Amalfitano v. Rosenberg
| Decision Date | 12 February 2009 |
| Docket Number | No. 3.,3. |
| Citation | 12 N.Y.3d 8,903 N.E.2d 265 |
| Parties | Vivia AMALFITANO et al., Respondents, v. Armand ROSENBERG, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
The questions arise out of defendant Armand Rosenberg's appeal from a judgment of the United States District Court for the Southern District of New York, finding that Rosenberg violated section 487 and awarding plaintiffs Vivia and Gerard Amalfitano three times their costs to defeat a lawsuit brought by Rosenberg on behalf of Peter Costalas (Amalfitano v. Rosenberg, 428 F.Supp.2d 196 [S.D.N.Y.2006]). The lawsuit accused the Amalfitanos of fraudulently purchasing what remained of the Costalas family business, a partnership known as 27 Whitehall Street Group. On appeal, the Second Circuit concluded that it could affirm the District Court's judgment "in its entirety" only if, in addition to Rosenberg's actual deceit of the Appellate Division, his "attempted deceit" of the trial court—"the false allegations in the complaint in the Costalas litigation" representing that Peter Costalas was a partner in 27 Whitehall Street Group—would "support[] a cause of action under section 487 and was the proximate cause of the Amalfitanos' damages in defending the litigation from its inception" (Amalfitano v. Rosenberg, 533 F.3d 117, 125 [2d Cir.2008]).*
"Can a successful lawsuit for treble damages brought under N.Y. Jud. Law § 487 be based on an attempted but unsuccessful deceit?" (533 F.3d at 126.)
Rosenberg equates forfeiture under Judiciary Law § 487 with a tort claim for fraud. And under New York common law, "[t]o maintain an action based on fraudulent representations ... in tort for damages, it is sufficient to show that the defendant knowingly uttered a falsehood intending to deprive the plaintiff of a benefit and that the plaintiff was thereby deceived and damaged" (Channel Master Corp. v. Aluminium Ltd. Sales, 4 N.Y.2d 403, 406-407, 176 N.Y.S.2d 259, 151 N.E.2d 833 [1958] [emphasis added]). Thus, Rosenberg argues, section 487 does not permit recovery for an attempted but unsuccessful deceit practiced on a court. And here, the trial judge was concededly never fooled by misrepresentations regarding Peter Costalas's partnership status.
As the District Court correctly observed, however, Judiciary Law § 487 does not derive from common law fraud. Instead, as the Amalfitanos point out, section 487 descends from the first Statute of Westminster, which was adopted by the Parliament summoned by King Edward I of England in 1275. The relevant provision of that statute specified that
"if any Serjeant, Pleader, or other, do any manner of Deceit or Collusion in the King's Court, or consent [unto it,] in deceit of the Court [or] to beguile the Court, or the Party, and thereof be attainted, he shall be imprisoned for a Year and a Day, and from thenceforth shall not be heard to plead in [that] Court for any Man; and if he be no Pleader, he shall be imprisoned in like manner by the Space of a Year and a Day at least; and if the Trespass require greater Punishment, it shall be at the King's Pleasure" (3 Edw, ch. 29; see generally Thomas Pitt Taswell-Langmead, English Constitutional History, at 153-154 [Theodore F.T. Plucknett ed., Sweet & Maxwell, 10th ed. 1946]).
Five centuries later, in 1787, the Legislature adopted a law with strikingly similar language, and added an award of treble damages, as follows:
"And be it further enacted ... [t]hat if any counsellor, attorney, solicitor, pleader, advocate, proctor, or other, do any manner of deceit or collusion, in any court of justice, or consent unto it in deceit of the court, or to beguile the court or the party, and thereof be convicted, he shall be punished by fine and imprisonment and shall moreover pay to the party grieved, treble damages, and costs of suit" (L. 1787, ch. 35, § 5).
In 1830, the Legislature carried forward virtually identical language in the Revised Statutes of New York, prescribing that
.
Section 70 of the Code of Civil Procedure, cross-referenced in section 148, similarly stated that The derivation note accompanying section 70 includes the following comment: "As to the meaning of the word, `deceit', as used in this section, see Looff v. Lawton, 14 Hun, 588" (Code of Civil Procedure of the State of New York with Notes by Montgomery H. Throop [Weed, Parsons and Company 1881]).
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