- Court
- New York Supreme Court, Appellate Division, Second Department
- Case
- Oberlander v. Simon
- Date
- June 3, 2026
- Slip Op. No.
- 2026 NY Slip Op 03450
Background
Plaintiff Frederick M. Oberlander, an attorney, commenced this action against defendant Bradley D. Simon, alleging a violation of Judiciary Law Section 487. Oberlander alleged that in April 2015, Simon, through his law firm Simon & Partners, LLP, replaced Oberlander as counsel of record for Jody Kriss in two federal court actions. Thereafter, in November 2015, at a hearing regarding Kriss’s purported contempt of certain sealing orders, Simon filed an affidavit on Kriss’s behalf making certain representations. Plaintiffs alleged these actions constituted deceit in violation of Section 487.
Simon moved under CPLR 3211(a) to dismiss the Section 487 cause of action. Supreme Court, Suffolk County (George Nolan, J.), granted the motion. Plaintiffs appealed.
Holding
The Appellate Division, Second Department, affirmed the dismissal, with costs. Applying the liberal pleading standard for CPLR 3211(a)(7) motions, the Court held that the allegations were insufficient to establish that the alleged acts of deceit were the proximate cause of any injury to the plaintiffs. The Court cited Langton v. Sussman & Watkins, 238 AD3d 726, 730, emphasizing that “an injury to the plaintiff resulting from the alleged deceitful conduct of the defendant attorney is an essential element of a cause of action based on a violation of Judiciary Law Section 487.” To state such a cause of action, the plaintiff must plead allegations from which damages attributable to the defendant’s conduct might be reasonably inferred.
Takeaways
This decision clarifies an essential but sometimes overlooked element of Judiciary Law Section 487 claims: proximate causation. Even assuming the truth of allegations that an attorney engaged in deceitful conduct before a court, the claim fails unless the plaintiff can plead and ultimately prove that the deceit caused actual injury to the plaintiff. This requirement mirrors standard tort principles and prevents Section 487 from being used as a vehicle for attorneys who were replaced as counsel to pursue grievances against successor counsel, absent a showing of concrete harm flowing from the alleged misconduct.
Why It Matters
Attorneys contemplating Section 487 claims must ensure they can articulate a causal connection between the alleged deceit and their injury. In the competitive world of legal practice, being replaced as counsel of record is not, standing alone, an actionable injury under Section 487. The plaintiff must identify specific harm that resulted from the deceitful conduct, not merely allege that the conduct occurred. This case, together with the companion Oberlander v. Kriss decision, suggests that the Second Department is taking a careful look at the sufficiency of Section 487 pleadings and will not allow such claims to proceed absent well-pleaded allegations of both deceit and resulting injury.