                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: May 12, 2016                      519946
________________________________

NICHOLAS M. LUCAS, as Assignee
   of JUSTIN LUCAS,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

OTSEGO COUNTY SHERIFF RICHARD
   J. DEVLIN JR. et al.,
                    Respondents.
________________________________


Calendar Date:   March 21, 2016

Before:   Garry, J.P., Egan Jr., Lynch, Devine and Clark, JJ.

                             __________


     Wayne P. Smith, Schenectady, for appellant.

      Lemire Johnson & Higgins, LLC, Malta (Bradley J. Stevens of
counsel), for respondents.

                             __________


Devine, J.

      Appeal from an order of the Supreme Court (Dowd, J.),
entered January 15, 2014 in Otsego County, which, among other
things, granted defendants' motion for summary judgment
dismissing the complaint.

      Plaintiff was arrested in January 2011 and charged with,
among other things, criminal possession of marihuana in the first
degree. The Town of Worcester Justice Court set bail at $50,000.
Plaintiff was being held at the Otsego County Correctional
Facility and, on January 13, 2011, his brother traveled there and
posted cash bail. Plaintiff was not released because Justice
Court, having been advised that plaintiff had two prior felony
convictions, concluded that it had no authority to set bail and
                              -2-                519946

issued a new commitment order the same day that remanded him
without bail (see CPL 530.20 [2] [a]). The money was not
returned and, in July 2011, plaintiff's brother assigned whatever
rights he had in it to plaintiff. Counsel for plaintiff demanded
the return of the money in September 2011. Defendant Otsego
County Sheriff stated that he was no longer in possession of the
money, as it had been seized and transferred to the Drug
Enforcement Administration (hereinafter DEA) as part of a drug
investigation (see 18 USC §§ 981 [b]; 983; 21 USC § 881).

      Plaintiff commenced this action in 2012 and asserted, as is
pertinent here, a claim under 42 USC § 1983.1 Plaintiff
essentially argued that the Sheriff and one of the Sheriff's
senior investigators, defendant Michael F. Ten Eyck, deprived him
of his right to due process by handing the bail money over to the
DEA. Following joinder of issue, defendants moved for summary
judgment dismissing the complaint and other relief. Plaintiff
responded by cross-moving for summary judgment. Supreme Court
determined that, among other things, defendants were shielded
from liability by the doctrine of qualified immunity and granted
their motion. Plaintiff now appeals.

      We affirm. A cognizable claim under 42 USC § 1983
requires, "at a minimum, conduct by a person acting under color
of law which deprived [plaintiff] of a right, privilege or
immunity guaranteed by the Constitution or the laws of the United
States" (DiPalma v Phelan, 81 NY2d 754, 756 [1992]; see American
Mfrs. Mut. Ins. Co. v Sullivan, 526 US 40, 49-50 [1999]).
Defendants nevertheless have qualified immunity for their conduct
if they did "not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known" (Mullenix v Luna,     US    ,    , 136 S Ct 305, 308


    1
        The seized bail money was forfeited to the United States,
and plaintiff pursued "the exclusive remedy" for that situation
by moving in federal court to set aside the forfeiture (18 USC
§ 983 [e] [5]; see generally Lucas v United States, 775 F3d 544
[2d Cir 2015]). Inasmuch as he recovered the money as a result
of that proceeding, plaintiff limits his arguments on this appeal
to the viability of his 42 USC § 1983 claim.
                              -3-                519946

[2015] [internal quotation marks and citations omitted]). "The
two parts of this inquiry are whether plaintiff suffered a
constitutional [or statutory] violation at the hands of
defendants and, if so, whether the constitutional [or statutory]
right was clearly established at the time so that any reasonable
officer would clearly recognize that his or her conduct was
unlawful in that situation" (Colao v Mills, 39 AD3d 1048, 1050
[2007]; see Mullenix v Luna, 136 S Ct at 308; Alex LL. v
Department of Social Servs. of Albany County, 60 AD3d 199, 208
[2009], lv denied 12 NY3d 710 [2009]). The question of whether
qualified immunity attaches is one of law, and "should ordinarily
be determined by the court . . . early in the case" (Colao v
Mills, 39 AD3d at 1050; see Rossi v City of Amsterdam, 274 AD2d
874, 876 [2000]).

      Defendants submitted documentation that the seized bail
money was transferred to the DEA on January 19, 2011, six days
after it was posted, and a commitment order was issued that
remanded plaintiff without bail (see 18 USC § 981 [b]; 21 USC
§ 881 [a] [6]; [b]). Plaintiff questioned in his cross motion
for summary judgment whether that documentation constituted
admissible evidence, but acknowledged that defendants seized the
money upon their belief that it was derived from the drug trade
and, further, did not dispute that its transfer to the DEA
occurred as described.2 With regard to the six days that the
bail money was in the possession of defendants prior to its
transfer to the DEA, a person deprived of his or her property by
state actors is entitled to due process (see United States v
Eight Thousand Eight Hundred and Fifty Dollars [$8,850] in United
States Currency, 461 US 555, 564-565 [1983]). It is doubtful
that the brief delay in transferring the bail money to the DEA


    2
        To the extent that plaintiff questions the rationale
behind the initial retention of the bail money by defendants, the
reasons for doing so were detailed in the reply affidavit of Ten
Eyck. While assertions made for the first time in a reply
affidavit will not ordinarily be considered, Supreme Court did
not err in doing so here, as plaintiff submitted surreply papers
that were also considered (see Hanscom v Goldman, 109 AD3d 964,
965 [2013]).
                              -4-                  519946

deprived plaintiff or his brother of that right, particularly in
the absence of any demand for its return during that period (see
e.g. Mercado v United States Customs Serv., 873 F2d 641, 646 [2d
Cir 1989]). Defendants also cannot be faulted for then turning
the bail money over to federal agents who seemingly had the
authority to take it (see 18 USC § 981 [b]; 21 USC § 881 [b]; see
e.g. Teddy's Dr. In v Cohen, 47 NY2d 79, 82 [1979]; Rossi v City
of Amsterdam, 274 AD2d at 876). Defendants' actions, in short,
did not violate a "clearly established statutory or
constitutional right[] of which a reasonable person would have
known" (Harlow v Fitzgerald, 457 US 800, 818 [1982]; see Hayes v
O'Connor, 2004 WL 2334078, *7, 2004 US Dist LEXIS 20640, *21 [SD
NY, Oct. 4, 2004, No. 03-CV-1371 (SHS)]). Thus, Supreme Court
properly held that qualified immunity protected defendants from
plaintiff's 42 USC § 1983 claim.

      The remaining contentions advanced by plaintiff have been
considered and rejected.

     Garry, J.P., Egan Jr., Lynch and Clark, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
