McKinney's Consolidated Laws of New York Annotated CurrentnessJudiciary Law (Refs & Annos)
Chapter 30. Of the Consolidated LawsArticle 15. Attorneys and Counsellors (Refs & Annos)
§ 487. Misconduct by attorneys
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 orany party; or,
2. Wilfully delays his client's suit with a view to his own gain; or, wilfully receives any money or allowance foror 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 tothe party injured treble damages, to be recovered in a civil action.
CREDIT(S)
(Added L.1965, c. 1031, § 123.)
HISTORICAL AND STATUTORY NOTES
L.1965, c. 1031 legislation
Section effective Sept. 1, 1967, pursuant to L.1965, c. 1031, § 195.
Derivation
Penal Law of 1909 § 273; repealed by Penal Law of 1965 § 500.05. Said § 273 was from Penal Code § 148,L.1881, c. 676, and from Code Civ.Proc. §§ 70, 71.
61 ALR 4th 615, Attorney's Liability, to One Other than Immediate Client, for Negligence in Connection WithLegal Duties.
77 ALR 1044, Estoppel Against Defense of Limitation in Tort Actions.
98 ALR 267, Test or Criterion of Gross Negligence or Other Misconduct that Will Support Recovery of Exem-plary Damages for Bodily Injury or Death Unintentionally Inflicted.
113 ALR 1179, What Amounts to Conviction or Satisfies Requirement as to Showing of Conviction, WithinStatute Making Conviction a Ground for Refusing to Grant or for Canceling License or Special Privilege.
154 ALR 501, Attorney's Representation of Parties Adversely Interested as Affecting Judgment or Estoppel inRespect Thereof.
Encyclopedias
21 Am. Jur. Proof of Facts 2d 463, Estoppel to Assert Statute of Limitations in Contract Action.
45 Am. Jur. Proof of Facts 2d 699, Amount of Allowance for Attorney Fees in Domestic Relations Action.
4 Am. Jur. Trials 441, Solving Statutes of Limitation Problems.
Carmody-Wait, 2d § 36:168, Form: Verified Bill of Particulars--Legal Malpractice Action--Attorney Represent-ing Client in Matrimonial Matter.
Carmody-Wait, 2d § 121:256, Form: Complaint--Shareholders' Derivative Action--Wrongful Benefits andProfits to Directors and Officers--Excessive Compensation to Officer and Payments to Law Firm Representing.
McKinney's Forms, Business Corporation Law § 8:11, Complaint in Shareholders' Derivative Action; WrongfulBenefits and Profits to Directors and Officers, Etc.; Example 2 (Form: N.Y. Bus. Corp. Law S626).
McKinney's Forms, Civil Practice Law & Rules § 2:59, Methods of Service of Process, Generally.
McKinney's Forms, Civil Practice Law & Rules § 4:171, Complaint for Attorney Malpractice, Conversion, andBreach of Contract (Form: CPLR 3011).
McKinney's Forms, Civil Practice Law & Rules § 12:14, Service.
McKinney's Forms, Civil Practice Law & Rules § 12:325, Costs and Sanctions for Frivolous Litigation.
McKinney's Forms, Estates & Surrogate Prac. § 14:236, Affidavit by Defendant Attorney in Support of Noticeof Cross-Motion for Summary Judgment Where Trust Beneficiaries Brought Action for Legal Malpractice(Form).
McKinney's Forms, Selected Consol. Law, Judiciary Law § 487 Form 1, Complaint in Action by Client AgainstFormer Attorney for Legal Malpractice, Conversion, and Treble Damages.
McKinney's Forms, Selected Consol. Law, Judiciary Law § 487 Form 2, Notice of Motion for Summary Judg-ment in Action by Client Against Former Attorney for Legal Malpractice, Conversion, and Treble Damages.
McKinney's Forms, Selected Consol. Law, Judiciary Law § 487 Form 3, Affidavit in Support of Motion forSummary Judgment in Action by Client Against Former Attorney for Legal Malpractice, Conversion, and TrebleDamages.
McKinney's Forms, Selected Consol. Law, Judiciary Law § 487 Form 5, Complaint in Action by Clients AgainstFormer Attorneys for Legal Malpractice and Treble Damages.
Treatises and Practice Aids
New York Pattern Jury Instructions--Civil 3:20, Intentional Torts--Fraud and Deceit.
New York Pattern Jury Instructions--Civil 2:152, Malpractice--Attorney.
New York Pattern Jury Instructions--Civil 2:278, Damages--Punitive.
NY Prac. Comm. Lit. in NY State Courts § 16:18, Special Considerations Regarding Finality of Judgments--Appeals and Collateral Attack.
NY Prac. Comm. Lit. in NY State Courts § 47:12, Fraud--Breach of Fiduciary Duty.
NY Prac. Comm. Lit. in NY State Courts § 65:19, Deception; Characterizing Others' Statements and Positions.
NOTES OF DECISIONS
Aiding and abetting, deceit or collusion 19.5Bribery, deceit or collusion 13Civil actions 21Collateral estoppel 27.7Collusion 8-19Complaint 24Consolidation of actions 22Construction and application 1Damage caused, deceit or collusion 10Deceit or collusion 8-19.7
Deceit or collusion - In general 8Deceit or collusion - Aiding and abetting 19.5Deceit or collusion - Bribery 13Deceit or collusion - Damage caused 10Deceit or collusion - Dismissal 17.3Deceit or collusion - Egregious conduct 19.7Deceit or collusion - Fraudulent conveyances 14
Deceit or collusion - Intent 11Deceit or collusion - Mortgages 15Deceit or collusion - Opinion letters 16Deceit or collusion - Pending judicial proceedings 19.3Deceit or collusion - Perjury 17Deceit or collusion - Reliance 9Deceit or collusion - Settlement of cases 18Deceit or collusion - Solicitation of unauthorized compensation 19Deceit or collusion - Use of attorney's name 12
Defenses 25Degree of misconduct 7Degree of proof 27Dismissal, deceit or collusion 17.3Dismissal, generally 28.5Egregious conduct, deceit or collusion 19.7Equitable estoppel 27.9Federal actions 3Fraudulent conveyances, deceit or collusion 14Immunity 26Indictment or information 23Injury caused by misconduct 4.5Intent, deceit or collusion 11Justiciable controversy 20.5Liability for partners or associates 6Limitation of actions 22.5Mortgages, deceit or collusion 15Motions for judgment 28Negligent conduct 3.5Notary capacity 29Opinion letters, deceit or collusion 16Out-of-state activity 2Pending judicial proceedings, deceit or collusion 19.3Perjury, deceit or collusion 17Persons aggrieved by misconduct 4Persons liable 5Pleadings or complaint 24Recovery after pendency of action 29.5Reliance, deceit or collusion 9Remedies 30.5Res judicata 27.5Sanctions, generally 30Settlement of cases, deceit or collusion 18Solicitation of unauthorized compensation, deceit or collusion 19Standard of proof 27Statute of limitations 22.5
Treble damages awards 31Use of attorney's name, deceit or collusion 12Willful delay 20.3Willful retention of client funds 20
1. Construction and application
Under New York's attorney misconduct statute, act of deceit need not occur during a physical appearance incourt to support civil action by party injured by attorney's intentional deceit or collusion on court or party to lit-igation, inasmuch as statute applies to any oral or written statement related to a proceeding and communicated toa court or party with the intent to deceive. Amalfitano v. Rosenberg, C.A.2 (N.Y.)2008, 533 F.3d 117, certifiedquestion accepted 11 N.Y.3d 728, 864 N.Y.S.2d 380, 894 N.E.2d 643, certified question answered 12 N.Y.3d 8,874 N.Y.S.2d 868, 903 N.E.2d 265, answer to certified question conformed to 572 F.3d 91. Attorney And Client
26; Attorney And Client 113
A party's civil action, under New York law, against an attorney who is guilty of any collusion, or who consentsto any deceit or collusion, with intent to deceive the court or the party, is warranted only where the attorney en-gaged in a chronic, extreme pattern of legal delinquency. Lipin v. Hunt, 2008, 573 F.Supp.2d 830. Attorney AndClient 26
Client's malpractice claim against former attorneys alleging that they had themselves retained by client and theyadvised client that they were legally competent to prosecute wrongful death action when in fact they were not,failed to state a cause of action under New York statute [N.Y.McKinney's Judiciary Law § 487] providing forforfeiture to party injured by attorney's deceit or collusion where statute did not apply extraterritorially, pro-posed complaint alleged no conduct within borders of New York, and deceit complained of did not occur duringpendency of court action. Nardella v. Braff, 1985, 621 F.Supp. 1170. Attorney And Client 129(2)
This section allowing triple damages against an attorney who, at least, is guilty of deceit or collusion was not ap-plicable where counsel's actions rose only to level of extensive overreaching. Newman v. Silver, D.C.N.Y.1982,553 F.Supp. 485, affirmed in part , vacated in part on other grounds 713 F.2d 14. Attorney And Client129(4)
New York statute providing for trebling of damages awarded in suit against attorney for his deceit or collusionapplies only in cases of deceit or collusion by attorney while acting in capacity as attorney. In re Kovler, 2000,253 B.R. 592. Attorney And Client 129(4)
Fairly routine fee dispute between attorneys did not implicate the Judiciary Law's concern for curbing andproviding redress for attorney overreaching vis a vis clients. Liddle & Robinson v. Shoemaker (1 Dept. 2000)276 A.D.2d 335, 714 N.Y.S.2d 46. Attorney And Client 130
Even if client could establish that attorney's time records were false and that he was deceived by them, statuteproviding treble damages for attorney's deceit or collusion was not applicable, where attorney presented item-
ized statement to client when there was no longer a judicial proceeding pending; statute only applied to wrongfulconduct by an attorney in suit actually pending. Henry v. Brenner (2 Dept. 2000) 271 A.D.2d 647, 706 N.Y.S.2d465. Attorney And Client 129(4)
Since attorney was sued in the foreclosure action as trustee, and responded in that capacity, no cause of actioncould be maintained against him under section of Judiciary Law governing misconduct by attorneys. Haber v.Kisner (1 Dept. 1998) 255 A.D.2d 223, 680 N.Y.S.2d 233. Attorney And Client 129(2)
Assertion of unfounded allegations in pleading, even if made for improper purposes, does not provide basis forliability under statute pertaining to misconduct by attorneys. Ticketmaster Corp. v. Lidsky (1 Dept. 1997) 245A.D.2d 142, 665 N.Y.S.2d 666. Attorney And Client 26
Criminal actions brought against attorney pursuant to attorney misconduct statute, which states that attorneywho is guilty of deceit or collusion, or consents to any deceit or collusion with intent to deceive court or party,are limited to situations where attorney was acting as an advocate representing client and not as a witness.People v. Canale (3 Dept. 1997) 240 A.D.2d 839, 658 N.Y.S.2d 715. Attorney And Client 33
Provision of Judiciary Code dealing with misconduct by attorneys intended to deceive court or any party couldnot serve as basis for claim with regard to affidavit that was created for purpose of filing insurance claim andonly produced in subsequent action pursuant to discovery demand. Gelmin v. Quicke (2 Dept. 1996) 224 A.D.2d481, 638 N.Y.S.2d 132. Attorney And Client 26
Assuming that attorney falsely stated to Civil Court in connection with condominium conversion that buildingowner had obtained certificate of occupancy for tenant's combined apartment, resulting in dismissal of claim forconstructive eviction, tenant's remedy lay exclusively in the prior lawsuit, by moving to vacate civil judgmentdue to its fraudulent procurement, not a second plenary action collaterally attacking the judgment under statuteproviding for recovery of treble damages against attorney in connection with deceit against court or party.Yalkowsky v. Century Apartments Associates (1 Dept. 1995) 215 A.D.2d 214, 626 N.Y.S.2d 181. Judgment
509
Law firm's failure to apply for rehearing or to advise client of time limits for making such application did notsupport claim for legal malpractice; it was apparent from record that firm considered its role to have ended withjudgment affirming administrative decision, and there was nothing to indicate that client was adversely affectedby firm's failure to act in relation to rehearing since it appeared that client's pro se application for permission tofile late application had been granted. Holmberg, Galbraith, Holmberg, Orkin and Bennett v. Koury (3 Dept.1991) 176 A.D.2d 1045, 575 N.Y.S.2d 192. Attorney And Client 112
Section of Judiciary Law dealing with attorney misconduct is inapplicable where no one attempts to hold attor-ney criminally liable or to collect treble damages. Matter of Malone (3 Dept. 1984) 105 A.D.2d 455, 480N.Y.S.2d 603, affirmed 65 N.Y.2d 772, 492 N.Y.S.2d 947, 482 N.E.2d 565. Attorney And Client 39
Attorney misconduct statute, which provides for both criminal and civil redress against an attorney who engagesin deceit or collusion with intent to deceive the court or any party, was not limited in its application only to at-torney's conduct in connection with proceedings pending in New York courts; statute contained no such expresslimitation, and state courts had sufficient interest in supervising conduct of attorneys admitted before its bar andin protecting resident clients who had been harmed by deceit of admitted attorney. Cinao v. Reers, 2010, 27Misc.3d 195, 893 N.Y.S.2d 851. Attorney and Client 26; Attorney and Client 33; Attorney and Client
114
Statute allowing injured party to recover treble damages from attorney who is “guilty of and deception or collu-sion” could apply to single incident of attorney misconduct, where lying under oath is alleged. NYAT. Operat-ing Corp. v. Jackson, Lewis, Schnitzler & Krupman, 2002, 191 Misc.2d 80, 741 N.Y.S.2d 385. Attorney AndClient 129(4)
Judiciary law section making it a misdemeanor for attorney to intentionally deceive court or any party and al-lowing recovery of treble damages in civil action for violation of statute did not apply, in plaintiff's actionagainst attorney who issued subpoena in prior litigation to telephone company for plaintiff's telephone records;company was not party to prior action, and plaintiff himself was not party to action when alleged deceit oc-curred. Greenfield v. Schultz, 1997, 173 Misc.2d 31, 660 N.Y.S.2d 624, affirmed in part , modified in part , va-cated in part 251 A.D.2d 67, 673 N.Y.S.2d 684. Attorney And Client 26
Former Penal Law § 273, referring to transactions had by an attorney as an attorney does not purport to put anextra liability on a person sued merely because he happens to be admitted to the bar. 216 Garage, Inc. v. Roth,1958, 12 Misc.2d 1081, 174 N.Y.S.2d 478, dismissal denied 7 A.D.2d 841, 184 N.Y.S.2d 561. Attorney AndClient 26
2. Out-of-state activity
This section authorizing recovery of treble damages by any party injured because of deceit practiced on a courtby an attorney is inapplicable to acts by attorneys outside New York's territorial borders. Schertenleib v. Traum,C.A.2 (N.Y.)1978, 589 F.2d 1156. Attorney And Client 26
Provision of Judiciary Law authorizing recovery of treble damages by any party injured because of deceit prac-ticed on court by attorney is inapplicable to acts by attorneys outside New York's territorial borders. SouthernBlvd. Sound, Inc. v. Felix Storch, Inc., 1995, 165 Misc.2d 341, 629 N.Y.S.2d 635, affirmed as modified 167Misc.2d 731, 643 N.Y.S.2d 882. Attorney And Client 26
3. Federal actions
Court of Appeals would certify to New York Court of Appeals questions of whether successful lawsuit for trebledamages brought under New York's attorney misconduct statute could be based on attempted but unsuccessfuldeceit upon court by defendant and whether, in course of such lawsuit, costs of defending litigation instituted bycomplaint containing material misrepresentation of fact could be treated as proximate result of misrepresentation
if court upon which deceit was attempted never acted on belief that misrepresentation was true, given that noNew York court had addressed question of whether attempted deceit could form basis for liability or proxim-ately cause damages, question of how to deter attorney misconduct in connection with litigation was importantissue for state courts, and certification would resolve action before certifying court. Amalfitano v. Rosenberg,C.A.2 (N.Y.)2008, 533 F.3d 117, certified question accepted 11 N.Y.3d 728, 864 N.Y.S.2d 380, 894 N.E.2d 643, certified question answered 12 N.Y.3d 8, 874 N.Y.S.2d 868, 903 N.E.2d 265, answer to certified question con-formed to 572 F.3d 91. Federal Courts 392
Attorney's alleged conduct in not thoroughly investigating client's ERISA plan and exhausting all administrativeremedies prior to filing suit against client's employer, and misusing clients' retainer, were neither indicative ofchronic and extreme delinquency nor sufficiently egregious to warrant award of treble damages under New Yorkstatute providing for treble damages against attorney for attorney's deceit or collusion. Kirk v. Heppt, 2008, 532F.Supp.2d 586. Attorney And Client 129(4)
Possibility of criminal penalties against attorney who allegedly improperly seized tax certiorari proceeds, whichwere from recovery of Chapter 7 debtor's real estate taxes, did not divest bankruptcy court of jurisdiction overtrustee's adversary proceeding against the attorney, which proceeding was based on same conduct, where trusteecommenced action seeking only treble damages under civil remedy of relevant statute, and trustee had notpresented criminal complaint against attorney for actions complained of. In re Rosalind Gardens Associates,1993, 158 B.R. 15. Bankruptcy 2045
Federal jury's deceit and collusion findings in racketeering prosecution of attorneys allegedly responsible forpresenting false testimony in personal injury actions against transit authority collaterally estopped the attorneysfrom relitigating those findings with respect to authority's claims under statute making an attorney who is guiltyof deceit or collusion with the intent to deceive the court or a party liable for treble damages. New York CityTransit Authority v. Morris J. Eisen, P.C. (1 Dept. 2000) 276 A.D.2d 78, 715 N.Y.S.2d 232, issued 2000 WL1641240. Judgment 829(3)
State sanctions statute had no application in federal maritime action. Senator Linie GmbH & Co. KG v. EasternSunway Line, Inc., 2004, 2004 WL 232143, Unreported. Federal Courts 433
3.5. Negligent conduct
There was no evidence of chronic and extreme pattern of legal delinquency, as required for client to establishclaim against his counsel in medical malpractice action under statute addressing misconduct by attorneys. Din-hofer v. Medical Liability Mut. Ins. Co. (1 Dept. 2012) 92 A.D.3d 480, 938 N.Y.S.2d 525, leave to appealdenied 19 N.Y.3d 812, 951 N.Y.S.2d 722, 976 N.E.2d 251. Attorney and Client 112
4. Persons aggrieved by misconduct
Attorney could not be held liable to plaintiff for breach of contract, absent evidence that attorney acted fraudu-lently, collusively, maliciously, or tortiously in advising his clients, who allegedly broke their contract with
plaintiff. Marshel v. Farley (2 Dept. 2005) 21 A.D.3d 935, 800 N.Y.S.2d 760, leave to appeal denied 6 N.Y.3d710, 813 N.Y.S.2d 46, 846 N.E.2d 477. Attorney And Client 26
Under ordinary circumstances, an attorney who does not represent a party may only be held liable to that partyupon a showing of fraud or collusion, or a malicious or tortious act. Marshel v. Farley (2 Dept. 2005) 21 A.D.3d935, 800 N.Y.S.2d 760, leave to appeal denied 6 N.Y.3d 710, 813 N.Y.S.2d 46, 846 N.E.2d 477. Attorney AndClient 26
Generally, absent fraud, collusion, malicious acts or other special circumstances, an attorney is not liable forprofessional negligence to third parties not in privity. Block v. Brecher, Fishman, Feit, Heller, Rubin & Tannen-baum (1 Dept. 2003) 301 A.D.2d 400, 753 N.Y.S.2d 84, leave to appeal denied 100 N.Y.2d 509, 766 N.Y.S.2d162, 798 N.E.2d 346. Attorney And Client 26
Absent fraud, collusion, malicious acts, or other special circumstances, attorney is not liable to third parties notin privity, or in relationship approaching privity, for harm caused by professional negligence. Scomello v. Car-onia (2 Dept. 1996) 232 A.D.2d 625, 648 N.Y.S.2d 688, leave to appeal dismissed 90 N.Y.2d 922, 664 N.Y.S.2d257, 686 N.E.2d 1352. Attorney And Client 26
An attorney may be held liable to third parties for wrongful acts if guilty of fraud or collusion or of a maliciousor tortious act. Kahn v. Crames (3 Dept. 1983) 92 A.D.2d 634, 459 N.Y.S.2d 941. Attorney And Client 26
Although claims of professional malpractice against an attorney usually are barred against those not in privity,attorneys are still liable to non-clients for acts of fraud, collusion, malicious acts, or other special circumstances.New York Cooling Towers, Inc. v. Goidel, 2005, 10 Misc.3d 219, 805 N.Y.S.2d 779. Attorney And Client26
Former Penal Law § 273, providing for treble damages to a party injured by an attorney's intentional deceptionof court, is not limited to a client damaged by his attorney's deceit. Fields v. Turner, 1955, 1 Misc.2d 679, 147N.Y.S.2d 542. Attorney And Client 26
4.5. Injury caused by misconduct
Shareholder tenant in cooperative association failed to allege that he suffered any injury proximately caused byattorneys' deceit or collusion, as required to state claim for attorney misconduct in connection with unauthorizedrepresentation of association against environmental violations arising from odors entering shareholder tenant'sapartment from restaurant on ground floor of building, which allegedly made apartment uninhabitable andforced shareholder tenant to sell it. Bohn v. 176 W. 87th St. Owners Corp. (1 Dept. 2013) 106 A.D.3d 598, 966N.Y.S.2d 42. Attorney and Client 26
Statute providing for treble damages against attorney in connection with deceit against court or party is applic-able only to attorneys and cannot extend derivative liability to client. Yalkowsky v. Century Apartments Asso-ciates (1 Dept. 1995) 215 A.D.2d 214, 626 N.Y.S.2d 181. Attorney And Client 102
6. Liability for partners or associates
Employer of attorney who engage in deceit or collusion may be held derivatively liable based upon doctrine ofrespondeat superior. Rudow v. City of New York, 1986, 642 F.Supp. 1456, affirmed 822 F.2d 324. AttorneyAnd Client 102
Attorney's alleged improper conduct in prior action against county and county officers could not serve as basisfor imposing liability for damages on law firm of which he was partner where attorney was acting solely in ca-pacity as county attorney in prior action. Muka v. Williamson (3 Dept. 1976) 53 A.D.2d 950, 385 N.Y.S.2d 639.Attorney And Client 30
7. Degree of misconduct
In opponent's action against attorneys under New York law, attorneys' statements regarding their client's oppon-ent did not demonstrate sufficiently egregious misconduct or pattern of extreme legal delinquency intended todeceive to violate statute prohibiting attorneys from engaging in misconduct with intent to deceive, where attor-neys asserted claim of malicious prosecution, claimed that opponent had used his knowledge and practice of lawto harass client and burden courts with frivolous lawsuits, and stated that opponent's malicious suits against cli-ent were “killing the child” client and opponent had together. O'Callaghan v. Sifre, 2008, 537 F.Supp.2d 594.Attorney And Client 26
There was no evidence of chronic and extreme pattern of legal delinquency, as required to support former cli-ents' claim of attorney misconduct. Cosmetics Plus Group, Ltd. v. Traub (1 Dept. 2013) 105 A.D.3d 134, 960N.Y.S.2d 388. Attorney and Client 109
This section providing for civil treble damages to client for attorney misconduct should be applied only tochronic, extreme pattern of legal delinquency. Wiggin v. Gordon, 1982, 115 Misc.2d 1071, 455 N.Y.S.2d 205.Attorney And Client 129(4)
8. Deceit or collusion--In general
State appellate court's decision to reverse and remand dismissal of client's fraud action arising from sale of part-nership property was based upon attorney's deceit in submitting partnership tax returns which he knew erro-neously identified client as current partner rather than genuine issue of fact respecting client's membership inpartnership, supporting district court's conclusion, in state-court defendants' subsequent action against attorneyunder New York's attorney misconduct statute, that attorney successfully deceived state appellate court. Amalfit-ano v. Rosenberg, C.A.2 (N.Y.)2008, 533 F.3d 117, certified question accepted 11 N.Y.3d 728, 864 N.Y.S.2d380, 894 N.E.2d 643, certified question answered 12 N.Y.3d 8, 874 N.Y.S.2d 868, 903 N.E.2d 265, answer tocertified question conformed to 572 F.3d 91. Attorney And Client 26
Attorney's misrepresentations indicating that agreement under which client assigned away his partnership in-terests was sham and that client remained a partner were material to decision in which state appellate court re-versed and remanded trial court's dismissal of client's state fraud action arising from sale of partnership prop-erty, based on possibility that client, as partner, had standing to bring claim on his own behalf, supporting dis-trict court's conclusion, in state-court defendants' subsequent action against attorney under New York's attorneymisconduct statute, that attorney successfully deceived state appellate court, notwithstanding attorney's conten-tion that only partnership had standing to bring fraud action, such that state appellate court should have affirmeddismissal regardless of whether client was partner. Amalfitano v. Rosenberg, C.A.2 (N.Y.)2008, 533 F.3d 117,certified question accepted 11 N.Y.3d 728, 864 N.Y.S.2d 380, 894 N.E.2d 643, certified question answered 12N.Y.3d 8, 874 N.Y.S.2d 868, 903 N.E.2d 265, answer to certified question conformed to 572 F.3d 91. AttorneyAnd Client 26
The alleged deceit forming the basis for a cause of action under New York statute governing misconduct by at-torneys, if it is not directed at a court, must occur during the course of a pending judicial proceeding. Musah v.Houslanger & Associates, PLLC, 2013, 2013 WL 4516786. Attorney and Client 26
Allegedly deceitful statements made by law firm representing assignee of judgment creditor in post-judgmentcollection documents it sent to debtor's bank did not violate New York statute governing attorney misconduct,where statements were not directed at the court and did not occur during course of a pending judicial proceed-ing. Musah v. Houslanger & Associates, PLLC, 2013, 2013 WL 4516786. Attorney and Client 26
United States petroleum corporation's allegations that New York attorney who represented indigenous peoplesof Amazonian rain forest in environmental litigation against corporation in the Republic of Ecuador (ROE) en-gaged in intentional pattern of collusion, wrongdoing, and deceit with intent to deceive both corporation andmultiple federal courts, stated claim against attorney under New York statute providing for civil treble damagesand criminal sanctions against attorney who was guilty of any deceit or collusion, or consented to any deceit orcollusion, with intent to deceive court or any party. Chevron Corp. v. Donziger, 2012, 871 F.Supp.2d 229. Attor-ney and Client 26
New York statute providing for treble damages for attorneys who are “guilty of any deceit or collusion” only ap-plies to a chronic, extreme pattern of legal delinquency. Kuruwa v. Meyers, 2011, 823 F.Supp.2d 253, affirmed512 Fed.Appx. 45, 2013 WL 627733. Attorney and Client 129(4)
Under New York law as predicted by federal district court, attorney's attempted deceit of court triggers civil li-ability under “deceit or collusion” prong of state's attorney misconduct statute; showing of successful deceit ofcourt is not required. Amalfitano v. Rosenberg, 2006, 428 F.Supp.2d 196, question certified 533 F.3d 117, certi-fied question accepted 11 N.Y.3d 728, 864 N.Y.S.2d 380, 894 N.E.2d 643, certified question answered 12N.Y.3d 8, 874 N.Y.S.2d 868, 903 N.E.2d 265, answer to certified question conformed to 572 F.3d 91. AttorneyAnd Client 26
Counsel's failure to disclose to wrongful death client existence of agreement to share contingency fee with an-other attorney did not violate New York law prohibiting deception of party, absent showing of damages. Sch-
weizer v. Mulvehill, 2000, 93 F.Supp.2d 376. Attorney And Client 109
Statements made by former employer's attorney to arbitration panel in dispute against former employee that athird-party complaint had been filed against former employee in a related action was true and did not constituteconduct designed to deceive a judicial forum under New York law. Tedeschi v. Smith Barney, Harris Upham &Co., Inc., 1982, 548 F.Supp. 1172. Federal Civil Procedure 2654
Former sections providing for the forfeiture of treble damages related only to a case where the attorney intendedto deceive the court or his client by collusion with his opponent, or by some improper practice, and did not in-clude a transaction antecedent to the commencement of the action; hence an attorney did not render himself li-able for a forfeiture of treble damages by advising and causing clients to convey property by means of a partitionsuit instead of by deed. Looff v. Lawton, 1884, 97 N.Y. 478.
Former client waived for appellate review her fraud and Judiciary Law claims in action seeking damages for leg-al malpractice, where claims were raised for first time in surreply. Coleman v. Korn (1 Dept. 2012) 92 A.D.3d595, 939 N.Y.S.2d 370. Appeal and Error 179(1)
Corporate client sufficiently alleged attorney's deceit, a misdemeanor for which treble damages were available,by asserting that attorney knowingly advised and counseled shareholder in violating injunction and in failing toadvise other 50% shareholder of sale of all assets, and in failing to move to be relieved as corporation's counselafter shareholder advised him that he was resigning. Rock City Sound, Inc. v. Bashian & Farber, LLP (2 Dept.2010) 74 A.D.3d 1168, 903 N.Y.S.2d 517, leave to appeal dismissed 16 N.Y.3d 826, 921 N.Y.S.2d 186, 946N.E.2d 175. Attorney and Client 33
Attorney engaged in intentional deceit in representing his client in underlying action against company, whichconstituted misconduct under Judiciary Law for purposes of company's subsequent action against attorney. Spe-cialized Indus. Services Corp. v. Carter (2 Dept. 2009) 68 A.D.3d 750, 890 N.Y.S.2d 90. Attorney And Client
26
Company, which was defendant in underlying action, alleged larger fraudulent scheme on part of attorney whorepresented plaintiff in underlying action, so as to fit within exception to rule that prohibited collateral attack byparty who lost case as result of alleged fraud or false testimony, and thus company could maintain its actionagainst attorney under misconduct statute. Specialized Indus. Services Corp. v. Carter (2 Dept. 2009) 68 A.D.3d750, 890 N.Y.S.2d 90. Attorney And Client 26; Judgment 514
Plaintiff was not subject to Judiciary Law providing for treble damages against an attorney guilty of deceit orcollusion with intent to deceive the court or any party, in her action seeking declaration that original living trust,naming her as successor trustee, was in full force, and that all subsequently made appointments, amendments,and affidavits were of no effect because defendant used fraud, duress, and undue influence upon original trustee,where she had been represented by counsel at all stages of the litigation and had not acted in her capacity as anattorney. Oakes v. Muka (3 Dept. 2008) 56 A.D.3d 1057, 868 N.Y.S.2d 796. Attorney And Client 26
Husband's allegations that his wife's attorneys' filing of qualified domestic relations order (QDRO) in divorceproceeding and repeated assertions that it was submitted “on consent” constituted a fraud upon the court wereutterly refuted by documents submitted by wife's attorneys establishing that husband's attorney of record hadbeen served with the proposed QDRO approximately six weeks prior to its entry, and therefore dismissal of hus-band's action to recover damages for fraud against his wife's attorneys in their divorce proceeding was warrantedon documentary evidence grounds. Curry v. Dollard (2 Dept. 2008) 52 A.D.3d 642, 862 N.Y.S.2d 54, leave toappeal denied 11 N.Y.3d 709, 868 N.Y.S.2d 602, 897 N.E.2d 1086. Pretrial Procedure 684
Clients' statutory claim that their bankruptcy attorneys intentionally deceived themand Bankruptcy Court withrespect to attorneys' connection with creditor was not barred by doctrines of res judicata or collateral estoppel,since attorneys allegedly deceived Bankruptcy Court as well as clients, and clients claimed that alleged deceitwas not revealed until after Bankruptcy Court rendered its determination. Izko Sportswear Co., Inc. v. Flaum (2Dept. 2006) 25 A.D.3d 534, 809 N.Y.S.2d 119. Judgment 829(3)
Civil Court's ruling in civil rights action, that there was no law of the case precluding defendants from pleadingcollateral estoppel, was not due to any deceit on part of defendants' attorney, where Civil Court was fully briefedon history of case and on plaintiff's claim that there was law of the case in his favor on issue of collateral estop-pel. Melnitzky v. Owen (1 Dept. 2005) 19 A.D.3d 201, 796 N.Y.S.2d 612. Courts 189(15)
Law firm's alleged concealment of plaintiff's interest in cooperative apartment shares was not a cause of courtorder distributing such property, and thus could not support fraud claim against firm pursuant to Judiciary Law,where court was made aware of plaintiff's interests prior to distribution of proceeds. Weisman, Celler, Spett &Modlin v. Chadbourne & Parke (1 Dept. 2000) 271 A.D.2d 329, 706 N.Y.S.2d 414, leave to appeal denied 95N.Y.2d 760, 714 N.Y.S.2d 710, 737 N.E.2d 952. Attorney And Client 26
Attorney's knowingly withholding crucial information from court in client's declaratory judgment to obtain con-trol of estate property, in violation of probate court order and without advising estate, violated statute governingattorney misconduct to recover treble damages. Schindler v. Issler & Schrage, P.C. (1 Dept. 1999) 262 A.D.2d226, 692 N.Y.S.2d 361, leave to appeal dismissed 94 N.Y.2d 791, 700 N.Y.S.2d 422, 722 N.E.2d 502, reargu-ment denied 94 N.Y.2d 859, 704 N.Y.S.2d 534, 725 N.E.2d 1096. Attorney And Client 26
Clients' allegations that law firm deceived them into submitting to genetic testing by intentionally misadvisingthem that court order required them to do so, subject to imprisonment, falsely advised court clients had consen-ted to be genetically tested and had agreed to settle paternity proceeding in which their son was named as putat-ive father, and colluded with paternity petitioner to have child become son's heir at law, to realize a higher fee inwrongful death action instituted on clients' behalf, stated causes of action for violation of attorney misconductstatute and for fraud. Savattere v. Subin Associates, P.C. (1 Dept. 1999) 261 A.D.2d 236, 690 N.Y.S.2d 229. At-torney And Client 114
Borrower's law firm which paid the proceeds of an insurance settlement for loss to collateral to the borrowerrather than the lender was not liable under the statute allowing treble damages for misconduct by attorneys, ab-sent proof that the law firm practiced deceit or collusion with the borrower during a judicial proceeding to which
the firm was a party. Bank of India v. Weg and Myers, P.C. (1 Dept. 1999) 257 A.D.2d 183, 691 N.Y.S.2d 439,issued 1999 WL 390935. Attorney And Client 26
By offering to testify in child custody hearing on behalf of husband that certain information attorney had ob-tained about wife while acting as her attorney was neither obtained as a confidence nor as a secret, attorney didnot violate statute which states that attorney who is guilty of any deceit or collusion, or consents to any deceit orcollusion with intent to deceive court or party, is guilty of a misdemeanor; attorney was acting as a witness inhis transactions with husband, not as an attorney. People v. Canale (3 Dept. 1997) 240 A.D.2d 839, 658N.Y.S.2d 715. Attorney And Client 33
Life insurer stated fraud cause of action against law firm representing deceased's widow arising out of failure ofwidow to agree to autopsy of deceased, and widow's declaratory judgment action seeking declaration thatautopsy demand was unreasonable, where there was evidence that embalming certificate issued on date of deathin Mexico was a fraud, and that member of firm either knew it then or very shortly thereafter, and, thus, it couldbe found that declaratory judgment action was a sham designed simply to delay autopsy until unembalmed re-mains would have sufficiently decomposed to make autopsy worthless. Guardian Life Ins. Co. of America v.Handel (1 Dept. 1993) 190 A.D.2d 57, 596 N.Y.S.2d 804. Attorney And Client 26
Attorneys, who were acting on behalf of their clients, did not violate section of Judiciary Law, providing that at-torneys may be held liable for treble damages if they are guilty of any deceit or collusion with intent to deceivecourt or any party, by representing father and his current wife in various proceedings concerning custody offather's children from prior marriage, visitation with those children, and attempted adoption by father's currentwife of father's eldest child; children's mother, who brought action against attorneys, claimed that attorneysknowingly prepared petition and supporting papers in adoption proceeding which falsely represented that motherhad abandoned eldest child. Michalic by Nakovics v. Klat (2 Dept. 1987) 128 A.D.2d 505, 512 N.Y.S.2d 436.Attorney And Client 26
Refusal to strike defendants' answer and impose sanctions against counsel was proper in that, due to proximityand time between defendants' motion to vacate notice to depose witness and effective date of amendment to de-position statute, it could not be inferred that defense counsel intentionally deceived court for purpose of delayingplaintiff's action. Bridges v. 725 Riverside Drive, Inc. (2 Dept. 1986) 119 A.D.2d 789, 501 N.Y.S.2d 414. Attor-ney And Client 24; Pretrial Procedure 225
Under this section providing for cause of action against attorney based upon attorney's engaging in deceit or col-lusion with intent to deceive plaintiff where deception is directed against court, pending judicial proceeding isnot required and it is sufficient if deception relates to prior judicial proceeding or one which may be commencedin future. Singer v. Whitman & Ransom (2 Dept. 1981) 83 A.D.2d 862, 442 N.Y.S.2d 26. Attorney And Client
26
Record established that county attorney was guilty of no deceit in regard to his actions in prior lawsuit broughtagainst county and county officers so as to render him liable for damages. Muka v. Williamson (3 Dept. 1976)53 A.D.2d 950, 385 N.Y.S.2d 639. District And Prosecuting Attorneys 10
Reargument of wife's claim that husband's attorney in matrimonial proceedings made misrepresentations to courtregarding appointment of husband as temporary receiver of marital home, resulting in additional attorney's feesfor wife, was not warranted; court did not misapprehend facts or law in granting attorney's prior motion to dis-miss, nor did court improperly rely upon its own analysis or convert motion to one for summary judgment.Dupree v. Voorhees, 2009, 24 Misc.3d 396, 876 N.Y.S.2d 840, reargument denied 25 Misc.3d 451, 883N.Y.S.2d 454, affirmed as modified 68 A.D.3d 810, 891 N.Y.S.2d 422, leave to appeal denied 15 N.Y.3d 705,908 N.Y.S.2d 158, 934 N.E.2d 892. Pretrial Procedure 696.1
Renewal of wife's claim that one of husband's attorneys in matrimonial proceedings made misrepresentations tocourt on emergency application for immediate appointment of husband as temporary receiver of marital home,resulting in additional attorney fees for wife, was warranted, in light of affidavit of wife's attorney and interven-ing decision of Court of Appeals. Dupree v. Voorhees, 2009, 24 Misc.3d 396, 876 N.Y.S.2d 840, reargumentdenied 25 Misc.3d 451, 883 N.Y.S.2d 454, affirmed as modified 68 A.D.3d 810, 891 N.Y.S.2d 422, leave to ap-peal denied 15 N.Y.3d 705, 908 N.Y.S.2d 158, 934 N.E.2d 892. Motions 42; Motions 44
An attorney cannot be held responsible under attorney misconduct statute for deceit of another attorney, unlessthe attorney also could be charged as having participated in or having consented to complained-of acts. Dupreev. Voorhees, 2009, 24 Misc.3d 396, 876 N.Y.S.2d 840, reargument denied 25 Misc.3d 451, 883 N.Y.S.2d 454,affirmed as modified 68 A.D.3d 810, 891 N.Y.S.2d 422, leave to appeal denied 15 N.Y.3d 705, 908 N.Y.S.2d158, 934 N.E.2d 892. Attorney And Client 26
Treble damages for allegedly knowingly acting directly to deceive court in violation of former Penal Law § 273depended on proof of acts which were addressed to court by only attorney defendants and which were other thanthose allegedly causing basic special or general damages. Dworski v. Empire Discount Corp., 1965, 46 Misc.2d844, 260 N.Y.S.2d 938. Attorney And Client 26
Former Penal Law § 273 providing for treble damages to a party injured by an attorney's intentional deception ofa court is not restricted to acts of deceit or collusion committed in the presence of the court. Fields v. Turner,1955, 1 Misc.2d 679, 147 N.Y.S.2d 542. Attorney And Client 26
9. ---- Reliance, deceit or collusion
Solicitation of accident victims contained deceptive statements and therefore justified imposition of sanctionsdespite absence of evidence that recipients were actually misled. Matter of Von Wiegen, 1984, 63 N.Y.2d 163,481 N.Y.S.2d 40, 470 N.E.2d 838, on remand 108 A.D.2d 1012, 485 N.Y.S.2d 399, certiorari denied 105 S.Ct.2701, 472 U.S. 1007, 86 L.Ed.2d 717. Attorney And Client 38
Transit authority relied upon fraud of attorneys and private investigators when it satisfied personal injury verdictwhich had been improperly procured through perjured testimony, as element of authority's fraud action againstthe attorneys and investigators, where there was no non-fabricated support for the last clear chance theory thatwas articulated basis for the jury's verdict. New York City Transit Authority v. Morris J. Eisen, P.C. (1 Dept.2000) 276 A.D.2d 78, 715 N.Y.S.2d 232, issued 2000 WL 1641240. Attorney And Client 26
Evidence that transit authority settled personal injury action on basis of perjured testimony that exposed it to li-ability established justifiable reliance in its fraud action against attorneys allegedly responsible for presentingthe testimony. New York City Transit Authority v. Morris J. Eisen, P.C. (1 Dept. 2000) 276 A.D.2d 78, 715N.Y.S.2d 232, issued 2000 WL 1641240. Attorney And Client 26
10. ---- Damage caused, deceit or collusion
Damages element was satisfied in prevailing fraud defendants' civil action, under “deceit or collusion” prong ofNew York attorney misconduct statute, against attorney who had represented fraud plaintiff, since defendantswere forced to pay costs of defending themselves against action founded upon deceitful premise; however, re-coverable damages did not include costs of litigating attorney's motion to vacate fraud judgment and his appealof denial of that motion, both of which were based on argument that opposing counsel had had ex parte commu-nications with judge. Amalfitano v. Rosenberg, 2006, 428 F.Supp.2d 196, question certified 533 F.3d 117, certi-fied question accepted 11 N.Y.3d 728, 864 N.Y.S.2d 380, 894 N.E.2d 643, certified question answered 12N.Y.3d 8, 874 N.Y.S.2d 868, 903 N.E.2d 265, answer to certified question conformed to 572 F.3d 91. AttorneyAnd Client 26
In order to successfully maintain civil claim under “deceit or collusion” prong of New York attorney misconductstatute, plaintiff must establish damages caused by attorney's deceit. Amalfitano v. Rosenberg, 2006, 428F.Supp.2d 196, question certified 533 F.3d 117, certified question accepted 11 N.Y.3d 728, 864 N.Y.S.2d 380,894 N.E.2d 643, certified question answered 12 N.Y.3d 8, 874 N.Y.S.2d 868, 903 N.E.2d 265, answer to certi-fied question conformed to 572 F.3d 91. Attorney And Client 26
Counsel's alleged misrepresentations to wrongful death client, and to court at hearing to approve settlementagreement, did not violate New York law prohibiting deception of party or court, absent showing of damages.Schweizer v. Mulvehill, 2000, 93 F.Supp.2d 376. Attorney And Client 109
Under New York law, parties to prior litigation could not prevail on fraud claim against opposing counsel basedon counsel's alleged withholding of discoverable information in that litigation; parties could not show that anydamages they suffered were traceable to alleged fraud of opposing counsel rather than possible negligence oftheir own attorney. Cresswell v. Sullivan & Cromwell, 1991, 771 F.Supp. 580, affirmed 962 F.2d 2, certioraridenied 112 S.Ct. 3036, 505 U.S. 1222, 120 L.Ed.2d 905. Attorney And Client 26
Attorney was not subject to Judiciary Law provision providing for treble damages against an attorney guilty ofdeceit or collusion, where attorney's allegedly deceitful conduct occurred while he was a defendant in a malprac-tice action brought by former clients, and not while acting in his capacity as an attorney. Barrows v. Alexander(4 Dept. 2010) 78 A.D.3d 1693, 912 N.Y.S.2d 831. Attorney and Client 129(4)
Former client did not sustain any damages that were proximately caused by attorneys' alleged deception or by al-leged chronic, extreme pattern of legal delinquency, precluding former client's recovery of damages pursuant tostatute allowing for recovery of damages for attorney deceit or collusion. Boglia v. Greenberg (2 Dept. 2009) 63A.D.3d 973, 882 N.Y.S.2d 215. Attorney And Client 109; Attorney And Client 114
Transit authority was entitled to restitution of $1 million it paid pursuant to settlement agreement procuredthrough perjured testimony in personal injury action. New York City Transit Authority v. Morris J. Eisen, P.C.(1 Dept. 2000) 276 A.D.2d 78, 715 N.Y.S.2d 232, issued 2000 WL 1641240. Attorney And Client 26
Divorced wife was not entitled to recover against husband's attorney for violation of Judiciary Law § 487(1) byattorney's deceitful conduct in divorce proceeding; wife failed to show that she was injured as result of attorney'sdeceitful conduct, inasmuch as expenses she incurred for medical bills, utility costs, maintenance, taxes, andsupport arrears, were patently result of husband's failure to fulfill his obligations under divorce decree. DiPrimav. DiPrima (2 Dept. 1985) 111 A.D.2d 901, 490 N.Y.S.2d 607. Attorney And Client 26
Additional attorney fees allegedly incurred by wife in matrimonial action, due to misrepresentations allegedlymade by husband's attorney, could be sought under statute providing for treble damages against attorney whoengaged in deceit; wife was not limited to seeking payment of such fees in underlying matrimonial action.Dupree v. Voorhees, 2009, 24 Misc.3d 396, 876 N.Y.S.2d 840, reargument denied 25 Misc.3d 451, 883N.Y.S.2d 454, affirmed as modified 68 A.D.3d 810, 891 N.Y.S.2d 422, leave to appeal denied 15 N.Y.3d 705,908 N.Y.S.2d 158, 934 N.E.2d 892. Attorney And Client 26; Divorce 1141
It is not necessary that an attorney must have made fraudulent representations resulting in damage in order to beguilty of deceit, as under former Penal Code § 148 such offense is punishable regardless of the damage. Peoplev. Oishei, 1897, 20 Misc. 163, 45 N.Y.S. 49.
11. ---- Intent, deceit or collusion
Law firm did not engage in misconduct or mislead court in serving tenant motions regarding post-eviction pro-ceedings at apartment from which tenant had been evicted, and therefore, did not violate New York statute pro-hibiting attorneys from engaging in deceit or collusion with intent to deceive court or any party; apartment wastenant's last known address, firm's papers indicated tenant had been evicted, and tenant failed to update courtwith a new address. Stern v. Regency Towers, LLC, 2012, 886 F.Supp.2d 317. Attorney and Client 26
Genuine issue of material fact as to whether attorneys acted with intent to deceive court, willfully delayed cli-ent's suits for their own gain, or received money that they did not lay out, precluded summary judgment on cli-ent's claim for treble damages for attorneys' alleged misconduct or neglect. Aurora Loan Services, Inc. v. Pos-ner, Posner & Associates, P.C., 2007, 513 F.Supp.2d 18. Federal Civil Procedure 2515
Intent to deceive courts was shown, as required to support prevailing fraud defendants' civil action, under“deceit or collusion” prong of New York attorney misconduct statute, against attorney who had representedfraud plaintiff, their uncle; fraud suit arose out of family-business dispute, and attorney throughout fraud actioncontended that uncle was still partner in partnership that owned family's real property, even though he knewfrom prior representations of uncle that uncle's interest had earlier been terminated via settlement. Amalfitano v.Rosenberg, 2006, 428 F.Supp.2d 196, question certified 533 F.3d 117, certified question accepted 11 N.Y.3d728, 864 N.Y.S.2d 380, 894 N.E.2d 643, certified question answered 12 N.Y.3d 8, 874 N.Y.S.2d 868, 903N.E.2d 265, answer to certified question conformed to 572 F.3d 91. Attorney And Client 26
A cause of action for violation of the Judiciary Law statute related to attorney misconduct is not duplicative ofcauses of action alleging legal malpractice, since the statutory claim requires an intent to deceive, whereas a leg-al malpractice claim is based on negligent conduct. Sabalza v. Salgado (1 Dept. 2011) 85 A.D.3d 436, 924N.Y.S.2d 373. Attorney And Client 129(1); Pleading 64(2)
Cause of action for violation of Judiciary Law statute related to attorney misconduct is not duplicative of causesof action alleging legal malpractice, since statutory claim requires an intent to deceive, whereas a legal malprac-tice claim is based on negligent conduct. Moormann v. Perini & Hoerger (2 Dept. 2009) 65 A.D.3d 1106, 886N.Y.S.2d 49. Pleading 64(2)
Genuine issues of material fact existed as to whether law firm intentionally deceived client, precluding summaryjudgment in client's cause of action under Judiciary Law statute related to attorney misconduct arising from fail-ure to represent client in vehicle forfeiture proceedings. Moormann v. Perini & Hoerger (2 Dept. 2009) 65A.D.3d 1106, 886 N.Y.S.2d 49. Judgment 181(16)
In a criminal prosecution of an attorney under former Penal Law § 273 for practicing a deceit upon the court, itmust be shown that he was guilty of an evil intent to deceive it. People ex rel. Brown v. Tighe (2 Dept. 1911)146 A.D. 491, 131 N.Y.S. 693. See, also, People v. Oishei, 1897, 20 Misc. 163, 45 N.Y.S. 49.
Even though attorney may have been negligent in taking nearly two years to obtain uncontested divorce on be-half of his alleged clients, wife could not establish any deceit by attorney of kind sufficient to permit award oftreble damages pursuant to provision of Judiciary Law, especially in view of wife's admission that, in nearly twoyears that divorce action was pending, wife never made any inquiry of attorney as to status of action. Frank v.Pepe, 2000, 186 Misc.2d 377, 717 N.Y.S.2d 873. Attorney And Client 129(4)
Opposing law firm's alleged mischaracterization of attorney's state claim and request for unnecessary discoverydid not violate New York law giving injured party a cause of action against attorney who is guilty of deceit orcollusion, absent additional allegations of an intent to deceive the court. Haggerty v. Ciarelli & Dempsey, C.A.2(N.Y.)2010, 374 Fed.Appx. 92, 2010 WL 1170352, Unreported. Attorney and Client 26
12. ---- Use of attorney's name, deceit or collusion
While a professional partnership, such as law firm, whose reputation depends on its members' individual skill,has no good will to be distributed as firm asset on its dissolution, use of firm name, including deceased partners'names, by surviving partners in accordance with local custom and partners' agreement, is not prohibited by stat-ute or legislative policy and, of itself, is neither unethical nor deceitful. Mendelsohn v. Equitable Life Assur.Soc., 1942, 178 Misc. 152, 33 N.Y.S.2d 733, appeal denied 264 A.D. 731, 35 N.Y.S.2d 162. Attorney And Cli-ent 30
13. ---- Bribery, deceit or collusion
Client stated claim against attorney for violation of statute regarding attorney misconduct by alleging that attor-
ney's assertion, made in support of his motion to be relieved as counsel, that client steadfastly refused to pay lit-igation expenses, was knowingly false and was offered with intent to deceive court into believing that attorneyoriginally had sufficient cause to be relieved as counsel. Palmieri v. Biggiani (2 Dept. 2013) 108 A.D.3d 604,970 N.Y.S.2d 41. Attorney and Client 114
Evidence authorized finding that there was a corrupt arrangement between attorney and a juryman in a civil caseby which the juryman was to omit to disclose his former relationship with attorney and to act favorably for attor-ney's clients in such case and that the juryman was thereafter paid at least $100 by attorney and hence attorneywas guilty of “embracery” and a violation of former Penal Law § 273. In re Bregoff (2 Dept. 1940) 258 A.D.551, 17 N.Y.S.2d 816. Attorney And Client 53(2)
14. ---- Fraudulent conveyances, deceit or collusion
Guardian of property for two wards did not make misrepresentations to the guardian of one ward and the daugh-ter of another upon which the plaintiffs reasonably relied that would give rise to an action for fraud based onguardian's alleged selling of property at below market value at auction to pre-selected bidders. Smallwood v. Lu-poli (2 Dept. 2013) 107 A.D.3d 782, 968 N.Y.S.2d 515. Fraud 20
Attorney who had represented father in divorce action did not have advisor's immunity from childrens' fraudclaims alleging that, despite stipulation in divorce action providing that father would keep ownership of certainparcels of real property for life and then pass them to couple's children, attorney prepared deeds transferring theparcels to father and widow as husband and wife, and that widow refused to convey the parcels to the childrenafter father's death, where attorney's actions were directed at a judgment of which he was fully aware, the stipu-lation was neither ambiguous nor unenforceable, and attorney had deed recorded in a fashion aimed at avoidingpublication of the transactions. Mokay v. Mokay (3 Dept. 2009) 67 A.D.3d 1210, 889 N.Y.S.2d 291. AttorneyAnd Client 26
There was no evidence that attorney who represented seller in connection with sale of her property intended todeceive, or a chronic, extreme pattern of legal delinquency that proximately caused alleged damages toplaintiffs, who alleged that they owned 50% interest in sold property, and thus attorney could not be liable toplaintiffs. Pui Sang Lai v. Shuk Yim Lau (2 Dept. 2008) 50 A.D.3d 758, 855 N.Y.S.2d 615. Attorney And Client
26
Sole remedy for opposing attorney's alleged misconduct and deceit in violation of Judiciary Law in prior stateproceeding was motion to vacate civil judgment due to its fraudulent procurement, not a second plenary actioncollaterally attacking judgment in original action. Cramer v. Sabo (3 Dept. 2006) 31 A.D.3d 998, 818 N.Y.S.2d680, leave to appeal denied 8 N.Y.3d 801, 830 N.Y.S.2d 9, 862 N.E.2d 88. Judgment 829(3)
Investor failed to state claim against attorneys to recover treble damages for attorney misconduct in civil action,arising from alleged fraudulent conveyance of interest in real estate holding corporation, absent pleaded factsdemonstrating that attorneys had intent to deceive the court or any part. Agostini v. Sobol (1 Dept. 2003) 304A.D.2d 395, 757 N.Y.S.2d 555. Attorney And Client 26
Permitting mortgagor to amend complaint, to add claim alleging that mortgagee's attorneys withheld pertinentinformation from trial court with intent to deceive in mortgagor's action to obtain loan payoff letter, would beprejudicial to mortgagee's right to be represented by attorneys of its choice, and thus amendment was properlydenied; addition of claim would require disqualification of mortgagee's attorneys, as they would likely be calledas witnesses if claim were allowed to proceed, which was prohibited under rules of professional conduct. 360West 11th LLC v. ACG Credit Co. II, LLC (1 Dept. 2011) 90 A.D.3d 552, 935 N.Y.S.2d 289. Pleading242.1; Pleading 248(17)
Mortgagor's attorney committed attorney misconduct in action to foreclose a mortgage following two judicialdeterminations that mortgage had been satisfied and debt extinguished, and, thus, mortgagee was entitled todamages for attorney misconduct on its third-party complaint against mortgagor's attorney, where attorney de-prived mortgagee with an unsatisfied claim of the benefit of surplus funds to which it was entitled by failing toname mortgagee as a defendant in foreclosure action, even though he knew from previous litigation that it was amortgagee with an unsatisfied claim. Papa v. 24 Caryl Ave. Realty Co. (2 Dept. 2005) 23 A.D.3d 361, 804N.Y.S.2d 112, leave to appeal denied 6 N.Y.3d 705, 811 N.Y.S.2d 337, 844 N.E.2d 792, certiorari denied 126S.Ct. 2895, 547 U.S. 1207, 165 L.Ed.2d 918. Attorney And Client 26
Assuming that bank's attorneys intentionally filed a false affidavit of service in a foreclosure action in order toobtain a deficiency judgment against mortgagor, mortgagor could not recover under statute creating cause of ac-tion for deceit or other misconduct by attorneys, in that he could not establish that he was deceived, where he re-tained counsel to contest affidavit's validity, and he did not suffer any damages which were proximately causedby the alleged deceit, since the motion for a deficiency judgment was ultimately withdrawn with prejudice.O'Connor v. Dime Sav. Bank of New York, F.S.B. (2 Dept. 1999) 265 A.D.2d 313, 696 N.Y.S.2d 477. AttorneyAnd Client 26
Under former Penal Law § 273 client who satisfied certain mortgage on attorney's representation that mortgagewas a paramount lien could not recover treble damages on discovering that mortgage was subject to a prior right.Greenberg v. Bilello, 1938, 7 N.Y.S.2d 735. Attorney And Client 129(4)
16. ---- Opinion letters, deceit or collusion
Relationship between lender and law firm representing borrower was sufficiently close to support liability forlaw firm's alleged negligent creation of an opinion letter regarding the effect of restructuring of loan transactionand the transmission of that letter to the creditor for its own use; law firm knew that letter was to be used bylender in deciding whether to permit debt restructuring, lender unquestionably relied on the opinion letter inagreeing to that restructuring, and law firm addressed and sent the opinion letter directly to lender. PrudentialIns. Co. of America v. Dewey, Ballantine, Bushby, Palmer & Wood, 1992, 80 N.Y.2d 377, 590 N.Y.S.2d 831,605 N.E.2d 318, reargument denied 81 N.Y.2d 955, 597 N.Y.S.2d 940, 613 N.E.2d 972. Attorney And Client
26
Former client stated a cause of action against attorney under Judiciary Law governing misconduct by attorneys
by alleging that attorney deceived or attempted to deceive the court with a fictitious letter addressed to him fromthe former licensing director of the city's Taxi and Limousine Commission (TLC) that stated, inter alia, that cli-ent was under a lifetime ban on owning any licenses with the TLC. Kurman v. Schnapp (1 Dept. 2010) 73A.D.3d 435, 901 N.Y.S.2d 17. Attorney and Client 114
Attorneys' opinion letter, stating that sale of substantially all of client's assets would not violate any statute, wasnot a negligent misrepresentation; sale was supported by fair consideration, and letter contained only informa-tion called for in purchase/sale agreement. Mega Group, Inc. v. Pechenik & Curro, P.C. (3 Dept. 2006) 32A.D.3d 584, 819 N.Y.S.2d 796. Attorney And Client 26
Claim by stockholder against corporation's attorney for damages caused by attorney's refusal to provide opinionletter releasing stock for sale could not be maintained under this section providing for cause of action against at-torney where deceit or collusion occurred in pending judicial proceeding. Singer v. Whitman & Ransom (2 Dept.1981) 83 A.D.2d 862, 442 N.Y.S.2d 26. Attorney And Client 26
17. ---- Perjury, deceit or collusion
Cause of action for violation of statute defining attorney misconduct was not stated by allegations that attorneyprepared and submitted client's affidavit in divorce action alleging that client's husband abused child, where cli-ent did not allege that attorney knew statements in affidavit were false when he submitted it, particularly whereclient took converse position in alleging that another attorney falsely retracted allegations client had correctlymade against husband. Callaghan v. Goldsweig (1 Dept. 2004) 7 A.D.3d 361, 777 N.Y.S.2d 60. Attorney AndClient 129(2)
Attorneys who procured settlement through use of perjured testimony in personal injury action against transitauthority were liable with respect to authority's claim under statute making an attorney who is guilty of deceit orcollusion with the intent to deceive the court or a party liable for treble damages. New York City Transit Au-thority v. Morris J. Eisen, P.C. (1 Dept. 2000) 276 A.D.2d 78, 715 N.Y.S.2d 232, issued 2000 WL 1641240. At-torney And Client 24
Vendor's attorney's alleged acts of withholding document from discovery and testifying falsely at pretrial depos-ition did not cause broker damage, as required to support broker's claim of deceit or collusion by attorney inbroker's suit for commission. Werner v. Katal Country Club (3 Dept. 1996) 234 A.D.2d 659, 650 N.Y.S.2d 866.Attorney And Client 26
Ethical canons requiring competent and zealous representation of clients cannot, in and of themselves, overcomeproscription against directing another to give false testimony. Matter of Malone (3 Dept. 1984) 105 A.D.2d 455,480 N.Y.S.2d 603, affirmed 65 N.Y.2d 772, 492 N.Y.S.2d 947, 482 N.E.2d 565. Attorney And Client 32(6)
Attorney's allegedly false deposition testimony about advice she had given clients about their compliance withFair Labor Standards Act could support clients' claim under statute allowing injured party to recover treble dam-ages from attorney who is “guilty of and deception or collusion”; although attorney no longer represented clients
at time of her testimony, she testified as an attorney about her work as an attorney, and had continuing obliga-tions to clients arising out of her role as attorney. NYAT. Operating Corp. v. Jackson, Lewis, Schnitzler &Krupman, 2002, 191 Misc.2d 80, 741 N.Y.S.2d 385. Attorney And Client 129(4)
Attorney who, with intention to deceive court, testifies falsely to a material fact or issue in a judicial proceedingis guilty of deceit under former Penal Law § 273 and civil remedy provided therein may be invoked if there isdamage, but one other than an attorney may not be held in an action for deceit on account of perjured testimony.Nones v. Security Title & Guaranty Co., 1956, 4 Misc.2d 1057, 162 N.Y.S.2d 761. Attorney And Client 26; Torts 307
17.3. ---- Dismissal, deceit or collusion
Trial court properly denied mortgagor's motion to amend pleading to add cause of action against mortgagee'sformer attorney based on attorney's allegedly false testimony, with respect to legal services rendered by his firmin support of mortgagee's counterclaim for attorney's fees related to administration and enforcement of loanagreement, in mortgagor's action to obtain loan payoff letter; mortgagor's proposed claim was nothing more thanfee dispute that could be resolved upon disposition of mortgagee's counterclaim. 360 West 11th LLC v. ACGCredit Co. II, LLC (1 Dept. 2011) 90 A.D.3d 552, 935 N.Y.S.2d 289. Pleading 248(17)
Evidence that attorneys at law firm hired to prosecute medical malpractice action had engaged in intentional de-ceit by representing to client/plaintiff that he could not prevail in his action, and asking him to sign stipulation ofdiscontinuance, when in fact action already had been dismissed for failure to timely file note of issue, raised factissues as to misdemeanor misconduct, precluding summary judgment on client's legal malpractice claim fortreble damages. Scarborough v. Napoli, Kaiser & Bern, LLP (4 Dept. 2009) 63 A.D.3d 1531, 880 N.Y.S.2d 800,reargument denied 66 A.D.3d 1501, 886 N.Y.S.2d 64. Judgment 185.3(4)
18. ---- Settlement of cases, deceit or collusion
Vehicle owner's estate's allegations that the owner's attorneys in a personal injury action brought against theowner and her son, which resulted in the owner agreeing to pay approximately $200,000 from her personal as-sets, engaged in intentional deceit were sufficient to state a claim against the attorneys under provision of Judi-ciary Law governing misconduct of attorneys; estate alleged that attorneys intentionally deceived the owner andher son in representing to them that the personal injury action had been settled within policy limits and thatneither the son's nor the owner's personal assets would be exposed. Duszynski v. Allstate Ins. Co. (4 Dept. 2013)107 A.D.3d 1448, 967 N.Y.S.2d 796. Attorney and Client 114
Out-of-state attorney entitled to 50% share of legal fees in settled medical malpractice action under fee-sharingagreement with in-state counsel was not entitled to treble damages from in-state counsel under statute providingdamages for misconduct by attorneys, even though in-state counsel appeared to have attempted to appropriateentire fee through proposed infant's compromise order that did not disclose out-of-state attorney's claim to fee orongoing litigation regarding fee sharing; the dispute did not implicate the statute's concern for curbing andproviding redress for attorney overreach vis-a-vis clients. Leskinen v. Fusco (1 Dept. 2005) 18 A.D.3d 387, 796N.Y.S.2d 54, leave to appeal dismissed 6 N.Y.3d 807, 812 N.Y.S.2d 445, 845 N.E.2d 1276, on remand 13
Misc.3d 1244(A), 831 N.Y.S.2d 360. Attorney And Client 168
Client failed to establish violation of attorney misconduct statute where client failed to come forward with anyevidence to support his conclusory allegations that attorneys who represented client in divorce action colludedwith attorney who represented client's former wife to induce him to settle divorce quickly and to overpay formerwife's legal fees, so that wife's attorney could invest in what later was discovered to be illegal Ponzi scheme setup by member of firm which represented client. Colton, Hartnick, Yamin and Sheresky v. Feinberg (1 Dept.1996) 227 A.D.2d 233, 642 N.Y.S.2d 283. Attorney And Client 26; Attorney And Client 129(2)
Client's allegations that attorney improperly advised him to begin lawsuit against client's former business part-ners rather than to accept original settlement, and that such action caused acceptance of lower settlement, suffi-ciently alleged that settlement of action was result of attorney's mistakes, and, thus settlement of underlying suitdid not compel dismissal. Bernstein v. Oppenheim & Co., P.C. (1 Dept. 1990) 160 A.D.2d 428, 554 N.Y.S.2d487. Attorney And Client 129(2)
Where attorney, in settling with client, represented that sum recovered under judgment was equal to originalclaim and interest, when actually it was more, thus inducing client to accept the smaller amount, client hadground for action against attorney for deceit. Wheaton v. Newcombe, 1882, 48 N.Y.Super.Ct. 215.
An attorney was liable in damages where he used false representations to induce his client to settle an action,and to obtain excessive compensation for his services. Jones v. Dusinberre, 1882, 15 Weekly Dig. 286.
19. ---- Solicitation of unauthorized compensation, deceit or collusion
Attorney's statements in client's legal malpractice complaint that its prior attorney “defrauded” client and “usedthe retainer provision as a club” to extort fees were absolutely privileged, despite prior attorney's claim that mal-practice action was sham, where complaint alleged fraud in billing and provision of services and breach of fidu-ciary duty, and client pursued its lawsuit vigorously. Lacher v. Engel (1 Dept. 2006) 33 A.D.3d 10, 817N.Y.S.2d 37, issued 2006 WL 1679928. Libel And Slander 38(3)
Attorney's statements to arbitration panel that his predecessor was “thief,” “liar” and “pathological character”were pertinent to client's motion for extension of time to prepare for arbitration, and thus were protected by priv-ilege for statements made in course of legal proceedings, even though arbitration concerned totally unrelateddispute, where panel expressed incredulity after attorney sought additional time to prepare, motion was based onprior attorney's failure to turn over client's files until he received additional compensation, which attorney foundincluded improper, fraudulent, and inflated charges, and statements were made in context that prior attorney hadpromised to cooperate, then allegedly reneged. Lacher v. Engel (1 Dept. 2006) 33 A.D.3d 10, 817 N.Y.S.2d 37,issued 2006 WL 1679928. Libel And Slander 36
Attorney submitted false and exaggerated vouchers to administrator of assigned counsel plan for legal servicespurportedly rendered, in violation of Code of Professional Responsibility, by signing, affirming, and submittingvouchers which she knew or should have known contained numerous false and inaccurate entries exaggerating
amount of hours spent on assigned cases. In re Carmen (2 Dept. 2005) 25 A.D.3d 250, 806 N.Y.S.2d 82. Attor-ney And Client 38
A solicitation by a counsel, who is a member of indigent defendants legal panel designed to provide counsel toindigent offenders, of unauthorized additional compensation from his assigned client, and client's agreement tofurnish such money, would constitute a collusion of the kind contemplated by this section providing that an at-torney who is guilty of any deceit or collusion or consents to any deceit or collusion with intent to deceive thecourt or any party is guilty of a misdemeanor. People v. Matalon, 1977, 92 Misc.2d 254, 400 N.Y.S.2d 303. At-torney And Client 33
19.3. ---- Pending judicial proceedings, deceit or collusion
New York law requires that the alleged deceit forming the basis of a claim under statute providing for trebledamages for attorneys who are “guilty of any deceit or collusion” if it is not directed at a court, must occur dur-ing the course of a pending judicial proceeding. Kuruwa v. Meyers, 2011, 823 F.Supp.2d 253, affirmed 512Fed.Appx. 45, 2013 WL 627733. Attorney and Client 129(4)
Clients failed to state misconduct claim against attorney, absent allegation that attorney engaged in any decept-ive conduct during pending proceeding in which clients were parties. Sun Graphics Corp. v. Levy, Davis & Ma-her, LLP (1 Dept. 2012) 94 A.D.3d 669, 943 N.Y.S.2d 464. Attorney and Client 114
19.5. ---- Aiding and abetting, deceit or collusion
Plaintiffs failed to preserve for review on appeal claim that law firm that represented vendor in real propertytransaction was liable for aiding and abetting a breach of fiduciary duty and for violating statute governing mis-conduct by attorneys, where the claim did not appear in their complaint or elsewhere in the record. McCormickv. Favreau (3 Dept. 2011) 82 A.D.3d 1537, 919 N.Y.S.2d 572, leave to appeal denied 17 N.Y.3d 712, 933N.Y.S.2d 652, 957 N.E.2d 1156. Appeal and Error 172(1)
19.7. ---- Egregious conduct, deceit or collusion
Single alleged act of deceit by an attorney, specifically submitting to the court in a divorce action a documentwith a page intentionally switched to conceal the unreliability of certain projections relating to a start-up com-pany, was not sufficiently egregious to support a claim under the Judiciary Law section addressing misconductby attorneys. Strumwasser v. Zeiderman (1 Dept. 2013) 102 A.D.3d 630, 958 N.Y.S.2d 395. Attorney and Client
26
20. Willful retention of client funds
Attorney's willful refusal to pay client's mother's state estate taxes for five years and his willful refusal for sixyears to return to client funds given him for such payment constituted “willfully receiving money which attorneyhas not laid out,” and thus attorney had violated this section governing attorney misconduct, with result that hewas subject to forfeiture of treble damages. Wiggin v. Gordon, 1982, 115 Misc.2d 1071, 455 N.Y.S.2d 205. At-
Attorney moving for summary judgment on client's claim, seeking treble damages, under Judiciary Law, prohib-iting attorney from willfully delaying client's suit with view to attorney's own gain, had burden of demonstratingthat he had not willfully delayed client's underlying matrimonial action with view to attorney's own gain. Cocciav. Liotti (2 Dept. 2010) 70 A.D.3d 747, 896 N.Y.S.2d 90, leave to appeal dismissed 15 N.Y.3d 767, 906N.Y.S.2d 811, 933 N.E.2d 210. Judgment 185.3(4)
There was no evidence that attorneys willfully delayed client's matrimonial action with a view toward their owngain, as required to establish attorneys' violation of provision of attorney misconduct statute proscribing suchconduct. Boglia v. Greenberg (2 Dept. 2009) 63 A.D.3d 973, 882 N.Y.S.2d 215. Attorney And Client 112
20.5. Justiciable controversy
District court's determination, in attorney misconduct action under New York statute, that attorney successfullydeceived state appellate court in his client's state fraud action did not render “moot” issue of whether attorney'sattempted deceit on trial court was actionable under statute, given that district court's calculation of state-courtdefendants' damages was based on their cost of defending entire fraud action, which included period in which at-torney attempted unsuccessfully to deceive trial court but had not yet successfully deceived appellate court.Amalfitano v. Rosenberg, C.A.2 (N.Y.)2008, 533 F.3d 117, certified question accepted 11 N.Y.3d 728, 864N.Y.S.2d 380, 894 N.E.2d 643, certified question answered 12 N.Y.3d 8, 874 N.Y.S.2d 868, 903 N.E.2d 265,answer to certified question conformed to 572 F.3d 91. Federal Courts 724
21. Civil actions
New York's attorney misconduct statute permits a civil action to be maintained by any party who is injured byan attorney's intentional deceit or collusion in New York on a court or on any party to litigation, and providesfor treble damages. Amalfitano v. Rosenberg, C.A.2 (N.Y.)2008, 533 F.3d 117, certified question accepted 11N.Y.3d 728, 864 N.Y.S.2d 380, 894 N.E.2d 643, certified question answered 12 N.Y.3d 8, 874 N.Y.S.2d 868,903 N.E.2d 265, answer to certified question conformed to 572 F.3d 91. Attorney And Client 26; AttorneyAnd Client 114; Attorney And Client 129(4)
Although a violation of statute governing attorney misconduct to recover treble damages is a misdemeanor, acriminal conviction is not a condition precedent to a civil action pursuant to the section, but civil relief and theimposition of treble damages is warranted only where the defendant attorney has engaged in a chronic, extremepattern of legal delinquency. Schindler v. Issler & Schrage, P.C. (1 Dept. 1999) 262 A.D.2d 226, 692 N.Y.S.2d361, leave to appeal dismissed 94 N.Y.2d 791, 700 N.Y.S.2d 422, 722 N.E.2d 502, reargument denied 94N.Y.2d 859, 704 N.Y.S.2d 534, 725 N.E.2d 1096. Attorney And Client 26
Criminal conviction of attorney was not condition precedent to client's civil use of this section governing attor-ney misconduct to recover treble damages. Wiggin v. Gordon, 1982, 115 Misc.2d 1071, 455 N.Y.S.2d 205. At-
Former Penal Law § 273, which provided for treble damages to a party injured by an attorney's intentional de-ception of court, did not require that the attorney be found guilty in a criminal court of a misdemeanor beforecivil action would lie. Fields v. Turner, 1955, 1 Misc.2d 679, 147 N.Y.S.2d 542. Attorney And Client 26
22. Consolidation of actions
Litigant's remedy, if any, for opponent's attorney's alleged deception of Civil Court lay exclusively in CivilCourt action itself, not in second plenary action collaterally attacking judgment in that action on ground that at-torney had fraudulently concealed information. Melnitzky v. Owen (1 Dept. 2005) 19 A.D.3d 201, 796 N.Y.S.2d612. Judgment 511
Plaintiff's sole remedy, if any, for alleged fraud by law firms and attorneys representing defendants in plaintiff'sprior action in obtaining adjournment of trial lay exclusively in that lawsuit itself, and not in second plenary ac-tion against law firms and attorneys. Curtis v. Scherer (1 Dept. 1999) 261 A.D.2d 158, 689 N.Y.S.2d 99, leaveto appeal denied 93 N.Y.2d 815, 697 N.Y.S.2d 563, 719 N.E.2d 924. Attorney And Client 26
Case was one in which matter should be disposed of in one action and therefore motion to consolidate actionsounding in breach of contract and malpractice with second action, in which plaintiff alleged malpractice, primafacie tort, fraud and deceit and violation of former Penal Law § 273 relating to misconduct of attorneys, wasgranted. Nuccitelli v. Frankel, 1963, 237 N.Y.S.2d 482. Action 57(1)
An action brought against an attorney to recover damages for his negligence in conducting a suit cannot bejoined in the same complaint with one brought under this section to recover treble damages. Barkley v. Willi-ams, 1900, 30 Misc. 687, 64 N.Y.S. 318.
22.5. Limitation of actions
Six-year limitations period applied to attorney-misconduct claim brought by shareholder tenant in cooperativeassociation in connection with unauthorized representation of association against environmental violationsarising from odors entering shareholder tenant's apartment from restaurant on ground floor of building, which al-legedly made apartment uninhabitable and forced shareholder tenant to sell it. Bohn v. 176 W. 87th St. OwnersCorp. (1 Dept. 2013) 106 A.D.3d 598, 966 N.Y.S.2d 42. Attorney and Client 26
Plaintiff knew or had reason to know of law firm's and its partner's concealment of material facts in underlyinglitigation in which plaintiff sought to recover his membership share of profits in limited liability company's(LLC's) operating agreement, and that awareness triggered applicable three-year statute of limitations period forhis claim against firm and partner for alleged deceit and collusion based on partner's alleged lies regarding de-struction of document that purportedly amended plaintiff's right to such share. Melcher v. Greenberg Traurig,LLP (1 Dept. 2013) 102 A.D.3d 497, 958 N.Y.S.2d 362, motion to dismiss appeal denied 21 N.Y.3d 908, 966N.Y.S.2d 358, 988 N.E.2d 886. Limitation of Actions 100(12)
Accrual date of plaintiff's claim against law firm and its partner for deceit and collusion was not extended by de-fendants' alleged cover-up of their deceit on court, where plaintiff was aware of basic facts relative to defend-ants' alleged deceit more than three years before action was commenced. Melcher v. Greenberg Traurig, LLP (1Dept. 2013) 102 A.D.3d 497, 958 N.Y.S.2d 362, motion to dismiss appeal denied 21 N.Y.3d 908, 966 N.Y.S.2d358, 988 N.E.2d 886. Limitation of Actions 100(12)
23. Indictment or information
Information charging defendant with filing two false statements as to retainer with the supreme court, appellatedivision, was sufficient to state cause of action for deceit, even though there was no action pending with respectto which retainers were filed. People v. Connolly (2 Dept. 1957) 3 A.D.2d 943, 164 N.Y.S.2d 66. Fraud69(2)
Count charging that attorney as member of indigent defendants legal panel designed to provide counsel to indi-gent offenders, “intentionally deceived the court, the 18-B Panel, and the City of New York” in soliciting andaccepting additional sum from assigned offender would be dismissed with leave to prosecutor to represent to an-other grand jury since the count, which did not send forth a completed deception, went beyond the statutory lan-guage. People v. Matalon, 1977, 92 Misc.2d 254, 400 N.Y.S.2d 303. Attorney And Client 33
24. Pleadings or complaint
Allegations that attorney representing Swedish attorney who had been appointed administrator of plaintiff's fath-er's estate was guilty of attorney misconduct, under New York law, in fraudulently concealing e-mail and sale ofcoin collection claimed by plaintiff failed to explain why attorney had any obligation to disclose the allegedlyconcealed information. Lipin v. Bergquist, 2008, 574 F.Supp.2d 423. Attorney And Client 26
Plaintiff failed to state claim for violation of section of the New York Judicial Law providing that attorney inpending lawsuit may not deceive or collude with intent to deceive court or any party to lawsuit, based on allega-tion that defendant attorney falsely assured plaintiff that he would act as plaintiff's attorney during meeting todiscuss severance package; no lawsuit was pending when alleged representations in question were made, andplaintiff's contention that when defendant offered his services he intended to make plaintiff party to a plannedlawsuit was insufficient. O'Brien v. Alexander, 1995, 898 F.Supp. 162, affirmed 101 F.3d 1479. Attorney AndClient 26
Plaintiff failed to state a claim for violation of section of the New York Judiciary Law providing that attorney inpending suit may not deceive or collude with intent to deceive the court, based on allegation that defendants pre-pared false affidavit to deceive court in underlying case into believing that defendants had genuine claimsagainst plaintiff; since affidavit was not submitted to the court, it could not be basis for violation of statute.O'Brien v. Alexander, 1995, 898 F.Supp. 162, affirmed 101 F.3d 1479. Attorney And Client 26
Complaint which alleged that attorney, as co-personal representative of estate in Florida and its ancillary execut-or in New York, willfully delayed bringing suit against himself on the estate's behalf for malpractice, with a
view to his own gain, did not state a cause of action under New York statute prohibiting delaying tactics by at-torney and imposing treble damages. Northern Trust Bank of Florida/Sarasota N.A. v. Coleman, 1986, 632F.Supp. 648. Attorney And Client 129(4)
Recovery of treble damages under attorney misconduct statute, which provides that an attorney guilty of any de-ceit with intent to deceive the court or any party forfeits treble damages to the injured party, does not dependupon the court's belief in a material misrepresentation of fact in a complaint. Amalfitano v. Rosenberg, 2009, 12N.Y.3d 8, 874 N.Y.S.2d 868, 903 N.E.2d 265, answer to certified question conformed to 572 F.3d 91. AttorneyAnd Client 26
Legal expenses of defendants who prevailed in action instituted by a complaint containing a material misrepres-entation of fact could be treated as the proximate result of the misrepresentation for purposes of determiningdamages under attorney misconduct statute, even though court upon which the deceit was attempted at no timeacted on the belief that the misrepresentation was true. Amalfitano v. Rosenberg, 2009, 12 N.Y.3d 8, 874N.Y.S.2d 868, 903 N.E.2d 265, answer to certified question conformed to 572 F.3d 91. Attorney And Client
26
Client's complaint failed to allege that attorneys acted “with intent to deceive the court or any party,” as requiredto state statutory misconduct claim. Fleyshman v. Suckle & Schlesinger, PLLC (2 Dept. 2012) 91 A.D.3d 591,937 N.Y.S.2d 92, leave to appeal denied 19 N.Y.3d 801, 957 N.Y.S.2d 285, 980 N.E.2d 950. Attorney And Cli-ent 114; Attorney And Client 129(2)
Client's allegation that attorneys were guilty of statutory misconduct because they “willfully delayed [her] re-covery with a view to their own ends and benefit” was bare legal conclusion, which was not entitled to presump-tion of truth normally afforded to allegations of complaint. Fleyshman v. Suckle & Schlesinger, PLLC (2 Dept.2012) 91 A.D.3d 591, 937 N.Y.S.2d 92, leave to appeal denied 19 N.Y.3d 801, 957 N.Y.S.2d 285, 980 N.E.2d950. Attorney And Client 129(2)
Judgment creditors' complaint lacked sufficient allegations from which damages proximately caused by pur-portedly deceitful conduct of judgment debtors' attorneys could be reasonably inferred, as required for violationof Judiciary Law, authorizing treble damages only to party injured by attorney's deceitful conduct, since com-plaint alleged that attorneys deceitfully failed to disclose judgment debtor's prior assignment of 80% of any in-terest in her right of first refusal option to re-purchase property to limited liability company (LLC) that attorneysformed for LLC to take title to property in lieu of payment of attorney fees in underlying action for specific per-formance of option that resulted in $800,000 judgment in favor of judgment creditors, but complaint containedno allegation that attorneys' failure to disclose assignment caused judgment creditors' harm from unenforceabil-ity of judgment due to assignment rendering judgment debtors insolvent and from expending $300,000 in legalfees to defend against specific performance action for option in which judgment debtor had retained 20% in-terest. Rozen v. Russ & Russ, P.C. (2 Dept. 2010) 76 A.D.3d 965, 908 N.Y.S.2d 217. Attorney and Client26
In legal malpractice action, clients failed to allege that attorneys engaged in fraudulent conduct that was suffi-
ciently egregious to support a cause of action under attorney misconduct statute permitting an award of trebledamages. Englert v. Schaffer (4 Dept. 2009) 61 A.D.3d 1362, 877 N.Y.S.2d 780, reargument denied 64 A.D.3d1200, 881 N.Y.S.2d 360. Attorney And Client 114
Tenants bringing claim for misconduct failed to show that landlord's attorneys were guilty of a “delinquency,”let alone one that was part of a “chronic and extreme pattern,” in their representation of landlord in summaryproceedings against tenants. Galland v. Kossoff (1 Dept. 2006) 34 A.D.3d 306, 824 N.Y.S.2d 630. Attorney AndClient 26
Clients' allegation that their bankruptcy attorneys failed to advise them of conflicting representation of a credit-or, and revealed confidential information to that creditor, stated statutory deceit claim against attorneys. IzkoSportswear Co., Inc. v. Flaum (2 Dept. 2006) 25 A.D.3d 534, 809 N.Y.S.2d 119. Attorney And Client 114
Allegations establishing a chronic and extreme pattern of legal delinquency or that the actions of the attorneyscaused plaintiff damages were required to state claim under Judiciary Law provision permitting recovery oftreble damages for attorney misconduct. Havell v. Islam (1 Dept. 2002) 292 A.D.2d 210, 739 N.Y.S.2d 371. At-torney And Client 129(4)
Allegation of pattern of wrongdoing or deceit was necessary to sustain client's claim against attorney under Judi-ciary Law's attorney misconduct provision. Pellegrino v. File (1 Dept. 2002) 291 A.D.2d 60, 738 N.Y.S.2d 320,leave to appeal denied 98 N.Y.2d 606, 746 N.Y.S.2d 456, 774 N.E.2d 221. Attorney And Client 129(2)
There was no error in denial of motion for leave to replead cause of action under Judiciary Law section relatingto misconduct by attorneys, where there was nothing in moving papers to demonstrate that any statements setforth were false, let alone knowingly false, and proposed amended cause of action was merely embellished re-statement of cause of action previously dismissed on statute of limitations grounds. Mehlman v. Gold (1 Dept.1992) 183 A.D.2d 634, 584 N.Y.S.2d 9. Pretrial Procedure 695
Assertion of unfounded allegations in a pleading, even if made for improper purposes, does not provide a basisfor liability under statute [McKinney's Judiciary Law § 487] pertaining to misconduct by attorneys. Thomas v.Chamberlain, D'Amanda, Oppenheimer & Greenfield (4 Dept. 1985) 115 A.D.2d 999, 497 N.Y.S.2d 561, appealdismissed 67 N.Y.2d 1005, 502 N.Y.S.2d 1006, 494 N.E.2d 111, reargument denied 68 N.Y.2d 754, 506N.Y.S.2d 1038, 497 N.E.2d 710. Attorney And Client 26
Complaint of homeowners who had been indicted for arson against attorneys of insurers which had refused topay fire loss, which contained no allegation of any specific fraudulent or deceitful communication or statementby attorneys either to court or grand jury, was insufficient to state cause of action under statute permitting recov-ery of treble damages from attorneys who have engaged in deceit or collusion with intent to deceive court or anyparty. Goldner v. Sullivan, Gough, Skipworth, Summers and Smith (4 Dept. 1984) 105 A.D.2d 1149, 482N.Y.S.2d 606. Attorney And Client 26
Attorney was not prejudiced or surprised by client's proposed amended complaint in legal malpractice action,which, in addition to claim in verified complaint sounding in negligence, asserted claim under attorney miscon-duct statute that was subject to treble damages, and thus granting leave to amend was within court's discretion;other than facts related to two letters attorney wrote to judge in underlying action, of which attorney was pre-sumably aware, amended complaint alleged same factual basis for claims. Cinao v. Reers, 2010, 27 Misc.3d 195,893 N.Y.S.2d 851. Pleading 236(7); Pleading 248(10)
Original verified complaint in client's legal malpractice action provided attorney with sufficient notice of relev-ant transactions and occurrences in underlying Hawaii proceedings regarding trust created by client's mother,which client sought to prove in proposed amended complaint, and thus additional claim in proposed amendedcomplaint, alleging violation of attorney misconduct statute, related back to date of original complaint for pur-poses of three-year statute of limitations; only new factual allegations in amended complaint related to two let-ters attorney allegedly sent to presiding judge in underlying proceedings to request adjournment of proceedingsfor which, according to verified complaint, attorney had failed to arrange client's appearance. Cinao v. Reers,2010, 27 Misc.3d 195, 893 N.Y.S.2d 851. Limitation of Actions 127(3)
At least with respect to cause of action for violation of former Penal Law § 273, second complaint, alleging mal-practice, prima facie tort, fraud and deceit and violating of former Penal Law § 273 relating to misconduct of at-torneys, differed from first complaint, sounding in breach of contract and malpractice, and motion to dismisssecond complaint on ground of another action pending between parties would have to be denied. Nuccitelli v.Frankel, 1963, 237 N.Y.S.2d 482. Abatement And Revival 8(2)
Complaint, alleging malpractice, prima facie tort, fraud and deceit and violation of former Penal Law § 273 re-lating to misconduct of attorneys, was sufficient. Nuccitelli v. Frankel, 1963, 237 N.Y.S.2d 482. Attorney AndClient 129(2)
Plaintiff failed to allege any conduct by attorney that was intended to deceive him or court, or what damages hesuffered, as required to state claim, under New York law, for treble damages against attorney for deceit.Kashelkar v. Bluestone, C.A.2 (N.Y.)2009, 306 Fed.Appx. 690, 2009 WL 102942, Unreported. Attorney AndClient 26
25. Defenses
Attorney was entitled, based on documentary evidence, to dismissal of conversion and malpractice actionbrought against him based on claims of executors of estate of deceased former client that attorney had convertedstock held by attorney for client, and that attorney had returned to estate shares in different corporation; attorneysubmitted stipulation and order, that had been entered in federal court action, under which client agreed to ex-change of shares of stock and, pursuant to agreement, federal judge had personally delivered stock certificatesheld by attorney to transfer agent for conversion. Solon v. Tormey (4 Dept. 2006) 26 A.D.3d 865, 809 N.Y.S.2d382. Attorney And Client 117
While defense of justification may relieve attorney of criminal or civil liability for allegedly instructing witness
to testify falsely under oath, defense does not necessarily render actions ethical or even in accord with due pro-cess strictures. Matter of Malone (3 Dept. 1984) 105 A.D.2d 455, 480 N.Y.S.2d 603, affirmed 65 N.Y.2d 772,492 N.Y.S.2d 947, 482 N.E.2d 565. Attorney And Client 32(7); Constitutional Law 4000
Doctrine of laches applied to bar former client's claims against attorney for breach of fiduciary duty, unjust en-richment, undue influence, conversion, and legal delinquency, given that signing of retainer agreement underly-ing claims took place 27 years earlier, lawyer who reviewed agreement for former client had died, and attorneyhad culled his litigation files pertaining to former client's cases when litigations were completed, such that attor-ney was seriously prejudiced in his defense of action. King v. Fox, 2004, 2004 WL 68397, Unreported, questioncertified 418 F.3d 121, certified question accepted 5 N.Y.3d 798, 801 N.Y.S.2d 561, 835 N.E.2d 329, certifiedquestion answered 7 N.Y.3d 181, 818 N.Y.S.2d 833, 851 N.E.2d 1184, answer to certified question conformedto 458 F.3d 39, on remand 2007 WL 4207202. Attorney And Client 129(1)
26. Immunity
New York attorney misconduct statute does not apply to prosecutorial acts of municipal attorneys, who are abso-lutely immune to liability thereunder. Rudow v. City of New York, C.A.2 (N.Y.)1987, 822 F.2d 324. AttorneyAnd Client 32(1)
27. Degree of proof
Attorney and law firm's alleged deception of corporation's managing director, by failing to inform him of its rep-resentation of corporation after jointly representing director and corporation in another matter, occurred duringnegotiations between director and corporation for a separation agreement, and not during any pending judicialproceedings, precluding director's claim against attorney and firm under New York Judiciary Law provisiondealing with deceit and collusion by attorneys. Trautenberg v. Paul, Weiss, Rifkind, Wharton & Garrison LLP,2007, 629 F.Supp.2d 259, reconsideration denied 2008 WL 850163, affirmed 351 Fed.Appx. 472, 2009 WL3259560. Attorney And Client 114
Provision of New York's Judiciary Law dealing with deceit or collusion by attorneys permits plaintiff to bringcivil action only when plaintiff is a party to a lawsuit in the course of a pending judicial proceeding at time ofmisconduct. Trautenberg v. Paul, Weiss, Rifkind, Wharton & Garrison LLP, 2007, 629 F.Supp.2d 259, reconsid-eration denied 2008 WL 850163, affirmed 351 Fed.Appx. 472, 2009 WL 3259560. Attorney And Client 26; Attorney And Client 114
Hospital attorneys did not engage in chronic and extreme pattern of legal delinquency, as would be attorney mis-conduct, in appealing administrative determination awarding former hospital employee unemployment compens-ation; attorneys made no misstatements, employee consistently prevailed in all proceedings, and attorneys hadcredible basis for claims of bias by administrative law judge (ALJ). Emery v. Parker (1 Dept. 2013) 107 A.D.3d635, 968 N.Y.S.2d 480. Attorney and Client 26
Judgment against mortgagor's attorney on mortgagee's third-party complaint for damages on basis of attorneymisconduct, in mortgagor's action to foreclose a mortgage, did not constitute a criminal conviction requiringproof beyond a reasonable doubt at trial. Papa v. 24 Caryl Ave. Realty Co. (2 Dept. 2005) 23 A.D.3d 361, 804N.Y.S.2d 112, leave to appeal denied 6 N.Y.3d 705, 811 N.Y.S.2d 337, 844 N.E.2d 792, certiorari denied 126S.Ct. 2895, 547 U.S. 1207, 165 L.Ed.2d 918. Attorney And Client 26
Although the fine imposed by former Penal Law § 273 is for a civil contempt, an attorney violating its provi-sions is also guilty of a misdemeanor; therefore, the evidence should establish his guilt with reasonable certaintyin order to justify his conviction. Snow v. Shreffler (4 Dept. 1911) 148 A.D. 422, 132 N.Y.S. 895, reargumentdenied 134 N.Y.S. 1147.
27.5. Res judicata
Res judicata barred former client's claim for alleged violation of attorney misconduct statute, which was predic-ated upon same conduct as legal malpractice claim, law firm's prior representation of former client, which alsowas barred due to appellate court's imprimatur of retaining lien in prior proceeding. Zito v. Fischbein BadilloWagner Harding (1 Dept. 2011) 80 A.D.3d 520, 915 N.Y.S.2d 260. Judgment 548; Judgment 741
Cause of action of company, which was defendant in underlying action, alleging misconduct on part of attorneywho represented plaintiff in underlying action, was not barred by doctrine of res judicata; cause of action did notarise out of factual transaction which was subject matter of underlying action. Specialized Indus. Services Corp.v. Carter (2 Dept. 2009) 68 A.D.3d 750, 890 N.Y.S.2d 90. Judgment 585(3)
27.7. Collateral estoppel
Cause of action of company, which was defendant in underlying action, alleging misconduct on part of attorneywho represented plaintiff in underlying action, was not barred by collateral estoppel; claim was not litigated inunderlying action and much of evidence upon which company relied was discovered subsequent to entry of de-fault judgment in the underlying action. Specialized Indus. Services Corp. v. Carter (2 Dept. 2009) 68 A.D.3d750, 890 N.Y.S.2d 90. Judgment 739
27.9. Equitable estoppel
Law firm and its partner were not equitably estopped from asserting statute of limitations defense on plaintiff'sclaim for deceit and collusion, absent any showing by plaintiff that subsequent and specific actions by defend-ants somehow kept him from timely bringing suit. Melcher v. Greenberg Traurig, LLP (1 Dept. 2013) 102A.D.3d 497, 958 N.Y.S.2d 362, motion to dismiss appeal denied 21 N.Y.3d 908, 966 N.Y.S.2d 358, 988 N.E.2d886. Limitation of Actions 13
28. Motions for judgment
Upon attorney's motion for judgment in action against attorney for treble damages for his alleged perjured testi-mony before an official referee, the supreme court, special term, could not be concerned with the assertion that
the damages might not be susceptible of proof. Nones v. Security Title & Guaranty Co., 1956, 4 Misc.2d 1057,162 N.Y.S.2d 761. Pleading 350(7)
28.5. Dismissal, generally
Dismissal of wife's attorney misconduct cause of action against partner of attorney who represented husband inunderlying divorce action was unwarranted on ground that partner had not participated in or ratified attorney'sact; under Partnership Law, pivotal test for liability was whether attorney's wrong was committed on behalf ofand within reasonable scope of partnership business, not whether act was criminal in nature or whether partnercondoned attorney's acts. Dupree v. Voorhees (2 Dept. 2009) 68 A.D.3d 807, 891 N.Y.S.2d 124. Attorney andClient 30
29. Notary capacity
Claims for damages against notary public for knowingly notarizing and filing documents with lapsed notarycommission was not abuse of judicial process approaching sanctionable conduct; statute validating defectivelynotarized documents did not bar suit for damages based on notary-attorney's misconduct. Parks v. Leahey &Johnson, P.C., 1993, 81 N.Y.2d 161, 597 N.Y.S.2d 278, 613 N.E.2d 153. Costs 2
29.5. Recovery after pendency of action
Losing defendant in prior civil action could not recover from opposing party's attorney for violation of NewYork's attorney misconduct statute or common law fraud, based on alleged misrepresentations in attorney's clos-ing argument or alleged conspiracy with attorney's client to introduce false evidence in the prior action, wherealleged deceit was not raised during pendency of prior action and there was no showing that plaintiff first be-came aware of misrepresentations after judgment was entered or that they were part of fraudulent scheme ex-tending beyond prior action. Seldon v. Bernstein, C.A.2 (N.Y.)2012, 503 Fed.Appx. 32, 2012 WL 5860509, Un-reported. Judgment 517
30. Sanctions, generally
Two-year suspension from practice of law was appropriate sanction for attorney convicted of serious crime andfound to have submitted false and exaggerated vouchers to Assigned Counsel Plan for legal services purportedlyrendered, in violation of Code of Professional Responsibility. In re Carmen (2 Dept. 2005) 25 A.D.3d 250, 806N.Y.S.2d 82. Attorney And Client 59.13(5)
Sanction of $2,500 was properly imposed against defendant's attorney for attempting to interject claims againstplaintiff that were completely without merit in fact. Ross & Cohen v. Kurtz Steel Corp. (1 Dept. 1997) 237A.D.2d 172, 654 N.Y.S.2d 375. Attorney And Client 24
30.5. Remedies
Clients' remedy for their attorneys' purported misconduct in connection with fee dispute in Civil Court lay ex-
clusively in that lawsuit itself, by moving to vacate civil judgment due to its fraudulent procurement, not secondplenary action collaterally attacking judgment in original action pursuant to Judiciary Law provision concerningattorney misconduct. Chibcha Restaurant, Inc. v. David A. Kaminsky & Associates, P.C. (1 Dept. 2013) 102A.D.3d 544, 958 N.Y.S.2d 135. Attorney and Client 129(1)
31. Treble damages awards
Treble damages provision of New York Judiciary Law, which is triggered when attorney or counselor is shownto have engaged in deceit or collusion, was aimed at actions by attorney in his or her role as attorney and did notpermit award of treble damages against company's chief executive officer (CEO) for his alleged misconduct asCEO merely because he also happened to be attorney. Gilman v. Marsh & McLennan Companies, Inc., 2012,868 F.Supp.2d 118. Attorney and Client 129(4)
Chronic, extreme pattern of legal delinquency is a necessary condition to a finding of liability to client underNew York statute for treble damages, but not a sufficient condition by itself to establish liability. Aurora LoanServices, Inc. v. Posner, Posner & Associates, P.C., 2007, 513 F.Supp.2d 18. Attorney And Client 109
Preverdict interest was not includible in treble damages calculation in civil action brought under New York at-torney misconduct statute. Amalfitano v. Rosenberg, 2006, 428 F.Supp.2d 196, question certified 533 F.3d 117,certified question accepted 11 N.Y.3d 728, 864 N.Y.S.2d 380, 894 N.E.2d 643, certified question answered 12N.Y.3d 8, 874 N.Y.S.2d 868, 903 N.E.2d 265, answer to certified question conformed to 572 F.3d 91. Interest
39(2.20)
Plaintiff's counsel's conduct during discovery, which unreasonably and vexatiously multiplied proceedings andwarranted imposition of sanctions under federal law, did not amount to chronic and extreme delinquency suchthat he was liable for treble damages under provision of New York law. Brignoli v. Balch, Hardy & Scheinman,Inc., 1989, 126 F.R.D. 462, modified , on reargument on other grounds 735 F.Supp. 100. Federal Civil Proced-ure 2795
Under New York law, pre-judgment interest was integral part of compensatory award entered in favor of clientson their claims against their former attorney for refusing to turn over client funds that he held in connection withreal estate transaction, such that entire amount of award, consisting of both principal and pre-judgment interest,had to be trebled, under statute providing for trebled damages in lawsuit against attorney for his deceit or collu-sion. In re Kovler, 2000, 253 B.R. 592. Attorney And Client 129(4)
Unlike clients' cause of action against their former attorney for refusing to turn over client funds which he heldin connection with real estate transaction, clients' fraudulent transfer claims, based upon attorney's conveyanceof real property to wife, did not concern attorney's activities in his capacity as attorney, and clients were thus notentitled to trebling of judgment entered in their favor on fraudulent transfer claims, pursuant to New York stat-ute providing for trebling of damages awarded in suit against attorney for his deceit or collusion. In re Kovler,2000, 253 B.R. 592. Attorney And Client 129(4)
There was no evidence of a chronic and extreme pattern of legal delinquency on the part of attorney as to client'smatrimonial action, as required to establish a violation of Judiciary Law provision allowing for treble damagesfor misconduct by attorneys. Kinberg v. Opinsky (1 Dept. 2008) 51 A.D.3d 548, 859 N.Y.S.2d 129. AttorneyAnd Client 129(4)
No viable claim existed for treble damages against attorneys, in action against attorneys for decedent's estatebrought by decedent's heirs, where their purported deceit did not occur during the course of a pending judicialproceeding. Jacobs v. Kay (1 Dept. 2008) 50 A.D.3d 526, 857 N.Y.S.2d 81. Attorney And Client 26
Alleged deceit by an attorney with intent to deceive the court or any party, which is a misdemeanor and couldsupport a client's claim for treble damages under Judiciary Law, if it is not directed at a court, must occur duringthe course of a “pending judicial proceeding.” Costalas v. Amalfitano (1 Dept. 2003) 305 A.D.2d 202, 760N.Y.S.2d 422. Attorney And Client 114; Attorney And Client 129(4)
Attorney's alleged misconduct in causing client to enter into sham assignment agreement was not directed at acourt, or performed in course of a judicial proceeding, and thus, alleged deceit by attorney could not support cli-ent's claim for treble damages under Judiciary Law. Costalas v. Amalfitano (1 Dept. 2003) 305 A.D.2d 202, 760N.Y.S.2d 422. Attorney And Client 114; Attorney And Client 129(4)
Actions of attorney representing purchasers of parcels of property in preparing deeds in connection with transac-tions involved conduct that was not directed at a court, or performed in the course of a judicial proceeding, andthus, alleged deceit by attorney could not support claim for treble damages by vendors of property under Judi-ciary Law. Hansen v. Caffry (3 Dept. 2001) 280 A.D.2d 704, 720 N.Y.S.2d 258, leave to appeal denied 97N.Y.2d 603, 735 N.Y.S.2d 492, 760 N.E.2d 1288. Attorney And Client 26
Alleged deceit by an attorney that is not directed at a court must occur in the course of a pending judicial pro-ceeding in order to support award of treble damages under Judiciary Law. Hansen v. Caffry (3 Dept. 2001) 280A.D.2d 704, 720 N.Y.S.2d 258, leave to appeal denied 97 N.Y.2d 603, 735 N.Y.S.2d 492, 760 N.E.2d 1288. At-torney And Client 26
Evidence was insufficient to establish that attorney had engaged in chronic, extreme pattern of legal delinquencyin connection with his improper disbursement of approximately $39,000 in escrow funds belonging to clientwithout client's authority, as would allow award of treble damages to former client; no evidence was presentedwhich indicated that attorney defrauded client, or engaged in conduct intended to deceive. Gonzalez v. Gordon(1 Dept. 1996) 233 A.D.2d 191, 649 N.Y.S.2d 701, leave to appeal denied 90 N.Y.2d 802, 660 N.Y.S.2d 713,683 N.E.2d 336. Attorney And Client 129(2)
Treble damages were not recoverable pursuant to statute in connection with alleged misappropriation of pro-ceeds of settlement of lawsuit, where alleged deceit did not occur during pending judicial proceeding in whichplaintiff assignee was a party. Bankers Trust Co. v. Cerrato, Sweeney, Cohn, Stahl & Vaccaro (1 Dept. 1992)187 A.D.2d 384, 590 N.Y.S.2d 201. Damages 227
In action for legal malpractice, conversion and breach of contract, client was properly awarded damages basedon interest which would have been earned on misappropriated client funds during period of misappropriation,and that award was properly tripled. Burton v. Kaplan (1 Dept. 1992) 184 A.D.2d 408, 585 N.Y.S.2d 359. Dam-ages 227; Interest 39(2.30); Interest 39(2.50)
Under former Penal Law § 273, making it a misdemeanor for attorney to deceive the court or any party andproviding that in addition to punishment prescribed the party injured may recover treble damages, it is immateri-al in a prosecution for deceit that this section also provides for treble damages. People v. Connolly (2 Dept.1957) 3 A.D.2d 943, 164 N.Y.S.2d 66. Attorney And Client 33
In action by debtor's wife for alleged malicious prosecution by civil process, complaint alleging that creditor-defendant commenced action to set aside debtor's transfers of realty to wife as fraudulent, that defendants-attor-neys acting for creditor had acted as attorneys for wife in connection with the transfers and knew they weremade for valuable consideration, and that the defendants commenced the action and filed a lis pendens thereinwhich prevented the wife from leasing, mortgaging, or selling property, to her damage in sum of $30,000, stateda cause of action, but not for treble damages. Schierloh v. Kelly (2 Dept. 1938) 253 A.D. 373, 2 N.Y.S.2d 188.Malicious Prosecution 48; Malicious Prosecution 52
Provision of Judiciary Law authorizing recovery of treble damages by any party injured because of deceit prac-ticed on court by attorney is in part penal statute, and thus must be strictly construed. Southern Blvd. Sound, Inc.v. Felix Storch, Inc., 1995, 165 Misc.2d 341, 629 N.Y.S.2d 635, affirmed as modified 167 Misc.2d 731, 643N.Y.S.2d 882. Attorney And Client 26
Attorney did not engage in legal delinquency, so as to entitle former client to award of treble damages underNew York law, when attorney engaged in no deceit with respect to contingency fee arrangement, of which clienthad full knowledge, and client could point to no pattern of egregious conduct on attorney's part. King v. Fox,2004, 2004 WL 68397, Unreported, question certified 418 F.3d 121, certified question accepted 5 N.Y.3d 798,801 N.Y.S.2d 561, 835 N.E.2d 329, certified question answered 7 N.Y.3d 181, 818 N.Y.S.2d 833, 851 N.E.2d1184, answer to certified question conformed to 458 F.3d 39, on remand 2007 WL 4207202. Attorney And Cli-ent 147
