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A Long Discussion About the Lack of Deceit (II)


Kaufman v Boies Schiller Flexner LLP2022 NY Slip Op 32743(U)  August 15, 2022 Supreme Court, New York County  Docket Number: Index No. 154149/2018  Judge: James d’Auguste is the very fraught story of a massively fought matrimonial action.  It seems that millions were spent on litigation.  The martial estate must have been very worthwhile.  This case discusses two legal malpractice issues:  excessive billing and violation of Judiciary Law § 487.  In this blog, we will review the JL § 487 claims.

“Plaintiff has renumbered the Judiciary Law § 487 from the second cause of action in the original complaint to the to the seventh cause of action in the PAC.3 An attorney is liable for a
violation of Judiciary Law § 487 if he or she “[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the Court or any party; or … [w]ilfully  delays his client’s suit with a view to his own gain.” A cause of action under the statute “requires a showing of ‘egregious conduct or a chronic and extreme pattern of behavior’ on the part of the defendant attorneys that caused damages” (Facebook, Inc. v DLA Piper LLP (US), 134 AD3d 610,615 [1st Dept 2015], Iv denied 28 NY3d 903 [2016] [citation omitted]). Allegations of deceit or the intent to deceive must be pled with particularity (Bill Birds, Inc. v Stein Law Firm, P.C., 164 AD3d 635, 637 [2d Dept 2018], affd 35 NY3d 173 [2020]; Facebook, Inc., 134 AD3d  at 615 [ dismissing a Judiciary Law § 487 claim where the allegations of sci enter were conclusory and were not supported by specific facts]).

The PAC alleges that BSF and Kaplan intentionally deceived plaintiff into signing the January 17, 2013, preliminary conference order/stipulation in which she relinquished her rights
to various personal and marital property, and which directed her ex-husband, Thomas Kaufman (Kaufman), to pay her $2 million in cash and/or securities (NYSCEF Doc. No. 203, ,r,r 416-419 at 449 [Ex 11 ]). BSF and Kaplan allegedly colluded to obtain an all-cash payment instead of stock so they could bill plaintiff for their own personal gain (id., ,r,r 420-421 ). BSF and B&K are alleged to have intentionally prolonged the action by failing to re-file an order to show cause for pendente lite relief and discovery (id., ,r,r 423-427), with BSF concealing its wrongdoing by refusing to provide an accounting of its services (id., ,r,r 428-431 ), and by refusing to proceed with mediation even though CM had advised the Court of his intention to mediate (id., ,r,r 435- 437). After cancelling the mediation, BSF and B&K billed plaintiff an additional $892,023.18 (id., ,r 442). Kaplan purportedly defamed plaintiffs parenting skills in an October 15, 2014, email to Joan Salwen (Salwen), the attorney representing her youngest daughter, which led her daughter to join Kaufman in Westchester (id., ,r,r 249-252 and 450). Defendants allegedly undermined plaintiffs custodial rights so she and Kaufman would be forced to sell the marital home, the proceeds of which could be used to pay defendants’ fees (id., ,r,r 451-452). BSF also intentionally deceived the Court and plaintiff on Uno’s unauthorized practice oflaw (id., ,r,r 461 and 463). It is claimed that Kaplan and BSF were aware that plaintiff suffers from ADHD dyslexia and a cognitive auditory disability and required a written copy of the settlement and “time to read, process and digest the written terms in order … to understand [them]” (id., ,i,r 265- 268). The PAC alleges that the settlement terms, though, “had been drastically changed from the original letter Kaplan sent Plaintiff’ (id, ,r 269). The PAC further alleges that when plaintiff expressed her reservations about the settlement to Kaplan and CM, and Kaplan, in tum “told CM[ ] that Plaintiff did not understand the terms of the Settlement” (id, ,r,i 276 and 282). It is alleged that “CM[ ] dismissed this concern, stating to Kaplan that if Plaintiff did not accept the Settlement that was being offered, she would never get out of the courtroom and Defendants would be wrapped up litigating this case forever” (id, ,i,r 277 and 283). Plaintiff now claims defendants coerced her into entering into the settlement with Kaufman even though they knewshe did not understand its terms (id., ,r 287).

These allegations fail to remedy the deficiencies in the original complaint regarding the element of intentional deceit (see Lavelle-Tomko v Aswad & Ingraham, 191 AD3d 1142, 1147
[3d Dept 2021] [ denying a motion to amend a complaint to plead a cause of action under Judiciary Law § 487 where the proposed amendment failed to plead facts tending to prove the attorney’s intent to deceive]; Genger v Genger, 135 AD3d 454,454 [1st Dept 2016], Iv denied 27 NY3d 912 [2016] [reasoning that there was no basis to rep lead where the plaintiffs papers did not show that plaintiff would be able to state a viable cause of action]). Plaintiff liberally employs words or phrases such as “intentionally deceived” or “intentionally misled” or “deceitfully” throughout the PAC, but such catch phrases are too conclusory to plead intent with particularity. Nor does the PAC plead any specific facts from which deceit or the intent to deceive may be inferred (see Ehrenkranz v 58 MHR, LLC, 159 AD3d 872, 872 [2d Dept 2018]). More importantly, several of the purportedly deceitful acts -the defective order to show cause, a cancelled mediation, Kaplan’s allegedly defamatory email, Uno’s participation in the action, and the settlement – were addressed previously in the April Order, though now, plaintiff buttresses the allegations with additional documents. The Court transcripts, emails and other documents, however, are insufficient to plead the element of scienter with particularity or evince an egregious or chronic pattern of behavior.

As stated in the April Order, the Court declined to sign the order to show cause because the motion had been filed four days before a trial ready conference and because defendants failed to request a pre-motion conference (NYSCEF Doc. No. 134 at 12). In declining to sign, the Court (Ecker, J.) also determined the motion “would be held in abeyance” so the parties could appear for a pre-motion conference (NYSCEF Doc. No. 203 at 452 [Ex 13)). The Court transcripts show that Kaplan and CM repeatedly raised the issue of outstanding discovery with the court-attorney referee and with the Court after the Court declined to sign the order to show cause (NYSCEF Doc. No. 203 at 458-459 [Ex 14]; NYSCEF Doc. No. 203 at 510 [Ex 15)). Thus, the documents do not support the claim that defendants willfully delayed plaintiffs suit for their own gain (see Fleyshman v Suckle & Schlesinger, PLLC, 91 AD3d 591,593 [2d Dept 2012], iv denied 19 NY3d 801 [2012] [granting dismissal of a Judiciary Law § 487 (2) cause of action because the “allegation that the defendants ‘willfully delayed [her] recovery with a view to their own ends and benefit’ is a bare legal conclusion”]).

Plaintiff complains that defendants cancelled mediation so they could continue to bill for their services. But, as noted in the April Order, BSF objected to the tactics employed by
Kaufman’s attorney to unilaterally proceed with mediation without furnishing certain discovery (NYSCEF Doc. No. 134 at 12-13). The correspondence regarding the proposed mediation submitted with the PAC fails to reflect an intent to deceive on the part of defendants. The emails show that defendants and Kaufman’s counsel never agreed on a specific mediator (NYSCEF Doc. No. 203 at 978 [Ex 26]). When Kaufman’s counsel executed a retainer with a mediator and paid a $10,000 fee, Kaplan advised that plaintiff “never agreed to start mediation with Mr. Berman. [S]orry for the confusion. Husband jumped the gun” (id. at 980). ”

“As for the settlement, plaintiff had previously argued that she did not understand the agreement and that Kaplan and BSF were aware that she did not understand it (NYSCEF Doc.
No. 134 at 16). As explained in the April Order, plaintiffs allocution defeats any claim that she misunderstood its terms, and therefore, defendants’ actions could not have caused her damages (see Maksimiak v Schwartzapfel Novick Truhowsky Marcus, P. C., 82 AD3d 652, 652 [1st Dept 2011] [granting dismissal where the complaint failed to plead that the attorneys’ actions caused the plaintiff’s damages]). Moreover, as noted in the prior order, another Justice of this Court had already denied plaintiffs attempt to set aside the settlement based on her lack of understanding of its terms (NYSCEF Doc. No. 179, decision and order dated August 14, 2019, in Coplan v Kaufman, Sup Ct, NY County, index No. 152865/2017).
As for the alleged misconduct concerning the preliminary conference stipulation/order dated January 17, 2013, a single act of deceit is not enough to trigger a Judiciary Law§ 487
violation (Strumwasser v Zeiderman, 102 AD3d 630,631 [1st Dept 2013]).

Accordingly, leave to replead the cause of action under Judiciary Law§ 487 is denied.”



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