Case 1:16-cv-00156-DLC Document 80-4 Filed 02/12/18 Page 1 of 3
EXHIBITD

Case 1:16-cv-00156-DLC Document 80-4 Filed 02/12/18 Page 2 of 3

·PCD# 2017·219 SSB# 17-121\Q

J'()LictmEPARTMENJ ctn' OF NEW VORJ(

November 30, 2017

From:

Commandlns Officer,l!roperty Clotk· Division

To:

~·Comml$11101101'. SupPQi't Services 8\lmiQ

Sub]ecc

ltEVISlt&PROCEDIJRES FORCWMING PROI'ltltTV RECOMMii:NDATioNs ANI>70R COMMENTS

I. Upon further revlow, the Property Clotk DMsi911· I'OC<lmmottdations arc·es follows:

• An. ~plo)>ce of attOrney finn. mUSI 6\lbmit a ~ W!iUen ltqUeOI on an officllll I~·SIII!lns t1w1 they repr-d the indlvidlllll from. whom the property wes tal<en or
the lAWful ownor of1he p!llp011y.

· • A.sitllllc valld JIOvemmetll issued pholll ldcntltlcatlon bearing the apPropriate· name

and ~IW or two (2) fqnns dfldeilllflcaU<II\s (photo llllil: non-photo) ofthe cialtnMt

shall be sufficit:llt proot'ofldcntitY (M J1l1!' i'CD. Mmln Mcmo112015-13).

.

• In ci~ where a claimant ~ksthe rolum ofsel:wd property and a clalmanfs
proot'of.ldcntlty hall boon vo\lcltmd,lndlvlduols wod\inJJ:ln property retrieval roles of
tl!C.NYPO P.ropeny Clerk must rettleve d1c ptlll)ft>f ~~~tlty from the Inventory bags to !llleil'pl.to vcriJY llle clalrmult'n i.doll!lty. ltveritied.·lhllt·IP wi)l et>nstitute sufficient
pmofofidendty.

2. For your lnfbrmalion.

TS/te
SSB RCVD'l1DEC112•44

----~u•• - - - · · · " · · - · · - - - - - - - - - - -

Case 1:16-cv-00156-DLC Document 80-4 Filed 02/12/18 Page 3 of 3

SSB# 17-1269A LB# 2295-2017 . DCLM# 659/2017
PCD# 2017-219

FOURTH ENDORSEMENT

Deputy Commissioner, Support Services Bureau to Deputy Commissioner, Legal Matters, January 18, 2018. Contents noted. Concur with the revision recommended by the Deputy Commissioner, Legal Matters to comply with the terms with a settlement of
Encarnacion v. The City ofNew York, 16-cv-156, regarding the revised procedures for
claiming property from all Property Clerk locations:

"If a person submits voucher, a copy of a

a written request
voucher shall be

signed by provided.

an attorney for a copy of their client's The attorney must state in writing that

they represent the individual form whom the property was taken or the lawful owner of

the property."

For your REVIEW and CONSIDERATION.

0Ro,(b!eP"~-~-zzv:::Y:.::
Deputy Commissioner

RSM/ra C:C.O.,PCD

 
 CLOSED,CASREF,ECF
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:16−cv−00156−DLC

Encarnacion et al v. City Of New York Assigned to: Judge Denise L. Cote Referred to: Magistrate Judge James C. Francis (Settlement) Cause: 42:1983cvp Civil Rights (Personal Property)
Plaintiff

Date Filed: 01/08/2016 Date Terminated: 02/12/2018 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

The Bronx Defenders

represented by Adam Nicholas Shoop The Bronx Defenders 360 East 161st Street Bronx, NY 10451 (718)−838−7839 Fax: (347)−842−1222 Email: adams@bronxdefenders.org ATTORNEY TO BE NOTICED

Eric Brenner Boies Schiller Flexner LLP 55 Hudson Yards New York, NY 10001 212−446−2300 Email: ebrenner@bsfllp.com ATTORNEY TO BE NOTICED

Johanna Beth Steinberg The Bronx Defenders 360 East 161st Street Bronx, NY 10451 718−508−3447 Fax: 718−838−7819 Email: johannas@bronxdefenders.org ATTORNEY TO BE NOTICED

Niji Jain The Bronx Defenders 360 East 161st Street Bronx, NY 10451 718−838−7878 Fax: 718−665−0100 Email: nijij@bronxdefenders.org ATTORNEY TO BE NOTICED

Mariana Louise Kovel The Bronx Defenders 860 Courtlandt Ave Bronx, NY 10451 (718)−508−3421 Fax: (718)−508−3542 Email: mkovel@nyclu.org TERMINATED: 08/08/2016 ATTORNEY TO BE NOTICED

Plaintiff Kenneth Clavasquin

represented by Mariana Louise Kovel (See above for address) TERMINATED: 08/08/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Kaleb Hagos
Plaintiff Victor Encarnacion
V. Defendant City Of New York

Adam Nicholas Shoop (See above for address) ATTORNEY TO BE NOTICED
Johanna Beth Steinberg (See above for address) ATTORNEY TO BE NOTICED
Niji Jain (See above for address) ATTORNEY TO BE NOTICED
represented by Mariana Louise Kovel (See above for address) TERMINATED: 08/08/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam Nicholas Shoop (See above for address) ATTORNEY TO BE NOTICED
Johanna Beth Steinberg (See above for address) ATTORNEY TO BE NOTICED
Niji Jain (See above for address) ATTORNEY TO BE NOTICED
Eric Brenner (See above for address) ATTORNEY TO BE NOTICED
represented by Adam Nicholas Shoop (See above for address) ATTORNEY TO BE NOTICED
Johanna Beth Steinberg (See above for address) ATTORNEY TO BE NOTICED
Niji Jain (See above for address) ATTORNEY TO BE NOTICED
Mariana Louise Kovel (See above for address) TERMINATED: 08/08/2016 ATTORNEY TO BE NOTICED
represented by Aviva Yocheved Horowitz Office of The Corporation Counsel 100 Church St New York, NY 10007 (917)−868−1122

Email: ahorowit@law.nyc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Diana Marsh Murray NYC Law Department, Office of the Corporation Counsel (NYC) 100 Church Street New York, NY 10007 (212) 356−2182 Fax: (212) 791−9714 Email: dmurray@law.nyc.gov ATTORNEY TO BE NOTICED
Samantha Michelle Schonfeld New York City Law Department 100 Church Street New York, NY 10007 (908)−812−3341 Email: sschonfe@law.nyc.gov ATTORNEY TO BE NOTICED

Date Filed 01/08/2016 01/08/2016 01/08/2016 01/08/2016 01/11/2016
01/11/2016
01/11/2016 01/11/2016 01/11/2016 01/11/2016 01/13/2016

# Docket Text
1 COMPLAINT against City Of New York. (Filing Fee $ 400.00, Receipt Number 0208−11817861)Document filed by Victor M. Encarnacion, The Bronx Defenders.(Kovel, Mariana) (Entered: 01/08/2016)
2 REQUEST FOR ISSUANCE OF SUMMONS as to City of New York, re: 1 Complaint. Document filed by Victor M. Encarnacion, The Bronx Defenders. (Kovel, Mariana) (Entered: 01/08/2016)
3 CIVIL COVER SHEET filed. (Kovel, Mariana) (Entered: 01/08/2016)
4 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by The Bronx Defenders.(Kovel, Mariana) (Entered: 01/08/2016)
***NOTICE TO ATTORNEY REGARDING PARTY MODIFICATION. Notice to attorney Mariana Louise Kovel. The party information for the following party/parties has been modified: Victor M. Encarnacion. The information for the party/parties has been modified for the following reason/reasons: party name contained a typographical error. (pc) (Entered: 01/11/2016)
CASE OPENING INITIAL ASSIGNMENT NOTICE: The above−entitled action is assigned to Judge Denise L. Cote. Please download and review the Individual Practices of the assigned District Judge, located at http://nysd.uscourts.gov/judges/District. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF Rules and Instructions, located at http://nysd.uscourts.gov/ecf_filing.php. (pc) (Entered: 01/11/2016)
Magistrate Judge James C. Francis IV is so designated. (pc) (Entered: 01/11/2016)
Case Designated ECF. (pc) (Entered: 01/11/2016)
5 ELECTRONIC SUMMONS ISSUED as to City Of New York. (pc) (Entered: 01/11/2016)
6 NOTICE OF APPEARANCE by Adam Nicholas Shoop on behalf of Victor Encarnacion, The Bronx Defenders. (Shoop, Adam) (Entered: 01/11/2016)
7 NOTICE OF INITIAL PRETRIAL CONFERENCE (Notice): Initial Conference set for 3/11/2016 at 11:00 AM in Courtroom 15B, 500 Pearl Street, New York, NY 10007 before Judge Denise L. Cote. −Please follow the procedures set forth in the Notice. (Signed by Judge Denise L. Cote on 1/13/2016) (gr) (Entered: 01/13/2016)

01/22/2016 01/27/2016 01/27/2016 02/01/2016 02/02/2016 02/19/2016 02/19/2016
03/10/2016 03/14/2016 03/17/2016 03/17/2016 03/18/2016 03/18/2016 03/21/2016
03/29/2016
03/29/2016

8 AFFIDAVIT OF SERVICE. City Of New York served on 1/13/2016, answer due 2/3/2016. Service was accepted by B. YEE AUTHORIZED AGENT. Document filed by Victor Encarnacion; The Bronx Defenders. (Shoop, Adam) (Entered: 01/22/2016)
9 NOTICE OF APPEARANCE by Aviva Yocheved Horowitz on behalf of City Of New York. (Horowitz, Aviva) (Entered: 01/27/2016)
10 NOTICE OF APPEARANCE by Johanna Beth Steinberg on behalf of Victor Encarnacion, The Bronx Defenders. (Steinberg, Johanna) (Entered: 01/27/2016)
11 FIRST LETTER MOTION for Extension of Time addressed to Judge Denise L. Cote from Aviva Y. Horowitz dated February 1, 2016. Document filed by City Of New York.(Horowitz, Aviva) (Entered: 02/01/2016)
12 ENDORSED letter addressed to Judge Denise L. Cote from Aviva Y. Horowitz dated February 1, 2016 re: City of New York's Letter request for extension of Time to answer from 2/3/016 to 3/11/2016. ENDORSEMENT: The extension is granted to 3/10/16. (Signed by Judge Denise L. Cote on 2/2/2016) (gr) (Entered: 02/02/2016)
13 LETTER MOTION to Adjourn Conference addressed to Judge Denise L. Cote from Aviva Y. Horowitz dated February 19, 2016. Document filed by City Of New York.(Horowitz, Aviva) (Entered: 02/19/2016)
14 ENDORSED LETTER addressed to Judge Cote from Aviva Y. Horowitz dated February 19, 2016 requesting the adjournment of the February 26, 2016 Conference with consent of Plaintiff. ENDORSEMENT: The conference is adjourned to March 18 at 11:30 a.m. (Signed by Judge Denise L. Cote on 2/19/2016) (gr) (Entered: 02/19/2016)
15 ANSWER to 1 Complaint. Document filed by City Of New York.(Horowitz, Aviva) (Entered: 03/10/2016)
16 NOTICE OF APPEARANCE by Eric Brenner on behalf of The Bronx Defenders. (Brenner, Eric) (Entered: 03/14/2016)
17 NOTICE OF CHANGE OF ADDRESS by Johanna Beth Steinberg on behalf of All Plaintiffs. New Address: The Bronx Defenders, 360 East 161st Street, Bronx, New York, United States 10451, 718.508.3447. (Steinberg, Johanna) (Entered: 03/17/2016)
18 NOTICE OF APPEARANCE by Aviva Yocheved Horowitz on behalf of City Of New York. (Horowitz, Aviva) (Entered: 03/17/2016)
19 COURT EXHIBIT 1 (Property Clerk Division Acknowledgement of Demand Form) marked on March 18, 2016 during the initial conference proceeding. (gr) (Entered: 03/18/2016)
Minute Entry for proceedings held before Judge Denise L. Cote: Initial Pretrial Conference held on 3/18/2016. (Court Reporter Sonya Huggins) (gr) (Entered: 03/18/2016)
20 PRETRIAL SCHEDULING ORDER: As set forth at the pretrial conference held pursuant to Rule 16, Fed. R. Civ. P., on March 18, 2016, the following schedule shall govern the further conduct of pretrial proceedings in this case: 1) The parties shall submit a status letter to the Court by April 21, 2016. 2)The following motion will be served by the dates indicated below. Defendants motion to dismiss: Motion served by May 13, 2016; Opposition served by June 3, 2016; Reply served by June 10, 2016.... (Signed by Judge Denise L. Cote on 3/21/2016) (gr) (Entered: 03/21/2016)
21 TRANSCRIPT of Proceedings re: CONFERENCE held on 3/18/2016 before Judge Denise L. Cote. Court Reporter/Transcriber: Sonya Ketter Huggins, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 4/22/2016. Redacted Transcript Deadline set for 5/2/2016. Release of Transcript Restriction set for 6/30/2016.(McGuirk, Kelly) (Entered: 03/29/2016)
22 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 3/18/16 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven

04/21/2016 04/21/2016
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05/17/2016 05/17/2016
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(7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 03/29/2016)
23 STATUS REPORT. AND REQUEST FOR EXTENSION OF TIME Document filed by City Of New York.(Horowitz, Aviva) (Entered: 04/21/2016)
24 ENDORSED LETTER addressed to Judge Denise L. Cote from Aviva Horowitz dated 4/21/16 re STATUS REPORT AND REQUEST FOR EXTENSION OF TIME to submit a status letter by May 12, 2016 and to amend the briefing schedule for motion to dismiss. ENDORSEMENT: Granted. (Signed by Judge Denise L. Cote on 4/21/2016) (gr) (Entered: 04/21/2016)
25 STATUS REPORT. Document filed by City Of New York.(Horowitz, Aviva) (Entered: 05/12/2016)
26 ENDORSED LETTER addressed to Judge Denise L. Cote from Aviva Y. Horowitz dated 5/12/2016 re: defendant is prepared to proceed with the motion to dismiss the action with the briefing schedule set forth in the April 21, 2016 status letter approved by the Court.... ENDORSEMENT: So Ordered. (Signed by Judge Denise L. Cote on 5/13/2016) (gr) (Entered: 05/13/2016)
27 ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for Settlement. Referred to Magistrate Judge James C. Francis. (Signed by Judge Denise L. Cote on 5/13/2016) (gr) (Entered: 05/17/2016)
28 ORDER: On May 12, 2016, the defendant submitted a status report in the above−captioned matter. Accordingly, it is hereby ORDERED that, by Tuesday, May 17 at 5:00 p.m., the parties shall contact the chambers of Magistrate Judge Francis to schedule settlement discussions under his supervision. Those settlement discussions are to take place in June. (Signed by Judge Denise L. Cote on 5/13/2016) (gr) (Entered: 05/17/2016)
29 LETTER addressed to Judge Denise L. Cote from Eric Brenner dated May 25, 2016 re: Amended Complaint. Document filed by The Bronx Defenders.(Brenner, Eric) (Entered: 05/25/2016)
30 LETTER addressed to Judge Denise L. Cote from Eric Brenner dated June 2, 2016 re: Amended Complaint. Document filed by The Bronx Defenders.(Brenner, Eric) (Entered: 06/02/2016)
31 FIRST AMENDED COMPLAINT amending 1 Complaint against City Of New York with JURY DEMAND.Document filed by Victor Encarnacion, The Bronx Defenders, Kenneth Clavasquin, Kaleb Hagos. Related document: 1 Complaint filed by The Bronx Defenders, Victor Encarnacion.(Brenner, Eric) (Entered: 06/03/2016)
32 MOTION to Certify Class . Document filed by Kenneth Clavasquin, Victor Encarnacion, Kaleb Hagos, The Bronx Defenders.(Brenner, Eric) (Entered: 06/08/2016)
33 MEMORANDUM OF LAW in Support re: 32 MOTION to Certify Class . . Document filed by Kenneth Clavasquin, Victor Encarnacion, Kaleb Hagos, The Bronx Defenders. (Brenner, Eric) (Entered: 06/08/2016)
34 DECLARATION of Eric Brenner in Support re: 32 MOTION to Certify Class .. Document filed by Kenneth Clavasquin, Victor Encarnacion, Kaleb Hagos, The Bronx Defenders. (Brenner, Eric) (Entered: 06/08/2016)
35 FILING ERROR − DEFICIENT DOCKET ENTRY (SEE 41 Declaration) − DECLARATION of Mariana Kovel in Support re: 32 MOTION to Certify Class . Document filed by Kenneth Clavasquin, Victor Encarnacion, Kaleb Hagos, The Bronx Defenders. (Brenner, Eric) Modified on 6/8/2016 (db). (Entered: 06/08/2016)
36 DECLARATION of Michael Pope in Support re: 32 MOTION to Certify Class .. Document filed by Kenneth Clavasquin, Victor Encarnacion, Kaleb Hagos, The Bronx Defenders. (Attachments: # 1 Exhibit Vargas Article 78 Notice of Petition)(Brenner,

06/08/2016 06/08/2016
06/08/2016 06/08/2016 06/08/2016 06/09/2016 06/09/2016 06/09/2016 06/09/2016
06/10/2016
06/13/2016 06/14/2016
06/16/2016 06/16/2016

Eric) (Entered: 06/08/2016)
37 DECLARATION of Lisa Schreibersdorf in Support re: 32 MOTION to Certify Class .. Document filed by Kenneth Clavasquin, Victor Encarnacion, Kaleb Hagos, The Bronx Defenders. (Brenner, Eric) (Entered: 06/08/2016)
38 DECLARATION of Adam Shoop in Support re: 32 MOTION to Certify Class .. Document filed by Kenneth Clavasquin, Victor Encarnacion, Kaleb Hagos, The Bronx Defenders. (Attachments: # 1 Exhibit NYPD Property Clerk Division 2013 Accounting Summary, # 2 Exhibit Police Department City of New York Revenue Generated for July 1, 2012 to June 30, 2013, # 3 Exhibit Report on the Fiscal 2017 Preliminary Budget and the Fiscal 2016 Preliminary Mayors Management Report New York Police Department)(Brenner, Eric) (Entered: 06/08/2016)
39 DECLARATION of Alexandra Rockoff in Support re: 32 MOTION to Certify Class .. Document filed by Kenneth Clavasquin, Victor Encarnacion, Kaleb Hagos, The Bronx Defenders. (Brenner, Eric) (Entered: 06/08/2016)
40 DECLARATION of Steven Wasserman in Support re: 32 MOTION to Certify Class .. Document filed by Kenneth Clavasquin, Victor Encarnacion, Kaleb Hagos, The Bronx Defenders. (Brenner, Eric) (Entered: 06/08/2016)
41 DECLARATION of Mariana Kovel in Support re: 32 MOTION to Certify Class .. Document filed by Kenneth Clavasquin, Victor Encarnacion, Kaleb Hagos, The Bronx Defenders. (Brenner, Eric) (Entered: 06/08/2016)
42 LETTER MOTION to Adjourn Conference and Extend Time to Submit Pre−Mediation Memo addressed to Magistrate Judge James C. Francis IV from Aviva Y. Horowitz dated June 9, 2016. Document filed by City Of New York.(Horowitz, Aviva) (Entered: 06/09/2016)
43 NOTICE OF APPEARANCE by Mariana Louise Kovel on behalf of Kenneth Clavasquin, Kaleb Hagos. (Kovel, Mariana) (Entered: 06/09/2016)
44 NOTICE OF APPEARANCE by Adam Nicholas Shoop on behalf of Kenneth Clavasquin, Kaleb Hagos. (Shoop, Adam) (Entered: 06/09/2016)
45 SCHEDULING ORDER: On June 8, 2016, the plaintiffs filed a motion for class certification under Rule 23, Fed. R. Civ. P. Accordingly, it is hereby ORDERED that that defendants opposition is due on Friday, July 8. The plaintiffs reply, if any, is due by Friday, July 22.... (Signed by Judge Denise L. Cote on 6/9/2016) (gr) (Entered: 06/09/2016)
46 LETTER RESPONSE in Opposition to Motion addressed to Magistrate Judge James C. Francis IV from Eric Brenner dated June 10, 2016 re: 42 LETTER MOTION to Adjourn Conference and Extend Time to Submit Pre−Mediation Memo addressed to Magistrate Judge James C. Francis IV from Aviva Y. Horowitz dated June 9, 2016. . Document filed by Kenneth Clavasquin, Victor Encarnacion, Kaleb Hagos, The Bronx Defenders. (Brenner, Eric) (Entered: 06/10/2016)
47 NOTICE OF APPEARANCE by Johanna Beth Steinberg on behalf of Kenneth Clavasquin, Kaleb Hagos. (Steinberg, Johanna) (Entered: 06/13/2016)
48 ORDER denying 42 Letter Motion to Adjourn Conference. The amendments to the complaint do not appear to materially affect any potential settlement. Moreover, delaying settlement discussions could disrupt the schedule for moving for class certification. (HEREBY ORDERED by Magistrate Judge James C. Francis)(Text Only Order) (Francis, James) (Entered: 06/14/2016)
49 FIRST LETTER MOTION for Extension of Time to File Answer to Amended Complaint addressed to Judge Denise L. Cote from Aviva Y. Horowitz dated June 16, 2016. Document filed by City Of New York.(Horowitz, Aviva) (Entered: 06/16/2016)
50 MEMO ENDORSEMENT granting 49 Letter Motion for Extension of Time for City Of New York to answer until 7/8/2016 addressed to Judge Denise L. Cote from Aviva Y. Horowitz dated June 16, 2016. (Signed by Judge Denise L. Cote on 6/16/2016) (gr) (Entered: 06/16/2016)

06/20/2016 06/21/2016 07/06/2016 07/25/2016 07/25/2016 07/25/2016
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03/15/2017 03/15/2017 03/29/2017 04/07/2017

51 SECOND LETTER MOTION for Extension of Time to File Answer to Amended Complaint and for Extension of Time to Respond to the Plaintiffs' Motion for Class Certification addressed to Judge Denise L. Cote from Aviva Y. Horowitz dated June 20, 2016. Document filed by City Of New York.(Horowitz, Aviva) (Entered: 06/20/2016)
52 MEMO ENDORSEMENT granting 51 Letter Motion for Extension of Time for City Of New York to answer the Amended Complaint by 7/29/2016 and an extension of time to respond to the Plaintiffs' Motion for Class Certification by 8/17/2016 addressed to Judge Denise L. Cote from Aviva Y. Horowitz dated June 20, 2016. (Signed by Judge Denise L. Cote on 6/21/2016) (gr) (Entered: 06/21/2016)
Minute Entry for proceedings held before Magistrate Judge James C. Francis: Settlement Conference held on 7/6/2016. (Bacchus, Michael) (Entered: 07/07/2016)
53 FIRST LETTER MOTION to Stay all proceedings in the instant matter addressed to Judge Denise L. Cote from Aviva Y. Horowitz dated July 25, 2016. Document filed by City Of New York. (Attachments: # 1 Text of Proposed Order Stay)(Horowitz, Aviva) (Entered: 07/25/2016)
54 STIPULATION......by and between counsel to the respective parties in the above−captioned actions, that all proceedings in this instant matter shall be stayed through February 28, 2017 while the parties work toward a possible settlement..... (Signed by Judge Denise L. Cote on 7/25/2016) (gr) (Entered: 07/25/2016)
55 ORDER: On June 8, 2016, the plaintiffs filed a motion for class certification under Rule 23, Fed. R. Civ. P. On July 25, the parties filed a stipulation agreeing to stay the above−captioned action for six months while the terms of an initial settlement are implemented. Accordingly, it is hereby ORDERED that the plaintiffs June 8, 2016 motion for class certification is denied without prejudice to renewal upon the expiration of the six−month stay. (Signed by Judge Denise L. Cote on 7/25/2016) (gr) (Entered: 07/25/2016)
56 FILING ERROR − DEFICIENT DOCKET ENTRY − MOTION for Mariana Louise Kovel to Withdraw as Attorney for Plaintiffs in this matter. Document filed by Kenneth Clavasquin, Victor Encarnacion, Kaleb Hagos, The Bronx Defenders. (Attachments: # 1 Affidavit of Mariana Kovel in support of Motion to Withdraw Appearance)(Kovel, Mariana) Modified on 8/9/2016 (db). (Entered: 07/28/2016)
57 MEMO ENDORSEMENT granting 56 Motion to Withdraw as Attorney. Attorney Mariana Louise Kovel terminated. (Signed by Judge Denise L. Cote on 8/8/2016) (gr) (Entered: 08/08/2016)
58 STATUS REPORT. and Joint Requst for Mediation and Continuance of Stay Document filed by City Of New York.(Horowitz, Aviva) (Entered: 02/28/2017)
59 ORDER: On February 28, 2017, the defendant submitted a status report in the above−captioned matter. Accordingly, it is hereby ORDERED that the parties shall immediately contact the chambers of Magistrate Judge Francis to schedule settlement discussions under his supervision. Those settlement discussions are to take place in March. IT IS FURTHER ORDERED that the stay in the above−captioned matter will be continued through April 7, 2017. IT IS FURTHER ORDERED that the defendant shall submit a status report by April 7, 2017. (Signed by Judge Denise L. Cote on 2/28/2017) (gr) (Entered: 03/01/2017)
60 LETTER MOTION for Extension of Time For Mediation addressed to Judge Denise L. Cote from Aviva Y. Horowitz dated March 14, 2017. Document filed by City Of New York.(Horowitz, Aviva) (Entered: 03/15/2017)
61 MEMO ENDORSEMENT granting 60 Letter Motion for Extension of Time by which the parties are to schedule mediation with Magistrate Judge Francis. (Signed by Judge Denise L. Cote on 3/15/2017) (gr) (Entered: 03/15/2017)
62 NOTICE OF APPEARANCE by Niji Jain on behalf of Kenneth Clavasquin, Victor Encarnacion, Kaleb Hagos, The Bronx Defenders. (Jain, Niji) (Entered: 03/29/2017)
63 STATUS REPORT. Document filed by City Of New York.(Horowitz, Aviva) (Entered: 04/07/2017)

04/07/2017 05/26/2017 05/30/2017 06/22/2017 06/22/2017
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64 ENDORSED LETTER addressed to Judge Denise L. Cote from Aviva Y. Horowitz dated 4/7/2017 re: parties jointly request that the stay of all papers, discovery and Court appearances be continued through 5/26/17. ENDORSEMENT: Granted. (Signed by Judge Denise L. Cote on 4/7/2017) (gr) (Entered: 04/07/2017)
65 STATUS REPORT. Document filed by City Of New York.(Horowitz, Aviva) (Entered: 05/26/2017)
66 MEMO ENDORSEMENT: on re: 65 Status Report filed by City Of New York. ENDORSEMENT: Granted. (Signed by Judge Denise L. Cote on 5/30/2017) (ap) (Entered: 05/30/2017)
Minute Entry for proceedings held before Magistrate Judge James C. Francis: Settlement Conference held on 6/22/2017. (Bacchus, Michael) (Entered: 06/22/2017)
67 ORDER: The complaint in this action was filed January 8, 2016. The plaintiffs filed an amended complaint on June 3 and moved to certify the class on June 8. On June 25, the action was stayed for six months pursuant to a joint request, and the motion for class certification was denied without prejudice to renewal upon expiration of the stay. The stay has since been extended three times while the parties have worked to agree to a settlement. It having been reported that a settlement has not been reached and the parties wish to proceed with litigation, it is hereby ORDERED that the stay is lifted. IT IS FURTHER ORDERED that counsel for all parties are directed to appear for a conference with the Court on June 27 at 10:30 a.m. in Courtroom 15B, 500 Pearl Street. IT IS FURTHER ORDERED that the defendant shall file an answer or any motion to dismiss by June 30, 2017. (Signed by Judge Denise L. Cote on 6/22/2017) (gr) (Entered: 06/22/2017)
Set Hearing: Pretrial Conference set for 6/27/2017 at 10:30 AM in Courtroom 15B, 500 Pearl Street, New York, NY 10007 before Judge Denise L. Cote. (gr) (Entered: 06/22/2017)
68 PRETRIAL SCHEDULING ORDER: As set forth at the pretrial conference held pursuant to Rule 16, Fed. R. Civ. P., on June 27, 2017, the following schedule shall govern the further conduct of pretrial proceedings in this case.....A confidentiality agreement, or any dispute as to such an agreement, must be submitted to the Court by July 14. All fact discovery must be completed by November 17.....All discovery must be completed by January 19, 2017.....Any motion for summary judgment: −Motion served by February 9; Opposition served by March 2; Reply served by March 16....In the event no motion is filed, the Joint Pretrial Order must be filed by February 9.... (Signed by Judge Denise L. Cote on 6/27/2017) (gr) (Entered: 06/27/2017)
69 LETTER addressed to Judge Denise L. Cote from Niji Jain dated June 30, 2017 re: Pretrial Scheduling Order. Document filed by Kenneth Clavasquin, Victor Encarnacion, Kaleb Hagos, The Bronx Defenders.(Jain, Niji) (Entered: 06/30/2017)
70 ANSWER to 31 Amended Complaint,. Document filed by City Of New York.(Horowitz, Aviva) (Entered: 06/30/2017)
71 ENDORSED LETTER addressed to Judge Denise L. Cote from Niji Jain dated June 30, 2017 re: The parties have conferred and jointly request that the schedule require a class certification motion to be served no later than the deadline for filing dispositive motions (2/9/18), with opposition due three week after the motion is served and reply due two weeks after the opposition. ENDORSEMENT: So Ordered. (Signed by Judge Denise L. Cote on 6/30/2017) (gr) (Entered: 06/30/2017)
72 LETTER MOTION for Discovery Protective Order addressed to Judge Denise L. Cote from Aviva Y. Horowitz dated July 14, 2017. Document filed by City Of New York.(Horowitz, Aviva) (Entered: 07/14/2017)
73 STIPULATION AND PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material... (Signed by Judge Denise L. Cote on 7/17/2017) (gr) (Entered: 07/17/2017)
Minute Entry for proceedings held before Magistrate Judge James C. Francis: Settlement Conference held on 7/21/2017. (Bacchus, Michael) (Entered: 07/25/2017)

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07/25/2018

74 TRANSCRIPT of Proceedings re: CONFERENCE held on 6/27/2017 before Judge Denise L. Cote. Court Reporter/Transcriber: Rebecca Forman, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 8/16/2017. Redacted Transcript Deadline set for 8/28/2017. Release of Transcript Restriction set for 10/24/2017.(McGuirk, Kelly) (Entered: 07/26/2017)
75 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 6/27/17 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 07/26/2017)
Minute Entry for proceedings held before Magistrate Judge James C. Francis: Settlement Conference held on 9/12/2017. (Bacchus, Michael) (Entered: 09/12/2017)
76 NOTICE OF APPEARANCE by Diana Marsh Murray on behalf of City Of New York. (Murray, Diana) (Entered: 09/17/2017)
Minute Entry for proceedings held before Magistrate Judge James C. Francis: Telephone Conference held on 9/20/2017. (Hotelling, David) (Entered: 09/26/2017)
Minute Entry for proceedings held before Magistrate Judge James C. Francis: Telephone Conference held on 10/19/2017. (Hotelling, David) (Entered: 10/19/2017)
Minute Entry for proceedings held before Magistrate Judge James C. Francis: Settlement Conference held on 10/24/2017. (Hotelling, David) (Entered: 10/24/2017)
77 LETTER MOTION for Extension of Time to Complete Discovery addressed to Judge Denise L. Cote from Niji Jain dated 11/13/2017. Document filed by Kenneth Clavasquin, Victor Encarnacion, Kaleb Hagos, The Bronx Defenders.(Jain, Niji) (Entered: 11/13/2017)
78 MEMO ENDORSED LETTER addressed to Judge Cote from Niji Jain dated 11/13/2017 re: Motion for Extension of Time to Complete Discovery. ENDORSEMENT: Denied. As explained on 6/27/17, the parties may extend interim dates on consent, but the 1/19/18 and subsequent dates are firm. (Signed by Judge Denise L. Cote on 11/13/2017) (gr) (Entered: 11/13/2017)
79 SETTLEMENT AGREEMENT . Document filed by Kenneth Clavasquin, Victor Encarnacion, Kaleb Hagos, The Bronx Defenders.(Jain, Niji) (Entered: 02/09/2018)
80 STIPULATION OF SETTLEMENT AND ORDER. (Signed by Judge Denise L. Cote on 2/12/2018) (Attachments: # 1 Exhibit A − Property Release Unit Standard Operating Procedure (January 28, 2018), #(2) Exhibit B − Patrol Guide Section 208−03, #(3) Exhibit C − General Administrative Information (SER# 28823965), #(4) Exhibit D − Revised Procedures For Claiming Property (November 30, 2017), #(5) Exhibit E − General Administrative Information (SER# 28823983)(gr) (Entered: 02/12/2018)
81 FIRST LETTER MOTION for Extension of Time to resolve attorney's fees addressed to Judge Denise L. Cote from Aviva Y. Horowitz dated June 18, 2018. Document filed by City Of New York.(Horowitz, Aviva) (Entered: 06/18/2018)
82 ENDORSED LETTER addressed to Judge Denise L. Cote from Aviva Y. Horowitz dated June 18, 2018 RE: Extension of time to July 26, 2018 to permit the parties to resolve the matter of cost and attorneys' fees, or for counsel to submit a proposed briefing scheduling. ENDORSEMENT: Granted. (Signed by Judge Denise L. Cote on 6/20/2018) (gr) (Entered: 06/20/2018)
83 SECOND LETTER MOTION for Extension of Time to resolve costs and attorneys' fees addressed to Judge Denise L. Cote from Niji Jain dated July 25, 2018. Document filed by Kenneth Clavasquin, Victor Encarnacion, Kaleb Hagos, The Bronx Defenders.(Jain, Niji) (Entered: 07/25/2018)

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84 ORDER granting 83 Letter Motion for Extension of Time to 8/16/2018 for counsel to resolve the matter of costs and attorneys' fees, or for counsel to submit a proposed briefing schedule if the matter is not resolved. (Signed by Judge Denise L. Cote on 7/26/2018) (gr) (Entered: 07/26/2018)
86 PROPOSED STIPULATION AND ORDER. Document filed by Kenneth Clavasquin, Victor Encarnacion, Kaleb Hagos, The Bronx Defenders. (Jain, Niji) (Entered: 08/15/2018)
87 STIPULATION OF SETTLEMENT OF PLAINTIFFS' COSTS AND ATTORNEYS' FEES. (Signed by Judge Denise L. Cote on 8/15/2018) (gr) (Entered: 08/15/2018)
88 MOTION for Johanna Beth Steinberg to Withdraw as Attorney . Document filed by Kenneth Clavasquin, Victor Encarnacion, Kaleb Hagos, The Bronx Defenders.(Steinberg, Johanna) (Entered: 07/18/2019)
89 NOTICE OF APPEARANCE by Samantha Michelle Schonfeld on behalf of City Of New York..(Schonfeld, Samantha) (Entered: 02/10/2020)
90 PROPOSED STIPULATION AND ORDER. Document filed by Kenneth Clavasquin, Victor Encarnacion, Kaleb Hagos, The Bronx Defenders. (Jain, Niji) (Entered: 02/10/2020)
91 ORDER: On February 10, 2020, the parties filed a proposed order regarding their Stipulation of Settlement that was so−ordered by this Court on February 12, 2018. It is hereby ORDERED that the parties February 10 proposed order is approved. (Signed by Judge Denise L. Cote on 2/19/2020) (gr) (Entered: 02/19/2020)