Last week we reported a cataclysmic event in Judiciary Law 487.  It was Magistrate Scott’s report and recommendation  in Bounkhoun v. Barnes, 15-cv-631A. District Judge Richard Arcara is presiding over the case.  He wrote:  “Where does all of the above analysis leave plaintiff? Plaintiff has pled that defendants ignored her desire to settle her case, and walked away from ongoing negotiations without her knowledge. Plaintiff has pled further that defendants engineered a high-low agreement at trial that essentially gave their costs higher priority than her permanent loss of an eye. Whatever proof might emerge at discovery, the claim of legal malpractice in the amended complaint—Count IV, which defendants have not moved to dismiss—would appear to cover the full range of plaintiff’s allegations. The Court is not aware of any prosecution of defendants under Section 487, and plaintiff in any event has not pled nearly enough detail to show that defendants might have fulfilled all of the elements of Section 487 and might be guilty of a misdemeanor. Without fulfillment of the elements of a criminal offense under Section 487, and a resulting conviction, this case presents no criminal prerequisite that treble damages can be “in addition to.”

Under these circumstances, Count III of the amended complaint fails, and the Court thus recommends granting defendants’ motion with respect to Count III. Since Count III fails as a matter of law, the Court need not address plaintiff’s arguments about the need to obtain discovery.”

But, does the case law support such a radical position?  We wonder, and took a quick look at some of the older cases.  Take, for example  Specialized Industrial Services Corp. v Carter, 2008 NY Slip Op 32079(U)   July 23, 2008   Supreme Court,   Suffolk County   Docket Number: 0016955/2007   Judge: John J.J. Jones.

Sure, it’s a lower court decision, but take a look at this language:

“Section 487 of the Judiciary Law, entitled “Misconduct by attorneys,” provides in pertinent part: “An attorney or counselor who: 1. Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party; Is guilty of a misdemeanor, and in addition to the punishment prescribed therefore by the penal law, he forfeits to the party injured treble damages, to be recovered in a civil action.” A criminal conviction is not a condition precedent to bringing a civil action pursuant to Judiciary Law $487 but the plaintiff must allege and prove that the attorney engaged in a “chronic, extreme pattern of legal delinquency” (Schindler v Issler & Schrage, P. C., 262 AD2d 226,228,262 NYS2d 361,362 [lst Dept 19991, lv dismissed 94 NY2d 791, 700 NYS2d 422 [1999], rearg denied 94 NY2d 859,704 NYS2d 534 [1999] [quoting Wiggin v Gordon, 115 Misc 2d 1071,1077,455 NYS2d 205 (Civ Ct, Queens County 1982)).  Here, after a review within the four corners of the complaint, the amended complaint and the supporting affidavits, the court finds ample support for the allegation that Carter was engaged in a larger fraudulent scheme than merely the attempt to procure a single judgment in a single case, that is; an “extreme pattern of legal delinquency” (id.). The plaintiff has sufficiently alleged, to withstand a motion to dismiss pursuant to CPLR 321 l(a)(7) for failure to state a cause of action, that Carter engaged in such a pattern of legal delinquency which included knowingly engaging in acts of deceit or collusion with the intent to deceive the court or a party (see Judiciary Law $487). Accordingly, that part of the defendant Carter’s motion which seeks dismissal of the cause of action for violations of Judiciary Law $487 for failure to state a cause of action is denied.

We’ll revisit this issue again in the coming days.  We’ll report if the Magistrate’s report is approved by the District Judge.