CLARK v. RICHARDSON (2018)

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 A.D.3d 250, 837 N.Y.S.2d 653 [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] ).