Beyond that question, when does Melcher v. Greenberg Traurig, LLP, ‘s 6-year statute of limitation apply and when does Farage v. Ehrenberg’s three year statute apply?

In either setting Pergament v Government Employees Ins. Co. (“GEICO”) 2026 NY Slip Op 00267 Decided on January 21, 2026 Appellate Division, Second Department reminds us that only attorneys engaged in deceit, in a litigation setting can be held under Judiciary Law 487.

“In May 2023, the plaintiff, as Chapter 7 Trustee of the estate of Melissa Gace Bryant, moved for leave to amend the complaint to add a new cause of action, alleging that the defendants violated Judiciary Law § 487(1), inter alia, by engaging in deceit and collusion to intentionally mislead Bryant by convincing her to file for bankruptcy in an effort to “wipe out” a judgment in an underlying personal injury action against her to the extent that the amount of the judgment exceeded her available insurance coverage. Additionally, the proposed amendment alleged that this was part of a scheme to avoid any causes of action alleging bad faith and legal malpractice against the defendants and to protect their own interests to the detriment of Bryant. The proposed amendment further alleged that the defendants misled Bryant into rejecting a settlement offer after entry of the underlying judgment that included Bryant assigning over to the injured plaintiff in the underlying action her rights to bring this action against the defendants in exchange for a forbearance of the excess. The defendants opposed the motion. In an order entered November 21, 2023, the Supreme Court granted that branch of the plaintiff’s motion which was for leave to amend the complaint to add a cause of action alleging a violation of Judiciary Law § 487(1) against the defendants Picciano & Scahill, LLP, and Gilbert J. Hardy (hereinafter together the P & S defendants) and the defendants Neil H. Greenberg & Associates, P.C., and Neil H. Greenberg (hereinafter together the Greenberg defendants), and denied that branch of the motion which was for leave to amend the complaint to add a cause of action alleging a violation of Judiciary Law § 487(1) against the defendant Government Employees Insurance Company (“GEICO”) (hereinafter Geico). The P & S defendants and the Greenberg defendants separately appeal, and the plaintiff cross-appeals. We affirm.”

“The Greenberg defendants’ contention that the proposed amendment insofar as asserted against them was patently devoid of merit because it was time-barred by the applicable statute of limitations is improperly raised for the first time on appeal (see Chao v Westchester Med. Ctr. Advanced Physicians Servs., P.C., 131 AD3d 1130; Melendez v City of New York, 271 AD2d 416).

The P & S defendants’ contention that the proposed amendment insofar as asserted against them was patently devoid of merit because it was time-barred by the applicable statute of limitations is without merit. The proposed new cause of action alleging a violation of Judiciary Law § 487(1), which was premised upon the same facts, transactions, or occurrences alleged in the original complaint seeking damages for legal malpractice against the P & S defendants, related back to the date of the original timely complaint (see CPLR 203[f]; see O’Keefe v Barra, 215 AD3d 1039; MBIA Ins. Corp. v J.P. Morgan Sec., LLC, 144 AD3d 635; Cinao v Reers, 27 Misc 3d 195 [Sup Ct, Kings County]).

Contrary to the contentions of the P & S defendants and the Greenberg defendants, “the [proposed] cause of action alleging violation of Judiciary Law § 487 is not duplicative of the cause of action alleging legal malpractice. ‘A violation of Judiciary Law § 487 requires an intent to deceive (see Judiciary Law § 487), whereas a legal malpractice claim is based on negligent conduct'” (Bianco v Law Offs. of Yuri Prakhin, 189 AD3d 1326, 1329, quoting Moormann v Perini & Hoerger, 65 AD3d 1106, 1108; see Bill Birds, Inc. v Stein Law Firm, P.C., 164 AD3d at 637).

Further, under the circumstances presented here, the P & S defendants and the Greenberg defendants failed to demonstrate that they would be surprised or prejudiced by the proposed amendment to the complaint or that the proposed amendment was palpably insufficient or patently devoid of merit (see Flowers v Mombrun, 212 AD3d 713, 714-715; Lauder v Goldhamer, 122 AD3d 908).

Accordingly, the Supreme Court properly granted that branch of the plaintiff’s motion which was for leave to amend the complaint to add a cause of action alleging a violation of Judiciary Law § 487(1) against the P & S defendants and the Greenberg defendants.

Contrary to the plaintiff’s contention, that branch of his motion which was for leave to amend the complaint to add a cause of action alleging a violation of Judiciary Law § 487(1) against Geico was properly denied as patently devoid of merit (see McCluskey v Gabor & Gabor, 61 AD3d 646, 648), because, among other things, the plaintiff did not allege that Geico acted as counsel of record in any legal proceeding to which Bryant was a party (see Bill Birds, Inc. v Stein Law Firm, P.C., 35 NY3d at 177; Pinkesz Mut. Holdings, LLC v Pinkesz, 198 AD3d 693, 697-698; Mazzocchi v Gilbert, 185 AD3d 438).”

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