Aristakesian v Ballon Stoll Bader & Nadler, P.C. 2018 NY Slip Op 07084 Decided on October 24, 2018 Appellate Division, Second Department stands for the proposition that Courts really, really shy away from allowing Judiciary Law § 487 cases to go forward. Here, the logic is that while the attorneys may have been deceitful, plaintiff already knew about it, so no harm!
“However, the Supreme Court should have directed dismissal of the second and third causes of action, alleging violations of Judiciary Law § 487. Under Judiciary Law § 487, 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 liable to the injured party for treble damages. “[V]iolation of Judiciary Law § 487 requires an intent to deceive, whereas a legal malpractice claim is based on negligent conduct” (Moormann v Perini & Hoerger, 65 AD3d 1106, 1108 [citation omitted]; see Gorbatov v Tsirelman, 155 AD3d 836, 838).
Here, the plaintiff claimed that the defendant violated Judiciary Law § 487 by representing the plaintiff in the prior action after having formerly represented Zakar in that action, and by failing to discuss this potential conflict of interest with the plaintiff. However, since the plaintiff’s complaint reveals that he was fully aware, at the time he retained the defendant, that the defendant had previously represented Zakar, his allegations do not set forth any facts from which an intent to deceive him could be inferred (see Zambito v Ryan, 125 AD2d 462; cf. Izko Sportswear Co., Inc. v Flaum, 25 AD3d 534). Accordingly, the complaint failed to state a cause of action for violations of Judiciary Law § 487 (see Ehrenkranz v 58 MHR, LLC, 159 AD3d 872, 872; Shaffer v Gilberg, 125 AD3d 632, 636; Schiller v Bender, Burrows & Rosenthal, LLP, 116 AD3d 756, 759).”