Tacopina v. Kerik et al

Filing 79

MEMORANDUM OPINION AND ORDER re: 65 MOTION to Dismiss Counterclaims and Third-Party Complaint, filed by Joseph Tacopina, Judd Burstein. For the foregoing reasons, Tacopina and Burstein's motion to dismiss Kerik's counterc laims is granted and Burstein is dismissed as a third-party defendant. This Memorandum Opinion and Order resolves Docket Entry Number 65. The final pretrial conference in this matter remains scheduled for Friday, October 21, 2016, at 10:30 a.m. The p arties must consult and make their submissions in advance of the conference as required by the Pre-trial Scheduling Order. (Docket Entry No. 49.) This case remains referred to Magistrate Judge Frank Maas for general pretrial management. (As further set forth in this Order.) Judd Burstein and Judd Burstein terminated. (Signed by Judge Laura Taylor Swain on 3/31/2016) (spo)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------------x
JOSEPH TACOPINA,
Plaintiff/Counterclaim-Defendant,
-v-

No. 14CV749-LTS-FM

BERNARD KERIK,
Defendant/Counterclaim-Plaintiff.
------------------------------------------------------------x
BERNARD KERIK,
Third-Party Plaintiff,
-vJUDD BURSTEIN,
Third-Party Defendant.
------------------------------------------------------------x
MEMORANDUM OPINION AND ORDER
Plaintiff/Counterclaim-Defendant Joseph Tacopina (“Tacopina”) and Third-Party
Defendant Judd Burstein (“Burstein”) bring the instant motion seeking dismissal, pursuant to
Federal Rule of Civil Procedure 12(b)(6), of Defendant/Counter-Claim Plaintiff/Third-Party
Plaintiff Bernard Kerik’s (“Kerik”) counterclaims and third-party complaint in this action. On
February 5, 2014, Tacopina filed the initial complaint in this case, asserting a claim of
defamation against Kerik.1 (Docket Entry No. 1.) Tacopina filed an amended complaint on

1

The initial complaint also asserted claims against The New York Daily News and
two reporters, which were ultimately withdrawn. (See Docket Entry No. 1.)

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March 16, 2015. (Docket Entry No. 53.) On April 6, 2015, Kerik filed an answer and
counterclaims against Tacopina and Tacopina’s attorney, Judd Burstein, asserting a claim of
defamation as well as a claim that Tacopina and Burstein violated New York Judiciary Law
§ 487. (Docket Entry No. 62). On April 16, 2015, Tacopina and Burstein moved to dismiss
Kerik’s counterclaims (Docket Entry No. 65), and Kerik thereafter filed amended counterclaims
(the “Amended Counterclaims” or “Am. CC”) on April 29, 2015.2 (Docket Entry No. 69.)
The Court has jurisdiction of this action pursuant to 28 U.S.C. § 1332. The Court
has carefully considered the parties’ submissions and, for the reasons stated below, Tacopina and
Burstein’s motion is granted in its entirety.

BACKGROUND3
Bernard Kerik served as New York City’s 40th Police Commissioner, rising to
national prominence following the terrorist attacks of September 11, 2001. (Am. CC ¶ 5.)
Following his retirement from the NYPD, he was appointed as the Interim Minister of Interior of
Iraq by President George W. Bush. (Id. ¶ 6.) In this position, Kerik was tasked with rebuilding
the Iraqi Interior Ministry, which oversaw the country’s national police and intelligence services.
(Id.) On December 3, 2004, Kerik was nominated by President Bush to be the United States
Secretary of Homeland Security. (Id. ¶ 7.) In preparing to be vetted for the position, Kerik
2

Although Tacopina and Burstein interposed their motion practice prior to Kerik
filing his Amended Counterclaims, the parties have stipulated that Tacopina and
Burstein’s motion to dismiss should be deemed a motion to dismiss Kerik’s
Amended Counterclaims. (See Docket Entry No. 70.) The Amended
Counterclaims also assert claims of defamation and violation of New York Judiciary
Law § 487.

3

The facts stated herein are drawn from the Amended Counterclaims and are
assumed to be true for the purposes of this motion practice.

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discovered that a woman whom he had previously employed as a nanny was likely in the country
illegally. (Am. CC ¶ 8.) Out of concern that this information could prompt a political firestorm,
because his duties as Secretary of Homeland Security would include oversight of U.S. Customs
and Immigration, Kerik withdrew his name from consideration for the position. (Id.)
Kerik thereafter came under investigation by the New York City Department of
Investigations and the Bronx County District Attorney’s Office. (Id. ¶ 9.) Kerik was
represented by Tacopina in these investigations as well as in the state court proceedings that
followed (the “Bronx Case”). (Id.) As part of the Bronx Case, investigators examined
renovations that Kerik had made to his apartment in Riverdale, and looked into whether Kerik
had accepted those renovations as part of an improper quid pro quo deal. (Id. ¶ 10.) Following
Tacopina’s advice, Kerik pleaded guilty to two misdemeanor ethics violations – failing to
document a personal loan on a city financial disclosure and accepting a gift of renovations. (Id.
¶ 11.) He paid $221,000 in fines and penalties. (Id.) Kerik alleges that Tacopina failed to
properly advise him of the potential consequences of his plea, and that Tacopina misrepresented
the tax implications, despite Kerik’s specific questions and concerns. (Id.)
Shortly after the conclusion of the Bronx Case, Kerik came under federal
investigation for failing to pay taxes on the renovations. (Id. ¶ 12.) On March 12, 2007, federal
prosecutors subpoenaed Tacopina’s financial records, and Tacopina himself came under
investigation. (Id. ¶ 13.) Tacopina was thus conflicted out of further representation of Kerik.
(Id.) Tacopina thereafter became a cooperating witness against Kerik, engaging in multiple
proffer sessions in which he provided the U.S. Attorney with information to assist in the
prosecution of Kerik. (Id. ¶ 14.) Ultimately, Kerik pleaded guilty to: failing to list his
daughter’s nanny or the renovations on his tax filings; failing to disclose on his mortgage
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application that he had borrowed money from a friend to make a down payment on an apartment;
and failing to inform White House officials of these issues as he was being vetted for the
Homeland Security position. (Am. CC ¶ 15.) He was sentenced to four years in federal prison.
(Id.)
On December 18, 2013, Kerik filed a disciplinary complaint (the “Disciplinary
Complaint”) against Tacopina, accusing Tacopina of betraying him by, inter alia, cooperating
with federal prosecutors and failing to properly advise him with respect to the Bronx Case. (Id.
¶ 18.) Kerik provided a copy of the Disciplinary Complaint to reporters from the New York
Daily News, who proceeded to publish an article about the Disciplinary Complaint. (Id. ¶ 19.)
In response, Tacopina hired Judd Burstein to represent him (id. ¶ 20), and Burstein proceeded to
file a complaint against Kerik in New York County Supreme Court on January 27, 2014. (Id.
¶ 26.) Kerik alleges that the filing of that case marked the “beginning of Tacopina and
Burstein’s overt campaign to defame Kerik and falsely paint him as an individual who has an
‘allergy to the truth.’” (Id. ¶ 28.) Tacopina and Burstein withdrew the New York County
complaint on February 5, 2014, and on the same day filed the initial complaint in this action.
(Id. ¶ 31.) In the complaint, which asserted a claim for defamation against Kerik, Tacopina and
Burstein identified two specific defamatory statements that Kerik had allegedly made in the
Disciplinary Complaint: (1) Kerik’s statement that Tacopina had disclosed privileged
information to the U.S. Attorney’s Office; and (2) Kerik’s statement that Tacopina had failed to
disclose that he had been subpoenaed by the U.S. Attorney’s Office. (Id. ¶ 33; see also Docket
Entry No. 1 ¶¶ 53, 61.) Kerik alleges that these two statements were “wholly invented by
Tacopina and Burstein in an effort to intentionally deceive the Court and create a defamation

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case that would permit them to defame Kerik.” (Am. CC ¶ 34.)4
On March 16, 2015, Burstein and Tacopina filed their amended complaint (see
Docket Entry No. 53), which Kerik alleges Tacopina and Burstein know is a false document.
(Am. CC ¶ 40.) The amended complaint withdrew the allegation that Kerik had defamed
Tacopina in the Disciplinary Complaint by stating that Tacopina had failed to disclose that he
had been subpoenaed by the U.S. Attorney’s Office, but continued to assert that Kerik defamed
Tacopina by alleging that he had disclosed privileged information to the U.S. Attorney’s Office.
(Id. ¶ 40; see also Docket Entry No. 53 ¶ 16.) Kerik maintains that “[n]owhere in the
Disciplinary Complaint d[id] Kerik allege that Tacopina violated attorney-client privilege,” and
claims that all three complaints filed by Tacopina and Burstein (the state court complaint, and
the two complaints in the instant action) “were maliciously filed for the sole purpose of
defaming Kerik.” (Am. CC ¶¶ 42-43.)
In his Amended Counterclaims, Kerik alleges that he is the principal of The Kerik
Group, LLC, a risk management consulting firm (id. ¶ 45), and that he is a New York Times
best-selling author who recently released a book entitled From Jailer to Jailed, which is part
autobiography and part political commentary. (Id. ¶ 47.) Kerik also claims that, despite his tax
fraud conviction, his opinions are widely respected, and he is frequently called upon to testify
before congressional committees and advise elected officials on issues related to criminal justice
reform. (Id. ¶ 46.) Kerik asserts that the “false amended complaint” filed against him has
exposed him to “public contempt, ridicule, aversion or disgrace,” and that it has caused him

4

Kerik contends that the Disciplinary Complaint alleged that Tacopina had revealed
Kerik’s confidential “secrets” rather than privileged attorney-client
communications. (Am. CC ¶ 39.)

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damages “by virtue of his loss of reputation, shame” and, most importantly, that he has been
injured in his “business, trade, profession and/or occupation.” (Am. CC ¶¶ 48, 51-52.) In this
connection, Kerik alleges that Burstein and Tacopina’s statements that Kerik made knowingly
false statements in the Disciplinary Complaint constitute defamation per se, because such
statements “tend[] to injure Kerik in his profession by calling into question the Kerik’s [sic]
competence to perform adequately in his professions,” to which Kerik’s “credibility is
paramount.” (Id. ¶ 53.)
Kerik further claims that Tacopina and Burstein have violated New York
Judiciary Law § 487, which provides for an award of treble damages to any party injured by an
attorney engaging in purposefully deceitful tactics before the court. (See id. ¶ 57.)5 In this
connection, Kerik claims that Tacopina and Burstein colluded to file multiple sham lawsuits
against him in order to defame him (id. ¶ 59), that they intentionally attempted to deceive the
Supreme Court of New York State, New York County as well as the United States District Court
for the Southern District of New York (id. ¶ 60), that their conduct constituted a chronic and
extreme pattern of legal delinquency in violation of New York Judiciary Law § 487 (id. ¶ 63),
and that Kerik is entitled to recover from Burstein and Tacopina treble the expenses of defending
this litigation as well as punitive damages to be determined at trial. (Id. ¶¶ 65-67.) Tacopina
and Burstein have moved, pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss each
of these counterclaims. (See Docket Entry No. 65.)

5

Although Kerik concedes that Tacopina was named as a client in this action, Kerik
claims that Tacopina “was acting as an attorney and is therefore subject to the
provisions of Judiciary Law § 487.” (Am. CC ¶ 59.) Both Tacopina and Burstein
are licensed attorneys in New York and thus are subject to the provisions of
Judiciary Law § 487. (Id. ¶ 58.)

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DISCUSSION
“A motion to dismiss counterclaims under Rule 12(b)(6) is decided under the
same standard applied to a motion to dismiss the claims of a complaint.” Precision LLC v. Duro
Textiles, LLC, No. 15CV1681-DLC, 2015 WL 3751658, at *9 (S.D.N.Y. June 15, 2015)
(quoting Raine v. Paramount Pictures Corp., No. 97CV3553-DLC, 1998 WL 655545, at *5
(S.D.N.Y. Sept. 24, 1998)). When deciding a motion to dismiss a complaint for failure to state a
claim pursuant to Federal Rule of Civil Procedure Rule 12(b)(6), the court accepts all factual
allegations contained within the complaint as true and draws all reasonable inferences in favor of
the Plaintiff. See Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009). In order to survive a motion to
dismiss, “a [counterclaim] must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atlantic Corp v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial
plausibility when the [counterclaim-]plaintiff pleads factual content that allows the court to draw
the reasonable inference that the [counterclaim-]defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). If the counterclaim-plaintiff has not
“nudged [its] claims across the line from conceivable to plausible, [the] complaint must be
dismissed.” Twombly, 550 U.S. at 570. Courts will not “accept as true a legal conclusion
couched as a factual allegation,” and “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. In making its
Rule 12(b)(6) determinations, the Court “may consider any written instrument attached to the
[counterclaim], statements or documents incorporated into the [counterclaim] by reference . . .
and documents possessed by or known to the [counterclaim-] plaintiff and upon which [he]
relied in bringing the suit.” ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98
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(2d Cir. 2007).

Kerik’s Defamation Counterclaim
To establish a claim for defamation under New York law, a plaintiff is required to
demonstrate four elements: “(1) a false statement about the plaintiff; (2) published to a third
party without authorization or privilege; (3) through the fault amounting to at least negligence on
[the] part of the publisher; (4) that either constitutes defamation per se or caused ‘special
damages.’” Makinen v. City of New York, 53 F. Supp. 3d 676, 700 (S.D.N.Y. 2014) (citing
Boehner v. Heise, 734 F. Supp. 2d 389, 397-98 (S.D.N.Y.2010)). Special damages “consist of
the ‘loss of something having economic or pecuniary value which must flow directly from the
injury to reputation caused by the defamation,’” Celle v. Filipino Reporter Enterprises, Inc., 209
F.3d 163, 179 (2d Cir. 2000) (quoting Matherson v. Marchello, 100 A.D.2d 233, 235 (N.Y. App.
Div. 2d Dep’t 1984)), and the Federal Rules of Civil Procedure require that special damages be
“specifically stated.” See Fed. R. Civ. P. 9(g). Here, Kerik has not pleaded any special
damages, and he specifically argues that Tacopina and Burstein’s statements constitute
defamation per se. (See Am. CC ¶¶ 44-55.) The New York Court of Appeals has recognized
four categories of statements as defamatory per se: (1) those that accuse the plaintiff of a serious
crime; (2) those that tend to injure another in his or her trade, business or profession; (3) those
that accuse the plaintiff of having a loathsome disease; and (4) those that impute unchastity to a
woman. See Lieberman v. Gelstein, 80 N.Y.2d 429, 435 (1992). “Determining whether a
statement is defamatory per se is a question of law for the Court.” Stern v. Cosby, 645 F. Supp.
2d 258, 288 (S.D.N.Y. 2009).
Kerik has alleged that Tacopina and Burstein’s “false” complaints have injured
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him professionally, implicating only the third category of defamatory per se statements
recognized by the New York Court of Appeals. (See Am. CC ¶¶ 52-53.) “To find that a
statement qualifies as one that tends to injure another in his or her ‘trade, business, or
profession,’ the statement ‘must be made with reference to a matter of significance and
importance for [the operation of the business], rather than a more general reflection upon the
plaintiff's character or qualities.’” See Pure Power Boot Camp, Inc. v. Warrior Fitness Boot
Camp, LLC, 813 F. Supp. 2d 489, 550 (S.D.N.Y. 2011) (alteration in original) (quoting
Lieberman, 80 N.Y.2d at 436). The allegedly defamatory statement must be targeted at specific
standards of performance that are directly relevant to the plaintiff’s business, and must impute
conduct that is “of a kind incompatible with the proper conduct of the business, trade, profession
or office itself.” See Pure Power Boot Camp, 813 F. Supp. 2d at 550 (quoting Lieberman, 80
N.Y.2d at 436); see also Van-Go Transp. Co. Inc. v. New York City Board of Education, 971 F.
Supp. 90, 98 (E.D.N.Y. 1997) (“Reputational injury to a person’s business, or to a company,
consists of a statement that either imputes some form of fraud or misconduct or a general
unfitness, incapacity, or inability to perform one’s duties.”).
Kerik’s Amended Counterclaims assert that the allegedly false statement made by
Tacopina and Burstein – that in his Disciplinary Complaint Kerik falsely claimed that Tacopina
divulged privileged information to the United States Attorney’s Office – imputes to Kerik a
character of untrustworthiness and lack of credibility. (See Am. CC ¶ 53.) Kerik claims that this
statement “call[s] into question the Kerik’s [sic] competence to adequately perform his
professions,” because “[a]s a consultant, commentator or writer, credibility is paramount.” (Id.)
Morever, he claims that Tacopina and Burstein’s actions “were specifically directed at
undermining [the] progress” that Kerik had made in overcoming “the public stigma of his prior
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conviction to regain respect and trust.” (Am. CC ¶ 53.) For these reasons, Kerik argues,
Tacopina and Burstein’s actions amount to defamation per se.
The allegedly false statement made by Tacopina and Burstein simply is not
“targeted at the specific standards of performance relevant to” Kerik’s businesses. As the
Second Circuit has recognized, “it is actionable without proof of damage to say of a physician
that he is a butcher . . . of an attorney that he is a shyster . . . of a public officer that he has
accepted a bribe or has used his office for corrupt purposes . . . since these things discredit [one]
in his chosen calling.” Celle, 209 F.3d at 180 (quoting Prosser and Keeton on the Law of Torts,
§ 112, at 791 (5th Ed. 1984)). However, New York courts have held that it is not the case that
“any words spoken to the disparagement of a professional man will ipso facto be actionable per
se . . . It is not sufficient that [such words] tend to injure plaintiff in his business, they must have
been spoken of him in his business.” Gurtler v. Union Parts Mfg. Co., Inc., 285 A.D. 643, 646
(N.Y. App. Div. 1st Dep’t 1955) (emphasis added). It simply is not the case that, as a matter of
law, the allegedly false statement made by Tacopina and Burstein tends to specifically discredit
Kerik as an author or a consultant, and this statement was clearly not “spoken of [Kerik] in his
business.” If anything, the Amended Complaint merely claims (falsely, according to Kerik) that
Kerik’s Disciplinary Complaint accused Tacopina of disclosing privileged information to federal
prosecutors when, supposedly, Kerik only accused Tacopina of having revealed non-privileged
information. This is not enough to meet the standard of defamation per se within the injury to
business or profession context.6 Moreover, Kerik concedes that he has been convicted of both

6

Furthermore, Kerik has submitted a sworn affidavit with his Amended
Counterclaims in which he concedes that he is “not an attorney and do[es] not
understand the intricacies of attorney-client privilege.” (See Docket Entry No. 69,
Ex. F.) This admission undercuts Kerik’s argument that Tacopina and Burstein
have defamed him, as it suggests that it is not apparent to Kerik himself that their

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tax fraud and making false statements to federal officials vetting him for the Department of
Homeland Security position. (See Am. CC ¶ 15.) The Court thus does not find plausible Kerik’s
contention that Tacopina and Burstein’s statement may further erode public perception of his
credibility.
In light of the foregoing, the Court finds that Kerik has failed to state a facially
plausible claim for defamation per se. Accordingly, Tacopina and Burstein’s motion to dismiss
the defamation counterclaim is granted.

Kerik’s Judiciary Law § 487 Counterclaim
“Judiciary Law § 487 provides, inter alia, that an attorney who is ‘guilty of any
deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any
party . . . forfeits to the party injured treble damages, to be recovered in a civil action.’” See
Schindler v. Issler & Schrage, 262 A.D.2d 226, 228 (N.Y. App. Div. 1st Dep’t 1999) (quoting
N.Y. Jud. Law § 487 (McKinney 2015)). Kerik alleges that Tacopina and Burstein “colluded to
file . . . sham lawsuits, not to further any legitimate litigation goal, but rather to defame
Tacopina’s accuser and delay proceedings before the Departmental Disciplinary Committee for
the 1st Judicial Department and thereby preserve Tacopina’s license to practice law, or at least
delay his anticipated suspension or disbarment,” thereby violating Section 487. (See Am CC.
¶¶ 59, 62(a),(b),(d).) Kerik further claims that Tacopina and Burstein filed a letter with this
Court that “intentionally misrepresented a prior decision by Judge Robinson, as well as the
applicable case law in an effort to avoid discovery, which would reveal the falsity of the

allegedly defamatory statement was false as required by New York law.
See Maniken, 53 F. Supp. 3d at 700.
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complaint and fraudulently obtain a judgment.” (Am. CC ¶ 62(c).) According to Kerik, these
actions constitute “a chronic and extreme pattern of legal delinquency in violation of Judiciary
Law § 487.” (Id. ¶ 63.)
As an initial matter, the Court finds that Kerik cannot, as a matter of law,
maintain a Section 487 claim as against Tacopina. Courts in this district have recognized that
“Section 487 is aimed at actions by an attorney in his or her role as an attorney. The mere fact
that a wrongdoer is an attorney is insufficient to impose liability for treble damages under
Section 487.” See Northern Trust Bank of Florida/Sarasota N.A. v. Coleman, 632 F. Supp. 648,
650 (S.D.N.Y. 1986) (emphasis in original); see also Barrows v. Alexander, 78 A.D.3d 1693,
1693 (“Section 487 applies only to an attorney acting in his or her capacity as an attorney, not to
a party who is represented by counsel and who, incidentally, is an attorney”) (internal quotation
marks and citation omitted). Here, it is clear that Tacopina was not acting “in his . . . capacity as
an attorney” when he filed suit against Kerik, his former client. Kerik’s allegation that
“[a]lthough Tacopina was named as a client in these actions, he was acting as an attorney and is
therefore subject to the provisions of Judiciary Law § 487” (Am. CC ¶ 59) is purely conclusory,
and Kerik cites no case law in support of a valid Section 487 claim as against Tacopina. (See
Docket Entry No. 71, Kerik’s Memorandum of Law in Opposition to Motion to Dismiss, at pp.
9-10). Thus, because it is clear that Tacopina was not acting in his capacity as an attorney when
initiating this suit, Kerik cannot maintain a Section 487 claim against him. See Yak v. Bank
Brussels Lambert, No. 99CV12090-JGK, 2002 WL 31132963, at *7 (S.D.N.Y. Sept. 26, 2003)
(“in filing this lawsuit the plaintiff was not acting in her capacity as an attorney. She was acting
in her capacity as a party . . . She was represented by counsel and not acting as a lawyer . . . The
mere fact that she is an attorney does not mean that she acted in her capacity as a legal
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representative for the purposes of § 487 liability. The defendants have failed to state a claim
under Section 487, and their counterclaim is dismissed.”).
The Court also finds that Kerik has failed to allege facts supporting his claim that
Burstein has committed a violation of Section 487. Courts within this district have recognized
that “New York Courts limit the application of § 487 to claims that the delinquent attorney has
intentionally ‘engaged in a chronic, extreme pattern of legal delinquency.’” See O’Callaghan v.
Sifre, 537 F. Supp. 2d 594, 596 (S.D.N.Y. 2008) (emphasis added) (quoting Schindler, 262
A.D.2d at 228).7 Furthermore,
By confining the reach of the statute to intentional egregious
misconduct, this rigorous standard affords attorneys wide latitude
in the course of litigation to engage in written and oral expression
consistent with responsible, vigorous advocacy, this excluding
from liability statements to a court that fall well within the bounds
of the adversarial proceeding . . . Under this threshold, an action
grounded essentially on claims that an attorney made meritless or
unfounded allegations in . . . court proceedings would not be
sufficient to make out a violation of § 487.
O’Callaghan, 537 F. Supp. 2d at 596. Kerik has alleged no facts that tend to indicate that
Burstein intentionally worked to mislead the Court. While Burstein’s letters to the Court with
respect to proposed summary judgment motion practice were premised on legal arguments that
the Court ultimately rejected (see Docket Entry Nos. 38, 43), they are more fairly characterized
as “responsible, vigorous advocacy” than “intentional egregious misconduct.”
Nor do the various complaints filed by Burstein against Kerik meet the level of
misconduct necessary to maintain a Section 487 claim. Kerik points to no facts beyond his own

7

The Second Circuit has recognized that there is no statutory requirement that the
accused attorney engage in a “pattern” of deceitful conduct, noting that some courts
“have found attorneys liable under the statute for a single intentionally deceitful or
collusive act.” See Amalfitano v. Rosenberg, 533 F.3d 117, 123 (2d Cir. 2008).

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conclusory assertions that the allegations contained in these complaints are false. Furthermore,
an “[a]ssertion of unfounded allegations in a pleading, even if made for improper purposes, does
not provide a basis for liability” under Section 487. See Ticketmaster Corp. v. Lidsky, 245
A.D.2d 142, 143 (N.Y. App. Div. 1st Dep’t 1997). Thus, even if Kerik were able to assert facts
demonstrating that the allegations of defamation against him are “unfounded,” he still would not
have a sufficient basis for a Section 487 claim stemming from the complaints filed by Burstein.8
Moreover, the fact that Burstein has opted to pursue a different legal strategy in federal court
than that indicated in the state court complaint (See Docket Entry Nos. 53, 69, Ex. 2) is not
necessarily indicative of deceitful intent. See e.g., Rosco, Inc. v. Mirror Lite Co., No.
96CV5658-CPS, 2009 WL 3587344, at *5 (E.D.N.Y. Oct. 26, 2009) (recognizing that a change
in legal strategy is not necessarily indicative of bad faith.) Because Kerik’s Section 487 claim
against Burstein is premised on nothing more than “mere conclusory statements,” Iqbal, 556
U.S. at 678, with respect to Burstein’s attempts to deceive this Court, Kerik has failed to state a
claim upon which relief may be granted, and Tacopina and Burstein’s motion to dismiss his
Judiciary Law § 487 claim is granted.

8

As Tacopina and Burstein point out, the fact that the original complaint in this
action contained allegations against The New York Daily News and two reporters
(see Docket Entry No. 1) that were withdrawn upon Tacopina’s conclusion that they
lacked merit demonstrates an attempt by Burstein to litigate this case in good faith
and represents the opposite of deceitful conduct on his part.

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CONCLUSION
For the foregoing reasons, Tacopina and Burstein’s motion to dismiss Kerik’s
counterclaims is granted and Burstein is dismissed as a third-party defendant. This
Memorandum Opinion and Order resolves Docket Entry Number 65.
The final pretrial conference in this matter remains scheduled for Friday,
October 21, 2016, at 10:30 a.m. The parties must consult and make their submissions in
advance of the conference as required by the Pre-trial Scheduling Order. (Docket Entry No. 49.)
This case remains referred to Magistrate Judge Frank Maas for general pretrial
management.
SO ORDERED.
Dated: New York, New York
March 31, 2016
/s/ Laura Taylor Swain
LAURA TAYLOR SWAIN
United States District Judge

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