The vast number of sibling v. sibling cases involving parental estates should not be surprising, but Altman v DiPreta  2022 NY Slip Op 02774 Decided on April 27, 2022 Appellate Division, Second Department is an interesting case which alleged deceit over the location of a ward of a Court Appointed conservatee.

“In 2010, Jeanne Altman (hereinafter Jeanne) executed a durable power of attorney in favor of her two sons, Charles Altman (hereinafter Charles) and Edwin Altman (hereinafter Edwin). Following the deterioration of Jeanne’s mental faculties, Charles and Edwin had disagreements about her care. Charles retained the defendant Richard Slagle, a Connecticut attorney, to represent Jeanne. Charles then commenced a conservatorship proceeding in Connecticut, where Jeanne was then residing. By decree dated December 4, 2012, the Probate Court of Greenwich, Connecticut (hereinafter the Probate Court), appointed the defendant Richard S. DiPreta, a Connecticut attorney, as conservator of Jeanne’s estate, and appointed Charles as conservator of her person.

DiPreta subsequently petitioned the Probate Court for the removal of Charles as conservator of Jeanne’s person. By decree dated August 2, 2013, the Probate Court removed Charles as conservator, finding, inter alia, that Charles had improperly brought Jeanne from Connecticut to New York without court approval, and that Charles failed to act in Jeanne’s best interests.

In February 2014, Charles and Jeanne (hereinafter together the plaintiffs) commenced this action in New York against, among others, DiPreta and DiPreta Law Firm LLC (hereinafter together the DiPreta defendants), and Slagle, inter alia, to recover damages for legal malpractice, tortious interference with contractual relations, and violation of Judiciary Law § 487. In an amended complaint, the plaintiffs alleged, among other things, that the DiPreta defendants and Slagle engaged in “deceit and collusion” as part of a plan to retain control over Jeanne’s assets and withhold payments to Charles. The DiPreta defendants moved, among other things, pursuant to CPLR 3211(a)(7) to dismiss the causes of action alleging tortious interference with contractual relations and violation of Judiciary Law § 487 insofar as asserted against them. Slagle separately moved, inter alia, pursuant to CPLR 3211(a)(8) to dismiss the amended complaint insofar as asserted against him for lack of personal jurisdiction, and pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging violation of Judiciary Law § 487 insofar as asserted against him. In an order dated March 24, 2015, the Supreme Court, among other things, granted those branches of the separate motions. Charles appeals.”

“Under Judiciary Law § 487(1), 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. “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'” (Pinkesz Mut. Holdings, LLC v Pinkesz, 198 AD3d 693, 698, quoting Oakes v Muka, 56 AD3d 1057, 1058). Here, the parties’ evidentiary submissions demonstrated that the DiPreta defendants did not act in their capacities as attorneys when they allegedly made deceitful statements. Accordingly, the Supreme Court properly granted that branch of the DiPreta defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging violation of Judiciary Law § 487 insofar as asserted against them by Charles (see Smallwood v Lupoli, 107 AD3d 782, 784; Crown Assoc., Inc. v Zot, LLC, 83 AD3d 765, 768; Oakes v Muka, 56 AD3d at 1058).”