## Facts

- Armand Rosenberg, an attorney, filed a fraud action on behalf of Peter Costalas against Vivia and Gerard Amalfitano concerning the purchase of interests in a family partnership known as 27 Whitehall Street Group.
- The complaint alleged that Costalas was a partner in the business; those allegations were false.
- Rosenberg repeated the false assertions in motion papers and in an affidavit submitted in the litigation.
- The trial court dismissed the complaint, concluding the allegations were not credible and the action was baseless.
- Rosenberg submitted the same false affidavit to the Appellate Division, which reversed and remanded.
- On remand, the trial court again dismissed the complaint.
- The Amalfitanos then sued Rosenberg under New York Judiciary Law § 487, seeking treble damages for attorney deceit in a judicial proceeding.
- A federal district court found a § 487 violation and awarded treble damages measured as three times the Amalfitanos’ costs to defeat the underlying litigation.
- On appeal, the Second Circuit certified questions to the New York Court of Appeals concerning whether § 487 reaches attempted (unsuccessful) deceit and whether defense costs can be proximately caused by a deceitful complaint even when the court was not actually misled.

## Issues

1. Whether a civil action for treble damages under New York Judiciary Law § 487 may be based on an attempted but unsuccessful deceit, or instead requires that the deceit actually mislead the court.
2. Whether defense costs incurred from litigation initiated by a materially false complaint may be treated as proximately caused by the misrepresentation when the trial court did not accept the misrepresentation as true.

## Decision

- The Court of Appeals answered both certified questions in the affirmative.
- A § 487 claim may rest on attempted deceit; actual success in misleading the court is not required.
- Litigation defense costs incurred from the inception of an action may be treated as proximately caused by a complaint’s material misrepresentation even if the trial court was not fooled.
- The court returned the matter for further proceedings consistent with its answers to the certified questions.

## Legal Principles

- New York Judiciary Law § 487 targets intentional attorney deceit in the course of judicial proceedings and is not limited by common-law fraud elements such as actual reliance by the court.
- “Any deceit” under § 487 includes an attorney’s intentional effort to mislead a court or party, regardless of whether the attempt succeeds.
- A cognizable injury under § 487 may include the reasonable costs and expenses of defending litigation instituted or pursued through intentional deceit.
- Proximate causation under § 487 may be satisfied where the deceitful initiation or prosecution of litigation foreseeably and directly forces an adversary to incur defense costs, even absent a deceptive ruling by the court.

## Conclusion

The Court of Appeals held that Judiciary Law § 487 permits treble-damages liability for an attorney’s intentional attempted deceit in litigation and allows recovery of treble defense costs as proximately caused by a materially false complaint even when the trial court was not misled.


Amalfitano v. Rosenberg, 903 N.E.2d 265 (N.Y. 2009)