Lembert v Zucker 2022 NY Slip Op 34440(U) December 23, 2022 Supreme Court, New York County Docket Number: Index No. 151344/2021 Judge: Verna L. Saunders is aptly described by the court:
“Plaintiff commenced this action asserting violation of Judiciary Law § 487, abuse of process, intentional infliction of emotional distress, negligent infliction of emotional distress, and defamation as against defendant, Evan Zucker, an attorney retained to represent plaintiffs former spouse, John Bruzzese, in various matrimonial proceedings. (NYSCEF Doc. No. 1, summons and complaint). “
“The relevant background is as follows: Plaintiffs ex-husband, John Bruzzese, commenced a divorce proceeding on July 31, 2011. The trial took place over several months in 2014 and the court issued its decision after trial on December 30, 2014 (NYSCEF Doc. No. 7, Decision after Trial). Mr. Bruzzese sought a modification of the 2014 order requesting a credit against his equitable distribution payment amongst other things. Plaintiff opposed the motion and cross-moved for relief on various grounds. (NYSCEF Doc. No. 8., Decision and Order June 25, 2018). Several branches of plaintiffs cross-motion were denied and as such, she moved to reargue. The court denied her
motion to reargue (NYSCEF Doc. No. 9, Decision and Order August 23, 2018) and plaintiff appealed (NYSCEF Doc. No. I 0, Appellant’s Brief). At the time the instant motion was filed, the Second Department had not yet rendered a decision. However, a decision has since been rendered affirming the June 25, 2018 and August 23, 2018 decisions of the trial court (NYSCEF Doc. No. 21, App Div, Second Dept Decision and Order March 23, 2022). The Second Department did not address the claims asserted in this action.
In the case at bar, plaintiff alleges several instances in which defendant knowingly made
material misrepresentations to the court. Most, if not all, of the examples provided are with respect to arguments advanced on behalf of Mr. Bruzzese before the Second Department. There is no dispute that plaintiff included these claims in her brief to the Second Department. However, as previously noted, the Second Department declined to address said claims.
After careful consideration of the arguments advanced, defendant’s motion is granted.”
“Turning to the Judiciary Law § 487, “relief under a cause of action based upon Judiciary Law § 487 is not lightly given and requires a showing of egregious conduct or a chronic and extreme pattern of behavior on the part of the defendant attorneys that caused damages. Allegations regarding an act of deceit or intent to deceive must be stated with particularity. The claim will be dismissed if the allegations as to scienter are conclusory and factually insufficient.” (Face book, Inc. v DLA Piper LLP (US), 134 AD3d 610,615 [1st Dept 2015] [internal citations and quotations omitted].) Scienter is a legal term that refers to a culpable state of mind, as such plaintiff would need to prove that defendant acted knowingly, willfully, intentionally, or recklessly. While plaintiff asserts defendant made material misrepresentations knowingly, such allegation is wholly conclusory, especially where defendant was making statements on behalf of another person in his capacity as their attorney. An attorney is liable for a violation of Judiciary Law § 487 if he or she “[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the Court or any party; or … [ w ]ii fully delays his client’s suit with a view to his own gain.” A cause of action under the statute “requires a showing of ‘egregious conduct or a chronic and extreme pattern of behavior’
on the part of the defendant attorneys that caused damages” (Facebook, Inc. v DLA Piper LLP (US), 134 AD3d 610,615 [1st Dept 2015), Iv denied 28 NY3d 903  [citation omitted]). Allegations of deceit or the intent to deceive must be pied with particularity (Bill Birds, Inc. v Stein Law Firm, P.C., 164 AD3d 635, 637 [2d Dept 2018), affd 35 NY3d 173 ; Face book, Inc. v DLA Piper LLP (US), 134 AD3d at 615 [ dismissing a Judiciary Law § 487 claim where the allegations of scienter were conclusory and were not supported by specific facts]). Insofar as plaintiff’s claims of a scienter are not supported by sufficient facts, this cause of action for Judiciary Law § 487 must also be dismissed.”