Date: Feb 12, 2026

Delaney v. HC2, Inc.: Section 487 Claims May Fail Without Particularized, Plausible Allegations of Intentional Deceit—Even If Federal-Court Applicability Remains Unresolved

1. Introduction

In Delaney v. HC2, Inc. (2d Cir. Feb. 10, 2026) (summary order), the Second Circuit affirmed the Southern District of New York’s dismissal (with prejudice) of pro se plaintiff Andrew Delaney’s multi-claim complaint against HC2, Inc., two attorneys associated with HC2 (Stephanos Zannikos and Michael John Esker Nacchio), and Toyota Motor North America, Inc. (“TMNA”).

The dispute arose from Delaney’s participation in a document-review project for HC2 in connection with HC2’s customer WilmerHale and WilmerHale’s client TMNA, followed by earlier litigation and a bankruptcy proceeding. Delaney’s amended complaint asserted, among other theories, claims under New York Judiciary Law § 487 (attorney deceit), negligent infliction of emotional distress, breach of contract, New York Labor Law § 740, and federal discrimination statutes (ADA and Title VII). The central appellate issues were:

whether Delaney stated a plausible § 487 claim based on alleged false filings and affidavits;
whether the remaining state and federal claims were adequately pled; and
whether TMNA should have been defaulted after removal under the timing rules of Fed. R. Civ. P. 81.

2. Summary of the Opinion

The Second Circuit affirmed across the board. On § 487, it declined to decide the contested threshold question whether § 487 reaches attorney conduct in federal court sitting in New York, because it agreed with the district court’s alternative holding: even assuming § 487 could apply, Delaney’s allegations did not plausibly plead intentional deceit with the required factual particularity.

As to Delaney’s remaining causes of action (NIED, contract, NYLL § 740, ADA, Title VII), the court affirmed for substantially the same reasons given by the district court.

Finally, the court held the district court did not abuse its discretion in denying Delaney’s request for a certificate of default against TMNA; even if TMNA’s response had been untimely, default was disfavored and unwarranted under the governing factors (willfulness, meritorious defense, prejudice).

3. Analysis

3.1. Precedents Cited

A. Pleading and review standards

Gimpel v. The Hain Celestial Grp., Inc., 156 F.4th 121 (2d Cir. 2025): supplied the de novo standard for reviewing dismissals for failure to state a claim.
Ashcroft v. Iqbal, 556 U.S. 662 (2009): anchored the “plausibility” requirement and the rule that courts do not accept legal conclusions as true.
Elliott Assocs., L.P. v. Banco de la Nacion, 194 F.3d 363 (2d Cir. 1999) and CSX Transp., Inc. v. Island Rail Terminal, Inc., 879 F.3d 462 (2d Cir. 2018): framed de novo review of state-law interpretation and the materials used to discern New York law.
Bertin v. United States, 478 F.3d 489 (2d Cir. 2007) and Cox v. Dep't of Justice, 111 F.4th 198 (2d Cir. 2024): explained that although pro se filings are generally construed liberally, that “special solicitude” does not apply when the pro se litigant is an attorney.

B. New York Judiciary Law § 487: purpose, reach, and pleading rigor

Bill Birds, Inc. v. Stein Law Firm, P.C., 35 N.Y.3d 173 (2020): provided the modern statement of § 487’s purpose (protecting the integrity of litigation and attorneys’ honesty obligations) and the key formulation that § 487 targets false statements “rising to the level of intentional deceit or collusion.”
Schertenleib v. Traum, 589 F.2d 1156 (2d Cir. 1978): held § 487 does not reach attorney conduct in proceedings outside New York’s territorial borders; its dicta referencing the “truth-seeking processes of New York courts” fueled later disputes over whether “New York courts” means state courts only.
District and bankruptcy decisions reflecting the split on federal-court applicability:
- Lindner v. Am. Exp. Corp., No. 06 Civ. 3834, 2009 WL 54493 (S.D.N.Y. Jan. 8, 2009) and In re Zucaro, 617 B.R. 18 (Bankr. E.D.N.Y. 2020): cited for the view that § 487 does not provide a vehicle to sanction misconduct in an ongoing federal action (and is tied to New York state court supervision).
- In re Blue Dog at 399 Inc., No. 15-10694 (MEW), 2020 WL 6390674 (Bankr. S.D.N.Y. Oct. 30, 2020): emphasized Schertenleib’s territorial holding and noted Bill Birds did not express concern that underlying litigation occurred in federal court in New York.
Intermediate appellate and trial-level New York cases referenced as non-conclusive signals: Knopf v. Esposito, 239 N.Y.S.3d 922 (Table), 2025 WL 2699614 (N.Y. Sup. Ct. Sept. 19, 2025); Claude Mayo Constr. Co. v. Barclay Damon LLP, 239 A.D.3d 1430 (4th Dep't 2025); Clevenger v. Yuzek, 222 A.D.3d 931 (2d Dep't 2023).
Pleading particularity and anti-conclusory principles applied to § 487: Ashley v. Deutsche Bank Aktiengesellschaft, 144 F.4th 420 (2d Cir. 2025) and Facebook, Inc. v. DLA Piper LLP (US), 134 A.D.3d 610 (1st Dep't 2015).

C. Amended complaint supersession

Arce v. Walker, 139 F.3d 329 (2d Cir. 1998): supported the rule that an amended complaint supersedes the original and renders it of no legal effect—undercutting Delaney’s reliance on paragraphs from his original complaint.

D. Defaults and default judgments

Shah v. N.Y. State Dep't of Civil Serv., 168 F.3d 610 (2d Cir. 1999) and New York v. Green, 420 F.3d 99 (2d Cir. 2005): set the abuse-of-discretion standard for denial of default judgment and de novo review for interpretation of the Federal Rules.
City of N.Y. v. Mickalis Pawn Shop, LLC, 645 F.3d 114 (2d Cir. 2011) and State St. Bank & Tr. Co. v. Inversiones Errazuriz Limitada, 374 F.3d 158 (2d Cir. 2004): reiterated the strong preference for adjudication on the merits and the disfavored, severe nature of default judgment.
Guggenheim Cap., LLC v. Birnbaum, 722 F.3d 444 (2d Cir. 2013): supplied the familiar three-factor test (willfulness, meritorious defense, prejudice).

E. Dismissal with prejudice and leave to amend

Grain Traders, Inc. v. Citibank, N.A., 160 F.3d 97 (2d Cir. 1998): supplied abuse-of-discretion review.
Cruz v. FXDirectDealer, LLC, 720 F.3d 115 (2d Cir. 2013): “no court can be said to have erred in failing to grant a request that was not made.”
Porat v. Lincoln Towers Cmty. Ass'n, 464 F.3d 274 (2d Cir. 2006) (per curiam): supported denial of leave where the appellant fails to explain how amendments would cure defects.

3.2. Legal Reasoning

A. The court sidestepped (again) the unsettled § 487 federal-court question

The panel recognized genuine uncertainty: the New York Court of Appeals has not decided whether § 487 applies to attorney conduct in federal court in New York, and lower courts have divided. Rather than forecast New York law, the Second Circuit employed a common appellate move—affirmance on an alternative ground—holding that the complaint failed even under Delaney’s preferred assumption (that § 487 is available).

B. The “high bar” for § 487: intentional deceit pled with factual content

Drawing from Bill Birds, Inc. v. Stein Law Firm, P.C. and the plausibility framework of Iqbal, the court required allegations showing (i) a false statement (or deceit/collusion), (ii) made by an attorney, (iii) with intent to deceive a court or party, supported by concrete facts rather than labels.

The panel concluded Delaney’s pleaded examples did not cross that line. It characterized the complaint’s descriptions of supposed falsehoods about the “Toyota demand letter” as either accurate, not plausibly attributed to the specific attorney-defendants, or presented as conclusory accusations of “deceit and collusion” without the needed detail on what was said, why it was false, and how intent to deceive should be inferred. The reliance on a paragraph from the superseded original complaint failed under Arce v. Walker. Conclusory scienter allegations failed under the principles reiterated in Ashley v. Deutsche Bank Aktiengesellschaft and Facebook, Inc. v. DLA Piper LLP (US).

C. Remaining claims: affirmed largely by reference

For the non-§ 487 claims, the Second Circuit affirmed “for substantially the same reasons” as the district court. The notable doctrinal point is not new substantive law, but the appellate posture: conclusory appellate argumentation does not dislodge a detailed district court merits analysis, particularly under de novo review where the appellant still must identify pleading-sufficiency error.

D. Default after removal: merits preference controls absent willfulness, prejudice, or lack of defense

Even assuming an arguable timing misstep under Rule 81 after removal, the panel treated default as discretionary and strongly disfavored. Applying Guggenheim Cap., LLC v. Birnbaum, the court emphasized (1) no willfulness, (2) the presence of a meritorious defense (the case was dismissed on the merits), and (3) no prejudice, noting the motion to dismiss followed shortly after Delaney sought default.

E. Dismissal with prejudice: no request to amend and no proffer of curative facts

The panel endorsed dismissal with prejudice because Delaney did not seek leave to amend during motion practice (Cruz v. FXDirectDealer, LLC) and did not explain on appeal how he would cure the substantive defects (Porat v. Lincoln Towers Cmty. Ass'n), making it well within the district court’s discretion (Grain Traders, Inc. v. Citibank, N.A.).

3.3. Impact

No resolution of § 487’s federal-court reach: Because the panel affirmed on pleading grounds, the key jurisdictional/choice-of-law-like question remains open in the Second Circuit and in New York’s highest court. Litigants should expect continued motion practice and forum-focused argument in § 487 cases premised on federal proceedings.
Sharper emphasis on pleading particularity for § 487: The decision underscores that it is not enough to allege “lied to multiple courts” or to recite elements; plaintiffs should plead the precise statement, speaker, context, falsity, and facts supporting intent to deceive.
Defaults remain exceptional, especially where a merits motion is promptly filed: Even plausible technical arguments about timing post-removal may not yield default relief absent willfulness and prejudice.
Attorney pro se plaintiffs get no special solicitude: The citation to Cox v. Dep't of Justice signals that courts will treat attorney-drafted pro se pleadings like counseled filings in terms of construction and expectations.

4. Complex Concepts Simplified

New York Judiciary Law § 487: A New York statute that allows treble damages against an attorney who engages in deceit or collusion with intent to deceive a court or a party. It is more than ordinary sharp practice; it targets intentional litigation deception.
Plausibility pleading (Iqbal): A complaint must include enough factual detail to make wrongdoing a reasonable inference—not just a possibility. Courts ignore bare legal conclusions (e.g., “they committed fraud”).
Scienter / intent to deceive: The mental state element—here, that the attorney acted with intent to deceive. Under § 487, conclusory statements about intent typically fail without facts showing why deceit is the best inference.
Amended complaint supersedes the original: Once you file an amended complaint, it normally replaces the original; courts generally evaluate the amended version only.
Default judgment: A severe remedy entered when a party fails to defend. Courts prefer deciding cases on the merits and weigh willfulness, defenses, and prejudice before entering or maintaining a default.

5. Conclusion

Delaney v. HC2, Inc. is a reminder that § 487 is not triggered by broad accusations of litigation misconduct; it demands specific, plausible allegations of intentional deceit tied to identifiable statements and actors. The Second Circuit left unresolved whether § 487 applies to attorney conduct in federal court in New York, but it made clear that—whatever the statute’s reach—complaints resting on conclusory claims of “lying to courts” will not survive dismissal. The order also reinforces the judiciary’s strong preference against default judgments and confirms that attorney pro se litigants are not entitled to relaxed construction of their pleadings.