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Amalfitano v. Rosenberg

February 12, 2009


The opinion of the court was delivered by: Read, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

The United States Court of Appeals for the Second Circuit has certified two questions to us regarding the application of section 487 of the Judiciary Law insofar as it provides that

"[a]n attorney or counselor who:... is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party... [i]s 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."

The questions arise out of defendant Armand Rosenberg's appeal from a judgment of the United States District Court for the Southern District of New York, finding that Rosenberg violated section 487 and awarding plaintiffs Vivia and Gerard Amalfitano three times their costs to defeat a lawsuit brought by Rosenberg on behalf of Peter Costalas (Amalfitano v Rosenberg, 428 F Supp 2d 196 [SDNY 2006]). The lawsuit accused the Amalfitanos of fraudulently purchasing what remained of the Costalas's family business, a partnership known as 27 Whitehall Street Group. On appeal, the Second Circuit concluded that it could affirm the District Court's judgment "in its entirety" only if, in addition to Rosenberg's actual deceit of the Appellate Division, his "attempted deceit" of the trial court "the false allegations in the complaint in the Costalas litigation" representing that Peter Costalas was a partner in 27 Whitehall Street Group would "support[] a cause of action under section 487 and was the proximate cause of the Amalfitanos' damages in defending the litigation from its inception" (Amalfitano v Rosenberg, 533 F3d 117, 125 [2d Cir 2008]).*fn1


Certified Question No. 1

"Can a successful lawsuit for treble damages brought under N.Y. Jud. Law § 487 be based on an attempted but unsuccessful deceit?" (533 F3d at 126).

Rosenberg equates forfeiture under Judiciary Law § 487 with a tort claim for fraud. And under New York common law, "[t]o maintain an action based on fraudulent representations,... in tort for damages, it is sufficient to show that the defendant knowingly uttered a falsehood intending to deprive the plaintiff of a benefit and that the plaintiff was thereby deceived and damaged" (Channel Master Corp. v Aluminum Ltd. Sales, 4 NY2d 403, 406-407 [1958] [emphasis added]). Thus, Rosenberg argues, section 487 does not permit recovery for an attempted but unsuccessful deceit practiced on a court. And here, the trial judge was concededly never fooled by misrepresentations regarding Peter Costalas's partnership status.

As the District Court correctly observed, however, Judiciary Law § 487 does not derive from common law fraud. Instead, as the Amalfitanos point out, section 487 descends from the first Statute of Westminster, which was adopted by the Parliament summoned by King Edward I of England in 1275. The relevant provision of that statute specified that

"if any Serjeant, Pleader, or other, do any manner of Deceit or Collusion in the King's Court, or consent [unto it,] in deceit of the Court [or] to beguile the Court, or the Party, and thereof be attainted, he shall be imprisoned for a Year and a Day, and from thenceforth shall not be heard to plead in [that] Court for any Man; and if he be no Pleader, he shall be imprisoned in like manner by the Space of a Year and a Day at least; and if the Trespass require greater Punishment, it shall be at the King's Pleasure" (3 Edw, c 29; see generally Thomas Pitt Taswell-Langmead, English Constitutional History 153-154 [Theodore F.T. Plucknett ed, Sweet & Maxwell, 10th ed 1946]).

Five centuries later, in 1787, the Legislature adopted a law with strikingly similar language, and added an award of treble damages, as follows:

"And be it further enacted... [t]hat if any counselor, attorney, solicitor, pleader, advocate, proctor, or other, do any manner of deceit or collusion, in any court of justice, or consent unto it in deceit of the court, or to beguile the court or the party, and thereof be convicted, he shall be punished by fine and imprisonment and shall moreover pay to the party grieved, treble damages, and costs of suit" (L 1787, ch 36, § 5).

In 1836, the Legislature carried forward virtually identical language in section 69 of the Revised Statutes ...

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