POLANCO SALAS v. 711 715 231ST STREET LLC (2026)

Order, Supreme Court, Bronx County (Andrew J. Cohen, J.), entered September 11, 2025, which denied the motions of third-party defendants Roytblat Law Group, PLLC and Alexander Roytblat (collectively, Roytblat) and Jennifer Lebron to dismiss the third-party complaint as against them, reversed, on the law, without costs, and the motions granted. The Clerk is directed to enter judgment accordingly.

Defendants/third-party plaintiffs failed to demonstrate “a showing of egregious conduct or a chronic and extreme pattern of behavior on the part of” Roytblat, or demonstrate that deliberate misrepresentations necessary to sustain a Judiciary Law § 487 claim were made to defendants and the court (Facebook, Inc. v. DLA Piper LLP [US], 134 A.D.3d 610, 615, 23 N.Y.S.3d 173 [1st Dept 2015] [internal quotation marks omitted], lv denied 28 N.Y.3d 903, 40 N.Y.S.3d 351, 63 N.E.3d 71 [2016]). The third-party complaint failed to plead in a nonconclusory manner that Roytblat continued to advance the underlying trip-and-fall claim after receiving information indicating that the claim was fraudulent (cf. Schnur v. Balestriere, 208 A.D.3d 1117, 1118, 175 N.Y.S.3d 50 [1st Dept 2022]).

Defendants’ common-law fraud claim should have been dismissed without leave to replead as to Roytblat and Lebron. The third-party complaint failed to sufficiently plead justifiable reliance and recoverable damages (see Santacruz v. 58 Gerry St LLC, 246 A.D.3d 600, 601, 253 N.Y.S.3d 36 [1st Dept 2026]; CKR Law LLP v. DiPaolo, 209 A.D.3d 427, 428, 176 N.Y.S.3d 236 [1st Dept 2022]). Defendants did not rely on any alleged misrepresentations but instead denied them in their answer to the underlying complaint (see Breton v. Dishi, 234 A.D.3d 432, 432, 225 N.Y.S.3d 209 [1st Dept 2025]).

Although Roytblat and Lebron requested dismissal of the entire third-party complaint without leave to replead as against them, we find that only the fraud claim should be dismissed without leave to replead (see Stuart Lipsky, P.C. v. Price, 215 A.D.2d 102, 104, 625 N.Y.S.2d 563 [1st Dept 1995]).

In light of the above, defendants’ remaining third-party causes of action for civil conspiracy and intentional property damage should also be dismissed as to Roytblat and Lebron (see Errant Gene Therapeutics, LLC v. Sloan-Kettering Inst. for Cancer Research, 174 A.D.3d 473, 474, 106 N.Y.S.3d 302 [1st Dept 2019]; see e.g. Bleru Realty Corp. v. 158 E. 23rd St. Rest. Corp., 200 A.D.2d 547, 548, 607 N.Y.S.2d 19 [1st Dept 1994]).

I respectfully dissent in part because I believe that Supreme Court correctly held that defendants’ third-party complaint states a claim under Judiciary Law § 487(1). For the reasons stated by the majority, I agree that the other causes of action in the third-party complaint should be dismissed.

Judiciary Law § 487 provides that an attorney “ ‘who ․ [i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party’ is guilty of a misdemeanor and may be liable to the injured party for treble damages in a civil action” (Bill Birds, Inc. v. Stein Law Firm, P.C., 35 N.Y.3d 173, 177, 126 N.Y.S.3d 50, 149 N.E.3d 888 [2020]). To obtain relief under § 487, a claimant must make “a showing of egregious conduct or a chronic and extreme pattern of behavior on the part of the defendant attorneys that caused damages” (Facebook, Inc. v. DLA Piper LLP [US], 134 A.D.3d 610, 615, 23 N.Y.S.3d 173 [1st Dept 2015], lv denied 28 N.Y.3d 903, 40 N.Y.S.3d 351, 63 N.E.3d 71 [2016] [internal quotation marks omitted]). A pleading must state “[a]llegations regarding an act of deceit or intent to deceive ․ with particularity; the claim will be dismissed if the allegations as to scienter are conclusory and factually insufficient” (id. [internal citation omitted]). “Statements made in pleadings upon information and belief” cannot themselves sustain a claim under § 487 (id). Section 487 “does not encompass the filing of a pleading or brief containing nonmeritorious legal arguments, as such statements cannot support a claim under the statute” (Bill Birds, 35 N.Y.3d at 180, 126 N.Y.S.3d 50, 149 N.E.3d 888).

The third-party complaint adequately meets the heightened pleading standard for a claim under Judiciary Law § 487. It alleges that video evidence appears to show Wilson Pena, a third-party defendant who concededly performs investigative services for Roytblat, deliberately creating the sidewalk defect at issue in the underlying personal injury action. Plaintiff also appears in the video to feign a trip-and-fall accident caused by the defect. The video evidence, links to which were included in the third party complaint, supports this allegation. The complaint further alleges that defendants’ attorney informed Roytblat in February 2024 that the underlying personal injury claim that Roytblat was pursuing was fraudulent, and that video evidence existed showing fabrication of the sidewalk defect and staging of the accident. Despite having knowledge of the fraud, Roytblat continued to pursue the litigation over the following months and sought to discontinue the action only when informed that a news report concerning the fraud was about to air. Defendants set forth detailed allegations regarding the timing and sequence of communications and filings, identifying with specificity the litigation documents Roytblat purportedly continued to submit after the alleged notice date. The majority fails to demonstrate why such allegations are conclusory and insufficient to establish a § 487 claim.

Although documentary proof of the notification that Roytblat allegedly received from defendants is not in the record, a § 487 claim does not require documentary proof of scienter in order to survive dismissal; rather, where the pleading sufficiently alleges intent to deceive the court or a party, dismissal is proper where documentary evidence conclusively refutes allegations of intent (see Schnur v. Balestriere, 208 A.D.3d 1117, 1118, 175 N.Y.S.3d 50 [1st Dept 2022]). Here, there is no documentary evidence negating the allegation that defendants sent and Roytblat received the February 2024 communication. Nor does the record contradict the claim that Roytblat continued filing documents after receiving that notice. Thus, unlike in Facebook, where documents disproved the alleged timing of the attorneys’ knowledge, there is no conclusive refutation in this record (134 A.D.3d at 615, 23 N.Y.S.3d 173).

Taken as true, these allegations constitute egregious and intentional conduct on the part of Roytblat (see Schnur, 208 A.D.3d at 1118, 175 N.Y.S.3d 50). Accordingly, I would hold that defendants/third-party plaintiffs have adequately pleaded a § 487 claim, and dismissal at this juncture is not warranted.

All concur except Moulton, J.P. and O'Neill Levy, J. who dissent in part in a separate Memorandum by O'Neill Levy, J. as follows: