James L. Melcher, Appellant,v.Greenberg Traurig, LLP, et al., Respondents.BriefN.Y.February 13, 2014To Be Argued By: JAMES T. POTTER Time Requested: 20 Minutes APL-2013-00043 New York County Clerk’s Index No. 650188/2007 Court of Appeals STATE OF NEW YORK JAMES L. MELCHER, Plaintiff-Appellant, —against— GREENBERG TRAURIG, LLP and LESLIE D. CORWIN, Defendants-Respondents. BRIEF FOR PLAINTIFF-APPELLANT d JAMES T. POTTER HINMAN STRAUB PC 121 State Street Albany, New York 12207 Telephone: (518) 436-0751 Facsimile: (518) 436-4751 JEFFREY A. JANNUZZO 10 East 40th Street, 35th Floor New York, New York 10016-0301 Telephone: (212) 932-8524 Facsimile: (212) 932-1165 Attorneys for Plaintiff-Appellant Date Completed: July 1, 2013 - i - TABLE OF CONTENTS Page JURISDICTIONAL STATEMENT ..........................................................................1 PRELIMINARY STATEMENT ...............................................................................2 QUESTIONS PRESENTED......................................................................................7 STATEMENT OF FACTS ........................................................................................9 A. Melcher Sues Fradd...........................................................................9 B. Fradd’s Motion to Dismiss ..............................................................11 C. Melcher Investigates the Document’s Authenticity, but Corwin Conceals the Deceit .........................................................................13 D. The Trial and Appeals in Melcher’s Case Against Fradd...............22 PROCEDURAL HISTORY OF THE PRESENT ACTION...................................24 ARGUMENT ...........................................................................................................27 POINT I. THE SIX-YEAR LIMITATIONS PERIOD OF CPLR 213(1) APPLIES TO JUDICIARY LAW § 487 CLAIMS ..............................................................27 A. Liability for Attorney Deceit Was Recognized At English Common Law Before It Was Codified in Any Statute ...................................29 B. The Inclusion of Liability for Attorney Deceit in the Common Law of New York ......................................35 C. It Is Irrelevant that New York Statutes Have Enhanced the Remedies Available for Attorney Deceit .................38 POINT II. DEFENDANTS ARE EQUITABLY ESTOPPED FROM ASSERTING THEIR STATUTE OF LIMITATIONS DEFENSE ............................................39 A. Corwin’s Critical Act of Deceit ......................................................42 B. Corwin’s Cover-Up Before the Governale Deposition...................43 - ii - C. Corwin’s Cover-Up Between the Governale Deposition and the Beckwith Deposition .......................................................................45 D. The Factual Allegations Support Equitable Estoppel .....................46 POINT III. EVEN UNDER A THREE-YEAR STATUTE OF LIMITATIONS, THIS ACTION IS TIMELY BECAUSE PLAINTIFF’S CLAIM DID NOT ACCRUE UNTIL PLAINTIFF KNEW OF CORWIN’S DECEIT.....................................................................................................48 POINT IV. THE RETROACTIVE SHORTENING OF THE STATUTE OF LIMITATIONS FOR JUDICIARY LAW § 487 CLAIMS VIOLATES MELCHER’S DUE-PROCESS RIGHTS ............................................51 - iii - TABLE OF AUTHORITIES Page(s) CASES Abbate v. Abbate, 82 A.D.2d 368 (2d Dep’t 1981)..........................................................................49 Abraham v. Kosinski, 305 A.D.2d 1091 (4th Dep’t 2003).....................................................................41 Abrams v. Brady, 77 N.Y.2d 741 (1991) .........................................................................................31 Aetna Life & Cas. Co. v. Nelson, 67 N.Y.2d 169 (1986) .........................................................................................27 Amalfitano v. Rosenberg, 12 N.Y.3d 8 (2009) ......................................................................................passim Babington v. Yellow Taxi Corp., 250 N.Y. 14 (1928) .............................................................................................31 Beers v. Hotchkiss, 256 N.Y. 41 (1931) ............................................................................35-36, 37-38 Bogardus v. Trinity Church, 4 Paige Ch. 178 (1833) .......................................................................................35 Brothers v. Florence, 95 N.Y.2d 290 (2000) .........................................................................................54 Carlisle v. County of Nassau, 64 A.D.2d 15 (2d Dep’t 1978)............................................................................32 Colavito v. New York Organ Donor Network, Inc., 8 N.Y.3d 43 (2006) .............................................................................................30 Connolly v. Napoli Kaiser Bern & Assoc., LLP, 2009 N.Y. Misc. LEXIS 6302 (N.Y. Sup. Ct. July 16, 2009), aff’d on other grounds, 81 A.D.3d 550 (1st Dep’t 2011) ................................................52 - iv - Corsello v. Verizon New York, Inc., 18 N.Y.3d 777 (2012) .........................................................................................41 Flanagan v. Mount Eden Gen. Hosp., 24 N.Y.2d 427 (1969) .........................................................................................50 Gaidon v. Guardian Life Ins. Co., 96 N.Y.2d 201 (2001) ..................................................................................passim General Stencils, Inc. v. Chiappa, 18 N.Y.2d 125 (1966) ...................................................................................40, 47 Giannetto v. Knee, 82 A.D.3d 1043 (2d Dep’t 2011)........................................................................41 Guardian Life Ins. Co. v. Handel, 190 A.D.2d 57 (1st Dep’t 1993) .............................................................33, 51, 53 Gurnee v. Aetna Life & Casualty Co., 55 N.Y.2d 184 (1982) ................................................................................... 52-53 Harmon v. Alfred Peats Co., 216 A.D. 368 (1st Dep’t 1926), rev’d on other grounds, 243 N.Y. 473 (1926) ...........................................................................................37 Hartnett v. New York City Transit Auth., 86 N.Y.2d 438 (1995) ............................................................................. 27-28, 32 Kilstein v. Agudath Council of Greater New York, Inc., 133 A.D.2d 809 (2d Dep’t 1987)........................................................................41 Medco Plumbing, Inc. v. Sparrow Constr. Corp., 22 A.D.3d 647 (2d Dep’t 2005)..........................................................................41 Melcher v. Apollo Medical Fund Management LLC. 105 A.D.3d 15 (1st Dep’t 2013) .................................................................2, 9, 23 Morgenthau v. Altman, 58 N.Y.2d 1057 (1983) .......................................................................................31 New York City Transit Auth. v. Morris J. Eisen, PC, 203 A.D.2d 146 (1st Dep’t 1994) ..................................................... 33, 51-52, 53 - v - Orr v. Kinderhill Corp., 991 F.2d 31 (2d Cir. 1993) .................................................................................39 People v. Cunningham, 2 N.Y.3d 593 (2004) ...........................................................................................30 People v. Jelke, 308 N.Y. 56 (1954) .............................................................................................30 People v. McNaspie, 261 A.D. 657 (3d Dep’t 1941)............................................................................32 Renz v. Beeman, 589 F.2d 735 (2d Cir. 1978) ......................................................................... 48-49 Russell v. Société Anonyme, 242 A.D. 801 (2d Dep’t 1934), aff’d on other grounds, 268 N.Y. 173 (1935)..................................................................................................................36 Sielcken-Schwarz v. American Factors, Ltd., 265 N.Y. 239 (1934) ..................................................................................... 48-49 Simcuski v. Saeli, 44 N.Y.2d 442 (1978) .............................................................................40, 41, 46 State v. Cortelle Corp., 38 N.Y.2d 83 (1975) ..........................................................................28-29, 38-39 United Press Assocs. v. Valente, 308 N.Y. 71 (1954) .............................................................................................31 Van Rensselaer v. Hays, 19 N.Y. 68 (1859) ...............................................................................................37 Vigliotti v. North Shore Univ. Hosp., 24 A.D.3d 752 (2d Dep’t 2005)..........................................................................41 STATUTES CPLR 213(1) ..................................................................................4, 7, 26, 27, 29, 39 CPLR 213(8) ............................................................................................................33 - vi - CPLR 214(2) .....................................................................................................passim CPLR 5601(a) ............................................................................................................1 Executive Law § 63(12).....................................................................................28, 38 Judiciary Law § 487..........................................................................................passim L. 1786, ch. 35 ................................................................................................... 36-37 L. 1787, ch. 35 .........................................................................................................37 OTHER AUTHORITIES 2 Pollock & Maitland, THE HISTORY OF ENGLISH LAW (2nd ed. 1898) ..................31 1787 Journal of the Assembly of the State of New York .......................................37 Article XXXV of the Constitution of 1777 .............................................................36 Fourteenth Amendment of the United States Constitution......................................54 Jones, BLACKSTONE’S COMMENTARIES ON THE LAWS OF ENGLAND (1916) Vol. II ............................................................................................................31, 32 Sir Edward Coke, SECOND INSTITUTES ON THE LAWS OF ENGLAND ........................30 - 1 - JURISDICTIONAL STATEMENT The Court of Appeals has jurisdiction over this appeal taken as of right pursuant to CPLR 5601(a), in that there was a dissent below by two justices on a question of law in favor of Plaintiff-Appellant. Defendants-Respondents moved this Court to dismiss the appeal taken as of right, but such motion was denied by this Court by Order entered April 30, 2013. Plaintiff-Appellant appeals from a decision and order of the Appellate Division, First Department, dated and entered on January 17, 2013, which dismissed his claim under Judiciary Law § 487 against Defendants-Respondents. - 2 - PRELIMINARY STATEMENT This appeal presents a question of first impression concerning the timeliness of a Judiciary Law § 487 claim for attorney deceit. Plaintiff’s claim is centered on the allegation that counsel, on a motion to dismiss, submitted a document to Supreme Court that counsel knew to be a back-dated fabrication. But Plaintiff did not learn until several years later that counsel knew of the fabrication. By any analysis, Plaintiff’s Judiciary Law § 487 claim was timely filed. Plaintiff-Appellant James L. Melcher (“Melcher” or “Plaintiff”) appeals from a decision and Order of the Appellate Division, First Department, entered January 17, 2013, which, over a two-justice dissent: (1) reversed a decision and order of the Commercial Division of Supreme Court, New York County (Kornreich, J.) denying Defendants’ motion to dismiss; and (2) dismissed Plaintiff’s complaint. On June 25, 2007, Melcher filed a detailed complaint alleging that on February 17, 2004, Defendant Leslie Corwin (“Corwin”), while representing Melcher’s adversary in another lawsuit, committed attorney deceit under Judiciary Law § 487. The basis for this claim was that Corwin knowingly submitted a back- dated and fabricated contract amendment to support a motion to dismiss in the case Melcher v. Apollo Medical Fund Management LLC. The Complaint alleged in detail how Corwin, by submitting numerous false affidavits, had prevented - 3 - Melcher from learning of Corwin’s submission of a document that he knew was fabricated. This deception, in turn, prevented Melcher from filing his claim sooner. The overarching question presented on this appeal is whether Melcher’s Complaint was timely filed. The majority below at the Appellate Division, First Department held that it was not. But that decision was wrong for numerous reasons. First, the majority below erroneously concluded that claims under Judiciary Law § 487 are governed by the three-year statute of limitations of CPLR 214(2), which applies to “liability . . . created . . . by statute.” That holding was directly contrary to this Court’s case law, which has consistently held that “CPLR 214(2) does not apply to liabilities existing at common law which have been recognized or implemented by statute.” Gaidon v. Guardian Life Ins. Co., 96 N.Y.2d 201, 208 (2001)(internal quotation marks omitted). The First Department summarily decided that Judiciary Law § 487 was a “liability created by statute.” It based that conclusion almost entirely on this Court’s observation, in a case having nothing to do with statutes of limitation, that Judiciary Law § 487 liability can be traced back to England’s First Statute of Westminster, enacted in 1275. See Amalfitano v. Rosenberg, 12 N.Y.3d 8, 14 (2009). - 4 - But the First Department entirely ignored Plaintiff’s principal argument, even though that argument was completely consistent with the historical description in Amalfitano. Plaintiff explained that, in fact, liability for attorney deceit actually existed before the enactment of the First Statute of Westminster, and thus was a liability “existing at common law which ha[d] been recognized or implemented by statute” within the meaning of Gaidon. Plaintiff also pointed out that English statutory and common law became part of New York common law as part of the Colonial-era incorporation of English law into New York law. As a result, attorney-deceit liability existed at New York common law before being codified into any New York statute. Both these points dictate that the three-year statute of limitations of CPLR 214(2) does not apply to liability for attorney deceit under Judiciary Law § 487. Instead, the residual six-year statute of limitations of CPLR 213(1) applies. Second, the First Department erroneously reversed the motion court’s ruling that the statute of limitations was tolled under the doctrine of equitable estoppel. Plaintiff’s Complaint identified numerous sworn misrepresentations by Corwin that were designed to – and did – temporarily prevent Plaintiff from commencing an action alleging that Corwin knew the document was a back-dated fabrication at the time of the dismissal motion. Plaintiff alleged that, after Corwin submitted the document in support of the dismissal motion, he responded to - 5 - Plaintiff’s challenges on the authenticity of the document by making numerous sworn misrepresentations. Those misrepresentations, until contradicted with direct evidence, prevented Plaintiff from filing an action alleging that Corwin himself knew the document was a back-dated forgery. In his Complaint, Plaintiff pleaded detailed facts that, taken as true on a motion to dismiss, were more than sufficient to establish equitable estoppel. Nonetheless, the First Department erroneously rejected this argument as a matter of law. Had the First Department recognized the availability of equitable estoppel based on these allegations, Plaintiff’s case would have proceeded even under a three-year limitations period. Third, much as the First Department failed to recognize the applicability of equitable estoppel in this case, it also failed to apply the statute of limitations in a way that reflected the point in time when Plaintiff actually had a legitimate basis to allege that Corwin had committed actionable attorney deceit. Under the approach taken by the First Department in this case, the slightest hint of attorney deceit would trigger the statute of limitations for a Judiciary Law § 487 claim, even if the hint relates to a particular deceit that is incidental to the gravamen of the claim. The First Department’s approach would thus force a party considering a Judiciary Law § 487 claim to file the action precipitously, without - 6 - having the time to ensure that there is a good-faith basis for the claim. This is not sound policy. Finally, even though the governing case-law at the time this claim was filed applied a six-year limitations period to Judiciary Law § 487 claims, the First Department reversed its prior decisions, adopted a three-year statute of limitations, and applied it retroactively to Plaintiff’s case. In so doing, the First Department retroactively shortened the statute of limitations for Plaintiff’s claim, thereby violating Plaintiff’s due-process rights. - 7 - QUESTIONS PRESENTED (1) Whether liability for attorney deceit under Judiciary Law § 487 is a “liability created by statute” governed by CPLR 214(2), or a liability “existing at common law which ha[s] been recognized or implemented by statute” governed by CPLR 213(1). Answer of the First Department: According to the First Department, it is a “liability created by statute.” Melcher contends that, both because liability for attorney deceit existed at English common law long before being codified in England in 1275, and because liability for attorney deceit was adopted into New York common law before attorney deceit was codified in a New York statute, it is not a “liability created by statute.” CPLR 214(2) therefore does not apply, and CPLR 213(1) governs instead. (2) Whether the allegations in the Complaint, taken as true, can support a finding of equitable estoppel to toll the statute of limitations in this case. Answer of the First Department: No. Melcher contends that his Complaint pleaded detailed facts, which on a motion to dismiss must be taken as true, that provide sufficient basis for equitable estoppel. (3) Whether the statute of limitations for a Judiciary Law § 487 claim only begins to run when the Plaintiff has sufficient information to know of the deceitful conduct. - 8 - Answer of the First Department: The First Department implicitly answered this question in the affirmative, but the majority then proceeded to apply this rule incorrectly to the facts of this case. Melcher contends that a proper application of this rule would delay the running of the statute of limitations so as to render his claim timely under a three-year statute of limitations. (4) Whether the First Department’s decision, which overturned prior case-law in a way that cut the relevant statute of limitations from six years to three years, should be applied retroactively to dismiss a case that was incontrovertibly timely when it was filed. Answer of the First Department: The First Department implicitly answered this question in the affirmative. Melcher contends that, because his claim was incontrovertibly timely under the case law in effect at the time of filing, a ruling retroactively applying a three-year statute of limitations to his claim would violate his due-process rights. - 9 - STATEMENT OF FACTS A. Melcher Sues Fradd Plaintiff James L. Melcher is a highly respected investment manager with decades of experience in his field.1 Melcher and Brandon Fradd were co- owners of a hedge fund management company, Apollo Medical Fund Management LLC (“Apollo Management”). In 2001, Melcher discovered that Fradd had been systematically short-changing him out of his share of the fees earned by Apollo Management.2 On December 17, 2003, after Melcher’s efforts to amicably resolve the matter failed, Melcher told Fradd that he was prepared to sue for what he was owed. R-54 at ¶ 19. The following day, December 18, 2003, Fradd faxed Melcher what purported to be a 1998 contract amendment to the Apollo Management operating agreement. R-54 at ¶ 19. The amendment significantly reduced Melcher’s share of Apollo Management’s profits, effectively erasing the underpayment Melcher complained of. R-54 at ¶¶ 19 & 21. Melcher had never seen or heard of this purported contract amendment. R-54 at ¶ 19, 65 at ¶ 58. It was signed only by Fradd, and was in a different format than another amendment that both owners had signed previously. 1 He is also a former Olympic athlete who was twice the United States fencing champion. 2 The facts of the underlying case are also set forth in detail in the recent First Department decision Melcher v. Apollo Medical Fund Management LLC. 105 A.D.3d 15 (1st Dep’t 2013). - 10 - R-60 at ¶ 40(F); NYCC 3-1 at 26 & 166.3 Fradd claimed that the amendment was nevertheless valid because he had signed it during a brief period in 1998 when he controlled enough of the company to amend its operating agreement based solely on his own signature. R-63 at ¶ 52, 64 at ¶ 53, NYCC 3-1 at 189. On December 30, 2003, Melcher commenced an action in Supreme Court, New York County against both Fradd and Apollo Management for the money he was owed. R-53 at ¶ 19. After Fradd retained Defendant Corwin and his law firm, Fradd and Corwin attended a meeting on January 27, 2004 at the offices of Melcher’s corporate lawyers, Patterson Belknap Webb & Tyler LLP. R- 54 at ¶ 20, NYCC 3-1 at 23. At that meeting, Defendant Corwin told Melcher and his counsel that, because of the contract amendment, Melcher had no case. R-54 at ¶ 21, 56 at ¶ 28. Corwin represented that he had personally confirmed the authenticity of the contract amendment with Apollo Management’s lawyer, Jack Governale. R-54 at ¶ 22. Immediately following the meeting, Melcher’s counsel sent Corwin a letter requesting that he and his client, Fradd, make the original of the amendment available for inspection and forensic testing. R-56-57 at ¶ 30. Corwin re- 3 The New York County Clerk’s file was subpoenaed to this Court by Appellant, and was transmitted by the County Clerk on a CD. Citations to “NYCC-__” refer to the NYSCEF Doc. No., and the page within the document. The County Clerk’s file is also available on-line at https://iapps.courts.state.ny.us/webcivil/FCASMain. - 11 - transmitted the faxed letter to his client Fradd that same day. R-57 at ¶ 31. Also on the afternoon of January 27, 2004, Fradd was personally served with Melcher’s Summons and Complaint for the underlying case, which alleged that the contract amendment was a recent fabrication. R-57 at ¶ 32, 53-54 at ¶ 19, NYCC 3-1 at 8. When Defendant Corwin failed to respond to the request to turn over the original of the claimed amendment for forensic testing, Melcher moved to compel its production. R-61 at ¶ 44. Melcher’s motion was supported by the affidavit of a forensic chemist, who affirmed that it is possible to accurately ink- date a document if it is tested within approximately two years of its creation. R-56 at ¶ 29, NYCC 3-1 at 113. B. Fradd’s Motion to Dismiss On February 17, 2004, while Melcher’s motion to obtain the original for forensic testing was still pending, Corwin moved on behalf of his clients, Fradd and Apollo Management, to dismiss Melcher’s Complaint, attaching a copy of the contract amendment and demanding dismissal based on this documentary evidence. R-61 at ¶ 43, NYCC 3-1 at 181 & 184. If successful, the motion to dismiss would have prevented Melcher from ever seeing the original of the amendment. R-65 at ¶ 57. In support of that motion to dismiss, Corwin submitted an affidavit from Fradd, in which Fradd swore: (a) that his affidavit attached a true copy of the - 12 - purported amendment, (b) that Apollo Management’s law firm had prepared the amendment in May 1998 at Fradd’s request, and (c) that Fradd had signed it on May 21, 1998. R-63-64 at ¶¶ 51-53, NYCC 3-1 at 188-89, 192. Fradd’s affidavit asserted that because of the amendment, the court had to dismiss Melcher’s Complaint. R-61 at ¶ 43, 63-64 at ¶¶ 51-53, NYCC 3-1 at 188-89, 192-93. The purported timing of the amendment’s preparation was critical. Fradd’s affidavit claimed that he signed the document in May 1998 when he owned more than 75% of the company, which entitled him to amend Apollo Management’s operating agreement based solely on his own signature. R-64 at ¶ 53, NYCC 3-1 at 188-89, 192. Not long thereafter, Fradd’s percentage ownership of the company changed, and he no longer had the power to amend by himself. NYCC 3-2 at 42 & 44. Fradd’s sworn statement that Apollo Management’s law firm had drafted the amendment was also critical, because the company’s operating agreement expressly required that any amendment had to be approved by the law firm. R-64 at ¶ 53, NYCC 3-1 at 187, 192. In short, if the amendment was not actually signed in May 1998 or was not actually approved by the law firm, it would have been invalid. R-64 at ¶ 53, NYCC 3-1 at 187, 192. On February 23, 2004, at oral argument on Melcher’s motion to compel production of the original document of the claimed amendment, Corwin represented to the motion court that he was holding the original of the claimed - 13 - amendment safely in escrow. R-62 at ¶¶ 46-47. He argued that Fradd’s motion to dismiss would end the case and eliminate the need to reach Melcher’s motion to compel. R-61 at ¶ 45, 62-63 at ¶¶ 49-50, 65 at ¶ 57. While the motion to compel production of the original was still undecided, Melcher filed his opposition to Fradd’s motion to dismiss. R-65 at ¶ 58. He categorically denied having ever seen or heard of any such amendment, whether written or oral, until the day after he informed Fradd that he was prepared to sue for his rightful share of the profits. R-65 at ¶ 58. Melcher’s affidavit also noted that Fradd had submitted no affidavit from Apollo Management’s law firm to support his story. R-65 at ¶ 58, NYCC 3-2 at 41. In reply, Corwin submitted another affidavit from Fradd, in which Fradd swore that Apollo Management’s law firm had gone out of existence and that the lawyer who had prepared and handled Apollo Management’s corporate documents was retired, lived outside the State, and was thus unavailable. R-65-66 at ¶¶ 59-62. C. Melcher Investigates the Document’s Authenticity, but Corwin Conceals the Deceit On March 15, 2004, after Fradd’s motion to dismiss was fully briefed and argued, the motion court heard and granted Melcher’s motion to compel production of the original of the amendment. R-72 at ¶ 80. Thereafter, on March 18, 2004, Corwin turned over the so-called “original.” R-72 at ¶ 81. - 14 - However, Corwin enclosed only the second page of the two-page amendment. R-72-73 at ¶ 81. In his cover letter, Corwin revealed that his client Fradd had, supposedly by accident, placed the original document near a hot stove on January 28, 2004, and had thereby partially burned it. R-57-58 at ¶¶ 33-36, 72- 73 at ¶ 81, NYCC 3-2 at 71. That date was literally the very day after Melcher had requested the original for forensic testing and Fradd had been personally served with Melcher’s Complaint. R-56-57 at ¶¶ 30-33. The surviving second page of the claimed contract amendment contained a scorch mark, directly over the ink in the signature line – i.e., exactly the part of the document that a forensic chemist would test to determine the date of the signature. R-72 at ¶ 81, 73 at ¶¶ 83-86, 143-45. On March 20, 2004, Melcher’s counsel wrote to the motion court, requesting immediate discovery regarding the circumstances of Fradd’s supposed accidental burning of the document. R-122. Melcher’s counsel noted that Corwin had previously assured the court that he had the document in his personal possession, without disclosing that he was holding only a scorched remnant of the document. R-122-23. However, nothing in counsel’s March 20, 2004 letter accused Corwin of personally knowingly that the purported amendment was a back-dated forgery. - 15 - R-122-23. The letter merely accused Corwin of a lack of candor before the motion court about the damaged condition of the original document. R-122-23. On April 14, 2004, the motion court ordered an expedited deposition of Fradd. R-74 at ¶¶ 87-88. At that deposition, Fradd told a story about accidentally burning the document while making tea, but he claimed not to recall virtually any of the material facts about the burning, even though it had occurred just months earlier. R-74 at ¶ 88, NYCC 3-1 at 137-38. On May 11, 2004, Melcher’s counsel submitted the transcript of Fradd’s deposition to the motion court. R-74 at ¶ 89, 116-20. Melcher’s counsel stated that Fradd’s testimony was consistent with the testimony of someone who had tried to cook the document to make the ink impossible to test, botched the process, and then invented a story about accidentally scorching the most important part of the document while making tea. R-118-19. However, Melcher’s counsel did not claim that Corwin had ever known the document to be a back-dated forgery. R-116-20. Rather, all the statements by Melcher’s counsel concerned Corwin’s client, Fradd. R-116-20. A week after that May 11, 2004 submission, Corwin submitted a sur- reply affidavit from Fradd, in which Fradd again swore that the purported amendment was authentic and that the burning was accidental. R-74 at ¶ 90. He further affirmed that he had been hampered in proving the document’s authenticity - 16 - because the law firm that had prepared the document no longer existed, and because the retired partner who Fradd claimed knew about the document was unavailable, despite efforts by both Fradd and Corwin to contact him. R-74 at ¶ 90. As of June 25, 2004 (the date three years before commencement of this action), all that Melcher had accused Corwin of was a lack of candor in failing to disclose to the motion court that his client Fradd had just burned the document under highly suspicious circumstances, shortly after it was requested for forensic testing. R-116, 122, 137. Significantly, as of June 25, 2004, Melcher had no evidence that Corwin personally knew that the amendment was a forgery. Melcher likewise had no evidence at that time to contradict the multiple sworn statements of Corwin’s client, Fradd, that he had been unable to consult Apollo Management’s corporate files because the law firm that had handled them had gone out of existence. R-66 at ¶ 62, 74 at ¶ 90, NYCC 3-1 at 122, NYCC 3-2 at 52. And, as of June 25, 2004, Melcher had no evidence to contradict Fradd’s multiple affidavits that a retired lawyer who lived outside the State could authenticate the document, but was unavailable despite the claimed efforts of both Fradd and Corwin to contact him. R-66 at ¶ 62, 74 at ¶ 90, NYCC 3-1 at 122, NYCC 3-2 at 52. - 17 - In September 2004, the motion court denied Fradd’s motion to dismiss. R-75 at ¶ 93. On December 7, 2005, Melcher deposed Jack Governale – the lawyer who, according to Corwin, had confirmed the supposed amendment’s authenticity. R-54 at ¶ 22, 59-60 at ¶ 40, NYCC 3-1 at 33. At the deposition, Governale disclosed facts that for the first time raised concerns about what Corwin himself knew at the time he filed the motion to dismiss. R-55 at ¶ 25, 59-60 at ¶ 40. Governale testified that, from 1998 through the present, he had been in continuous custody of the client file for Apollo Management, and when he had changed firms, the client file had been transferred intact to him at his new firm. R-59 at ¶ 40(A). Governale testified that although the prior law firm had been involved in a merger in 1998, that merger had simply involved the firm changing its name to Wolf Block, with Governale and the other lawyers sitting at the very same desks, and their client files remaining in the same place. R-59 at ¶ 40(B). Governale further testified that the Apollo Management client file which had been in his continuous custody showed no evidence whatsoever that the claimed amendment had ever existed, and confirmed that he had no knowledge of its existence. R-59-60 at ¶ 40(C-F). Moreover, the privilege log of documents withheld by Governale in discovery showed that he had been in extensive contact with Corwin in late January and early February 2004, i.e., just before Corwin - 18 - moved to dismiss based on a pre-incineration version of the document. R-58-59 at ¶ 39, NYCC 3-1 at 161-63. This was the first evidence suggesting that Corwin might have known the amendment was a fabrication before he submitted it in support of the motion to dismiss. In December 2005, Melcher brought the facts learned in the Governale deposition to the attention of the motion court. R-76 at ¶ 98. In response, Corwin himself personally swore in an affidavit that the likely reason that Governale’s files could not account for the amendment was that the lawyer who was primarily responsible for handling Apollo Management’s affairs at the relevant time in 1998 was a retired lawyer in Vermont named James Beckwith, who had “unfortunately been unavailable to talk to us and has resisted all prior attempts to do so.” R-77 at ¶ 100 (emphasis added). Corwin even demanded sanctions against Melcher and his counsel for questioning Corwin’s veracity. R- 76-77 at ¶ 99, NYCC 3-1 at 61-62. Shortly after learning from Governale that his firm had undergone a change of name rather than a complete cessation of business, Melcher’s counsel subpoenaed the law firm’s billing records for the time when the amendment had supposedly been created. R-77-78 at ¶ 103. As then-Judicial Hearing Officer Beverly Cohen, who was handling discovery matters in the suit against Fradd, subsequently determined: - 19 - The bill from Wolf Block gives descriptions of other documents prepared during the invoice period. It does not show preparation of this amendment. R-78 at ¶ 104. In January 2006, Melcher relied on the Governale deposition and Wolf Block documents in support of a motion in the First Department involving document discovery. R-78 at ¶ 105. In opposition, Corwin again personally swore that the lawyer primarily responsible for Apollo Management’s affairs at the time of the amendment’s supposed drafting was the retired Vermont lawyer Beckwith, who Corwin again swore “has been unavailable to talk to us and has resisted all prior attempts to do so.” R-78 at ¶ 106, NYCC 3-1 at ¶¶ 70-71 (emphasis added). Corwin thus swore twice to two different courts in a matter of weeks that there was an unavailable out-of-state witness who could authenticate the purported amendment, but who had resisted all of Corwin’s efforts to communicate with him. Corwin coupled these statements with a demand for sanctions against Melcher and his counsel for suggesting otherwise. R-76-77 at ¶ 99, NYCC 3-1 at 61-62. On January 17, 2006, based on the Wolf Block time records and the Governale deposition, Melcher moved to strike Fradd’s Answer. R-79 at ¶ 108. In response to that motion, Corwin represented that the retired lawyer Beckwith had been served in Vermont with a subpoena and that his deposition was imminent. R- 79 at ¶¶ 109 & 111. On the basis of Corwin’s representation that the deposition - 20 - was imminent, Melcher withdrew his motion to strike Fradd’s Answer, without prejudice to renewal after Beckwith’s deposition. R-79 at ¶ 110. Melcher did not commence a Judiciary Law § 487 suit against Corwin at that time. Indeed, because Corwin had identified a witness – Beckwith – who would be able to confirm the amendment’s claimed authenticity, and because Corwin had pursued sanctions against Melcher and his counsel, Melcher needed to depose Beckwith before determining whether there was a good-faith basis for a Judiciary Law § 487 claim against Corwin. Had Beckwith actually authenticated the contract amendment, Melcher could not have filed this action. After representing on January 23, 2006 that Beckwith would soon appear for a deposition (and thus persuading Plaintiff to withdraw his motion to strike Fradd’s Answer), Corwin then obtained an ex parte stay of all depositions that lasted until March 2007. R-79-80 at ¶ 112-15, NYCC 3-2 at 153-54.4 As a result, it was not until June 11, 2007, that Beckwith was finally deposed. R-67-70 at ¶¶ 68-71. At his deposition, Beckwith testified to facts that were the direct opposite of Corwin’s repeated sworn representations regarding Beckwith’s availability. R-67-70 at ¶¶ 68-71. Beckwith testified that he had made himself 4 Corwin asserted in the courts below that Melcher should have tracked down and deposed Beckwith, and that the delay was actually Melcher’s fault. However, the stay of all depositions that Corwin obtained forbade this deposition from taking place. R-79-80 at ¶¶ 111-15. - 21 - completely available to Fradd, his former client. Beckwith testified that Fradd had called him in early February 2004, and had asked Beckwith to speak to Corwin about the case. R-68-69 at ¶ 70. Beckwith testified that, rather than resisting such a discussion, he had spoken with Corwin and an associate shortly thereafter. R-67- 69 at ¶¶ 68 & 70. A letter dated February 4, 2004 from Corwin to Beckwith was introduced by Corwin’s associate at the deposition. R-67 at ¶ 67. In that letter, Corwin confirmed having spoken to Beckwith on February 3, 2004 and thanked Beckwith for his willingness to review the purported contract amendment. R-67 at ¶ 67, NYCC 3-1 at ¶ 74. Beckwith testified that it was his practice to return phone calls from people calling about his former clients, but that he recalled no other attempts by Fradd and Corwin to reach him again until arrangements were first made for his deposition two years later in 2006. R-69-70 at ¶¶ 71-72. Beckwith further testified that the only document he remembered drafting for Apollo Management was something other than the claimed amendment, and that his time records – which showed no evidence of the amendment – were accurately prepared. R-71 at ¶ 76, 78 at ¶ 104, NYCC 3-1 at 102-03. Finally, Beckwith testified that during the relevant time, he had delegated all drafting of this client’s documents to Governale. R-71 at ¶ 76.5 5 Governale had previously testified that he had no knowledge of the supposed contract - 22 - At this point, it became apparent that Corwin knew the contract amendment was a back-dated fabrication at the time of the filing of the motion to dismiss. Both of the lawyers who might have been responsible for drafting the contract amendment testified that they had not done so and that their records contained no evidence of the amendment. And for the first time, the available evidence showed that Corwin had spoken to both of those lawyers in the weeks before moving to dismiss. On June 25, 2007, just two weeks after learning that Corwin had knowingly submitted a back-dated fabrication to the court and had then tried to conceal his deceit by lying about the availability of relevant files and witnesses, Plaintiff commenced this action pursuant to Judiciary Law § 487 against Corwin and his law firm. R-32. Later, the law firm that had supposedly gone out of existence found its back-up tapes, which accounted for all documents prepared for Apollo Management since its inception in 1995. R-86-87 at ¶ 141, NYCC 17-2 at 86 & 91-95. There was no trace of the purported amendment. R-87 at ¶ 141. D. The Trial and Appeals in Melcher’s Case Against Fradd The case against Fradd finally proceeded to jury trial in 2009. R-90 at ¶¶ 154-55. Just before opening statements were to begin, Corwin announced that amendment. R-60 at ¶ 40(E). - 23 - his client was no longer contending there was a written amendment, and would now assert the story that the contract amendment was merely “oral.” R-90-91 at ¶¶ 156-57. Because of this shift in approach, Melcher was not allowed to question Fradd about his previous sworn story. R-90-91 at ¶ 156. Even though the jury never heard about Fradd’s false sworn statements concerning the written amendment, it found that Fradd was lying about the purported “oral amendment” to the Apollo Management Operating Agreement. R-91-92 at ¶¶ 159-61. The against Fradd case proceeded to appeal on various issues, including the issue of whether Fradd should be sanctioned for submitting allegedly fabricated evidence to the motion court. See Melcher v. Apollo Medical Fund Management, L.L.C., 105 A.D.3d 15, 25 (1st Dep’t 2013). After this Court had reversed the erroneous dismissal of Melcher’s appeal, the First Department sustained the appeal and remanded for a hearing on the question of whether Fradd – not Corwin – had fabricated evidence. The court explained that it was “troubled that the allegations of fraud and deceit remain unaddressed” and concluded that “[w]e cannot countenance purposeful fabrication of evidence, if that is what occurred, and ignore it simply because the document was not introduced at trial.” Id. That hearing has not yet taken place. - 24 - PROCEDURAL HISTORY OF THE PRESENT ACTION The present action was commenced on June 25, 2007. R-32. In August 2007, Defendants filed an Answer raising a statute of limitations defense. R-34. Defendants did not immediately move to dismiss, presumably because the governing case-law at the time recognized a six-year statute of limitations for claims under Judiciary Law § 487. But in 2011, after the case had been pending for four years, Defendants moved to dismiss, relying on a change in the statute of limitations case-law that was supposedly based on this Court’s 2009 decision in Amalfitano v. Rosenberg (12 N.Y.3d 8, 14 (2009)). R-27. By Order entered November 9, 2011, the motion court (Kornreich, J.) ruled that First Department case-law applying a six-year statute of limitations to claims under Judiciary Law § 487 was no longer good law, and instead applied the three-year “liability created by statute” limitations period of CPLR 214(2), as Defendants had requested. R-16-17. The court based this conclusion on this Court’s decision in Amalfitano v. Rosenberg, which had traced the roots of Judiciary Law § 487 back to England’s First Statute of Westminster of 1275. R- 16-17. Even though Amalfitano had nothing to do with CPLR 214(2) or any other statute of limitations, the court used the historical description in Amalfitano to find that liability under Judiciary Law § 487 was a “liability created by statute” within the meaning of CPLR 214(2). R-17. - 25 - However, the motion court held that Defendants were estopped from asserting a statute of limitations defense. The motion court explained that Corwin had forestalled Melcher’s Judiciary Law § 487 claim by misleading Melcher about Apollo Management’s legal files, about whether Corwin had spoken to the lawyers responsible for those files, and about the availability for deposition of those lawyers. R-23-24. Accordingly, the court denied the motion. Defendants appealed to the First Department and, on January 17, 2013, that court issued a 3-2 decision in Defendants’ favor and dismissed Plaintiff’s Complaint. R-xi. The majority held that on the pleaded facts, Plaintiff was aware by March 20, 2004 that Corwin had “conceal[ed] from the court . . . information regarding the claimed incineration of the purported document upon which he based his clients’ motion to dismiss.” R-xv-xvi. This concealment, the majority decided, violated Judiciary Law § 487, and Plaintiff’s awareness of it meant that the statute of limitations on his claim had begun to run. R-xvi-xvii. Even though this concealment was incidental to the gravamen of Plaintiff’s claim – i.e., submitting to the court a contract amendment that Corwin knew to be a fabrication – the majority decided the case was time-barred. In so doing, the justices accepted Defendants’ argument that Amalfitano v. Rosenberg (12 N.Y.3d 8, 14 (2009)), a decision that in no way involved the applicable statute of limitations, changed the statute of limitations for - 26 - claims under Judiciary Law § 487 to three years. The majority rested this conclusion on a single phrase from Amalfitano: “Judiciary Law § 487 ‘is a unique statute of ancient origin in the criminal law of England.’” R-xiv. This analysis, the majority found, indicated that liability under Judiciary Law § 487 is a “liability created by statute” and therefore subject to the three-year statute of limitations of CPLR 214(2), rather than the six-year residual statute of limitations of CPLR 213(1). The majority did not respond to Plaintiff’s argument that liability for attorney deceit is not a “liability created by statute” because, in both England and New York, liability for attorney deceit existed at common law before it was codified by statute. The two-justice dissent reasoned that the statute of limitations on Melcher’s claim under Judiciary Law § 487 did not start running until Governale was deposed in December 2005, providing Melcher for the first time with actual evidence that Corwin had committed intentional deceit about the authenticity of the amendment. R-xix. Therefore, the dissent determined that it was not until that date, when all the facts necessary to assert a cause of action pursuant to Judiciary Law § 487 were known, that plaintiff’s cause of action accrued. R-xxi-xxii. Melcher appealed to this Court as of right based on the two-justice dissent on a question of law. R-vii. - 27 - ARGUMENT POINT I. THE SIX-YEAR LIMITATIONS PERIOD OF CPLR 213(1) APPLIES TO JUDICIARY LAW § 487 CLAIMS The court below erred in ruling that the three-year statute of limitations of CPLR 214(2) applies to claims under Judiciary Law § 487, rather than the six-year residual statute of limitations of CPLR 213(1). CPLR 214(2) prescribes a three-year statute of limitations for “an action to recover upon a liability, penalty or forfeiture created or imposed by statute.” As demonstrated below, liability under Judiciary Law § 487 is not a “liability created by statute.” CPLR 214(2) therefore does not apply to Judiciary Law § 487 claims, and the court should instead apply CPLR 213(1), which prescribes a six-year statute of limitations for “an action for which no limitation is specifically prescribed by law.” This Court has repeatedly held that, while CPLR 214(2) applies to any “liability . . . created . . . by statute,” it does not apply to liabilities that existed at common law and were later recognized or implemented by statute: CPLR 214(2) does not automatically apply to all causes of action in which a statutory remedy is sought, but only where liability would not exist but for a statute. Thus, CPLR 214(2) does not apply to liabilities existing at common law which have been recognized or implemented by statute. Gaidon v. Guardian Life Ins. Co., 96 N.Y.2d 201, 208 (2001)(internal quotation marks omitted); see also Aetna Life & Cas. Co. v. Nelson, 67 N.Y.2d 169, 174 (1986)(same); Hartnett v. New York City Transit Auth., 86 N.Y.2d 438, 444 - 28 - (1995). In Hartnett, the Court elaborated on this test, explaining that “[a] proper test of whether a particular liability is one that was created by statute is to determine whether the liability is a governmental statutory denouncement of a human action heretofore undenounced.” 86 N.Y.2d at 444 (internal quotation marks omitted). The liability at issue in this case is an attorney’s liability for deceit in the context of a pending lawsuit. As shown below, before the enactment of any statute was passed denouncing attorney deceit, the English common law already held that attorney deceit was a wrong for which a lawyer could be held liable. Moreover, even after the enactment of an English statute denouncing attorney deceit, liability for attorney deceit became part of New York’s common law before it was codified in any New York statute. The rule pronounced in Gaidon and Hartnett applies even in cases, like the present one, where a wrong was recognized at common law, but a statute later expanded the remedies available for the wrong in question. For example, in State v. Cortelle Corp., this Court ruled that CPLR 214(2) did not apply to the Attorney General’s suit against a corporation for fraudulent practices even though the Attorney-General’s standing to bring the suit, and the remedies sought by the suit, were established by a statute – i.e., Executive Law § 63(12). See 38 N.Y.2d 83, 85 (1975). The Court explained that the defendant’s liability was not created - 29 - by statute because it existed, although perhaps with different remedies, at common law: The statute may limit or broaden the remedy, even define its exercise and by whom, but it did not create or impose a liability, penalty or forfeiture in the sense of CPLR 214. Id. at 88. Although Judiciary Law § 487 currently prescribes the remedies available for attorney deceit, liability for attorney deceit existed at English common law before the enactment of Judiciary Law § 487 or any of its predecessor statutes. The present case is thus indistinguishable from Cortelle, and the three- year statute of limitations of CPLR 214(2) cannot apply to Plaintiff’s claim. Instead, the Court must apply CPLR 213(1)’s six-year statute of limitations, which applies to any “action for which no limitation is specifically prescribed by law.” A. Liability for Attorney Deceit Was Recognized At English Common Law Before It Was Codified in Any Statute Judiciary Law § 487 applies to any attorney who “[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party.” In Amalfitano, this Court described the history behind Judiciary Law § 487. The Court was considering whether an attempted but unsuccessful attorney deceit could provide the basis for a claim under Judiciary Law § 487. 12 N.Y.3d at 11. To answer that question, the Court emphasized that Judiciary Law § 487 was not a codification of common-law fraud, and explained - 30 - that Judiciary Law § 487 could be traced all the way back to the passage of the First Statute of Westminster in 1275. Id. at 12. The Court did not, however, address whether liability for attorney deceit, as distinguished from liability for fraud, existed at English common law before the First Statute of Westminster was enacted. The Court did not address that issue because it was not relevant to the outcome of Amalfitano. The present case, however, gives the Court an opportunity to delve further into the history of liability for attorney deceit to resolve this issue of first impression. And the available sources uniformly demonstrate that liability for attorney deceit existed at English common law, before the enactment of the First Statute of Westminster in 1275. In his SECOND INSTITUTES ON THE LAWS OF ENGLAND, Sir Edward Coke noted that “acts of deceit upon the court were a violation of the common law.” Sir Edward Coke, SECOND INSTITUTES ON THE LAWS OF ENGLAND, Ch. 29, p. 212-213. An attorney’s common-law liability for such deceit, Coke explained, was then codified in the First Statute of Westminster, which prohibited such deceit and enhanced the punishment for it. See id. (“[T]he Statute [of Westminster] was made in affirmance of the common law and only added greater punishment.”).6 Coke 6 This Court has repeatedly cited Coke’s Institutes as an authoritative source of the common law. See, e.g., Colavito v. New York Organ Donor Network, Inc., 8 N.Y.3d 43, 50-51 (2006); People v. Cunningham, 2 N.Y.3d 593, 598 at n.4 (2004); People v. Jelke, 308 N.Y. 56, 61 - 31 - thus confirms that liability for attorney deceit existed at common law, before the passage of the Statute of Westminster. In their landmark treatise on the history of English law, Pollock and Maitland also described a writ of deceit (“deceptio curiae”) that existed at common law during the reign of King John, which ended in 1216 and thus predated the enactment of the First Statute of Westminster in 1275. Their description of the writ highlighted that, at common law, an attorney who had committed deceit in a court proceeding had “to answer, not only the private person who he has defrauded, but also and in the first instance the king; he is charged with having in some fashion or another ‘seduced’ or deceived the court.” 2 Pollock & Maitland, THE HISTORY OF ENGLISH LAW (2nd ed. 1898), p. 535.7 The Jones BLACKSTONE’S COMMENTARIES ON THE LAWS OF ENGLAND likewise confirms that liability for attorney deceit existed at common law, independent of the enactment of the First Statute of Westminster. This treatise explained that the writ of deceit against an attorney was the very first of the common law writs for deceit: (1954); United Press Assocs. v. Valente, 308 N.Y. 71, 89 (1954). In the early 17th century, Coke served as Chief Justice of the King’s Bench and of the Court of Common Pleas. 7 This Court has often cited Pollock & Maitland as an authoritative source on the subject of the common law. See, e.g., Abrams v. Brady, 77 N.Y.2d 741 (1991); Morgenthau v. Altman, 58 N.Y.2d 1057, 1061 (1983); Babington v. Yellow Taxi Corp., 250 N.Y. 14 (1928)(Cardozo, J). - 32 - The first form of deceit which was recognized by the common law as a ground of legal liability was that which embodied a deception of the court and a consequent perversion of the ordinary course of legal proceeding. (See F. N. B. 95 E. et seq.; Reg. Brev. Orig. 112 et seq.) Of such a wrong the common law could take notice because it was an interference with the administration of royal justice. The wrong was viewed as an offense against the king as well as a wrong against the individual who happened to be damaged. Hence the wrongdoer had to pay a fine to the king as well as damages to the individual. Jones, BLACKSTONE’S COMMENTARIES ON THE LAWS OF ENGLAND, (1916) Vol. II pp. 1732-33, and note 30.8 These authorities uniformly show that a litigant damaged by attorney deceit already had a remedy for damages at common law, prior to and independent of the First Statute of Westminster. Liability for attorney deceit is thus a “liabilit[y] existing at common law which ha[s] been recognized or implemented by statute.” Gaidon, 96 N.Y.2d at 208. In other words, attorney deceit is not a “wrong . . . which would not exist but for the statute.” Hartnett, 86 N.Y.2d at 444. In the present case, the First Department ignored this argument, instead seizing upon this Court’s statement in Amalfitano that Judiciary Law § 487 “‘is a unique statute of ancient origin in the criminal law of England.’” R-xiv. The First Department relied almost entirely on this line from Amalfitano in concluding, 8 New York courts have repeatedly recognized the Jones BLACKSTONE’S COMMENTARIES ON THE LAWS OF ENGLAND as an authority on the common law of England. See, e.g., Carlisle v. County of Nassau, 64 A.D.2d 15, 20 (2d Dep’t 1978); People v. McNaspie, 261 A.D. 657, 662-63 (3d Dep’t 1941). - 33 - for the first time, that the three-year statute of limitations of CPLR 214(2) applied to actions for attorney deceit under Judiciary Law § 487.9 This conclusion was flawed for multiple reasons. First, the court was wrong to assume that a liability created by a British statute, which then became part of New York common law and was later codified by a New York statute, is a “liability created by statute” for the purposes of CPLR 214(2). There is no support for this incorrect assumption. Second, and more importantly, the First Department failed to appreciate that the Amalfitano decision addressed only the substantive differences between liability for attorney deceit and liability for common-law fraud. Amalfitano presented the question of whether an attempted but unsuccessful attorney deceit could provide the basis for a claim under Judiciary Law § 487. 12 N.Y.3d at 11. To answer that question, this Court emphasized that Judiciary Law § 487 was not a codification of common-law fraud. The Court explained that, because liability for attorney deceit had long existed independently of liability for common-law fraud, actions for attorney deceit did not require the showing of reliance that is required in actions for common-law fraud. Id. at 14. It was during 9 Prior to the decision below, the First Department applied the six-year fraud statute of limitations of CPLR 213(8) to actions for attorney deceit under Judiciary Law § 487. See New York City Transit Auth. v. Morris J. Eisen, PC, 203 A.D.2d 146 (1st Dep’t 1994); Guardian Life Ins. Co. v. Handel, 190 A.D.2d 57 (1st Dep’t 1993). In the decision below, the First Department repudiated that case law, based on its misinterpretation of Amalfitano. - 34 - this discussion that the Court noted that Judiciary Law § 487 is “not a codification of a common-law cause of action for fraud,” but rather “a unique statute of ancient origin in the criminal law of England.” Id. This Court reinforced that conclusion by stressing that liability for attorney deceit under Judiciary Law § 487 was meant “to enforce an attorney's special obligation to protect the integrity of the courts and foster their truth-seeking function.” Id. at 14. The Amalfitano Court did not – and had no reason to – address whether liability under Judiciary Law § 487 is a “liability created by statute” for the purposes of CPLR 214(2). The Amalfitano Court never stated that liability for attorney deceit, as distinguished from liability for fraud, did not exist at common law before the First Statute of Westminster. The Court simply traced liability for attorney deceit back to the First Statute of Westminster to distinguish that liability from liability for common-law fraud. In the present case, the First Department correctly recognized the distinction between attorney deceit and common-law fraud. But the court then jumped to the unwarranted conclusion that because these two causes of action are distinct, attorney deceit was not recognized at common law. This was error. Attorney deceit was indeed recognized at common law, before the enactment of the First Statute of Westminster. Under the well-settled law as articulated by this Court, the fact that liability for attorney deceit existed at - 35 - common law means that liability under Judiciary Law § 487 is not a “liability created by statute” for the purposes of CPLR 214(2). B. The Inclusion of Liability for Attorney Deceit in the Common Law of New York Even if the Court were to assume, as the First Department apparently did, that common-law liability for attorney deceit did not predate the enactment of the First Statute of Westminster, defendants’ motion to dismiss should still fail because liability for attorney deceit was part of the common law of New York before the enactment of any New York statutes against attorney deceit. When the Royal Colony of New York was established, the colonists brought with them both the common law and the statutory law of England. See Bogardus v. Trinity Church, 4 Paige Ch. 178, 198 (1833). Upon arrival in the Royal Colony of New York, both kinds of English law became part of New York’s common law. As the Court in Bogardus noted: The common law of the mother country as modified by positive enactments, together with the statute laws which are in force at the time of the emigration of the Colonists, become in fact the common law rather than the common and statute law of the Colony. The statute law of the mother country, therefore, when introduced into the Colony of New York, by common consent, because it was applicable to the colonists in their new situation, and not by legislative enactment, became a part of the common law of this Province. Id. at 198 (emphasis added); see also Beers v. Hotchkiss, 256 N.Y. 41, 54 (1931)(Cardozo, C.J., outlining the reasoning that “the statutes of the mother - 36 - country in existence at the settlement of a colony . . . are deemed to have entered into the fabric of the common law, and . . . became law in the colony unless unsuited to the new conditions”). The Second Department has likewise explained that, when English statutes were first accepted into the law of New York, they “became part of the common law” of New York. Russell v. Société Anonyme, 242 A.D. 801, 802 (2d Dep’t 1934)(citations omitted), aff’d on other grounds, 268 N.Y. 173 (1935). Thus, when liability for attorney deceit under the First Statute of Westminster was brought to the Royal Colony of New York, it became part of the common law of New York. Liability for attorney deceit remained part of the common law of the State of New York after the adoption of the State’s first constitution in 1777. Article XXXV of the Constitution of 1777 provided that such parts of the common law of England, and of the statute law of England and Great Britain, and of the acts of the legislature of the colony of New York, as together did form the law of said colony on the 19th day of April, in the year of our Lord 1775, shall be and continue the law of this State. But it was not until the late 1780s that a New York statute first provided for liability for attorney deceit. In 1786, the Legislature appointed two distinguished lawyers, Samuel Jones and Richard Varick (who became Attorney General shortly thereafter), to collect the colonial and British statutes, reduce them into proper form, and prepare them for enactment as statutes of the State of New York. Laws - 37 - of 1786, ch. 35; see also Harmon v. Alfred Peats Co., 216 A.D. 368 (1st Dep’t 1926)(reciting the text of the 1786 statute), rev’d on other grounds, 243 N.Y. 473 (1926). In 1787, the Legislature enacted the predecessor to Judiciary Law § 487 as part of the Jones and Varick compilation. L. 1787, ch. 35 (Comp. at 23); Amalfitano, 12 N.Y.3d at 12; see 1787 Journal of the Assembly of the State of New York at 26 (recording that the bill that became L. 1787, ch. 35 was presented to the Assembly by Jones, pursuant to L. 1786, ch. 35). Because Jones and Varick were simply codifying English statutes observed in the Colony of New York, and because those statutes were adopted into the common law of the State of New York, the enactment of this statute as part of the Jones and Varick compilation establishes that liability for attorney deceit existed at New York common law. As this Court explained in Van Rensselaer v. Hays, the Jones and Varick compilation simply “put[] into a more suitable form certain enactments which it was conceived had the force of law in the Colony, and which the Constitution had made a part of the law of the State.” 19 N.Y. 68, 74-75 (1859). The Jones and Varick compilation thus definitively answers, as to Judiciary Law § 487, the test discussed by Judge Cardozo in Beers about when an ancient English statute should be considered to have been part of New York common law. See 256 NY at 54. Judge Cardozo observed that such a statute, “like - 38 - the common law [of England] itself, became law in the colony unless unsuited to the new conditions.” Id. The Legislature, by enacting a New York statute that codified liability for attorney deceit under English law, confirmed that liability for attorney deceit was not “unsuited to the new conditions” of our State and thus had always been part of the common law of New York. Attorney deceit was thus a legally recognized liability before the enactment of the 1787 statute. The 1787 statute – i.e., the first New York statute to address liability for attorney deceit – therefore did not create liability for attorney deceit. It merely codified a liability that had already existed at New York common law. The First Department thus erred in assuming that, because liability for attorney deceit existed under an ancient English statute, it was a “liability created by statute” for the purposes of CPLR 214(2)’s three-year limitation period. C. It Is Irrelevant that New York Statutes Have Enhanced the Remedies Available for Attorney Deceit As this Court observed in Amalfitano, the 1787 New York statute announced a remedy, not available at common law, of treble damages for attorney deceit. 12 N.Y.3d at 12. Even though the 1787 statute may have established a new remedy for attorney deceit, it did not create liability for attorney deceit for purposes of CPLR 214(2). This Court’s decision in Cortelle is instructive. There, the Attorney General sued a corporation under Executive Law § 63(12), which had “provided - 39 - standing in the Attorney-General to seek redress and additional remedies” for the corporation’s wrongs. See 38 N.Y.2d at 85. This Court unanimously held that the corporation’s liability to the Attorney General was not a “liability created by statute” and therefore was not subject to the statute of limitations of CPLR 214(2): The statute may limit or broaden the remedy, even define its exercise and by whom, but it did not create or impose a liability, penalty or forfeiture in the sense of CPLR 214. Id. at 88; see also Orr v. Kinderhill Corp., 991 F.2d 31, 34 (2d Cir. 1993)(“That the statute merely enlarges the common-law scheme of liability or grants additional remedies is insufficient to bring it within CPLR 214(2).”). Thus, under the well settled law of this Court, statutes that simply enhance remedies for previously denounced wrongs do not result in “liabilities created by statute” within the meaning of CPLR 214(2). Liability under Judiciary Law § 487 is therefore not “liability created by statute,” and this Court must apply CPLR 213(1)’s six-year statute of limitations to the present action. Accordingly, the decision of the court below should be reversed. POINT II. DEFENDANTS ARE EQUITABLY ESTOPPED FROM ASSERTING THEIR STATUTE OF LIMITATIONS DEFENSE Even if the Court chooses to apply the three-year statute of limitations of CPLR 214(2) to this case, Defendants should be equitably estopped from raising that defense. As the motion court ruled, Plaintiff’s Complaint specifically alleges that Corwin took numerous affirmative measures to prevent Plaintiff from - 40 - discovering that he had knowingly misrepresented the authenticity of a document that was a back-dated fabrication. By covering up this misrepresentation, Corwin forestalled Melcher’s filing of a claim under Judiciary Law § 487. Corwin’s stature as an established member of the bar made his tactics that much more effective: before Melcher could accuse an attorney of Corwin’s standing of knowingly deceiving the court, Melcher needed compelling evidence to show not only that Fradd had forged the purported amendment, but also that Corwin knew it was a forgery at the time of the motion to dismiss. Added to this were Corwin’s repeated threats of sanctions which created a situation where it was particularly important for Melcher to have firm evidence of deceit before filing a Judiciary Law § 487 claim. It is well settled that a defendant may be equitably estopped from pleading the statute of limitations where the plaintiff was induced by fraud, misrepresentation, or deception to refrain from filing a timely action. See Simcuski v. Saeli, 44 N.Y.2d 442, 449 (1978)(physician who deceived plaintiff about her condition to hide malpractice); General Stencils, Inc. v. Chiappa, 18 N.Y.2d 125 (1966)(bookkeeper who fraudulently concealed defalcations). This Court in General Stencils explained that the application of equitable estoppel is rooted in the principle that a wrongdoer should not be able to take refuge behind the shield of his own wrong. Id. at 127-28. This rule has been applied in a wide variety of - 41 - cases. See, e.g., Medco Plumbing, Inc. v. Sparrow Constr. Corp., 22 A.D.3d 647 (2d Dep’t 2005)(partial payments, issuance of a note and other actions encouraged plaintiff to refrain from commencing an action to enforce a trust); Abraham v. Kosinski, 305 A.D.2d 1091 (4th Dep’t 2003)(defendant withheld medical records until after the statute of limitations had run); Kilstein v. Agudath Council of Greater New York, Inc., 133 A.D.2d 809 (2d Dep’t 1987)(assertion of baseless reargument motion tolled one-year limitations period for confirming arbitration award). Equitable estoppel applies when a Defendant has committed an act, beyond mere failure to disclose wrongdoing, aimed at concealing the tort that is the subject of the claim. See Corsello v. Verizon New York, Inc., 18 N.Y.3d 777, 789 (2012). Because the Court is reviewing this case at the motion to dismiss stage, it must accept the allegations in the Complaint and supporting affidavits as true. Simcuski, 44 N.Y.2d at 446-47. Moreover, whether equitable estoppel applies is generally a question of fact. See Giannetto v. Knee, 82 A.D.3d 1043, 1045 (2d Dep’t 2011)(explaining that the plaintiff’s allegations “raised a triable issue of fact as to whether” the defendant dentist concealed his malpractice by misrepresenting the plaintiff’s condition); Vigliotti v. North Shore Univ. Hosp., 24 A.D.3d 752, 755 (2d Dep’t 2005)(“Whether or not an estoppel should be found is a question of fact.”). - 42 - The First Department erred in overturning the motion court’s decision to apply equitable estoppel. The First Department reached the erroneous conclusion that Plaintiff could have discovered Corwin’s deception more than three years before filing his claim under Judiciary Law § 487. The court said that, as early as March 20, 2004, Melcher knew that Corwin had not been candid with the motion court about the condition of the contract amendment. R-xvii. But this position completely failed to take into account when Melcher learned the crucial fact underpinning his claim – i.e., that Corwin knew the amendment was a fabrication at the time he submitted it to the court. The First Department further erred by melding Corwin’s deceitful act regarding the motion to dismiss together with his acts of concealment that delayed Plaintiff’s filing of this action. As explained below, Corwin’s crucial act of deceit – knowingly submitting a fabricated contract amendment to the motion court – is entirely distinct from the measures he took to cover up that deceit. Fundamentally, these are factual issues that should not have been resolved on a pleadings motion. A. Corwin’s Critical Act of Deceit Corwin’s critical act of deceit occurred on February 17, 2004, when he moved to dismiss the claim against Fradd based on the contract amendment that, as alleged in Melcher’s Complaint, Corwin knew to be a back-dated fabrication. R-60-61 at ¶¶ 41-43. Before making this motion, Corwin had spoken - 43 - to both of the lawyers – Governale and Beckwith – whom he identified in the underlying litigation as being familiar with the purported contract amendment. R- 55 at ¶ 25, 58-60 at ¶¶ 39-42, 67-69 at ¶¶ 67-70. According to Melcher’s Complaint, those lawyers (whose firm’s approval would have been necessary to adopt the purported amendment) told Corwin that they had no recollection of such an amendment and their firm’s files contained no record of the amendment. R-55 at ¶ 25, 58-60 at ¶¶ 39-42, 67-69 at ¶¶ 67-70. Corwin nonetheless submitted the contract amendment to the motion court. B. Corwin’s Cover-Up Before the Governale Deposition Corwin then undertook a prolonged, multi-faceted effort to cover up his deceit. In a March 12, 2004 Fradd affidavit submitted by Corwin, Fradd swore that Beckwith – the lawyer who had “prepared and handled the documents regarding Apollo Management” – had retired, was unavailable, and his law firm had gone out of existence. R-66 at ¶ 62. In May 2004, Corwin submitted another Fradd affidavit reiterating that the documentation of the work performed by Apollo Management’s law firm was unavailable because the firm no longer existed and because Beckwith was supposedly unavailable and outside the court’s jurisdiction. Fradd also claimed that he and his attorneys had tried to contact Beckwith, but to no avail. R-74 at ¶ 90. These statements were false; and as alleged in Melcher’s Complaint, Corwin knew them to be false. But Corwin made these misstatements - 44 - to conceal the fact that he had knowingly submitted a fabricated document to the motion court. Because of Corwin’s misstatements, it was not until Governale’s deposition in December 2005 that Plaintiff had any evidence to suggest that Corwin had knowingly submitted a back-dated fabrication to the motion court. Governale testified that he had been in continuous custody of his firm’s client files for Apollo Management, and that the files showed no trace of the supposed amendment. R-59-60 at ¶ 40(A-D). And when Melcher subpoenaed Wolf Block for its Apollo Management billing records, the firm’s production confirmed that the firm had no record reflecting the preparation of the purported amendment. R- 77-78 at ¶¶ 103-04. But most importantly, Wolf Block also produced a privilege log showing that Governale had been in regular contact with Corwin in the weeks before he filed the motion to dismiss based on the claimed amendment. R-58-59 at ¶ 39, NYCC 3-1 at 161-63. Due to Corwin’s cover-up, the earliest possible date that the statute of limitations for Melcher’s claim can begin running is the date of the December 2005 Governale deposition. Indeed, the motion court decided to toll the statute of limitations until that date, noting that this was when Melcher first learned that the Apollo Management legal files were intact and did not contain any evidence of the purported amendment. R-22. - 45 - C. Corwin’s Cover-Up Between the Governale Deposition and the Beckwith Deposition Corwin nonetheless continued his cover-up on December 28, 2005, when he submitted his own affidavit to the motion court. In that affidavit, Corwin swore that Beckwith was the lawyer primarily responsible for the relevant documents and that Beckwith “has unfortunately been unavailable to talk and has resisted all prior attempts to do so.” R-77 at ¶ 100.10 The affidavit also demanded sanctions against Melcher and his counsel for raising concerns about whether Corwin was being truthful with the court. R-76-77 at ¶ 99. Around the same time, Melcher moved to strike Fradd’s Answer. Corwin, however, convinced Melcher’s counsel to withdraw this motion by subpoenaing Beckwith for a deposition. R-79 at ¶¶ 108-10. But after Melcher withdrew the motion, Corwin continued to thwart discovery by securing an ex parte stay of all depositions in the case which lasted until March 2007. R-79-80 at ¶¶ 111-15, NYCC 3-2 at 153-54. When Beckwith was finally deposed on June 11, 2007, his testimony provided evidence suggesting that Corwin had knowingly submitted a fabricated document to the motion court. Beckwith testified that he had not drafted the contract amendment. R-71 at ¶ 76. He also testified that he had communicated 10 Two weeks later on January 13, 2006, Corwin made the same representations in an affidavit filed with the First Department. R-78 at ¶ 106. - 46 - with both Fradd and Corwin about the purported amendment back in 2004. R-67- 69 at ¶¶ 66-70. And Corwin’s associate introduced as an exhibit the February 4, 2004 letter which indicated that, by that date, Corwin had already spoken to Beckwith about the claimed amendment’s authenticity. R-67 at ¶ 67. Corwin’s misrepresentations and maneuvers thus prevented Melcher from discovering his deceit until the Beckwith deposition in June 2007. If, as Corwin had represented, Beckwith could testify as to the authenticity of the contract amendment, Melcher would have had little more than conjecture to support a Judiciary Law § 487 claim. Melcher would not have been able to establish that the amendment was a recent fabrication, and he would have been even less able to establish that Corwin knew it was fabricated when he filed it with the motion court. Corwin’s misrepresentations about Beckwith thus delayed the filing of this Judiciary Law § 487 suit. On June 25, 2007, two weeks after the Beckwith deposition, Melcher filed the present action for attorney deceit under Judiciary Law § 487. R-32. D. The Factual Allegations Support Equitable Estoppel The facts alleged in Melcher’s Complaint, which for purposes of the dismissal motion must be accepted as true, thoroughly establish the factual basis to equitably estop Defendants from asserting their statute of limitations defense. As in Simcuski and the long line of cases applying equitable estoppel, Corwin took - 47 - numerous affirmative steps to prevent Melcher from uncovering his tortious acts. Because of Corwin’s misrepresentations, Melcher did not have any evidence of Corwin’s knowing deceit until the December 2005 Governale deposition. And because of Corwin’s misstatements, threats, and delay tactics following the Governale deposition, Melcher was forced to wait until the June 2007 Beckwith deposition to develop a good-faith basis for a claim that an established member of the bar had intentionally deceived the court. This Court should not allow Corwin to successfully assert a statute of limitations defense and thereby “take advantage of his own wrong.” General Stencils, 18 N.Y.2d at 127-28. Rather, Defendants should be estopped from relying on the statute of limitations until the date of either the Governale deposition (December 7, 2005) or the Beckwith deposition (June 11, 2007). Either date would render Melcher’s claim, which was filed on June 25, 2007, timely under the three-year statute of limitations that Defendants advocate. Melcher’s Complaint alleges detailed facts which establish all of the necessary elements for an estoppel as the motion court expressly ruled. At the very least, the question of estoppel here presents a factual issue that needs to be resolved by a trier of fact. Accordingly, the order of the Appellate Division should be reversed and Melcher’s Complaint reinstated. - 48 - POINT III. EVEN UNDER A THREE-YEAR STATUTE OF LIMITATIONS, THIS ACTION IS TIMELY BECAUSE PLAINTIFF’S CLAIM DID NOT ACCRUE UNTIL PLAINTIFF KNEW OF CORWIN’S DECEIT Even if the Court decides to apply CPLR 214(2)’s three-year statute of limitations, this action is still timely because Melcher’s claims did not accrue until he knew of Corwin’s deceit. As the two dissenting justices below recognized, Melcher’s cause of action under Judiciary Law § 487 did not accrue until “all the facts necessary to [that cause of action] were known.” R-xxii. Under this approach to accrual, Melcher’s cause of action under Judiciary Law § 487 did not accrue until June 11, 2007 (the date of the Beckwith deposition), or at the earliest, December 7, 2005 (the date of the Governale deposition). This Court long ago recognized that: “Where there is knowledge of facts sufficient to suggest to a person of ordinary intelligence the probability that he has been defrauded, a duty of inquiry arises and may thus start the running of the statute.” Sielcken-Schwarz v. American Factors, Ltd., 265 N.Y. 239, 245-46 (1934)(internal quotation marks omitted). Defendants themselves acknowledged the relevance of this standard to this case in their brief before the First Department, which recited: “‘[a]ll that is needed to commence the running of the statute is “knowledge of facts sufficient to suggest to a person of ordinary intelligence the probability that he has been defrauded.”’” Defs. Br. at 28 (quoting Renz v. - 49 - Beeman, 589 F.2d 735, 751 (2d Cir. 1978)(quoting Sielcken-Schwarz, 265 N.Y. at 246)). The policy justifications underlying this approach to statute of limitations accrual apply with equal force to attorney-deceit claims under Judiciary Law § 487. By their nature, attorney-deceit claims pose extraordinary problems of detection. Any attorney who intentionally deceives a court will naturally take care not to openly disclose the deceit. And in some cases, an attorney who attempts such misconduct will take affirmative measures to conceal it. The logic behind applying a discovery rule in fraud cases thus applies equally to cases of attorney deceit. In Abbate v. Abbate, the Second Department explained that the discovery rule applies to fraud cases “because, in the absence of such a rule, a defendant who has been guilty of actual fraud might prevent the plaintiff from recovering by continuing the deception until the statute had run.” 82 A.D.2d 368, 387 (2d Dep’t 1981). Precisely the same logic applies to attorney-deceit cases, especially ones – like the present one – where the defendant successfully covered up his own deceit. This approach to accrual also advances practical policy benefits that are unique to attorney-deceit claims. If parties with potential Judiciary Law § 487 claims had to worry about a statute of limitations that began to run as soon as there was the slightest suggestion of deceit, then those parties would feel tremendous pressure to file suit even before developing sound evidence of the deceit. The - 50 - number of deceit suits would increase, and the number of sanctions motions for speculative claims would also increase. Moreover, the existence of those deceit suits would complicate the underlying proceedings in which possible deceit might have occurred. In contrast, a discovery accrual would allow potential victims of attorney deceit time to assure themselves of the viability of their claims before bringing them and would not force them to level charges against opposing counsel precipitously. The Court should therefore adopt this approach to the accrual of claims under Judiciary Law § 487. See Flanagan v. Mount Eden Gen. Hosp., 24 N.Y.2d 427, 432 (1969)(adopting, on a common-law basis, a discovery accrual for certain types of claims for medical malpractice). Before the First Department, Defendants argued that Melcher believed, prior to June 25, 2004 (the date three years before the filing of the present suit), that the amendment “was in reality a back-dated forgery.” Defs. Br. at 26. In fact, as of June 25, 2004, Melcher did not have evidence that Corwin – as opposed to his client – knew the amendment was a fabrication when he submitted it to the motion court. It was only at the Governale deposition (and later the Beckwith deposition) that Melcher first learned of such evidence. In concluding that Melcher’s claim did not accrue until the Governale deposition on December 7, 2005, the dissent below correctly distinguished - 51 - between Melcher’s awareness of the probability that Corwin’s client had fabricated the claimed amendment, and Melcher’s awareness of the probability that Corwin himself knew the “amendment” was a fraud when he submitted it to the motion court. R-xxi-xxii. The three-justice majority in the First Department implicitly adopted the same legal standard for accrual of lawyer deceit claims as the dissent, but applied that standard incorrectly. R-xiv. The majority erroneously focused on Corwin’s act of passing off a pre-burning photocopy of the “amendment” to the motion court. R-xvii. But that act, by itself, did not show that Corwin knew the amendment to be a back-dated fabrication. The majority thus erred in finding that Melcher’s claim against Corwin accrued as early as March 20, 2004. For this reason also, the dismissal of Melcher’s Complaint should be reversed. POINT IV. THE RETROACTIVE SHORTENING OF THE STATUTE OF LIMITATIONS FOR JUDICIARY LAW § 487 CLAIMS VIOLATES MELCHER’S DUE-PROCESS RIGHTS When Melcher first brought this claim, well-established case-law in the First Department held that a six-year statute of limitations applied to claims under Judiciary Law § 487. See, e.g., Guardian Life Ins. Co. v. Handel, 190 A.D.2d 57, 62-63 (1st Dep’t 1993). Indeed, the First Department had specifically rejected the argument that the three-year statute of limitations for a liability “created by statute” applied to Judiciary Law § 487 claims. New York City Transit - 52 - Auth. v. Morris J. Eisen, P.C., 203 A.D.2d 146, 146 (1st Dep’t 1994). It was only after this Court’s 2009 decision in Amalfitano that lower courts, misunderstanding Amalfitano’s discussion of the history of Judiciary Law § 487, began to treat Judiciary Law § 487 liability as a “liability created by statute” for purposes of CPLR 214(2). See, e.g., Connolly v. Napoli Kaiser Bern & Assoc., LLP, 2009 N.Y. Misc. LEXIS 6302, *9-10 n. 5 (N.Y. Sup. Ct. July 16, 2009), aff’d on other grounds, 81 A.D.3d 550 (1st Dep’t 2011). In light of the prevailing case-law as of 2007, when this case was commenced, a plaintiff considering filing a Judiciary Law § 487 claim in 2007 had every reason to believe that the governing statute of limitations was six years. By applying a three-year statute of limitations to Melcher’s claim, the courts below retroactively shortened the statute of limitations for his claim. Should this Court conclude that a three-year statute of limitations applies to Judiciary Law § 487 claims, it should only do so prospectively. Any other result would deny Melcher his due-process rights. In Gurnee v. Aetna Life & Casualty Co., this Court adopted the United States Supreme Court’s test for determining when a judicial ruling should not be applied retroactively: First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied . . . or by deciding an issue - 53 - of first impression whose resolution was not clearly foreshadowed. Second, the prior history of the rule at issue and the impact of retroactive application upon its purpose and effect should be considered. Finally, the court should take into account any inequity that would be created by retroactive application. 55 N.Y.2d 184, 192 (1982)(internal citation and quotation marks omitted). These three factors clearly indicate that a decision adopting a three-year statute of limitations should not be applied retroactively to this case. First, such a decision would represent a clear break with past precedent regarding the statute of limitations for Judiciary Law § 487 claims. As of 2007, Guardian Life and New York City Transit Authority v. Morris J. Eisen clearly prescribed a six-year statute of limitations for Judiciary Law § 487 claims. Second, the retroactive application of a three-year statute of limitations would needlessly upset the settled expectations of plaintiffs who were considering bringing Judiciary Law § 487 claims but would not further the purpose of Judiciary Law § 487 in any meaningful way. As this Court explained in Amalfitano, the purpose of Judiciary Law § 487 is “to enforce an attorney’s special obligation to protect the integrity of the courts and foster their truth-seeking function.” 12 N.Y.3d at 14. A sudden and retroactive shortening of the statute of limitations for Judiciary Law § 487 claims would in no way further that statutory purpose. Indeed, it would impede that purpose by allowing attorneys who have committed deceit to escape liability to their victims. - 54 - Third, the retroactive application of a three-year statute of limitations would work an unquestionable inequity. Victims of attorney deceit who, in reasonable reliance on the governing law at the time, believed they had six years to file a Judiciary Law § 487 claim would suddenly be deprived of their claims. See Brothers v. Florence, 95 N.Y.2d 290, 300-01 (2000)(recognizing, in the context of a statutory shortening of the statute of limitations, that procedural due process under the Fourteenth Amendment of the United States Constitution requires, at a minimum, a “reasonable time . . . for the commencement of an action” before the new statute of limitations takes effect). And as described in Points II and III above, Melcher did not stand idly by knowing he had a claim under Judiciary Law § 487. Rather, he dutifully investigated the circumstances surrounding the purported contract amendment; he was consistently thwarted by Corwin; and he brought this claim within weeks of uncovering proof of attorney deceit by Corwin. Meanwhile, retroactively applying a three-year limitations period will immunize attorneys who have committed deceit. The First Department thus erred in retroactively applying its newly announced three-year statute of limitations. Accordingly, if this Court were to adopt that limitations period also, it should not apply it retroactively. - 55 - CONCLUSION For all the foregoing reasons, Melcher respectfully requests that this Court reverse the First Department’s decision and order granting Defendants’ motion to dismiss and remand this case to Supreme Court for further proceedings. - 56 - Albany, New York Dated: July 1, 2013 Respectfully submitted, HINMAN STRAUB PC Counsel for Plaintiff-Appellant James L. Melcher By: /s/ James T. Potter James T. Potter 121 State Street Albany New York 12207 (518) 436-0751 jpotter@hinmanstraub.com -and- JEFFREY A. JANNUZZO, ESQ. 10 East 40th Street, 35th Floor New York, New York 10016-0301 (212) 932-8524 jeff@jannuzzo.com