Does a successfully pleaded Judiciary Law § 487 case require a conviction for a misdemeanor ? A recent Magistrate’s report in the Western District of New York strikingly says so. In Bounkhoun v. Barnes, the magistrate determined that no JL 487 case may lay without a misdemeanor conviction.
The First Department may not think the same way. in O’Neal v Muchnick Golieb & Golieb, P.C. 2017 NY Slip Op 03125 Decided on April 25, 2017 Appellate Division, First Department they found that Supreme Court had erred in dismissing the 487 claim. No misdemeanor prosecution, conviction, or even a mention.
“Order, Supreme Court, New York County (Shlomo S. Hagler, J.), entered on or about February 17, 2016, which, to the extent appealed from as limited by the briefs, granted defendants’ motion pursuant to CPLR 3211 to dismiss the legal malpractice claims based on the assumption of a lease and the failure to oppose summary judgment in an underlying action, the breach of fiduciary duty claims, and the Judiciary Law § 487 claims, and denied plaintiff’s application for leave to amend the complaint to add the Good Service Company, Inc. as a nominal defendant, unanimously modified, on the law, to deny defendants’ motion as to the fiduciary duty and Judiciary Law § 487 claims and so much of the malpractice claim as arose in connection with the assignment of a lease, and to grant plaintiff’s application to amend, and otherwise affirmed, without costs.
The allegation that, while representing plaintiff in the assignment-of-lease negotiations, counsel secretly represented the counterparty so as to obtain favorable terms for the counterparty, which resulted in a lower-than-market price for the assignment, states a claim for legal malpractice (see Leggiadro, Ltd. v Winston & Strawn, LLP, 119 AD3d 442 [1st Dept 2014]).”
“The allegation that defendants advised plaintiff to transfer her assets, in violation of a court order about which they had not informed her, to draw the ire of creditors so that they would seek collection against her before pursuing her co-defendants is sufficient to state a claim under Judiciary Law § 487 (see generally Kurman v Schnapp, 73 AD3d 435 [1st Dept 2010]).”