Judiciary Law 487, which was recently the subject of a Court of Appeals Case in Melcher,  is a difficult claim to prove.  It requires proof of an attorney’s intent to deceive the Court or the parties, and is viewed with a very jaundiced eye by the Courts. Agai v Liberty Mut. Agency Corp.  2014 NY Slip Op 04455 [118 AD3d 830]  June 18, 2014  Appellate Division, Second Department is an example of a JL 487 claim lost on documentary grounds.

The instant action concerns a dispute regarding the disposition of the collateral for a bond that was posted in connection with an appeal from a judgment in a prior action between the parties. In the prior action (hereinafter the note action), the plaintiff, Jacob Agai, sought to recover on a promissory note that was issued in his favor by the defendants Dennis Mihalatos and Diontech Consulting, Inc. (hereinafter Diontech) in connection with a $500,000 loan. In the note action, the Supreme Court, in an order dated March 11, 2008, granted Agai’s motion pursuant to CPLR 3213 for summary judgment in lieu of complaint, and judgment was entered thereon. Mihalatos and Diontech appealed, and this Court ultimately reversed the judgment and denied the motion for summary judgment (see Agai v Diontech Consulting, Inc., 64 AD3d 622 [2009]).

In connection with the appeal in the note action, Mihalatos and Diontech together [*2]filed a bond with the Supreme Court. The bond was guaranteed by Liberty Mutual Insurance Corporation, sued herein as Liberty Mutual Agency Corporation, doing business as Ohio Casualty Insurance Company (hereinafter Ohio Casualty). It is undisputed that, subsequent to this Court’s determination in Agai v Diontech Consulting, Inc. (64 AD3d at 622), the attorney representing Mihalatos and Diontech in the note action, Peter Kutil of King & King, LLP, obtained, from Ohio Casualty, the return of the collateral for the bond.

Agai then commenced the instant action, inter alia, to recover damages pursuant to Judiciary Law § 487 against, among others, Ohio Casualty, Kutil, and King & King, LLP.

The Supreme Court also properly directed the dismissal of the complaint insofar as asserted against Kutil and King & King, LLP (hereinafter together the Kutil defendants), based on documentary evidence, which included the bond itself (see CPLR 3211 [a] [1]; Fontanetta v John Doe 1, 73 AD3d 78, 86 [2010]). Since the bond, by its terms, was an appeal bond obtained pursuant to CPLR 5519 (a) (2), and since the bond was extinguished upon this Court’s determination of the appeal in the note action in favor of Mihalatos and Diontech, the Kutil defendants could not have acted with the "intent to deceive the court or any party" in violation of Judiciary Law § 487 (1) when they caused the collateral to be returned to Mihalatos and Diontech (see Dupree v Voorhees, 102 AD3d 912, 913 [2013]). Further, the Supreme Court properly directed the dismissal of the remaining causes of action, which were to recover damages based on violations of the Debtor and Creditor Law, unjust enrichment, pursuant to CPLR 5225, and on other equitable grounds, based upon the same documentary evidence (see Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 182-183 [2011]; Federal Deposit Ins. Corp. v Porco, 75 NY2d 840, 842 [1990]; Nanomedicon, LLC v Research Found. of State Univ. of N.Y., 112 AD3d 594, 598 [2013]; D’Mel & Assoc. v Athco, Inc., 105 AD3d 451, 452 [2013]; Pesa v Dayan, 104 AD3d 662, 663-664 [2013]). Accordingly, the Supreme Court properly granted the Kutil defendants’ motion to dismiss the entire complaint insofar as asserted against them, based on the [*3]documentary evidence."