¶1(concurring). I concur in the result. However, since I cannot accept the majority’s recital of the facts, nor the conclusions drawn from them, I must write separately. None but a brief summary of the facts is needed.
¶2Britt was charged with first-degree rape based on a sexual encounter which he described as consensual. He was incarcerated from the time of his arrest. He pleaded guilty to attempted first-degree rape with an agreed sentence of 4 to 8 years. His motion to withdraw his plea was denied.
¶3On his initial appeal, Britt claimed that his plea was involuntary due to coercion by counsel and by the Trial Judge. The latter had warned Britt that unless he accepted the plea offer and spared the complainant the trauma of testifying, the Judge would impose close to the maximum sentence. This Court held the appeal in abeyance and remanded for an evidentiary hear*21ing to clarify, inter alia, “the facts concerning the ‘pressure’ allegedly imposed upon the defendant” (People v Britt, 200 AD2d 401, 403).
¶4The same Judge who took the plea allocution presided over the hearing on remand, having denied Britt’s recusal motion. On September 30, 1994, the court granted Britt’s motion to withdraw his plea and vacated the conviction, on the stated grounds of defense counsel’s misconduct. No mention was made of Britt’s complaints about the Judge’s own behavior, nor were findings made as to several other issues which this Court directed to be included in the hearing. Since the complainant was unwilling to testify, the charges were dismissed.
¶5Britt then brought this action seeking damages from the State for his wrongful incarceration from March 10, 1992 to December 27, 1994. The State moved for summary judgment, arguing that Britt’s conviction was not vacated based on any of the grounds specified in Court of Claims Act § 8-b (3) as prerequisites for relief. Misconduct by defense counsel is not included in the enumerated grounds, but misconduct by the court is included (see, Court of Claims Act § 8-b [3] [b] [ii] [A]).
¶6The State also contended that Britt had not satisfied section 8-b (4). This section requires a claimant to show a likelihood of success at trial in proving that he was innocent (Court of Claims Act § 8-b [4] [a]) and that he did not bring about his own conviction (Court of Claims Act § 8-b [4] [b]). The motion to dismiss was denied.
¶7The action should have been dismissed because Britt could not show the required likelihood of success. It is unlikely that he would be able to prove his innocence by “clear and convincing evidence”, as required by section 8-b (5) (Forest v State of New York, 150 AD2d 214, Iv denied 74: NY2d 610). Unlike a party opposing an ordinary motion to dismiss, who need only show a prima facie case (CPLR 3211), or one opposing a motion for summary judgment, which requires the movant to show the absence of a material issue of fact (CPLR 3212), a claimant under the Court of Claims Act faces a heavier burden, consistent with the legislative intent that recovery should be limited to those rare cases where an innocent person is unjustly convicted (see, Reed v State of New York, 18 NY2d 1, 11-12). While Britt may well have prevailed absent the strictures of Court of Claims Act § 8-b (4), he cannot prevail here.
¶8Here, the claimant’s case turns entirely on credibility. Since he concedes that intercourse occurred, the only issue is whether the complainant consented. However, if the action went to *22trial, the Court of Claims would be unable to test his credibility against that of the alleged victim, who is unavailable to testify. Britt’s considerable history of convictions would have a negative impact on his credibility. Conclusory allegations of innocence are insufficient (Fudger v State of New York, 131 AD2d 136, Iv denied 70 NY2d 616), as the presumption of innocence does not apply in a section 8-b action (.Reed v State of New York, supra, at 8).
¶9In light of the foregoing, we need not decide whether this Court should look behind the stated grounds for vacatur and search the record to discern if the conviction could also have been vacated based on another rationale that satisfies section 8-b (3) (compare, Llaveras v State of New York, 136 Mise 2d 171, 173, n. 3 [declining to reinterpret vacatur opinion], with Coakley v State of v. alove York, 150 Misc 2d 903, 909, affd 225 AD2d 477 [opposite conclusion]). Such scrutiny of the record would otherwise seem appropriate where, as here, the Judge writing the vacatur opinion would naturally be inclined to emphasize a rationale that did not reflect poorly on his own conduct.
¶10Saxe and Buckley, JJ., concur with Rubin, J.; Rosenberger. J. P., and Mazzarelli, J., concur in a separate opinion by Rosenberger, J. P.
¶11Order, Court of Claims, New York County, entered August 12, 1998, reversed, on the law and the facts, without costs, defendant’s motion to dismiss the claim granted and the claim dismissed.