Nimkoff v. Waldbaum: Judiciary Law § 487 Targets Only Conduct Undertaken “as an Attorney,” and DRL § 235 Materials Are “Confidential Personal Information” in Other Civil Filings

1. Introduction

Nimkoff v Waldbaum (2026 NY Slip Op 04203 [2d Dept July 1, 2026]) arises from a family dispute that spilled into civil litigation. The plaintiff, Ronald A. Nimkoff (an attorney proceeding pro se), sued his former wife Nancy Waldbaum and their daughter Ilana Joy Waldbaum (sued as Ilana Joy Nimkoff) for, among other things, malicious prosecution and defamation, alleging they filed a false police report.

The defendants responded with counterclaims under Judiciary Law § 487, alleging plaintiff engaged in deceit by using family therapy sessions to gather information for the lawsuit without disclosing he had commenced it. The daughter also asserted a counterclaim seeking counsel fees as “child support.”

The case additionally became a procedural battleground: the plaintiff failed to comply with an August 2020 discovery order directing him to convert the case to electronic filing and meet discovery-related deadlines. Motion practice followed, including sanctions under CPLR 3126 and disputes over the plaintiff’s filing of materials protected by Domestic Relations Law § 235 (matrimonial confidentiality) or by sealing orders.

Key issues before the Second Department included:

  • Whether striking the complaint under CPLR 3126 was warranted for noncompliance with discovery directives.
  • Whether a Judiciary Law § 487 counterclaim can be based on conduct by a pro se attorney occurring outside the attorney role (here, therapy sessions).
  • Whether COVID-era executive orders tolled the plaintiff’s discovery obligations under a court order.
  • Whether the court should prohibit and strike the use of DRL § 235 / sealed matrimonial materials filed on a public docket in a non-matrimonial civil action.
  • Whether an appeal lies as of right from a sua sponte preclusion directive not deciding a noticed motion (CPLR 5701[a]).

2. Summary of the Opinion

The Appellate Division issued a mixed disposition, with several rulings of broader procedural significance:

  • Sanctions affirmed: The court upheld striking the complaint under CPLR 3126, finding the plaintiff’s repeated failure to comply with the August 2020 discovery order supported an inference of willful/contumacious conduct.
  • Judiciary Law § 487 counterclaims dismissed: Even though § 487 can apply to an attorney acting pro se, it applies only to actions taken “in their capacity as an attorney.” The alleged deceit occurred in therapy sessions where the plaintiff was not acting as an attorney; therefore, § 487 did not apply.
  • Child-support-based counsel fee counterclaim dismissed: The daughter’s claim for counsel fees as child support failed to state a cause of action under Domestic Relations Law § 236(B)(1)(f).
  • Confidential matrimonial materials: The Second Department held the defendants’ request to strike and bar further use of DRL § 235 / sealed materials was not academic because the documents remained on the public docket and further motion practice could occur; the court granted the requested relief and treated these materials as “confidential personal information” under 22 NYCRR 202.5(e)(1).
  • Appellate jurisdiction: The appeal from a sua sponte preclusion directive was dismissed because no appeal lies as of right from a portion of an order not deciding a motion made on notice (see CPLR 5701[a]), and leave was not granted.

3. Analysis

3.1. Precedents Cited

A. Discovery sanctions and willfulness under CPLR 3126

The court relied on Youkelsone v Pannagl (238 AD3d 1199, 1200) for the proposition that willful or contumacious conduct can be inferred from “ongoing failure to comply” coupled with the absence of an adequate excuse. Here, the plaintiff failed to (i) convert the case to e-filing, (ii) timely move for a protective order, and (iii) provide proper discovery responses—after explicit court direction.

B. Good-faith discovery consultation requirement (22 NYCRR 202.7[c])

Citing Adler v Oxford Health Plans [NY], Inc. (216 AD3d 710, 711-712), the court rejected the plaintiff’s argument that defendants failed to satisfy the rule’s good-faith requirement. The affirmation was deemed sufficient because it identified the “time, place, and nature” of the consultations, the issues discussed, and any resolutions—illustrating the Second Department’s pragmatic, content-focused approach to 22 NYCRR 202.7(c) compliance.

C. COVID tolling executive orders

The court held Executive Order (A. Cuomo) No. 202.8 inapplicable to the discovery deadlines at issue and cited Little v Steelcase, Inc. (206 AD3d 1597, 1600). While the executive orders tolled “any specific time limit” for various procedural steps from March 20, 2020 to November 3, 2020, the court treated the obligations in the August 2020 discovery order as not within that tolling framework in this context—reinforcing that parties cannot assume blanket COVID tolling excuses noncompliance with case-specific discovery directives.

D. Judiciary Law § 487 and the “capacity as an attorney” limitation

The opinion synthesizes three lines of authority:

  • AQ Asset Mgt., LLC v Levine (119 AD3d 457): § 487 may apply to an attorney acting pro se.
  • Altman v DiPreta (204 AD3d 965, 969) and Pinkesz Mut. Holdings, LLC v Pinkesz (198 AD3d 693, 698): § 487 applies only to conduct undertaken by the party “acting in their capacity as an attorney.”

The court treated these precedents as imposing a functional boundary: an attorney-litigant does not carry § 487 exposure into every sphere of life or every interaction related to a dispute; the conduct must be connected to the attorney role (i.e., acting as a lawyer) rather than merely being performed by a person who happens to be admitted to practice.

E. “Academic”ness and continuing consequences of public filings

In rejecting the lower court’s “as academic” disposition of the request to strike and bar use of confidential matrimonial materials, the court relied on Matter of New York State Commn. on Jud. Conduct v Rubenstein (23 NY3d 570, 578). The key idea is that an issue is not academic where the challenged material remains publicly accessible and may continue to cause effects (including in future motion practice).

3.2. Legal Reasoning

A. Striking the complaint (CPLR 3126): enforceability of compliance directives

The Second Department’s reasoning proceeds in classic CPLR 3126 fashion:

  1. Existence of clear directives: The August 2020 discovery order set a sequence: timely convert to e-filing; then timely move for protective order; if not, serve full and complete discovery responses within a set timeframe.
  2. Proof of noncompliance: The plaintiff failed each step.
  3. Inference of willfulness/contumacy: Repeated noncompliance plus no adequate excuse permitted the inference (reinforced by Youkelsone v Pannagl).
  4. Rejection of asserted excuses: (i) claimed lack of notice was contradicted by the record; (ii) alleged failure of good-faith conferral was rejected under Adler v Oxford Health Plans [NY], Inc.; (iii) COVID tolling did not apply under Little v Steelcase, Inc.; and (iv) the plaintiff’s CPLR 3211(a) motion did not toll discovery obligations under part rules.

The decision underscores that litigants—especially attorney-litigants—are expected to treat court-ordered discovery schedules as binding, and that noncompliance can end the case.

B. Judiciary Law § 487: limiting principle for pro se attorney-litigants

The court drew a sharp line: although § 487 can reach pro se attorneys, it reaches only conduct undertaken in the attorney capacity. The defendants alleged the plaintiff used therapy sessions to obtain information for litigation without disclosing he had sued. Even if one assumes the allegation describes sharp practice, the court held it is not “attorney conduct” for § 487 purposes because the plaintiff was not acting as a lawyer in those sessions. Thus, the counterclaims failed as a matter of law.

This is a significant clarification in § 487 litigation: it prevents the statute—designed to police attorney deceit—from becoming a generalized tort remedy against an attorney for conduct merely adjacent to litigation.

C. Confidentiality from matrimonial proceedings in other civil actions (22 NYCRR 202.5[e][1])

The court treated the plaintiff’s inclusion of a confidential report and hearing transcript excerpts from a matrimonial context as prohibited “confidential personal information” in a separate civil action. It applied 22 NYCRR 202.5(e)(1), which provides that (outside matrimonial actions and Surrogate’s Court, and regardless of whether a sealing order is sought) parties must omit or redact confidential personal information from filings. Crucially, the rule’s definition includes “documents or testimony in a matrimonial action protected by Domestic Relations Law § 235” and sealed evidence from such actions when attached or referenced in other civil filings.

The Second Department then addressed justiciability: because the documents “remain on the public docket” and future motion practice was possible, the request to strike and to bar future use without leave was not academic (Matter of New York State Commn. on Jud. Conduct v Rubenstein).

The modification of the order—granting the branches seeking to strike the exhibits and prohibit future attachment/quotation/reference without leave—functions as a forward-looking docket-protection measure, not merely a ruling about past motion papers.

D. Appellate jurisdiction: sua sponte preclusion directive

The court dismissed the appeal from the sua sponte portion of the August 30, 2021 order because it did not decide a motion made on notice; therefore, no appeal lies as of right under CPLR 5701(a) and leave had not been granted. This highlights a recurring appellate practice point: litigants must identify an appealable paper or seek leave where required.

3.3. Impact

A. Containing Judiciary Law § 487 to “attorney-capacity” conduct

The most consequential doctrinal signal is the reaffirmed boundary on § 487: it is not enough that the alleged wrongdoer is an attorney or that the conduct relates to a lawsuit; the conduct must be undertaken in the actor’s capacity as an attorney. Future litigants asserting § 487 claims or counterclaims against pro se attorneys can expect early dismissal where the alleged deceit occurred in personal, commercial, or other non-lawyer roles.

B. Stronger enforcement of matrimonial confidentiality outside matrimonial cases

By applying 22 NYCRR 202.5(e)(1) to treat DRL § 235-protected materials as “confidential personal information” in a non-matrimonial tort action—and granting strike-and-prohibit relief—the decision encourages:

  • More aggressive motion practice to strike confidential matrimonial materials improperly filed in other cases.
  • Greater caution by counsel (and pro se parties) when attaching family-court/matrimonial records as “background” exhibits in unrelated civil litigation.
  • Trial courts to treat such breaches as continuing harms because public docket placement has ongoing consequences.

C. Limited reach of COVID tolling arguments in discovery-sanctions disputes

The decision reinforces that COVID executive-order tolling is not a universal cure for missed discovery obligations—especially those anchored in a court’s specific case-management directives. Parties should assume that court-ordered compliance duties remain enforceable unless the order or governing rule expressly provides otherwise.

D. Procedural clarity on “academic” determinations

The ruling illustrates that “academic” is not a convenient off-ramp where the complained-of materials remain accessible and may be re-used. This may influence future requests to: (i) strike improperly filed exhibits; (ii) restrict future use; and (iii) seek cleanup of the public docket in confidentiality-sensitive contexts.

4. Complex Concepts Simplified

  • CPLR 3126 (Discovery sanctions): A rule allowing courts to penalize parties who disobey discovery orders. The most severe penalty is striking a pleading (here, dismissing the plaintiff’s complaint).
  • Willful/contumacious conduct: Legal shorthand for behavior suggesting intentional or stubborn refusal to comply with court orders. Courts can infer it from repeated noncompliance without a good excuse.
  • Judiciary Law § 487: A New York statute imposing civil liability on an attorney who engages in deceit or collusion in relation to a case. This decision emphasizes the statute applies only when the person is acting “as an attorney,” not merely because they are an attorney.
  • Domestic Relations Law § 235: A confidentiality rule protecting certain matrimonial filings/testimony from public disclosure. Using such material in another civil case can be restricted and subject to strike orders.
  • 22 NYCRR 202.5(e)(1): A redaction/omission rule for filings in New York courts. It defines “confidential personal information” broadly, including DRL § 235 materials and sealed matrimonial evidence when referenced or attached in other civil actions.
  • “Academic”: Courts use this term when an issue no longer needs a decision because it will have no practical effect. Here, it was not academic because the confidential documents were still on the public docket and could affect future proceedings.
  • Appeal as of right vs. leave to appeal: Not every ruling is immediately appealable automatically. A sua sponte directive not deciding a noticed motion is generally not appealable as of right under CPLR 5701(a).

5. Conclusion

Nimkoff v Waldbaum delivers three practical lessons with precedential force in day-to-day litigation:

  1. Judiciary Law § 487 is role-limited: Even when an attorney is litigating pro se, § 487 targets deceit committed in the attorney capacity—excluding personal-context conduct like therapy sessions.
  2. Discovery orders are enforceable on their terms: Repeated noncompliance—especially without a persuasive excuse—supports the severe sanction of striking the complaint under CPLR 3126; generalized COVID tolling arguments may not rescue missed court-ordered obligations.
  3. Matrimonial confidentiality follows the material: DRL § 235-protected and sealed matrimonial content constitutes “confidential personal information” when injected into other civil filings, justifying strike orders and prospective prohibitions without leave of court, particularly when the content remains on a public docket.

In broader context, the decision reflects the Second Department’s effort to maintain: (i) disciplined compliance with case-management orders; (ii) principled limits on attorney-specific liability statutes; and (iii) meaningful confidentiality protections in an era where public e-filing can make inadvertent disclosure both immediate and enduring.