Last week we looked at Kasmin v Josephs 2023 NY Slip Op 32468(U) July 19, 2023
Supreme Court, New York County Docket Number: Index No. 152213/2020
Judge: Nancy M. Bannon for its decision on legal malpractice. The case also dismissed Judiciary Law 487 claims.

“The fourth cause of action for violation of Judiciary Law § 487 is also dismissed. Relief
under this statute “is not lightly given” (Chowaiki & Co. Fine Art, supra), 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 (Savitt v Greenberg Traurig, LLP, 126 AD3d 506, 507 [1st Dept. 2015]). “Allegations regarding an act of deceit or intent to deceive must be stated with particularity,” and “the claim will be dismissed if the allegations as to scienter are conclusory and factually insufficient.” Facebook, Inc. v DLA Piper LLP (US), 134 AD3d 610, 615 (1st Dept. 2015) (internal citation omitted).

Plaintiff fails to allege that defendant acted “with intent to deceive the court or any party” (Judiciary Law§ 487[1]), and her allegation that defendant “willfully engaged in self-serving dilatory tactics … designed to impede timely resolution of [the] matrimonial action with a view to [defendant’s] own gain,” is a bare legal conclusion that “is not entitled to the presumption of truth normally afforded the allegations of a complaint” (Fleyshman v Suckle & Schlesinger, PLLC, 91 AD3d 591, 593 [2d Dept. 2012]). Nor does plaintiff proffer evidence to bear out her claim. The only evidence plaintiff cites are portions of various decisions from the underlying matrimonial action admonishing defendant for filing excessive, repetitive, and unmeritorious motions. None of these decisions, though, found that defendant willfully engaged in such conduct with a view to her own gain. Nor does plaintiff point to any other evidence in the record
that tends to show such willful conduct.

To the contrary, the evidence presented tends to show that defendant zealously-perhaps over-zealously-represented plaintiff’s interests in the underlying litigation. Plaintiff testified at her deposition that she was pleased with the settlement obtained for her by defendant, had praised defendant’s efforts on her behalf, and had referred some of her friends to defendant. Plaintiff further testified that she reviewed, and did not dispute, defendant’s invoices throughout the underlying litigation; that defendant kept her apprised of the litigation, explained the strategy followed, and informed her of all motions filed on her behalf. Plaintiff further testified that she believed her ex-husband had attempted to conceal certain assets during discovery in the underlying litigation, that she wanted defendant to uncover those assets, and that defendant’s
efforts in that regard were necessary and not a waste of time. Plaintiff likewise conceded that the various motions made by defendant on her behalf were necessary and generally meritorious, notwithstanding that they were ultimately denied, including the motions and appeals filed to enforce the 2014 Settlement, which plaintiff believed to be “correct.” And, in stark contrast to the allegation that defendant’s aim was to squeeze plaintiff for excessive fees, plaintiff testified that it was defendant who, unprompted, initiated the proposal to discount her fees.”