| Hyman v Schwartz |
| 2015 NY Slip Op 02819 [127 AD3d 1281] |
| April 2, 2015 |
| Appellate Division, Third Department |
[*1]
| Marita E. Hyman, Appellant, v ArthurSchwartz et al., Respondents. |
Marita E. Hyman, West Edmeston, appellant pro se.
Advocates for Justice, Chartered Attorneys, New York City (Arthur Schwartz ofcounsel), for Arthur Schwartz and another, respondents.
Lichten & Bright, PC, New York City (Daniel R. Bright of counsel), for StuartLichten and another, respondents.
Egan Jr., J. Appeal from an order of the Supreme Court (Cerio Jr., J.), entered June24, 2013 in Madison County, which, among other things, denied plaintiff's motion todismiss defendant Arthur Schwartz's counterclaims.
Defendant Arthur Schwartz, a licensed attorney, represented plaintiff in connectionwith disciplinary action taken against her while she was a graduate student at CornellUniversity (Matter of Hyman vCornell Univ., 82 AD3d 1309 [2011]). Schwartz also represented plaintiff in aTitle IX action (see 20 USC § 1681 et seq.) against Cornellin federal court (Hyman v Cornell Univ., 834 F Supp 2d 77 [ND NY 2011],affd 485 Fed Appx 465 [2d Cir 2012], cert denied 568 US &mdash, 133S Ct 1268 [2013]) (hereinafter the federal action). As a result of disagreements betweenplaintiff and Schwartz over his representation and fees, plaintiff commenced this actionagainst Schwartz and defendant Schwartz, Lichten & Bright, PC, Schwartz's lawfirm, as well as defendants Stuart Lichten and Daniel Bright—Schwartz's formerpartners. The complaint asserted, among other things, claims for legal malpractice,negligent infliction of emotional distress and intentional infliction of emotional distress.In two motions—one by Schwartz and the law firm and the other by Lichten andBright—defendants moved to dismiss the complaint alleging, among other things,improper service upon Lichten and Bright. In a December 2012 order, Supreme Court,among other things, held that plaintiff had not properly served Lichten and [*2]Bright and dismissed the complaint against them. The courtalso partially granted the motion of Schwartz and the law firm by dismissing thenegligent and intentional infliction of emotional distress claims. Upon appeal bySchwartz and the law firm, this Court modified and dismissed the legal malpractice claim(114 AD3d 1110, 1112 [2014], lv dismissed 24 NY3d 930 [2014]).
Schwartz and the law firm subsequently filed an answer, and Schwartz asserted fourcounterclaims against plaintiff (breach of contract, quantum meruit, intentional inflictionof emotional distress and prima facie tort). Plaintiff moved for reconsideration of theDecember 2012 order dismissing the complaint against Lichten and Bright, claiming thatshe obtained new evidence that established that Lichten and Bright had been properlyserved, and, in a second motion, moved to dismiss the subject counterclaims. In a June2013 order, Supreme Court denied plaintiff's motion to dismiss the counterclaims and,treating her motion to reconsider as one to renew (see CPLR 3211 [e]), deniedthat motion as well. Plaintiff now appeals solely from the June 2013 order.
We turn first to Supreme Court's denial of plaintiff's motion to dismiss Schwartz'scounterclaims. A cause of action for quantum meruit requires a showing of " 'aplaintiff's performance of services in good faith, acceptance of those services by adefendant, an expectation of compensation and proof of the reasonable value of theservices provided' " (Rafferty Sand & Gravel, LLC v Kalvaitis, 116 AD3d1290, 1291-1292 [2014], quoting DerOhannesian v City of Albany, 110 AD3d 1288, 1292[2013], lv denied 22 NY3d 862 [2014]). Here, Schwartz alleged that heperformed legal services for plaintiff at the direction of the federal court, which haddenied his application to be relieved as counsel, and that the value of his services wasapproximately $8,000. While not a model of clarity, the counterclaim—readliberally and after affording Schwartz the benefit of every possibleinference—states a cause of action for quantum meruit (see Rafferty Sand& Gravel, LLC v Kalvaitis, 116 AD3d at 1291-1292; Goldstein v Derecktor Holdings,Inc., 85 AD3d 728, 729 [2011]). Moreover, contrary to her assertion, plaintiffdid not submit documentary evidence utterly refuting this claim (see CPLR 3211[a] [1]; see generally Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326[2002]; State of N.Y. Workers'Compensation Bd. v Madden, 119 AD3d 1022, 1026 [2014]). Accordingly,Supreme Court properly denied plaintiff's motion to dismiss this counterclaim.
As to the breach of contract counterclaim, such a claim requires an agreement,performance by one party, failure to perform by the other party and resulting damages(see Hampshire Props. v BTABldg. & Developing, Inc., 122 AD3d 573, 573 [2014]; Torok v Moore's Flatwork &Founds., LLC, 106 AD3d 1421, 1422 [2013]). Here, Schwartz alleged that, inDecember 2010, he and plaintiff entered into an agreement whereby he would providelegal services to plaintiff, plaintiff agreed to tender payment for those services, hethereafter provided those services, plaintiff failed to make payment and, as a result, hesustained damages.
On a motion to dismiss pursuant to CPLR 3211 (a) (7), "the pleading is to be given aliberal construction, the allegations contained within it are assumed to be true and theplaintiff[ ] [is] to be afforded every favorable inference. This liberal standard, however,will not save allegations that consist of bare legal conclusions or factual claims that areflatly contradicted by documentary evidence or are inherently incredible"(DerOhannesian v City of Albany, 110 AD3d at 1289 [internal quotation marksand citations omitted]; seeTenney v Hodgson Russ, LLP, 97 AD3d 1089, 1090 [2012]; Mesiti v Mongiello, 84 AD3d1547, 1549 [2011]). Here, in support of the motion to dismiss, plaintiff submitteddocumentary evidence that flatly contradicted the allegation that an agreement had beenreached between plaintiff and Schwartz. Such proof included a letter written by Schwartzto the judge who presided over the federal action, wherein [*3]Schwartz explained that he was hired by plaintiff withoutany agreement as to fees beyond the initial filing and was proceeding without a retainerand agreement. As this proof utterly disputes Schwartz's allegations that an agreementwas formed, the breach of contract counterclaim must be dismissed (seeDerOhannesian v City of Albany, 110 AD3d at 1290).
We reach a similar conclusion with respect to the counterclaim for intentionalinfliction of emotional distress. Schwartz was required to plead "extreme and outrageousconduct, the intentional or reckless nature of such conduct, a causal relationship betweenthe conduct and the resulting injury, and severe emotional distress" (Cusimano v United Health Servs.Hosps., Inc., 91 AD3d 1149, 1152 [2012], lv denied 19 NY3d 801[2012]; see Howell v New York Post Co., 81 NY2d 115, 121 [1993]). Notably,the alleged conduct must be "so outrageous in character, and so extreme in degree, as togo beyond all possible bounds of decency . . . and [be] utterly intolerable ina civilized community" (Murphy v American Home Prods. Corp., 58 NY2d 293,303 [1983] [internal quotation marks and citations omitted]; accord Cusimano vUnited Health Servs. Hosps., Inc., 91 AD3d at 1152). Here, Schwartz alleged that,during the course of their professional relationship, plaintiff sent unwanted gifts andletters, engaged in suggestive conversations and made threats of future conduct towardhim. Even reading the allegations liberally and accepting them as true, we find that thealleged conduct, while undeniably inappropriate, did not rise to the level of being "sooutrageous in character, and so extreme in degree, as to go beyond all possible bounds ofdecency" (Murphy v American Home Prods. Corp., 58 NY2d at 303 [internalquotation marks and citation omitted]; see generally Gray v Schenectady City School Dist., 86 AD3d771, 772 [2011]; Hart v Child's Nursing Home Co., 298 AD2d 721, 722-723[2002]).
As for Schwartz's counterclaim for prima facie tort, there can be no recovery underthis theory "unless malevolence is the sole motive for [plaintiff's] otherwise lawful act or,in [other words], unless [plaintiff] acts from disinterested malevolence" (BurnsJackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 333 [1983] [internalquotation marks and citation omitted]; see Wiggins & Kopko, LLP v Masson, 116 AD3d1130, 1131 [2014]; Cusimano v United Health Servs. Hosps., Inc., 91 AD3dat 1153). Stated another way, the act "must be a malicious one unmixed with any otherand exclusively directed to injury and damage of another" (Burns Jackson MillerSummit & Spitzer v Lindner, 59 NY2d at 333 [internal quotation marks andcitation omitted]; see Lerwick vKelsey, 24 AD3d 931, 932 [2005], lv denied 6 NY3d 711 [2006]).
Here, Schwartz alleged that plaintiff commenced the instant action and opposed hismotion to be relieved as counsel in the federal action solely to inflict harm and that, as aresult, he incurred damages. Plaintiff's complaint alleged four causes of action, one ofwhich sought a de novo review of a fee dispute arbitration award to Schwartz. Evenaccepting as true the allegation that plaintiff's commencement of the action was intendedto inflict harm upon Schwartz, it cannot be said that plaintiff was solelymotivated by malevolence. Indeed, at the time that Schwartz sought to be relieved ascounsel in the federal action, a motion to dismiss plaintiff's complaint was pending. Hadplaintiff not opposed Schwartz's motion to withdraw as counsel, she faced the possibilityof being unrepresented in that action. Considering these facts, it cannot be said thatplaintiff's actions were solely motivated by malevolence and, therefore, this counterclaimmust be dismissed.
Finally, we have no quarrel with Supreme Court's denial of plaintiff's motion torenew. As relevant here, a motion to renew must "be based upon new facts not offered onthe prior motion that would change the prior determination" (CPLR 2221 [e] [2]; seeHoward v Stanger, 122 [*4]AD3d 1121, 1123[2014], lv dismissed 24 NY3d 1210 [2015]; Johnson v State of New York, 95 AD3d 1455, 1456[2012]). Further, a motion to renew "is not a second chance to remedy inadequacies thatoccurred in failing to exercise due diligence in the first instance" (Tibbits v Verizon N.Y., Inc.,40 AD3d 1300, 1303 [2007]; accord Howard v Stanger, 122 AD3d at 1123),and such applications "are left to the sound discretion of the trial court" (Matter of City of New York v NewYork State Pub. Empl. Relations Bd., 103 AD3d 145, 152 [2012], lvdenied 21 NY3d 855 [2013]; accord Onewest Bank, FSB v Slowek, 115 AD3d 1083,1083 [2014]).
After Supreme Court determined in its December 2012 order that plaintiff failed toproperly serve Lichten and Bright, plaintiff moved to renew, offering new evidence thatshe claimed established proper service. Specifically, plaintiff claimed that she obtainedtwo affidavits of service from the New York City Sheriff's Office, one of which indicatedthat Lichten and Bright were served on July 19, 2012 by delivery of a copy of thesummons with notice to a paralegal at their office. This affidavit, however, did notestablish valid service upon Lichten and Bright, as it established service upon the parties'law firm, not the parties individually. Moreover, service upon the paralegal at Lichtenand Bright's place of business was not sufficient to confer jurisdiction, as it was notcoupled with the required mailing within 20 days (see CPLR 308 [2]; Maiuri v Pearlstein, 53 AD3d816, 817 [2008]; cf. Suttonv Hafner Valuation Group, Inc., 115 AD3d 1039, 1041 [2014]). Inasmuch asplaintiff's proof did not establish that it would have led to a different result, the motion torenew was properly denied (see CPLR 2221 [e]). Plaintiff's remainingcontentions, to the extent not specifically addressed, have been considered and found tobe lacking in merit.
McCarthy, J.P., Devine and Clark, JJ., concur. Ordered that the order is modified, onthe law, without costs, by reversing so much thereof as denied plaintiff's motion todismiss the breach of contract, intentional infliction of emotional distress and prima facietort counterclaims; motion granted to that extent and said counterclaims dismissed; and,as so modified, affirmed.