- Court
- New York Supreme Court, Appellate Division, Second Department
- Case
- Jacobson v. Fein, Such & Crane, LLP
- Date
- June 3, 2026
- Slip Op. No.
- 2026 NY Slip Op 03430
Background
Plaintiff Yosef Yitzchak Jacobson commenced this action against the attorney defendants—Fein, Such & Crane, LLP, and individual attorneys Mark K. Broyles, Craig K. Beideman, and Miranda L. Jakubec—alleging violations of Judiciary Law Section 487 and related claims. The attorney defendants had represented Truist Bank (formerly Branch Banking and Trust Company) in a foreclosure action against the plaintiff. Jacobson alleged they committed a series of fraudulent and deceitful acts in the foreclosure proceeding that resulted in entry of a judgment of foreclosure and sale.
The attorney defendants moved to dismiss under CPLR 3211(a)(1), (5), and (7), asserting res judicata, collateral estoppel, and failure to state a cause of action. Supreme Court, Kings County (Peter P. Sweeney, J.), denied the motion to dismiss the first through ninth and eleventh causes of action. The attorney defendants appealed.
Holding
The Appellate Division, Second Department, affirmed the denial of the motion to dismiss, with costs. The Court held that the attorney defendants were not entitled to dismissal on res judicata grounds because, as counsel to the bank in the foreclosure action, they were neither parties to that action nor in privity with a party. The Court applied the principle from Izmirligil v. Steven J. Baum, P.C., 180 AD3d 767, 771, and Urias v. Daniel P. Buttafuoco & Associates, PLLC, 41 NY3d 560, 563, to find that attorneys representing a party in prior litigation are not in privity with that party for res judicata purposes.
The Court similarly rejected the collateral estoppel defense, finding that the attorney defendants failed to demonstrate that the identical issues were necessarily decided in the prior action and decisive of the present action. On the merits, the complaint adequately stated causes of action under Judiciary Law Section 487, which provides a remedy for intentional deceit or collusion by attorneys.
Takeaways
This decision is significant for attorneys facing Judiciary Law Section 487 claims arising from their conduct in prior litigation. The ruling confirms that attorneys cannot invoke res judicata or collateral estoppel based on the outcome of the underlying action in which they served as counsel. Their status as counsel does not make them parties or privies, meaning they cannot benefit from favorable determinations made in that proceeding to shield themselves from separate claims of misconduct. This opens the door for aggrieved parties to pursue claims against opposing counsel for alleged fraud and deceit even after the underlying litigation has concluded.
Why It Matters
Judiciary Law Section 487 claims are among the most serious allegations that can be levied against attorneys in New York, carrying treble damages. This decision makes clear that the successful completion of the underlying litigation does not immunize the attorneys from such claims. Practitioners should be aware that res judicata and collateral estoppel provide limited protection when the Section 487 claim targets conduct during the prior proceeding rather than the substantive outcome. The decision will likely encourage more Section 487 claims against opposing counsel, particularly in contested foreclosure proceedings where allegations of litigation misconduct are common.