| Dupree v Voorhees |
| 2013 NY Slip Op 00452 [102 AD3d 912] |
| January 30, 2013 |
| Appellate Division, Second Department |
| Kristin Dupree, Appellant, v Oliver RaymondVoorhees III, Defendant, and Karyn A. Villar et al.,Respondents. |
—[*1] Phillips, Weiner, Artura & Cox, Lindenhurst, N.Y. (Michael S. Cox of counsel), forrespondents.
In an action, inter alia, to recover damages for violation of Judiciary Law §487, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Brown,J.), dated January 5, 2012, which denied her motion for summary judgment on thecomplaint insofar as asserted against the defendants Karyn A. Villar and Dorothy A.Courten, or, in the alternative, to preclude the use of expert testimony at trial.
Ordered that the appeal from so much of the order as denied that branch of theplaintiff's motion which was to preclude the use of expert testimony at trial is dismissed;and it is further,
Ordered that the order is affirmed insofar as reviewed; and it is further,
Ordered that one bill of costs is awarded to the respondents.
The Supreme Court properly denied that branch of the plaintiff's motion which wasfor summary judgment on the complaint insofar as asserted against the defendants KarynA. Villar and Dorothy A. Courten. Villar represented the plaintiff's former husband in anunderlying matrimonial action. The plaintiff alleges that Villar violated Judiciary Law§ 487 in the course of that representation, and that Courten, Villar's law partner, isvicariously liable for Villar's alleged wrongdoing. Pursuant to Judiciary Law § 487(1), "[a]n attorney or counselor who . . . [i]s guilty of any deceit orcollusion, or consents to any deceit or collusion, with intent to deceive the courtor any party . . . [i]s guilty of a misdemeanor, and in addition to thepunishment prescribed therefor by the penal law, he forfeits to the party injured trebledamages, to be recovered in a civil action" (Judiciary Law § 487 [1] [emphasisadded]). Here, the plaintiff failed to sustain her initial burden of demonstrating theabsence of a triable issue of fact as to whether Villar intended to deceive the court or anyparty (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). To the limitedextent that decisions of this Court have recognized an alternative predicate for liabilityunder Judiciary Law § 487 based upon an attorney's "chronic, extreme pattern oflegal delinquency" (Rock CitySound, Inc. v Bashian & Farber, LLP, 74 AD3d 1168, 1172 [2010] [internalquotation marks omitted]; see Boglia v Greenberg, [*2]63 AD3d 973, 975 [2009]; Pui Sang Lai v Shuk Yim Lau,50 AD3d 758, 759 [2008]; Izko Sportswear Co., Inc. v Flaum, 25 AD3d 534, 537[2006]; Knecht v Tusa, 15AD3d 626, 627 [2005]), they should not be followed, as the only liability standardrecognized in Judiciary Law § 487 is that of an intent to deceive (seeAmalfitano v Rosenberg, 533 F3d 117, 123 [2008]).
The Supreme Court's determination denying that branch of the plaintiff's motionwhich was to preclude the use of expert testimony at trial was an evidentiary ruling. Sucha ruling, "even when made in advance of trial on motion papers, constitutes, at best, anadvisory opinion," which is not appealable, either as of right or by permission (Citlak v Nassau County Med.Ctr., 37 AD3d 640, 640 [2007] [internal quotation marks omitted]; see Swezey v Montague Rehab &Pain Mgt., P.C., 84 AD3d 779, 779 [2011]; Rosenfeld v Baker, 78 AD3d 810, 810-811 [2010]; Cortez v Northeast RealtyHoldings, LLC, 78 AD3d 754, 757 [2010]; Boeke v Our Lady of Pompei School, 73 AD3d 825, 827[2010]; Barnes v Paulin, 52AD3d 754, 755 [2008]; Danne v Otis El. Corp., 276 AD2d 581, 582[2000]). Thus, the plaintiff's appeal from so much of the order as denied that branch ofher motion must be dismissed. Dillon, J.P., Leventhal, Austin and Miller, JJ., concur.