| Hyman v Schwartz |
| 2014 NY Slip Op 01362 [114 AD3d 1110] |
| February 27, 2014 |
| Appellate Division, Third Department |
| Marita E. Hyman, Respondent, v Arthur Schwartz et al.,Appellants, et al., Defendants. |
—[*1] Marita E. Hyman, West Edmeston, respondent pro se.
Stein, J. Appeal from that part of an order of the Supreme Court (Cerio Jr., J.),entered December 20, 2012 in Madison County, which partially denied a motion bydefendants Arthur Schwartz and Schwartz, Lichten & Bright, PC to, among other things,dismiss the complaint.
In August 2007, plaintiff—then a Cornell University graduatestudent—was charged with violating the University's Campus Code of Conduct byallegedly harassing a professor. Following disciplinary proceedings, the University'sHearing Board sustained the harassment charge and issued a penalty, which was, apartfrom a slight modification, affirmed by the University's Review Board. Plaintiff thenretained defendant Arthur Schwartz to represent her in a CPLR article 78 proceedingchallenging the University's determination. In addition, Schwartz represented plaintiff ina Title IX claim (see 20 USC § 1681 et seq.). After both of thosematters were unsuccessful (Matter of Hyman v Cornell Univ., 82 AD3d 1309 [2011];Hyman v Cornell Univ., 834 F Supp 2d 77 [2011]), plaintiff commenced theinstant action against Schwartz, defendant Schwartz, Lichten & Bright, PC (hereinafterthe law firm)—Schwartz's former and now dissolved law firm—anddefendants Stuart Lichten and Daniel Bright—his former partners—seekingdamages for negligent and intentional infliction of emotional distress and legalmalpractice. In the same complaint, plaintiff also challenged an arbitration award madein Schwartz's favor in connection with a fee dispute between Schwartz and plaintiff.[*2]
Schwartz and the law firm (hereinaftercollectively referred to as defendants) moved, and Lichten and Bright cross-moved, todismiss the complaint for, among other things, failure to state a cause of action and lackof personal jurisdiction (see CPLR 3211 [a] [7], [8]). Defendants also moved inthe alternative for a change of venue (see CPLR 510 [3]). Supreme Courtpartially granted defendants' motion by dismissing the claims against them for intentionaland negligent infliction of emotional distress, and granted the cross motion by Lichtenand Bright in is entirety. Defendants now appeal.
Initially, we reject defendants' argument that Supreme Court should have dismissedthe claims against the law firm due to lack of personal jurisdiction. Supreme Court foundthat service was effectuated upon the law firm by delivery of the summons with notice toSchwartz as an officer/director (see CPLR 311 [a] [1]; Vincent C. Alexander,Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C311:1 at359).[FN1]As limited by their briefs, defendants now argue that, because the law firm wasdissolved, service could only be made through the Secretary of State (seeBusiness Corporation Law §§ 304, 306 [a]; CPLR 311 [a] [1]; Bruce Supply Corp. v New WaveMech., 4 AD3d 444, 445 [2004]; Camacho v New York City Tr. Auth.,115 AD2d 691, 693 [1985]; seealso Centennial El. Indus., Inc. v Ninety-Five Madison Corp., 90 AD3d 689,690 [2011], lv dismissed 19 NY3d 936 [2012]; Speroni v Mid-IslandHosp., 222 AD2d 497, 498 [1995]). However, the record reflects that the law firm'sdissolution postdated the date on which service was purportedly made. Accordingly,defendants' argument lacks merit and no other challenge to the manner of service uponthe law firm is before us.
We are also unpersuaded by defendants' contention that Supreme Court should havedismissed plaintiff's first cause of action, which sought a de novo review of an arbitrationaward made in connection with the attorney fee dispute between plaintiff and Schwartz.Under the Rules of the Chief Administrator of the Courts that govern the fee disputeresolution program (see 22 NYCRR part 137), in the event of a fee disputebetween an attorney and a client, the client may elect to resolve the dispute by arbitration(see 22 NYCRR 137.2 [a]). Where that process has been utilized, "[a] partyaggrieved by [an] arbitration award may commence an action on the merits of the feedispute in a court of competent jurisdiction within 30 days after the arbitration award hasbeen mailed" (22 NYCRR 137.8 [a]). Here, plaintiff sought arbitration of the fee disputebetween her and Schwartz and, after the award was issued, timely exercised her right to ade novo review of such award (see Landa v Dratch, 45 AD3d 646, 647-648 [2007]).Inasmuch as there is nothing in the record indicating that plaintiff previously waived herright to such review (see 22 NYCRR 137.2 [c]; 137.8 [b]; Eiseman Levine Lehrhaupt &Kakoyiannis, P.C. v Torino Jewelers, Ltd., 44 AD3d 581, 583 [2007]), SupremeCourt properly denied defendants' motion to dismiss this cause of action.
However, defendants correctly argue that Supreme Court should have granted theirmotion to dismiss the legal malpractice claim. It is well established that, "[i]n order tosustain a claim for legal malpractice, a plaintiff must establish both that the defendantattorney failed to exercise the ordinary reasonable skill and knowledge commonlypossessed by a member of the legal profession which results in actual damages to aplaintiff, and that the plaintiff would have succeeded on the merits of the underlyingaction but for the attorney's negligence" (Leder v Spiegel, 9 NY3d 836, 837 [2007], cert deniedsub nom. Spiegel v Rowland, 552 US 1257 [2008] [internal quotation marks andcitation omitted]; accord Alaimov McGeorge, 69 AD3d 1032, [*3]1034 [2010];see Kreamer v Town ofOxford, 96 AD3d 1128, 1128-1129 [2012]; see also MacDonald v Guttman, 72 AD3d 1452,1454-1455 [2010]; Bixby vSomerville, 62 AD3d 1137, 1139 [2009]). Here, although the complaint isreplete with allegations of Schwartz's alleged failures to use reasonable and ordinary skillin connection with both of plaintiff's underlying claims, it contains no allegation that, butfor these alleged failures, plaintiff would have been successful on either claim.[FN2]Therefore, even if we accept the allegations as true and liberally construe the complaintto allege negligent representation by Schwartz (see Leon v Martinez, 84 NY2d83, 87-88 [1994]; Moulton v State of New York, 114 AD3d 115, 119 [2013]; Scheffield v Vestal Parkway Plaza, LLC, 102 AD3d 992,993 [2013]), the allegations are insufficient to make out a prima facie case of legalmalpractice (see Kreamer v Town of Oxford, 96 AD3d at 1128; MacDonaldv Guttman, 72 AD3d at 1455).
Finally, we discern no error in Supreme Court's denial of defendants' motion for adiscretionary change of venue (see CPLR 510 [3]). To succeed on such anapplication, the moving party must demonstrate that "the convenience of materialwitnesses and the ends of justice will be promoted by the change" (CPLR 510 [3]; see Cavazzini v Viennas, 82AD3d 1343, 1344 [2011]; State of New York v Quintal, Inc., 79 AD3d 1357,1357-1359 [2010]) and must proffer "detailed relevant information establishing that theconvenience of the nonparty witnesses would be enhanced" (Cavazzini vViennas, 82 AD3d at 1344 [internal quotation marks and citations omitted]; accord Manchester Tech. vHansen, 6 AD3d 806, 807 [2004]; Singh v Catamount Dev. Corp., 306AD2d 738, 738 [2003]). Here, Schwartz's unsupported conclusory statement that all ofthe witnesses to plaintiff's dealings are located in New York County fell far short of therequired showing, and we decline to disturb Supreme Court's exercise of its discretion inthis regard (see Cavazzini v Viennas, 82 AD3d at 1344). Defendants' remainingcontentions have been considered and are either academic or without merit.
Peters, P.J., Rose and Egan Jr., JJ., concur. Ordered that the order is modified, on thelaw, without costs, by reversing so much thereof as denied the motion of defendantsArthur Schwartz and Schwartz, Lichten & Bright, PC to dismiss the fourth cause ofaction; motion granted to said extent and said cause of action dismissed; and, as somodified, affirmed.
Footnote 1: There is no affidavit ofservice in the record.
Footnote 2: Notably, afterSchwartz's representation terminated, plaintiff proceeded on both her state proceedingand federal action, without success.