FKB’s Andrew S. Kowlowitz and Rachel Aghassi obtain summary dismissal of Judiciary Law § 487 claim based on alleged “misrepresentations” in underlying matrimonial action

05/4/2018

FKB successfully obtained CPLR § 3212 summary judgment dismissal from Justice Shlomo Hagler in the Supreme Court, New York County.

This Judiciary Law § 487 claim is based on FKB’s client’s representation of plaintiff’s husband in an underlying matrimonial action in Westchester County initiated in 2004.  Despite being represented in the proceedings by three successive law firms (co-defendants in this action), plaintiff failed to comply with court orders in the underlying divorce proceedings, resulting in an order for an inquest to finalize the proceedings.  Plaintiff, who was located in the Czech Republic and proceeding pro se after terminating her representation, did not appear at the inquest in December 2005 which resulted in the divorce court subsequently granting the divorce in favor of the husband in March 2006, which did not include a child support order.  After FKB’s client was no longer representing the husband, the divorce judgment was eventually vacated and reversed in plaintiff’s favor in 2008 on default, ordering the husband to pay child support. 

In this case, initiated in 2007, plaintiff  alleges that during the 2005 inquest, FKB’s client violated Judiciary Law § 487, which  provides for treble damages if an attorney is guilty of deceit or collusion of the court, by allowing the husband to testify that there were no children of the marriage.  While it is undisputed that the couple had no biological children, plaintiff asserted that the husband had adopted her then-15 year old son.  

Discovery was stalled for years due to plaintiff’s continued refusal to appear for the balance of her deposition due to her alleged psychological issues which she contended prevent her from proceeding.  After plaintiff filed over ten (10) motions in an attempt to avoid further deposition, FKB, jointly with co-defendants’ counsel, successfully obtained an order precluding plaintiff from testifying at trial in support of her claims. 

At the close of discovery,  FKB moved for summary judgment dismissal arguing that (1) plaintiff has not elicited any evidence that FKB’s client engaged in the chronic, extreme pattern of legal delinquency required for a Judiciary Law § 487 claim; (2) plaintiff’s damages were caused by her husband’s own failure to pay child support after he was ordered to do so; (3) FKB’s client is entitled to advance and advocate his client’s reasonable litigation position that he did not formally adopt plaintiff’s son; and (4) plaintiff improperly brought this claim in a separate Judiciary Law § 487 action apart from the underlying matrimonial action, which was still ongoing when this action was filed.

In response, plaintiff cross-moved for summary judgment arguing that FKB’s client had the requisite intent to deceive the divorce court because a settlement letter drafted by FKB’s client contained an offer of child support, which plaintiff argues was an “admission” by FKB’s client that her husband had formally adopted her son.  Plaintiff, who is represented by a team of attorneys, also moved for summary judgment on several other claims which FKB successfully obtained dismissal in relation to in 2008 as well as on claims which were not asserted in the complaint.

On May 1, 2018, Justice Hagler granted summary judgment dismissal and denied plaintiff’s cross-motion, agreeing with FKB’s argument that the record does not demonstrate “deceit that reaches the level of egregious conduct or a chronic extreme pattern of behavior” necessary for a Judiciary Law § 487 claim and therefore FKB established “a prima facie showing of entitlement to summary judgment dismissing the Judiciary Law 487 claims.”  Justice Hagler further agreed with FKB’s argument that the settlement letter “is clearly a settlement document which is not admissible to prove liability.”  The decision goes on to find that “allegations of additional purported acts of deceitful conduct by [FKB’s client] are not alleged in the amended complaint, are made without any personal knowledge of the facts or supported by any admissible evidence, and thus, need not be considered by this Court.”

If you have any questions about this decision, or the defense of attorneys in general, please contact Andrew S. Kowlowitz or Rachel Aghassi.

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