2023 New York Laws › TAX - Tax › Article 37 - Crimes and Other Offenses, Seizures and Forfeitures › Part 6 - Seizures and Forfeitures › 1848 - Forfeiture Action With Respect to Motor Fuel and Vehicle Carrying Such Fuel.

§  1848. Forfeiture action with respect to motor fuel and diesel motor
fuel and vehicle carrying such fuel.
(a) Temporary seizure. Whenever a police officer designated in section
1.20 of the criminal procedure law or  a  peace  officer  designated  in
subdivision  four  of  section  2.10 of such law, acting pursuant to his
special duties, shall discover any motor fuel or diesel motor fuel which
is being imported for use, distribution, storage or sale  in  the  state
where  the  person  importing or causing such motor fuel or diesel motor
fuel to be imported is not registered as a distributor under section two
hundred eighty-three  or  section  two  hundred  eighty-two-a,  of  this
chapter,  as  the  case  may be, such police officer or peace officer is
hereby authorized to seize and take possession of  such  motor  fuel  or
diesel  motor  fuel,  together  with  the  vehicle  or  other  means  of
transportation used to transport such motor fuel.
(b) Retention of property. The department shall hold and  safely  keep
such   motor  fuel,  diesel  motor  fuel,  vehicle  or  other  means  of
transportation seized pursuant  to  subdivision  (a)  of  this  section.
Seized motor fuel or diesel motor fuel may be deposited to the credit of
the  department at a terminal or other storage facility within the state
or may be sold by the department on the open market.
(c) Confirmation of temporary seizure. Within five business days after
the temporary seizure of motor fuel, diesel motor fuel, vehicle or other
means of transportation pursuant to subdivision (a) of this section, the
department shall move in supreme court in any county, on such notice  as
the  court  shall  direct  to the owners of the property, to confirm the
temporary seizure. If the department fails to make  such  motion  within
the  required  period,  such  seized  property  shall be restored to the
owners thereof as provided in subdivision (e)  of  this  section.  On  a
motion  for  an order confirming the seizure, the department shall show,
by affidavit and such other written evidence as may be  submitted,  that
there  is a cause of action for forfeiture under subdivision (d) of this
section and that there are grounds for confirmation of the seizure.  The
department  shall  include,  in  its  motion papers, an inventory of all
seized property. The court shall  grant  an  application  for  an  order
confirming  the  seizure  when it determines that there is a substantial
probability that the department will prevail on the issue of forfeiture.
(d) Forfeiture action. (1) A  forfeiture  action  shall  be  commenced
within  forty-five  days from the date of the seizure. Such action shall
be commenced by  service  of  a  summons  with  notice  or  summons  and
complaint  in  accordance  with  the  methods  authorized  by  the civil
practice law and rules or the business corporation law with  respect  to
personal  service  of a summons. Upon such terms as may be just and upon
good cause shown the court may extend the  time,  not  exceeding  thirty
days,  within  which  the  summons  must  be  served,  provided that the
application for extensions made before the expiration of the time fixed.
If the department fails to commence the  forfeiture  action  within  the
required  period,  such  seized property shall be restored to the owners
thereof as provided in subdivision (e) of this section.
(2) A forfeiture action under this subdivision shall be  commenced  in
supreme court. The proper venue for trial of an action for forfeiture is
the  county in which the temporary seizure authorized by subdivision (a)
of this section occurred.
(3) Forfeiture of motor fuel or diesel motor fuel  together  with  the
vehicle  or  other  means of transportation used to transport such motor
fuel or diesel motor fuel shall be adjudged where the department proves,
by clear and convincing evidence, that the person importing  or  causing
such  motor  fuel or diesel motor fuel to be imported was not registered
as a distributor under section two hundred eighty-three or  section  two

hundred eighty-two-a of this chapter, as the case may be. All defendants
in  a  forfeiture action brought pursuant to this article shall have the
right to trial by jury on any issue of fact.
(4) The court in which a forfeiture action is pending may dismiss said
action  in  the interests of justice upon an application as provided for
herein.
(A) At any time during  the  pendency  of  a  forfeiture  action,  the
department of taxation and finance or a defendant may apply for an order
dismissing  the  complaint  and terminating the forfeiture action in the
interest of justice.
(B) Such application for  the  relief  provided  in  subparagraph  (A)
hereof must be made in writing and upon notice to all parties. The court
may,  in its discretion, direct that notice be given to any other person
having an interest in the property.
(C) An application for the relief provided  for  in  subparagraph  (A)
hereof must be brought exclusively in the supreme court in the county in
which the forfeiture action is pending.
(D)  The  court  may  grant the relief provided in subparagraph (A) of
this paragraph if  it  finds  that  such  relief  is  warranted  by  the
existence  of  some  compelling  factor,  consideration  or circumstance
demonstrating that forfeiture of the property or any part thereof, would
not serve the ends of justice. Reporting and payment of the tax  imposed
pursuant  to  article  twelve-A  or article twenty-eight of this chapter
with respect to such motor fuel or diesel motor fuel subsequent  to  the
seizure   of  such  fuel  shall  not  constitute  a  compelling  factor,
consideration or circumstance warranting  the  granting  of  the  relief
provided  for  in  subparagraph  (A)  of  this paragraph. In determining
whether such relief is warranted by the  existence  of  some  compelling
factor,  consideration  or circumstances pursuant to this paragraph, the
court may, however, take into account the  fact  that  such  taxes  with
respect  to the seized fuel have been reported and remitted to the state
prior to  the  temporary  seizure  of  such  fuel  if  the  unregistered
importation  into  the  state  was  effected  in  good faith and without
knowledge of the requirement of registration and without intent to evade
tax. The court must issue a written decision, stating the basis  for  an
order issued pursuant to this paragraph.
(5)  An  action  under  this  subdivision  shall  be stayed during the
pendency of a criminal action which is related  to  it;  provided,  that
upon motion of a defendant in the forfeiture action or the department of
taxation  and  finance,  a court may, in the interest of justice and for
good cause, and  with  the  consent  of  all  parties,  order  that  the
forfeiture  action  proceed  despite  the  pending  criminal action; and
provided that such stay shall not prevent the granting or continuance of
an order confirming the seizure provided under this section.
(6) The total that may be recovered shall not exceed the value of  the
motor  fuel  or  diesel  motor  fuel seized and, in addition, either the
value of the vehicle or other means of transportation used to  transport
such  fuel  or  three  times  the  amount  of  the tax and penalty under
articles twelve-A, thirteen-A  and  twenty-eight  and  pursuant  to  the
authority  of  article  twenty-nine  of this chapter with respect to the
motor fuel or diesel motor fuel, whichever is less.
(e) Return of property. If  (1)  the  department  fails  to  move  for
confirmation  of the seizure pursuant to subdivision (c) of this section
or (2) a court denies an application for an order confirming the seizure
or (3) judgment is entered against  the  department  in  the  forfeiture
action  and  that  judgment is affirmed after all appeals are exhausted,
then the department shall restore such seized motor fuel or diesel motor
fuel, or motor fuel or diesel motor fuel of a like quantity and type, or

such seized vehicle or other  means  of  transportation  to  the  owners
thereof.  Alternatively,  if such seized motor fuel or diesel motor fuel
has been sold as provided  in  subdivision  (b)  of  this  section,  the
department  shall  pay  to the owners of such motor fuel or diesel motor
fuel the proceeds of such sale  or,  if  greater,  an  amount  of  money
representing  the  fair  market  value of the motor fuel or diesel motor
fuel at the time of the seizure.
(f) Release of property. A person whose property has been  seized  may
move,  upon  notice  to  the  department of taxation and finance, in the
supreme court in any county, provided that if the department shall  have
moved  to confirm the temporary seizure of such property, in the supreme
court of such county for an order releasing all or part of the  property
seized  upon  payment  of the department's fees and expenses, if any. On
such a motion, the defendant shall give  an  undertaking  in  accordance
with  article  twenty-five  of  the  civil practice law and rules, in an
amount equal to the value of the property sought to be released, that he
will pay the department the value of such property which may be adjudged
forfeited (but in the case of the owner of a vehicle or other  means  of
transportation,  the amount of the undertaking required shall not exceed
three times the amount of all taxes and  penalties  due  under  articles
twelve-A,  thirteen-A  and twenty-eight and pursuant to the authority of
article twenty-nine of this chapter).
(g)  Disposal  of  property.  The   department,   after   a   judicial
determination  of  forfeiture,  shall,  in its discretion, either retain
such seized property  for  its  official  use  or  sell  such  forfeited
property  at  public  sale. The net proceeds of any such sale, or of any
sale  of  seized  motor  fuel  or  diesel  motor  fuel  as  provided  in
subdivision  (b) of this section, after deduction of the lawful expenses
incurred, shall be deposited and disposed of pursuant to the  provisions
of  section  one  hundred  seventy-one-a of this chapter with respect to
deposit and disposition of revenue.
(h) Wrongful seizure. A defendant in a forfeiture action  may  recover
in  an  action  for  wrongful  seizure  all costs and damages, including
reasonable attorneys' fees, which may be  sustained  by  reason  of  the
seizure  if the defendant recovers judgment in the forfeiture action, or
if it is finally  decided  that  there  was  no  justification  for  the
seizure.  In  order  to  establish  a  claim  for  wrongful seizure, the
defendant must establish by a preponderance of  the  evidence  that  the
seizure  was  made  without  reasonable  cause and not in good faith. An
action  for  wrongful  seizure  under  this  subdivision  shall  be  the
defendant's exclusive remedy in connection with seizures made under this
section. No suit or action for wrongful seizure under this section shall
be  instituted  unless such suit or action is commenced within two years
after the time when the property was seized.
(i) The remedies provided to the department of taxation and finance by
this section shall be in addition to any other remedies provided by law.
(j) An action under this section is civil and remedial and  shall  not
be deemed to be a penalty or criminal forfeiture for any purpose. Except
as  otherwise  provided  by  statute, the proceedings under this section
shall be governed by the civil practice law and rules. An  action  under
this  section is not a criminal proceeding and shall not be deemed to be
a previous prosecution under article forty  of  the  criminal  procedure
law.