DiPrima v. DiPrima
| Decision Date | 24 June 1985 |
| Citation | 111 A.D.2d 901,490 N.Y.S.2d 607 |
| Parties | Marilyn DIPRIMA, etc., Respondent, v. Kenneth DIPRIMA, et al., Defendants; Benjamin B. Hersh, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Tully & Burns, White Plains (Andrew W. Tully, Jr., White Plains, of counsel), for appellant.
Richard S. Scanlan, White Plains, for respondent.
Before BROWN, J.P., and O'CONNOR, LAWRENCE and EIBER, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages, inter alia, for a violation of Judiciary Law § 487(1) defendant Hersh appeals, as limited by his notice of appeal and brief, from so much of a judgment of the Supreme Court, Westchester County, dated October 3, 1983, as (1) granted plaintiff Marilyn DiPrima treble damages against him; (2) enjoined and restrained Hersh from making any transfer or other disposition of a certain mortgage and bond and from further enforcing his rights as assignee of the mortgage and the bond without prejudice to his right, if so advised, to apply to the court's matrimonial part to modify plaintiff's rights under a judgment of divorce to exclusive possession of the marital premises; (3) denied Hersh's motion to dismiss the action for failure to establish a prima facie case; and (4) denied that portion of Hersh's motion which was to dismiss the action at the close of the evidence.
Judgment modified, on the law and the facts, by deleting the provision awarding treble damages to the plaintiff against defendant Hersh. As so modified, judgment affirmed insofar as appealed from, with costs to the plaintiff.
While there is evidence in the record to support Trial Term's conclusion that defendant Hersh violated Judiciary Law § 487(1) in that he engaged in "deceit or collusion, or consent[ed] to any deceit or collusion, with intent to deceive the court or any party", plaintiff failed to prove she was injured as a result of the deceit or collusion. The damages awarded, which were trebled pursuant to section 487 were based upon the expenses plaintiff incurred for her family's medical bills, fuel, utility costs, maintenance, unpaid real estate taxes on the marital residence and support arrears. These damages were patently the result of plaintiff's husband's failure to fulfill his obligations under the divorce decree and cannot be charged to defendant Hersh, the attorney for plaintiff's husband, based on deceitful conduct which ultimately did not affect the husband's duty to make such payments or his decision to...
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