Judge Ruchelsman spends time peeling back the onion layers in Woodcock v Birnbaum
2018 NY Slip Op 32841(U) November 7, 2018 Supreme Court, Kings County Docket Number: 507014/18 to come to the decision on whether there was a violation of Judiciary Law § 487.  Eventually, he finds that arguments were insufficient, but not deceitful.

“During the fall of 2011 the plaintiff and Ingo Nowottny incorporated an entity called Century First Credit Solutions lnc . , [hereinafter ‘ CFCS’) and each was a fifty percent owner of that entity . On December 22 , 20 11  Ingo Nowottny formed nominal defendant United Credit Solutions, Inc . , [hereinafter ‘ UCS ‘ ) . On March 1 , 2012 Woodcock purchased half the shares of UCS and thus
became equal shareholders in both corporat i ons . On November 6, 2014 Nowottny ‘ s sister formed another entity, the similarly called United Credit Solvers, Inc ., and then entered into an agreement to purchase some of the assets and book of business of UCS . The relationship between Nowo ttny and Woodcock soured and Woodcock formed another entity Named Priority Capital LLC to
compete with Nowottny without Nowottny ‘ s ownership interests.

Indeed, both Nowottny and Woodcock accused the other of stealing proprietary information from their joint corporations and utilizing the information in their wholly owned corporations. First , on August 25 , 2015 Woodcock through counsel sent Nowottny  a cease and desist letter accusing Nowottny of representing to clients that United Credit Solvers is really UCS and demanding
Nowottny discontinue this activity. A few days later a lawsuit was filed in an action entitled Century First Credit Solutions Inc. , v . Priority Capital LLC , Christian Woodcock and John Amato ,
Index Number 653287/2015 in New York County . In that action , the plaintiff Century First Credit Solutions Inc . , owned by Nowottny, sued Woodcock, alleging he misappropriated trade secrets,
converted corporate funds and tortuously interfered with contractual relations, among other claims.  Specifically , the complaint alleged Woodcock and John Amato , a former  sales representative and independnt contractor of CFCS , formed Priority Capital LLC and utilized the information misappropriated in the new entity . Woodcock filed a third party complaint against Nowottny and his brother William Nowottny alleging they interfered with Priority and actually fraudulently represented themselves as employees of Priority to steal Priority’ s business
for their own businesses. ”

“Lastly, concerning Judiciary Law §487, it is well settled that to establish such a cause of action the plaintiff must present evidence an attorney acted “with intent to deceive” either the court or any party (see, Moormann v. Perini Hoerger, 65 AD3d 1106, 886 NYS2d 49 [2d Dept . , 2009]). The allegations concerning the deception must be pled with particularity (Betz v . Blatt, 160 AD3d 696 , 74 NYS3d 75 [2d Dept ., 2018]).

First, it must be noted that the Second Department no longer maintains a cause of action pursuant to Judiciary Law §487 based upon an attorney’s egregious, extreme or chronic delinquent activities. Rather, “the only liability standard recognized in Judiciary Law §487 is that of an intent to deceive” (Dupree v . Vorhees, 102 AD3d 912 , 959 NYS2d 235 [2d Dept. , 2013]) .

Second, considering the intent to deceive, such intent can hardly be demonstrated . Indeed, GM acknowledged to the court as well as to the plaintiff that such representation was being undertaken . In Judge Bannon’ s decision dated January 25 , 2017, she noted that in opposition to the motion to disqualify the plaintiff there, CFCS argued that “Woodcock is only a former client of Greenspoon Marder, that any representation of Woodcock in Florida was only provided in connection with Woodcock role as a 50% owner of Century, that personal representation of Woodcock by Greenspoon Marder in Florida , if any, was not substantially related to the instant matter” (supra). Thus, GM ‘ s representation in the New York matter was not ‘ deceptive ‘ in any manner, rather, GM simply argued the representation was not legally proscribed. While they failed to prevail upon such argument , which comprises the causes of action as noted, they did not engage in any decept ion or any deceptive practices.

Therefore , the motions seeking to dismiss t he claims based upon Judiciary Law §487 are hereby granted . “