Sometimes reading appellate decisions is enlightening, and sometimes it causes head-spin. McDonald v Edelman & Edelman, P.C. 2014 NY Slip Op 04560 Decided on June 19, 2014
Appellate Division, First Department is definitely a head-spinner. First, this is a re-write of the November 12, 2013 decision. A recall of that decision is understandable, since the Court of Appeals decided Melcher v Greenberg Traurig, LLP 2014 NY Slip Op 02213 Decided on April 1, 2014 Court of Appeals Read, J. on April 1, 2014.
Here is where the AD loses us. In Melcher the Court of Appeals determined that Judiciary Law 487 is not a statutory cause of action; it is part of the common law. Judge Read goes into a long and interesting analysis of the source of common law in the US.
Here the AD does several puzzling things. First, it recalls an earlier decision. Second, it generally affirms the decision of Supreme Court dismissing three causes of action, but grants costs against defendants. Third, it either mis-wrote, or simply did not understand Melcher. The Court of Appeals determined that JL 487 is governed by CPLR 213(1). Two months later, the AD determines McDonald , yet relies upon the overruled AD decision in Melcher.
The AD writes: ‘The fourth cause of action, which alleges a violation of Judiciary Law § 487, is untimely because it was asserted within six years of plaintiff’s receipt of defendants’ June 2008 letter (see CPLR 214; Melcher v Greenberg Traurig, LLP, 102 AD3d 497 [1st Dept 2013])."
There is nothing correct in that sentence.
So, we are still suffering from confusion.