Family Law, Missing Pages and Judiciary Law 487

By Andrew Lavoott Bluestone

Family Law, Missing Pages and Judiciary Law 487

This was a divorce case, and the couple had a business.  What was the business worth? How was it to be split?  Was there an appraisal?  Strumwasser v Zeiderman ; 2011 NY Slip Op 32971(U); October 18, 2011; Supreme Court, New York County; Docket Number: 113524/10
Judge: Joan A. Madden is a case in which husband settles, and then sues wife's attorney for deceit.The deceit?  Offering a business plan with a missing page in order to set the value of the business. Was this deceit under Judiciary Law 487?  It turns out that the Court thought it was not.

"Plaintiff maintains that it was deceitful for the law firm to represent that the financial projections w e r e anything other  than informational, and bases the allegation of deceit on this representation.
The law firm contends that it was arguing, on behalf of Wife, that the issue of the value of the jointly-held stock in Snow Beverages was an issue for consideration in the distribution of marital assets. The law firm maintains that its presentation of the business plan was to oppose plaintiff's motion to be relieved of the cost of the court-appointed appraisal, and that the presentation of the business plan was to provide evidence to the court that plaintiff had ascribed a value to Snow Beverages' stock. According to the law firm, it is irrelevant whether the business plan was designed for informational or investment purposes; its import was to demonstrate plaintiff's own concept of the value of the stock.

In the complaint, plaintiff also alleges that it was deceitful for the law firm to represent that Snow Beverages was profitable since, at the time of the divorce proceedings, it was losing money. Complaint, 17 59-63. In support of its instant motion, the law firm has attached a copy of the Snow Beverages' website of December 15, 2010, that indicates that the company was still operating as of that date. Motion, Ex. C."

"Plaintiff argues that he may maintain an action against an adversary's expert if the expert is involved in a larger fraudulent scheme, such as he has alleged in his complaint. Further, plaintiff contends that justifiable reliance is a question for a jury and cannot be dismissed by dispositive
motion. In reply, the EisnerAmper defendants assert that the exception to suing an adversary's expert as being part of a larger fraudulent scheme is inapplicable to the case at bar, since plaintiff had every opportunity to refute the Blauatein report and the report was prepared only for a determination of equitable distribution in a divorce proceeding. defendants say that plaintiff has not alleged a fraud for any larger purpose. Moreover, the EisnerAmper defendants point out that the settlement was overseen and approved by the matrimonial The EisnerAmper court, and plaintiff was fully represented in those proceedings. It is noted that plaintiff has not responded to the
EisnerAmper defendants' argument that a cause of action cannot be maintained as against EisnerAmper LLC under the doctrine of respondeat superior. that EisnerAmper LLC negligently supervised Blaustein and McLaughlin."

" A clear reading of the complaint indicates that plaintiff never believed the valuation and never relied upon it. the complaint alleges that plaintiff relied upon the Instead, representation of his own counsel that challenging the valuation would be expensive, and his counsel's advice to settle.
Furthermore, the alleged misrepresentation was not made to plaintiff, according to the complaint, but was made to the court, which never relied upon it because the parties settled. In addition, plaintiff signed the stipulation of settlement in which he affirmatively stated that he was not fraudulently induced to enter into the agreement. Therefore, by his own admission, no
fraud was perpetrated on him."

"Since plaintiff has failed articulate or allege a chronic or extreme pattern of behavior on the part of the law firm , plaintiff's causes of action asserted as against Zeiderman and J&C for violation of the Judiciary Law are dismissed."

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