Judiciary Law 487 is a criminal statute with a civil portion. It allows a civil action against an attorney who defrauded a court.
In a civil action, as any first-year law student knows, there is no such thing as an "attempted tort" (see Peter Cane, Anatomy of Tort Law, p. 63), because if the tort has been attempted, but not completed, the essential elements of damages and causation of damages are lacking and cannot be proven.
Attempts are the realm of the criminal proceedings, not of civil actions, where the prosecutor is the state, on behalf of the People, and where damage even from an attempt, is presumed.
Yet, because of the stigma attributable to criminal convictions, prosecution for a criminal attempt must comply with Criminal Procedure Law and constitutional law.
As opposed to a civil case, in a criminal case:
- The defendant has a right to an arraignment where he may plead "not guilty" and must be advised by the judge of his right to remain silent - there is no such right in a civil proceeding and a civil defendant may be claimed in default for failing to rebut allegations against him.
- The defendant has a right to a Bill of Particulars, discovery in accordance to a statute, motions to suppress illegally obtained evidence, including illegally obtained confessions, the right to a jury trial on each and every issue of fact, the right to confront his accusers, to have them testify at trial - in a civil action the right to a jury trial may be easily circumvented by a summary judgment.
NYS COA heavily relied in its decision on the intent of attorney to commit a crime of fraud upon the court. It is apparent that the resulting NYS COA decision is also about an attempted crime, and cannot legally be about an attempted tort, a non-existing concept. Yet, that's what we have in New York - a civil portion of a statute and its interpretation by the highest court in the state eliminating that civil portion and converting it into a de facto criminal proceeding prosecuted in the Supreme Court of the state by private parties and without indictment of the grand jury.
Since there is no such thing as an attempted tort, only an attempted crime (as any 1st year law student must know), the New York State Court of Appeals, by its decision in Amalfitano, eliminated the civil portion of the Judiciary law 487 and turned all proceedings pending at that time under the civil portion of Judiciary Law 487 into criminal proceedings.
The starkly incompetent decision by the New York State Court of Appeals ignored statutory and constitutional law distinguishing torts and crimes and related proceedings, ignored that in the Supreme Court criminal proceedings can be brought only by a public prosecutor and only through the indictment of the grand jury, and ignored the fact that it ruled the now treble damages are allowed by the court where no damages can be found by the jury, and thus the Court of Appeals usurped the function of the jury to find or not find damages in certain cases.
Of course, the New York State Court of Appeals has never announced its monumental blunder, did not apologize, did not revise it, did not retract it and vacate it sua sponte.
Thus, when an attorney is sued for attempted tort, in New York he or she can be de facto criminally prosecuted by private parties without following any criminal procedure or constitutional law that is applicable to such prosecution for attempts.
Good job, New York State Court of Appeals. Nothing like failing your 1st year of law school's finals.
Blunder No. 2.
On December 23, 2013, in an effort to help out a "brother at arms", a judge of a town justice court, Delaware County Supreme Court, Judge James C. Tormey pronounced that absolute judicial immunity applies to malicious acts of a private attorney during litigation.
The attorney in question was sued for defamation, fraud and fraud upon the court under Judiciary Law 487.
Absolute judicial immunity, the way it has been constantly applied by New York and federal courts for decades, creates a bar to subject matter jurisdiction of the court.
Thus, after Judge Tormey applied absolute judicial immunity to any misconduct of an attorney during litigation, he abrogated the court's subject matter jurisdiction to review lawsuits against attorneys under Judiciary Law 487.
Delaware County Supreme Court, Judge Dowd, refused to acknowledge precedential value of Judge Tormey's decision, calling it "dicta", even though it was the basis of the judge's dismissal of a lawsuit alleging malicious and fraudulent acts by an attorney, and thus was not dicta.
It is my legal opinion that (1) Judge Tormey's decision is not dicta and has invalidated Judiciary Law 487 in its entirety; (2) that the leading "precedent" for absolute judicial immunity for malicious and corrupt acts upon which both Judge Tormey and Judge Dowd relied in their respective federal civil rights litigation, is dicta, which does not prevent these judges and all courts in the United States, to rely upon it.
Thus, it appears, based on these 2 monumental blunders of New York courts that Judiciary Law 487 was skinned, chopped and thrown away, and yet it continues to be enforced.
This is what we call "the rule of law" in the State of New York.