Familiarity breeds contempt; so goes the aphorism.  In the years since the Court of Appeals decided  Amalfitano v. Rosenberg the use of Judiciary Law 487 has been trending.  Is it now overexposed?  Will we see it in every legal malpractice setting?  Will it be invoked as often as Rule 130?

Herschman v. Kern, Augustine, Conroy & Schoppmann, 2012 NY Slip Op. 31988(U), Justice Madden is a current example.  The case reads very badly for plaintiff, who makes a legal malpractice claim as well as a Judiciary Law 487 claim.  Both are dismissed.

"Although the statute does not expressly require a pattern of chronic delinquency, in certain instances, the Appellate Division, First Department, has made it a prerequisite to recovery (Dinhofer v. Medical Liability Mut. Ins. Co. 92 AD3d 480 [l“Dept 20121; Nason v. Fisher, 36 AD3d 486 [1st Dept 20071, but see, Amalfitano v. Rosenberg, 533 F3d 1 17 [2d Cir ZOOS]). Here, the complaint contains insufficient allegations of chronic delinquency or a pattern of misconduct.
Moreover, Herschman’s claims under Judiciary Law 5 487 fail to allege the type of intentional,
egregious conduct required to permit recovery under the statute. Judiciary Law Section 487 concerns
intentional deception, and not merely negligence (Specialized Indus. Services Corp. v. Carter, 68
AD3d 750 [2d Dept 20091; Scarborough v Napoli, Kaiser & Bern, LLP, 63 AD3d 153[4th Dept]], rearg. denied, 66 AD3d 1.50 [2009]). In this connection, Herschman does not indicate that one of the defendants, or anyone else from the firm, specifically represented to him that KACS was performing work concerning the Medicare investigation after December 10,2008, when Herschman states the file was sent to storage."

"The claim under Judiciary Law 487 must be dismissed."