There are very few successful Judiciary Law § 487 cases.  Courts stretch and bend to find a way around what appears to be actual deceit by attorneys.  Take Matneja v Zito  2018 NY Slip Op 05298  Decided on July 18, 2018  Appellate Division, Second Department as an example.  Here it is alleged that a law firm knew that its client registered a building under a fake name, and when the owners were sued for rent overcharges, refused to tell the DHCR that the name was fake.  Deceit?  No, says the Second Department.

“In 2009, the plaintiff, a former tenant of a rent-stabilized building owned by the defendant Rosa Zito and her now deceased husband, Mario Zito, obtained an order from the Division of Housing and Community Renewal (hereinafter DHCR) for rent overpayments. While the plaintiff had named Mario Zito as the owner of the building in the rent overcharge complaint, the DHCR identified the owner during the proceeding, and in the final order, as the defendant JPR Zito, based on an inaccurate annual registration summary for the building from 2008. The defendant Horing Welikson & Rosen, P.C. (hereinafter HWR), who represented Rosa (Mario had since died) and JPR Zito throughout the proceeding, never advised the DHCR of the error. The plaintiff, who was not represented by counsel at the DHCR proceeding, did not discover the error until he attempted to enforce the order. He claims that JPR Zito does not exist and, consequently, he cannot collect any of the money awarded to him. In 2010, the plaintiff requested that the DHCR amend its order so as [*2]to reflect that the building was owned by Rosa, but the agency refused because, in 2008, the building was registered as owned by JPR Zito.

The plaintiff commenced this action against Rosa, JPR Zito, and HWR, seeking a judgment that would allow him to enforce the DHCR order against Rosa. As is relevant to this appeal, the plaintiff alleged that HWR violated Judiciary Law § 487 by failing to disclose that Rosa owned the building and allowing the DHCR to issue an unenforceable order against a nonexistent entity. HWR moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it, and in the order appealed from, the Supreme Court granted the motion. The plaintiff appeals from so much of the order as granted that branch of HWR’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it.

On a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint for failure to state a cause of action, the court must accept the facts alleged in the pleading as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; Leon v Martinez,84 NY2d 83, 87). Judiciary Law § 487 provides 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 “forfeits to the party injured treble damages, to be recovered in a civil action.” Here, under the particular circumstances of this case, and even accepting the facts alleged in the complaint as true and according the plaintiff the benefit of every possible inference, we agree with the Supreme Court’s determination to grant that branch of HWR’s motion, made pursuant to CPLR 3211(a)(7), to dismiss the complaint insofar as asserted against it (see Doscher v Mannatt, Phelps & Phillips, LLP, 148 AD3d 523, 524; Costalas v Amalfitano, 305 AD2d 202, 203-204; Hansen v Caffry, 280 AD2d 704, 705).”

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Andrew Lavoott Bluestone

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened…

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened his private law office and took his first legal malpractice case.

Since 1989, Bluestone has become a leader in the New York Plaintiff’s Legal Malpractice bar, handling a wide array of plaintiff’s legal malpractice cases arising from catastrophic personal injury, contracts, patents, commercial litigation, securities, matrimonial and custody issues, medical malpractice, insurance, product liability, real estate, landlord-tenant, foreclosures and has defended attorneys in a limited number of legal malpractice cases.

Bluestone also took an academic role in field, publishing the New York Attorney Malpractice Report from 2002-2004.  He started the “New York Attorney Malpractice Blog” in 2004, where he has published more than 4500 entries.

Mr. Bluestone has written 38 scholarly peer-reviewed articles concerning legal malpractice, many in the Outside Counsel column of the New York Law Journal. He has appeared as an Expert witness in multiple legal malpractice litigations.

Mr. Bluestone is an adjunct professor of law at St. John’s University College of Law, teaching Legal Malpractice.  Mr. Bluestone has argued legal malpractice cases in the Second Circuit, in the New York State Court of Appeals, each of the four New York Appellate Divisions, in all four of  the U.S. District Courts of New York and in Supreme Courts all over the state.  He has also been admitted pro haec vice in the states of Connecticut, New Jersey and Florida and was formally admitted to the US District Court of Connecticut and to its Bankruptcy Court all for legal malpractice matters. He has been retained by U.S. Trustees in legal malpractice cases from Bankruptcy Courts, and has represented municipalities, insurance companies, hedge funds, communications companies and international manufacturing firms. Mr. Bluestone regularly lectures in CLEs on legal malpractice.

Based upon his professional experience Bluestone was named a Diplomate and was Board Certified by the American Board of Professional Liability Attorneys in 2008 in Legal Malpractice. He remains Board Certified.  He was admitted to The Best Lawyers in America from 2012-2019.  He has been featured in Who’s Who in Law since 1993.

In the last years, Mr. Bluestone has been featured for two particularly noteworthy legal malpractice cases.  The first was a settlement of an $11.9 million dollar default legal malpractice case of Yeo v. Kasowitz, Benson, Torres & Friedman which was reported in the NYLJ on August 15, 2016. Most recently, Mr. Bluestone obtained a rare plaintiff’s verdict in a legal malpractice case on behalf of the City of White Plains v. Joseph Maria, reported in the NYLJ on February 14, 2017. It was the sole legal malpractice jury verdict in the State of New York for 2017.

Bluestone has been at the forefront of the development of legal malpractice principles and has contributed case law decisions, writing and lecturing which have been recognized by his peers.  He is regularly mentioned in academic writing, and his past cases are often cited in current legal malpractice decisions. He is recognized for his ample writings on Judiciary Law § 487, a 850 year old statute deriving from England which relates to attorney deceit.