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Posted: March 23, 2017

Judiciary Law § 478 Claim Cannot Be Based on Attorney Conduct in Arbitration

On March 16, 2017, the First Department issued a decision in Doscher v. Mannatt, Phelps & Phillips, LLP, 2017 NY Slip Op. 01973, holding that a Judiciary Law Section 478 claim could not be based on attorney conduct in an arbitration, explaining:

Plaintiff also failed to state a cause of action under Judiciary Law § 478, because the statute does not apply to attorney misconduct during an arbitral proceeding. The plain text of § 478 limits the statute’s application to conduct deceiving “the court or any party”, and, because the statute has a criminal component, it must be interpreted narrowly. Moreover, courts have held that the statute does not apply to conduct outside New York’s territorial borders or to administrative proceedings, observing that its purpose is to regulate the manner in which litigation is conducted before the courts of this State.

In any event, plaintiff failed to allege the elements of a cause of action under the statute, i.e., intentional deceit and damages proximately caused by the deceit. The misconduct that plaintiff alleges is not egregious or a chronic and extreme pattern of behavior, and the allegations regarding scienter lack the requisite particularity. Moreover, plaintiff was given the opportunity to subpoena a third party for documents that he was unable to obtain from defendants, but he declined it. He cannot blame defendants for his tactical decision.

(Internal quotations and citations omitted).

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