Section 1848. Forfeiture action with respect to 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
  which is being imported for use, distribution, storage or  sale  in  the
  state  where  the  person  importing  or  causing  such motor fuel to be
  imported is not registered as a distributor under  section  two  hundred
  eighty-three  of  this  chapter, such police officer or peace officer is
  hereby authorized to seize and  take  possession  of  such  motor  fuel,
  together  with  the  vehicle  or  other  means of transportation used to
  transport such motor fuel.
    (b) Retention of property. The  department  of  taxation  and  finance
  shall  hold  and  safely keep such motor fuel, vehicle or other means of
  transportation seized pursuant  to  subdivision  (a)  of  this  section.
  Seized  motor  fuel  may be deposited to the credit of the department of
  taxation and finance 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,  vehicle  or  other  means  of
  transportation  pursuant  to  subdivision  (a)  of  this  section,   the
  department  of  taxation  and finance 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 of
  taxation and finance 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 of taxation and finance 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 of taxation and finance 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 together with the vehicle or other  means
  of  transportation  used  to transport such motor fuel shall be adjudged
  where the department of  taxation  and  finance  proves,  by  clear  and
  convincing  evidence,  that  the  person importing or causing such motor
  fuel to be imported was not registered as a  distributor  under  section
  two hundred eighty-three of this chapter. 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) hereof
  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 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) hereof 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  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, whichever is less.
    (e)  Return of property. If (1) the department of taxation and finance
  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 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 has been sold as provided in subdivision  (b)  of
  this  section, the department shall pay to the owners of such motor fuel

  the  proceeds  of  such  sale  or,  if  greater,  an  amount  of   money
  representing  the fair market value of the 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 of taxation and finance,
  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 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.