Schnur v Balestriere 2022 NY Slip Op 05297 [208 AD3d 1117] September 27, 2022 Appellate Division, First Department is an uncommon result in a CPLR 3211 motion to dismiss a Judiciary Law § 487 claim. The First Department finds that the statements made were not merely “unfounded allegations” but were sufficiently alleged to be deceitful and were egregious.
“The Judiciary Law § 487 claim against Balestriere should not have been dismissed. Although “unfounded” allegations are not actionable under Judiciary Law § 487, deliberate misrepresentations are (see Amalfitano v Rosenberg, 12 NY3d 8, 11-15 ; Ticketmaster Corp. v Lidsky, 245 AD2d 142, 143 [1st Dept 1997]; Redmond v Bailey, 2012 NY Slip Op 31081[U], *6 [Sup Ct, Queens County 2012]). Plaintiffs have sufficiently alleged that the allegations about them in the underlying federal action were not just unfounded but intentionally false; these allegations have not been conclusively refuted. The misconduct alleged by plaintiffs is also sufficiently “egregious” to support a Judiciary Law § 487 claim—consisting of the reiteration of allegations Balestriere knew to be false in multiple filings, even after receipt of information refuting these allegations and even after being sanctioned (see generally Facebook, Inc. v DLA Piper LLP [US], 134 AD3d 610, 615 [1st Dept 2015], lv denied 28 NY3d 903 ).”