In February 2009
things changed in the New York Courts in the case of, Amalfitano v. Rosenberg, 903 N.E.2d (N.Y. 2009). Rosenberg, a lawyer, filed a complaint, which knowingly included false allegations against the Amalfitanos. In addition to his false allegation, Rosenberg made false representations in a motion for summary judgment and submitted an affidavit containing false statements to the state trial court. See, Amalfitano v. Rosenberg, 533 F.3d 117, 124 (2d Cir. 2008). Further, after the trial court granted a motion to dismiss the fraud claim in favor of the Amalfitano’s, (Id. at 121), Rosenberg again, submitted a false affidavit and several erroneous documents to the appellate court, (Id. at 121, 124), however, the court, not fooled by Rosenberg’s deception, reversed the trial court’s order. (Id. at 121)
Rosenberg engaged in various other forms of misconduct, including failing to correct his client’s false deposition testimony and apparently attempting to mislead the Amalfitanos into believing that he possessed a highly damaging audio recording. (Id. at 122).
Amalfitanos brought a section 487 claim against Rosenberg in federal court. (Id.) The plaintiffs’ claim essentially consisted of two parts: a claim that Rosenberg attempted, but failed to complete, a fraud upon the trial court and a claim that Rosenberg successfully committed a fraud upon the appellate court. (Id.) The district court found for the Amalfitanos and then consistent with section 487, trebled the damages. See Amalfitano v. Rosenberg, 533 F.3d (2d Cir. 2008) (Id.). Rosenberg appealed. The court questioned whether Rosenberg’s attempted, but unsuccessful deceit of the trial court was actionable under the statute, thus the court certified two questions to the New York Court of Appeals: a) Can a successful lawsuit for treble damages brought under N.Y. JUD. Law § 487 be based on an attempted but unsuccessful deceit, and b) In the course of such a lawsuit, may the costs of defending litigation instituted by a complaint containing a material misrepresentation of fact be treated as the proximate result of the misrepresentation if the court upon which the deceit was attempted at no time acted on the belief that the misrepresentation was true? (Id. at 126)
Regarding the first certified question, the New York Court of Appeals concluded that reliance on an attorney’s misrepresentation is not an essential element of the statutory claim. See Amalfitano, 903 N.E.2d. (N.Y. 2009) (Id. at 269). The court noted in 1787 the New York legislature enacted a statute “with strikingly similar language”. (Id. at 267-268). The court concluded that section 487 is not simply a codification of the common law tort of fraud, but “a unique statue of ancient origin in the criminal law of England.” (Id. at 268). With full review, the court noted the operative language of the statute “guilty of any deceit” … “focuses on the attorney’s intent to deceive, not the deceit’s success.” (Id. at 268).