Personal injury law is rife with violations of the Judiciary Law.  Cases over the years have identified “runners” who go to accident sites and hospital ERs to get clients, payments of cash to clients, promises to “fund” the case and improper solicitations.  Ginarte Gallardo Gonzalez & Winograd, LLP v Schwitzer  2019 NY Slip Op 33275(U) November 4, 2019 Supreme Court, New York County Docket Number: 159991/2018 Judge: James E. d’Auguste is the latest case to be heard, and it asks the question of whether this conduct supports a Judiciary Law §487 claim.  Here, it does not.

“The complaint alleges that beginning in June 2018, several of plaintiff’s clients, all of whom had previously executed retainer agreements, substituted the Schwitzer Firm or the Garcia Firm for plaintiff (id., iii! 31-33). The complaint alleges that plaintiff had referred each of those clients to the same pain management specialist, “Dr. X,” that defendants  met with plaintiff’s clients at or near Dr. X’s office, and that defendants improperly solicited or enticed plaintiff’s clients to substitute the Schwitzer Firm or the Garcia Firm as legal counsel (id., iii! 34-35). Pena and Gomez accompanied each client to the Schwitzer Firm’s office, where they met with Schwitzer, Merlino, Semel-Weinstein, and Diamond (id., iii! 36-37). The complaint further alleges that defendants offered to pay each client $2,000 or $3,000, help them obtain financing for their cases, and arrange transport to and from their medical appointments as part of a concerted effort to persuade them to terminate their retainers with plaintiff (id., if 35). The complaint asserts that defendants purportedly told plaintiff’s clients that plaintiff was ill-equipped or incompetent to handle their cases, that plaintiff was a “thief’ or “the biggest thief,” that plaintiff lied and stole its clients’ money, and that plaintiff was the equivalent of “doctors that kill you” (id.). ”

“The second cause of action is grounded upon an alleged violation of Judiciary Law§ 487. Defendants argue the claim must fail because it was not pled with the requisite particularity describing defendants’ intentional deceit or egregious conduct. Plaintiff posits that its submissions establish a pattern of wrongdoing and deceit.

Judiciary Law § 487 provides, in part, that an attorney who is “guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party … forfeits to the party injured treble damages, to be recovered in a civil action.” The statute focuses
on the intent to deceive (see Amalfitano v Rosenberg, 12 NY3d 8, 14 [2009]). Thus, a plaintiff must plead the attorney’s intentional deceit damages caused by the deceit (see Doscher v Mannatt, Phelps & Phillips, LLP, 148 AD3d 523, 524 [1st Dept 2017]). The alleged deceit must be directed at the court or must occur during a pending judicial proceeding (see Costalas v Amalfitano, 305 AD2d 202, 204 [1st Dept 2003]). It must be shown that the alleged deceit “reaches the level of
egregious conduct or a chronic and extreme pattern of behavior” (Savitt v Greenberg Traurig, LLP, 126 AD3d 506, 507 [1st Dept 2015] [internal quotation marks and .citation omitted]; but see Dupree v Voorhees, 102 AD3d 912, 913 [2d Dept 2013]). The allegations must be pied with particularity (see Facebook, Inc. v DLA Piper LLP (US), 134 AD3d 610, 615 [1st Dept 2015], Iv denied 28 NY3d 903 [2016]).

As an initial matter, the statute does not apply to non-attorneys, such as the Individual Defendants (see Neroni v Follender, 137 AD3d 1336, 1338 [3d Dept 2016], appeal dismissed 27 NY3d 1147 [2016], rearg denied 28 NY3d 1024 [2016]). Accordingly, the second cause of action
is dismissed against them.

As to the remaining defendants, the second cause of action is also dismissed. Relief under the statute is available only to a plaintiff who was a party in a pending judicial proceeding (see Costa/as, 305 AD2d at 204). While the statute does not limit recovery only to the offending
attorney’s client (see Fields v Turner, 1Misc2d 679, 680-681 [Sup Ct, NY County 1955]), “[t]he ‘party’ referred to is clearly a party to an action pending in a court in reference to which the deceit is practiced, and not a person outside, not connected with the same at the time or with the court” (Gelmin v Quicke, 224 AD2d 481, 483 [2d Dept 1996], quoting Looff v Lawton, 97 NY 478, 482 [1884]). Plaintiff was not a party to any pending, underlying judicial proceeding.

Plaintiffs reliance on the client affidavits, if considered, is misplaced. Essential to a claim under Judiciary Law § 487 is harm to the plaintiff caused by the purportedly deceitful acts (see Doscher, 148 AD3d at 524). Each affiant chose to remain a client of plaintiff. The facts in Fields
(1 Misc 2d 679) are also dissimilar. In Fields, an attorney, who  represented the plaintiffs wife, made several representations to the court in order to procure an arrest warrant for the plaintiff (id
at 680), whereas here, the purportedly false statements by the Schwitzer Defendants and the Garcia Defendants were not made to the court while they were representing a party in a pending judicial
proceeding.”