Judiciary Law § 487 claims are unique, and arise from the oldest statute in Angol-American jurisprudence.  Often misused, the statute is infrequently applied or upheld against its target. Hersh v Weg  2015 NY Slip Op 30698(U)  April 27, 2015  Supreme Court, New York County  Docket Number: 104360/2011  Judge: Jeffrey K. Oing is a prime example.

This story serves as an antidote to a Disney-view of family life.  We’ll let Justice Oing tell the story:

“These claims arise out of an intra-family dispute essentially pitting plaintiff son against his mother. The Appellate Division, First Department reversed this Court’s decision and order, and dismissed plaintiff son’s complaint against defendants, Betty Weg, Arnold Weg, S&G Hotel Corp., and plaintiff’s sisters, Brenda and Nancy Hersh (Hersh v Weg, 105 AD3d 539 [1st Dept 2013]). Thereafter, the County Clerk entered judgment dismissing plaintiff’s complaint on June 24, 2013 (NYSCEF Doc. No. 166).

I tried defendants’ counterclaims against plaintiff before a jury. The only principal to testify on behalf of defendants was plaintiff’s 82-year old mother, Esther Rachel Hersh. At the close of defendants’ presentation of their evidence on the counterclaims, plaintiff moved to dismiss the counterclaims. After hearing arguments, I granted the motion to dismiss: `Based on what we just have [heard] of the argument I grant the motion to dismiss on the ground that I find that the counterclaim plaintiffs have failed to establish prima facie the issue of whether or not Mark Hersh and nominal [defendant] BRA had consent and authorization to enter into the transactions that were entered into during the relevant period of 2007 to 2010. As noted during the argument here from counsel and as noted by this court the key person in all of this is Betty Weg. She should have been called on the case, plaintiff’s case, to tell the court exactly what transpired to those transactions. Mrs. Hersh was not the competent witness to be called on in this case. She had no idea. Her testimony was very noncommittal, was at times unclear, at the end of the day she relied on Betty to make sure everything was running fine. At the end of the day, if Betty did something outside the scope of her authority as president of S&G corporation, that’s a claim that S&G Corporation has against Betty Weg. Unfortunately, for the corporation, Mrs. Hersh has signed a release releasing its claims arising out of this case against Betty Weg so that there is no claim against Betty Weg at this point. So all of that is gone. So that what are we left with? At the end of the day we’re left with a corporation who has no claim to anybody at this point and I find that under these circumstances the counterclaim plaintiffs have failed to establish prima facie that there was no consent and authorization. At the end of the day Betty Weg was the key critical witness that needed to be here to testify. The fact that Mr. Murtha represent[s] she’s now available to testify, that’s neither here nor there at this point. (9/23/14 Decision and Order, at pp. 235-236 [NYSCEF Doc. No. 294]). Evidently, this dismissal did not end the family dispute. Plaintiff son now seeks to add defendants’ counsel as defendants in this action so as to assert against them a Judiciary Law § 487 claim. Plaintiff also seeks the imposition of sanctions against defendant S&G for maintaining allegedly frivolous counterclaims against him.”

“Plaintiff’s motion to amend the complaint is denied. The County Clerk entered judgment dismissing the complaint on June 24, 2013. As such, any subsequent papers and proceedings are deemed a nullity given that the action is no longer pending (Floyd v Salamon Bros., 249 AD2d 139, 140 [1st Dept 1998]). In any event, the proposed amendment seeking to interpose a section 487 claim against defendants’ counsel is palpably insufficient. Section 487 provides, in relevant part: An Attorney or counselor who: 1. Is guilty of any deceit or collusion, or consents to any deceit or collusion, intent to deceive the court or any party … Is guilty of a misdemeanor, and in addition to the punishment prescribed therefor by the penal law, he forfeits to the party injured treble damages, to be resolved in a civil action. Notwithstanding the proposed allegations in the amended complaint, the record is clear — nowhere was there ever an assertion or charge made by plaintiff or his counsel that defendants’ counsel was deceiving or colluding to deceive this Court or plaintiff. Indeed, at no time during argument of the dismissal motion, with the proposed allegations at hand, did plaintiff’s counsel remotely suggest that there was collusion or deception present. Rather, I based my decision and order dismissing the counterclaims on the fact that defendants failed to establish prima facie their counterclaims. I did not ascribe any findings to defendants’ failure to call Betty Weg as a trial witness. Nor was there any factual basis for me to do so. In the end, whether to call her or not was a trial strategy decision to be made by defendants’ counsel. ”