Surely the longest running Judiciary Law§ 487 case known to man, Melcher v Greenberg Traurig LLP 2018 NY Slip Op 06310 Decided on September 27, 2018 Appellate Division, First Department has been modified and sent back to Supreme Court for trial. Previously it had been severely clipped and stripped of most of the damage claims by Supreme Court.
“In the present action, Melcher seeks to recover treble damages against Corwin on the theory that Corwin, by propounding the allegedly fabricated 1998 writing on behalf of Fradd and AMFM in the Apollo action, engaged in “deceit or collusion, or consent[ed] to . . . deceit or collusion, with intent or deceive the court or any party” (Judiciary Law § 487). Before us is Melcher’s appeal from, inter alia, Supreme Court’s order granting Corwin’s motion in limine to the extent of excluding the testimony of two of Melcher’s expert witnesses, Jonathan Lupkin and James Lynch. We note that, contrary to Corwin’s contention, the order determining the motion in limine is appealable because it involves the merits of the controversy and affects a substantial right (see Credit Suisse First Boston v Utrecht-America Fin. Co., 84 AD3d 579, 580 [1st Dept 2011]).
Initially, we find that the court’s preclusion of Lynch’s testimony should be affirmed. Melcher proposes to call Lynch to testify to the calculation of the difference in value between the judgment he obtained against the insolvent AMFM and the lesser amount he received in his subsequent settlement with Fradd. It is, however, entirely a matter of speculation whether the Apollo action would have been resolved while AMFM was still solvent had the 1998 writing not been propounded. Accordingly, that theory of damages, in support of which Melcher proposes to call Lynch to testify, does not afford Melcher a proper basis for recovery (see Feldman v Jasne, 294 AD2d 307 [1st Dept 2002]). Since Lynch’s testimony is not offered for any other purpose, it was properly precluded.
Melcher’s other expert witness, Lupkin, prepared a report calculating the attorneys’ fees and other costs Melcher incurred in litigating the Apollo action (excluding certain costs concededly not related to the 1998 writing) beginning from 19 different points in time during the litigation [FN2]. According to Lupkin, the factfinder in this case, based on whichever of these 19 points in time it determines to have been the point at which Corwin learned that the 1998 writing was fabricated, should award Melcher the corresponding damages figure as the amount of the excess legal costs he incurred by reason of Corwin’s alleged deceit. Although, for the reasons discussed below, the damages calculation in Lupkin’s report cannot be endorsed (even assuming that Melcher proves that Corwin violated Judiciary Law § 487), we conclude, substituting our [*3]discretion for that of Supreme Court, that Melcher should not be precluded from calling Lupkin to testify at trial.”
“In view of the foregoing, the potential damages figures proposed in Lupkin’s report — each of which assumes that Melcher may recover all of his costs in litigating the Apollo action (excluding only the costs he would have incurred in calculating damages even if a default judgment had been entered in his favor) from the time Corwin learned that the 1998 writing was fabricated, through the end of the case — do not constitute proper bases for recovery. Nonetheless, we are cognizant of the “evident intent [of Judiciary Law § 487] to enforce an attorney’s special obligation to protect the integrity of the courts and foster their truth-seeking function” (Amalfitano, 12 NY3d at 14; see also Specialized Indus. Servs. Corp. v Carter, 99 AD3d 692, 693 [2d Dept 2012] [noting that the statutory remedy is “designed . . . to deter” attorneys from “betraying” this obligation]). Accordingly, we exercise our discretion to modify Supreme Court’s order to permit Melcher to call Lupkin to testify as an expert witness on damages at trial, with the proviso that his testimony be limited to the assessment of the excess legal costs that Melcher was required to incur, during the period beginning February 17, 2004, [*4]and ending May 11, 2009, as the proximate result of any violation of Judiciary Law § 487 by Corwin that the factfinder may find to have occurred, as discussed above.”