Kaufman v. Moritt Hock & Hamroff, LLP

192 A.D.3d 1092

141 N.Y.S.3d 371 (Mem)

Allen M. KAUFMAN, etc., appellant,

v.MORITT HOCK & HAMROFF, LLP, et al., respondents.

2018-14550

Index No. 611671/17

Supreme Court, Appellate Division, Second Department, New York.

Submitted—January 22, 2021

March 31, 2021

Marzano Lawyers PLLC, New York, N.Y. (Naved Amed of counsel), for appellant.

L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y. (Marian C. Rice and Meredith D. Belkin of counsel), for respondents.

CHERYL E. CHAMBERS, J.P., SYLVIA O. HINDS–RADIX, COLLEEN D. DUFFY, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages pursuant to Judiciary Law § 487, the plaintiff appeals from an order of the Supreme Court, Nassau County (Thomas Feinman, J.), entered September 10, 2018. The order granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action against attorneys who formerly represented his brother in certain Surrogate's Court estate administration matters. The plaintiff sought damages pursuant to Judiciary Law § 487. "Under Judiciary Law § 487(1), an attorney who ‘[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party’ is liable to the injured party for treble damages" ( Izmirligil v. Steven J. Baum, P.C., 180 A.D.3d 767, 771, 119 N.Y.S.3d 503 ).

Contrary to the defendants' contention, the plaintiff was not precluded from commencing this action in the Supreme Court, even though it related to the alleged conduct of the defendants in the prior Surrogate's Court matters (cf. Urias v. Daniel P. Buttafuoco & Assoc., PLLC, 173 A.D.3d 1244, 1246, 104 N.Y.S.3d 712 ; Gillen v. McCarron, 126 A.D.3d 670, 6 N.Y.S.3d 253 ). Nevertheless, the complaint, even when construed in the light most favorable to the plaintiff (see Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ), does not allege conduct that is actionable under Judiciary Law § 487.

Relief pursuant to Judiciary Law § 487 "is not lightly given" ( Chowaiki & Co. Fine Art Ltd. v. Lacher, 115 A.D.3d 600, 601, 982 N.Y.S.2d 474 ), and requires a showing of "egregious conduct or a chronic and extreme pattern of behavior on the part of the defendant attorneys" ( Savitt v. Greenberg Traurig, LLP, 126 A.D.3d 506, 507, 5 N.Y.S.3d 415 [internal quotation marks omitted]; see Facebook, Inc. v. DLA Piper LLP [US], 134 A.D.3d 610, 615, 23 N.Y.S.3d 173 ; Wailes v. Tel Networks USA, LLC, 116 A.D.3d 625, 625–626, 983 N.Y.S.2d 801 ). "A cause of action alleging a violation of Judiciary Law § 487 must be pleaded with specificity" ( Betz v. Blatt, 160 A.D.3d 696, 698, 74 N.Y.S.3d 75 ; see Sammy v. Haupel, 170 A.D.3d 1224, 1225, 97 N.Y.S.3d 269 ).

The complaint essentially alleges only that in the underlying Surrogate's Court matters, the defendants advocated for certain legal and factual positions on behalf of their client. Under these circumstances, the Supreme Court properly granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint, finding that these allegations, even if proven, would not entitle the plaintiff to relief pursuant to Judiciary Law § 487 (see Sammy v. Haupel, 170 A.D.3d at 1225–1226, 97 N.Y.S.3d 269 ; Seldon v. Lewis Brisbois Bisgaard & Smith LLP, 116 A.D.3d 490, 491, 984 N.Y.S.2d 23 ; Schiller v. Bender, Burrows & Rosenthal, LLP, 116 A.D.3d...