SPECIALIZED INDUSTRIAL SERVICES CORP v. Douglas A. Durnin, et al., third-party defendants-respondents, et al., third-party defendant. (2012)

In an action, inter alia, to recover damages for violation of Judiciary Law § 487, the defendant third-party plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Farneti, J.), entered February 23, 2011, as granted that branch of the motion of the third-party defendants Robert J. LaReddola and LaReddola, Lester & Associates, LLP, which was pursuant to CPLR 3211(a)(7) to dismiss the third-party complaint insofar as asserted against them, and granted the separate motion of the third-party defendant Douglas A. Durnin pursuant to CPLR 3211(a)(7) to dismiss the third-party complaint insofar as asserted against him.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable to the third-party defendants-respondents appearing separately and filing separate briefs.

The Supreme Court properly determined that an attorney may not seek contribution under CPLR 1401 for any part of an award made pursuant to Judiciary Law § 487. “The policy of the law, as declared by the Legislature in CPLR 1401, is to allow contribution ‘unless it is clear that the legislative policy which led to the passage of the statute would be frustrated by the granting of contribution in favor of the person who violated the statute’ “ (Zona v. Oatka Rest. & Lounge, 68 N.Y.2d 824, 825–826, 507 N.Y.S.2d 615, 499 N.E.2d 869, quoting 12th Ann Rep of N.Y. Jud Conf on CPLR, 1974 McKinney's Session Laws of NY, at 1808). Treble damages awarded under Judiciary Law § 487 “ ‘are not designed to compensate a plaintiff for injury to property or pecuniary interests' “ (McCabe v. St. Paul Fire & Mar. Ins. Co. ., 79 A.D.3d 1612, 1614, 914 N.Y.S.2d 814, quoting Jorgensen v. Silverman, 224 A.D.2d 665, 666, 638 N.Y.S.2d 482). They are designed to punish attorneys who violate the statute and to deter them from betraying their “special obligation to protect the integrity of the courts and foster their truth-seeking function” (Amalfitano v. Rosenberg, 12 N.Y.3d 8, 14, 874 N.Y.S.2d 868, 903 N.E.2d 265). Allowing an attorney who violates Judiciary Law § 487 to seek contribution for any part of the award would run counter to this intent (but see Trepel v. Dippold, 2006 WL 3054336, 2006 U.S. Dist LEXIS 78050 [SD N.Y.2006] ).

The parties' remaining contentions have been rendered academic in light of our determination.

DECISION & ORDER ON MOTION

Motion by the defendant third-party plaintiff-appellant to strike the plaintiff's brief on an appeal from an order of the Supreme Court, Suffolk County (Farneti, J.), entered February 23, 2011, on the ground that the plaintiff is not a proper party to the appeal. By decision and order on motion of this Court dated April 27, 2012, the motion was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission of the appeal.

Upon the papers filed in support of the motion, the papers filed in opposition thereto, and upon the argument of the appeal, it is

ORDERED that the motion is granted, and the plaintiff's brief is stricken and has not been considered in the determination of the appeal.