In a puzzling case, Mohyi v Karen G. Brand, P.C2017 NY Slip Op 30185(U) January 27, 2017
Supreme Court, New York County Docket Number: 157823/15 Judge: Debra A. James disposed of a Judiciary Law § 487 claim, allowing the case to continue on other claims.  In this electronic age of papers, and the sparsity of a “court file” we wonder what kind of papers could be “removed” by an attorney during a case?

“This action arises out of Brand’s alleged employment of plaintiff Diana T. Mohyi (Mohyi) as an attorney, of counsel, to Brand’s office in a matrimonial action, during the course of which Mohyi was arrested. Mohyi claims that, on January 24, 2014, in such matrimonial action, when she appeared before this court (Kaplan, J.), of counsel, to attorneys of record Brand’s office, she was arrested for improperly removing documents from the court file. Mohyi asserts that Brand had initially told her that she could remove the documents, but later denied that Mohyi had any connection with Brand’s office. As a result, Moyhi was charged with misdemeanor counts by the Manhattan District Attorney’s office, although those charges were eventually dismissed. ”

“Mohyi’s first cause of action alleges malicious prosecution. The Appellate Division, First Department, notes that: The tort of malicious prosecution requires proof of each of the following elements: ‘(1) the commencement or continuation of a . . . criminal proceeding by the defendant against the plaintiff, (2) the termination of the proceeding in favor of the [plaintiff], (3) the absence of probable cause for the . . . proceeding and (4) actual malice.’ Additionally, a plaintiff must also allege and prove ‘special injury’ [internal citations omitted]. Facebook, Inc. v DLA Piper LLP (US), 134 AD3d 610, 613 (1st Dept 2015). ”

“Mohyi’s final cause of action alleges violation of Judiciary Law§ 487. That statute provides that:

An attorney or counselor who: 1. Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party; or, 2. Wilfully delays his client’s suit with a view to his own gain; or, wilfully receives any money or allowance for or on account of any money which he has not laid out, or becomes answerable for, 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 recovered in a civil action.

Brand again raises a number of arguments in favor of dismissal of this statutory claim. First, Brand argues that, “in order to be actionable, the alleged misconduct must occur in a court proceeding in which the plaintiff is a party,” and Mohyi was not a party to the matrimonial action, during the course of which she was arrested. Mohyi responds that this argument is misplaced, since Brand’s alleged misconduct took place during Mohyi’s criminal prosecution, an action to which she most certainly was a party. Since the complaint plainly alleges as much, the court agrees, and reject’s Brand’s first dismissal argument.

Next, Brand argues that Mohyi’s Judiciary Law§ 487 cause of action should be dismissed because it does not allege that she [Brand] engaged in misconduct during the course of representing a client in litigation and, in fact, she did not represent Mohyi in the criminal prosecution. Brand cites the decision of the Appellate Division, Second Department, in Crown Assoc., Inc. v Zot, LLC (83 AD3d 765 [2d Dept 2011]), which held that “the amended complaint failed to allege that [the defendant] was acting in his capacity as an attorney, and ‘the mere fact that a wrongdoer is an attorney is insufficient to impose liability [internal citations omitted].'” Id., at 768. Mohyi counters that “a successful claim for violation of Judiciary Law § 487 does not require that the attorney have represented the party bringing the claim,” and asserts that such a claim succeeds where “the attorney’s statements rose to the level of advice, as they did here.”

“The allegations of plaintiff’s complaint make it clear that Brand was acting merely as a witness, and not in her capacity as an attorney. In light of the fact that Brand was a witness who happened to be an attorney, her purportedly malicious actions were outside the ambit of Judiciary Law§ 487. Crown Assoc., Inc. v Zot, LLC, 83 AD3d at 768. Mohyi’s assertion that Brand’s purportedly fraudulent statements to the Manhattan District Attorney “rose to the level of advice,” in addition to being speculative, cannot overcome the fact of Brand’s status as a witness.”