Continuing on our survey of all the JL 487 cases last year we move on to the spring:
10. Little Rest Twelve, Inc. v Zajic
2016 NY Slip Op 01767 [137 AD3d 540]
March 15, 2016
Appellate Division, First Department discusses a concept that we will see further refined later:
“As discussed below, the motion to dismiss the third-party complaint was correctly granted. However, since it is based on a failure to state a cause of action, the dismissal should be without prejudice to apply upon a proper showing for leave to plead again (Morpheus Capital Advisors LLC v UBS AG, 105 AD3d 145, 154 [1st Dept 2013], revd on other grounds 23 NY3d 528 ).
Third-party plaintiffs fail to allege a duty owed them by third-party defendants that would support a claim for contribution or indemnification (see Raquet v Braun, 90 NY2d 177, 183 ; Garrett v Holiday Inns, 86 AD2d 469, 471 [4th Dept 1982], mod on other grounds 58 NY2d 253 ).
In support of the claim alleging a violation of Judiciary Law § 487, the third-party complaint contains no nonconclusory allegations that the alleged misconduct was “merely a means to the accomplishment of a larger fraudulent scheme” (Newin Corp. v Hartford Acc. & Indem. Co., 37 NY2d 211, 217 ) “greater in scope than the issues determined in the prior proceeding” (Specialized Indus. Servs. Corp. v Carter, 68 AD3d 750, 752 [2d Dept 2009] [internal quotation marks omitted]). Thus, the claim is not properly asserted in this action but would be appropriately raised in the still pending underlying action, where the alleged [*2]misconduct occurred (see Seldon v Spinnell, 95 AD3d 779 [1st Dept 2012], lv denied 20 NY3d 857 ; Melnitzky v Owen, 19 AD3d 201 [1st Dept 2005]).
11. Katz v Landsman 2016 NY Slip Op 30533(U) March 30, 2016 Supreme Court, New York County Docket Number: 161147/14 Judge: Carol R. Edmead
“This case arises from Landsman’s representation of Katz in a proceeding in Surrogate’s Court in a matter involving a trust created by Katz’s grandmother. While the complaint is short on dates, it is clear that the representation ended when Katz fired Landsman in November 2008. On November 19, 2008, Landsman sent Katz an email notifying him that he would not spend any more time on the matter until Katz paid an outstanding bill, and Katz responded, on the same day, stating that “[w]e concur that you are not to proceed any further on this case until the matter of your presented bill is resolved” (emphasis in original). Landsman, in an affidavit submitted with the motion to dismiss, stated that “[t]he fee issue was not resolved and I did nothing further on Plaintiffs behalf’ (Katz aff, if 3). There is no dispute as to whether Katz’s email constituted termination. Landsman subsequently, in September 2014, brought an action in this court, entitled Landsman v Katz, index No. 652770/14, to recover his fees. That action was before Judge Reed, who granted dismissal without prejudice because Landsman failed to satisfy 22 NYCRR 137. Specifically, Judge Reed held that while Landsman initiated an arbitration in December 2008, he failed “to submit documentary evidence or other proof that a hearing was held before an arbitrator as mandated by 22 NYCRR 137”
In an effort to avoid this result, Katz turiis to a line of cases that holds that violation of the Judiciary Law§ 487, and other intentional torts; are not subsumed by legal malpractice claims !· ii when they arise from the same set of facts (see e.g. Sabalza v Salgado, 85 AD3d 436, 438 [1st Dept 2011] [holding that dismissal of a claim under Judiciary Law§ 487 was “not duplicative of causes of action alleging legal malpractice, since the statutory claim requires an intent to deceive, 1i whereas a legal malpractice claim is based on negligent conduct”]). Katz argues this despite the ii i! fact that the complaint does not contain a claim for violation of Judiciary Law § 487. Instead, Katz claims that he could have brought such a claim.
12. Sanko v Roth 2016 NY Slip Op 30930(U) May 17, 2016 Supreme Court, New York County Docket Number: 650025/14 Judge: Gerald Lebovits did not allow amendment of the claim to add a JL 487 claim.
“The proposed amended complaint also alleges that defendant violated Judiciary Law§ 487 by fraudulently commencing the underlying holdover and nonpayment proceedings with the intent to deceive the court, plaintiff, and the adverse parties in the proceedings. The twelfth proposed amendment is devoid of merit. Judicial Law§ 487 allows an injured party to recover treble damages from an attorney if the latter “[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party.” To state a cause of action for violating Judicial Law§ 487, a plaintiff must demonstrate that a nexus exists between defendant’s alleged conduct and any judicial determination. (Weisman, Celler, Spell & Modlin v Chadbourne & Parke, 271 AD2d 329, 330-331 [I st Dept:2000], Iv denied 95 NY2d 760 .) In its order dismissing the petition, Hon. Mark Finkelstein noted that plaintiff notified the court that he had not authorized defendant to commence the Gyllenhaal holdover proceeding on his behalf and represent him in the proceeding. Thus, in the Gyllenhaal holdover proceeding, the court was aware of defendant’s possibly unauthorized commencement of the proceeding. Defendant’s alleged deceit was not a cause of the dismissal of the Gyllenhaal holdover proceeding. And no judicial determination was made in the Albert holdover proceeding and the Albert nonpayment proceeding. The matters were not adjudicated. The Albert holdover proceeding was marked off calendar and the Albert nonpayment proceeding was settled by stipulation on the record. No nexus exists between defendant’s conduct and any judicial determination in the proceedings. Plaintiff is not entitled to leave to amend the complaint. “