There are limits on when a Judiciary Law 487 claim applies, and Nimkoff v Waldbaum
2026 NY Slip Op 04203 July 1, 2026 Appellate Division, Second Department holds that one of them is that the attorney who is accused of deceit must have been acting as an attorney.
“In June 2019, the plaintiff commenced this action against his former wife, the defendant Nancy Waldbaum, and their daughter, the defendant Ilana Joy Waldbaum, sued herein as Ilana Joy Nimkoff (hereinafter Ilana Waldbaum). The plaintiff commenced this action by filing a summons with notice. The plaintiff served the summons with notice upon the defendants in January 2020 and served the complaint in March 2020. He asserted causes of action, inter alia, to recover damages for malicious prosecution and defamation, alleging that the defendants filed a false police report against him. The defendants each interposed an answer and each asserted a counterclaim to recover damages for a violation of Judiciary Law § 487, alleging that the plaintiff, an attorney, engaged in a deceitful act by using therapy sessions with the defendants to gain information to use in this action without informing the defendants that he had commenced this action. Ilana Waldbaum also asserted a counterclaim for an award of counsel fees as child support.
On August 25, 2020, the Supreme Court issued a discovery order (hereinafter the August 2020 discovery order) directing the plaintiff to act diligently to convert this action to an electronically filed action no later than 30 days from the date of the order. The court further directed that the plaintiff would have 30 days from the date this action was converted to move for a protective order with respect to the outstanding discovery demands and, should the plaintiff fail to timely move for a protective order, the plaintiff’s full and complete responses, in proper form, must be served upon each defendant within 45 days of the conversion.”
“The Supreme Court properly granted that branch of the plaintiff’s motion which was pursuant to CPLR 3211(a) to dismiss the defendants’ counterclaims to recover damages for a violation of Judiciary Law § 487. While Judiciary Law § 487 may apply to an attorney acting pro se (see AQ Asset Mgt., LLC v Levine, 119 AD3d 457), the statute applies only to actions taken by that party acting in their capacity as an attorney (see Altman v DiPreta, 204 AD3d 965, 969; Pinkesz Mut. Holdings, LLC v Pinkesz, 198 AD3d 693, 698). Here, the plaintiff was not acting as an attorney in connection with the therapy sessions at which the deceitful conduct allegedly occurred, and that conduct is therefore not subject to Judiciary Law § 487.”