Sun Jackie Huh v Harter, Secrest & Emery, Llp 2018 NY Slip Op 30249(U) February 5, 2018 Supreme Court, New York County Docket Number: 160167/2016 Judge: Anthony Cannataro presents a number of challenges to understanding the dispute. The facts are simple enough. Plaintiff goes to an acupuncturist, who basically loses and then breaks a needle, requiring surgical removal. Case goes to trial against the acupuncturist and the needle manufacturer, settles with the manufacturer and gets a modest verdict against the acupuncturist. So far, so good. Plaintiff then brings a Judiciary Law § 487 action against the defense attorneys. The court dismisses on what seems to be a lack of “egregious” conduct.
“Plaintiff has failed to plead deceit or collusion sufficient to support a Judiciary Law§ 487
( 1) claim. Plaintiff effectively claims that defendants interposed and pursued a frivolous
defective product defense on behalf of their client. This is insufficient to make out a claim under Judiciary Law§ 487 (see Mintz v Rosenberg, Mine, Falkojf & Wolff, LLP, 53 Misc 3d 132(A),
2016 NY Slip Op 51388[U] [App Term, pt Dept 2016] [“The allegations that defendants filed a
certificate of merit and/or a note of issue in the prior action when they lacked sufficient
supporting medical expert opinion were not ‘sufficiently egregious’ to support (a Judiciary Law§
487) claim”]). Moreover, even accepting for purposed of the motion that there was no merit to
the defective product theory against DBA (with whom plaintiff settled for $25,000), and
defendants knew it lacked merit, as the pleadings in the underlying action make clear, the
defendants imposed no such defense. They merely interposed a contingent cross claim that
sought, in the event plaintiff was successful in establishing DBA’s liability, to shift some portion
of the responsibility for plaintiffs injury to codefendant DBA on a theory plaintiff pleaded. The
fact that defendants, for economic or strategic reasons, chose not to hire an expert on the issue,
and, by plaintiffs own admission in the complaint (,-f ,-f 12, 15), did little to pursue the defective
product theory, does not alter the analysis. It was not defendants’ burden to prove a defective
product theory that plaintiff alleged against DBA. The fact defendants may not have vigorously
pursued the cross claim and relied solely on Yi’s testimony that he believed the needle was
defective, and the trial court consequently took the question away from the jury, does not make
out a cause of action under Judiciary Law§ 487. “