New York State Court of Claims

New York State Court of Claims

AVNI v. THE STATE OF NEW YORK, #2008-030-537, Claim No. 115049, Motion No. M-74931


Synopsis


Pre-answer motion to dismiss for failure to state cause of action granted. No cause of action for fraud made out. Claim is partially based on matters already adjudicated. Claim also suggests defendant is at fault for failure to perfect an appeal, or that the prior rulings of the Court referred to in claim and motion 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:
2008-030-537
Claimant(s):
DOV K. AVNI a/k/a DOV AVNI a/k/a DOV AVNI KAMINETZKY, acting pro se, individually and as assignee of all title, right and interest to the claims assigned to him by 1/20/05 of his disabled son L.(ANON.) and by his wife TAMAR AVNI, after discovering frauds by NY Court of Claims and NY Attorney General Cuomo’s office in “disposing” of Claim No. 110105
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):
115049
Motion number(s):
M-74931
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
DOV K. 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:

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) by Dov K. Avni a/k/a Dov Avni Kaminetzky and attached papers; 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) and Cross Motions (Venue & Discovery) and attached papers

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, Dov Avni and his wife, Tamar Avni, whose prior claim in this court was dismissed by Judge Lack [see Claim No. 110105], allege that such dismissal in a June 21, 2006 Decision and Order was a forged document, and that various State employees - including those employed by the Court of Claims, the Attorney General’s Office, and Mental Hygiene Legal Services - defrauded claimants into believing that such document was genuine. [See Affirmation in Support of Motion to Dismiss, Exhibit C]. Supplementary documents to the claim herein also filed by claimants repeat the accusation of forgery, and add the same allegations with respect to another Decision and Order issued by Judge Lack on March 6, 2007, dismissing Claim Nos. 112938 and 112944. [See ibid. Exhibit D]. Claim No. 112938 was also brought by Dov Avni, and Claim No. 112944 was brought by the claimants’ son, Lior Avni, whose hospitalization at Pilgrim Psychiatric Center in and about 2002, and an alleged deprivation of monetary recovery in a completely unrelated lawsuit in Texas, underlie all of these claims.

The doctrine of judicial immunity, and the litigation history, was discussed in the March 6, 2007 Decision and Order by Judge Lack and is incorporated herein. If the claimants were 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. (CC art 17; . . . (citation omitted.)” Harvey v State of New York, UID # 2000-001-019, Claim No. 96808, Motion No. M-61057 (Read, J., June 1, 2001), quoting from 12-16 Arden Assoc. v Vasquez, 168 Misc 2d 475, 478 (Civil Court New York 1995).

The claim now before this court is also 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 present claim is not very clear, however it appears that claimants commenced the appeal process of the June 2006 and March 2007 Orders, but never timely perfected the appeals. [Affirmation in Support of Motion to Dismiss, Exhibit A, ¶4]. They now blame the State of New York for such failure to perfect the appeals. They allege that Judge Lack’s law clerk forged his signature, and that the attorneys employed by the Attorney General’s Office and Mental Hygiene Legal Services defrauded them into believing that the two orders were “authentic.” [Ibid. Exhibits A and B].

“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 claimants 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 [M-74931] is hereby granted, and Claim number 115049 is in all respects dismissed for failure to state a cause of action upon which relief can be granted. [3]

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 numbers 115048 and 115050.
[3]. The court notes that in the title of some of claimants’ responsive papers reference is made to a “cross-motion” concerning “venue & discovery.” [See First Sworn Supplement to Claimant’s Original Response etc. by Tamar Avni]. No “cross-motion” was calendared as such, nor was any such motion adequately noticed in any event. [See Civil Practice Law and Rules § 2215; 22 NYCRR §§206.8 and 206.9]. Moreover, there is no basis for the matter to be venued in Albany or New York Counties as asserted [Civil Practice Law and Rules, Article 5], nor has issue been joined or any attempt at consent discovery been made, thus any motion to compel discovery is premature.[Civil Practice Law and Rules, Article 31]. Accordingly, any cross-motion referenced herein is denied substantively and also as moot given the dismissal of the claim herein.