Alphaus Williams, appellant, v. Carina Biggs, etc., et al., defendants, McAloon & Friedman, P.C., et al., respondents. (2026)

Argued—January 5, 2026

DECISION & ORDER

O/

In an action, inter alia, to recover damages for fraud and violation of Judiciary Law § 487, the plaintiff appeals from an order of the Supreme Court, Kings County (Francois A. Rivera, J.), dated March 31, 2021.  The order granted that branch of the motion of the defendants McAloon & Friedman, P.C., Laura R. Shapiro, Lisa B. Goldstein, and Michael S. Kivowitz which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them and denied the plaintiff's cross-motion pursuant to 22 NYCRR 130–1.1 to impose sanctions upon the defendants McAloon & Friedman, P.C., Laura R. Shapiro, Lisa B. Goldstein, and Michael S. Kivowitz and those defendants' counsel.

ORDERED that the order is affirmed, with costs.

This action stems from an underlying action commenced by the plaintiff against New York City Health and Hospitals Corporation (hereinafter NYCHHC), several physicians that NYCHHC employed, and Kings County Hospital Center (hereinafter KCHC, and collectively with NYCHHC and the several physicians that NYCHHC employed, the medical malpractice defendants) to recover damages for medical malpractice and lack of informed consent.  The defendants in the underlying medical malpractice action were represented by the defendants McAloon & Friedman, P.C. (hereinafter M & F), Laura R. Shapiro, Lisa B. Goldstein, and Michael S. Kivowitz (hereinafter collectively the M & F defendants).  After the plaintiff's attorney, the defendant Steven M. Goldfarb, allegedly accepted NYCHHC's settlement offer, the underlying medical malpractice action was discontinued against the physician defendants but remained pending against NYCHHC and KCHC. The plaintiff, however, refused to sign a general release.

On or about October 1, 2020, the M & F defendants moved, among other things, pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them.  The plaintiff opposed the motion and cross-moved pursuant to 22 NYCRR 130–1.1. to impose sanctions upon the M & F defendants and their counsel.  In an order dated March 31, 2021, the Supreme Court granted that branch of the M & F defendants' motion and denied the plaintiff's cross-motion.  The plaintiff appeals.

Contrary to the plaintiff's contention, the M & F defendants did not default in answering or otherwise responding to the complaint.  On March 20, 2020, then Governor Andrew Cuomo issued Executive Order (A.Cuomo) No. 202.8 (9 NYCRR 8.202.8), which temporarily tolled “any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by ․ the civil practice law and rules” (see Brash v. Richards, 195 AD3d 582, 583 [internal quotation marks omitted] ).  “Governor Cuomo later issued a series of nine subsequent executive orders that extended the suspension or tolling period, eventually through November 3, 2020” (id.;  see 9 NYCRR 8.202.67).  Accordingly, the M & F defendants' motion, which had been made while the toll was still in effect, was timely (see McLaughlin v. Snowlift, Inc., 214 AD3d 720, 721;  Brash v. Richards, 195 AD3d at 582).  Contrary to the plaintiff's contention, Administrative Order of the Chief Administrative Judge of the Courts AO/115/20, issued on May 28, 2020 (see AO–115–20, available at https://www.nycourts.gov/whatsnew/pdf/AO–115–20.pdf), did not lift the toll.

We agree with the Supreme Court that the fifth cause of action, entitled “FRAUD AND DECEIT:  FORGERY,” insofar as asserted against the M & F defendants, the sixth cause of action, to recover damages for fraud, insofar as asserted against the M & F defendants, the eighth cause of action, to recover damages for aiding and abetting fraud, insofar as asserted against Shapiro, Goldstein, and Kivowitz, and the thirteenth cause of action, alleging conspiracy to commit fraud, insofar as asserted against Shapiro, Goldstein, and Kivowitz failed to state causes of action upon which relief could be granted insofar as asserted against those defendants.  “The elements of a cause of action for fraud require a material misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the plaintiff and damages” (Eurycleia Partners, LP v. Seward & Kissel, LLP, 12 NY3d 553, 559;  see Sneider v Great S. Bay Surgical Assoc & Vascular Lab, LLP, 235 AD3d 685, 687;  City of Long Beach v. Agostisi, 221 AD3d 776, 778).  “A claim rooted in fraud must be pleaded with the requisite particularity under CPLR 3016(b)” (Eurycleia Partners, LP v. Seward & Kissel, LLP, 12 NY3d at 559).  “Although there is certainly no requirement of ‘unassailable proof’ at the pleading stage, the complaint must ‘allege the basic facts to establish the elements of the cause of action’ ” (id., quoting Pludeman v Northern Leasing Sys., Inc., 10 NY3d 486, 492).

The sixth cause of action alleged that the M & F defendants, inter alia, asserted improper affirmative defenses and denials.  However, among other things, the complaint did not allege that the plaintiff “reasonably relied on any misrepresentations made by” the M & F defendants during the M & F defendants' representation of the medical malpractice defendants in the underlying medical malpractice action (New York Tile Wholesale Corp. v Thomas Fatato Realty Corp., 153 AD3d 1351, 1354;  see Dreamco Dev. Corp. v. Empire State Dev. Corp., 197 AD3d 847, 848).  Additionally, “the plaintiff cannot properly plead reasonable reliance on the representations of another party's counsel so as to support [the plaintiff's] claim of fraud” (Cascardo v. Stacchini, 100 AD3d 675, 676).  Accordingly, the Supreme Court properly directed dismissal of the sixth cause of action insofar as asserted against the M & F defendants.

The elements of a cause of action to recover damages for aiding and abetting fraud are (1) the existence of an underlying fraud, (2) knowledge of the fraud by the aider and abettor, and (3) substantial assistance by the aider and abettor in the achievement of the fraud (see JPMorgan Chase Bank, N.A. v Canova, 239 AD3d 837, 839;  Betz v. Blatt, 160 AD3d 696, 700).  “Substantial assistance requires an affirmative act on the defendant's part,” and “[m]ere inaction by an alleged aider or abettor constitutes substantial assistance only if the defendant owes a fiduciary duty directly to the plaintiff” (Betz v. Blatt, 160 AD3d at 700 [internal quotation marks omitted] ).

Moreover, “New York does not recognize civil conspiracy to commit a tort as an independent cause of action” (Mohammad v. Rehman, 236 AD3d 892, 893 [internal quotation marks omitted] ).  “However, a plaintiff may plead the existence of a conspiracy in order to connect the actions of the individual defendants with an actionable, underlying tort, and establish that those actions were part of a common scheme” (id. [internal quotation marks omitted] ).  “In order to properly plead a cause of action to recover damages for civil conspiracy, the plaintiff must allege a cognizable tort, coupled with an agreement between the conspirators regarding the tort, and an overt action in furtherance of the agreement” (id. at 893–894 [internal quotation marks omitted];  see Alexander & Alexander of N.Y. v Fritzen, 68 N.Y.2d 968, 969).

Contrary to the plaintiff's contention, the eighth cause of action failed to state a cause of action to recover damages for aiding and abetting fraud insofar as asserted against Shapiro, Goldstein, and Kivowitz.  The complaint failed to adequately allege the existence of an underlying fraud (see Weinstein v. CohnReznik, LLP, 144 AD3d 1140, 1141), and the alleged facts do not support a reasonable inference of the actual knowledge of Shapiro, Goldstein, and Kivowitz of the alleged wrongdoing (see Briarpatch Ltd., L.P. v Frankfurt Garbus Klein & Selz, P.C., 13 AD3d 296, 298).  Further, as Shapiro, Goldstein, and Kivowitz had no fiduciary or special relationship with the plaintiff and the plaintiff failed to sufficiently allege that those defendants had any communications with him, the plaintiff could not establish a cause of action to recover damages for aiding and abetting fraud insofar as asserted against those defendants (see Jebran v. LaSalle Bus. Credit, LLC, 33 AD3d 424, 424).

The thirteenth cause of action, alleging conspiracy to commit fraud, insofar as asserted against Shapiro, Goldstein, and Kivowitz failed to state a cause of action because it “failed to connect” the alleged actions of Shapiro, Goldstein, and Kivowitz “to a cognizable cause of action to recover damages for fraud” (Mohammad v. Rehman, 236 AD3d at 894;  see Clevenger v. Yuzek, 222 AD3d 931, 936).

The Supreme Court properly directed dismissal of the fifth cause of action, to recover damages for forgery, insofar as asserted against M & F. “Forgery is the ‘fraudulent making of a writing to the prejudice of another's rights ․ or the making malo animo of any written instrument for the purpose of fraud and deceit’ ” (Matter of Hersh, 198 AD3d 763, 765, quoting Piedra v. Vanover, 174 A.D.2d 191, 194).  “Forgery is simply one ‘species' under the broad genus of fraud” (id., quoting Piedra v. Vanover, 174 A.D.2d at 194).  Accordingly, to state a cause of action for fraud arising from forgery, a plaintiff must “allege the essential elements of a cause of action sounding in fraud” (Ferdico v. Zweig, 82 AD3d 1151, 1154).  Here, inter alia, the complaint did not allege that the plaintiff justifiably relied on the alleged forgery (see Matter of Hersh, 198 AD3d 766, 772;  Ferdico v. Zweig, 82 AD3d at 1154).  Rather, the complaint alleged that the plaintiff refused to execute the general release because the plaintiff believed that the medical records were forged.

The complaint also failed to state a cause of action to recover damages for violation of Judiciary Law § 487 insofar as asserted against the M & F defendants.  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 liable for treble damages (Judiciary Law § 487[1] ).  “Relief pursuant to Judiciary Law § 487 is not lightly given, and requires a showing of egregious conduct or a chronic and extreme pattern of behavior on the part of the defendant attorneys” (Kaufman v. Moritt Hock & Hamroff, LLP, 192 AD3d 1092, 1093 [citation and internal quotation marks omitted];  see Savitt v. Greenberg Traurig, LLP, 126 AD3d 506, 507;  Chowaiki & Co. Fine Art Ltd. v. Lacher, 115 AD3d 600, 601).  The first cause of action, to recover damages for violation of Judiciary Law § 487, insofar as asserted against the M & F defendants failed to allege sufficient facts to establish that the M & F defendants intended to deceive the Supreme Court (see Klein v. Rieff, 135 AD3d 910, 912).  The allegations that the M & F defendants asserted improper affirmative defenses and denials in their answers in the underlying medical malpractice action is insufficient, as the “[a]ssertion of unfounded allegations in a pleading, even if made for improper purposes, does not provide a basis for liability under” Judiciary Law § 487 (Gill v. Doughtery, 188 AD3d 1008, 1009 [internal quotation marks omitted];  see Ticketmaster Corp. v. Lidsky, 245 A.D.2d 142, 143).

Further, “[g]enerally, a party who has lost an action as a result of alleged fraud or false testimony cannot collaterally attack the judgment in a separate action against the party who adduced the false evidence, and the plaintiff's remedy lies exclusively in moving to vacate the judgment” (McMahan v. Belowich, 164 AD3d 1443, 1444 [internal quotation marks omitted];  see State Farm Mut. Auto. Ins. Co. v Anikeyeva, 197 AD3d 675, 677;  DeMartino v. Lomonaco, 155 AD3d 686, 688;  Little Rest Twelve, Inc. v. Zajic, 137 AD3d 540, 540).  This rule also applies where the underlying action in which the alleged misconduct occurred is “still pending” (Little Rest Twelve, Inc. v. Zajic, 137 AD3d at 540).  “Under an exception to that rule, a separate action may be commenced where the alleged perjury or fraud in the underlying action was ‘merely a means to the accomplishment of a larger fraudulent scheme’ ” (DeMartino v. Lomonaco, 155 AD3d at 688, quoting Newin Corp. v. Hartford Acc. & Indem.  Co., 37 N.Y.2d 211, 217), which was “ ‘greater in scope than the issues determined in the prior proceeding’ ” (id., quoting Retina Assoc. of Long Is. v. Rosberger, 299 A.D.2d 533, 533).  Contrary to the plaintiff's contention, the record demonstrated that the underlying medical malpractice action is pending against NYCHHC and KCHC, and there is no indication that the exception is applicable here (see McMahan v. Belowich, 164 AD3d at 1444).

The ninth cause of action failed to state a cause of action sounding in prima facie tort insofar as asserted against M & F because it failed to allege that the plaintiff suffered “specific and measurable loss” and instead alleged that the plaintiff suffered psychological injuries and unspecified compensatory damages (Freihofer v. Hearst Corp., 65 N.Y.2d 135, 143;  see Phillips v. New York Daily News, 111 AD3d 420, 421;  Del Vecchio v. Nelson, 300 A.D.2d 277, 278).  Additionally, the ninth cause of action did not allege facts upon which it reasonably could be inferred that M & F acted solely with disinterested malevolence (see Banshick v. Johnson, 222 AD3d 608, 610).

The tenth cause of action failed to state a cause of action to recover damages for intentional infliction of emotional distress insofar as asserted against M & F, because, even accepting the allegations as true, as a matter of law, the alleged conduct did not “arise to such an extreme or outrageous level as to meet the threshold requirements for intentional infliction of emotional distress” (Giambrone v Arnone, Lowth, Wilson, Leibowitz, Adriano & Greco, 197 AD3d 459, 463).

The Supreme Court properly directed dismissal of the eighteenth cause of action, to recover damages for aiding and abetting breach of fiduciary duty, insofar as asserted against the M & F defendants.  “A cause of action [alleging the] aiding and abetting [of a] breach of fiduciary duty merely requires a prima facie showing of a fiduciary duty owed to plaintiff ․ a breach of that duty, and defendant's substantial assistance ․ in effecting the breach, together with resulting damages” (Monaghan v. Ford Motor Co., 71 AD3d 848, 850 [internal quotation marks omitted];  see Kaufman v. Cohen, 307 A.D.2d 113, 125).  “Although a plaintiff is not required to allege that the aider and abettor had an intent to harm, there must be an allegation that such defendant had actual knowledge of the breach of duty” (Kaufman v. Cohen, 307 A.D.2d at 125).  “Constructive knowledge of the breach of fiduciary duty by another is legally insufficient to impose aiding and abetting liability” (id.).

Here, assuming that the complaint alleged that the plaintiff's attorneys breached their fiduciary duty to the plaintiff during their representation of the plaintiff in the underlying medical malpractice action by failing to conduct proper discovery, it failed to sufficiently allege that the M & F defendants had actual knowledge of the breach of duty (see id.).  Further, the M & F defendants' alleged actions to aid the breach of duty by sending a copy of the medical records to the plaintiff's attorneys “hardly constitutes assisting in a breach of fiduciary duty” (id. at 126).  Moreover, the allegations that the M & F defendants remained silent when they should have acted is insufficient to state a cause of action to recover damages for aiding and abetting breach of fiduciary duty against the M & F defendants because they did not owe a fiduciary duty to the plaintiff (see Land v. Forgione, 177 AD3d 862, 864).

Finally, because the record demonstrated that the underlying medical malpractice action remains pending, the Supreme Court providently exercised its discretion in declining to impose sanctions against M & F for representing that the underlying medical malpractice action was pending (see 22 NYCRR 130–1.1;  Bansi v. Nugacon Bldg. Servs., LLC, 218 AD3d 723, 724).

The plaintiff's remaining contentions either need not be reached in light of our determination, are without merit, or are improperly raised for the first time on appeal.

CONNOLLY, J.P., FORD, VOUTSINAS and LOVE, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court