Legal Malpractice

Judiciary Law 487 Claims Survives Even after Litigation Over

By (Andrew Lavoott Bluestone)

Judiciary Law 487 may be the oldest statute in the English-American Law world.  It dates from 1275, just years after the Magna Carta,  Once in a while we see a reference to Marbury v. Madison, 5 US (1 Cranch) 137 (1803) and think that perhaps this a law student or a new lawyer flexing some muscle.

1275 is a whole other ballgame, however.  There are some misconceptions about the statute which may have been cured by the Court of Appeals decision in Amalfitano v. Rosenberg, 12 NY3d 8 (2009).  One, taken up here, is whether the deceit or attempt to deceive has to be to a judge, or may it be to litigants, or even non-litigants.  In Mokay v Mokay ;2009 NY Slip Op 08528
Decided on November 19, 2009 ;Appellate Division, Third Department  we see that even a non-party may be the subject of an attempt to deceive, and this behavior will be sufficient for a violation of Judiciary Law 487.
 

"Next, we turn to Neroni's argument that his conduct was "covered by advisor's immunity" and therefore not actionable. It is the general rule that "attorneys, in the exercise of their proper functions as such, shall not be civilly liable for their acts when performed in good faith and for the honest purpose of protecting the interests of their clients" (Gifford v Harley, 62 AD2d 5, 7 [1978] [internal quotation marks and citation omitted]). However, "[a]n attorney may [*3]be liable to third parties for wrongful acts if guilty of fraud or collusion or of a malicious or tortious act" (Kahn v Crames, 92 AD2d 634, 635 [1983]; see Mills v Dulin, 192 AD2d 1001, 1003 [1993]; Koncelik v Abady, 179 AD2d 942, 944 [1992]). Moreover, Judiciary Law § 487 sets forth a civil cause of action that may be established by, among other things, an attorney's intent to deceive (see Amalfitano v Rosenberg, 12 NY3d 8, 14 [2009]; Scarborough v Napoli, Kaiser & Bern, LLP, 63 AD3d 1531, 1533 [2009]; Singer v Whitman & Ransom, 83 AD2d 862, 863 [1981]).

Here, Neroni's actions were directed at a judgment of Supreme Court of which he was fully aware and had, in fact, participated in constructing the terms thereof. He was present and representing decedent at the time the terms of the pertinent stipulation were placed on the record and he was involved in the stipulation being incorporated into the judgment of divorce. The stipulation was neither ambiguous nor unenforceable. It clearly provided that decedent would keep the two parcels during his life, but that such parcels would ultimately pass to his five children [FN1]. Plaintiffs presented proof, including a detailed affidavit from Mokay, establishing that, despite his obvious knowledge of the stipulation, Neroni suggested to decedent shortly after the divorce various schemes to attempt to circumvent the transfer and, when decedent elected one of those schemes, Neroni prepared the documents he had advised would successfully accomplish the nefarious goal. The documents were executed and Neroni had them recorded in a fashion aimed at avoiding publication of the transactions. This proof was sufficient to meet plaintiffs' threshold burden and Neroni failed to contest these basic underlying facts. Accordingly, Supreme Court properly granted plaintiffs' motion for partial summary judgment. "

Full post as published by New York Attorney Malpractice Blog on December 02, 2009 (boomark / email).