New York State Court of Claims

New York State Court of Claims

AVNI v. THE STATE OF NEW YORK, #2008-030-536, Claim No. 115048, Motion No. M-74930


Synopsis


Pre-Answer motion to dismiss for failure to state a cause of action granted. No cause of action for fraud or misrepresentation is made out, and claim is partially based on matters already adjudicated. The only “new matter” is that now claimant suggests defendant is at fault for failure to perfect an appeal, or that the prior rulings of this Court referred to herein were forged, or fraudulent. The remedy is appeal, not repeated filings in an attempt to obtain different rulings by a court of coordinate jurisdiction or by a different judge.

Case Information

UID:
2008-030-536
Claimant(s):
LIOR J. AVNI a/k/a LIOR AVNI, a disabled NY citizen acting Pro-se-individually and as trustor and assignor of MHL 43 liabilities to his father DOV AVNI, after discovering frauds by NY Court of Claims and Attorney General Cuomo’s Office, in alleged “final disposition” of Claims 112938 and 112944
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):
115048
Motion number(s):
M-74930
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
LIOR J. AVNI, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: PATRICIA M. HINGERTON, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
June 30, 2008
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers were read and considered on defendant’s pre-answer motion to


dismiss the claim:

1,2 Notice of Motion to Dismiss; Affirmation in Support of Motion to Dismiss by Patricia M. Hingerton, Assistant Attorney General and attached exhibits

3,4 Verified Response & Objections to Amended Motion of May 7, 2008 to dismiss this claim against State of NY for alleged “Want of Cause of Action” under 3211a(7) and attachments; First Sworn Supplement to Claimant’s original Response and Objections to Amended Motion of 5/7/08 to dismiss claim against State of NY for Alleged “want of cause of Action” under 3211a(7) by Tamar Avni and attachments

5-8 Filed papers: Claim; Supplemental Claim; Avni v State of New York, UID # 2006-033-191, Claim No. 110105, Motion Nos. M-71198, CM-71260, CM-71348 (Lack, J., June 21, 2006)[1]; Decision and Order, Avni v State of New York, Claim No. 112938; Motion Nos. M-72679, CM-72787; L. (Anonymous) v State of New York, Claim No. 112944; Motion Nos. M-72665, CM-72776, CM-72789 (unreported) (Lack, J., March 6, 2007)[2]

In this claim Lior Avni alleges that a March 6, 2007 Decision and Order of a Judge of this Court, disposing of previous claims[3] filed by claimant and his father, Dov Avni, was somehow not “authentic” and a “false instrument” causing him harm. The initial two (2) pages of the claim before this Court references underlying issues claimant has concerning his retention at Pilgrim Psychiatric Center from May to November 2002, when he avers he should have been released in order to testify at civil proceedings held in Texas concerning his and his family’s financial interests. Supplementary papers filed by claimant purport to amend the claim, adding that attorneys from Mental Hygiene Legal Services, personnel from this Court, and the Attorney General’s Office, all somehow prevented his ability to perfect his appeal of earlier court rulings.

A claim alleging false imprisonment, among other causes of action, was filed by claimant’s parents, Dov and Tamar Avni, and dismissed by Decision and Order dated June 21, 2006. [Affirmation in Support of Motion to Dismiss by Patricia M. Hingerton, Exhibit C]. As noted, the subsequent claims brought by claimant’s father, Dov Avni, and by claimant, were dismissed by Decision and Order dated March 6, 2007. [Ibid. Exhibit D].

The doctrine of judicial immunity, and the litigation history, discussed in the March 6, 2007 Decision and Order need not - and will not - be repeated here, and is incorporated herein. [See id.]. If the claimant was displeased with the result in any of the litigation discussed - including litigation in other States and in other courts of this State - the remedy is appeal, not repeated filings in an attempt to obtain different rulings by a court of coordinate jurisdiction or by a different judge. “In reviewing decisions and orders of a Judge of coordinate jurisdiction, this court does not act as an appellate court. Mere errors of law are not sufficient for the court to vacate another Judge’s determination. Such errors are correctable by way of appeal. (CCA art 17; . . . (citation omitted.)” Harvey v State of New York, UID # 2000-001-019, Claim No. 96808, Motion No. M-61057, (Read, P.J., June 1, 2000), quoting from 12-16 Arden Assoc. v Vasquez, 168 Misc 2d 475, 478 (Civ Ct, NY County 1995).

The claim now before this court is partially based on matters already adjudicated. As such, this Court is collaterally estopped from further reviewing this matter based on that legal premise as well. Once an issue has been determined, “the doctrine of the law of the case makes it binding not only on the parties, but on the court as well: no other judge of coordinate jurisdiction may undo the decision.” (Siegel, New York Practice, § 448, at 723 [3rd edition]).

The only “new matter” that can be gleaned from the claim and all the additional submissions filed here is that now claimant is indicating that the defendant is at fault for claimant’s failure to perfect an appeal, or that the prior rulings of this Court referred to herein were forged, or fraudulent. “The elements of a cause of action alleging fraud are ‘a representation of fact, which is either untrue and known to be untrue or recklessly made, and which is offered to deceive the other party and to induce them to act upon it, causing injury’ . . . (citations omitted).” Dong Sheng Lu v Equitable Co., Inc., 6 AD3d 650, 651 (2d Dept 2004). Any “reliance on the misrepresentation must be justifiable.” [Id.; see also Cohen v Houseconnect Realty Corp., 289 AD2d 277, 278 (2d Dept 2001)].

While it is generally true that when considering a motion to dismiss a claim for failure to state a cause of action the movant is held to have conceded the truth of every fact alleged by the claimant for purposes of the motion, the Court is not constrained to ignore all the prior history of the matter or matters of record. Civil Practice Law and Rules §3211(a)(7). In the rambling narrative presented in the claim herein, no cause of action for fraud or misrepresentation is made out. See also Civil Practice Law and Rules §3016(b).

Accordingly, and for all of the above stated reasons, defendant’s motion is hereby granted, and Claim number 115048 is in all respects dismissed for failure to state a cause of action upon which relief can be granted.

June 30, 2008
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1]. This dismissal was the subject of a motion for reargument that was denied. See Avni v State of New York, UID # 2006-033-225, Claim No. 110105, Motion No. M-72064 (Lack, J., December 29, 2006).
[2].Two other related claims have been filed as well: Claim Nos. 115049 and 115050. They have been dismissed in separate Decision and Orders pursuant to Motion Nos. M-74931 and M-74932, respectively.
[3].Claim No. 110105 was a claim by Lior’s parents, Dov and Tamar Avni, alleging false imprisonment, conspiracy to imprison, and medical malpractice arising from Lior’s retention at Pilgrim Psychiatric Center. It was dismissed by Decision and Order dated June 21, 2006. Claim No. 112938 was filed by Dov Avni alone alleging that because Lior was subjected to certain psychiatric conditions, he was unable to testify in a lawsuit. Claim No. 112944 was filed by Lior at approximately the same time as his father filed 112938, alleging the same factual predicates. The March 6, 2007 Decision and Order dismissed Claim Nos. 112938 and 112944.