Curtis v. Scherer

261 A.D.2d 158, 689 N.Y.S.2d 99, 1999 N.Y. App. Div. LEXIS 4640

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 6, 1999
• Status: Published

Opinion

—Orders, Supreme Court, New York County (Harold Tompkins, J.), entered March 30, 1998 and August 26, 1998, which, in an action for common-law fraud and treble damages under Judiciary Law § 487, granted defendants’ motions to dismiss the complaint, and sanctioned plaintiff in the amount of $5,000, unanimously affirmed, with costs.

Plaintiff’s remedy, if any, for the alleged fraud by defendant law firms and attorneys in obtaining an adjournment of the trial of plaintiff’s prior action against defendants’ clients “lies exclusively in that lawsuit itself * * * not a second plenary action” (Yalkowsky v Century Apts. Assocs., 215 AD2d 214, 215). The principle that a separate action based on a claim of fraud allegedly perpetrated in litigation will lie “where the peijury is merely a means to the accomplishment of a larger fraudulent scheme” (Newin Corp. v Hartford Acc. & Indem. Co., 37 NY2d 211, 217) has no application in this case (cf., Guardian Life Ins. Co. v Handel, 190 AD2d 57). In view of the foregoing, it is unnecessary to consider other points concerning the sufficiency of the complaint. The award of sanctions against plaintiff was eminently justified, and no formal hearing thereon was required, since adequate notice of the application therefor was given in defendants’ moving papers, plaintiff had ample opportunity to address the issue in his opposition papers and at oral argument, and it was clear from the papers before the motion court that plaintiff commenced this action solely for purposes of harassment (see, Matter of Minister of Refm. Prot. Dutch Church v 198 Broadway, 76 NY2d 411, 413, n). Concur— Williams, J. P., Rubin, Mazzarelli, Andrias and Buckley, JJ.