In Sage v Neil H. Greenberg & Assoc., P.C. 2023 NY Slip Op 04787 Decided on September 27, 2023 Appellate Division, Second Department there is not a lot of explanation, but the Judiciary Law 487 claim was dismissed for lack of sufficient allegations of deceit.

“Neil H. Greenberg and Associates, P.C., a law firm, and its managing attorney, Neil H. Greenberg, represented Jose Sanchez and Antonio Mejia Palacio in an action commenced in the United States District Court for the Eastern District of New York against, among others, Ethan Sage and Oceanside First Class Roofing, Inc., inter alia, to recover damages for unpaid overtime wages and for failure to provide wage statement notices as required by Labor Law § 195(3). In August 2018, the District Court dismissed the claims for unpaid overtime wages, but found in favor of Sanchez and Palacio on the causes of action alleging a violation of Labor Law § 195(3). Sanchez and Palacio were awarded statutory damages, as well as attorneys’ fees and costs in connection with the Labor Law § 195(3) claims.

In October 2020, Sage and Oceanside First Class Roofing, Inc., commenced this action to recover damages for malicious prosecution and violation of Judiciary Law § 487. The complaint alleged, among other things, that Greenberg and Neil H. Greenberg and Associates, P.C. (hereinafter together the defendants), prosecuted the federal action based on false testimony from Sanchez and Palacio. The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them. “

“The Supreme Court also properly granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging a violation of Judiciary Law § 487. Pursuant to 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 (see Cordell Marble Falls, LLC v Kelly, 191 AD3d 760, 762). “A violation of Judiciary Law § 487 requires an intent to deceive” (Moormann v Perini & Hoerger, 65 AD3d 1106, 1108; see Cordell Marble Falls, LLC v Kelly, 191 AD3d at 762). “[T]o establish liability under section 487, the plaintiff must show that the defendant acted with intent to deceive him or her or the court” (Palmieri v Perry, Van Etten, Rozanski & Primavera, LLP, 200 AD3d 785, 787). “Allegations regarding an act of deceit or intent to deceive must be stated with particularity” (Bill Birds, Inc. v Stein Law Firm, P.C., 164 AD3d 635, 637, affd 35 NY3d 173; see Palmieri v Perry, Van Etten, Rozanski & Primavera, LLP, 200 AD3d at 785). Here, the factual allegations in the complaint, even as amplified by the plaintiffs’ evidentiary submissions in opposition to the defendants’ motion, were insufficient to establish that the defendants acted with intent to deceive the plaintiffs or the court (see Cordell Marble Falls, LLC v Kelly, 191 AD3d at 762; Michalic v Klat, 128 AD2d 505, 506; Shaffer v Gilberg, 125 AD3d 632, 636).”