State of New York OPINION Court of Appeals This opinion is uncorrected and subject to revision before publication in the New York Reports. No. 19 Bill Birds, Inc. et al., Appellants, v. Stein Law Firm, P.C. et al., Respondents. Thomas Torto, for appellant. James D. Spithogiannis, for respondents. Andrew Lavoot Bluestone, Jeffrey A. Jannuzzo, and Anita Bernstein, amici curiae. DiFIORE, Chief Judge: The singular issue before us in this appeal is whether the Appellate Division erred in dismissing plaintiffs’ claim under Judiciary Law § 487 (1) against their former attorneys who allegedly induced them to bring a meritless lawsuit in order to generate a legal fee. Defendants met their initial burden on summary judgment with respect to whether their alleged deceit occurred during the pendency of litigation, and plaintiffs failed to raise a -1- -2- No. 19 triable issue of fact on that issue in response. We therefore affirm the Appellate Division order granting summary judgment dismissing the complaint. Defendants, attorney Mitchell Stein and his law firm, Stein Law P.C., represented plaintiffs Bill Birds, Inc., which manufactures decorative metal automobile parts, and its president in a trademark dispute against General Motors, Service Parts Operation (GM) and Equity Management, Inc. (EMI). After the complaint in that action was dismissed, plaintiffs commenced this action against defendants alleging, as relevant here, a violation of Judiciary Law § 487(1).1 Plaintiffs alleged that defendants advised them that GM had possibly abandoned the trademarks GM had licensed to plaintiffs for over a decade, advising plaintiffs that they had meritorious claims against GM. Based on this advice, plaintiffs commenced the underlying federal trademark action against GM and EMI in the United States District Court for the Eastern District of New York, incurring $25,000 in attorney fees. Plaintiffs alleged that the underlying action—which was dismissed as commenced in an improper venue based on a forum selection clause in plaintiffs’ licensing agreements with GM— clearly lacked merit, in part because a provision in the licensing agreement prohibited plaintiffs from challenging GM’s ownership of the relevant intellectual property. Plaintiffs further alleged that defendants concealed the dismissal of the underlying action for 1 Plaintiffs also asserted legal malpractice, breach of contract and fraud claims. Among other allegations, on their legal malpractice cause of action plaintiffs alleged that their claims against GM were meritorious but that defendants negligently failed to prosecute them properly. Those claims were dismissed by Supreme Court on defendants’ summary judgment motion, and plaintiffs did not appeal that dismissal to the Appellate Division. The dismissal of those claims therefore is not before us on this appeal. -2- -3- No. 19 approximately nine months and subsequently lied about the reason for the delay, claiming that the federal court did not release its decision promptly. After answering the complaint, defendants moved for summary judgment, arguing, among other things, that the Judiciary Law § 487 claim must be dismissed because plaintiffs failed to allege any misrepresentations made in the context of ongoing litigation. Plaintiffs opposed the motion, submitting affidavits alleging essentially the ...
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