Opinion
No. 115186.
2012-06-22
Armand RETAMOZZO, Claimant, v. The STATE of New York, Defendant.
Armand Retamozzo, pro se. Eric T. Schneiderman, NYS Attorney General by Janet Polstein, Assistant Attorney General, for Defendant.
Armand Retamozzo, pro se. Eric T. Schneiderman, NYS Attorney General by Janet Polstein, Assistant Attorney General, for Defendant.
DAVID A. WEINSTEIN, J.
Armand Retamozzo filed the instant claim on April 29, 2008, seeking to hold the defendant liable for damages pursuant to the Unjust Conviction and Imprisonment Act of 1984, codified as section 8–b of the Court of Claims Act. Defendant moves to dismiss the claim as failing to meet the pleading requirements of section 8–b. Specifically, defendant contends that claimant has failed to submit with his claim the documentary evidence required under section 8–b(3), and has failed to show that he is likely to succeed at trial in accordance with section 8–b(4). Defendant's notice of motion also refers to dismissal under CPLR 3212, which provision relates to motions for summary judgment, although no other mention of such relief is made in the defendant's papers. Claimant has filed an affidavit in opposition to the motion, and asks the Court to search the record and grant summary judgment in his favor, on the ground that defendant has failed to timely reply to requests to admit, and thereby is deemed to have admitted certain facts that entitle him to summary judgment. Claimant also contends that a default judgment should be entered against defendant, because it served its answer to his claim late.
In his claim, Retamozzo alleges that on April 28, 2004, he was convicted of criminal possession of a controlled substance (ecstasy pills or MDMA) in the second and third degrees. The conviction was reversed by the Appellate Division, First Department on October 18, 2005 ( see People v. Retamozzo, 25 AD3d 73 [1st Dept 2005] ), and Retamozzo was acquitted of all charges on May 5, 2006, following retrial. Retamozzo appends to his pleading the following documents: a certificate of conviction dated April 28, 2004; the Appellate Division order reversing that conviction entered October 18, 2005; and a certificate of acquittal following retrial dated May 17, 2006. The certificate of conviction indicates that Retamozzo had been convicted of both crimes referenced in his claim, and lists the sentences for each, with a direction that they run concurrently: three years to life for criminal possession in the second degree, and one to three years for criminal possession in the third degree.
The key evidence presented at Retamozzo's initial trial is set forth in the Appellate Division's ruling as follows:
“At trial, Detective Vargas and other witnesses called by the People testified that on January 8, 2003 Vargas and a confidential informant met defendant in Washington Square Park. When Vargas asked to see the pills,' defendant, who was seated in a car, asked Vargas whether he had $ 7,500. Vargas replied that he did, but had to retrieve it from his car; after Vargas left, defendant drove off and returned a short time later with Bryant Shavuo [co-defendant]. Shavuo removed a white plastic bag from the trunk of the car, which belonged to defendant's father, and placed the bag on the ground by the entrance to a nearby garage. According to Vargas, after a discussion between him and defendant about the pills and the money, defendant directed Vargas to stand on the sidewalk, where he was frisked by Shavuo. Following Vargas's inquiry about the “stuff,” Shavuo gestured to the white plastic bag.
“After Vargas again left the scene, Shavuo hid a clear plastic bag in nearby bushes. The arrest team then arrived and defendant was arrested, as was Shavuo, who discarded a clear plastic bag and attempted to flee. The clear plastic bag contained approximately 100 Ecstasy pills; the clear plastic bag hidden in the bushes contained approximately 600 Ecstasy pills and the white plastic bag contained approximately 300 Ecstasy pills. Defendant had $1,146 on his person, and a search of his car revealed $351, a digital scale, a beeper, his passport and two ziplock bags containing a white powder.
“Defendant testified in his own behalf. At the time of his arrest he was a student at Nassau Community College, where he met Shavuo, a fellow student. They became casual acquaintances and socialized occasionally. Because they had similar class schedules, defendant gave Shavuo rides in the car owned by defendant's father. According to defendant, the day before he and Shavuo were arrested, Shavuo had offered to pay him $75 to drive him into Manhattan and back out to Nassau County. Defendant agreed, picked Shavuo up and the two drove to Washington Square Park. Shavuo had a red toolbox and backpack with him which he had placed on the floor of the car. After defendant parked, Shavuo walked off; defendant did not know where Shavuo was going or what he intended to do. Shortly thereafter, an acquaintance of Shavuo from a nightclub, the Sound Factory,' got into the car and asked for Shavuo. This man, who turned out to be the informant, was accompanied by another man; defendant was unsure if he was Detective Vargas.
“After telling Shavuo's acquaintance that he did not know where Shavuo was, defendant told the man in response to his inquiry that he did not need to buy drugs and did not have any drugs on him. With that, the informant and the other man walked away.
“Minutes later, Shavuo returned with the informant, and both men got into the car. At Shavuo's direction, defendant drove several blocks west. After the informant received a cell phone call from a man who was yelling and screaming, he asked defendant to drive him back to the park. When they returned, both Shavuo and the informant left the car, with Shavuo asking defendant to wait for him.
“Several minutes later, the man who might have been Vargas returned, looked into the car and then left. Immediately thereafter, uniformed police officers arrested defendant and recovered $150 from his person; defendant did not have $1,146 on his person, there was no scale in the car and defendant did not know $351 was in the console of the car. Defendant's father, Donald Rozz, the owner of the car, testified that there was $1,300 in cash in the glove compartment. Rozz always' kept at least such an amount of cash in the car to pay bills, but Rozz never told defendant about the money.”
(Retamozzo, 25 AD3d at 74–75 [1st Dept 2005] ).
The Appellate Division characterized the People's case as “strong, especially given the recovery of such a large quantity of Ecstasy pills,” and stated that the accounts of defendant and his father “certainly provided the prosecutor with a basis for challenging the plausibility of their testimony” ( Id. at 76). Later, the Court made reference again to the “implausibility of at least some of the testimony of defendant and his father” ( Id. at 89). The Court also observed, however, that the “overarching issue” in the case was “the credibility of the testimony of Vargas and of defendant” ( Id. at 76). Ultimately, the Appellate Division reversed the conviction on the ground that the trial judge had interjected numerous improper questions and statements into the proceeding, thereby “depriv[ing] defendant of his right to have the jury resolve that issue [i.e., the credibility of the testimony] in a fair trial presided over by a fair and impartial judge” ( Id. at 89). As noted above, claimant was acquitted on retrial, although there is no reference in the claim to any of the evidence presented at that later proceeding.
Retamozzo asserts in his claim that he did not commit any of the acts with which he was charged; did not possess any of the controlled substances or have knowledge that any other person did so; and did not possess any drug-related paraphernalia, such as a digital weighing scale
(Claim ¶¶ 3–5). He provides some limited elaboration on these denials in a section asserting that he did not bring about his own conviction:
He also maintains, without elaboration, that ecstasy is not properly defined as a narcotic or stimulant under the Penal Law and Public Health Law (Claim ¶ 5.d).
“a. Claimant was, at approximately the date and time charged in the indictment, sitting in his father's car when he was approached by a confidential informant inquiring about drugs and the whereabouts of claimant's codefendant.
b. At no time did claimant negotiate with the confidential informant or Detective Vargas over the ecstasy pills.
c. The confidential informant left claimant sitting in his car and a short time thereafter the police arrested and charged claimant with criminal possession of controlled substances scattered about the Washington Square Park area.”
(Claim ¶ 7).
Retamozzo's claim also sets forth a series of factual averments to support his contention that he is innocent of the charges for which he was originally convicted, allegedly derived from the People's own evidence at trial. They are as follows, quoted in full:
“Claimant's innocence is supported by testimony given by witnesses called by the People in the prosecution against claimant as stated below.
a. Undercover Detective Jose VARGAS and Arresting Officer Edward GONZALEZ knew nothing about the confidential informant working with them.
b. Detectives Vargas and Gonzalez misidentified claimant's codefendant.
c. Detective Vargas was not in position to hear any statements claimant might have made after his initial approach of claimant.
d. Detective Vargas's Kel transmitter did not transmit any statements alleged to have been made by claimant.
e. The New York City Police Department did not record any of the transmittals made over Detective Vargas's Kel transmitter.
f. Detective Vargas's police reports contain mistakes.
g. Detective Gonzalez's sworn criminal-court complaint is inaccurate.
h. Detective Vargas did not negotiate with claimant over the ecstasy pills.
i. Detective Vargas did not negotiate with claimant's codefendant over the ecstasy pills.
j. Detective Vargas did not hear claimant state his name or introduce himself to anyone.
k. Detective Vargas did not hear claimant ask him to step up to the sidewalk.
l. Detective Vargas did not call claimant's codefendant “Big Man”.
m. The New York City Police Department's video surveillance cameras set up in Washington Square Park where the incident occurred did not capture any video of claimant or of the fourteen-man police team.
n. Detective Vargas was frisked by claimant's codefendant behind the car in which claimant was sitting [bold in original].
o. No witness saw drugs or bags being removed from claimant's car.
p. Detective Vargas testified before the grand jury as to issues he did not remember in this case.
q. Detective Gonzalez doesn't remember whether the search of claimant by Detectives DOWLING and REILLY came before or after his search of claimant wherein he allegedly found a sum of money.
r. Detective Gonzalez did not write down where he allegedly found various sums of money involved in this case.”
(Claim ¶ 6).
Defendant's motion asserts that these filings do not meet the requirements of section 8–b(3). That provision requires claimant, inter alia to “establish by documentary evidence” that he “has been convicted of one or more felonies or misdemeanors against the state and subsequently sentenced to a term of imprisonment, and has served all or any part of the sentence” (Court of Claims Act § 8–b[3][a] ). Defendant contends that claimant has failed to meet this requirement because he has not submitted a copy of the accusatory instrument by which he was charged, nor has he adduced documentary evidence that he served time in prison (Aff. in Supp. ¶ 5).
Defendant also contends that claimant has failed to meet the pleading requirements under section 8–b(4). That section provides:
“The claim shall state facts in sufficient detail to permit the court to find that claimant is likely to succeed at trial in proving that (a) he did not commit any of the acts charged in the accusatory instrument or his acts or omissions charged in the accusatory instrument did not constitute a felony or misdemeanor against the state, and (b) he did not by his own conduct cause or bring about his conviction. The claim shall be verified by the claimant. If the court finds after reading the claim that claimant is not likely to succeed at trial, it shall dismiss the claim, either on its own motion or on the motion of the state.”
Defendant asserts that the “barebones claim sheds little light on why he was ultimately acquitted,” and thus it contains “little of any substance to meet [the] high standard of proof at the pleading stage” (Aff. in Supp. ¶¶ 10–11). Rather, according to the State “[t]he only indicia of claimant's innocence comes in the form of [claimant's] own self-serving denials, without the benefit of any sworn testimony in the form of either an affidavit or an excerpt from trial testimony” ( Id. ¶ 15). Finally, defendant argues that claimant cannot show he is “likely to succeed” given the Appellate Division's characterization of certain aspects of claimant's testimony as “implausib[le]” and the People's evidence as “strong” ( Id. ¶ 12).
In response to defendant's motion, claimant contends that he has sufficiently pled his cause of action,
In the event Defendant's motion to dismiss were to be granted, claimant seeks leave to amend his pleadings (Aff. in Opp. ¶ 56).
• Defendant has defaulted on this claim by serving its answer after the forty-day period for responsive pleadings provided for by 22 NYCRR § 206.7 had expired (Aff. in Opp. ¶¶ 5–8).
• Defendant's motion should be denied because defendant “willfully disobeyed” a court order-specifically it provided claimant on January 6, 2012 with documents directed by the Court to be turned over on December 23, 2011 (Aff. in Opp. ¶¶ 3, 11–14).
• Defendant failed to support its motion (labeled by claimant a motion for summary judgment) with an affidavit made on personal knowledge (Aff. in Opp. ¶¶ 15–16).
• The judge initially assigned to this case implicitly found the allegations in the claim sufficient because he did not dismiss it sua sponte, which he would have been obliged to do on initial review had he deemed it insufficient (Aff. in Opp. ¶¶ 39–41).
• The Court of Appeals in Warney v. State of New York (16 NY3d 428 [2011] ), made clear that claimant need not make any evidentiary showing to survive dismissal under section 8–b(4).
Claimant also asks the Court to search the record, and enter summary judgment on his behalf. Specifically, he asserts that claimant served notices to admit on defendant by mail on December 16, 2011, which were received on December 21, 2011. Under CPLR 3123(a), a response was due by January 10, 2012, yet no response was received. Claimant argues that defendant must therefore be deemed to have admitted the facts contained therein (Aff. in Opp. ¶ 33), and judgment must be entered in his favor.
Discussion
A. Procedural Issues
At the outset, claimant contends that defendant cannot proceed on this motion, because its answer was untimely served, and because of defendant's failure to meet certain discovery deadlines. He also seeks a default judgment.
In regard to the former argument, the rule upon which claimant relies (22 NYCRR § 206.7) requires that defendant serve an answer or motion on claimant within 40 days of service of the claim. In this case claimant has presented unrebutted evidence that the claim was served on April 29, 2008 (Aff. in Opp. Ex. 1), but no answer was served until June 10, 2008, or 42 days later (Aff. in Opp. Ex. 2). It therefore appears that defendant, indeed, served its answer two days after the deadline.
Such failure to comply with the applicable deadline does not aid claimant, however. Because claimant did not reject the answer when it was served, he has waived any default (Gonzalez v. Gonzalez, 240 A.D.2d 630, 631 [2d Dept 1997] [“plaintiff's acceptance of the answer and counterclaim constituted a waiver of the late service and the default”]; Karczewicz v. New York City Tr. Auth., 244 A.D.2d 285, 285–286 [1st Dept 1997] [“By accepting defendant's answer and failing to move to strike ... until almost two years later and only after defendant moved to dismiss the complaint, plaintiff waived any objection to late service of the answer”] ).
Claimant also contends that defendant's motion should be denied because it failed to provide him with certain documents until January 6, 2012, although the Court had directed that they be provided on December 23, 2011 (Aff. in Opp. ¶¶ 3, 11–14). Claimant has, however, shown neither prejudice nor willful misconduct by defendant in regard to this delay. There is, therefore, no basis for imposing any sanction on defendant for its failure to meet this deadline ( see Athanasiou v. First Natl. City Bank U.S. Corp, 225 A.D.2d 726, 726 [2d Dept 1996] [denying application for discovery sanction where defendant did not “willfully and contumaciously” refuse to comply with court order] ).
Finally, I do not find the lack of any decision heretofore by the Court regarding the sufficiency of the pleadings under section 8–b(4) to be tantamount to a sub silentio finding that the claim is sufficient (Aff. in Opp. ¶¶ 39–41). While the statute grants the Court the power to review the adequacy of the pleading sua sponte, it sets no time limit on such review. If a Court's failure to dismiss a claim barred all subsequent court review regarding the sufficiency of the pleadings, protection would be afforded to meritless claims so long they are not dismissed within a sufficient period. Such an outcome would be wholly at odds with the statute's heightened pleading requirements.
In light of the foregoing, I proceed to consider the merits of defendant's motion.
B. Claimant's Compliance with Section 8–b Pleading Requirements
1. Failure to Attached Required Documentation
Defendant seeks dismissal on the ground that claimant failed to comply with Court of Claims Act § 8–b(3), as his claim includes neither a copy of his indictment nor documentary evidence showing that he served all or part of his sentence of incarceration. Defendant's motion is denied.
While courts have dismissed claims brought under section 8–b(3) for failure to annex the requisite documentary evidence ( see e.g. Vigliotti v. State of New York, 24 AD3d 1217 [4th Dept 2005]; Guce v. State of New York, 224 A.D.2d 492 [2d Dept 1996] ), the requirements of this subdivision are not jurisdictional ( see Harris v. State of New York, 38 AD3d 144, 148–149 [2d Dept 2007]; Acosta v. State of New York, 270 A.D.2d 164, 165 [1st Dept 2000] ). Moreover, failure to provide the specific evidence listed in the statute is not fatal to the claim when such materials as are attached prove all the factual matters set forth in section 8–b(3), albeit via inference ( see Lanza v. State of New York, 130 A.D.2d 872, 873 [3d Dept 1987] ).
Lanza is dispositive of defendant's argument. In that case, claimant appended evidence that he had been convicted of a class A–II felony, but failed to attach to his claim specific proof that he had served a sentence of incarceration. The Lanza Court took judicial notice of the fact that for a class A–II felony, imprisonment is mandatory (Penal Law §§ 70.00[3], 220.41) and the convicted party is not entitled to bail pending appeal (CPL 530.50). Therefore, the Court found that the statute does “not require any particular type of documentary evidence,” and that mere evidence of defendant's conviction was sufficient to show that he had served time in prison thereon (Lanza, 130 A.D.2d at 873).
Retamozzo's situation is precisely the same. He has submitted with his claim a certificate of conviction for criminal possession in the second degree, a class A–II felony (Penal Law § 220.18). Under Lanza, that constitutes sufficient documentary proof of incarceration for purposes of section 8–b(3).
As to defendant's argument that the claim should be dismissed because the indictment is not appended (App. in Supp. ¶ 6), section 8–b(3) does not mandate that this document be submitted with the pleadings, nor is an indictment essential to demonstrate any of the facts that must be shown via the documentary proof required by this section.
2. Sufficiency of Factual Allegations
The legal standards that govern a motion to dismiss under section 8–b(4) were set forth most recently by the Court of Appeals in Warney v. State of New York (16 NY3d 428 [2011] ). In Warney, the Court held that, as in a motion to dismiss brought under CPLR 3211, the Court must presume the specific facts alleged by claimant to be true, and on that basis determine whether claimant is likely to succeed at trial ( Id. at 435–46). Thus, in ruling on an 8–b motion, the Court should “avoid making credibility and factual determinations” ( Id. at 435). Nevertheless, a claimant under section 8–b must meet a “higher pleading standard than the CPLR” ( id.). Specifically, claimant must make allegations that are “sufficiently detailed” to “demonstrate a likelihood of success at trial”—that is, claimant must set forth facts which, if believed, would “clearly and convincingly” demonstrate claimant's innocence ( Id., quoting Solomon v. State of New York, 146 A.D.2d 439, 442 [1st Dept 1989] ).
In short, Warney makes clear that section 8–b does not impose any evidentiary requirements on claimant beyond the documents set forth in section 8–b(3), but does impose a pleading burden. To meet that burden, claimant cannot rely on the presumption of innocence ( see Reed v. State of New York, 78 N.Y.2d 1, 10 [1991], citing the Report of the Law Revision Commission to the Governor on Redress for Innocent Persons Unjustly Convicted and Subsequently Imprisoned, 1984 McKinney's Session Laws of N.Y. at 2899, 2929 [hereinafter “Report of the Law Revision Commission”] ), nor can the claim survive if it contains only conclusory assertions that claimant did not commit the crime at issue ( see Stewart v. State of New York, 133 A.D.2d 112, 113 [2d Dept 1987]; see also Report of the Law Revision Commission, at 2927[“[A] mere claim of innocence should not suffice as a basis for asserting the proposed claim”] ). Rather, the facts alleged in the claim must be “neither equivocal nor open to opposing presumptions” (Solomon, 146 A.D.2d at 440). So long as claimant presents a pleading that meets this standard—and is not subject to any other statutory bar—he may proceed on his claim ( see Warney, 16 NY3d at 435 [a claimant who complies with section 8–b[3] and “makes detailed allegations with respect to the elements as described in section 8–b[4] is entitled to an opportunity to prove the allegations at trial”] ).
After careful consideration of the facts alleged in Retamozzo's pleading and its attachments, I find that his claim meets the standards of section 8–b(4). I reach this conclusion notwithstanding that the allegations verified by claimant within the four corners of his claim consist largely of conclusory denials of various aspects of the State's case (i.e., “claimant did not possess ... a digital weighing scales” [Claim ¶ 5.a] ), and references to purported weaknesses in the prosecution's evidence, delineated in paragraph 6 of his claim and quoted in full above. Many of the latter assertions are made without any context sufficient to judge whether they are probative of claimant's innocence (i.e., Vargas “did not call claimant's codefendant Big Man' “ [Claim ¶ 6.l]; and “did not hear claimant step up to the sidewalk” [ Id. ¶ 6.k] ), constitute generalized impeachment that is marginally relevant at best (i.e., Vargas “testified before the grand jury as to issues he did not remember” [ Id. ¶ 6.p]; and his police report “contains mistakes” [ Id. ¶ 6.f] ), or comprises general denials that particular events took place, without indicating what evidence supports such denials (i.e., “Detective Vargas did not negotiate with claimant over the ecstasy pills” [ Id. ¶ 6. h] ). Standing alone, these allegations would not suffice, even when fully credited, to demonstrate claimant's innocence by clear and convincing evidence ( see Grady v. State of New York, UID No.2002–027–687 [Ct Cl, Waldon, J., Apr. 1, 2003] [claimant's “attacks [on] credibility” of accusers insufficient to meet 8–b[4] requirements, absent affirmative proof of innocence], affd6 AD3d 308 [1st Dept 2004]; cf. Dozier v. State of New York, 134 A.D.2d 759, 761 [3d Dept 1987] [claimant met 8–b(4) standard when alleged facts attacking primary witness's testimony went “well beyond a general attack on complainant's credibility”] ).
But in addition to the statements detailed above, Retamozzo has appended to his pleading a copy of the Appellate Division reversal of his conviction, which summarizes his testimony and that of his father at trial. That opinion is part of the claim, and must be considered in determining whether he has met his burden under section 8–b(4)
( see Smith v. State of New York, 55 AD3d 430 [1st Dept 2008] [pleadings held sufficient under section 8–b(4) based on statements in appended Appellate Division opinion]; Grimaldi v. State of New York, 133 A.D.2d 97, 99 [2d Dept 1987] [“allegations in the claim and the memorandum decision and order of [the Appellate Division] incorporated therein by reference” meets 8–b pleading standard, when the Appellate Division had found the evidence insufficient to sustain a conviction on the direct criminal appeal] ). As described in the Appellate Division decision, claimant's trial testimony was not simply a conclusory denial of guilt, but consisted of a detailed description of his claimed conduct on the day in question, rejecting in detail the charge that he participated in the crime. Since I must credit his testimony (and that of his father) for purposes of this motion, I must deny defendant's application.
Claimant cannot (and does not here) rely on the mere fact of reversal to meet the pleading requirements ( see Moses v. State of New York, 137 Misc.2d 1081 [Ct Cl 1987] ). Rather the summary of the trial evidence in the First Department's opinion fleshes out in greater detail the more general denials set forth in his claim.
Defendant faults claimant for not presenting an affidavit or trial transcripts along with his pleadings, to support his claims of innocence (Aff. in Supp. ¶ 15). As noted, however, section 8–b(4) is a pleading provision, and does not require claimant to present evidentiary support of this sort ( seeCourt of Claims Act § 8–b[4] [the “claim shall state facts in sufficient detail ...”]; Lanza, 130 A.D.2d at 873 [“nothing in Court of Claims Act § 8–b requires such documentary evidence to be submitted at the pleading stage”] ).
In reaching this conclusion, I am cognizant of scattered statements in the caselaw to the effect that a claimant cannot meet the section 8–b(4) standard merely through his or her own “self-serving” testimony, or by reprising the evidence presented at trial. For example, in Fudger v. State of New York, 131 A.D.2d 136, 140 [3d Dept 1987], the Court found that a “rehash [ ]” of “the trial evidence” does not meet the heightened pleading standard in wrongful conviction actions. Other decisions arguably lend support to that statement ( see Vasquez v. State of New York, 263 A.D.2d 539, 539 [2d Dept 1999] [claimant's “conclusory and self-serving testimony failed to carry her heavy burden”] [internal quotations and citation omitted]; Grady, supra [claimant's “self-serving testimony alone without sufficient corroborating evidence showing his innocence” is not sufficient to meet standards of section 8–b(4) ]; Hubener v. State of New York, Claim No. 77675 [Ct Cl, Corbett, J., March 26, 1996] [Aff. in Supp. Ex. D] [claimant failed to prove 8–b claim at trial; “beyond the mere acquittal at his second trial, and his trial testimony, something more than the earnest consistency of his averments must be forthcoming”] ).
To the extent these cases can be read to say that a claimant can never prevail on the basis of a recitation of the trial evidence, they are at odds with other holdings ( see e.g. Solomon, 146 A.D.2d at 442 [claim based entirely on “testimonial and documentary evidence from the [claimant's] first trial” found sufficient]; Hernandez v. State of New York, 158 Misc.2d 232, 235 [Ct Cl 1993] [declining to dismiss section 8–b claim based on trial testimony of defendant and certain alibi witnesses; “if believed, this would clearly and convincingly establish his innocence”]; Mott v. State of New York, 138 Misc.2d 916, 918 [Ct Cl 1988] [motion to dismiss denied when claimant “affirmatively setting forth in the pleadings ... the bases of physical and testimonial evidence” introduced at his criminal trial showing his innocence] ).
These cases do not address circumstances where the only basis for the claim is claimant's own assertions. That is not, in any event, the case here, where the evidence purportedly supporting claimant's innocence also includes his father's testimony.
Solomon, which was cited and quoted with approval by the Warney Court, closely mirrors the present claim. In that case, the underlying criminal trial resulted from an alleged drug transaction between claimant and an undercover officer. The primary evidence introduced at trial was the officer's testimony detailing the purported deal, and claimant's testimony denying his guilt. The Appellate Division reversed the initial conviction based on improprieties in the prosecutor's summation, and in doing so noted that the evidence presented a close case of guilt because of certain contradictions in the State's evidence. Claimant was then acquitted on retrial, and brought an unjust conviction action in the Court of Claims. The First Department reversed the claim's dismissal, finding that claimant's reference to the evidence at trial sufficed to plead a claim under section 8–b.
Thus, Solomon demonstrates that there is no blanket rule against supporting a wrongful conviction claim solely with the evidence adduced at the initial criminal trial. Indeed, any such rule would be at odds with Warney's admonition against assessing the credibility of the evidence at the pleading stage. There is nothing in Warney that indicates that the standard for sufficiency under section 8–b(4) should be applied differently depending on the source of the evidence, or whether it consists of matters outside the trial record. So long as the claim sets forth detailed factual allegations that if true would prove claimant's innocence by clear and convincing evidence, that is sufficient at the pleading stage for the case to go forward.
Defendant nonetheless contends that claimant cannot meet his burden of proof, given the Appellate Division's statements regarding the “implausibility” of certain unspecified aspects of his testimony, and the People's “strong case” (Aff. in Supp. ¶ 12). The Appellate Division also found, however, that the case turned entirely on questions of credibility. I cannot, on the basis of the general observations contained in the appellate opinion, avoid the Court of Appeals' admonition not to make credibility assessments at this stage (Warney, 16 NY3d at 435–36 [court could not dismiss on ground that he was “not convinced” that allegations were true]; Hernandez v. State of New York, 158 Misc.2d 232, 236 [Ct Cl 1993] [rejecting defendant's motion to dismiss based on Appellate Division finding that testimony was incredible; noting that “the Appellate Division was not at the criminal trial”] ). To dismiss this action because the Appellate Division said some of claimant's statement were not entirely plausible, would be to do just that.
Applying the standards set forth above, I find that Retamozzo has adequately pled his claim, as I must credit for present purposes his detailed denial, supported by his father's testimony. In reaching this decision, I do not discount the “heavy burden” the statute places upon claimant ( see Reed, 78 N.Y.2d at 11), and which he will have to meet with sufficient credible proof at trial. Afforded the deference required at this stage of the litigation, however, the allegations in the claim are sufficient to survive dismissal under section 8–b(4).
3. Summary Judgment
Defendant's notice of motion states that this motion is brought under section 8–b(4) and CPLR 3212, the latter of which governs motions for summary judgment. There is no other reference in the moving papers to summary judgment, and defendant's supporting affirmation nowhere indicates that defendant is seeking such relief ( see Aff. in Supp. ¶ 1 [“I make this affirmation in support of the defendant's motion to dismiss the claim as it fails to conform to the pleading requirements under Section 8–b”] ).
To the extent defendant's motion, by referencing CPLR 3212, may be read as seeking summary judgment, it is denied. Defendant has made no effort to tender sufficient evidence to demonstrate the absence of any material issue of fact ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985] ).
For his part, claimant does not cross-move for summary judgment, but states in his responsive papers that the Court should nonetheless grant him such relief, since (1) the defendant has failed to provide a timely response to his requests to admit; (2) the items set forth in his request should therefore be “deemed admitted”; and (3) on the basis of such admissions, he has shown the absence of any issue of material fact in this case.
The Court may on a motion for summary judgment grant summary judgment to a non-moving party when such relief is warranted by a search of the record ( seeCPLR 3212[b] [if “it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion”] ). Such relief is discretionary ( see Atiencia v. MBBCO II, LLC, 75 AD3d 424, 424 [1st Dept 2010] [court is “empowered” to grant non-moving party summary judgment]; McDougal v. Apple Bank for Sav., 200 A.D.2d 418, 419 [1st Dept 1994] [court is “authorized” to grant non-moving party summary judgment] ). For reasons set forth below, no such exercise of discretion is warranted here.
The procedural background behind claimant's requests to admit is as follows: By order dated October 6, 2011, this Court gave claimant until November 30, 2011 to serve all notices to admit, which time was extended until December 16 by order dated December 12. The December 12 order also directed that a telephone conference be conducted on January 26, 2012.
Claimant sent defendant notices to admit, which were dated December 16, 2011, and which apparently were not received by defendant until December 21, 2011 (Aff. in Opp. ¶ 29). At the January 26 conference, held on the record, defendant raised concerns with the notices to admit, stating that they were voluminous, a number were improper, and they were served after the deadline. It sought a stay of discovery so that it could await the outcome of the present motion before providing a response. I granted that application by decision and order filed February 27, 2012, noting during the conference that because the State's motion would be addressed to the pleadings, any further discovery would not be relevant to its resolution.
Claimant asserts that because defendant did not respond to his discovery demand within 20 days, the matters set forth therein are deemed admitted. He premises this contention on CPLR 3123(a), which provides in pertinent part: “Each of the matters of which an admission is requested shall be deemed admitted unless within twenty days after service thereof or within such further time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters.” Because these admissions essentially resolve all factual issues in claimant's behalf, he contends that summary judgment in his favor is appropriate ( see Callaghan v. Curtis, 82 AD3d 816 [2d Dept 2011] [granting summary judgment motion based on matters deemed admitted by failure of opposing party to respond to requests to admit] ). That outcome is unwarranted in this case, however, for numerous reasons.
First, while defendant makes one reference to CPLR 3212 in its papers, it otherwise makes no effort to obtain summary judgment, and its motion does not appear to actually seek such relief. Absent a motion for summary judgment, the Court is not empowered to search the record on Retamozzo's behalf ( see Atiencia, 75 AD3d at 424 [summary judgment cannot be granted for non-moving party except as to issue for which adversary actually sought summary judgment] ).
Second, the record does not support claimant's assertion that the statements in his requests to admit must be deemed admitted. Defendant asked for relief from the requirement that it respond to the requests to admit, and the Court in its February 27 order essentially granted such relief nunc pro tunc. The fact that the 20 days had passed when such application was made did not bar the Court from extending the deadline while discovery was proceeding ( see Alford v. Progressive Equity Funding Corp., 144 A.D.2d 756, 757 [3d Dept 1988] [court did not err in allowing late service of responses to notice to admit]; compare Central Nassau Diagnostic Imaging, P.C. v. GEICO, 28 Misc.3d 34 [App Term, 1st Dept 2010] [matters deemed admitted when defendants did not respond “in any manner,” and plaintiff's application made at trial] ). That is particularly true here, where it appears that the requests to admit were, themselves, served upon defendant after the Court's deadline.
Nothing in this opinion is intended to address the specific timing or nature of the response defendant must give to the claimant's notice to admit. That matter will be addressed in a conference with the parties following the issuance of this decision.
Third, many of claimant's requests to admit are facially improper as they do not seek information as to which the claimant reasonably believes “there can be no substantial dispute at the trial and which are within the knowledge of such other party or can be ascertained by him upon reasonable inquiry” (CPLR 3123 [a] ). For example, claimant seeks certain admissions concerning his own state of mind ( see e.g. Request to Admit No. 47 [“That on 8 January 2003, claimant did not intend to use [certain] scales' ....“]; see also Marguess v. City of New York, 30 A.D.2d 782, 782 [1st Dept 1968] [notice to admit making “sweeping, generalized demands” on issue of “ultimate liability” are “palpably objectionable”]; Rosenfeld v. Vorsanger, 5 AD3d 462, 462 [2d Dept 2004] [notice to admit “is only to eliminate from the issues in litigation matters which will not be in dispute at trial”] ).
For all the reasons stated above, the Court declines claimant's invitation to grant him summary judgment under CPLR 3212(b). Defendant's motion M–81202 is denied in its entirely, as is claimant's application for a default judgment.
The Court will contact the parties to schedule a status conference upon the filing of this decision and order.
SO ORDERED.