Few Judiciary Law 487 claims survive the rugged course of litigation and make it over the last hurdle.  Here, in Ginsburg Dev. Cos., LLC v Carbone  2015 NY Slip Op 09250  Decided on December 16, 2015 Appellate Division, Second Department the Second Department affirmed Supreme Court and left the JL 487 claim for trial.  Interestingly, the legal malpractice case survived in this unique non-privity case.  Put another way, the opposing party can now try the legal malpractice and JL 487 case against their opponent.  This is a unique case!

“In an action to recover damages for fraud, violation of Judiciary Law § 487, legal malpractice, aiding and abetting the breach of a fiduciary duty, aiding and abetting fraud, and negligent misrepresentation, (1) the defendants appeal from so much of an order of the Supreme Court, Westchester County (Lefkowitz, J.), dated July 8, 2013, as denied those branches of their motion which were for summary judgment dismissing the second, third, and fourth causes of action, and the plaintiff cross-appeals from so much of the same order as granted those branches of the defendants’ motion which were for summary judgment dismissing the first, fifth, and sixth causes of action, (2) the plaintiff appeals, as limited by its brief, from so much of an order of the same court, also dated July 8, 2013, as denied those branches of its motion which were for summary judgment on the issue of liability on the fourth and sixth causes of action, and (3) the plaintiff appeals, as limited by its brief, from so much of an order of the same court dated November 27, 2013, as denied its motion for leave to renew its opposition to those branches of the defendants’ motion which were for summary judgment dismissing the first, fifth, and sixth causes of action, and those branches of its prior motion which were for summary judgment on the issue of liability on the fourth and sixth causes of action.

The Supreme Court properly denied that branch of the motion of Carbone and GF which was for summary judgment dismissing the second cause of action, which alleged violation of Judiciary Law § 487. Judiciary Law § 487 provides, in part, that an attorney who “[i]s 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, additionally, “forfeits to the party injured treble damages, to be recovered in a civil action.” Here, in opposition to the prima facie showing of Carbone and GF of their entitlement to judgment as a matter of law, GDC raised a triable issue of fact as to whether Carbone and GF intentionally deceived GDC (see Moormann v Perini & Hoerger, 65 AD3d 1106, 1108).

The Supreme Court properly denied that branch of the motion of Carbone and GF which was for summary judgment dismissing the third cause of action, which alleged legal malpractice. “In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [internal quotation marks omitted]). “To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence” (id. at 442). “To succeed on a motion for summary judgment, the defendant in a legal malpractice action must present evidence in admissible form establishing that the plaintiff is unable to prove at least one of these essential elements” (Alizio v Feldman, 82 AD3d 804, 804). Here, Carbone and GF did not make a prima facie showing of their entitlement to judgment as a matter of law, since they failed to show that GDC was unable to prove at least one of the essential elements of its legal malpractice cause of action (see Mueller v Fruchter, 71 AD3d 650, 651).”