of Greater New York (sued herein as HIP-NY by its mental health services unit of SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK

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1 SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK Present: HON. LAWRENCE J. BRENNAN Acting Justice Supreme Court x DOV A VNI, A!A DOV K. A VNI, Individually and as Assignee of Causes of Action of his natural Son L. (ANON.) and his wife, TAMAR. INDEX NO.: against- Plaintiffs, HOWAR KIRSCHEN M.D. HIP-NY BY ITS MENTAL HEALTH SERVICES UNIT OF WOODBURY, NY; DR. INDERJIT SINGH, M.D., DR. AMY RESNICK- KLEIN, M., DR. PAMELA WEINBERG, M.D., DR. SURESH SARW AL, M. ; DR. MARIA SANTOS-DUNPHY, M.D., ALAN WEINSTOCK, DR. JACOB NINNAN, M.D. ( OF OMH/UMC); AND TINA REICH, ADMINISTRATOR OF HIP - NY WOODBURY, TRIAL PART: 44 NASSAU COUNTY MOTION DATE: SUBMIT DATE: SEQ. NUMBER & 002 Defendants x The following papers have been read on this motion: Notice of Motion - 001, dated Notice of Motion - 002, dated Reply Affidavit, dated Reply Affirmation in Support, dated Companion motions by defendant Howard Kirschen, M.D. and Health Insurance Plan of Greater New York (sued herein as HIP-NY by its mental health services unit of Woodbur, N. ) (HIP) respectively to dismiss the complaint pursuant to CPLR 3211(a)(7) are granted and the action is dismissed.

2 According to the affidavit of twenty-six year old Lior J. A vni, he was arrested by the Nassau County Police on February 8, 1998 near his family home after he fired a weapon on February 5th and February 8 h, 1998 damaging neighbors' cars. He states that the shootings occured after defendants Howard Kirschen, M.D. and HIP failed to treat his psychosis with anti-psychotic drgs and hospitalization when he was rushed to HIP-, Woodbur on February 4, After his arrest, he was held in the psychiatric ward of the Nassau University Medical Center for thirt-five days and then at Pilgrim State Psychiatrc Center. Specifically, Lior attests that he was "abducted from NY-HIP Woodbury Center on 5/23/02 and transported on that day to NUMC, then transferred on the same day to Pilgrim Psychiatrc Center-without any psychiatrc examination by Kirschen-who told me and my mother Tamar: 'Lior, I am sorr to do this to you, I was instrcted. ' " He furher states " (a Js my parents discovered in records obtained between 11/30/03 and 8/1/04 from 2 Dept. Pilgrm and HIP-NY he conspired with Pilgrim s employees to cause my involuntary retention and revise 6/99 orders." According to Lior, he executed a power of attorney in favor of his father Dov Avni on April 28, 2004, empowering him to commence an action against the defendants for their atrocious conduct toward him and the torts committed against him. Plaintiff, acting pro se has commenced this action as assignee of the claims of his adult son, Lior who is, in plaintiffs words, unable to prosecute his claims as a result of mental ilness, and also on behalf of his wife and himself. He claims to be acting as the representative, agent, attorney in fact, best friend and/or natural guardian of his son with respect to his non-assignable personal injur causes of action under purorted power of

3 attorney appointments made between July 19, 2002 and January 4, The court notes that despite Lior s alleged mental incompetence, his father has not proceeded in accordance with Aricle 81 of the Mental Hygiene Law. In response to the two separate CPLR 3211(a)(7) dismissal motions brought by defendants Howard Kirschen, M.D. and HIP, plaintiff, without seeking leave of cour to amend his complaint and add additional defendants in accordance with CPLR 3025, has served a "Verified First Amended Original Complaint" which movants contend, and this cour agrees, fails to properly address or cure the legal deficiencies ofthe original complaint and is merely a reiteration of the allegations asserted therein. As noted by movants, reading either the original, or the purportedly amended complaint, in their most favorable light (Leon v Martinez, 84 NY2d 83, 87 (1994)), the action must be dismissed inasmuch as plaintiff Dov A vni, acting pro se may not bring this action on behalf of either his adult son or his wife. Nor does he have a right to sue on the claims alleged on his own behalf. Neither plaintiff nor his wife was treated by any of the named defendants and it is impossible to determine, from the papers before the cour, the relevant particulars of the purorted breach of contract claim. Plaintiffs broad sweeping assertion that the thirt-six causes of action alleged, including the so-called "non-assignable personal causes of action including, inter alia false imprisonment, psychiatrc malpractice defamation, libel and conspiracy, and the purportedly "specifically assignable" causes of action, including, inter alia breach of contract, breach of fiduciary duty, fraud and conspiracy, are sufficiently supported by the facts recited is untenable. Where, as here, the

4 proposed amendments to a complaint are totally devoid of merit and legally insufficient leave to amend wil be denied. Mylonas v Town of Brookhaven, 305 AD2d 561, 563 (2 Dept. 2003). Under General Obligations Law ( (1)), as well as at common law, a claim to recover damages for a personal injur cannot be assigned. The term "personal injur" is broadly constred to include libel, slander, malicious prosecution, assault, battery, false imprisonment or other actionable injur to the person either of the plaintiff or of another. General Constrction Law a. Personal injury as defined in this section covers every variety of injur to a person s body, feelings or reputation. Bonila v Reeves, 49 Misc.2d (N. Sup. 1966). A power of attorney is a written authorization to an agent to perform specified acts on behalf ofthe principal. Although General Obligations Law H authorizes an agent holding a sufficient power of attorney "(t)o assert and prosecute before any cour * * * any cause of action * * * which the principal has, or claims to have, against any individual " the statute only permits the agent to hire on behalf of the principal pro, not to commence action se in the name of the principal. Megna v u.s. Department of Navy, 317 F. Supp.2d 191, 192 (E. Y. 2004). As a general matter because pro se means to appear for one s self, a person may not appear on other s cause. Iannaccone v Law, 142 F.3d 553, 558 (2 Cir. (N. ) 1998). Although the short form power of authority under General Obligations Law H(1-10) authorizes broad and sweeping powers to the attorney in fact with respect to

5 claims and litigation, with few exceptions, not here relevant, an attorney in fact is without authority to appear on the principal' s behalf and act as legal counsel in a cour of law unless admitted to the practice of law. Judiciary Law , 484. Whitehead v Town House Equities, Ltd. 8 AD3d 369, 370 (2 Dept. 2004). As stated by the court in People v Cronshaw, 138 AD2d 765, (2 Dept. 1988), appeal dismissed 72 NY2d 872 (1988), "New York law prohibits the practice oflaw in this state on behalf of anyone other than himself or herself by a person who is not an admitted member of the Bar, regardless of the authority purortedly conferred by the execution of a power of attorney." In light of the aforementioned principals, plaintiff Dov A vni may not act pro se on his son s behalf, to assert personal injur claims by virte of the purorted power of attorney executed by Lior which, in any event, plaintiff has failed to include in the record. Moreover, both the original and the "verified first amended complaint " which fail to separately delineate the individual causes of action and the specific defendants against whom they are alleged, are deficient. Pursuant to CPLR " ( e ) very pleading shall consist of plain and concise statements in consecutively numbered paragraphs. Each paragraph shall contain, as far as practicable a single allegation. * * * Separate causes of action or defenses shall be separately stated and numbered." Statements in a pleading must be "sufficiently particular to give the cour and parties notice of the * * * occurences intended to be proved and the material elements of each cause of action or defense." CPLR Neither the original complaint nor the proposed "verified first amended complaint" complies with the aforesaid requirements or with those set forth in CPLR 3016 which

6 . ' \) requires, for example, that the specific circumstances constituting fraudulent misconduct be alleged with sufficient paricularity (Modell' s N. Y. Inc. Noodle Kidoodle, Inc., 242 AD2d 248, 249 (1 st Dept. 1997)), and that, with respect to a cause of action for defamation, that the alleged defamatory words, and to whom they were spoken, be set forth. Wyllie v District Atty. of County of Kings, 2 AD3d 714, 719 (2 Dept. 2003). It is well settled that a psychiatrist may not be held Hable for a mere error in professional judgment (Fotinas v Westchester County Medical Center 300 AD2d 437, 439 (2nd Dept. 2002)), but may be held liable if a treatment decision was "something less than a professional medical determination. Bell v New York City Health Hosps. Corp., 90 AD2d (200 Dept. 1982). Here the record is devoid ofa factual basis sufficient to show that any decision vis a vis Lior s treatment by defendants was based on something less than professional medical judgment or represented a departure from accepted medical practice. This shall constitute the Decision and Order of this Cour. DATED: March 4, 2005 ENTER J. BRENNAN ur Justice TO: Dov A vni alkla Dov K. A vni Plaintiff 150-B Forest Drive Jericho, NY COU "Ef\EO..ss...O\.e. 1.\)\) 1''' Ce. CO\) \(:s offt

7 Ivone, Devine & Jensen, LLP By: Robert Devine Attorneys for Defendant Howard Kirschen M Marcus Avenue, Ste N 100 Lake Success, NY HIP HEAL TH PLAN OF NEW YORK 55 Water Street New York, NY Attn: Susan marotta, Esq. Associate General Counsel Attorneys for HIP-NY by its MENTAL HEALTH SERVICES UNIT OF WOODBURY, TINA REICH and Ted Dubinsky, not named as a party INDERJIT SINGH, M. c/o buckman Out-Patient Center Pilgrim Psychiatric Center - biding 47 AMY RESNICK-KLEIN, M. PAMELA WEINBERG, M. SURESH SARW AL, M. MARIA SANTOS-DUNPHY, M.

8 ALAN WEINSTOCK JACOB NINNAN, M. C/o NYOMH Nassau University Medical Center 2201 Hempstead Turnpike East Meadow, NY 11554