To the extent that petitioner's contentions on appeal relate to the cotton swabs stored in evidence box number seven, we reject petitioner's contentions. In order to meet his burden on his motion, respondent was required to provide documentary evidence that "utterly refute[d] [petitioner's] factual allegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 ; see Matter of Nassau Community Coll. Fedn. of Teachers, Local 3150 v Nassau Community Coll., 127 AD3d 865, 866-867 [2d Dept 2015]).
Here, in support of his motion, respondent established that Executive Law § 838-a deals with sexual offense evidence kits, whereas the only cotton swabs in evidence box number seven had been used to collect a "grease-like substance [found] on the washer/dryer" in the home of the victims, and thus no sexual offense evidence existed in petitioner's criminal case.
Because respondent was "under no obligation to furnish [materials that he did] not possess" (Matter of Rivette v District Attorney of Rensselaer County, 272 AD2d 648, 649 [3d Dept 2000]; see generally Matter of Council of City of N.Y. v Bloomberg, 6 NY3d 380, 388 ), the evidence submitted by respondent "utterly refute[d] [petitioner's] factual allegations" with respect to the cotton swabs in evidence box number seven, thereby "conclusively establishing a defense as a matter of law" thereto (Goshen, 98 NY2d at 326; see generally Whitebox Concentrated Convertible Arbitrage Partners, L.P. v Superior Well Servs., Inc., 20 NY3d 59, 63 ).
The full text of the decision is posted on the Internet at: https://www.nycourts.gov/reporter/3dseries/2021/2021_04416.htm