Korman and DiGennaro Secure Victory on Appeal

April 17, 2017 | Professional Liability | Appeals

Cheryl Korman and Janice DiGennaro secured a victory on appeal for their lawyer clients of claims under New York Judiciary Law section 487 in the Second Circuit Court of Appeals. The claims were based on an almost two decade long litigation  in the state court between the plaintiff and his former wife.  The plaintiff brought shadow litigation under New York’s Judiciary law section 487 against our clients, the attorneys for the plaintiff’s former wife on the eve of the state court trial. That statute makes it a crime for a lawyer to engage in any fraud or deceit in connection with a pending judicial proceeding and subjects the lawyer defendant to treble damages as well.

The plaintiff claimed that arguments made by our client on behalf of the plaintiff’s former wife in connection with motions and appeals in the state court constituted acts of deceit under the statute. The District Court rejected the plaintiff’s claims in its entirety holding that our clients’ conduct constituted the normal acts of an advocate and that the Judiciary Law claims were completely without merit.  The plaintiff appealed and actually sought to certify questions to the Court of Appeals on the proper interpretation of the statute.  The Second Circuit, in a very animated panel, agreed entirely with our position and affirmed the well-reasoned decision of the District Court that the normal advocacy engaged in by lawyers every day in motion practice was neither false nor intended to deceive and  cannot form the predicate of a treble damages action for fraud and deceit under New York Judiciary Law section 487.   The Second Circuit panel even teased the plaintiff’s counsel that under his lax formulation of the statute, if the panel did not agree with his arguments then perhaps the plaintiff’s counsel should be found guilty of a Judiciary Law violation.

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