On February 10, 2021, the Second Department issued a decision in Cordell Marble Falls, LLC v. Kelly, 2021 NY Slip Op. 00833, holding that conclusory allegations were an insufficient basis for a Judiciary Law 487 claim, explaining:
Under Judiciary Law § 487(1), an attorney who is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party is liable to the injured party for treble damages. Violation of Judiciary Law § 487 requires an intent to deceive as opposed to conduct which is negligent. Here, the evidentiary material submitted by the defendants in support of their motion, which included, among other things, the motion papers filed in the prior action and excerpts of Lovy’s deposition testimony given in the prior action, was sufficient to demonstrate that the fact as alleged by the plaintiffs — that the defendants knew that certain statements set forth in the Kamisher and Lovy affidavits when submitted in the prior action were false with intent to deceive the court — was not a fact at all. The complaint, as amplified by the plaintiffs’ evidentiary submissions in opposition to the defendants’ motion, contained only conclusory allegations, without any factual basis, that the defendants acted to deceive the court when submitting the Kamisher and Lovy affidavits in the prior action.
(Internal quotations and citations omitted).
Part of being a good litigator is thinking of winning arguments other lawyers miss. However, courts have little patience for lawyers who cross the line from creative to making frivolous arguments or who attempt to mislead the court. Contact Schlam Stone & Dolan partner John Lundin at firstname.lastname@example.org if you or a client has a question regarding whether a lawyer has crossed the line from creative to sanctionable.
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