Yesterday we looked at Chibcha Rest., Inc. v David A. Kaminsky & Assoc., P.C. 2013 NY Slip Op 00281 Decided on January 22, 2013 Appellate Division, First Department for the question of how much a plaintiff must show, and the difference between missing a deadline and almost all other claims.
Today, we look at the same case for a lesson in Judiciary Law 487. For reasons, mostly unexplained, the JL 487 claim was dismissed, because it was brought in a plenary action, after arising in a fee dispute. The AD affirmed Supreme Court’s dismissal and held that plaintiff’s remedy was to move to vacate the fee dispute result, rather than bring this plenary claim.
"The motion court properly dismissed the cause of action alleging a violation of Judiciary Law § 487. Plaintiffs’ allegations stem from defendants’ alleged misconduct in connection with a fee dispute in Civil Court. Accordingly, "plaintiff’s remedy lies exclusively in that lawsuit itself, i.e., by moving pursuant to CPLR 5015 to vacate the civil judgment due to its fraudulent procurement, not a second plenary action collaterally attacking the judgment in the original action" (Yalkowsky v Century Apts. Assoc., 215 AD2d 214, 215 [1st Dept 1995]). "