When the Judiciary Law 487 Statute Begins to Run
Melcher v Greenberg Traurig, LLP 2013 NY Slip Op 00256 Decided on January 17, 2013
Appellate Division, First Department is extraordinary. It's special for the facts, and for two holdings and the re-statement of a much overlooked principal all seriously affecting calculation of the statute of limitations. Now settled is the correct S/L statute for Judiciary Law 487, and whether there is a discovery statute applied. Note the names of the appellate players.
First: An "action to recover upon a liability, penalty or forfeiture created or imposed by statute . . ." must be commenced within three years (CPLR 214). A cause of action under Judiciary Law § 487 is purely statutory in nature and therefore subject to the three-year statute of limitations. Judiciary Law § 487 "is a unique statute of ancient origin in the criminal law of England" (Amalfitano v Rosenberg, 12 NY3d 8, 14 ).
From the dissent: While we previously held that a cause of action pursuant to Judiciary Law § 487 did not give rise to "a unique form of liability unknown at common law," and was thus governed by a six-year statute of limitations (Guardian Life Ins. Co. of Am. v Handel, 190 AD2d 57, 62-63 [1st Dept 1993]), it is now well settled that Judiciary Law § 487 "is not a codification of a common-law cause of action for fraud. Rather, section 487 is a unique statute of ancient origin in the criminal law of England" (Amalfitano v Rosenberg, 12 NY3d 8, 14 ). Accordingly, pursuant to CPLR § 214(2), a cause of action pursuant to Judiciary Law § 487 is "an action to recover upon liability, penalty or forfeiture created or imposed by statute," and is thus governed by a three-year statute of limitations.
Second: An action seeking damages under Judiciary Law § 487 must be commenced within the longer of three years from the time of the underlying deceit or collusion or within two years from the time the deceit or collusion was discovered, or with reasonable diligence, could have been discovered (CPLR 214; see CPLR 203[g]; cf. Sargiss v Magarelli, 12 NY3d 527, 532 ).
Third: Causes of action do not necessarily accrue at the time of occurrence; they may accrue later when all facts necessary have occurred including damage. "A cause of action accrues, for the purpose of measuring the period of limitations, when all of the facts necessary to the cause of action have occurred so that the party would be entitled to obtain relief in court" (Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 221  [internal quotation marks omitted]).