It is rare that one of New York’s Courts of Appeal considers the substance of Judiciary Law Section 487. The N.Y. Court of Appeals has only mentioned this law 10 times. Of these, only three were substantive decisions. The Second U.S. Circuit Court of Appeals in New York has considered the application of Judiciary Law Section 487 many times, but rarely its substance. Nevertheless, a recent case in the Western District of New York has the potential to reach both of the Courts of Appeal by different routes.

The two routes to the two Courts of Appeal are complex. Under New York Court of Appeals jurisprudence, there are appeals of right and appeals by leave.  There are also certified questions. One generalized reason for a grant of leave to appeal to the N.Y. Court of Appeals is inconsistency between or within the Appellate Divisions.  In Judiciary Law Section 487, there is a major difference in the standard between the First Department and the other three departments. The First Department adds a unique element not found elsewhere.