Completing our review of the 2015 Judiciary Law§ 487 cases, Tooker v Schwartzberg  2015 NY Slip Op 31620(U)  August 17, 2015  Supreme Court, Suffolk County  Docket Number: 9463/14
allows Judge Paul J. Baisley to set forth the basic rules of Judiciary Law §487 as well as Fraud upon the Court.

First:  the conclusion:  “ORDERED that the Court finds that the actions of plaintiff Marie Guerrera Tooker in commencing and continuing the instant action when the lack of Legal or factual basis was apparent, should. have been apparent, or was brought to the attention of plaintiff, is frivolous within the meaning of22 NYCRR §130-1.1, and the Court hereby awards the moving defendants costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney’s fees resulting from such frivolous conduct; and it is further ORDERED that a hearing will be held before the undersigned on August 27, 2015 at 11 :00 a.m. to determine the amount of costs to be imposed on plaintiff pursuant to 22 NYCRR § 130-1.1. ”

Then the rules:  “Other than her conclusory allegations, however, plaintiff has set forth no facts to establish that the movants, or any of the defendants, committed a fraud on the Court or violated Judiciary Law §487 in connection with the foreclosure action. With regard to the former, the Court of Appeals recently held that:

“in order to demonstrate fraud on the court, the non-offending party must establish by clear and convincing evidence that the offending ‘party has acted knowingly in an attempt to hinder the fact finder’s fair adjudication of the case and his adversary’s defense of the action” [citations omitted). A court must be persuaded that the fraudulent conduct, which may include proof of fabrication of evidence, perjury, and falsification of documents concerns ‘issues that are central to the truth-finding process’ [citation omitted]. Essentially, fraud upon the court requires a showing ‘that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party’s claim or defense'” [citations omitted] (CDR Creances S.A.S v Cohen, 23 NY3d 307 [2014]).

As to the latter, Judiciary Law §487 provides that “An attorney or counselor who: 1. Is 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.” The plaintiff has the burden of pleading and proving that the attorney, whether in a physical appearance or by any oral or written statement communicated to the Court or any party, intended to deceive the Court or that party (Dupree v Voorhees, I 02 AD3d 912 [2d Dept 2013]; Amalfitano v Rosenberg, 533 F3d 117 [2d Cir 2008]). “