Opinion
# 2015-049-003 Claim No. 115186 Motion No. M-84859
01-09-2015
ARMAND RETAMOZZO v. THE STATE OF NEW YORK
Armand Retamozzo, Pro Se Eric T. Schneiderman, New York State Attorney General By: Janet L. Polstein, Assistant Attorney General
Synopsis
The Court granted defendant's motion to dismiss the claim pursuant to CPLR 3126(3), based on claimant's wilful and contumacious actions, which undermine the integrity of the truth-seeking function of the Court.
Case information
| UID: | 2015-049-003 |
| Claimant(s): | ARMAND RETAMOZZO |
| Claimant short name: | RETAMOZZO |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 115186 |
| Motion number(s): | M-84859 |
| Cross-motion number(s): | |
| Judge: | DAVID A. WEINSTEIN |
| Claimant's attorney: | Armand Retamozzo, Pro Se |
| Defendant's attorney: | Eric T. Schneiderman, New York State Attorney General By: Janet L. Polstein, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 9, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant pro se Armand Retamozzo commenced this action for unjust conviction and imprisonment, pursuant to Court of Claims Act § 8-b, by claim filed April 29, 2008. Defendant State of New York now moves for an order striking claimant's pleading, and dismissing the claim, pursuant to CPLR 3126(3). Defendant bases its motion on two episodes that took place during this litigation.
The first occurred on September 24, 2013, when claimant took the deposition testimony of Meggan Dodd of the Office of the Special Narcotics Prosecutor ("SNP"), pursuant to a non-party subpoena, at the Court of Claims in Manhattan. Claimant brought with him a videographer to record the deposition, and revealed to the Court, defendant, and SNP on the morning of the testimony that the videographer would use equipment belonging to claimant, or a "relative" of his. Despite my repeated admonition on the record that the video of the deposition would have to be shared by the videographer on equal terms with the parties, claimant, nevertheless, removed the video equipment from the room during a break, and was in sole possession thereof for a number of minutes. After Retamozzo's action was brought to the Court's attention by defendant, I ordered the deposition terminated.
The second incident took place on January 13, 2014, when claimant sat for his own deposition, again at the Court of Claims in Manhattan. When asked some initial background questions by the assistant attorney general, Retamozzo repeatedly professed a failure of recollection, claiming he was unable to remember such matters as when he graduated high school, whether his parents were divorced, and what his father (with whom he resides) does for a living. After defendant's counsel raised the matter with the Court, the deposition was ultimately conducted under my direct supervision, but claimant continued to respond in the same vein. Ultimately, I directed that this deposition be terminated, and that claimant pay defendant's costs. At that point, defendant moved orally to dismiss the claim, and I set forth a timetable for the submissions now before the Court.
Before addressing the merits of the motion, some more detail is necessary regarding the two events at issue.
I. The Dodd Deposition
On January 11, 2013, I signed subpoenas ad testificandum submitted by claimant for the testimony of two employees of the non-party SNP, Meggan Dodd and Frederick Hartwell. SNP moved to quash the subpoenas. In a ruling dated June 28, 2013, I denied the motion as to Dodd, and held it in abeyance as to Hartwell, pending Dodd's testimony (see Retamozzo v State of New York, UID No. 2013-049-035 [Ct Cl, Weinstein, J., June 28, 2013]).
Following the events described below, I denied the motion as to Hartwell in a Decision and Order dated February 21, 2014.
Pursuant to a conference call held on the record with the parties on September 11, 2013, I directed by order the following day that the claimant submit a letter to the Court by September 19, 2013: (1) identifying the person before whom the deposition would be taken, the reporting service with which that person was affiliated, and the person's experience with videography; and (2) stating that the person is authorized by the laws of New York State to administer oaths, has no familial, social or financial ties with claimant, and can confirm such under penalty of perjury (Mot., Ex. D).
I had previously authorized Retamozzo to record the deposition by videotape, in accordance with 22 NYCRR § 202.15. The letter arose out of Retamozzo's representation that he would not use a standard court reporting service.
Claimant submitted a letter dated September 19, 2013, identifying one Jason Hernandez as his videographer. The letter stated that Hernandez is a notary public, has no "familial, social or financial relationship" with Retamozzo, and has "experience in videography."
Dodd appeared for deposition on September 24, 2013. Prior to the testimony, during an exchange before the Court regarding Mr. Hernandez's experience, claimant indicated that the video equipment to be used by him belonged to a "relative" of his. This provoked a long colloquy on how the resulting video could be shared on equal terms with the parties. Claimant insisted that the easiest path would be for him to download and duplicate it. The State and SNP vociferously objected, and I repeatedly indicated that claimant's access to the video on terms different from those of the defendant or SNP would not be acceptable. Ultimately, the non-party and claimant agreed to go forward based on a process whereby the videographer would retain control over the equipment, and would copy the video for the parties after the deposition, with a copy filed with the Court.
Retamozzo insisted that this equipment was used, rather than Hernandez's own, because it was more sophisticated and would produce a clearer video.
During this exchange, Retamozzo continually noted his own familiarity with the equipment, and ceased referring to it - despite his original statement - as belonging to a "relative."
Defendant objected to this process, but non-party SNP expressed the desire to go forward and complete the deposition, with the understanding that the memory card recording the deposition would be shared on equal terms.
After several hours of Dodd's testimony, the parties appeared again before the Court, at defendant's request. The assistant attorney general ("AAG") indicated that during a break in the proceeding, she observed claimant talk with Hernandez, and then saw claimant downstairs working on his computer. When the AAG returned to the room, she saw that claimant had removed the video equipment from the conference room, and had held it in his sole possession during the entire half-hour break. Claimant acknowledged that this had occurred, attributing his actions to a desire that the equipment not be stolen. He had not, however, asked (or even informed) the other parties that he would be removing the equipment. Defendant and non-party SNP expressed the view that the integrity of the deposition had been hopelessly compromised. I ordered that the deposition be terminated in light of claimant's conduct.
The courtroom is on the tenth floor of the building.
II. The Retamozzo Deposition
The second incident that gives rise to this motion was the deposition of Retamozzo by defendant, which took place on January 13, 2014. The parties agreed that, as a result of the contentious nature of the case, the deposition would take place at the Court of Claims, so that the Court could supervise the testimony should it be necessary. Defendant has submitted a transcript of the deposition with its motion, as well as a transcript of the proceedings before the Court that day (see Mot., Exs. E, G).
Until they were conducted under court supervision, the actual testimonies of both Dodd and Retamozzo were taken in a conference room at the Court.
These two transcripts overlap, as the latter part of the testimony was taken in the courtroom, under the Court's supervision.
Retamozzo arrived 40 minutes after the deposition was scheduled to begin. Prior to the commencement of his testimony, I admonished the parties, in accordance with 22 NYCRR § 221.1, that all objections were preserved, and claimant could only refuse to answer a question on the grounds of privilege, or if the question is "clearly improper" (Mot., Ex. G at 5). I indicated that the parties could seek a ruling from the Court in the event any controversies arose, but that there "should not be refusals to answer general[ly] except in the rare circumstances set forth in the CPLR and in the regulations" (id. at 6).
The transcript of the deposition reveals that during the first 23 pages of testimony:
•Retamozzo said he did not "feel comfortable" testifying as to whether he had a passport, and then said that he "may have," and "believe[d]" he had owned a passport previously (Mot., Ex. E at 7). When asked again, he objected to the question as "asked and answered" (id. at 8).
•He was "not sure" how old his father was, said he did not "feel comfortable" testifying as to the date of his father's birth, later saying he was "not sure" about such date (id. at 9-10). He then said he "knew it [i.e, the father's birthday] at one point," but did not on the day of the deposition (id. at 12).
•He said he was "not sure" what his father does, or previously did for a living (id. at 12-13). He acknowledged that he lives with his father (id. at 13).
At this point, counsel for the defendant interrupted the proceedings, to raise what she deemed to be claimant's obstructive conduct to the Court. I admonished claimant that a statement that he was not comfortable answering was not a proper response to a question, but if he did not remember, he should so state (Mot., Ex. G at 8). After some discussion as to whether or not it was possible that Retamozzo did not recall his father's birth date, the following colloquy took place:
Court: Well, if you get an answer . . . that says you don't - he doesn't recall you have to move on to the next question.
Defendant's counsel: Fine.
Court: And if there's some belief afterwards that this is a misrepresentation then you can raise it up to the Court afterwards" (id. at 13-14).
The deposition resumed, and claimant continued to deny any recollection of certain central facts regarding his life and family:
•He said that he did not know his mother's last name, whether his parents were legally married or whether they got a divorce (Ex. E at 17).
•He did not recall where he was born since he "must have been an infant" at the time. Nor did he remember his place of birth (again reiterating that he was an infant), although he acknowledged it was "probably New York" (id. at 18).
•He did not know with whom he lived as a young child (id. at 20), or where he grew up (id. at 23).
•He did not know the birth dates of his siblings, and stated that one was from "six months to three years" older, while he did not recall the age of another (id. at 22-23). When pressed, he said: "I really don't recall my childhood . . ." (id. at 22).
Retamozzo later stated that this sibling, his sister Sherri, lives with him (Mot., Ex. E at 25). He later estimated that she was between one and five years younger than him (id. at 29).
Following these answers, defendant once again interrupted the deposition, and sought the aid of the Court. I directed that the parties continue the deposition in my presence, so that I could rule on any objections. I advised claimant that if he was "being resistant in answering properly I will impose sanctions including the payment of cost of this deposition . . ." (Mot., Ex. G at 14). Once more, the deposition continued. Once again, claimant declared himself unable to recollect the answer to numerous questions. When asked to indicate the last time that he owned a cell phone, he responded: "I don't have a memory at this time" (Mot., Ex. E at 28). He also testified that he had no memories prior to high school (id. at 30).
Defendant inquired as to the years claimant attended high school. Retamozzo responded: "I can't answer that question because Judge Weinstein just told me being unable to answer is not proper, so I can't answer" (id. at 31). Defendant then asked when he graduated from high school, and Retamozzo again stated that he could not answer, since he had been instructed that he was not allowed to testify that he did not recall (id. at 32).
After an off-the-record conversation, the following exchange ensued:
"Court: Mr. Retamozzo, I have been sitting here listening to the deposition testimony. You have denied recollection of either [the] age or birthday of your two sisters who live with you, as well as the year you graduated from high school. Is that correct, Mr. Retamozzo, you have no recollection of that?
Retamozzo: No, that is not correct, your Honor. As the record of the deposition will show, I gave her a range of my siblings.
Court: You don't know your sisters' birthdays?
Retamozzo: I am sure I did at one point. It's not in my memory at this time.
Court: And you don't know your father's birthday, you don't know your sisters' birthdays. Those are the representations that you made under oath.
Defendant: Or his mother's current name.
Court: Your mother's current name or your parents are married.
Retamozzo: As I testified here at the deposition, I remember my mother's first [n]ame, her current last name I am not sure. What more can I say, your Honor?
Court: You can answer the questions.
Retamozzo: I'll guess.
Court: Mr. Retamozzo, no one is asking you to guess. It's your representation under oath - how old were you when you graduated high school, Mr. Retamozzo?
Retamozzo: I don't recall, your Honor."
(id. at 32-34).
At that point, I ruled that the deposition would be concluded, and sanctions would be imposed on claimant in the form of paying its costs. Defendant declared its intention to seek dismissal instead. I initially rejected that application, but then granted defendant's request to make a formal motion for that sanction, and thereby brief the matter. That motion is the one before me now.
In its submission, defendant argues that claimant's actions, and in particular his answers to the questions put to him at deposition, constituted a failure to respond to discovery demands, and subject him to sanction under CPLR 3126(3).
Claimant has submitted a response, entitled "Affidavit in Opposition to the Defaulting Defendant's Discovery-Related Motion," in which he makes a variety of arguments. First, he contends that defendant should not be permitted to seek dismissal, as it has itself failed to abide by the Court's discovery deadlines. Among other things, he avers that (1) defendant failed to "properly respond" to his discovery requests (Opp. ¶ 10); (2) defendant had moved for summary judgment "thereby taking the position that it needed no further discovery" (id. ¶ 11; see also id. ¶¶ 42-43); (3) defendant failed to take claimant's testimony until nearly two years after the Court had set a deadline for doing so (id. ¶¶ 5, 14); and (4) the Court had previously denied Retamozzo's own application for "discovery sanctions" because he had not shown "prejudice" (id. ¶ 12).
Claimant also makes several procedural arguments. He contends that (1) the deposition appended to defendant's motion is not certified (id. ¶¶ 23-25); (2) defendant's motion does not comply with a prior court order regarding discovery motions, which requires that a party write to the Court requesting a conference before such motion is filed (id. ¶ 33); and (3) defendant failed to submit an affidavit attesting that it had sought in good faith to resolve the discovery dispute before commencing this motion and conferring with the judge (id. ¶¶ 39-40). He also contends that his actions on September 24, 2013 and January 13, 2014 did not violate any court order (see id. ¶ 31).
Conspicuous by its absence from claimant's response is any defense of the answers he gave at his deposition, any assertion in regard to their truthfulness, or any explanation as to why he was unable to recall basic information regarding his background and family.
Discussion
Pursuant to CPLR 3126, a court may sanction a party that fails to comply with discovery demands, when such failure was willful and contumacious. Such a finding may be based on the "undisputed untruthfulness" of a party's testimony (Smith v Malarczyk, 118 AD2d 934, 935 [3d Dept 1986]; 317 W. 87 Assoc. v Dannenberg, 159 AD2d 245, 245-246 [1st Dept 1990]).
Potential sanctions include the "drastic" remedy of striking a pleading. Where the loss of evidence does not deprive the moving party of the ability to establish a case or defense, less severe measures are warranted (see Denoyelles v Gallagher, 40 AD3d 1027, 1027 [2d Dept 2007]; De Los Santos v Polanco, 21 AD3d 397, 398 [2d Dept 2005]). These can include precluding certain proof from being introduced at trial, or requiring that a negative inference be drawn regarding the absent evidence (see CPLR 3126; Strong v City of New York, 112 AD3d 15, 24 [1st Dept 2013][describing possible sanctions for discovery misconduct]). But the act of providing "false and fraudulent information," can justify the striking of a party's pleading, and the dismissal of an action (see Garnett v Hudson Rent A Car, 258 AD2d 559 [2d Dept 1999]).
There is no question that claimant's conduct at the deposition here warrants significant sanction. His actions were manifestly wilful and contumacious. Claimant has appeared before the Court on numerous occasions, and he is an articulate individual with significant power of recall. His assertions at the deposition that he could not conjure up in his memory "at that time" his father's job, or when he possessed a cell phone, or his mother's current name, or the place he grew up, were self-evidently absurd, and represented an obvious effort to obstruct the proceeding. Some of the questions as to which he denied recollection, such as his age at high school graduation, could easily have been calculated from his date of birth and years of schooling, yet he denied any ability to remember them. And he has provided no plausible explanation or defense for his responses in his submissions to this Court.
Retamozzo notes in his response to the motion that he listed in his bill of particulars as one element of damages he suffered from his conviction his "estrangement from . . . family and relatives" (Opp. ¶ 6 [emphasis omitted]). The import of this statement is not clear. To the extent claimant is seeking to attribute his lack of recollection of certain basic facts regarding his family members to such estrangement, that explanation is deeply inadequate. He makes this assertion in a peculiar manner - he does not actually say he is at odds with his family, but cites an earlier statement by him implying such might be the case. He also seems to argue that counsel for the defendant sought discovery on such estrangement (see Opp. ¶ 16), but the deposition pages he cites for this assertion make no mention of it. In any event, as noted he lives with his father and sisters. Indeed, the affidavit that contains this statement is notarized by his father. Yet he claimed to be unable to provide the most basic background information about these individuals - or himself.
A party's obstruction of a deposition by failing to answer questions in good faith may serve as ground for sanctions under CPLR 3126. In Roug Kang Wang v Chien-Tsang Lin (94 AD3d 850 [2d Dept 2012]), one of the plaintiffs repeatedly answered, "I don't know" at her deposition, claiming that she could not remember her husband's name, how many children she had, or what her signature looked like. The court dismissed the case under CPLR 3126, citing inter alia "the numerous unresponsive and evasive answers given by [plaintiff] at her deposition" (id.) Many other decisions have recognized that sanction under CPLR 3126 is appropriate where a party provides untruthful testimony (see e.g. Smith v Malarczyk, 118 AD2d 934, 935 [3d Dept 1986] [reversing order of trial court declining to impose sanctions under CPLR 3126 against defendant when he gave testimony that reflected "undisputed untruthfulness"]).
The Wang Court also cited other actions by plaintiffs, including their failure to appear on the continued deposition date, and filing of the note of issue although discovery was not complete.
Retamozzo's primary defense is essentially that defendant's hands are unclean, because it has also failed to meet various discovery deadlines. But that argument does not excuse his own misconduct, and is in any event premised on numerous mischaracterizations of the record. For example:
•Claimant contends that defendant did not comply with discovery deadlines set forth in an October 6, 2011 court order (see Opp. ¶ 9). But as he is aware, those deadlines were extended numerous times, due to various events including defendant's motion to dismiss, and the motion by non-party SNP to quash Retamozzo's subpoena (see e.g. Order of December 18, 2012 [extending time for filing of note of issue]; Order of September 12, 2013 [extending time for note of issue]; Letter of Court of November 26, 2013 [extending time for deposition by two months]). He cites no instance in which defendant did not comply with a court order, and provides no evidence that the delay in his deposition was due to any act of defendant except its filing of a motion to dismiss, in accordance with a timetable set by the Court.
•Claimant contends that defendant's attorney postponed "at least six of the depositions that it had scheduled to take of Retamozzo" (Opp. ¶ 5). He provides no evidence of this (and there is none in the Court's own record), except his own self-serving statement at the deposition that defendant "adjourned depositions over, and over, and over again, probably at least six times" (Mot., Ex. G at 20)
•Claimant notes that the defendant filed its answer two days late (see Opp. ¶ 4[a]). But that does not constitute discovery misconduct; rather it is a default which (as I have already found) was properly cured before claimant raised such default with the Court (see Retamozzo, UID No. 2012-049-037, supra).
In sum, claimant has not pointed to conduct on the State's part that would excuse his actions at the deposition. While he accurately points out that the defendant did not respond to his initial discovery requests in accordance with the timetable set forth in CPLR, that issue was addressed at several court conferences. I ultimately directed only a limited response, after finding most of claimant's requests to be improper (see Order of Dec. 12, 2012). Claimant has set forth no argument as to why the timing of this response might explain, much less justify, his obstreperous conduct at the deposition.
Retamozzo contends that I earlier declined to impose sanction on defendant for failing to timely respond to his notices to admit, because he had shown no prejudice. A review of the portion of the opinion he cites, however, shows nothing of the kind (see Retamozzo Aff. ¶ 12). Rather, I based my ruling on the particular rules for notices to admit set forth in CPLR 3123.
Claimant's procedural arguments are also without merit. He states that defendant failed to provide an affidavit that it had conferred in good faith to resolve the discovery dispute, in accordance with 22 NYCRR § 202.7 (see Opp. ¶ 39). He has previously made that argument, and I ruled that this regulation is not applicable to actions in the Court of Claims (see Retamozzo v State of New York, UID No. 2013-049-035 [Ct Cl, Weinstein, J., June 28, 2013]). Instead, the rules of this Court require only that the parties confer with the judge first (see 22 NYCRR § 206.8[b]). That occurred here, as defendant made application to make the present motion at the conclusion of claimant's deposition (see Mot., Ex. G at 31-34).
Claimant also notes that my order of October 6, 2011 provided that any party seeking to make a request for a discovery motion do so in writing. But that was unnecessary here, since the Court was present for the events at issue, and defendant's counsel specifically raised her intention to file a motion under CPLR 3126 with the Court on the record on January 13. I granted that request, and set a specific timetable therefor. Requiring another written submission before such motion was wholly unnecessary, and Retamozzo provides no reason why my earlier order trumps the specific authorization I gave for the filing of the present motion.
Claimant's contention that the State waived the right for further discovery by filing a summary judgment motion is similarly baseless. No note of issue has been filed, and discovery has been ongoing. There is no bar on a party whose summary judgment motion is denied seeking further discovery, and claimant never objected to his deposition being conducted on that basis in this case.
The "summary judgment" motion was brought when, in its motion to dismiss, the State cited CPLR 3211 "and/or 3212." I noted in my opinion that there was "no other reference in the moving papers to summary judgment, and defendant's supporting affirmation nowhere indicates that defendant is seeking such relief " (Retamozzo, supra, UID No. 2012-049-037).
Finally, claimant's arguments that the State failed to give him the opportunity to review and sign the deposition, and provide him a copy in non-condensed form, have no bearing on the merits of this motion (see Opp. ¶¶ 23-24). Claimant now has had the opportunity to point out any inaccuracies in the transcript, and he has not done so. Moreover, defendant has not submitted the transcript to prove the truth of any matters stated therein, but rather to show claimant's misconduct during the proceeding.
None of these efforts remotely justify claimant's patent effort to obstruct his deposition. As a result, imposition of sanction pursuant to CPLR 3126 is appropriate. The question, then, becomes which sanction is proper.
As noted, I initially denied defendant's oral application for dismissal, and then gave it the opportunity to brief the issue. Upon further consideration, and a full review of the record, I conclude that dismissal is the only appropriate remedy here.
First, this is not the sole instance of misconduct by claimant in this case, the first being Retamozzo's conduct during Dodd's deposition. I have reviewed the recordings of the proceedings on September 24, 2013, and find that claimant clearly acted improperly on that date. After months of extensive subpoena litigation, he appeared at the deposition with a videographer who did not bring his own equipment. After an extended colloquy on the fact that the video could only be shared on equal terms with both parties, claimant took the equipment himself, and held it for an extended period without prior notice to anyone. Claimant's present contention that he violated no court order ignores the repeated admonitions that he could have no greater access to the equipment or memory card than his adversary.
Further, this case does not reflect the first time Retamozzo was found to have engaged in discovery misconduct. As defendant notes, a prior action by claimant, Retamozzo v Friedland (Index No. 113920/09 [Sup Ct, NY County, June 18, 2012), was dismissed for his "contumacious conduct" in failing to respond to discovery demands (see Mot., Ex. F). And the Appellate Division noted, in that case, that Retamozzo was in the "habit of tape recording conversations without notice to his interlocutor," leading the Court to prohibit him from having a recording device in depositions (Retamozzo v Quinones, 95 AD3d 652, 653 [1st Dept 2012]).
In addition, claimant's conduct during his own deposition was obviously intended for no purpose other than to hinder the proceeding, and involved the giving of manifestly false testimony under oath. The Court of Appeals addressed the appropriate response to false testimony in CDR Créances S.A.S. v Cohen (23 NY3d 307 [2014]). In that case, the Court found that in addition to CPLR 3126, courts have
"inherent power to address actions which are meant to undermine the truth-seeking function of the judicial system and place in question the integrity of the courts and our system of justice. 'Courts of justice are universally acknowledged to be vested, by their very creation, with power to impose silence, respect, and decorum, in their presence, and submission to their lawful mandates, and, as a corollary to this proposition, to preserve themselves and their officers from the approach and insults of pollution' (Anderson v Dunn, 19 US 204, 227 [1821])" (id. at 318).
Retamozzo's actions, in turning his deposition into an absurd exercise of gamesmanship, presented just the sort of insult to the Court's role contemplated by Cohen.
Concededly, many of the questions at issue bore a relatively marginal relation to the case, or in some instances (such as defendant's inquiries about the ages of claimant's sisters), were immaterial. But that is not to say that none of the matters at issue were relevant. It is generally proper at a deposition for an adversary to pose general background questions, particularly where the witness is the claimant, and his credibility is at stake (see Matter of Mllerson v City of New York, 178 Misc 2d 803, 809 [Sup Ct, NY County 1998] ["Some inquiry into the backgrounds of the pro se plaintiffs may be relevant as to damages and credibility, and thus should be permitted"]). That is true in regard to claimant's father as well, as he was a witness in his criminal trial (see People v Retamozzo, 25 AD3d 73 [1st Dept 2005]). Retamozzo made no relevant objection to these inquiries; rather on question after question, he refused to make any serious effort to respond truthfully. Indeed, the deposition never progressed from background questions because he made it abundantly clear that he had no intention to participate in good faith.
In Cohen, the Court of Appeals suggested that in most cases an alternative remedy such as assessing fees or precluding testimony would be appropriate, and a Court ordering dismissal should state the reasons why such alternative remedies are insufficient (id. at 321-322). As set forth below, no other remedy would appropriately address claimant's misconduct in this case.
I initially ordered that Retamozzo pay defendant's costs for the deposition. Upon reflection, however, that is an inadequate remedy. Retamozzo's testimony is central - indeed it is crucial - to this case. In denying defendant's earlier motion to dismiss, I found that the evidence was sufficient to support his claim, solely on the basis of claimant's own trial testimony, and his father's (see Retamozzo v State of New York, UID No. 2012-049-037 [Ct Cl, Weinstein, J., June 22, 2012] [denying defendant's motion to dismiss because "I must credit [Retamozzo's] testimony (and that of his father)"]). Requiring payment of costs would still deny defendant the opportunity to probe the veracity of claimant's allegations pre-trial. While defendant could have called Retamozzo for another deposition, claimant has given no indication that he recognizes or acknowledges any wrongful act on his part, or would comport himself differently in the future. Further, a new deposition would only be meaningful if claimant were able to recall basic facts about himself - and thereby essentially disclaim the testimony he has given under oath.
As to barring Retamozzo's testimony at trial, that step would just reach the same result via a far more cumbersome process. This Court is required under Court of Claims Act § 8-b(4) to dismiss an action for unjust conviction and imprisonment, on its own motion, if it "finds after reading the claim that claimant is not likely to succeed at trial." In the event claimant was barred from presenting his own testimony, it would appear under this standard that dismissal would be required in any case. As noted by the Second Department, claimant's criminal trial turned almost entirely on the credibility of his account, and that of the detective involved in his arrest (see People v Retamozzo 25 AD3d at 76). He proffered no other evidence in response to the State's dismissal motion.
For these reasons, and in light of the wilful and contumacious nature of claimant's testimony and the harm it fostered to the integrity of the truth-seeking function of the Court, as well as claimant's prior misconduct and the absence of any acceptable alternative, I find that dismissal is the only appropriate remedy.
Accordingly, claim no. 115186 is hereby dismissed.
January 9, 2015
Albany, New York
DAVID A. WEINSTEIN
Judge of the Court of Claims
Papers Considered:
1. Defendant's Notice of Motion, Affirmation in Support of Defendant's Motion to Dismiss with exhibits A though G annexed thereto; and
2. Claimant's Affidavit in Opposition to the Defaulting Defendant's Discovery Related Motion, with exhibits 1 though 8 annexed thereto.