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NORTHERN TRUST BANK OF FLORIDA/SARASOTA, N.A. v. C

April 16, 1986

NORTHERN TRUST BANK OF FLORIDA/SARASOTA, N.A., ULLA SEARING and BARBARA S. GILANYI, as Co-Personal Representative of the Estate of Arthur F. Searing, Plaintiffs,
v.
GEORGE F. COLEMAN, Defendant



The opinion of the court was delivered by: WEINFELD

EDWARD WEINFELD, D.J.

Defendant George F. Coleman, an attorney, moves pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss plaintiffs second cause of action and pursuant to Rule 12(f) to strike certain allegations in the complaint as scandalous, immaterial and impertinent. Plaintiffs move for leave to file an amended complaint.

 Coleman, a New York lawyer, was retained in October 1982 by Arthur F. Searing, a Florida resident, to draft Searing's last will and testament. The will designated Coleman and Thomas J. Bond, who were not Florida residents, as coexecutors and co-trustees, and contained a provision waiving compliance with Florida laws regarding their qualifications. Upon Searing's death in March 1983, Coleman and Bond were appointed co-personal representative of Searing's estate by order of the Circuit Court, Sarasota County, Florida, Probate Division ("Florida Probate Court"). On August 24, 1983, Coleman was appointed ancillary executory for the estate in New York by the Surrogate's Court, Suffolk County, New York.

 By petition dated January 20, 1985, Ulla Searing, the deceased's widow, petitioned the Florida Probate Court to have Colman and Bond removed as personal representatives of the estate on the ground that they were not Florida residents and therefore were not qualified to serve as personal representatives. Shortly thereafter, Coleman and Bond petitioned the court to permit them to voluntarily resign as personal representatives. Their petition was granted on April 3, 1985. The Florida Probate Court appointed Northern Trust Bank of Florida/Sarasota, N.A., Ulla Searing and Barbara S. Gilanyi -- the plaintiffs in this action -- to replace Coleman and Bond as co-personal representatives. The attorneys representing the new person representatives decided that the estate had a claim against Coleman for malpractice.

 The plaintiffs' first cause of action charges that Coleman was negligent with respect to the legal advice he gave Searing and in his preparation of Searing's will in that the will failed to provide the estate with the maximum marital estate tax deduction permitted under federal and/or state law and failed to dispose of 3/13ths of Searing's remaining assets. The second cause of action, which Coleman now seeks to dismiss for failure to state a claim, alleges that Coleman, as the co-personal representative of Searing's estate in Florida and as the ancillary executor in New York, willfully delayed bringing suit against himself on the estate's behalf, with a view to his own gain, in violation of New York Judiciary Law § 487.

 Upon a motion to dismiss a complaint for failure to state a claim, the court is required to accept plaintiff's allegations at face value, and most construe the allegations in the complaint in plaintiff's favor. *fn1" "The complaint may be dismissed only if it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. " *fn2"

 Defendant's motion to dismiss the second cause of action is granted. Section 487 provides:

 An attorney or counselor who:

 2. Wilfully delays his client's suit with a view to his own gain... Is guilty of a misdemeanor, and in addition to the punishment prescribed therefor by the penal law, he forfeits to the party injured treble damages, to be recovered in a civil action.

 Section 487 is aimed at actions by an attorney in his or her role as an attorney. The mere fact that a wrongdoer is an attorney is insufficient to impose liability for treble damages under section 487. *fn3" The complaint alleges that Coleman, in his capacity as personal representative and ancillary executor, willfully delayed bringing suit, not that Coleman, as attorney for the estate, failed to bring suit. Moreover, the allegations with respect to Coleman as an attorney are limited to the advice given Searing in Florida before his death and the drafting of Searing's will; they have nothing to do wit Coleman's alleged willful delay of the suit for malpractice. Construing the allegations in the complaint in plaintiffs' favor, the Court nevertheless finds that the second cause of action fails to state a claim under section 487.

 Plaintiffs move for leave to file an amended complaint adding the allegations that "[u]pon information and belief, Coleman acted as an attorney for the Estate in New York," and that Coleman willfully delayed bringing suit against himself in his capacity, not only as personal representative and ancillary executor, but also as attorney in New York. Thus, plaintiffs seek to correct the defect in their complaint.

 While fully mindful of the requirement that leave to amend pleadings must be liberally granted, especially in cases where no prejudice or undue delay would result from the amendment, *fn4" futile amendments need not be permitted. *fn5" Accepting as true, as it must, the allegation that Coleman was acting as an attorney for the estate in New York, the Court finds that the second cause of action in plaintiffs' amended complaint fails to state a claim for relief under section 487 and therefor is futile.

 Plaintiffs' attempt to use section 487 to seek treble damages from an attorney who allegedly delayed a suit against himself for malpractice presents a case of first impression in New York. The parties have not cited, nor has the Court's research disclosed, any cases in which an attorney has been sued for willfully delaying a suit against anyone other than a third party. *fn6" This Court is unwilling to assume that the New York Court of Appeals, if confronted with this question, would construe section 487 to permit a client to sue his attorney for the attorney's willful delay in suing himself for malpractice. There is nothing to suggest or indicate that the New York Legislature intended that such actions be brought under section 487.

 Existing cases construing section 487 concern circumstances in which an attorney is retained for the purpose of bringing a suit against a third party by willfully delays the suit. Coleman was not retained by the deceased to commence an action against any party. His retention was solely for the purpose of drafting Searing's last will and testament, which he did. Similarly, there is no allegation in the complaint or the proposed amended complaint that Coleman was ...


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