          SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

538
CA 12-02075
PRESENT: SCUDDER, P.J., PERADOTTO, SCONIERS, VALENTINO, AND MARTOCHE, JJ.


ANN DUSZYNSKI, AS ADMINISTRATRIX OF THE ESTATE
OF RUBY LAMBERT, DECEASED, PLAINTIFF-RESPONDENT,

                    V                                MEMORANDUM AND ORDER

ALLSTATE INSURANCE COMPANY, PAUL E. RICHARDSON
AND THE LAW OFFICES OF MARY A. BJORK,
DEFENDANTS-APPELLANTS.


HURWITZ & FINE, P.C., BUFFALO (MICHAEL F. PERLEY OF COUNSEL), FOR
DEFENDANTS-APPELLANTS.

GROSS, SHUMAN, BRIZDLE & GILFILLAN, P.C., BUFFALO (R. SCOTT ATWATER OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Joseph R.
Glownia, J.), entered August 22, 2012. The order granted the motion of
plaintiff for leave to amend the complaint.

     It is hereby ORDERED that the order so appealed from is unanimously
affirmed without costs.

     Memorandum: James Lambert (Lambert) struck a pedestrian while
operating a vehicle owned by his mother, Ruby Lambert (decedent). The
pedestrian commenced a personal injury action against decedent and
Lambert, both of whom were insured by defendant Allstate Insurance
Company (Allstate). Defendants Paul E. Richardson and The Law Offices of
Mary A. Bjork (Bjork) were assigned by Allstate to defend decedent and
Lambert in the personal injury action. As part of the settlement of that
action, decedent agreed to pay approximately $200,000 from her personal
assets. Before that payment could be made, however, decedent passed
away. Pursuant to an order of Surrogate’s Court, decedent’s estate paid
that amount to the personal injury plaintiff in full and final settlement
of the action as against decedent.

     Plaintiff, as administratrix of decedent’s estate, thereafter
commenced the instant action alleging, inter alia, that Richardson and
Bjork were negligent and committed legal malpractice while handling the
defense of the personal injury action. Sixteen months later, plaintiff
moved for leave to amend the complaint to add a cause of action under
Judiciary Law § 487. Supreme Court granted that motion, and we now
affirm.

     “It is well settled that [l]eave [to amend a pleading] shall be
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                                                         CA 12-02075

freely given . . . , and [t]he decision to allow or disallow the
amendment is committed to the court’s discretion . . . A court should not
examine the merits or legal sufficiency of the proposed amendment unless
the proposed pleading is clearly and patently insufficient on its face”
(Landers v CSX Transp., Inc., 70 AD3d 1326, 1327 [internal quotation
marks omitted]; see CPLR 3025 [b]; Edenwald Contr. Co. v City of New
York, 60 NY2d 957, 959). While defendants contend that plaintiff failed
to make an evidentiary showing that the cause of action could be
supported, we do not address that contention because it is improperly
raised for the first time on appeal (see Ciesinski v Town of Aurora, 202
AD2d 984, 985). Contrary to defendants’ further contention, we conclude
that the proposed amendment is not patently lacking in merit.

     “A violation of Judiciary Law § 487 may be established either by the
defendant’s alleged deceit or by an alleged chronic, extreme pattern of
legal delinquency by the defendant” (Scarborough v Napoli, Kaiser & Bern,
LLP, 63 AD3d 1531, 1533 [internal quotation marks omitted]; cf. Donaldson
v Bottar, 275 AD2d 897, 898, lv dismissed 95 NY2d 959; see generally
Amalfitano v Rosenberg, 12 NY3d 8, 12-14). With respect to the element
of deceit, “[t]he operative language at issue—‘guilty of any
deceit’—focuses on the attorney’s intent to deceive, not the deceit’s
success” (Amalfitano, 12 NY3d at 14). Here, in addition to alleging that
Richardson “intentionally deceived . . . Lambert when Richardson falsely
stated to . . . Lambert that [the personal injury plaintiff] was intent
on settling the matter for the combined policy limits,” plaintiff alleges
that “Bjork/Richardson intentionally deceived [decedent] and . . .
Lambert in representing to them that the [personal injury action] had
been settled within policy limits and that neither [Lambert’s] nor
[decedent’s] personal assets would be exposed.” Inasmuch as plaintiff
alleges that the attorneys “engaged in intentional deceit” (Scarborough,
63 AD3d at 1533), we conclude that plaintiff has alleged sufficient facts
to state a cause of action under Judiciary Law § 487.

     Defendants further contend that plaintiff’s motion should have been
denied inasmuch as no damages resulted from the alleged misconduct. In
her proposed amended complaint, plaintiff alleges that, as a result of
defendants’ violation of section 487, decedent was damaged. On this
record, we cannot conclude that plaintiff’s allegation of damages is
patently lacking in merit (cf. Manna v Ades, 237 AD2d 264, 265, lv denied
90 NY2d 806; Michalic v Klat, 128 AD2d 505, 506). In any event, “ ‘the
decision whether to grant leave to amend a complaint is committed to the
sound discretion of the court’ ” (Carro v Lyons Falls Pulp & Papers,
Inc., 56 AD3d 1276, 1277), and we see no basis to disturb the court’s
decision here.




Entered:   June 7, 2013                         Frances E. Cafarell
                                                Clerk of the Court
