New York State Court of Claims

New York State Court of Claims
SALCE v. THE STATE OF NEW YORK, # 2017-015-261, Claim No. 126391, Motion No. M-90553, Cross-Motion No. CM-90860

Synopsis

In this claim for unjust conviction and imprisonment pursuant to Court of Claims Act 8-b, claimant's motion for partial summary judgment on the issue of liability was denied as the proof submitted in support of the motion contained conflicting evidence on the issue of claimant's innocence. That branch of claimant's motion seeking dismissal of certain defenses was granted, in part, and defendant's cross motion to dismiss the claim for failure to state a cause of action was denied.

Case information

UID: 2017-015-261
Claimant(s): LYDIA-ANN SALCE
Claimant short name: SALCE
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 126391
Motion number(s): M-90553
Cross-motion number(s): CM-90860
Judge: FRANCIS T. COLLINS
Claimant's attorney: David A. Harper, P.C.
By: David A. Harper, Esq.
Defendant's attorney: Honorable Eric T. Schneiderman, Attorney General
By: Michael C. Rizzo, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: September 27, 2017
City: Saratoga Springs
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

In this claim to recover damages for unjust conviction and imprisonment under Court of Claims Act 8-b, claimant moves for partial summary judgment on the issue of liability pursuant to CPLR 3212 or, in the alternative, dismissal of the defenses asserted in defendant's answer pursuant to CPLR 3211 (b). Defendant cross-moves for dismissal of the claim pursuant to CPLR 3211 (a) (7) and Court of Claims Act 8-b (4).

According to the allegations in the claim and the documents submitted therewith, claimant was convicted of second-degree attempted murder and two counts of first degree assault and was sentenced on August 31, 2012 to three concurrent 16-year determinate prison terms and five years of post-release supervision (claimant's Exhibit A, with attachments thereto). The convictions arose from a violent altercation between claimant and her husband, Michael McKee, in the early morning hours of August 11, 2011 in which claimant stabbed McKee with a knife multiple times before calling 911. On appeal from the convictions, the Appellate Division found that although the verdict was supported by legally sufficient evidence and was not against the weight of the evidence, reversal was required because the County Court erred in not allowing testimony by claimant's expert. In addition, the Appellate Division found that the charge given the jury on the defense of justification was incorrect. Accordingly, the judgment of conviction was reversed and the matter remitted for a new trial (see People v Salce, 124 AD3d 923 [3d Dept 2015]). Following a new trial, claimant was acquitted of all charges.

Court of Claims Act 8-b provides a damages remedy for innocent persons wrongly convicted and imprisoned. Individuals seeking relief under the statute must meet strict pleading requirements and prove their claim by "clear and convincing evidence" (Court of Claims Act 8-b [1], [4], [5]). With respect to pleading, 8-b (4) requires the following:

"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."

Presentation of the claim must include the submission of documents establishing that the claimant was convicted of a crime; sentenced to a term of imprisonment and served all or part of the sentence; the claimant was either pardoned on the ground of innocence or the conviction was reversed or vacated and the accusatory instrument dismissed based upon one of the grounds enumerated in 8-b (3) (b) or the conviction was reversed and the claimant was found not guilty at a new trial (Court of Claims Act 8-b [3]; Ivey v State of New York, 80 NY2d 474 [1992]).

The Court will first consider defendant's cross motion to dismiss for failure to state a cause of action. Defendant asserts that the claim fails to state a cause of action because it fails to comply with the requirement set forth in Court of Claims Act 8-b (4) that the claim "state facts in sufficient detail to permit the court to find that claimant is likely to succeed at trial in proving that . . . he did not commit any of the acts charged in the accusatory instrument" (Court of Claims Act 8-b [4]). The Court of Appeals made clear in Warney v State of New York (16 NY3d 428 [2011]) that notwithstanding the higher pleading standard imposed by Court of Claims Act 8-b (4), the Court of Claims, like other trial Courts, "should 'accept the facts as alleged in the [claim] as true" when deciding a motion to dismiss a claim under 8-b (16 NY3d at 435; quoting Leon v Martinez, 84 NY2d 83, 87 [1994]). The Court is therefore required to consider whether the allegations in the claim, assumed true for purposes of the motion, are sufficiently detailed to demonstrate the likelihood of success at trial (Court of Claims Act 8-b [4]; Solomon v State of New York, 146 AD2d 439 [1st Dept 1989]; Retamozzo v State of New York, 36 Misc 3d 1237 [Ct Cl, 2012]). Merely alleging that a judgment of conviction was reversed and resulted in an acquittal after a new trial is insufficient (Reed v State of New York,78 NY2d 1 [1991]). As the Court of Appeals stated in Reed, "[t]he People's inability to satisfy their burden of proof at the criminal trial is simply not equivalent to the requirement of Court of Claims Act 8-b (4) that claimant state facts sufficient to support a finding that she is likely to succeed in proving that she did not commit the acts with which she was charged" (78 NY2d at 9). Nor, in a civil action such as this, does claimant benefit from a presumption of innocence (id.). That said, the allegations in the instant claim allege more than merely the fact of acquittal after a retrial. They allege facts which, if believed, establish that claimant was acting in self defense when she inflicted knife wounds on McKee. In particular, claimant alleges, in pertinent part, the following:

"(a) On August 10, 2011, claimant was involved in an incident of domestic violence with her husband, Michael McKee. Upon his return to the marital residence during the early morning hours of August 11, 2011 . . . in an intoxicated condition, Michael McKee attacked the claimant grabbed her hair and held a knife to her throat. The claimant defended herself from the attack. When the attack was over, the claimant called 911 for help" (Claimant's Exhibit A, claim, 2 [a]).

In addition to claimant's version of the altercation, the claim indicates that claimant's defense expert, Massad Ayoob, testified on claimant's behalf at the retrial. In his testimony, which is submitted in support of claimant's motion, Mr. Ayoob sets forth his opinion that the wounds on claimant's hands and those she inflicted on McKee were consistent with defensive action on her part (claimant's Exhibit Q, pp. 16-17). The claim also alleges that claimant was convicted of one or more felonies, sentenced to a term of imprisonment, served all or part of her sentence, and was acquitted after a retrial.(1) In the Court's view, the allegations in the claim, if believed, clearly and convincingly establish the elements of an unjust conviction claim so as to state a cause of action under Court of Claims Act 8-b.

The Court of Appeals made clear in Warney that "[i]n evaluating the likelihood of success at trial, Court of Claims should avoid making credibility and factual determinations" (Warney, 16 NY3d at 435). Absent "serious flaws" in the facts alleged in the claim, the weighing of evidence and determinations regarding the credibility of witnesses are more appropriately reserved for the factfinder at the time of trial (Klemm v State of New York, 170 AD2d 438, 439 [2d Dept 1991]; see also Dozier v State of New York, 134 AD2d 759 [3d Dept 1987]). Here, like other cases hinging on the credibility of the claimant and the complainant, " 'while events may prove later that claimant is unable to carry [her] burden of establishing [her] innocence by clear and convincing evidence, we cannot say at this stage that the facts set forth in the claim do not indicate a likelihood of success at trial or that the facts are not sufficiently detailed' " (Solomon v State of New York, 146 AD2d 439, 445 [1st Dept 1989], quoting Lanza v State of New York, 130 AD2d 872, 873-874 [3d Dept 1987]). Consequently, defendant's motion to dismiss the claim for failure to state a cause of action is denied.

Turning to claimant's motion for partial summary judgment, it is well established that " 'summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue' " (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978][citation omitted]). "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). At this stage, the evidence must be viewed " 'in the light most favorable to the non-moving party,' " (Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d 40, 49 [2015], quoting Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 339 [2011]). Once the movant has made the required showing, the burden shifts to the party opposing the motion "to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986], citing Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). "It is not the function of a court deciding a summary judgment motion to make credibility determinations or findings of fact, but rather to identify material triable issues of fact (or point to the lack thereof)" (Vega v Restani Constr. Corp., 18 NY3d 499, 505 [2012]).

Here, the proof submitted in support of claimant's motion includes conflicting evidence regarding whether claimant was the aggressor or acting in self defense. McKee testified at the retrial that when he came home that evening, claimant was screaming at him about hanging out with his friends and gave him the choice to either "accept" them or her, to which he responded "I am done with both" (claimant's Exhibit S, p. 156). According to McKee, when he turned to exit the kitchen claimant plunged a sharp knife into his back, screaming over and over "I told you, you would be done" (id. at p. 157). McKee testified that he turned around and punched claimant in the right eye in an attempt to defend himself but she continued stabbing him multiple times in the chest, head and shoulder (id. at pp. 158-161).

Claimant, on the other hand, testified that McKee came home intoxicated in the early morning hours and, when she told him she was too tired to talk to him, he threw a glass jar that shattered all over the kitchen counter (claimant's Exhibit F, pp. 39- 40). According to claimant, McKee "yanked" her ponytail (id. at 41), held a large knife where she could see it (id.), and repeatedly punched her in the head until they "sort of fell together to the floor" (id. at 45). Claimant testified that she found the knife on the floor and started flailing wildly until she made contact with McKee (id. ).(2) Claimant testified that she thought McKee was in front of her "and sort of to the right side because that's where the hits seemed to be coming from. So, I thought that's where he was, so that's where I was flailing. And I think I made contact like two more times, at that point, when we were on the floor almost" (id. at pp. 45-46).

In view of the markedly conflicting versions of the altercation, both of which were submitted by the claimant in support of her motion, claimant failed to sustain her burden of demonstrating the absence of any triable, material issue of fact (see Alvarez v Prospect Hosp., 68 NY2d at 324; Roofeh v 141 Great Neck Rd. Condominium, 85 AD3d 893 [2d Dept 2011]; Mazzio v Highland Homeowners Assn. & Condos, 63 AD3d 1015 [2d Dept 2009]). While claimant supports her motion with McKee's various statements, which she asserts contain conflicting details and should be entirely discounted, it is not the function of the Court on a motion for summary judgment to resolve factual differences or determine the credibility of the witnesses involved (Warney, 16 NY3d at 435; Vega, 18 NY3d at 505; cf. Britt v State of New York, 260 AD2d 6 [1st Dept 1999]). As a result, claimant's motion for summary judgment must be denied.

Claimant alternatively requests dismissal of the second through sixth defenses asserted in the answer. CPLR 3211 (b) permits a party to "move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit." To succeed on a motion to dismiss defenses pursuant to CPLR 3211 (b), the claimant bears the burden of demonstrating the defenses lack merit as a matter of law (Suarez v State of New York, 60 AD3d 1243 [3d Dept 2009]; Vita v New York Waste Servs., LLC, 34 AD3d 559 [2d Dept 2006]; Santilli v Allstate Ins. Co., 19 AD3d 1031 [4th Dept 2005]). For purposes of such a motion, "all of defendant's allegations must be deemed to be true and defendant is entitled to all reasonable inferences to be drawn from the submitted proof" (Grunder v Recckio, 138 AD2d 923 [4th Dept 1988]). "If there is doubt as to the availability of a defense, it should not be dismissed" (Pellegrino v Millard Fillmore Hosp., 140 AD2d 954, 955 [4th Dept 1988] [internal quotation marks and citation omitted]).

Defendant's second defense invokes the doctrine of sovereign immunity(3) and its third defense alleges the claim fails to comply with the pleading requirements of Court of Claims Act 8-b. Defendant contends in opposition to claimant's motion that because its waiver of immunity is conditioned upon claimant's compliance with the strict pleading requirements of Court of Claims Act 8-b (4), which she failed to meet, defendant is immune from liability and the claim should be dismissed. However, for the reasons set forth previously, the Court has determined that the claim complies with the pleading requirements of Court of Claims Act 8-b (4). Accordingly, the defendant's second and third affirmative defenses must be dismissed.

Defendant's fourth and fifth defenses allege that the injuries or damages allegedly sustained by claimant were brought about by her own conduct (id. at 7, 8). It is the statutory obligation of the claimant, not the defendant, to prove that she did not cause or bring about her own conviction (Warney, 16 NY3d at 437; Court of Claims Act 8-b [4]). Nevertheless, the Court views these defenses as harmless surplusage and will therefore deny claimant's motion to dismiss defendant's fourth and fifth defenses at this time (cf. Towne v Kingsley, 121 AD3d 1381 [3d Dept 2014]).

Defendant's sixth defense alleges that the claim fails to comply with Court of Claims Act 8-b (4) in that it fails to allege facts in sufficient detail to permit the Court to conclude that the claimant is likely to succeed at trial in proving the material elements of her claim. For the reasons set forth in connection with the denial of defendant's cross motion for dismissal, however, the claim contains sufficient detail to permit the Court to find that claimant is likely to succeed at trial. This defense must therefore be dismissed.

Based on the foregoing, that branch of claimant's motion seeking partial summary judgment on the issue of liability is denied and that branch of her motion seeking dismissal of defendant's defenses is granted to the extent of dismissing the second, third and sixth defenses asserted in defendant's answer. The motion is otherwise denied. Defendant's cross motion to dismiss the claim is denied.

September 27, 2017

Saratoga Springs, New York

FRANCIS T. COLLINS

Judge of the Court of Claims

Papers Considered:

  1. Notice of Motion dated May 30, 2017;
  2. Affirmation of David A. Harper, Esq. dated May 30, 2017, with Exhibits A-Z;
  3. Index to Exhibits;
  4. Affidavit of Lydia-Ann Salce sworn to on May 24, 2017;
  5. Claimant's Memorandum of Law dated May 30, 2017;
  6. Notice of Cross Motion dated August 4, 2017;
  7. Affidavit of Michael C. Rizzo, Esq. sworn to August 4, 2017;
  8. Memorandum of Law in Support of Cross Motion dated August 4, 2017;
  9. Affirmation of David A. Harper, Esq. dated September 5, 2017.

1. Documentary evidence was also presented together with the filed claim and in support of claimant's motion establishing these facts (see Court of Claims Act 8-b [3]; Ivey v State of New York, supra).

2. While claimant contended during the criminal trial that the knife she used to defend herself was McKee's, her daughter testified at trial that, in fact, it was the claimant's knife which she stored in the headboard of her bed.

3. While this defense erroneously asserts that "liability was not waived by Section 8 of the Court of Claims Act", defendant clearly invoked the "doctrine of sovereign immunity" as a defense in the same sentence (claimant's Exhibit B, 5 [emphasis added]).