It’s rare to see a Judiciary Law § 487 Claim; even rarer to see one that survives motion practice.  Gerard Fox Law, P.C. v Vortex Group, LLC  2019 NY Slip Op 32065(U)  July 9, 2019
Supreme Court, New York County  Docket Number: 654794/2018  Judge: Andrew Borrok is a case which makes the successful leap.

“This is an action for breach of fiduciary duty, fraud, negligent misrepresentation, and professional negligence brought by Gerard Fox Law, P.C. (Gerard Fox) against its former real
estate broker, the Vortex Group, LLC (Vortex). Vortex asserts counterclaims for fraud and
violation of Judiciary Law§ 487. Gerard Fox moves pursuant to CPLR §§ 3016 and 3211 (a) (7)
to dismiss Vortex’s counterclaims in their entirety. For the reasons set forth below, the motion is granted. ” [But read below]

“Second Counterclaim: Judiciary Law § 487 
To state a cause of action for violation of Judiciary Law § 487, a party must plead intentional
deceit and damages proximately caused by the deceit (Judiciary Law§ 487; Jean v Chinitz, 163
AD3d 497, 497 [1st Dept 2018]). To be actionable, the alleged deceit must have occurred during a pending judicial proceeding (US Suite LLC v Baratta, Baratta &Aidala LLP, 171AD3d551,  551 [1st Dept 2019]). Allegations of deceit or an intent to deceive must be stated with particularity (CPLR § 3016 [b]; Facebookv DLA Piper LLP (US), 134 AD3d 610, 615 [1st Dept
2015]). Where a cause of action under Judiciary Law§ 487 is based on allegations of false
statements in pleadings, a party may prevail by establishing that “the lawsuit could not have gone forward in the absence of the material misrepresentation, [and] that party’s legal expenses … may be treated as the proximate result of the misrepresentation” (Amaltifano v Rosenberg, 12 NY3d 8, 15 [2009]).

This counterclaim is based on Gerard Fox’s statements made in its complaint and in its
opposition to Kato’s motion for summary judgment in a related action (Answer, iJ 196). Vortex
asserts that Gerard Fox knowingly made several false statements concerning the underlying
events in this matter as contrived predicates for its claims with the intent to deceive the Court.
For example, Paragraph 2 of the Complaint provides:

Specifically, in the Fall of 2015, [Gerard Fox] sought to lease space with room for
five to six offices and a conference room, within its monthly budget of $28,000-
$30,000. [Gerard Fox] spelled out its needs and budget in writing, and reinforced
those points during lengthy face-to-face meetings. Vortex, however, had a
difference agenda. Viewing [Gerard Fox] as an out-of-town “yokel” it could work
for a fat commission, Vortex upsold [Gerard Fox] from the get-go. Vortex
exclusively presented options far outside of [Gerard Fox’s] price range, including
a space in “Tower 49,” located at 12 East 49th Street, New York, New York. To
encourage [Gerard Fox] to rent office space beyond its budget, Vortex represented
falsely that the rent was below-market and a great deal.

The documentary evidence reveals that these statements, which reflect the gravamen of Gerard Fox’s allegations, are not only misleading, but also demonstrably false. Vortex’s space report, which sets forth the properties that Vortex presented to Gerard Fox, illustrates that 10 of the 12 properties were within Gerard Fox’s stated budget (NYSCEF Doc. Nos. 28, 29). Therefore, this  lawsuit is premised on material misrepresentations of fact and, as a proximate result of those misrepresentations, Vortex was compelled to defend the action and incur legal fees. Assuming Vortex’s allegations to be true and affording Vortex every favorable inference, the counterclaim for violation of§ 487 is adequately pled to survive dismissal. “

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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 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.