Opinion
22058
January 7, 2002
D'Amato Lynch, New York City, for defendants.
Smith Laquercia, LLP, New York City (Reed M. Podell of counsel), for plaintiffs.
In this action plaintiffs sue defendant law firm for legal malpractice and assert a separate claim for damage against an individual partner, Felice Ekelman, pursuant to Judiciary Law Section 487(1). Judiciary Law Section 487(1) allows an injured party to recover treble damages from an attorney, if he or she "[is] guilty of any deception or collusion or consents to any deceit or collusion, with the intent to deceive the Court or any party."
Defendant Ekelman moves to dismiss the 487(I) claim asserted as a third cause of action in the complaint on the ground that the allegations against her do not involve actions by her as an attorney, when she is alleged to have testified falsely at a deposition. In support of her motion, defendant cites, inter alia, Northern Trust Bank of Florida/Sarasota, N.A. v. Coleman, 632 F. Supp. 648 (S.D.N.Y. 1986); Haber v. Kinser, 255 A.D.2d 223 (1st Dep't 1998); and 216 Garage, Inc. v. Roth, 12 Misc.2d 1081 (Sup.Ct., N.Y. Co. 1958) motion denied 7 A.D.2d 841 (1959).
The deposition testimony given by Ms. Ekelman was in the context of an ongoing lawsuit against the plaintiffs in the United States District Court for the Southern District of New York by plaintiffs' former employees, alleging plaintiffs' violation of the Fair Labor Standards Act. Poltz et al., v. NYAT. Maintenance Corp., and New York Apple Tours, Inc. d/b/a New York Apple Tours. In that action, plaintiffs asserted a defense of good faith, in that they acted on the advice of their counsel (defendants here) that they were exempt from certain FLSA and other statutory requirements and that their counsel had presented that position to various government agencies.
At her deposition Ms. Ekelman denied or did not recall providing the alleged advice and representation. In this action, plaintiffs claim that Ms. Edelman's deposition testimony was intentionally false and perjurious and damaged them in the Plotz action.
In their Third Cause of Action plaintiffs allege that Ms. Edelman testified at her EBT both in her individual capacity and as an attorney. Defendants' motion is denied. Unlike the cases cited by defendants, there is not a clear separation of the two roles in Ms. Ekleman' s testimony and the context in which it was taken. She testified as an attorney about her work as an attorney, for example, when she referred to questions as calling for disclosure of confidential attorney-client communications, and when she characterized the legal advice she gave. Although defendant law firm, including Ms. Edelman, no longer represented plaintiffs at the time of her deposition, she nevertheless had continuing obligations to them arising out of her role as an attorney. The question of waiver of the attorney-client privilege was repeatedly raised at the EBT by her counsel, and involved Ms. Edelman as an attorney.
Ms. Edelman's deposition was given in a pending judicial proceeding and if it was intentionally deceitful or perjurious, its purpose had to be to deceive the Court, and other requirements of Judiciary Law Section 487 (1) were satisfied to that extent. See Gelmin v. Quicke, 224 A.D.2d 481 (2nd Dept't 1996); Henry v. Brenner, 271 A.D.2d 647 (1st Dep't 2000).
Defendant also argues that Judiciary Law Section 487(1) does not apply to a single incident of attorney misconduct. Absent guidance from New York Appellate Courts, the Court finds this argument unpersuasive where lying under oath is alleged.
Accordingly, defendant's motion to dismiss plaintiffs' Third Cause of Action is denied.