Ostrander v Mullen 2024 NY Slip Op 06461 Decided on December 20, 2024
Appellate Division, Fourth Department is an example of what really sounds like a JL 487 kind of claim. It concerns allegations of a “forged” deed and attempts to use it in litigation.

“We agree with plaintiffs that Supreme Court erred in dismissing the first cause of action against Moore, sounding in violations of Judiciary Law § 487. Judiciary Law § 487 provides, in pertinent part, that “[a]n attorney or counselor 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 . . . [i]s guilty of a misdemeanor, and in addition to the punishment prescribed therefor by the penal law, he forfeits to the party injured treble damages, to be recovered in a civil action.” In essence, the statute “imposes liability for the making of false statements with scienter” (Bill Birds, Inc. v Stein Law Firm, P.C., 35 NY3d 173, 178 [2020]). However, “Judiciary Law § 487 is not a codification of common-law fraud and therefore does not require a showing of justifiable reliance” (id.; see Amalfitano v Rosenberg, 12 NY3d 8, 14 [2009]). Stated another way, “liability under the statute does not depend on whether the court or party to whom the statement is made is actually misled by the attorney’s intentional false statement” (Bill Birds, [*2]Inc., 35 NY3d at 178); i.e., the statute “focuses on the attorney’s intent to deceive, not the deceit’s success” (Amalfitano, 12 NY3d at 14).

Here, plaintiffs alleged in their amended complaint that, from the time he became the client’s attorney, Moore engaged in a pattern of conduct whereby he advocated for the validity of a fraudulent deed, and oversaw the revision of fraudulent surveys based upon that deed. Plaintiffs alleged that Moore was in possession of documents and correspondence establishing that the deed was the fraudulent product of the client and defendant Aaron I. Mullen, an attorney who had previously represented the client, and that Moore failed to disclose those items despite receiving a valid discovery demand for them. Plaintiffs also alleged that Moore instituted a CPLR article 78 proceeding based upon the allegedly fraudulent deed and that he attached the deed to the petition. Plaintiffs further alleged that Moore participated in the client’s fraud, and did so intentionally and with knowledge of the client’s fraud, to plaintiffs’ detriment of more than $100,000 in legal fees and expenses. Accepting the facts as alleged in the amended complaint as true and according plaintiffs the benefit of every possible inference, as we must (see Nowlin v Schiano, 170 AD3d 1635, 1635 [4th Dept 2019]), we conclude that plaintiffs’ factual allegations with respect to the Judiciary Law § 487 cause of action are sufficient to survive Moore’s motion to dismiss, and we therefore modify the order accordingly.”