New York State Court of Claims

New York State Court of Claims

AVNI v. THE STATE OF NEW YORK, #2006-033-191, Claim No. 110105, Motion Nos. M-71198, CM-71260, CM-71348


Synopsis



Case Information

UID:
2006-033-191
Claimant(s):
DOV AVNI a/k/a DOV K. AVNI, individually and as assignee of all rights, title and interest to the claims of his mentally ill son L. (Anonymous), and his wife TAMAR AVNI, all Nassau County residents
Claimant short name:
AVNI
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110105
Motion number(s):
M-71198
Cross-motion number(s):
CM-71260, CM-71348
Judge:
James J. Lack
Claimant’s attorney:
Dov Avni a/k/a Dov K. Avni, Pro Se
Defendant’s attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Patricia M. Hingerton, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 21, 2006
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a claim by Dov Avni a/k/a Dov K. Avni (hereinafter “claimant”) individually and as assignee of all rights, title and interest to the claims of his mentally ill son, L. (Anonymous), and his wife Tamar Avni, all Nassau County residents. The claim is based upon the retention of L. at Pilgrim Psychiatric Center (hereinafter “Pilgrim”) in May 2002 and continuing until November 2002. The causes of action alleged by claimant are false imprisonment, conspiracy to imprison, and medical malpractice.


This case has a long and tortured history in the Court system. It began in 1998 when L. suffered a psychiatric breakdown and fired a weapon into the cars of two neighbors. He was arrested and eventually entered a plea bargain where he was found not responsible by reason of mental disease or defect. L. was issued a list of conditions by the court and was ordered to follow up with psychiatric care. In May 2002, while still undergoing psychiatric care, L. was evaluated and it was determined at the time that L. would be better served by being an in-patient at Pilgrim. Subsequently, L.’s retention was ordered by a court. The order of retention was continued until November 2002 when it was determined that L. could be released. In November 2004, claimant brought suit in Nassau Supreme Court against all the doctors involved with L.’s treatment and a clinic. Claimant also served the instant action in November 2004. By a short form order, dated March 4, 2005, claimant’s Supreme Court action was dismissed.

Defendant moves to dismiss the claim[1].

Claimant has no standing to sue. At no time did any of the actions he alleges in the claim happen to either him or his wife. Thus, neither claimant nor his wife have standing to sue. In addition, claimant may not take an assignment to pursue a personal injury action (General Obligations Law §13-101(1)).

As pointed out by the Supreme Court decision and argued by defendant, L. is an adult. Claimant has no right to bring an action as the father of an adult child. Claimant should have brought an action pursuant to Article 81 of the Mental Hygiene Law to be appointed as L.’s guardian. In addition to the preceding problems, the claim is untimely. Arguably, the last date for the cause of actions to accrue would be November 2002. The claim was not served and filed in this matter until November 2004. Court of Claims Act §10(3) states:
A claim to recover damages for injuries to property or for personal injuries caused by the negligence or unintentional tort of an officer or employee of the state while acting as such officer or employee, shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim.

Claimant failed to file the claim in a timely manner. Claimant alleges that the statute of limitations was tolled for L. because of his mental illness. However, L. is not a party to this action except through his father. Any tolling of the statute of limitations that L. may have does not inure to the father.

Based on the foregoing, the Court grants defendant’s motion to dismiss the action under M-71198. The Court denies as moot CM-71260 and CM-71348[2].

The Clerk of the Court is directed to close the file.



June 21, 2006
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims




[1].The following papers have been read and considered on defendant’s motion: Notice of Motion to Dismiss dated January 17, 2006 and filed January 19, 2006; Affirmation in Support of Motion to Dismiss of Patricia M. Hingerton, Esq. with annexed Exhibits A-J dated January 17, 2006 and filed January 19, 2006; Memorandum of Law in Support of State’s Motion to Dismiss dated January 17, 2006 and received January 19, 2006; Plaintiff’s Initial Objections to State’s Motion of 1//17/2006 to Dismiss Claim #110105 dated February 2, 2006 and filed February 7, 2006; First Supplemental Affidavit of Plaintiff, Dov Avni, Supporting Opposition and Objections to State’s 1/17/06 Motion to Dismiss with annexed Exhibits 1-23 sworn to February 23, 2006 and filed March 1, 2006; Supplemental Exhibits 2-25 to Affidavit of Plaintiff of 2/23/06 filed March 1, 2006; Affidavit of Dov Avni, Plaintiff Acting Pro-Se, Supporting His Opposition and Objections to State’s 1/17/06 Motion to Dismiss with annexed Exhibits 26-50 sworn to February 23, 2005 (sic) and filed February 28, 2006; Notice of Filing Plaintiff’s First Supplemental Sworn Response to State Motion to Dismiss Claim of Dov Avni, Pro Se with annexed Exhibits 1-25 dated February 28, 2006 and filed March 3, 2006; Affidavit of Tamar Avni sworn to February 28, 2006 and filed March 3, 2006.
[2].The following papers have been read and considered on claimants’ cross-motions: Notice of Plaintiff’s Original Cross Motion for Leave to Amend his live pleading until 2/28/2006 dated February 2, 2006 and filed February 7, 2006; Plaintiff’s Sworn Original Motion for leave to amend live pleading until 2/28/2006 with annexed Exhibits dated February 2, 2006 and filed February 7, 2006; Affidavit of Witness Tamar Avni, Nassau County Resident sworn to January 26, 2006 and filed February 7, 2006; Notice of Plaintiff’s Original Cross-Motion by right to Strike Defendant’s affirmative defenses dated February 27, 2006 and filed February 28, 2006; Affidavit of Tamar Avni, Nassau County resident sworn to February 28, 2006 and filed February 28, 2006; Plaintiff’s Sworn Original Motion for leave to amend live pleading until 2/28/2006 of Dov Avni, Pro Se dated February 28, 2006 and filed February 28, 2006; Affirmation in Opposition to Claimant’s Cross-Motions and In Reply to Claimant’s Opposition to the State’s Motion to Dismiss of Patricia M. Hingerton, Esq. dated March 1, 2006 and filed March 3, 2006; Reply Affidavit of Plaintiff Dov Avni , in Opposition to 3/1/2006 Affirmation of Hingerton and Further Support of his Position with annexed Exhibits 51-58 sworn to March 6, 2006 and filed March 7, 2006; 2nd Supplemental Reply Affidavit of Dov & Tamar Avni, in Opposition to Hingerton’s Affirmation, Further Supporting Claimants Position with annexed Exhibits 2-8 sworn to March 6, 2006 and filed March 7, 2006; Exhibits 57, 59-76 to Supplemental Reply Affidavit in Opposition to Hingerton’s Affirmation of 3/1/06 received March 8, 2006.