Judiciary Law § 487 is hard to prove to a court’s satisfaction. It is not “lightly given” and rarely proceeds past the pleading stage. Dreamco Dev. Corp. v Empire State Dev. Corp. 2021 NY Slip Op 00952 [191 AD3d 1444] February 11, 2021 Appellate Division, Fourth Department is a recent example.
“We likewise agree with defendants that the court erred in denying that part of the motion seeking to dismiss the ninth cause of action, for violations of Judiciary Law § 487, against Phillips Lytle LLP. Under section 487 (1), an attorney who “[i]s guilty of any deceit or collusion . . . with intent to deceive the court or any party,” is guilty of a misdemeanor and is potentially liable for treble damages to be recovered in a civil action. A violation of the statute may be established by evidence of the defendant’s alleged deceit (see Scarborough v Napoli, Kaiser & Bern, LLP, 63 AD3d 1531, 1533 [4th Dept 2009]; Izko Sportswear Co., Inc. v Flaum, 25 AD3d 534, 537 [2d Dept 2006]), but “alleged deceit that is not directed at a court must occur in the course of ‘a pending judicial proceeding’ ” (Hansen v Caffry, 280 AD2d 704, 705 [3d Dept 2001], lv denied 97 NY2d 603 ; see Sun Graphics Corp. v Levy, Davis & Maher, LLP, 94 AD3d 669, 669 [1st Dept 2012]; Henry v Brenner, 271 AD2d 647, 647-648 [2d Dept 2000]).
The complaint alleged that Phillips Lytle LLP “actively participated in the preparation and distribution of [a certain memorandum] and preparation and filing of multiple court submissions to the New York State Supreme and Appellate Courts that included false and misleading statements” and “knowingly caused these misstatements to be filed with the intent of deceiving the Courts.” The complaint failed to allege, however, that Phillips Lytle LLP engaged in egregious misconduct or made a material false statement in the course of a judicial proceeding. The allegedly deceitful memorandum was not directed at the court, and the complaint failed to allege that it was promulgated during a pending judicial proceeding (see Costalas v Amalfitano, 305 AD2d 202, 203-204 [1st Dept 2003]; Hansen, 280 AD2d at 705). Furthermore, it is evident from the face of the complaint that plaintiffs were not parties to a judicial proceeding when the [*3]memorandum was prepared. The complaint also failed to identify the “multiple court submissions” that allegedly contained false and misleading statements by Phillips Lytle LLP, and it thus failed to adequately allege that deceitful statements were directed at a court (see Hansen, 280 AD2d at 705).
Finally, even assuming, arguendo, that the statement of an attorney from Phillips Lytle LLP to a law clerk that, according to defendant Travelers Casualty and Surety Company of America (Travelers), DiPizio’s surety, DiPizio’s “paperwork was a mess and . . . the subcontractors didn’t know what to build,” was directed at the court, we nevertheless conclude that “the complaint fail[ed] to show . . . a deceit that reaches the level of egregious conduct” on the part of Phillips Lytle LLP (Savitt v Greenberg Traurig, LLP, 126 AD3d 506, 507 [1st Dept 2015] [internal quotation marks omitted]; see Englert v Schaffer, 61 AD3d 1362, 1363 [4th Dept 2009]; cf. Papa v 24 Caryl Ave. Realty Co., 23 AD3d 361, 361-362 [2d Dept 2005], lv denied 6 NY3d 705 , cert denied 547 US 1207 ). Moreover, defendants submitted, as part of their motion, documentary evidence in the form of email communications and deposition testimony establishing, inter alia, that consultants for Travelers did, in fact, express the belief that DiPizio’s paperwork was in disarray.”