Clark v. Richardson

2018 NY Slip Op 5124

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 10, 2018
• Docket: 7093N
• Status: Published

Opinion

Clark v Richardson (2018 NY Slip Op 05124)

Clark v Richardson

2018 NY Slip Op 05124

Decided on July 10, 2018

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on July 10, 2018
Friedman, J.P., Gische, Kahn, Singh, Moulton, JJ.

7093N 42224/17E

[*1] Darcel D. Clark, etc., Plaintiff-Appellant,

v

Derrick Richardson, Defendant-Respondent.

Darcel D. Clark, District Attorney, Bronx (Stanley R. Kaplan of counsel), for appellant.

Derrick Richardson, respondent pro se.

Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered September 7, 2017, which, in this civil forfeiture action, denied plaintiff's motion for a default judgment, and dismissed the complaint sua sponte, unanimously reversed, on the law, without costs, and the motion granted.

Plaintiff District Attorney established entitlement to judgment by submitting the complaint, which was verified by an Assistant District Attorney who was "acquainted with the facts" of the underlying criminal action (CPLR 3020[d][2]). The verified complaint was properly submitted in lieu of an affidavit of merit (see CPLR 3215[f]), since it was supported by the arresting detective's allegations in the felony complaint and a laboratory report finding that substances found in defendant's possession were heroin and cocaine. It is not dispositive that defendant was convicted only of the misdemeanor of criminal possession of a controlled substance in the seventh degree, since the People met their burden of establishing by clear and convincing evidence that the subject money was the proceeds of defendant's commission of a Penal Law article 220 felony, namely criminal possession of a controlled substance in the third degree (see Johnson v Miller, 41 AD3d 250 [1st Dept 2007]; see also CPLR 1310[6], 1311[1][b]). The People also established proper service of the summons and complaint and the notice of motion (see CPLR 3215[f], [g][1]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JULY 10, 2018

CLERK