Pinkesz Mut. Holdings, LLC v Pinkesz  2021 NY Slip Op 05359  Decided on October 6, 2021 Appellate Division, Second Department makes an interesting distinction between “civil fraud upon the court” and Judiciary Law §487.  There is a question raised (and not decided) whether certain conduct during the course of litigation can give rise to a private cause of action outside of Judiciary Law § 487,

“The Supreme Court also should have granted dismissal of Edward’s and Anthony’s third-party causes of action alleging violations of Judiciary Law § 487, which are asserted against Rubenstein, Horowitz & Rubenstein, Feder, RESF, Goldberg, and Herrick Feinstein. As a threshold matter, neither Rubenstein nor Horowitz & Rubenstein are alleged to have acted as attorneys in this action, and Judiciary Law § 487 “applies to an attorney acting in his or her capacity as an attorney, not to a party who is represented by counsel and who, incidentally, is an attorney” (Oakes v Muka, 56 AD3d 1057, 1058). The allegations of wrongdoing against Feder, RESF, Goldberg, and Herrick Feinstein are equally deficient inasmuch as they fail to allege specific facts from which it could be reasonably inferred that Feder, RESF, Goldberg, and Herrick Feinstein acted with the requisite degree of scienter (see Sammy v Haupel, 170 AD3d 1224, 1225), and/or otherwise fail to allege specific facts from which it could be inferred that the alleged deceit was the proximate cause of any injury to Edward or Anthony (see Parks v Leahey & Johnson, 81 NY2d 161, 164-165; Gumarova v Law Offs. of Paul A. Boronow, P.C., 129 AD3d 911, 912).

Further, the Supreme Court should have granted dismissal of Edward’s cross claim, counterclaim, and third-party cause of action alleging civil fraud upon the court insofar as asserted against each of the appellants. Even assuming, without deciding, that judicially sanctionable conduct during the course of litigation can give rise to a private cause of action for damages outside of Judiciary Law § 487 (cf. Bill Birds, Inc. v Stein Law Firm, P.C., 35 NY3d 173, 178; see generally CDR Créances S.A.S. v Cohen, 23 NY3d 307, 315; ), no such cause of action has been pleaded in this case (see DeMartino v Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP, 189 AD3d 774, 775).”