Nasca v. Greene

2023 NY Slip Op 02317

Dean Nasca, appellant, v. Michael E. Greene, et al., respondents.

No. 2020-01849, Index No. 602933/19

Supreme Court of New York, Second Department

May 3, 2023

Dean Nasca, Bayport, NY, appellant pro se.

Armstrong Teasdale, LLP, New York, NY (Andrew T. Lolli of counsel), for respondents.

FRANCESCA E. CONNOLLY, J.P. PAUL WOOTEN JOSEPH A. ZAYAS BARRY E. WARHIT, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for violation of Judiciary Law § 487 and unjust enrichment, the plaintiff appeals from an order of the Supreme Court, Suffolk County (David T. Reilly, J.), dated January 8, 2020. The order insofar as appealed from, granted those branches of the defendants' motion which were pursuant to CPLR 3211(a) to dismiss the causes of action alleging violation of Judiciary Law § 487 and unjust enrichment.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In February 2019, the plaintiff commenced this action, inter alia, to recover damages for violation of Judiciary Law § 487 and unjust enrichment, alleging, among other things, that the plaintiff obtained a lien on certain real property owned by nonparty John Finocchio, and that the defendant attorneys colluded with Finocchio to transfer title to that property to nonparty 40-19 Realty, LLC (hereinafter the LLC), to circumvent the plaintiff's lien. Thereafter the defendants moved, inter alia, pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action. In an order dated January 8, 2020, the Supreme Court, among other things, granted those branches of the defendants' motion which were pursuant to CPLR 3211(a)(7) to dismiss the causes of action alleging violation of Judiciary Law § 487 and unjust enrichment. The plaintiff appeals.

"An attorney is liable under Judiciary Law § 487(1) if he or she is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party" (Long Is. Med. Anesthesiology, P.C. v Rosenberg Fortuna & Laitman, LLP, 191 A.D.3d 864, 866 [alterations and internal quotation marks omitted]). "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; see Long Is. Med. Anesthesiology, P.C. v Rosenberg Fortuna & Laitman, LLP, 191 A.D.3d at 866). Further, except where there is deceit directed against a court, Judiciary Law § 487 "applies only to wrongful conduct by an attorney in an action that is actually pending" (Mahler v Campagna, 60 A.D.3d 1009, 1012-1013; see Bill Birds, Inc. v Stein Law Firm, P.C., 35 N.Y.3d 173, 178; Meimeteas v Carter Ledyard & Milburn LLP, 105 A.D.3d 643, 643). Here, the plaintiff failed to allege wrongful conduct by the defendants during the course of a pending judicial proceeding or directed against a court. Rather, the alleged wrongful conduct involved the drafting of title documents and the securing of a mortgage, which occurred outside of a judicial proceeding (see Costalas v Amalfitano, 305 A.D.2d 202, 204; Hansen v Caffry, 280 A.D.2d 704, 705). Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging violation of Judiciary Law § 487 for failure to state a cause of action.

"The elements of a cause of action to recover for unjust enrichment are (1) the defendant was enriched, (2) at the plaintiff's expense, and (3) that it is against equity and good conscience to permit the defendant to retain what is sought to be recovered" (Travelsavers Enters., Inc v Analog Analytics, Inc., 149 A.D.3d 1003, 1006 [internal quotation marks omitted]; see Mandarin Trading Ltd. v Wildenstein, 16 N.Y.3d 173, 182). "The theory of unjust enrichment lies as a quasi-contract claim and contemplates an obligation imposed by equity to prevent injustice, in the absence of an actual agreement between the parties" (Travelsavers Enters., Inc. v Analog Analytics, Inc., 149 A.D.3d at 1006-1007 [alterations and internal quotation marks omitted]). "Although privity is not required for an unjust enrichment claim, a claim will not be supported if the connection between the parties is too attenuated" (Mandarin...