| Barrows v Alexander |
| 2010 NY Slip Op 08506 [78 AD3d 1693] |
| November 19, 2010 |
| Appellate Division, Fourth Department |
| Melody Barrows et al., Appellants, v James Alexander et al., Individuallyand Doing Business as Alexander & Catalano, LLP, et al., Respondents. |
—[*1] Smith, Sovik, Kendrick & Sugnet, PC, Syracuse (Michelle M. Davoli of counsel), fordefendants-respondents.
Appeal from an order of the Supreme Court, Onondaga County (John C. Cherundolo, A.J.),entered June 8, 2009 in a legal malpractice action. The order denied plaintiffs' motion for leave toamend their complaint.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this legal malpractice action, plaintiffs appeal from an order denying their motionfor leave to amend the complaint to assert a cause of action under Judiciary Law § 487 (1),pursuant to which they would be entitled to recover treble damages from an attorney who "[i]s guilty ofany deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or anyparty." In support of their motion, plaintiffs alleged that Peter Catalano (defendant), who representedplaintiffs in the underlying personal injury action, engaged in deceitful conduct during the course of thismalpractice action, both with respect to plaintiffs and Supreme Court. We conclude that the courtproperly denied the motion inasmuch as the proposed amendment is patently lacking in merit (see generally Anderson v Nottingham Vil.Homeowner's Assn., Inc., 37 AD3d 1195, 1198 [2007], amended on rearg 41AD3d 1324 [2007]). Judiciary Law § 487 applies only "to an attorney acting in his or hercapacity as an attorney, not to a party who is represented by counsel and who, incidentally, is anattorney" (Oakes v Muka, 56 AD3d1057, 1058 [2008]), and here defendant was not acting in his capacity as an attorney in thecontext of this legal malpractice action (see Gelmin v Quicke, 224 AD2d 481, 482-483[1996]). Plaintiffs' reliance on Kurman vSchnapp (73 AD3d 435 [2010]) is misplaced because the record in that case establishes thatthe defendant was acting in his capacity as an attorney when he engaged in the alleged [*2]deceitful conduct.
Finally, the contention of plaintiffs that the court erred in denying their motion for summaryjudgment is not properly before us because plaintiffs failed to take an appeal from the order denyingthat motion. Present—Martoche, J.P., Centra, Carni, Lindley and Pine, JJ.