Sciocchetti v Molinsek 2024 NY Slip Op 00116 Decided on January 11, 2024
Appellate Division, Third Department is a case which highlights a common claim in matrimonial cases, that the attorney spun out the case for personal profit, and maybe, had a relationship going with one of the spouses while the attorney was profiting. Here, the court dissects the claims and allows for complete dismissal.
“Plaintiffs commenced this action on April 22, 2022 alleging claims under Judiciary Law § 487 related to a divorce action involving plaintiff Andrew Sciocchetti and his now-former wife (hereinafter the wife). Plaintiffs alleged in the complaint, among other things, that defendant, the wife’s attorney in the divorce action, made false representations in the divorce action, that defendant failed to disclose that he and the wife were romantically involved during the divorce action and that defendant wilfully delayed the divorce action for personal gain. In a pre-answer motion, defendant moved to dismiss the complaint under CPLR 3211 (a) (7). Supreme Court granted the motion. This appeal by plaintiffs ensued.”
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The alleged deceit by defendant centers on the undisclosed romantic relationship between defendant and the wife during the divorce action. Plaintiffs, however, failed to sufficiently plead how the concealment of this relationship caused plaintiffs any damages or led to any adverse rulings in the divorce action (see Saporito v Branda, 213 AD3d 588, 589 [1st Dept 2023]; DeMartino v Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP, 189 AD3d 774, 776 [2d Dept 2020]; Jean v Chinitz, 163 AD3d 497, 497 [1st Dept 2018]; cf. Tenore v Kantrowitz, Goldhamer & Graifman, P.C., 121 AD3d [*2]775, 776 [2d Dept 2014]). Plaintiffs maintain that Sciocchetti incurred additional legal fees in the divorce action, but failed to allege how such fees were attributable to defendant’s concealment of the relationship with the wife (see Mizuno v Barak, 113 AD3d 825, 827 [2d Dept 2014]). Furthermore, although plaintiffs alleged that defendant’s deceit resulted in fraudulent statements of net worth being filed, thereby forcing Sciocchetti to pay more financial support than was required, plaintiffs acknowledged that any error was corrected at the divorce trial. If anything, the allegations of a romantic relationship between defendant and the wife and the failure to disclose that relationship potentially compromised defendant’s representation of the wife and would give rise to a Judiciary Law § 487 claim by the wife (see e.g. A.M.P. v Benjamin, 201 AD3d 50, 57 [3d Dept 2021]).
Plaintiffs also argue that they stated a claim under Judiciary Law § 487 (2), which provides that recovery may be had when an attorney “[w]ilfully delays [the] client’s suit with a view to his [or her] own gain; or wilfully receives any money or allowance for or on account of any money which he [or she] has not laid out, or becomes answerable for.” Plaintiffs, however, only alleged in a conclusory manner that defendant wilfully delayed the underlying divorce action. Moreover, even accepting as true that defendant was contentious during the divorce action, took unreasonable settlement positions or engaged in protracted postjudgment divorce litigation, such behavior did not exceed the bounds of advocacy in a divorce action so as to constitute wllful delay within the meaning of Judiciary Law § 487 (2). The allegation that defendant failed to timely file the note of issue in the divorce action likewise did not amount to wilful delay. Accordingly, dismissal of the complaint for failure to state a cause of action was correct.”
| Sciocchetti v Molinsek |
| 2024 NY Slip Op 00116 |
| Decided on January 11, 2024 |
| Appellate Division, Third Department |