Goldner v. Sullivan, Gough, Skipworth, Summers & Smith

Callahan and Denman, JJ.

(dissenting in part). We agree with the majority with respect to the first, second, seventh and eighth causes of action, but would affirm Special Term’s denial of defendants’ motion to dismiss the third, fourth, fifth and sixth causes of action.

Plaintiffs’ third cause of action alleges tortious interference with plaintiffs’ contract with his insurance carriers. Absent fraud, collusion, or malicious or tortious acts, an attorney is not liable to third parties for services or advice rendered on behalf of a client (see Harder v Arthur F. McGinn, Jr., P. C., 89 AD2d 732, affd 58 NY2d 663). Here, however, plaintiffs allege that defendants knowingly gave false information to the carriers after conducting a fire investigation, failed to advise the carriers of test results which were favorable to plaintiffs and orchestrated the prosecution so that the carriers were wrongfully induced to *1152reject plaintiffs’ claim. These allegations of fraud and deception, set out with specificity, are sufficient to withstand a motion to dismiss for failure to state a cause of action (CPLR 3211, subd [a], par 7).

In their fourth cause of action, plaintiffs allege a violation of sections 1983 and 1985 of title 42 of the United States Code. In support of this allegation plaintiffs accuse the defendants of conspiring with the District Attorney and other officials to deny plaintiffs their rights under the Fourth, Fifth, and Sixth Amendments of the United States Constitution and similar rights under the New York State Constitution. Plaintiffs allege that defendants conducted a fraudulent investigation, provided faulty and incomplete information to the District Attorney and that the prosecution was in fact led by a member of defendants’ firm who had previously been in charge of the arson bureau in the District Attorney’s office. The complaint and supporting affidavits allege a scenario whereby a member of defendants’ law firm hired investigators and experts in arson investigation to conduct an independent investigation, turned over that information to the District Attorney’s office, directed the course of the prosecution and withheld evidence favorable to the plaintiffs from the District Attorney and from the Grand Jury. Whatever the merits of these very serious allegations, the facts pleaded are sufficient to withstand the motion to dismiss. The fifth cause of action alleges a violation of section 1986 of title 42 of the United States Code in that defendants failed to prevent the conspiracy charged under the fourth cause of action. The allegations are essentially the same and the same result should obtain.

Plaintiffs’ sixth cause of action is based on section 487 of the Judiciary Law, which makes it a misdemeanor, punishable by criminal penalties and treble damages, for an attorney to engage in deceit or collusion with intent to deceive the court or any party. In support of that cause of action the plaintiffs allege that the defendants deceived the Grand Jury by withholding evidence and retained persons who fraudulently represented themselves as experts in arson investigation. As in the previous causes of action, sufficient facts are alleged to withstand a motion to dismiss pursuant to CPLR 3211 (subd [a], par 7).

To withstand a motion to dismiss a complaint, a plaintiff is not required to show evidentiary facts in support of his allegations (see Scacchetti v Gannet Co., 90 AD2d 985, 986) and is entitled to every possible favorable inference (see Rovello v Orofino Realty Co., 40 NY2d 633, 634). The complaint should not be dismissed if “upon examination of the four corners of the pleading * * * the factual allegations contained therein indicate the existence of a *1153cause of action” (Melito v Interboro-Mutual Ind. Ins. Co., 73 AD2d 819, 820; see, also, Guggenheimer v Ginzburg, 43 NY2d 268, 275). Measured by these standards, plaintiffs have sufficiently pleaded the afore-mentioned causes of action in their complaint. (Appeal from order of Supreme Court, Monroe County, Davis, J. — dismiss complaint.) Present — Hancock, Jr., J. P., Callahan, Denman, Boomer and Moule, JJ.