In an action involving Judiciary Law Section 487…

Posted on October 15, 2018 by Richard Klass

In an action involving Judiciary Law Section 487, the court considered the issue as to what type of matter fits into the definition in the statute, holding:

Contrary to the defendants’ contention, the cause of action alleging a violation of Judiciary Law Section 487 was not duplicative of the cause of action alleging legal malpractice. “ A violation of Judiciary Law Section 487 requires an intent to deceive, whereas a legal malpractice claim is based on negligent conduct ” (Moormann v Perini & Hoerger, 65 AD3d 1106, 1108 [2009] [citation omitted]; see Lauder v Goldhamer, 122 AD3d 908, 911 [2014]; Sabalza v Salgado, 85 AD3d 436, 438 [2011]).

Nevertheless, the Supreme Court should have granted that branch of the defendants’ motion which was for summary judgment dismissing the cause of action alleging a violation of Judiciary Law Section 487. A chronic extreme pattern of legal delinquency is not a basis for liability pursuant to Judiciary Law Section 487 (see Dupree v Voorhees, 102 AD3d 912, 913 [2013]). Further, the plaintiffs failed to allege sufficient facts demonstrating that the defendant attorneys had the “ intent to deceive the court or any party ” (Judiciary Law Section 487 [1]; see Schiller v Bender, Burrows & Rosenthal, LLP, 116 AD3d 756, 759 [2014]; Agostini v Sobol, 304 AD2d 395, 396 [2003]). Allegations regarding an act of deceit or intent to deceive must be stated with particularity (see CPLR 3016 [b]; Facebook, Inc. v DLA Piper LLP [US], 134 AD3d 610, 615 [2015]; Armstrong v Blank Rome LLP, 126 AD3d 427 [2015]; Putnam County Temple & Jewish Ctr., Inc. v Rhinebeck Sav. Bank, 87 AD3d 1118, 1120 [2011]). That the defendants commenced the underlying action on behalf of the plaintiffs and the plaintiffs failed to prevail in that action does not provide a basis for a cause of action alleging a violation of Judiciary Law Section 487 to recover the legal fees incurred.

Bill Birds, Inc. v Stein Law Firm, P.C., 164 AD3d 635, 637 [2d Dept 2018]

R. A. Klass
Your Court Street Lawyer

Next post
Previous post

Judiciary Law Section 487

Judiciary Law Section 487:

This statute punishes attorneys who commit fraud upon the court, other parties or their clients.

There is a special statute designed to punish attorneys who commit fraud upon the court, other parties or their clients, Judiciary Law Section 487.

Section 487 states as follows:

Misconduct by attorneys. An attorney or counselor who:
1. Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party; or,
2. Wilfully delays his client’s suit with a view to his own gain; or, wilfully receives any money or allowance for or on account of any money which he has not laid out, or becomes answerable for,
Is guilty of a misdemeanor, and in addition to the punishment prescribed therefor by the penal law, he forfeits to the party injured treble damages, to be recovered in a civil action.

Generally, New York courts have held that a cognizable claim under Judiciary Law Section 487 exists when there is a ‘chronic and extreme pattern of legal delinquency.’ Solow Management Corp. v. Seltzer, 18 AD3d 399 (1st Dept. 2005), citing toJaroslawicz v. Cohen, 12 AD3d 160 (1st Dept. 2004); Cohen v. Law Offices of Leonard and Robert Shapiro, 18 AD3d 219 (1st Dept. 2005). Some courts have held “a single act or decision, if sufficiently egregious and accompanied by an intent to deceive, is sufficient to support liability [under Judiciary Law Section 487]. Trepel v. Dippold, 2005 WL 1107010 (SDNY 2005). In the cited Jaroslawicz action, the First Department held:

The cause of action for statutory treble damages under Judiciary Law §487 was properly dismissed because there is no pleading that defendants acted with ‘intent to deceive the court or any party,’ and no pleading of a pattern of delinquent, wrongful, or deceitful behavior by the attorney defendants, or of pecuniary damages resulting from the alleged wrong.

Coupled with the above pleading requirements, the plaintiff must plead that “the alleged deceit forming the basis of such a cause of action, if it is not directed at a court, must occur during the course of a ‘pending judicial proceeding.’” Costalas v. Amalfitano, 305 AD2d 202 (1st Dept. 2003), citing to Hansen v. Caffry, 280 AD2d 704, lv. denied, 97 NY2d 603.

In order to recover under Judiciary Law Section 487, a plaintiff must plead and prove both actual deceit by the attorney, Bernstein v. Oppenheim, 160 A.D.2d 428, (1st Dep’t 1990), and causation, that is, that the deceit or collusion actually caused plaintiff’s damages. See, e.g., Manna v. Ades, 237 A.D.2d 264 (2d Dept. 1997); DiPrima v. DiPrima, 111 A.D.2d 901 (2d Dept. 1985); Brown v. Samalin & Bock, P.C., 155 A.D.2d 407 (2d Dept. 1989).

Concerning the issue as to what constitutes “deceit” under Judiciary Law Section 487, the court in Amalfitano v. Rosenberg, 428 F.Supp.2d 196 (SDNY 2006), set forth the definition from Black’s Law Dictionary (8th Ed. 2004), as including: (1) The act of intentionally giving a false impression… (2) A false statement of fact made by a person knowingly or recklessly (i.e. not caring whether it is true or false) with the intent that someone else will act upon it… (3) A tort arising from a false representation made knowingly or recklessly with the intent that another person should detrimentally rely on it.

As to the issue of what constitutes damages under Judiciary Law Section 487, the court in Amalfitano v. Rosenberg, supra, determined that the parties’ costs in defending themselves in the litigation against an action which was founded upon deceit were damages under such section.

In a recent decision of the NYS Court of Appeals, Melcher v. Greenberg Traurig, LLP, 2014 NY Slip Op. 02213 [2014], the court had to determine whether the statute of limitations in actions brought under Judiciary Law Section 487 were governed by the 3-year statute of limitations period under CPLR 214(2) or the “catch-all” provision under CPLR 213(1), which provides a 6-year statute of limitations period in which to bring an action against an attorney for deceit or collusion. The Court held that claims brought against attorneys for deceit or collusion under Judiciary Law Section 487 are subject to the 6-year statute of limitations set forth in CPLR 213(1).

By Richard Klass, Esq.
“Your Court Street Lawyer”
Copyright 2014