Judiciary Law § 487 cases are unique, even odd.  Izmirligil v Steven J. Baum, P.C.  J2020 NY Slip Op 01052 Decided on February 13, 2020 Appellate Division, Second Department is even more so.  Here, plaintiff borrowed $ 1.1M to buy a house.  The mortgage was passed between banks.  Plaintiff defaulted on the foreclosure case.  Now, he sues the banks, the paper prep guys and the attorneys on the theory that the assignment was forged.  The bank and the papers prep guys get out.  The attorneys, no.

“With regard to the first cause of action, Izmirligil failed to state a cause of action under Real Property Law § 329 against the BNYM defendants and Chase (see CPLR 3211[a][7]; Leon v Martinez, 84 NY2d 83, 87-88). In considering a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d at 87). However, “allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled to any such consideration” (Maas v Cornell Univ., 94 NY2d 87, 91 [internal quotation marks omitted]; see Myers v Schneiderman, 30 NY3d 1, 11). Bank of New York Mellon was not a party to the assignment, and thus, Izmirligil failed to state a cause of action pursuant to Real Property Law § 329 against it. Further, under the circumstances presented, Izmirligil’s conclusory allegations that the assignment was forged and fabricated were insufficient to state a cause of action under Real Property Law § 329 against BNYM as trustee and Chase (see generally Moffett v Gerardi, 75 AD3d 496, 498; Son Fong Lum v Antonelli, 102 AD2d 258, 260-261, affd 64 NY2d 1158).

Similarly, we agree with the Supreme Court’s determination to grant that branch of the motion of the BNYM defendants which was pursuant to CPLR 3211(a)(7) to dismiss the second cause of action against BNYM as trustee (see Wood v Villanueva, 175 AD3d 1465Zuniga v BAC Home Loans Servicing, L.P., 147 AD3d 882Acocella v Wells Fargo Bank, N.A., 139 AD3d 647, 649; Jahan v U.S.Bank N.A., 127 AD3d 926, 927).

Further, contrary to Izmirligil’s contention, the Supreme Court did not err in granting those branches of the separate motions which were to dismiss the RICO cause of action insofar as asserted against each of the moving defendants as time-barred. “The statute of limitations for civil RICO claims is four years” and “is deemed to have accrued when the plaintiff knew or should have known of his or her injury, regardless of when he or she discovered the underlying fraud'” (House of Spices [India], Inc. v SMJ Servs., Inc., 103 AD3d 848, 849-850, quoting Dempster v Liotti, 86 AD3d 169, 178; see Mitchell v Diji, 134 AD3d 779, 781). This cause of action accrued on November 30, 2009, when the foreclosure action was commenced. Accordingly, as Izmirligil did not commence the instant action until 2015, the RICO cause of action was time-barred (see Dempster v Liotti, 86 AD3d at 179).

However, we disagree with the Supreme Court’s determination with regard to the third, fourth, fifth, and sixth causes of action, alleging violations of Judiciary Law § 487 by the Baum defendants. 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]). Here, Izmirligil alleged that the Baum defendants violated Judiciary Law § 487 by, inter alia, colluding with others to forge an assignment and file a foreclosure action using a complaint containing false allegations to deceive the court and others. The evidentiary submissions of the Baum defendants did not show that the material facts claimed by Izmirligil to be facts were not facts at all and that no significant dispute exists regarding them (see Guggenheimer v Ginzburg, 43 NY2d 268, 275). Accordingly, the court should have denied that branch of the Baum defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the causes of action alleging violations of Judiciary Law § 487 by them.”

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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…

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.