Generally speaking, there has been a stark split between the First and Second Departments over the standard for a Judiciary Law § 487 claim. In the First Department there was a requirement of a “chronic and extreme pattern of legal delinquency” and in the Second Department a single egregious incident of deceit was sufficient. Amtrust N. Am., Inc. v Pavloff 2021 NY Slip Op 31062(U) April 2, 2021 Supreme Court, New York County Docket Number: 156855/2019 Judge: Shawn T. Kelly seems to upset that distinction.
“Defendants further allege that Am Trust’s failure to establish a pattern of collusion of deceit renders the cause of action deficient. In opposition, Am Trust contends that one instance of intentional misrepresentation is sufficient to maintain a cause of action under Judiciary Law § 487.
Defendants rely upon Solow Mgmt. Corp. v Seltzer, in which the First Department stated that because the complaint “set forth but one arguable misrepresentation by defendant and accordingly does not allege a cognizable claim under Judiciary Law§ 487, which provides
recourse only where there is a chronic and extreme pattern of legal delinquency (see Jaroslawicz v Cohen, 12 AD3d 160 ; Havel! v Islam, 292 AD2d 210 ).” (Solow Mgmt. Corp. v Seltzer, 18 AD3d 399, 399-400, 795 NYS2d448 ).
However, the Second Circuit specifically declined to follow the Solow line of cases, stating that the requirement that the plaintiff in a section 487 action show “a chronic and extreme pattern” of legal delinqulency by the defendant “appears nowhere in the text of the statute,
however, and other courts have found attorneys liable under the statute for a single intentionally deceitful or collusive act.” (Amalfitano v Rosenberg, 533 F.3d 117, 123~24 (2d Cir.), certified question accepted, 11 NY3d 728, 894 NE2d 643 (2008), and certified question answered, 12 NY3d 8, 903 NE2d 265 ). The statute’s plain language does not establish that a pattern of deceit. is required to maintain a cause of action under section 487.
The deceit required to establish a section 487 claim requires the making of an affirmative false statement with knowledge of falsity and with an affirmative intent to deceive. (see Bill Birds v Stein Law Firm, P.C., 126 NYS3d .50, 53 (2020]). Defendants have not established
Am Trust’s failure to state a cause of action, on the contrary, the factual allegations are sufficient to demonstrate that Pavloff s alleged, misrepresentation, though limited in context to the question
of whether she had reviewed or received the Conservation Order, was not a one-off statement, but rather included conversations she had with the court as well as further representations made under oath while being deposed. Accordingly, Defendants’ motion to dismiss the Judiciary Law § 487 claim is denied.”