     06-2364-cv
     Amalfitano v. Rosenberg

1                         UNITED STATES COURT OF APPEALS

2                              FOR THE SECOND CIRCUIT

3                                August Term, 2007

4    (Argued:    September 6, 2007                   Decided: July 14, 2009)

5                              Docket No. 06-2364-cv

6                    -------------------------------------

7                   VIVIA AMALFITANO AND GERARD AMALFITANO,

8                              Plaintiffs-Appellees,

9                                      - v. -

10                               ARMAND ROSENBERG,

11                              Defendant-Appellant.

12                   -------------------------------------

13   Before:     WALKER, CALABRESI, and SACK, Circuit Judges.

14               Appeal from a judgment of the United States District

15   Court for the Southern District of New York (Naomi Reice

16   Buchwald, Judge).     We certified two questions to the New York

17   Court of Appeals, see Amalfitano v. Rosenberg, 533 F.3d 117, 126

18   (2d Cir. 2008), which it has now answered, see Amalfitano v.

19   Rosenberg, 12 N.Y.3d 8, 903 N.E.2d 265, 874 N.Y.S.2d 868 (2009).

20   In light of those answers, the judgment is:

21               Affirmed.

22                                WILLIAM J. DAVIS, Scheichet & Davis,
23                                P.C., New York, NY, for Defendant-
24                                Appellant.

25                                RICHARD E. HAHN, Llorca & Hahn LLP, New
26                                York, NY, for Plaintiffs-Appellees.
1    PER CURIAM:

2                  We return to this appeal from a judgment of the United

3    States District Court for the Southern District of New York

4    (Naomi Reice Buchwald, Judge).      We assume the parties' continued

5    familiarity with the facts and procedural history of this case,

6    and the issues presented on appeal.

7                  On July 15, 2008, we certified two questions to the New

8    York State Court of Appeals:

 9                 (1) Can a successful lawsuit for treble
10                 damages brought under N.Y. Jud. Law § 487 be
11                 based on an attempted but unsuccessful deceit
12                 upon a court by the defendant?
13                 (2) In the course of such a lawsuit, may the
14                 costs of defending litigation instituted by a
15                 complaint containing a material
16                 misrepresentation of fact be treated as the
17                 proximate result of the misrepresentation if
18                 the court upon which the deceit was attempted
19                 at no time acted on the belief that the
20                 misrepresentation was true?

21   Amalfitano v. Rosenberg, 533 F.3d 117, 126 (2d Cir. 2008).      We

22   noted that we "would almost surely affirm the district court's

23   judgment in its entirety if the New York Court of Appeals

24   determines that section 487 permits the award of treble damages

25   for an attempted deceit of the New York courts."      Id.   The Court

26   of Appeals has now answered both certified questions in the

27   affirmative, see Amalfitano v. Rosenberg, 12 N.Y.3d 8, 903 N.E.2d

28   265, 874 N.Y.S.2d 868 (2009), and, in light of that decision, we

29   do indeed affirm.

30                 "The district court . . . assessed [a base calculation

31   of] damages in the amount of $89,415.18, comprising the

                                         2
1    Amalfitanos' legal fees from the inception of the Costalas

2    litigation to the judgment."    Amalfitano, 533 F.3d at 122.       As we

3    noted in our previous opinion, such an award assumes that the

4    defendant committed actionable fraud for section 487 purposes

5    from the commencement of the litigation -- i.e., from his filing

6    of the complaint -- at which time the defendant "was [merely]

7    attempting (but failing) to deceive Justice Gammerman, [and] had

8    not yet successfully deceived the Appellate Division into

9    reversing the default judgment."       See id. at 125.   It also

10   assumes that the fraud was a proximate cause of the defendants'

11   incurring legal fees to defend against the entire litigation,

12   even the period of the litigation before the fraud was

13   successful.    See id.

14              In light of the Court of Appeals' answer, we conclude

15   that both assumptions were correct.       That the defendant's

16   misrepresentation in the complaint did not actually deceive the

17   state courts until later in the litigation does not matter, for

18   "[t]he operative language" of section 487 "focuses on the

19   attorney's intent to deceive, not the deceit's success."

20   Amalfitano, 12 N.Y.3d at 14, 903 N.E.2d at 268, 874 N.Y.S.2d at

21   871.   The defendant does not challenge the district court's

22   finding that his deceit was intentional.       See Amalfitano, 533

23   F.3d at 124.    Moreover, because the central claim of the

24   complaint was predicated upon a misrepresentation of fact, see

25   id., and because the plaintiffs were "obligated to defend or

26   default" in response to that complaint "and necessarily incur[]

                                        3
1   legal expenses" as a consequence, those expenses "may be treated

2   as the proximate result of the misrepresentation," Amalfitano, 12

3   N.Y.3d at 15, 903 N.E.2d at 269, 874 N.Y.S.2d at 872.   We

4   conclude that the district court did not err in treating them as

5   such.

6             For the foregoing reasons, the judgment of the district

7   court is AFFIRMED.




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