Despite the writing of one of the biggest names in legal circles, Appellant got absolutely nowhere in challenging Judge Kornreich.  As she is retiring, this may be one of her last opinions.

Shawe v Elting  2018 NY Slip Op 03644  Decided on May 22, 2018  Appellate Division, First Department is an example of how the First Department handles JL § 487 cases.  In the First Department, more than a single instance of deceit is required, and it better be “egregious.”

“Moreover, our rulings in Elting v Shawe (129 AD3d 648 [1st Dept 2015]) and Elting v Shawe (136 AD3d 536 [1st Dept 2016]), in which we held that the payroll access and corporate ownership assertions, made in support of the TRO and preliminary injunction applications in the 2014 action, were not material, collaterally estop Shawe from relying on those misstatements. Since those misstatements form the entire basis of Shawe’s current malicious prosecution claim, collateral estoppel constitutes a second, independent basis for dismissal of that cause of action.

The payroll access misstatements likewise form a substantial portion of Shawe’s current claim for violation of Judiciary Law § 487. Given especially that Elting was granted a TRO, the payroll access misstatements, which we have determined to be immaterial, “were not sufficiently egregious to support this claim” of § 487 violation (Mintz v Rosenberg, Minc, Falkoff & Wolff, LLP, 53 Misc 3d 132{A} [App Term 1st Dept 2016]). Shawe’s allegations that the attorney defendants deceptively backdated a retainer agreement primarily relates to privilege assertions in the Delaware action, and not in New York, and, as such, is not actionable under § 487 (see Doscher v Manatt, Phelps & PhillipsLLP, 148 AD3d 523, 524 [1st Dept 2017]). The remaining basis of Shawe’s claim under § 487 — the allegedly knowing filing of a baseless defamation counterclaim — is a “single alleged act of deceit … not sufficiently egregious to support a claim under” § 487 (Strumwasser v Zeiderman, 102 AD3d 630, 631 [1st Dept 2013]).”