author: Smith, J.

text:
    [947 NE2d 111, 922 NYS2d 220]
    Union Carbide Corporation, Appellant, v Affiliated FM Insurance Company et al., Defendants, and Continental Casualty Company et al., Respondents.
    Argued January 11, 2011;
    decided February 22, 2011

      POINTS OF COUNSEL

      Proskauer Rose LLP (Steven R. Gilford, of the Illinois bar, admitted pro hac vice, and John Sloat of counsel), Proskauer Rose LLP, New York City (Bruce E. Fader and Matthew J. Morris of counsel), and Kirkland & Ellis LLP, Chicago, Illinois (Michael P. Foradas of counsel), for appellant.
    I. The plain language of the excess policy provides for annual aggregate products (and other) limits. (A. Meyers & Sons Corp. v Zurich Am. Ins. Group, 74 NY2d 298; Travelers Cas. & Sur. Co. v Ace Am. Reins. Co., 392 F Supp 2d 659; Jones v Cunard Steam Ship Co., Ltd., 238 App Div 172; County of Columbia v Continental Ins. Co., 83 NY2d 618; William Floyd School Dist. v Maxner, 68 AD3d 982; Vigilant Ins. Co. v Bear Stearns Cos., Inc., 10 NY3d 170; Jefferson Ins. Co. of N.Y. v Travelers Indem. Co., 92 NY2d 363; Metropolitan Transp. Auth. v Zurich Am. Ins. Co., 68 AD3d 610; Juntunen v Sea-Con Servs., Inc., 879 F2d 154; Ford Motor Co. v Northbrook Ins. Co., 838 F2d 829.) II. The undisputed contextual evidence further supports the plain reading of the excess policy as providing annual aggregate limits limited to specific types of claims. (Welsbach Elec. Corp. v MasTec N. Am., Inc., 7 NY3d 624; Jefferson Ins. Co. of N.Y. v Travelers Indem. Co., 92 NY2d 363; Graphic Arts Mut. Ins. Co. v Bakers Mut. Ins. Co. of N.Y., 45 NY2d 551; Rickerson v Hartford Fire Ins. Co., 149 NY 307; Atwater & Co. v Panama R.R. Co., 246 NY 519; Kass v Kass, 91 NY2d 554; Employers Commercial Union Ins. Co. of N.Y. v Firemen's Fund Ins. Co., 45 NY2d 608; 407 E. 61st Garage v Savoy Fifth Ave. Corp., 23 NY2d 275; Eighth Ave. Coach Corp. v City of New York, 286 NY 84; Alvarez v Prospect Hosp., 68 NY2d 320.) III. The two-month extension of the excess policy did not change the definition of aggregate to apply to a 14-month period. (County of Columbia v Continental Ins. Co., 83 NY2d 618; William Floyd School Dist. v Maxner, 68 AD3d 982; Stonewall Ins. Co. v Asbestos Claims Mgt. Corp., 73 F3d 1178; Cadet Mfg. Co. v American Ins. Co., 391 F Supp 2d 884; Kleynshvag v GAN Ins. Co., 21 AD3d 999; Consolidated Edison Co. of N.Y. v Allstate Ins. Co., 98 NY2d 208; Alvarez v Prospect Hosp., 68 NY2d 320.)

      Carroll, Burdick & McDonough LLP (G. David Godwin, of the California bar, admitted pro hac vice, and Laurie J. Hepler of counsel) and Ford Marrin Esposito Witmeyer & Gleser, L.L.P., New York City (Charles A. Booth and Patrick J. Bernal of counsel), for Continental Casualty Company and Litchfield Cavo LLP (Edward Fogarty, Jr., of counsel) for Argonaut Insurance Company, respondents.
    I. This excess policy established its own single limit of liability “in the aggregate” and did not follow form to the underlying insurer’s annualized limit. (Teichman v Community Hosp. of W. Suffolk, 87 NY2d 514; Hiraldo v Allstate Ins. Co., 8 AD3d 230, 5 NY3d 508; Alharb v Liberty Mut. Ins. Co., 199 AD2d 227; Matter of Encompass Indem. Co. v USAA Cas. Ins. Co., 61 AD3d 974; Suffolk County Water Auth. v Village of Greenport, 21 AD3d 947; Vigilant Ins. Co. v Bear

      Stearns Cos., Inc., 10 NY3d 170; Jefferson Ins. Co. of N.Y. v Travelers Indem. Co., 92 NY2d 363; Metropolitan Transp. Auth. v Zurich Am. Ins. Co., 68 AD3d 610; Springer v Allstate Life Ins. Co. of N.Y., 94 NY2d 645; National State Bank v American Home Assur. Co., 492 F Supp 393.) II. There is no extra aggregate limit for the two-month extension period. (Stonewall Ins. Co. v Asbestos Claims Mgt. Corp., 73 F3d 1178; OneBeacon Ins. Co. v Georgia-Pacific Corp., 474 F3d 6; UNR Indus., Inc. v Continential Ins. Co., 682 F Supp 1434; Cadet Mfg. Co. v American Ins. Co., 391 F Supp 2d 884; Board of Trustees of Univ. of Ill. v Insurance Corp. of Ireland, Ltd., 969 F2d 329; Consolidated Edison Co. of N.Y. v Allstate Ins. Co., 98 NY2d 208; Alvarez v Prospect Hosp., 68 NY2d 320; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851.)
   OPINION OF THE COURT

Smith, J.

This appeal calls on us to interpret an excess liability insurance policy covering asbestos claims made against Union Carbide Corporation (UCC). UCC and its insurers dispute: (1) whether the policy’s aggregate limit was renewed annually or continued over the three-year life of the policy; and (2) whether a two-month extension of coverage by one of the insurers triggered a new limit. We decide the first issue in UCC’s favor: The limit was renewed each year. On the second issue, however, we agree with the Appellate Division that UCC’s motion for summary judgment should be denied.

I

In the mid 1970s, UCC sought—wisely, as it turned out—to obtain as much liability insurance coverage as it reasonably could. To accomplish this, it acquired coverage in layers.

In the bottom layer, a policy issued by Appalachian Insurance Company covered UCC for the first $5 million of loss, except for a “retained” amount for which UCC was self-insured. The Appalachian policy had a three-year duration, but it is clear, and not disputed, that the limit of that policy, as it applied to the claims in issue here, was renewed annually, or “annualized.” The limit is identified in the policy declarations as an “annual aggregate,” and one of the conditions of the policy provides: “[T]he limit of liability ... set forth as ‘aggregate’ shall be the total limit of the company’s liability under this policy for ultimate net toss . . . during each consecutive twelve months of the policy period.”

Losses above the $5 million were covered by successive layers of excess insurance. Our concern here is with the so-called fifth excess layer, which covered losses exceeding $70 million, up to $100 million. This $30 million of coverage was divided equally—$5 million each—among six insurers, two of which, Continental Casualty Company and Argonaut Insurance Company, are involved in this appeal.

The policy issued by the fifth-layer excess insurers was a brief “subscription form policy” prepared by UCC’s insurance broker. It incorporated by reference the terms of the Appalachian policy, in what is known as a “follow-the-form” clause:

“subject to the declarations set forth below, the Companies signatory hereon agree with the Insured named below that the Insurance afforded by this agreement shall follow all the terms, insuring agreements, definitions, conditions and exclusions of [the] underlying . . . Policy . . . issued by Appalachian Insurance Company.”

The “declarations set forth below” included the following: “LIMIT OF LIABILITY: $30,000,000. each occurrence and in the aggregate excess of $70,000,000. Umbrella Liability.” The fifth-layer excess policy had a policy period beginning December 1, 1973 and ending December 1, 1976.

UCC was a seller of asbestos, with the result that enormous claims were made against it for the years in question. It says that it has paid over $1.5 billion in defense costs, settlements and judgments. It asserts that Continental and Argonaut are each liable under the subscription form policy for $5 million for each year in which they provided coverage. Continental and Argonaut say that their liability for the entire period is capped at $5 million per company.

As to Continental, UCC claims an additional $5 million because the policy was extended beyond the three years. A supplement to the subscription form policy issued by Continental in December 1976 says: “In consideration of an additional premium of $1,530, it is agreed that the policy is hereby extended to read: 2/1/77 Exp. Date.” According to UCC, a new $5 million policy limit became available to it by virtue of this two-month extension.

On UCC’s motions for partial summary judgment, Supreme Court ruled in its favor on both issues. The Appellate Division, with one Justice dissenting, disagreed and denied UCC’s motions as to both issues (Union Carbide Corp. v Affiliated FM Ins. Co., 68 AD3d 534 [2009]). The Appellate Division granted leave to appeal to us on a certified question. We now modify its order, and hold that UCC should be granted summary judgment on the annualization issue, but not on the extension issue.

II

On the annualization issue, Continental and Argonaut argue in substance that the words of the declarations in the subscription form policy, “$30,000,000 ... in the aggregate,” can mean only that $30 million is the maximum that may be paid under the policy, and thus that the maximum share for each of the six signatories, including Continental and Argonaut, is $5 million. They stress that the follow-the-form clause, which incorporates the Appalachian policy by reference, is expressly made “subject to the declarations set forth below” and that those declarations, unlike the Appalachian policy, speak of an “aggregate,” not an “annual aggregate,” limit of liability. UCC argues that, under the follow-the-form clause, the conditions in the Appalachian policy are part of the subscription form policy, and that one of those conditions is that the “aggregate” limit shall be annualized. Each side cites precedent interpreting arguably similar, though not identical, language in other policies (compare Maryland Cas. Co. v W. R. Grace & Co., 1996 WL 169326, 1996 US Dist LEXIS 4500 [SD NY 1996] [annualization rejected], with Travelers Cas. & Sur. Co. v ACE Am. Reins. Co., 392 F Supp 2d 659 [SD NY 2005], affd 201 Fed Appx 40 [2d Cir 2006] [annualization accepted] and Commercial Union Ins. Co. v Swiss Reins. Am. Corp., 413 F3d 121 [1st Cir 2005] [same]).

UCC has the better of the argument. While the reading Continental and Argonaut give to the word “aggregate” might be plausible in many contexts, here the follow-the-form clause should prevail. Such clauses serve the important purpose of allowing an insured, like UCC, that deals with many insurers for the same risk to obtain uniform coverage, and to know, without a minute policy-by-policy analysis, the nature and extent of that coverage. It is implausible that an insured with as large and complicated an insurance program as UCC would have bargained for policies that differed, as between primary and excess layers, in the time over which policy limits were spread. Under Continental’s and Argonaut’s reading, UCC could (and in fact did) reach the second and third years of its excess policies with the full limit of its primary coverage in place, but with its fifth-layer excess coverage exhausted. It is unlikely that the parties intended this result.

This conclusion is reinforced by the part of the declarations in the subscription form policy that Continental and Argonaut rely on. The fifth-layer subscription form policy says that the limit of liability shall be “$30,000,000. each occurrence and in the aggregate” (emphasis added). If $30 million was the most that could be paid on the entire policy why, UCC asks, did the parties bother to specify a per occurrence limit in an equal amount? Continental and Argonaut offer no answer.

Though extrinsic evidence of the policy’s meaning has been proffered, our analysis thus far has considered only the text of the subscription form policy, and the underlying policy that it incorporates by reference. Both sides here endorse this approach, and all of the judges who considered the case below adopted it also. This is an approach strongly favored in our precedents, which hold that, where the meaning of a writing is clear from its text, extrinsic evidence will not be considered (e.g. Vintage, LLC v Laws Constr. Corp., 13 NY3d 847, 849 [2009]; Innophos, Inc. v Rhodia, S.A., 10 NY3d 25, 29 [2008]; Greenfield v Philles Records, 98 NY2d 562, 569 [2002]). Nevertheless, there inevitably will be cases in which the parties have not expressed themselves clearly in writing, and in which resort to extrinsic evidence will be necessary.

We need not decide whether this is such a case, because, even assuming that there is an ambiguity, the extrinsic evidence—all of it submitted by UCC—overwhelmingly supports UCC’s position. UCC has submitted expert testimony that annualization of limits was the universal custom of the industry. It has also submitted contemporaneous evidence showing the existence of that custom, and other evidence showing that at least some participants in the transactions at issue assumed that the limits under the fifth-layer excess policy would be annualized. Continental’s and Argonaut’s only response is to insist that the language of the policy unambiguously forbids annualization, an assertion with which we do not agree.

Ill

The question of whether the two-month extension of the Continental policy created a new “year” for policy limit purposes is a vexing one. Under Continental’s view (assuming that the annualization issue is resolved as we have resolved it), UCC had a $5 million policy limit—the limit normally applicable to a year—for the period December 1, 1975 to February 1, 1977; in other words, UCC essentially had to squeeze 14 months of losses into a 12-month limit. On UCC’s view, it had the luxury of $10 million of coverage—24 months of limits—to cover 14 months of losses. Neither result seems wholly fair, but it is not clear that there is a wholly fair result that is possible under the policy’s language.

A number of courts have considered similar questions and, perhaps unsurprisingly, reached divergent results (compare Stonewall Ins. Co. v Asbestos Claims Mgt. Corp., 73 F3d 1178, 1216-1217 [2d Cir 1995], United States Min. Prods. Co. v American Ins. Co., 348 NJ Super 526, 792 A2d 500 [App Div 2002], Cadet Mfg. Co. v American Ins. Co., 391 F Supp 2d 884, 890 [WD Wash 2005], and Independent Petrochemical Corp. v Aetna Cas. & Sur. Co., 1988 WL 877629, *52-54, 1988 US Dist LEXIS 15839, *155-159 [D DC 1988] [all ruling in favor of the insured], with UNR Indus., Inc. v Continental Ins. Co., 1988 WL 121574, *2-3, 1988 US Dist LEXIS 12561, *4-9 [ND Ill 1988], General Refractories Co. v Insurance Co. of N. Am., 906 A2d 610, 2006 PA Super 224 [2006], and Uniroyal Inc. v American Re-Ins. Co., 2005 WL 4934215, *19-22, 2005 NJ Super Unpub LEXIS 794, *52-61 [App Div 2005] [all ruling in favor of the insurer]). The parties discuss at some length which of these cases are and are not distinguishable. Since none of them is binding on us, we do not pursue the question.

Facts peculiar to this case may shed light on the problem, but do not solve it. The record suggests that, in late 1976, Continental wanted to withdraw entirely from insuring UCC’s liabilities, and was persuaded to remain on the risk for two more months as an accommodation. It may be argued that the parties would not reasonably have expected that accommodation to give UCC a fresh set of policy limits. On the other hand, extrinsic evidence submitted by UCC shows that a representative of UCC’s insurance broker tried to negotiate an “extension period to be treated as a separate annual period for aggregate reckoning purposes,” and that he was optimistic about succeeding. But the record does not clearly show whether he did succeed; the document that Continental actually issued says only “that the policy period is hereby extended”—it does not mention policy limits.

We conclude, as the Appellate Division majority did, that UCC has not met its burden on summary judgment of establishing coverage for an additional year’s policy limits (see Consolidated Edison Co. of N.Y. v Allstate Ins. Co., 98 NY2d 208, 218 [2002]). We cannot say, based on what is before us, that UCC’s proposed resolution of the extension issue is the only possible one. The issue thus remains open to be determined on another motion, or at trial.

Accordingly, the order of the Appellate Division should be modified to grant UCC’s motion for summary judgment on the annualization issue, and otherwise affirmed, without costs, and the certified question answered in the negative.

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Pigott and Jones concur.

Order modified, etc.


source: Caselaw Access Project

author: Ciparick, J. Smith, J. (concurring).

license: Public Domain

text:
    [947 NE2d 639, 922 NYS2d 865]
    Douglas Warney, Appellant, v State of New York, Respondent.
    (Claim No. 114826.)
    Argued February 8, 2011;
    decided March 31, 2011

      POINTS OF COUNSEL

      Neufeld Scheck & Brustin, LLP, New York City (Peter J. Neufeld, Deborah L. Cornwall, Anna Benvenutti Hoffmann and
      Sarah A. Crowley of counsel), and Easton Thompson Kasperek, LLP, Rochester (Donald Thompson of counsel), for appellant.
    I. Nothing Mr. Warney did bars him from compensation under Court of Claims Act § 8-b. (Ivey v State of New York, 80 NY2d 474; Rivers v State of New York, 152 Misc 2d 332; Williams v State of New York, 87 NY2d 857; Stevenson v State of New York, 137 Misc 2d 313; Mike v State of New York, 11 Misc 3d 384; Britt v State of New York, 260 AD2d 6; Smith v State of New York, 24 Misc 3d 1234[A], 2009 NY Slip Op 51744[U]; Dillon v Dean, 158 AD2d 579; Benaquista v Municipal Hous. Auth. of City of Schenectady, 212 AD2d 860; Bisceglia v International Bus. Machs., 287 AD2d 674.) II. The claims court may not consider evidence outside a Court of Claims Act § 8-b claim or make credibility findings on a motion to dismiss pursuant to CPLR 3211. (Vigliotti v State of New York, 24 AD3d 1217; Webb v State of New York, 18 AD3d 648; Barnes v State of New York, 153 AD2d 968; Leon v Martinez, 84 NY2d 83; Solomon v State of New York, 146 AD2d 439; Dozier v State of New York, 134 AD2d 759; Klemm v State of New York, 170 AD2d 438; Grimaldi v State of New York, 133 AD2d 97; Fudger v State of New York, 131 AD2d 136; Moses v State of New York, 137 Misc 2d 1081.)

      Eric T. Schneiderman, Attorney General, New York City (Alison J. Nathan, Frank K. Walsh, Barbara D. Underwood, Andrew D. Bing and Andrea Oser of counsel), for respondent.
    The claim was properly dismissed because claimant’s own conduct caused or brought about his conviction. (People v Wiggins, 16 Misc 3d 1136[A], 2007 NY Slip Op 51715[U]; People v Crews, 74 AD3d 983; People v Green, 250 AD2d 143; People v Lea, 144 AD2d 863; Lepkowski v State of New York, 1 NY3d 201; Long v State of New York, 7 NY3d 269; Fudger v State of New York, 131 AD2d 136, 70 NY2d 616; Berger v City of New York, 260 App Div 402, 285 NY 723; Reed v State of New York, 78 NY2d 1; David W. v State of New York, 27 AD3d 111, 7 NY3d 709.)

      Emery Celli Brinckerhoff & Abady LLP, New York City (Andrew G. Celli, Jr., and Debra Greenberger of counsel), and Nathalie Gilfoyle for American Psychological Association, amicus curiae.
    I. Confessions that are voluntary as a matter of law can be unreliable in fact. II. Certain factors predictably increase the risk of false confessions. (Atkins v Virginia, 536 US 304.)

      Patterson Belknap Webb & Tyler LLP, New York City (Joshua A. Goldberg, Elizabeth H. Shofner and Anna Skiba-Crafts of counsel), Keith A. Findley, University of Wisconsin Law School,
      Madison, Wisconsin, Steven A. Drizin, Northwestern University School of Law, Chicago, Illinois, and Daniel S. Medwed, S.J. Quinney College of Law at the University of Utah, Salt Lake City, Utah, for The Innocence Network, amicus curiae.
    The mere fact that a confession was deemed “voluntary” for purposes of admitting it at a criminal trial does not mean that it was “uncoerced” so as to bar Court of Claims Act § 8-b relief. (People v Green, 73 AD3d 805; People v Camacho, 70 AD3d 1393; Dickerson v United States, 530 US 428.)
   OPINION OF THE COURT

Ciparick, J.

Claimant Douglas Warney spent over nine years incarcerated for a murder he did not commit. The primary evidence against him was a confession that contained non-public details about the crime. Warney now seeks damages under Court of Claims Act § 8-b, the Unjust Conviction and Imprisonment Act. We conclude that Warney’s confession and other statements and actions the State attributes to him do not, on the facts as alleged here, warrant dismissal of his claim on the ground that he caused or brought about his conviction.

The facts as stated in the claim and record below are as follows. On January 3, 1996, Rochester Police Department (RPD) officers found William Reason dead in his home, stabbed 19 times in the neck and chest. The following day, Warney called the RPD to provide information about the murder, and was interviewed in his home by an officer. According to the officer’s trial testimony, Warney told her that he had been shoveling snow outside “William’s” house when he saw his cousin go inside, and that the cousin later admitted to Warney that he had killed Reason.

Warney alleges that he has an IQ of 68, was in special education until he dropped out of school in eighth grade, and was suffering at the time of the Reason investigation from AIDS-related dementia. Additionally, the RPD was aware of his mental condition when it began questioning him about the Reason murder, as officers had transported Warney to a psychiatric facility two weeks earlier for pulling fire alarms and reporting false incidents to the police.

On January 6, 1996, two RPD officers brought Warney to the police station for questioning. The claim alleges that they used “escalating coercive tactics to force . . . Warney to make statements or admissions concerning the murder,” and one of them verbally abused and threatened him. It further alleges that the officers denied Warney’s request for an attorney.

Warney gave a series of increasingly inculpatory statements, initially blaming his cousin, but eventually confessing to murdering Beason on his own. He signed a detailed written confession stating that, acting alone, he had stabbed Beason repeatedly. The confession contained numerous details that allegedly corroborate crime scene evidence that the RPD had intentionally held back from the public. The claim alleges that the officers fed these details to Warney, creating “a false sense of the confession’s reliability,” and coerced him into adopting the detailed confession as his own.

At central booking, an officer not involved in the investigation asked Warney how he was doing. According to the officer’s testimony, he responded, “[n]ot good. I’ve got a body,” slang for having killed someone. In contrast, Warney testified that he said, “I’m being charged with a body.”

On February 13, 1996, a grand jury indicted Warney on two counts of second degree murder. Before trial, Supreme Court denied Warney’s motion to suppress his statements to police, finding that he “initiated most contacts with the police and then freely volunteered information to them,” that he never requested an attorney, and that “no threats or promises were ever made to [him] and no fraud or tricks were used to solicit statements.” At trial, Warney’s signed confession was the primary evidence against him, although he testified that it was coerced and manufactured by the police. The prosecutor emphasized that the confession contained details that, in his words during closing, “only the killer would have known about.” Warney was convicted of both second degree murder counts on February 12, 1997. Supreme Court sentenced him on February 27, 1997 to imprisonment for 25 years to life on each count, to run concurrently. The Appellate Division affirmed (People v Warney, 299 AD2d 956 [4th Dept 2002]) and leave to this Court was denied (99 NY2d 633 [2003]).

Warney consistently maintained his innocence and sought to conduct DNA testing on biological crime scene evidence. Although his application to access this evidence was denied, the People submitted the material for testing, which resulted in a DNA profile that did not match Warney. In March 2006, nine years after Warney’s conviction, the Combined DNA Index System (CODIS) database yielded a match, a man named Eldred Johnson. The RPD discovered that fingerprints from the crime scene matched Johnson’s and, on May 11, 2006, Johnson confessed that, acting alone, he had murdered Reason. As a result, on May 16, 2006, Supreme Court vacated Warney’s conviction and set aside his sentence pursuant to CPL 440.10 (1) (g) on the grounds of newly discovered evidence.

Warney now seeks damages under Court of Claims Act § 8-b for the years he spent wrongly incarcerated. His claim alleges that he “did not cause or contribute to his own wrongful arrest, conviction, or incarceration,” but rather his conviction “was the direct result of the intentional and malicious actions of members of the [RPD] who fabricated and coerced a false confession from ... a man whom they knew had a history of serious mental health problems.” The State moved to dismiss the claim for failing to state facts in sufficient detail to demonstrate that Warney is likely to succeed at trial in proving that he did not bring about his own conviction.

Court of Claims granted the State’s motion and dismissed the claim. It was “not convinced” that only the perpetrator and police could have known many of the details contained in the confession, and noted that Warney “does not indicate how he was coerced by police to give a false confession.” Moreover, the court held that Warney, “by his own actions, which included calling the police to tell them he had information about the murder, trying to frame an innocent man for the crime, and . . . volunteering that he had ‘a body’ . . . did cause or bring about his own conviction.” Warney appealed.

The Appellate Division affirmed, reasoning that a criminal defendant who gave an uncoerced false confession that was presented to the jury at trial could not subsequently bring an action under section 8-b, and that Warney failed to adequately allege that his confession was coerced (see Warney v State of New York, 70 AD3d 1475, 1476 [4th Dept 2010]). The Appellate Division also found that Warney brought about his own conviction by making other incriminating statements, and by approaching the police falsely claiming to have information about the murder (see id.). We granted Warney leave to appeal (14 NY3d 883 [2010]) and now reverse.

Court of Claims Act § 8-b, the Unjust Conviction and Imprisonment Act, provides a mechanism for “innocent persons who can demonstrate by clear and convincing evidence that they were unjustly convicted and imprisoned ... to recover damages against the state” (Court of Claims Act § 8-b [1]; see also Ivey v State of New York, 80 NY2d 474, 479 [1992]). It offers claimants who meet its strict pleading and evidentiary burdens “an available avenue of redress over and above the existing tort remedies” (Court of Claims Act § 8-b [1]).

To present a claim under the statute, a claimant must “establish by documentary evidence” that (a) the claimant was convicted of a crime, sentenced to a term of imprisonment, and served at least part of the sentence; (b) the claimant was pardoned on the ground of innocence or, alternatively, the conviction was reversed or vacated and the accusatory instrument was dismissed; and (c) the claim is not time-barred (Court of Claims Act § 8-b [3]). Here, the State does not dispute that Warney met this initial burden.

The statute further requires that the claim “state facts in sufficient detail to permit the court to find that claimant is likely to succeed” in meeting his or her burden at trial of proving by clear and convincing evidence that, as relevant here, (a) “he did not commit any of the acts charged in the accusatory instrument” and (b) “he did not by his own conduct cause or bring about his conviction” (Court of Claims Act § 8-b [4]). “If the court finds after reading the claim that claimant is not likely to succeed at trial, it shall dismiss the claim” (Court of Claims Act § 8-b [4]).

The parties here debate whether, in addition to being sufficiently detailed, the allegations in the pleading must have evidentiary support. We now clarify that -no such support is necessary, except where expressly indicated by the statute. Although a claimant must submit documentary evidence supporting certain facts pursuant to Court of Claims Act § 8-b (3), the pleading standard articulated in Court of Claims Act § 8-b (4) lacks any analogous requirement. Because the State, in waiving its sovereign immunity from suit, has consented to have its liability “determined in accordance with the same rules of law as applied to actions in the supreme court,” except where superseded by the Court of Claims Act or Uniform Rules for the Court of Claims (Court of Claims Act § 8; see also 22 NYCRR 206.1 [c] [matters not covered by the Court of Claims Act or Uniform Rules for the Court of Claims are governed by the CPLR]), we presume that the familiar standard governing motions to dismiss in Supreme Court is appropriate here (see CPLR 3211). Therefore, Court of Claims, like other trial courts, should “accept the facts as alleged in the [claim] as true” (Leon v Martinez, 84 NY2d 83, 87 [1994]).

Of course, section 8-b still imposes a higher pleading standard than the CPLR. Court of Claims must consider whether the allegations are sufficiently detailed to demonstrate a likelihood of success at trial (see Court of Claims Act § 8-b [4]). “[T]he allegations in the claim must be of such character that, if believed, they would clearly and convincingly establish the elements of the claim, so as to set forth a cause of action” (Solomon v State of New York, 146 AD2d 439, 442 [1st Dept 1989]). In evaluating the likelihood of success at trial, Court of Claims should avoid making credibility and factual determinations (see Klemm v State of New York, 170 AD2d 438, 439 [2d Dept 1991] [“In the absence of serious flaws in a . . . statement of facts, the weighing of the evidence is more appropriately a function to be exercised at the actual trial” (quoting Dozier v State of New York, 134 AD2d 759, 761 [3d Dept 1987])]; Solomon, 146 AD2d at 445 [Court of Claims erred in “assess(ing) . . . the credibility of the evidence . . . (and) weighing . . . the evidence (which) is more appropriately a function to be exercised at the actual trial”]). In short, a claimant who meets the evidentiary burdens described in Court of Claims Act § 8-b (3) and makes detailed allegations with respect to the elements described in section 8-b (4) is entitled to an opportunity to prove the allegations at trial (Court of Claims Act § 8-b [5]). With these principles in mind, we turn to the claim at issue here.

Court of Claims’ dismissal was based in large part on factual determinations that were inappropriate at this stage of the litigation. First, although Warney alleges in detail that his confession was coerced, the court concluded that “the evidence presented” did not “indicate” that it was. The court was “not convinced” that, as Warney alleges, “only the police and the true perpetrator could have known many of the factual details” in the confession. These findings were premature; the proper inquiry was whether Warney’s allegations, if true, demonstrate a likelihood of success at trial, not whether they were supported by convincing evidence. As the State concedes, a coerced false confession does not bar recovery under section 8-b because it is not the claimant’s “own conduct” within the meaning of the statute. Assuming the truth of Warney’s allegations, as we must, the police used “coercive tactics” and threats to induce his confession. The allegations describe how no member of the public other than the perpetrator could have known all the details contained in the confession—whether negligently or through intentional manipulation, police misconduct led to the inclusion of these details in Warney’s statement. Thus, Warney has adequately pleaded that he was coerced into adopting the false confession.

Second, Court of Claims determined that Warney’s statement to an RPD officer, “I’ve got a body,” which was introduced against him at trial, was conduct contributing to his conviction. Warney has never admitted to making that statement, however, and his claim alleges that, as he maintained at trial, he actually said “I’m being charged with a body.” Accepting Warney’s allegations as true, we presume that he never made this inculpatory statement. Determining what Warney said is purely a credibility determination, pitting his account against the officer’s. The officer’s testimony is no more or less convincing, at this pleading stage, than Warney’s account of the conversation.

The State further argues that Warney’s initial interactions with the RPD ought to bar him from recovery. We disagree. A claimant’s statutory obligation to prove that “he did not . . . cause or bring about his own conviction” (Court of Claims Act § 8-b [4] [b]) could conceivably be read as barring recovery when any action by the claimant caused or brought about the underlying conviction, no matter how indirectly. This reading, however, would bar recovery by every innocent claimant who inadvertently and unforeseeably played some small role in the chain of events leading to his or her conviction. Instead, as we have previously suggested, a claimant’s conduct bars recovery under the statute only if it was the “proximate cause of conviction” (Ivey, 80 NY2d at 482). Warney’s early conversations with the RPD, as the events are described in his claim, did not cause or bring about his conviction within the meaning of the statute. While Warney acknowledges that he initiated contact with the RPD, triggering the questioning that ultimately led to his false confession and conviction, he alleges that he was “severely mentally impaired,” and that the RPD knew of his mental illness. Moreover, it was the RPD’s alleged mishandling of the ensuing investigation that ultimately resulted in Warney’s conviction.

In sum, the courts below inappropriately made credibility and factual findings, dismissing Warney’s claim without giving him the opportunity to prove his detailed allegations that he did not cause or bring about his conviction. Because these allegations, taken as true, demonstrate a likelihood of success at trial, Warney is entitled to proceed with his claim, secure discovery, and obtain a disposition on the merits.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the defendant’s motion to dismiss the claim denied.

Smith, J. (concurring).

I agree with the result the majority reaches, and have no major quarrel with the general principles it states. I write separately to emphasize that the application of those principles in this case is easy, because this claimant appears, on the present record, to have an exceptionally strong case. Our decision today should not be read as implying that any claimant can, by skillful pleading, get a significantly weaker case past a motion to dismiss.

I

It may not be obvious from the majority opinion how compelling a case Warney’s statement of claim presents. His confession, now known to be false, included a number of facts—many of them recited in the majority’s footnote 1 (at 432)—known only to the police and to the real murderer. It seems highly likely that the inclusion of these facts is the reason Warney was convicted. How, the prosecutor at Warney’s trial asked rhetorically, could Warney have known these facts if he were innocent?

“How would he have known about a tissue wrapped in the form of a bandage if he hadn’t had been in Mr. Reason’s bathroom? Only the killer would have known about that and about the knife and about the towel with the blood on it and about the video tapes. . . .
“[H]e knew how Mr. Reason was dressed, and he described a nightshirt . . . The Defendant says he’s cooking dinner, and he’s particular about it, cooking chicken . . . Now, who could possibly know these things if you hadn’t been inside that house, inside the kitchen? . . .
“The Defendant described the knife as being twelve inches, with ridges. I think [forensic testimony] said it was thirteen inches with the serrated blade.”

Now that his innocence has been established, Warney echoes the prosecutor’s question: How indeed could he have known all these facts? It is hard to imagine an answer other than that he learned them from the police. In short, the details set forth in Warney’s 41-page statement of his claim, with 58 pages of annexed exhibits, point strongly to the conclusion that the police took advantage of Warney’s mental frailties to manipulate him into giving a confession that contained seemingly powerful evidence corroborating its truthfulness—when in fact, the police knew, the corroboration was worthless.

The majority correctly holds that this sort of police conduct, if proved at trial, would be sufficient to show that Warney “did not by his own conduct cause or bring about his conviction” (Court of Claims Act § 8-b [4] [b]). In general, a claimant who gives an uncoerced confession to a crime he did not commit should be found to have caused his own conviction (see Report of the Law Revision Commission to the Governor on Redress for Innocent Persons Unjustly Convicted and Subsequently Imprisoned [hereafter Commission Report], reprinted in 1984 McKinney’s Session Laws of NY, at 2899, 2932 [listing “falsely giving an uncoerced confession of guilt” as among the acts of misconduct that justify rejecting a claim]). Rut a confession cannot fairly be called “uncoerced” that results from the sort of calculated manipulation that appears to be present here—even if the police did not actually beat or torture the confessor, or threaten to do so. Thus, while Warney’s claim does include the general allegation that the police threatened him “both physically and otherwise,” I view this allegation as unnecessary— and, if it stood alone, obviously insufficient—to prevent dismissal of Warney’s claim. The majority opinion, as I interpret it, does not disagree.

Of course it would be wrong to assume that the State cannot refute Warney’s assertions. Claims that appear strong at the pleading stage do not always win. But I have no hesitation in concluding that Warney’s claim states facts “in sufficient detail to permit the court to find that claimant is likely to succeed at trial” (Court of Claims Act § 8-b [4]). The contrary decisions of the courts below seem to me not just “premature,” as the majority says (majority op at 436), but simply wrong.

II

I have emphasized the strength of Warney’s claim because I am concerned that some of the majority’s generalizations, made in the context of this very strong claim, will be misunderstood as requiring courts to uphold much weaker ones. I agree that, as a general matter, a claimant need not actually present his evidence as part of his claim; detailed allegations are enough. And I also agree that CPLR 3211 applies in actions under Court of Claims Act § 8-b, except to the extent that section 8-b imposes a more stringent pleading standard; thus, where there is a bona fide factual dispute, the claimant’s allegations should be taken as true. That does not mean, however, that allegations implausible or unconvincing on their face are sufficient to prevent dismissal of a claim for unjust conviction and imprisonment. So to hold would be to read out of the statute provisions that the Legislature wrote in, in an attempt to balance two important, and competing, goals: to compensate people who have been unjustly convicted, but also to protect the State against the administrative burden, and the cost of nuisance settlements, that could result from having to litigate a large number of false claims.

In pursuit of the latter goal, the Legislature strengthened the tests normally applied to gauge the sufficiency of pleadings, requiring not only that a claim be stated in “detail”—itself a significant departure from the normal rule—but “in sufficient detail to permit the court to find that claimant is likely to succeed at trial” (Court of Claims Act § 8-b [4]). Lest anyone miss the point, the Legislature added this sentence: “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” (id.). The Report of the Law Revision Commission accompanying the proposed legislation that became Court of Claims Act § 8-b makes quite clear that this provision should have real teeth. The legislation is based, the Commission said, on:

“a careful balancing between the goal of compensating one who has been unjustly convicted and imprisoned, and society’s dual interest of ensuring that only the innocent recover and of preventing the filing of frivolous claims. With respect to the latter, the Commission is most sensitive to the needs of the criminal justice system in that is does not want to overburden the staffs of the Attorney General and the District Attorneys with the defense of frivolous claims.” (Commission Report, 1984 McKinney’s Session Laws of NY, at 2926.)

The Commission added: “Consequently . . . most cases will not survive a motion to dismiss. The few exceptions will be the ones appropriate for a full hearing on the claim of innocence” (id. at 2930). No one should conclude from today’s decision that we have opened a loophole that will defeat this legislative goal.

Chief Judge Lippman and Judges Pigott and Jones concur with Judge Ciparick; Judge Smith concurs in result in a separate opinion in which Judges Graffeo and Read concur.

Order reversed, etc.

      . These corroborating details include: (1) that Beason was cooking chicken and mashed potatoes at the time of his murder; (2) that Beason was wearing a red-striped nightshirt; (3) that Beason was stabbed “about 15 or more” times with a 12-inch serrated knife; (4) that Beason’s throat was slit; (5) that Season's body was left on his bed, face up and eyes open; (6) that the perpetrator was wounded; (7) that the perpetrator cleaned his wound with “a paper towel,” which he discarded in the toilet; (8) that the perpetrator put intensive care lotion on his wound; and (9) that the back door and basement door were locked. Additionally, evidence was introduced at trial that Warney orally “confessed” that, prior to the murder, he and Beason had been watching a pornographic tape featuring two men.

        . Johnson pleaded guilty to second degree murder in March 2007.

      . Warney argues that the word “conduct” in the statute should be read as “misconduct,” as this reading is in line with clear legislative intent (see 1984 Report of the Law Revision Commission to the Governor on Redress for Innocent Persons Unjustly Convicted and Subsequently Imprisoned, reprinted in 1984 McKinney’s Session Laws of NY, at 2899, 2932 [claimant should “have to establish that he did not cause or bring about his prosecution by reason of his own misconduct”]). Because he alleges that no conduct of his brought about his conviction, however, we find it unnecessary to consider whether such conduct must rise to the level of misconduct.

      . The State contends that since Supreme Court ruled at a suppression hearing prior to the criminal trial that the confession was voluntarily given, it cannot be found in this action to have been coerced. We reject that contention and conclude that although the statement was admissible at the criminal trial, the judge there lacked many of the facts now stated in Warney’s claim. Most importantly, the question of coercion must now be viewed in light of Warney’s innocence.