The Respondent sought to refer two interlocutory applications filed by the Applicant in separate actions as candidates for Apparently Vexatious Applications or Proceedings (“AVAP”), pursuant to Civil Practice Note No. 7 (“CPN7”). The Court declined the CPN7 referral. The Respondent had not provided admissible documentation establishing that re-litigation by the Applicant had occurred.

Further, the Court noted that CPN7 is a limited scope process that targets filings that are clear cases of abuse. As a mechanism to conduct a Rule 3.68 process, the alleged facts in a CPN7 referral are presumed to be true, with the narrow exception where allegations are absurd, highly implausible, or hyperbole. The Court held, however, that an Application under Rule 3.68 was still available absent the CNP7 referral.