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COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE, BUT DID NOT STATE A CAUSE OF ACTION FOR A VIOLATION OF JUDICIARY LAW 487 ABSENT AN ALLEGATION OF AN INTENTIONAL DECEPTION (SECOND DEPT).

The Second Department determined the legal malpractice cause of action properly survived a motion to dismiss, but the Judiciary Law 487 cause of action should have been dismissed because there was no allegation of intentional as opposed to negligent conduct:

In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession’ and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages” … . “To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence” …

Here, contrary to the defendant’s contention, the complaint adequately alleged the required element of causation. Specifically, the complaint, construed liberally… , alleged that the defendant proximately caused the plaintiff damages by, among other things, negligently failing … to assert a specific performance cause of action, on which the plaintiff would have prevailed. …

However, the Supreme Court should have directed dismissal of the second and third causes of action, alleging violations of Judiciary Law § 487. Under Judiciary Law § 487, an attorney who “[i]s 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. “[V]iolation of Judiciary Law § 487 requires an intent to deceive, whereas a legal malpractice claim is based on negligent conduct”… .

… [Plaintiff’s] allegations do not set forth any facts from which an intent to deceive him could be inferred … . Aristakesian v Ballon Stoll Bader & Nadler, P.C., 2018 NY Slip Op 07084, Second Dept 10-24-18

NEGLIGENCE (LEGAL MALPRACTICE, COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE, BUT DID NOT STATE A CAUSE OF ACTION FOR A VIOLATION OF JUDICIARY LAW 487 ABSENT AN ALLEGATION OF AN INTENTIONAL DECEPTION (SECOND DEPT))/LEGAL MALPRACTICE (COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE, BUT DID NOT STATE A CAUSE OF ACTION FOR A VIOLATION OF JUDICIARY LAW 487 ABSENT AN ALLEGATION OF AN INTENTIONAL DECEPTION (SECOND DEPT))/JUDICIARY LAW (ATTORNEYS, COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE, BUT DID NOT STATE A CAUSE OF ACTION FOR A VIOLATION OF JUDICIARY LAW 487 ABSENT AN ALLEGATION OF AN INTENTIONAL DECEPTION (SECOND DEPT))/ATTORNEYS (MALPRACTICE, JUDICIARY LAW, COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE, BUT DID NOT STATE A CAUSE OF ACTION FOR A VIOLATION OF JUDICIARY LAW 487 ABSENT AN ALLEGATION OF AN INTENTIONAL DECEPTION (SECOND DEPT))

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