Sciocchetti v Molinsek 2024 NY Slip Op 00116 [223 AD3d 1046] January 11, 2024
Appellate Division, Third Department is a case in which husband sues wife’s attorney on the theory that attorney and wife had a romantic relationship and worked together to hurt the husband financially. It does not succeed as a Judiciary Law 487 claim.

“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.

Assuming, without deciding, that plaintiffs’ claims under Judiciary Law § 487 are timely, Supreme Court correctly granted defendant’s motion. When presented with a motion to dismiss under CPLR 3211 (a) (7), “the court must accept the facts as alleged in the complaint as true, accord the nonmoving party the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Brown v University of Rochester, 216 AD3d 1328, 1330 [3d Dept 2023] [internal quotations marks, brackets and citation omitted]). That said, a plaintiff may recover treble damages if the defendant “[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party” (Judiciary Law § 487 [1]; see Hansen v Caffry, 280 AD2d 704, 705 [3d Dept 2001], lv denied 97 NY2d 603 [2001]). As to a claim under Judiciary Law § 487 (1), “[a]llegations regarding an act of deceit or intent to deceive must be stated with particularity” (Facebook, Inc. v DLA Piper LLP [US], 134 AD3d 610, 615 [1st Dept 2015], lv denied 28 NY3d 903 [2016]). Additionally, “to state a cause of action alleging a violation of Judiciary Law § 487, the plaintiff must plead allegations from which damages attributable to the defendant[‘s] conduct might be reasonably inferred” (Maroulis v Sari M. Friedman, P.C., 153 AD3d 1250, 1252 [2d Dept 2017] [internal quotation marks and citations omitted]; see Havell v Islam, 292 AD2d 210, 210 [1st Dept 2002]).

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 wilful 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.”

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Andrew Lavoott Bluestone

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened…

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened his private law office and took his first legal malpractice case.

Since 1989, Bluestone has become a leader in the New York Plaintiff’s Legal Malpractice bar, handling a wide array of plaintiff’s legal malpractice cases arising from catastrophic personal injury, contracts, patents, commercial litigation, securities, matrimonial and custody issues, medical malpractice, insurance, product liability, real estate, landlord-tenant, foreclosures and has defended attorneys in a limited number of legal malpractice cases.

Bluestone also took an academic role in field, publishing the New York Attorney Malpractice Report from 2002-2004.  He started the “New York Attorney Malpractice Blog” in 2004, where he has published more than 4500 entries.

Mr. Bluestone has written 38 scholarly peer-reviewed articles concerning legal malpractice, many in the Outside Counsel column of the New York Law Journal. He has appeared as an Expert witness in multiple legal malpractice litigations.

Mr. Bluestone is an adjunct professor of law at St. John’s University College of Law, teaching Legal Malpractice.  Mr. Bluestone has argued legal malpractice cases in the Second Circuit, in the New York State Court of Appeals, each of the four New York Appellate Divisions, in all four of  the U.S. District Courts of New York and in Supreme Courts all over the state.  He has also been admitted pro haec vice in the states of Connecticut, New Jersey and Florida and was formally admitted to the US District Court of Connecticut and to its Bankruptcy Court all for legal malpractice matters. He has been retained by U.S. Trustees in legal malpractice cases from Bankruptcy Courts, and has represented municipalities, insurance companies, hedge funds, communications companies and international manufacturing firms. Mr. Bluestone regularly lectures in CLEs on legal malpractice.

Based upon his professional experience Bluestone was named a Diplomate and was Board Certified by the American Board of Professional Liability Attorneys in 2008 in Legal Malpractice. He remains Board Certified.  He was admitted to The Best Lawyers in America from 2012-2019.  He has been featured in Who’s Who in Law since 1993.

In the last years, Mr. Bluestone has been featured for two particularly noteworthy legal malpractice cases.  The first was a settlement of an $11.9 million dollar default legal malpractice case of Yeo v. Kasowitz, Benson, Torres & Friedman which was reported in the NYLJ on August 15, 2016. Most recently, Mr. Bluestone obtained a rare plaintiff’s verdict in a legal malpractice case on behalf of the City of White Plains v. Joseph Maria, reported in the NYLJ on February 14, 2017. It was the sole legal malpractice jury verdict in the State of New York for 2017.

Bluestone has been at the forefront of the development of legal malpractice principles and has contributed case law decisions, writing and lecturing which have been recognized by his peers.  He is regularly mentioned in academic writing, and his past cases are often cited in current legal malpractice decisions. He is recognized for his ample writings on Judiciary Law § 487, a 850 year old statute deriving from England which relates to attorney deceit.