Williams v Biggs July 29, 2026 Appellate Division, Second Department is a long decision to read. Pro-se plaintiff loses most causes of action, but the final paragraphs prove to be a potential victory.
“This action stems from an underlying action commenced by the plaintiff against New York City Health and Hospitals Corporation (hereinafter NYCHHC), several physicians that NYCHHC employed, including the defendant Carina Biggs, and Kings County Hospital Center (hereinafter KCHC) to recover damages for medical malpractice and lack of informed consent. The plaintiff initially was represented in the underlying medical malpractice action by the defendant Law Offices of Goldfarb & Gerzog (hereinafter G & G). The defendant McAloon & Friedman, P.C. (hereinafter M & F), and the defendants Laura R. Shapiro, Lisa B. Goldstein, and Michael S. Kivowitz (hereinafter collectively the M & F defendants) represented the defendants in the underlying medical malpractice action.
The defendant Ira D. Gerzog left G & G on or about May 25, 2018, and the plaintiff allegedly executed a consent to change attorney form designating Law Offices of Steven M. Goldfarb (hereinafter LOSMG) as in coming counsel. After LOSMG assumed the plaintiff’s representation, in October 2018, the defendant Rhonda Rosen, a deputy litigation chief of the medical litigation unit of NYCHHC, made a settlement offer on behalf of NYCHHC to the plaintiff. Thereafter, the defendant Steven M. Goldfarb executed a stipulation discontinuing the underlying medical malpractice action against the physician defendants only. The case was marked “SETTLED BEFORE TRIAL” on the New York State Courts Electronic Filing System.
The plaintiff, however, refused to sign a release because he believed that certain of the medical records produced at the depositions of the defendant physicians were forged. Communications between Goldfarb and the plaintiff deteriorated, and the plaintiff requested that Goldfarb sign a consent to change attorney form designating the plaintiff as proceeding pro se, which Goldfarb allegedly did not return.
On or about March 20, 2020, the plaintiff commenced this action against Goldfarb, G & G, LOSMG, and the defendant Karen Levine, who worked for G & G and LOSMG (hereinafter collectively the Goldfarb defendants), the defendant Sara Kim, a resident physician who the plaintiff alleged forged his signature on an informed consent form, Gerzog, the M & F defendants, as well as Biggs, Rosen, and the defendant Dawn Maynard, an individual who certified NYCHHC’s records. Biggs, Rosen, and Maynard are employed by NYCHHC (hereinafter collectively the municipal defendants). The complaint alleged that the defendants, acting in concert with each other and aiding and abetting each other, used forged medical records in the underlying medical malpractice action to minimize the defendants’ liability and to induce the plaintiff to accept the settlement offer. The complaint asserted 20 cases of action, including violations of Judiciary Law § 487, legal malpractice, fraud, forgery, prima facie tort, intentional infliction of emotional distress, conversion, breach of fiduciary duty, breach of contract, and for declaratory relief.”
“The first cause of action, to recover damages for violation of Judiciary Law § 487, failed to state a cause of action upon which relief can be granted against Rosen. 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 guilty of a misdemeanor and liable for treble damages (Judiciary Law § 487[1]). “Relief pursuant to Judiciary Law § 487 is not lightly given, and requires a showing of egregious conduct or a chronic and extreme pattern of behavior on the part of the defendant attorneys” (Kaufman v Moritt Hock & Hamroff, LLP, 192 AD3d 1092, 1093 [citation and internal quotation marks omitted]; see Savitt v Greenberg Traurig, LLP, 126 AD3d 506, 507; Chowaiki & Co. Fine Art Ltd. v Lacher, 115 AD3d 600, 601). “A cause of action alleging a violation of Judiciary Law § 487 must be pleaded with specificity” (Kaufman v Moritt Hock & Hamroff, LLP, 192 AD3d at 1093 [internal quotation marks omitted]).
The first cause of action failed to allege facts upon which it can reasonably be inferred that Rosen intended to deceive the Supreme Court (see Klein v Rieff, 135 AD3d 910, 912). Additionally, even accepting the allegations in the first cause of action as true, Rosen’s alleged conduct of making a settlement offer does not allege “‘egregious conduct or a chronic and extreme pattern of behavior on'” Rosen’s part (Grasso v Guarino, 227 AD3d 872, 873, quoting Kaufman v Moritt Hock & Hamroff, LLP, 192 AD3d at 1093).”
“Contrary to the plaintiff’s contentions, the Supreme Court properly granted that branch of Gerzog’s motion which was pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against him and properly granted the separate motion of the Goldfarb defendants pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them, with the exception of the nineteenth cause of action. The first cause of action, to recover damages for violation of Judiciary Law § 487(1), failed to allege sufficiently specific facts from which it could be reasonably inferred that Gerzog or the Goldfarb defendants acted with the requisite degree of scienter (see Langton v Sussman & Watkins, 238 AD3d 726, 730; Guliyev v Banilov & Assoc., P.C., 221 AD3d 589, 591; Briarpatch Ltd., L.P. v Frankfurt Garbus Klein & Selz, P.C., 13 AD3d 296, 297-298). The first cause of action also failed to adequately allege that Gerzog’s allegedly deceitful conduct proximately caused the plaintiff’s damages (see Barouh v Law Offs. of Jason L. Abelove, 131 AD3d 988, 990).
The second cause of action failed to state a cause of action to recover damages for violation of Judiciary Law § 487(2). An attorney violates Judiciary Law § 487(2) where he “[w]illfully delays his client’s suit with a view to his own gain” (id.; see Coccia v Liotti, 70 AD3d 747, 754). With respect to Gerzog, the allegations are largely based on conduct that occurred after Gerzog had departed from G & G, and the plaintiff’s allegation that Gerzog delayed filing the note of issue to force secret settlement discussions, in addition to being speculative, contradicts his allegation that Gerzog prematurely filed the note of issue before discovery was complete. In any event, the allegation that Gerzog delayed filing the note of issue did not amount to willful delay (see Sciocchetti v Molinsek, 223 AD3d 1046, 1048). Further, the allegations that Goldfarb failed to make various motions, failed to retain a forensic document examiner after accepting the settlement offer, or failed to return the executed consent to change attorney form designating the plaintiff as proceeding pro se did not support an inference that Goldfarb intended to delay the case for his own gain (see Sciocchetti v Molinsek, 223 AD3d at 1047). The plaintiff alleged that Goldfarb requested that the plaintiff sign the general release, which would have resolved the underlying medical malpractice action, not delayed it. Moreover, considering that Goldfarb was entitled to a percentage of any verdict or settlement the plaintiff received upon the execution of the general release, it is not reasonable to infer that he refused to prosecute the case for his own gain.”
“Nevertheless, we agree with the plaintiff that the Supreme Court erred in directing dismissal of the nineteenth cause of action for a judgment, in effect, declaring that Gerzog, G & G, and LOSMG may not recover legal fees for the work performed in the underlying medical malpractice action. The plaintiff alleged that Gerzog improperly withdrew his representation of the plaintiff (see 22 NYCRR 1200.0, rule 8.4[d]) and that the plaintiff terminated Goldfarb’s representation for cause. On this record, Gerzog failed to demonstrate his entitlement to dismissal of the nineteenth cause of action as a matter of law. Further, “[i]n general, a hearing is required to determine whether a client has cause for discharging an attorney” (Doviak v Finkelstein & Partners, LLP, 90 AD3d 696, 699).”