Silverstein v Gregory 2023 NY Slip Op 31939(U) May 30, 2023 Supreme Court, New York County Docket Number: Index No. 151024/2022 Judge: Dakota D. Ramseur is an example of what we think is the most complicated of cases: a legal malpractice (or Judiciary Law 487 case) based upon a medical malpractice case. The facts, the testimony and the overwhelming records all make for a very complicated issue.

Here, the question is whether conduct at trial, in which it is alleged that the defense attorney asked questions and sought testimony contrary to the medical records can comprise violation of Judiciary Law 487.

“Plaintiff, Barbara Silverstein (plaintiff), commenced this action pursuant to New York
Judiciary Law§ 487 and for libel against defendants Robin Gregory, Esq. (Gregory) and Wilson Elser Moskowitz Edelman & Dicker LLP (Wilson Elser) (collectively, defendants) stemming from their representation of the defendant in the disposed underlying action in New York County entitled Silverstein v Farr Nezhat, et al., Index no. 109486/2006 (the underlying action). Defendants now move pursuant to CPLR 321 l(a)(l), (7) to dismiss the amended complaint. Plaintiff opposes defendants’ motion and cross-moves for leave to amend her amended verified complaint, and pursuant to CPLR 602 to consolidate the instant action with the underlying action. For the following reasons, the motion to dismiss the complaint is granted, and the cross-motion is denied.”

“In her affidavit in support of her motion to vacate the jury verdict, plaintiff avers that
Gregory violated Judiciary Law § 487 “by having Dr. Gharibo falsely testify that Plaintiff
suffered from Narcotic Bowel Syndrome” (Berk [Silverstein] affidavit, ,i 86). In her amended complaint, plaintiff alleges that this testimony directly contradicted her medical records: “despite there being a complete absence of any medical records documenting that Plaintiff suffered from severe stomach aches following her taking pain medication” (amended complaint. With respect to Dr. Gharibo, a pain doctor who solely treated musculoskeletal problems, and not GYN issues, he testified that Dr. Grenell overprescribed narcotics to Silverstein and Gregory violated Judiciary Law § 487 by intentionally misrepresenting the amount of pain medication plaintiff was taking (id., ,i 70). Gregory falsely told the jury that “Plaintiff was a drug addict at a time that
Opioid abuse was all over the news” (Berk [Silverstein] affidavit.

Plaintiff’s position is essentially that Nezhat, Drs. Herzog and Kavaler, and Dr. Gharibo
testified falsely, all part of an intentional plan by Gregory. Specifically, Gregory had Drs.
Herzog, Kavaler and Gharibo testify that plaintiff failed to follow Dr. Grenell’s recommendation to see a cognitive behavioral therapist (amended complaint, ,i 71). Gregory had the insurance records reflecting the name of plaintiff’s cognitive behavioral therapist. Although plaintiff provided authorizations to Gregory for all of her relevant medical treatment, which established the truth of plaintiff’s condition, in contravention of these documents, Gregory had these witnesses lie at trial. Furthermore, Gregory intentionally misrepresented the amount of pain medication that plaintiff was taking and falsely told the jury that plaintiff was a drug addict (id., ,i 81). But again, according to plaintiff, the medical records, including the updated pharmacy
authorizations that Gregory received throughout the case, establish how much medication plaintiff was taking and how often the prescriptions were filled prior to trial. Plaintiff argues that Dr. Gharibo made false statements about plaintiff’s addiction to opioids despite the information in the medical records.”

“Even accepting all of plaintiff’s allegations as true, this Court cannot find that there are
sufficient facts alleged establishing that Gregory intentionally deceived the court. Plaintiff offers specific facts concerning the testimony of Nezhat and the expert defendants in the underlying action, and how the testimony was not consistent with facts in plaintiff’s possession, or plaintiff’s version of the facts. Yet, plaintiff offers no specific facts concerning either the falsity of the testimony, Gregory’s intention to deceive, or his actual deception upon the court (see Sammy v Haupel, 170 AD3d 1224, 1225 [2d Dept 2019] [the court granted the defendants’ motion to dismiss plaintiff’s section 487 claim on the grounds that the plaintiff failed to set forth “with specificity,” either in her complaint or in her papers opposing the motions, “how the defendants knew or should have known that she did not sign the release upon which they relied
in asserting affirmative defenses on behalf of their clients” or that the defendants had “intended to deceive the court”]).

Here, plaintiff’s conclusory statements that the testimony was false cannot substitute for facts establishing that the testimony was false, or facts supporting that Gregory knew or should have known that the testimony was false. That Nezhat’s testimony during his deposition was not consistent with his testimony at trial does not support a finding that the defendants behaved in an egregious way, as there are many explanations for this inconsistency and no factual basis supporting plaintiff’s claim of deception. Similarly, the fact that the expert witnesses’ testimony on contested issues in the underlying action was not consistent with plaintiff’s testimony, plaintiff’s expectation of defendants’ testimony or with plaintiff’s medical records does not
establish a deceit upon the court.”