Amalfitano v. Rosenberg, No. 06-2364 (2d Cir. 2009)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on July 15, 2008.
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06-2364-cv Amalfitano v. Rosenberg 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2007 4 (Argued: September 6, 2007 Decided: July 14, 2009) 5 Docket No. 06-2364-cv 6 ------------------------------------- 7 VIVIA AMALFITANO AND GERARD AMALFITANO, 8 Plaintiffs-Appellees, 9 - v. - 10 ARMAND ROSENBERG, 11 Defendant-Appellant. 12 ------------------------------------- 13 14 Before: WALKER, CALABRESI, and SACK, Circuit Judges. Appeal from a judgment of the United States District 15 Court for the Southern District of New York (Naomi Reice 16 Buchwald, Judge). 17 Court of Appeals, see Amalfitano v. Rosenberg, 533 F.3d 117, 126 18 (2d Cir. 2008), which it has now answered, see Amalfitano v. 19 Rosenberg, 12 N.Y.3d 8, 903 N.E.2d 265, 874 N.Y.S.2d 868 (2009). 20 In light of those answers, the judgment is: 21 We certified two questions to the New York Affirmed. 22 23 24 WILLIAM J. DAVIS, Scheichet & Davis, P.C., New York, NY, for DefendantAppellant. 25 26 RICHARD E. HAHN, Llorca & Hahn LLP, New York, NY, for Plaintiffs-Appellees. 1 2 PER CURIAM: We return to this appeal from a judgment of the United 3 States District Court for the Southern District of New York 4 (Naomi Reice Buchwald, Judge). 5 familiarity with the facts and procedural history of this case, 6 and the issues presented on appeal. 7 8 We assume the parties' continued On July 15, 2008, we certified two questions to the New York State Court of Appeals: 9 10 11 12 (1) Can a successful lawsuit for treble damages brought under N.Y. Jud. Law ยง 487 be based on an attempted but unsuccessful deceit upon a court by the defendant? 13 14 15 16 17 18 19 20 (2) In the course of such a lawsuit, may the costs of defending litigation instituted by a complaint containing a material misrepresentation of fact be treated as the proximate result of the misrepresentation if the court upon which the deceit was attempted at no time acted on the belief that the misrepresentation was true? 21 Amalfitano v. Rosenberg, 533 F.3d 117, 126 (2d Cir. 2008). 22 noted that we "would almost surely affirm the district court's 23 judgment in its entirety if the New York Court of Appeals 24 determines that section 487 permits the award of treble damages 25 for an attempted deceit of the New York courts." 26 of Appeals has now answered both certified questions in the 27 affirmative, see Amalfitano v. Rosenberg, 12 N.Y.3d 8, 903 N.E.2d 28 265, 874 N.Y.S.2d 868 (2009), and, in light of that decision, we 29 do indeed affirm. 30 31 Id. We The Court "The district court . . . assessed [a base calculation of] damages in the amount of $89,415.18, comprising the 2 1 Amalfitanos' legal fees from the inception of the Costalas 2 litigation to the judgment." 3 noted in our previous opinion, such an award assumes that the 4 defendant committed actionable fraud for section 487 purposes 5 from the commencement of the litigation -- i.e., from his filing 6 of the complaint -- at which time the defendant "was [merely] 7 attempting (but failing) to deceive Justice Gammerman, [and] had 8 not yet successfully deceived the Appellate Division into 9 reversing the default judgment." Amalfitano, 533 F.3d at 122. See id. at 125. As we It also 10 assumes that the fraud was a proximate cause of the defendants' 11 incurring legal fees to defend against the entire litigation, 12 even the period of the litigation before the fraud was 13 successful. 14 See id. In light of the Court of Appeals' answer, we conclude 15 that both assumptions were correct. That the defendant's 16 misrepresentation in the complaint did not actually deceive the 17 state courts until later in the litigation does not matter, for 18 "[t]he operative language" of section 487 "focuses on the 19 attorney's intent to deceive, not the deceit's success." 20 Amalfitano, 12 N.Y.3d at 14, 903 N.E.2d at 268, 874 N.Y.S.2d at 21 871. 22 finding that his deceit was intentional. 23 F.3d at 124. 24 complaint was predicated upon a misrepresentation of fact, see 25 id., and because the plaintiffs were "obligated to defend or 26 default" in response to that complaint "and necessarily incur[] The defendant does not challenge the district court's See Amalfitano, 533 Moreover, because the central claim of the 3 1 legal expenses" as a consequence, those expenses "may be treated 2 as the proximate result of the misrepresentation," Amalfitano, 12 3 N.Y.3d at 15, 903 N.E.2d at 269, 874 N.Y.S.2d at 872. 4 conclude that the district court did not err in treating them as 5 such. 6 7 We For the foregoing reasons, the judgment of the district court is AFFIRMED. 4
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