COVID Executive-Order Tolling Preserves Motion Deadlines; Fraud and Judiciary Law § 487 Claims Against Adversary Counsel Require Justifiable Reliance and Intent to Deceive

Introduction

In Williams v Biggs (2026 NY Slip Op 04790 [2d Dept July 29, 2026]), the Appellate Division, Second Department, affirmed an order of the Supreme Court, Kings County, dismissing—under CPLR 3211(a)(7)—multiple tort and Judiciary Law § 487 claims brought by a pro se plaintiff against the law firm and lawyers who represented defendants in the plaintiff’s underlying medical malpractice action.

The underlying dispute arose after the plaintiff’s attorney allegedly accepted NYCHHC’s settlement offer in the medical malpractice case, the physician defendants were discontinued, the case remained pending against NYCHHC and KCHC, and the plaintiff refused to sign a general release. The plaintiff then sued opposing counsel (the “M & F defendants”), alleging a broad conspiracy involving forged medical records and litigation misconduct.

The appeal presented two practical litigation questions: (1) whether the M & F defendants’ motion to dismiss was timely given COVID-era tolling orders, and (2) whether the complaint adequately pleaded fraud-based claims, a “forgery” claim, aiding-and-abetting theories, prima facie tort, intentional infliction of emotional distress, and attorney deceit under Judiciary Law § 487—particularly where the claims targeted adversary counsel and the underlying action was still pending.

Summary of the Opinion

The Second Department affirmed in full. It held, in substance, that:

  • The M & F defendants did not default; their dismissal motion was timely because Governor Cuomo’s COVID executive orders tolled relevant CPLR time limits, and AO/115/20 did not lift the toll.
  • The complaint failed to state fraud and fraud-adjacent claims because it did not adequately plead key fraud elements—especially justifiable reliance—and because a plaintiff generally cannot plead reasonable reliance on statements by the other side’s counsel.
  • “Forgery” is treated as a species of fraud; to plead a forgery-based civil claim, the plaintiff still must plead traditional fraud elements, including reliance.
  • Judiciary Law § 487 requires egregious conduct and facts supporting intent to deceive the court or a party; asserting improper denials/defenses is insufficient.
  • The action also ran into the rule against collateral attacks: alleged fraud/false evidence in an underlying action generally must be addressed via a motion to vacate, and the principle applies even when the underlying action is still pending; the “larger fraudulent scheme” exception was not shown.
  • Prima facie tort, intentional infliction of emotional distress, and aiding-and-abetting breach of fiduciary duty were inadequately pleaded on their respective elements.
  • The trial court properly denied sanctions under 22 NYCRR 130-1.1.

Analysis

1) Precedents Cited

A. COVID tolling and timeliness of motion practice

The court relied on Brash v Richards to confirm that Executive Order (A. Cuomo) No. 202.8 tolled “any specific time limit” under the CPLR, and that later executive orders extended the toll through November 3, 2020. It also cited McLaughlin v Snowlift, Inc. (and again Brash v Richards) for the practical consequence: a motion made while the toll was in effect is timely. Critically, the panel rejected the plaintiff’s argument that AO/115/20 ended the toll, holding that it did not lift it.

B. Fraud pleading, reliance, and CPLR 3016(b) particularity

The decision restated black-letter fraud elements using Eurycleia Partners, LP v Seward & Kissel, LLP, and reinforced the heightened pleading requirement of CPLR 3016(b) using Eurycleia Partners, LP v Seward & Kissel, LLP. It emphasized the “basic facts” requirement at the pleading stage via Pludeman v Northern Leasing Sys., Inc., and it cited Sneider v Great S. Bay Surgical Assoc & Vascular Lab, LLP and City of Long Beach v Agostisi for consistent articulation of the elements.

For reliance specifically, the court cited New York Tile Wholesale Corp. v Thomas Fatato Realty Corp. and Dreamco Dev. Corp. v Empire State Dev. Corp. to show that where a complaint does not allege that the plaintiff reasonably relied on the defendant’s alleged misrepresentation, the fraud claim fails. Most importantly in the “opposing counsel” context, the court cited Cascardo v Stacchini for the proposition that a plaintiff cannot properly plead reasonable reliance on representations of another party’s counsel to support a fraud claim—an often-dispositive principle when litigants attempt to convert adversary litigation conduct into tort claims.

C. Aiding and abetting fraud: underlying fraud, actual knowledge, substantial assistance

The court used JPMorgan Chase Bank, N.A. v Canova and Betz v Blatt to set out the three-part aiding-and-abetting fraud test (underlying fraud; knowledge; substantial assistance), and quoted Betz v Blatt for the “affirmative act” requirement and the rule that inaction can qualify only if a fiduciary duty is owed directly to the plaintiff.

Applying those standards, the court held the complaint did not adequately allege the underlying fraud (citing Weinstein v CohnReznik, LLP), did not support a reasonable inference of actual knowledge (citing Briarpatch Ltd., L.P. v Frankfurt Garbus Klein & Selz, P.C.), and did not plead the kind of relationship or communications that could support the theory (citing Jebran v LaSalle Bus. Credit, LLC).

D. Civil conspiracy: not independent; must connect to an underlying tort

The court reiterated that New York does not recognize civil conspiracy as an independent tort using Mohammad v Rehman. It then relied on Mohammad v Rehman and Alexander & Alexander of N.Y. v Fritzen for the pleading requirements (cognizable tort, agreement, overt act) and dismissed the conspiracy-to-commit-fraud cause because it failed to connect the defendants’ conduct to a viable underlying fraud, citing Mohammad v Rehman and Clevenger v Yuzek.

E. “Forgery” as a fraud species requiring reliance

The court treated civil “forgery” as a subset of fraud, quoting Matter of Hersh (which quoted Piedra v Vanover) for the definition and the “species under the broad genus of fraud” framing. It then cited Ferdico v Zweig for the rule that a forgery-based fraud claim must plead the essential fraud elements. The claim failed because reliance was not alleged (citing Matter of Hersh and Ferdico v Zweig), and the pleaded facts suggested the opposite: the plaintiff refused to sign the release precisely because he believed the records were forged.

F. Judiciary Law § 487: egregiousness, intent to deceive, and litigation pleading conduct

The panel applied the demanding § 487 standard from Kaufman v Moritt Hock & Hamroff, LLP, with support from Savitt v Greenberg Traurig, LLP and Chowaiki & Co. Fine Art Ltd. v Lacher, emphasizing that relief “is not lightly given.” It then relied on Klein v Rieff to require facts supporting intent to deceive the court. It also used Gill v Doughtery (and Ticketmaster Corp. v Lidsky) to hold that the assertion of unfounded allegations in a pleading—even for improper purposes— does not itself establish § 487 liability.

G. Collateral attack doctrine (including when underlying action is pending) and the “larger fraudulent scheme” exception

The court invoked the rule stated in McMahan v Belowich (with citations to State Farm Mut. Auto. Ins. Co. v Anikeyeva, DeMartino v Lomonaco, and Little Rest Twelve, Inc. v Zajic): a party cannot collaterally attack an outcome (or litigate alleged fraud/false testimony) in a separate damages action; the remedy lies in moving to vacate. It emphasized—via Little Rest Twelve, Inc. v Zajic—that the principle applies even where the underlying action is “still pending.”

It then described the exception from Newin Corp. v Hartford Acc. & Indem. Co. (as quoted in DeMartino v Lomonaco), and the “greater in scope” gloss from Retina Assoc. of Long Is. v Rosberger. The exception did not apply on this record.

H. Prima facie tort and IIED limits

For prima facie tort, the court cited Freihofer v Hearst Corp. for “specific and measurable loss,” and relied on Phillips v New York Daily News and Del Vecchio v Nelson to reject claims based on psychological injury and unspecified damages. It also cited Banshick v Johnson for the “solely with disinterested malevolence” requirement.

For intentional infliction of emotional distress, the court cited Giambrone v Arnone, Lowth, Wilson, Leibowitz, Adriano & Greco for the “extreme or outrageous” threshold and held the allegations did not meet it as a matter of law.

I. Aiding and abetting breach of fiduciary duty: actual knowledge and substantial assistance

The court cited Monaghan v Ford Motor Co. and Kaufman v Cohen for the elements, highlighting Kaufman v Cohen on the necessity of actual knowledge (constructive knowledge is insufficient). It found no adequate allegations that opposing counsel had actual knowledge of any breach by plaintiff’s counsel and further held that sending records to plaintiff’s lawyers “hardly” amounts to substantial assistance (citing Kaufman v Cohen). It also relied on Land v Forgione to reject an “inaction” theory where the alleged aider owed no fiduciary duty to plaintiff.

J. Sanctions discretion

The denial of sanctions under 22 NYCRR 130-1.1 was upheld, with the court citing Bansi v Nugacon Bldg. Servs., LLC and noting the record supported that the underlying action remained pending—making the challenged representation not sanctionable.

2) Legal Reasoning

The court’s reasoning is best understood as a set of gatekeeping moves designed to prevent ordinary litigation disputes from being repackaged as tort claims against adversary counsel:

  • Procedural timeliness first: by holding the COVID executive-order toll applied and AO/115/20 did not lift it, the court eliminated the plaintiff’s “default” theory and validated the defendants’ ability to test the complaint under CPLR 3211(a)(7).
  • Element-by-element pleading discipline: the fraud counts failed not because “forgery” or “misconduct” is impossible in theory, but because the complaint did not plead essential elements—particularly reliance—and did not satisfy CPLR 3016(b) particularity.
  • Adversary counsel insulation via reliance doctrine: the reliance cases (especially Cascardo v Stacchini) functioned as a doctrinal barrier: a litigant generally cannot claim he reasonably relied on statements of opposing counsel.
  • Secondary-liability rigor: aiding-and-abetting claims were rejected for failure to plead underlying wrongdoing, actual knowledge, and substantial assistance. The court also rejected attempts to convert “silence” into substantial assistance absent a fiduciary duty.
  • Conspiracy as connective tissue, not a tort: the conspiracy claim fell because it could not attach to a viable underlying fraud claim.
  • Judiciary Law § 487 narrowed to true deceit: the court required facts supporting intent to deceive and treated litigation pleading conduct (even if unfounded) as insufficient without more.
  • No end-run around the underlying case: with the malpractice case still pending, the plaintiff’s proper vehicle to address forged records/false evidence concerns is within that litigation (e.g., disclosure practice, motion practice, or vacatur mechanisms when applicable), absent a demonstrated “larger fraudulent scheme.”

3) Impact

  • Clarifies COVID toll arguments in motion practice: the decision reinforces that Cuomo-era tolling extends to motion deadlines and rejects the idea that AO/115/20 ended the toll. Practitioners facing “late motion” claims from that period can cite this as a clean statement of the point (building on Brash v Richards).
  • Strengthens barriers to suing adversary counsel for fraud: by centering the reliance defect and the rule against relying on opposing counsel’s statements, the decision discourages collateral tort suits against defense counsel arising from contested litigation conduct.
  • Elevates pleading standards for “forged record” theories: even when a plaintiff labels conduct as “forgery,” the court demands traditional fraud pleading, including reliance—a frequent stumbling block where the plaintiff alleges suspicion and non-reliance (as here).
  • Reaffirms strictness of Judiciary Law § 487: the court continues the trend of requiring egregious, deceitful conduct aimed at deceiving a tribunal or party, not merely aggressive or even questionable advocacy in pleadings.
  • Procedural channeling: the collateral attack discussion—especially that it applies while the underlying action is still pending—pushes litigants back into the original case, limiting duplicative satellite litigation.

Complex Concepts Simplified

  • CPLR 3211(a)(7): a motion to dismiss for “failure to state a cause of action.” The court assumes pleaded facts are true but requires that, even then, the law would recognize a valid claim.
  • CPLR 3016(b): fraud must be pleaded with particularity—who said what, when, how it was false, and how it caused harm—beyond conclusory accusations.
  • Justifiable reliance: fraud requires that the plaintiff actually and reasonably relied on the misrepresentation. If the plaintiff did not rely—or if reliance would be unreasonable (for example, on statements by the opposing party’s lawyer)—the fraud claim fails.
  • Aiding and abetting: you must plead (1) a primary wrong, (2) the aider’s actual knowledge, and (3) meaningful assistance. “They were involved” or “they stayed silent” generally does not suffice, especially without a duty to the plaintiff.
  • Judiciary Law § 487: a special New York statute imposing treble damages for attorney deceit, but it is reserved for serious misconduct with intent to deceive—not routine litigation disputes.
  • Collateral attack rule: you usually cannot sue separately for damages claiming the other side used false evidence in the prior (or pending) case; you must seek relief in that case (e.g., vacatur or other appropriate motions), unless the alleged fraud was part of a larger scheme beyond the issues litigated there.

Conclusion

Williams v Biggs consolidates several practical constraints on turning litigation grievances into independent tort actions against adversary counsel. It confirms that Cuomo-era executive-order tolling preserved motion timeliness (and that AO/115/20 did not lift the toll), enforces strict fraud and aiding-and-abetting pleading requirements (especially justifiable reliance), reiterates that “forgery” civil claims are pleaded as fraud, and underscores the high bar for Judiciary Law § 487. Equally significant, it reinforces that alleged falsity in an underlying action—particularly one still pending—must ordinarily be addressed in that action, not via collateral tort suits.