Gordon v Vladislav Tsirkin CPA & Co., LLC 2024 NY Slip Op 03682 Decided on July 3, 2024 Appellate Division, Second Department is one of those appellate cases where the Court basically did not like the complaint. The decision uses the general language of a “failure to sufficiently allege” the claims. No particular facts are set forth or discussed.

“ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs, and those branches of the defendants’ motion which were pursuant to CPLR 3211(a) to dismiss the causes of action alleging accounting malpractice and breach of contract are granted.

The plaintiffs commenced this action, inter alia, to recover damages for accounting malpractice and breach of contract against the defendants, who are accountants, alleging that they failed to prepare and file K-1 statements and tax returns for Sapphire Agriculture, LLC, and ONYX, LLC. The defendants moved, among other things, pursuant to CPLR 3211(a) to dismiss the complaint. The Supreme Court, inter alia, denied those branches of the defendants’ motion which were to dismiss the causes of action alleging accounting malpractice and breach of contract. The defendants appeal.

“On a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint must be afforded a liberal construction, the facts therein must be accepted as true, and the plaintiff must be accorded the benefit of every possible favorable inference” (Angeli v Barket, 211 AD3d 896, 897; see Leon v Martinez, 84 NY2d 83, 87). “Although the facts pleaded are presumed to be true and are to be accorded every favorable inference, bare legal conclusions as well as factual claims flatly contradicted by the record are not entitled to any such consideration” (Garendean Realty Owner, LLC v Lang, 175 AD3d 653, 653 [internal quotation marks omitted]). “Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate” (Rabos v R & R Bagels & Bakery, Inc., 100 AD3d 849, 851-852; see Guggenheimer v Ginzburg, 43 NY2d 268, 274-275; Nassau Operating Co., LLC v DeSimone, 206 AD3d 920, 926). “Dismissal of the complaint is [*2]warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery” (Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d 137, 142; see Nassau Operating Co., LLC v DeSimone, 206 AD3d at 925).

In order to succeed on a claim for accounting malpractice, a plaintiff must demonstrate a departure from accepted standards of practice and that the departure was a proximate cause of injury (see Alskom Realty, LLC v Baranik, 189 AD3d 745, 747; Kristina Denise Enters., Inc. v Arnold, 41 AD3d 788, 789). “Injury is an element of the cause of action” (see Alskom Realty, LLC v Baranik, 189 AD3d at 747). Here, the plaintiffs failed to adequately plead a cause of action alleging accounting malpractice. The plaintiffs failed to sufficiently allege that the defendants departed from accepted standards of practice and that the defendants proximately caused the plaintiffs’ injuries (see Kristina Denise Enters., Inc. v Arnold, 41 AD3d at 789; see also Ecker v Zwaik & Bernstein, 240 AD2d 360, 362).”

Peck v Milbank LLP 2024 NY Slip Op 32596(U) July 29, 2024 Supreme Court, New York County Docket Number: Index No. 152290/2022 Judge: Andrew Borrok describes why the claim for violation of Judiciary Law 487 resisted a dismissal motion.

“The defendants are not however entitled to dismissal of the claim sounding in violation of Judiciary Law§ 487. 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; or, 2. Wilfully delays his client’s suit with a view to his own gain; or, wilfully receives any money or allowance for or on account of any money which he has not laid out, or becomes answerable for, Is 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. (Judiciary Law § 487). As discussed more fully below, the judicial proceedings privilege does not serve to shield the testimony of Georgiana Slade in the Surrogate Court’s proceeding where she was representing the Estate because, as alleged, this testimony was not given to assist the truth seeking process and she was not merely a fact witness. In fact, as alleged, she was not merely a fact witness and her testimony was given to undermine the truth seeking process ( Oakes v Muka, 56 AD3d 1057, 1058 [3d Dept 2008]). To wit, the First Amended Complaint (the FAC; NYSCEF Doc. No. 59) alleges that defendant Ms. Slade deliberately and vindictively (i) abused her position to have plaintiff Ian Peck cut out of a certain portion of his inheritance and (ii) lied to a tribunal all to get even for her father (Jarvis Slade)’s loss of a $100,000 investment some years ago after entrusting the funds to Ian Peck. Stated differently, at bottom, the F AC alleges that Ms. Slade deceived (and intended to deceive) a court in the State of New York when she was acting as an attorney for the Estate. This is sufficient to make out a Judiciary Law § 487 claim and to articulate why the judicial proceedings privilege does not apply at this stage of the litigation.”

“Ms. Slade’s father, Jarvis Slade, and Ian Peck’s father, Norman Peck, were business partners (NYSCEF Doc. No. 59, ,i,i 23-27). One of their co-investments involved an investment in an Ian Peck venture. In that venture, Jarvis Slade lost $100,000. When Mr. Slade requested “special treatment” as to the return of his money, Ian Peck refused. (Id., ,i,i 30-31.) Mr. Slade apparently became angry and never wanted his family to do business with Ian Peck again (id., ,i 32). Ms. Slade was a trust and estates attorney who represented Norman Peck. In 2006, as alleged, Ms. Slade recommended changes to one of Norman Peck’s trusts that held certain co-investment interests with Mr. Slade (i.e., the Horseneck Trust). As a result of these recommended changes to the revocable Horseneck Trust, Ian Peck was removed as a beneficiary. (Id., ,i,i 42-43, 49-50.) According to the PAC, Ms. Slade did not disclose to Norman Peck her father’s alleged animus or her potential personal contingent interest in the same assets (id., ,i,i 45-47). Separate from the co-investments, and as relevant to the instant dispute, Norman Peck also lent Ian Pack various sums of money over the years. In connection with those loans, Ian Peck executed a number of notes (the Notes) evidencing his obligation for repayment. The plaintiffs allege that Norman Peck’s intent (as embodied in certain estate planning) was that the Notes would be forgiven at his death, rather than repaid out of Ian Peck’s inheritance (id., ,i,i 59-71). Norman Peck passed away on April 16, 2016. He left a Will, the Horseneck Trust, and The Norman L. Peck Revocable Trust (the Peck Trust). After Norman Peck’s death, the Peck Trust also became irrevocable and Ian Peck’s interest in it vested (id., ,i 71). Within two weeks of Norman Peck’s death, the defendants filed a probate petition in the Surrogate’s Court of New York County (id., ,i,i 75-76). Ms. Slade and Milbank (hereinafter defined) represented the Estate in the proceeding before that court. Ms. Slade did not disclose (i) the alleged animus her father (and she) held against Ian Peck, (ii) that she had allegedly abused her position as Norman Peck’s attorney to have Ian Peck cut out of the revocable Horseneck Trust, or (iii) that a 2016 amendment executed by Norman Peck impacted (i.e., impaired) the estate’s ability to collect on the Notes (id., ,i,i 71-79, 126-131). Ms. Slade submitted an affidavit in the Surrogate’s Court action on April 27, 2016 (id., ,i 74-75, 90; NYSCEF Doc. No. 88). Ian Peck maintained that the Notes were intended to be forgiven under his late father’s testamentary plan. The Estate however brought two separate actions to collect on the Notes on the Estate’s behalf pursuant to CPLR § 3213 which the Surrogate’s Court granted (NYSCEF Doc. No. 59, ,i,i 80117.) On appeal, the Appellate Division reversed holding that (i) the Notes were not the type of instrument that was subject to CPLR § 3213 and (ii) there are issues of fact as to whether the Notes are inconsistent with the estate plan (In the Matter of the Estate of Norman L. Peck v Ian S. Peck, Case No. 2019-04713 [1st Dept, February 16, 2021]; NYSCEF Doc. No. 93). On February 15, 2022, the defendants filed a notice in the Surrogate’s Court formally withdrawing as counsel of record (NYSCEF Doc. No. 59, ,i 123).”

“The defendants are not correct that they are entitled to dismissal of the Judiciary Law § 487 cause of action based on the judicial proceedings privilege. To further the public policy goal of permitting persons involved in a judicial proceeding to write and speak about it freely among themselves, pertinent statements made in the course of such proceedings are protected by the judicial proceedings privilege (Front, Inc. v Khalil, 24 NY3d 713 [2015]). Whether a statement is at all pertinent to the litigation is determined by an extremely liberal test, and any doubts are to be resolved in favor of pertinence (Casa de Meadows Inc. [Cayman Is.] v Zaman, 76 AD3d 917, 920 [1st Dept 2010]). The privilege is chiefly directed at protecting allegedly defamatory statements. Allowing such statements to be a basis for a defamation action “would be an impediment to justice, because it would hamper the search for truth and prevent making inquiries with that freedom and boldness which the welfare of society requires.” (Front, Inc. v Khalil, 24 NY3d 713, 718 [2015], citing Youmans v Smith, 153 NY 214,220 [1897].) The privilege does apply to causes of action other than defamation, but it does not apply to malpractice or malicious prosecution (Hadar v Pierce, 111 AD3d 439,440 [1 st Dept 2013]). The privilege may apply to a cause of action for breach of fiduciary duty that is based on allegations of defamation, but it does not apply when such cause of action does not exclusively rely on allegedly defamatory statements made in the course oflitigation (Fletcher v Dakota, Inc., 99 AD3d 43, 54-55 [1st Dept 2012]) or when the actions giving rise to the claim take place before the statement in question (Toaspern v LaDuca Law Firm LLP, 154 AD3d 1149, 1152 [3d Dept 2017]).”

Jones Law Firm, P.C. v Keep Healthy, Inc. 2024 NY Slip Op 32519(U) July 15, 2024 Supreme Court, New York County Docket Number: Index No. 653385/2023 Judge: Kathleen Waterman-Marshall is the story of a law firm which has a captive arbitration firm and requires arbitrations for attorney fee claims to be arbitrated before the captive arbitrator. Supreme Court permits this arrangement.

“Petitioner Jones Law Firm, P.C. (“Jones Law Firm”) seeks to confirm the arbitration award dated July 7, 2023 (the “Award”) (NYSCEF Doc. No. 5) and for costs associated with the underlying arbitration proceeding and this motion. Respondents Keep Healthy, Inc, FMF Corp, Harbor Park Realty, LLC, and Jacob Adoni (“Respondents”)1 oppose and cross-move to vacate the Award on the bases that: the arbitrator engaged in misconduct, the arbitrator was partial, the arbitrator exceeded her authority, and the Respondents were not notified of the arbitration proceeding. Alternatively, Respondents seek to modify the Award on the basis that there was a miscalculation of figures and a mistake in the corporate entities referred to in the Award.”

“The retainer agreements (“Retainer Agreements”) between Jones Law Firm and Respondents provide, in relevant part:

In the event a dispute should arise under this contract, including but not limited to disputes over payment fees [sic], malpractice claims, or defamation claims relating to representation, the Firm and Clients agree to resolve the dispute by binding arbitration through Professional Arbitration and Mediation LLC (“PAM”). (NYSCEF Doc. No. 3 at pp. 4-5 and 13-14).”

“Respondents contend that the arbitration proceeding was marred by partiality and improper conduct. Respondents allege that the professional relationship between Mr. Porges and Mr. Jones of Jones Law Firm tainted the proceedings. As evidence of this claim, Respondents cite Jones Law Firm’s offer to “front” the costs of arbitration as an improper payment to the arbitrator. Similarly, Respondents allege that the second arbitrator also engaged in improper conduct, as Respondents contend they never received any communication from PAM following Mr. Porges’ recusal, including notice that a second arbitrator had been assigned, that the second arbitrator “rushed, at light speed” to render the Award, and the second arbitrator committed numerous errors of law and fact in calculating the award.”

“Respondents have failed to establish any of the limited grounds for vacating the Award, as provided by CPLR 7 511. At bottom, Respondents were aware of the arbitration proceedings, defaulted in these proceedings, and were not entitled to additional notice prior to the issuance of the arbitration award. Contrary to Respondent’s claims, there is no evidence of improper conduct by the arbitrators, nor was the Award issued against improper or omitted parties. Finally, to the extent that Respondents allege the arbitrator committed errors in calculating the award, Respondent’s should have raised arguments surrounding appropriate credits and calculation before the arbitrator, as errors of fact are not a sufficient basis to vacate or modify the award. Accordingly, the cross-motion is denied and Court turns to Jones Law Firm’s petition to confirm the Award.”

Jones Law Firm, P.C. v J Synergy Green, Inc. 2024 NY Slip Op 31127(U) April 2, 2024 Supreme Court, New York County Docket Number: Index No. 653730/2023 Judge: Lyle E. Frank is a familiar attorney fee claim with a legal malpractice defense and counterclaim. More novel is the Judiciary Law 487 claim against Professional Arbitration and Mediation, LLC claiming a relationship between Plaintiff and the arbitration company. A Judiciary Law 487 third-party action is dismissed.

” The underlying action arises out of allegations that defendant/third-party plaintiff failed to pay plaintiffs legal fees as required by its engagement agreement. The third-party action and counterclaims arise out of the plaintiffs relationship with third-party defendants PAM and David Treyster, in that defendants/third-party plaintiffs were caused to suffer damages based on the failure to disclose the relationship. It is undisputed that at the time the engagement agreement was signed by plaintiff and defendants, plaintiffs principal had a 100% ownership interest in PAM. Prior to filing the instant motion, the defendants/third-party plaintiffs and PAM entered into a stipulation that withdrew all causes of action as against PAM with the exception of the first cause of action of fraud and fifth Counterclaim alleging conspiracy to violate Judiciary Law § 487.”

“The Court finds that here, similar to the plaintiffs in Connaughton, the third-party complaint and counterclaims fails to specify any compensable damages from PAM’ s alleged fraud. In opposition to P AMs motion the defendants/third-party plaintiffs contend that plaintiff and PAM are agents of one another and thus PAM is vicariously liable for the plaintiffs alleged fraudulent conduct. This argument however misses the mark and is also unsupported by specific factual allegations. The third-party complaint and counterclaims fail to allege a sufficient basis to pierce the corporate veil or any facts sufficient to support defendant/third-party plaintiffs’ contention that any alleged fraud caused any additional damages separate and apart from those incurred by the alleged fraudulent conduct of plaintiff.”

“Similarly, the Court agrees that because the third-party complaint fails to properly state a claim for an underlying tort there can be no conspiracy cause of action pursuant to Judiciary Law § 487 (Am. Preferred Prescription, Inc. v Health Mgt., 252 AD2d 414,416 [1st Dept 1998]).”

Morris v Zimmer 2024 NY Slip Op 02314 [227 AD3d 696] May 1, 2024
Appellate Division, Second Department appears to be a pro se litigation over unauthorized trading in a brokerage account. The case wended its way to US District Court, to the Second Circuit, to a certiorari request to the US Supreme Court, and thence back to state Supreme Courts in New York and Westchester.

The case ended with judgments, but claims for Judiciary Law 487 were denied and then lost.

“n or about 2000, the plaintiffs, Daniel Morris and Lucille Morris, retained the defendant, David Zimmer, an attorney then admitted to practice in Maryland, to represent them in a dispute regarding alleged unauthorized trading in their brokerage accounts. In 2004, a settlement was reached, and the defendant, as the plaintiffs’ attorney, received the settlement funds on their behalf. However, he failed to deliver those funds to the plaintiffs, in addition to other funds owed to them. In 2007, Daniel Morris filed a grievance complaint against the defendant with the Attorney Grievance Commission of Maryland. By order of the Court of Appeals of Maryland dated May 5, 2009, the defendant was disbarred by consent (see Attorney Grievance Commn. of Md. v Zimmer, 408 Md 486, 970 A2d 891 [2009]). The plaintiffs also alerted various law enforcement authorities of the defendant’s conduct. In 2009, the New York County District Attorney’s Office commenced a criminal action against the defendant, charging him with grand larceny in the second degree in violation of Penal Law § 155.40 (1). In May 2010, pursuant to the terms of a plea agreement, the defendant pleaded guilty to petit larceny in violation of Penal Law § 155.25 and was afforded the opportunity to replead to a lesser charge upon payment to the plaintiffs of the full amount owed. Although the defendant subsequently made a partial payment, he failed to pay the full amount owed and instead executed an affidavit of confession of judgment in the plaintiffs’ favor in the amount of $77,625.

In May 2010, days after the defendant pleaded guilty in the criminal action, the plaintiffs commenced an action against him, among others, in the United States District Court for the Southern District of New York (hereinafter the federal action). In the second amended complaint, the plaintiffs asserted causes of action alleging breach of contract, breach of fiduciary duty, fraud, conversion, and fraudulent misappropriation of funds stemming from the defendant’s failure to pay the plaintiffs the amount owed (see Morris v Zimmer, 2011 WL 5533339, *1, *6-8, 2011 US Dist LEXIS 130919, *1, *15-20 [SD NY, Nov. 10, 2011, No. 10 Civ 4146 (VB)]). The plaintiffs subsequently sought leave to amend the second amended complaint, inter alia, to add a cause of action pursuant to Judiciary Law § 487, but the District Court denied their request. The plaintiffs then moved for summary judgment on the second amended complaint insofar as asserted against the defendant. By memorandum decision dated March 21, 2014, the District Court, among other things, adopted a magistrate judge’s report and recommendation in its entirety and granted that branch of the plaintiffs’ motion which was for summary judgment on the issue of liability against the defendant, while also making certain determinations with regard to damages (see Morris v Zimmer, 2014 US Dist LEXIS 38640, *2-5 [SD NY, Mar. 21, 2014, No. 10 Civ 4146 (VB)], affd 637 Fed Appx 654 [2d Cir 2016]; see also Morris v Zimmer, 2014 WL 7474770, *5-6, 2014 US Dist LEXIS 39608, *14-19 [SD NY, Feb. 11, 2014, No. 10 Civ 4146 (VB) (LMS)]). On June 9, 2014, a judgment was entered, inter alia, in favor of the plaintiffs and against the defendant awarding damages in the principal sum of $92,625. The plaintiffs appealed from the judgment. By summary order dated February 5, 2016, the United States Court of Appeals for the Second Circuit affirmed the judgment (see Morris v Zimmer, 637 Fed Appx 654 [2d Cir 2016]). On October 3, 2016, the United States Supreme Court denied the plaintiffs’ petition for writ of certiorari (see Morris v Zimmer, 580 US 873 [2016]).”

“The plaintiffs’ various arguments in support of their contention that this action was not barred by the doctrine of res judicata are without merit. They assert, for example, that the judgment in the federal action did not have a preclusive effect on this action because federal courts lack jurisdiction over applications made pursuant to CPLR 3218. Putting aside the question of whether this fact, if true, would affect the res judicata analysis, no such jurisdictional impediment exists (see Alland v Consumers Credit Corp., 476 F2d 951, 952-955 [2d Cir 1973]; Xerox Corp. v West Coast Litho, Inc., 251 F Supp 3d 534, 537-538 [WD NY 2017]). Moreover, the plaintiffs’ assertion that the judgment in the federal action had no preclusive effect on the Judiciary Law § 487 cause of action, in particular, is without merit. Although the District Court denied their request for leave to amend their second amended complaint, inter alia, to assert such a cause of action, the doctrine of res judicata is nonetheless applicable. The plaintiffs chose the federal court as the forum to litigate their claims against the defendant, and they could have litigated the Judiciary Law § 487 cause of action in that forum if they had asserted it earlier (see Incredible Invs. Ltd. v Grenga, 125 AD3d 1362, 1363-1364 [2015]; Syncora Guar. Inc. v J.P. Morgan Sec. LLC, 110 AD3d 87, 91-92, 95 [2013]). Their contention that this cause of action was not yet ripe at the time they commenced the federal action because the defendant had not yet pleaded guilty is factually inaccurate, as he pleaded guilty days before they filed their original complaint. Regardless, a criminal conviction is not a condition precedent to a Judiciary Law § 487 cause of action (see Papa v 24 Caryl Ave. Realty Co., 23 AD3d 361, 362 [2005]; Laing v Cantor, 280 AD2d 519, 519 [2001]; Schindler v Issler & Schrage, 262 AD2d 226, 228 [1999]).“

Gopstein v Bellinson Law, LLC 2024 NY Slip Op 02592 [227 AD3d 465] May 9, 2024
Appellate Division, First Department is really the story of an attorney who became a serial legal malpractice litigant. It started with a personal injury case, a settlement, a legal malpractice case, a settlement, an attorney fee case, a settlement and ended with yet another legal malpractice case, and a dismissal.

“In this legal malpractice action, plaintiff, an attorney acting pro se, alleges that defendants Bellinson Law, LLC, and Robert J. Bellinson (together Bellinson) negligently advised plaintiff to settle a legal malpractice action he commenced against his former attorney, Steven J. Pepperman. Pepperman initially represented plaintiff in a personal injury action. Unhappy with the results of a summary judgment motion, plaintiff replaced Pepperman with Bellinson in the personal injury action. Bellinson settled the personal injury action on plaintiff’s behalf. Afterward, plaintiff sued Pepperman for legal malpractice. Bellinson subsequently settled both the Pepperman legal malpractice action and Pepperman’s claim for legal fees in the personal injury action.

The court properly dismissed plaintiff’s claim pursuant to CPLR 3211 (a) (7) because he failed to state a cause of action (Leon v Martinez, 84 NY2d 83, 87 [1994]). In order to survive a motion to dismiss, a plaintiff’s complaint in an action for legal malpractice must show that “but for counsel’s alleged malpractice, the plaintiff would not have sustained some actual ascertainable damages” (Pellegrino v File, 291 AD2d 60, 63 [1st Dept 2002], lv denied 98 NY2d 606 [2002]). Moreover, speculative or conclusory damages cannot be the basis of a malpractice claim (see id.).

Here, plaintiff’s allegation that Bellinson’s advice denied him the full value of his malpractice suit against Pepperman was “purely conclusory” (Murray Hill Invs. v Parker Chapin Flattau & Klimpl, 305 AD2d 228, 229 [1st Dept 2003]). Plaintiff’s complaint lacked any factual allegations to support his conclusion that he “would have succeeded” in achieving a better result in the personal injury action but for Pepperman’s negligence, and that he would have proved legal malpractice against Pepperman but for defendants’ advice (Pellegrino, 291 AD2d at 63). Additionally, plaintiff’s damages were speculative as he provided no basis for his calculations (see id.; Zarin v Reid & Priest, 184 AD2d 385, 387-388 [1st Dept 1992]).

Although the motion court correctly dismissed the Judiciary Law § 487 claim, the proper basis for dismissal is that the claim was insufficiently pleaded given that it is supported by conclusory allegations of intentional deceptive conduct, rather than being duplicative of the legal malpractice (see Sabalza v Salgado, 85 AD3d 436, 438 [1st Dept 2011]).In any event, the court also properly dismissed plaintiff’s Judiciary Law § 487 claim as it is without merit. “Professional shortcomings or disagreements as to litigation strategy that do not involve intentional false statements in the context of litigation may sound in legal malpractice, but [*2]not in attorney deceit” under Judiciary Law § 487 (Urias v Daniel P. Buttafuoco & Assoc., PLLC, — NY3d —, —, 2024 NY Slip Op 01497, *3 [2024]; see also Bill Birds, Inc. v Stein Law Firm, P.C., 35 NY3d 173, 179 [2020]).”

Grasso v Guarino 2024 NY Slip Op 02692 [227 AD3d 872] May 15, 2024
Appellate Division, Second Department demonstrates how rarely Judiciary Law 487 relief is permitted on motions to dismiss, and even more rarely applied after all motion practice. the AD recited the various standards of the need for “an intent to deceive” as opposed to mere negligence, the requirement of egregious conduct or a chronic and extreme pattern of behavior.

“In 2011, the defendant represented the Town of Babylon in an action (hereinafter the 2011 action) commenced in the District Court, Suffolk County, against the plaintiff, alleging violations of the Town Code. In November 2017, the plaintiff commenced this action against the defendant individually and in his capacity as principal owner of Law Offices of Jerry C. Guarino, P.C. The plaintiff asserted causes of action alleging a violation of Judiciary Law § 487, fraud, and intentional infliction of emotional distress. The basis for the plaintiff’s allegations was the defendant’s conduct in the 2011 action, consisting of, inter alia, an alleged deceitful representation by the defendant in response to the plaintiff’s discovery demands, wherein the defendant represented that there were no notes taken by Town employees related to the plaintiff’s alleged violations of the Town Code, and the defendant’s alleged deceitful statement in a letter to the District Court, asserting that the plaintiff’s counsel had been sanctioned when the defendant should have known that those sanctions had been vacated. The defendant moved pursuant to CPLR 3211 (a) to dismiss the amended complaint. In an order dated March 7, 2022, the Supreme Court granted the motion. The plaintiff appeals.

“On a motion to dismiss pursuant to CPLR 3211 (a) (7), the complaint must be afforded a liberal construction, the facts therein must be accepted as true, and the plaintiff must be accorded the benefit of every possible favorable inference” (Angeli v Barket, 211 AD3d 896, 897 [2022]; see Leon v Martinez, 84 NY2d 83, 87 [1994]).

A cause of action alleging a violation of Judiciary Law § 487 “requires, among other things, an act of deceit by an attorney, with intent to deceive the court or any party” (Shaffer v Gilberg, 125 AD3d 632, 636 [2015] [internal quotation marks omitted]; see Cordell Marble Falls, LLC v Kelly, 191 AD3d 760, 762 [2021]). “ '[V]iolation of Judiciary Law § 487 requires an intent to deceive’ as [*2]opposed to conduct which is negligent” (Cordell Marble Falls, LLC v Kelly, 191 AD3d at 762 [citation omitted], quoting Moormann v Perini & Hoerger, 65 AD3d 1106, 1108 [2009]). “Relief pursuant to Judiciary Law § 487 is not lightly given, and requires a showing of egregious conduct or a chronic and extreme pattern of behavior on the part of the defendant attorneys” (Kaufman v Moritt Hock & Hamroff, LLP, 192 AD3d 1092, 1093 [2021] [citation and internal quotation marks omitted]). “A cause of action alleging a violation of Judiciary Law § 487 must be pleaded with specificity” (id. [internal quotation marks omitted]). Here, even accepting the allegations in the amended complaint as true and according the plaintiff the benefit of every possible favorable inference, the amended complaint did not allege conduct that is actionable under Judiciary Law § 487 (see Kaufman v Moritt Hock & Hamroff, LLP, 192 AD3d at 1093).”

Lutin v Perlberger 2024 NY Slip Op 31879(U) May 29, 2024 Supreme Court, New York County Docket Number: Index No. 158734/2023 Judge: Dakota D. Ramseur is the story of attorney fees, pro-se plaintiffs, a judgment from 2000 and the aftermath. Plaintiff loses this round.

“Pro se plaintiff, Gary Lutin (plaintiff), commenced this action for extortion, fraud, and pursuant to Judiciary Law§ 487, against defendants, Ralph Perlberger, the Law Offices of Ralph Perlberger (collectively, the Perlberger defendants), Eric P. Schutzer (Schutzer) and The Schutzer Group, PLLC (collectively, the Schutzer defendants), stemming from Perlberger’s representation of plaintiff in another matter and the Schutzer defendants’ efforts to collect fees from plaitniff due to Perl berger. The Schutzer defendants now move pursuant to CPLR 321 l(a)(l), (5) and (7) to dismiss the complaint. The motion is opposed. For the following reasons, the motion is granted. As relevant to the instant motion, on July 2, 2001, the New York City Civil Court granted Perlberger a $37,043.75 money judgment against plaitniff in the action entitled Per/berger v Lutin, Index No. TS 1781-00/NY (the 2001 Judgment). The 2001 Judgment covered fees plaintiff owed the Perlberger defendants for legal services rendered in two commercial litigations: Lutin v New Jersey Steel Corporation, et al. and D.S. Atkinson, Inc. v Lutin Central Services Co., Inc. The Civil Court simultaneously dismissed plaintiffs counterclaims against the Perl berger defendants for legal malpractice in those matters. On May 24, 2018, Perl berger commenced an action in Supreme Court, New York County entitled Per/berger v Lu tin, Index No. 154885/2018, by the filing of a summons and motion for summary judgment in lieu of complaint, seeking to renew the 2001 Judgment (the Renewal Action). By order dated August 13, 2018, another justice of this court granted Perl berger’ s motion over plaintiffs opposition and directed the parties to settle an order on notice. On June 5, 2019, the County Clerk entered the renewal judgment against plaintiff in the amount of $97.594.11 (Renewal Judgment). On February 25, 2020, plaintiff filed a motion to vacate the Renewal Judgment for lack of jurisdiction. On April 27, 2020, another justice of this court denied the motion.”

“Claims for “[e]xtortion and attempted extortion are criminal offenses (see Penal Law§ 155.05[2][e]; § 110.00) that do not imply a private right of action” (Minnelli v Soumayah, 41 AD3d 388, 389 [1st Dept 2007]). Plaintiff’s opposition concedes that his allegations concerning extortion do not make out a cognizable claim, but instead requests leave to serve an amended complaint to change his fifth and sixth causes of action to caption them as “Harassment” instead of “Extortion.” Plaintiffs request is denied, as plaintiff has not moved to amend the complaint or otherwise presented any of the substance of the proposed amendments, and thus, the Court is unable to weight the sufficiency of the proposed amendments (see JP Morgan Chase Bank, NA. v Hall, 122 AD3d 576, 582 [2d Dept 2014] [holding that the lower court correctly denied plaintiff’s request for leave to amend was made in a footnote on the final page of the of the third party plaintiffs memorandum of law and “there is no indication, even in a conclusory fashion, as to what the new pleadings would be”]). Plaintiffs allegations that the Schutzer defendants forged documents tie directly into plaintiff’s allegations concerning extortion, that is, plaintiff alleges that the Schutzer defendants used forged documents to extort plaintiff. Thus, as plaintiffs facts alleging extortion do not state a claim, so too are plaintiff’s claims that the Schutzer defendants submitted a forged document insufficient to state a claim. To state a cause of action to recover damages for fraud, which must be pleaded with the requisite particularity under CPLR 3016(b), a plaintiff must allege “[a] misrepresentation or a material omission of fact which was false and known to be false by the defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury” (DeMartino v Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP, 189 AD3d 774, 775 [2d Dept 2020] [internal quotation marks and citations omitted]).”Pursuant to Judiciary Law§ 487, an attorney who is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party is guilty of a misdemeanor, and forfeits to the party injured treble damages, to be recovered in a civil action” (DeMartino at 775-76 [internal quotation marks and citations omitted]). A cause of action to recover damages for violation of Judiciary Law § 487 must be pleaded with specificity (see id.). Here, plaintiff fails to plead facts stating a claim for both “fraud on the court” and under Judiciary Law§ 487. Plaintiff essentially alleges that the Schutzer defendants falsely claimed they filed certain documents as part of the Renewal Action, and that those statements resulted “[i]n the improper impositions of costs and burdens not only on Plaintiff and the court but also on non-party organizations” and further that the court in the Renewal Action did not “hear evidence of a previous settlement of Perlberger’ s claims.” However, plaitniff [sic] fails to allege a deception as to material facts, the Schutzer defendants’ intention to deceive, “[o]r that that [plaintiff] suffered damages that were proximately caused by the alleged deceit” (id. at 776). Again, plaintiff requests that: “If the Complaint does not satisfy the pleading requirements established by that case, or by other relevant cases, Plaintiff requests the Court’s direction to amend the Complaint accordingly.” As discussed in the preceding section, plaitniff [sic] failed to provide any factual basis to support his request for leave to amend the complaint, and thus, the request is denied (see JP Morgan Chase Bank, NA. at 582). Accordingly, as plaitniff [sic] failed to plead facts suggesting that the Schutzer defendants intentionally deceived plaintiff or the Court, or any damages flowing therefrom, plaintiff’s claims for “fraud on the court” and under Judiciary Law § 487 are dismissed.”