13. Emigrant Funding Corp. v Nunez 2016 NY Slip Op 32089(U) May 25, 2016 Supreme Court, Queens County Docket Number: 16111/2009 Judge: Robert J. McDonald Our review of the entire year’s cases highlights the large number of foreclosure actions in which (almost as a reflex) JL 487 claims are raised against both the bank’s attorneys and the borrower’s attorney. Emigrant seems to be one of these. “In opposition, Helmut Borchert, Esq., a partner of BGS and plaintiff’s counsel in this action, submits an affirmation contending that Nunez’s the issues raised by Nunez are barred by the doctrine of res judicata and were waived by Nunez in the forbearance agreement. Regarding that branch of Nunez’s application pursuant to Judiciary Law 487 and for sanctions, Mr. Borchert argues that Nunez cannot show that plaintiff, BGS, or himself has intentionally mislead the court or Nunez. ”
“Regarding that branch of the application to punish and for sanctions against plaintiff, BGS, and Helmut Borchert, Esq., this Court finds that Nunez has not established an intent to deceive (see Judiciary Law 487; Cullin v Spiess, 122 AD3d 792 [2d Dept. 2014]; Dupree v Voorhees, 102 AD3d 912 [2d Dept. 2013]; Boglia v Greenberg, 63 AD3d 973 [2d Dept. 2009]). ”
14. GE Oil & Gas, Inc. v Turbine Generation Servs., L.L.C. 2016 NY Slip Op 50825(U) [51 Misc 3d 1226(A)] Decided on May 27, 2016 Supreme Court, New York County Kornreich, J. In a case, “thoroughly papered by the counselled, sophisticated parties” one side nevertheless violated the forum-selection clause in a wholehearted way. The Court suggested: ” The court will direct an inquest on their contempt if it is not purged. While the question of the damages available for breach of a forum selection clause is somewhat of an uncertain issue under New York law,[FN5] the court’s ability to sanction a party for intentionally violating a court order is not. See Simens v Darwish, 104 AD3d 465, 466 (1st Dept 2013), citing McCormick v Axelrod, 59 NY2d 574, 582-83 (1983); see also Gottlieb, 137 AD3d at 618 (“Legal fees that constitute actual loss or injury as a result of a contempt are routinely awarded as part of the fine. These may include the legal fees incurred in bringing the contempt motion”) (internal citations omitted), accord Judiciary Law § 773 (contemnor may be obligated to pay damages or a fine “sufficient to indemnify the aggrieved party”).[FN6] “Judiciary Law § 487 also prohibits attorneys from making knowingly false statements to deceive the court. As discussed at the May 18 oral argument, the TGS Parties’ claim in this court and in the Louisiana State Court Action that this court sua sponte dismissed their joint venture claim is false. The dismissal on March 30 was not a sua sponte dismissal without consideration of the merits or the allowance of an opportunity to brief the issues. Rather, the March 30 Order was issued because the joint venture claims were previously argued and ruled on, after extensive briefing, in connection with the summary judgment motion, and the claim was expressly rejected in the SJ Decision. Dismissal of the amended counterclaims in the March 30 Order was due to violation of an order contained in the SJ Decision.”
15. Pieroni v Phillips Lytle LLP 2016 NY Slip Op 04618 [140 AD3d 1707] June 10, 2016
Appellate Division, Fourth Department Not that much different from a foreclosure action, this case involved a Ford dealership.
“Plaintiffs commenced this fraud and Judiciary Law § 487 action against two individual attorneys and their law firm in connection with their representation of Ford Motor Credit Company LLC, formerly known as Ford Motor Credit Company (Ford Credit), in an underlying action (2007 action) commenced by Ford Credit. In the 2007 action, Ford Credit sought damages for breach of a floor plan and security agreement with an automobile dealership. In connection with the 2007 action, Ford Credit obtained an order of seizure with respect to certain vehicles. Ford Credit later amended the complaint therein to add as defendants the plaintiffs in this action, who were the purported buyers or participants in the transfer of those vehicles. In 2010, plaintiffs commenced an action (2010 action) against Ford Credit alleging causes of action for intentional infliction of economic harm, conversion, fraud, and tortious interference with contractual relations. Plaintiffs alleged that Ford Credit knew of the bona fide claims of plaintiffs to the vehicles and submitted false statements in support of its order to show cause to seize the vehicles. Plaintiffs later moved for leave to amend the complaint to add defendants to the 2010 action and to add a cause of action pursuant to Judiciary Law § 487. Supreme Court (Bannister, J.) denied the motion with respect to the individual defendants, and denied the motion with respect to the law firm without prejudice for reconsideration in the event plaintiffs submitted additional proof, as set forth in the court’s bench decision. Plaintiffs did not submit any additional proof, and their subsequent motion for leave to reargue was denied. Although plaintiffs appealed, that appeal was not decided before both the 2007 action and the 2010 action were transferred to federal court.”
“In March 2013, plaintiffs commenced the present action. The complaint is essentially identical to the proposed amended complaint they submitted in support of their motion for leave to amend the complaint in the 2010 action. Supreme Court (Caruso, J.) granted defendants’ motion to dismiss the complaint, and we now affirm.”
” The Judiciary Law § 487 cause of action must also be pleaded with particularity (see Briarpatch Ltd., L.P. v Frankfurt Garbus Klein & Selz, P.C., 13 AD3d 296, 297 , lv denied 4 NY3d 707 ), and plaintiffs failed to do so here (see Savitt v Greenberg Traurig, LLP, 126 AD3d 506, 507 ; Schiller v Bender, Burrows & Rosenthal, LLP, 116 AD3d 756, 758-759 )”