Silverstein v Nezhat 2024 NY Slip Op 32173(U) June 24, 2024 Supreme Court, New York County Docket Number: Index No. 109486/2006 Judge: Kathy J. King is a good example of how Courts generally treat Judiciary Law 487 claims. They are skeptical, and have a high tolerance to attorney conduct, rarely upholding a 487 claim.

“The instant medical malpractice action was commenced in 2006 against Mount Sinai Hospital and Dr. Farr Nezhat. Plaintiff, who is an attorney and proceeding pro se in this application, was represented by counsel at trial, in early 2016. The case was tried to verdict over the course of 15 days before the Honorable Eileen A. Rakower, and ultimately the jury ruled in favor of the defendants on plaintiff’s medical malpractice and lack of informed consent claims. Judgment was entered on June 1, 2016. The record reveals that a notice of appeal was filed on behalf of plaintiff; however, plaintiff never perfected her appeal, and according to defendants, the appeal was dismissed on defendants’ motion. In support of her motion, plaintiff argues that the judgment must be vacated because defense counsel engaged in fraudulent conduct at trial through “deceit and collusion” with the defendants, defense witnesses, and defense experts, resulting in a “fraudulent verdict.” In essence, plaintiff asserts, inter alia, that witnesses perjured themselves at the behest of defense counsel. Plaintiff also asserts that during the trial defense counsel used defamatory language when speaking about the plaintiff to the jury.”

“The Court further finds that plaintiff’s reliance on Judiciary Law § 487 is barred by collateral estoppel which gives conclusive effect to prior determinations when two conditions are met. There must be “an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and there must have been a full and fair opportunity to contest the decision now said to be controlling” (Lennon v 56th and Park (NY) Owner, LLC, 199AD3d 64, 69 [2d Dept 2021], quoting Buechel v Bain, 97 NY2d 295, 303-04 [2001] [internal quotation marks omitted]). Here, the issue as to whether defendants’ attorneys violated Judiciary Law § 487 prior to and during the trial of the instant medical malpractice action was determined in a plenary matter commenced by plaintiff. By Decision and Order dated May 30, 2023, bearing Index No. 151024/2022, the Court (J. Ramseur) denied plaintiff’s motion under Judiciary Law § 487. Thus, vacatur of the judgment and damages is barred by collateral estoppel.”