Klein v Rieff 2016 NY Slip Op 00482 Decided on January 27, 2016 Appellate Division, Second Department is a fascinating story, and could well serve as a bar exam all by itself. It deals with the owners of nursing homes and the fallout from their breakup. The gist of the story is the loser in the breakup suddenly says that she did not sign the operating agreements, and that the signature is a forgery. Then, after trips to the Appellate Division, one of the attorneys suddenly admits that his affirmation was a “misstatements.” “Defendant Rieff reversed his original position that Persuad did not sign the operating agreement” and so he wrote to Justice Schack with a copy to the AD that he wanted to “correct certain misstatements contained in an affirmation which [he] signed on April 20, 2009…”
So when all of the attorneys used this affirmation, was it a violation of Judiciary Law §487 and legal malpractice? No, only Rieff remains in the case.
“ORDERED that the order dated December 5, 2013, is modified, on the law, by deleting the provisions thereof granting those branches of the motion of the defendant Samuel E. Rieff which were for summary judgment dismissing the causes of action alleging legal malpractice, fraudulent misrepresentation, and a violation of Judiciary Law § 487 insofar as asserted against him, and substituting therefor provisions denying those branches of the motion; as so modified, the order is affirmed insofar as appealed from;”
“The Supreme Court properly granted those branches of the separate motions by Levy, the Naparty defendants, the Hankin defendants, and Preziosi which were pursuant to CPLR 3211(a)(7) to dismiss the causes of action alleging a violation of Judiciary Law § 487 insofar as asserted against each of them, as the plaintiff failed to allege sufficient facts to establish that these defendants intended to deceive the court (see Shaffer v Gilberg, 125 AD3d 632, 636;Schiller v Bender, Burrows & Rosenthal, LLP, 116 AD3d 756, 759; Seldon v Lewis Brisbois Bisgaard & Smith LLP, 116 AD3d 490, 491; Curry v Dollard, 52 AD3d 642, 644; Michalic v Klat, 128 AD2d 505, 506).”
“However, the Supreme Court erred in granting those branches of Rieff’s motion which were for summary judgment dismissing the causes of action alleging legal malpractice, fraudulent misrepresentation, and a violation of Judiciary Law § 487 insofar as asserted against him. Rieff contends that he is entitled to summary judgment because the plaintiff did not suffer any [*3]damages as the result of any alleged fraud that he committed by making knowing, material misstatements for submission to the court. Contrary to Rieff’s contention, he failed to establish, prima facie, that the plaintiff was unable to demonstrate damages proximately caused by his alleged conduct (see Bey v Flushing Hosp. Med. Ctr., 95 AD3d 1152, 1153).”
The Supreme Court Decision is itself a real mess.