Datatreasury Corp. v Del Col; 2012 NY Slip Op 31913(U); July 5, 2012; Sup Ct, Suffolk County
Docket Number: 11-26774; Judge: John J.J. Jones Jr represents a very unusual use of Judiciary Law 487.  It comes mid-case in a commercial setting.

Judge Jones writes: "As is relevant to the instant action, Del Col, in an attorney affirmation dated January 20,2011, submitted in support of applications for an order to show cause and a temporary restraining order (TR 0) in the underlying case, affirmed that he was the attorney for Mitchael Trimarco and was seeking an ex parte order, without prior notice to defendant Data Treasury and nonparties Keith DeLuca, Shepard Lane, and Claudia Ballard, pursuant to 22 NYCRR 202.7 on the basis that such notice would significantly prejudice Trimarco. The bases for prejudice to Trimarco, according to Del Co ’s affirmation, were that Data Treasury was fleeing the jurisdiction; that Data Treasury was in violation of court orders and secreting its assets; that Data Treasury had tampered with witnesses; and that Data Treasury would further obstruct and impair Trimarco’s ability to recover if advance notice was given. A TRO was thereafter granted ex parte by order dated January 21,201 1 (Gazzillo, J.). The order enjoined Data Treasury and nonparties DeLuca, Lane, and Ballard, the alleged principals of IData Treasury, among other things, from selling, disposing, transferring, and diluting personal property and corporate assets of Data Treasury. It also prohibited Nix, Patterson & Roach, a law firm in Texas, from dispersing any monies or things of value to Data Treasury or its principals pending further order of the Court. Thereafter, the Appellate Division, Second Department, vacated the temporary restraining order.
    Subsequently, plaintiff Data Treasury commenced this action against Del Col seeking damages
pursuant to Judiciary Law 8 487 for attorney misconduct."

"Judiciary Law $ 487 applies only to wrongful conduct by an attorney in an action that is actually
pending (Mahler v Campagna, 60 AD3d 1009,876 NYS2d 143 [2d Dept 20091; see Tawil v Wasser, 21 AD2d 948, 801 NYS2d 619 [2d Dept 20061). Deception of a court is not confined to the actual
appearance in court, but may include any statement, oral or written, made with regard to a  proceeding brought or to be brought therein and communicated to the court with intent to deceive (Cinao v Rem, 27 Misc3d 195, 893 NYS2d 851 [Sup Ct Kings County 2010). A violation of Judiciary Law 487 permits the imposition of treble damages for certain attorney misconduct. Such violation may be established by either the defendant’s deceit or by a chronic, extreme pattern of legal delinquency by the defendant (Cinao v Reers, supra). When a party commences an action grounded in a material misrepresentation of fact, the opposing party is obligated to defend or default and necessarily incurs legal expenses. As such, the party’s legal expenses in defending the lawsuit may be treated as the proximate result of the misrepresentation (Amalfitano v Rosenberg, 12 NY3d 8, 874 NYS2d 868 [2009]). An attorney who 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 is liable for treble damages to the party injured (Amalfitano v Rosenberg, supra). The elements of a deceit claim are essentially the same elements that constitute a cause of action for fraud, namely representation, falsity, scienter, deception and injury (Morris v. Rochdale Village, Inc., 201 1 NY Slip Op 33315U [Sup Ct Queens County 2011).   CPLR 6301 provides that a temporary restraining order may be granted pending a hearing for a preliminary injunction where it appears that immediate and irreparable injury, loss or damage will result unless the defendant is restrained before the hearing can be had. Unlike a preliminary injunction,  where an undertaking is mandated by statute (CPLR 6212[b]), the posting of an undertaking prior to issuance of a TRO is discretionary with the court (CPLR 63 13 [c]) (see Napoleon Art & Production, Inc. and Code Films, Inc. v Laughlin, 14 Misc3d 1226A, 836 NYS2d 494 [Sup. Ct. New York County 20071). The granting of a TRO in an order to show cause without notice to the opposing party deprives the  party of the opportunity to argue that an undertaking is warranted, neutralizing the defendant at the discretionary phase (Napoleon Art & Production, Inc. and Code Films, Inc. v Laughlin, supra).