The NYLJ reports a Judiciary Law 487 case today in which the claim survives.  Empire Purveyors, Inc. v. Brief Justice & Kleinman, [subscription necessary] which was written by Justice Solomon in Supreme Court,  New York County, holds that Judiciary Law 487 is applicable in both of its applications.  The first application, deceit in an ongoing legal proceeding was supported by defendant’s representation that it was fully authorized to settle this commercial real estate case.  The second application was supported by the financial irregularities in the settlement transaction.

"Empire alleges that on or about November 2, 2004, unbeknownst to Plaintiff, Cook executed a Stipulation of Settlement (the "Stipulation") on behalf of Plaintiff which obligated Empire to pay $17,230.48 to settle the dispute. Complaint at ¶¶14, 15. Empire claims that Cook did not inform Empire of the terms of the Stipulation or obtain Empire’s consent prior to Cook’s execution of the Stipulation.2 Complaint at ¶29; Pinto Affidavit at ¶¶20, 29. The Stipulation was "so ordered" by the Court. Affirmation of David J. Fischman at ¶28. According to Plaintiff, Cook represented to Empire that "the judge ruled that we had lost the case and that the landlord had prevailed in its claim for additional rent and other monies" and that Empire "had to give him a bank check, the next day, payable to the landlord in the amount of $17,230.48." Pinto Affidavit at ¶19. Empire asserts that it "never agreed to settle the case, especially for an amount which far exceeded any imaginable amount that could possibly be owed to the landlord." Pinto Affidavit at ¶20. Nevertheless, Empire provided a bank check dated November 3, 2004 to Cook based on Cook’s representation that a judge had heard the case and ruled against Empire out of "fear of violating a court order." Pinto Affidavit at ¶21.

Empire alleges that the Stipulation "obligated the plaintiff to pay monies to the landlord in an inappropriate amount." Complaint at ¶29. Empire contends that the landlord was not entitled to receive the $17,230.48 payment from Empire as that payment included rent which was already paid, a payment for real estate taxes that were not due, and $3,000 for the landlord’s attorney’s fees when Empire was not required to pay the landlord’s legal fees. Pinto Affidavit at ¶¶35-37. Empire contends that it informed Cook that no rent was due for the period of December of 2003 to March of 2004 and that a credit was due to Empire for tax payments that were made to the landlord because of a tax abatement that the landlord had received. Pinto Affidavit at ¶17.

Empire further contends that the Stipulation improperly did not provide for the return of Empire’s security deposit. Complaint at ¶29; Pinto Affidavit at ¶38. Additionally, Plaintiff claims that Brief Justice waived Empire’s right to pursue a refund of real estate taxes which had been overpaid and waived Empire’s right to vacate any portion of the judgment. Pinto Affidavit at ¶39."
 

"With respect to the third cause of action, Defendants argue that Judiciary Law Sec. 487 is inapplicable because the alleged fraud was not committed during a legal proceeding. According to Defendants, this cause of action must be dismissed because Cook’s alleged conversion of payments made to Empire occurred after the landlord-tenant proceeding had ended. It is true that a Judiciary Law 487(1) claim must fail if the alleged "deceit or collusion" is not directed at a Court and did not take place during the course of a pending judicial proceeding. Costalas v. Amalfitano, 305 A.D.2d 202, 204 (1st Dept. 2003). However, Empire contends that Cook deceived the Court in a proceeding when he represented in paragraph 11 of the Stipulation that he was "fully authorized" to "draft, negotiate and execute" the Stipulation on behalf of Empire when he in fact was not.

Furthermore, Judiciary Law Sec. 487(2) applies where an attorney "willfully receives any money or allowance for or on account of any money which he has not laid out, or becomes answerable for." Empire alleges that Cook received monies sent by the landlord in connection with the landlord-tenant proceeding for Empire’s security deposit and converted and withheld them from Plaintiff. Based on the foregoing, Empire has stated a valid cause of action pursuant to Judiciary Law Sec. 487.

Defendants argue that Cook’s alleged conduct is not serious enough to trigger Judiciary Law Sec. 487 and cite Gonzalez v. Gordon, 233 A.D.2d 191 (1st Dept. 1996) in support of their argument. However, that case is distinguishable because, as the Court noted, there was "no evidence that defendant defrauded plaintiff or engaged in conduct intended to deceive." Id. at 191. This case involves allegations of fraud and deceit which must be taken as true on this motion. Contrary to Defendants’ argument, the allegations that Cook essentially settled a case without even informing his client, deceived the Court by representing that he had the requisite authorization, and then misappropriated monies that were paid to his client are serious enough to invoke Judiciary Law Sec. 487."