Suit Under Attorney Deceit Statute Is Reinstated Based On Claims Of Conflicts & Unnecessary Litigation

On April 13, 2022, the Appellate Division, Second Department overruled a Supreme Court Justice who dismissed  a claim of wrongdoing under Judiciary Law Section 487, against an attorney by clients he represented in a litigation concerning the sale of plaintiff's interests in three skilled nursing care facilities. It was claimed that the attorney "interfered with the settlement" of the litigation "causing years of additional litigation, in order to generate legal fees in the amount of $1.7 million". It was also claimed that the attorney made false statements to his clients and "filed a motion without plaintiff's knowledge or consent. The appellate court held that these allegations were sufficient to proceed to trial and also found: "The Supreme Court's determination that Howard Fensterman's conduct during the settlement of the... litigation "was simply a product of his conflict of interest in representing both buyers and sellers in the ...transactions" is a premature factual finding inappropriate at this stage of the litigation." Joseph v Fensterman, 2022 WL 1097226

An attorney is liable under Judiciary Law Section 487 if he or she "is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party”…or, “willfully delays his or her client's suit with a view to his or her own gain." This statute is punitive in nature and allows for an enhanced recovery to the plaintiff in legal malpractice actions. If you can plead and prove actual deceit that caused your economic losses, you are entitled to treble damages. 

Ronald C. Burke, Esq

Trial Attorney with 30+ Years of Experience Attorney Ronald C. Burke, Esq. has more than 30 years of experience and has focused his career on representing clients in cases involving personal injury, medical malpractice and legal malpractice. He is a seasoned trial lawyer and has won many seven-figure settlements and verdicts for his clients over the years, including many case victories listed among the largest in the history of the New York State. He has been featured in the news and is a regular lecturer for the New York County Lawyers Association, as well as having lectured before the New York State Bar Association. Ron is also an attorney with Kelner & Kelner, a New York personal injury law firm. Awards and Accolades Mr. Burke's awards and accolades are many. Among them, he has been included in New York Super Lawyers® each year since 2010, and he has received the highest-possible AV® Rating from Martindale-Hubbell®. Verdict Search, a part of the New York Law Journal, frequently recognizes his notable successes after winning some of the highest settlements and verdicts in past years. He was also featured in their list of the "Top New York Verdicts " and "Top New York Settlements." He is a member of the New York State Bar Association and is licensed to practice law in the U.S. District Court for the Southern and Eastern Districts of New York, as well as before the United States Supreme Court. When Attorney Burke is not handling legal malpractice cases, he is highly involved in the local community. He was a member of the Village of Rockville Centre Volunteer Fire Department, has served on the local school board and as Chairman of the local Zoning Board. Learn more about Attorney Burke and how he can skillfully handle your malpractice case by contacting the Law Offices of Ronald C. Burke, Esq. right away to schedule your complimentary case evaluation. Our firm is here to help! Contact a New York Legal Malpractice Attorney Our firm provides each client's case with thorough preparation and aggressive representation, ensuring that you win the best possible results for your case whether it is settled or goes to trial. As a seasoned trial lawyer, Mr. Burke can provide the strong and relentless representation you need to establish negligence in a legal malpractice case and to recover any damages you may have suffered. Our firm can recover compensation for pre-trial and trial malpractice, violations of fee arrangements, loss of income, pain and suffering, and much more. Contact us today!


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