Hyman v. Schwartz

• Decision Date: 02 April 2015
• Docket Number: 518622.
• Citation: 6 N.Y.S.3d 732,127 A.D.3d 1281,2015 N.Y. Slip Op. 02819
• Parties: Marita E. HYMAN, Appellant, v. Arthur SCHWARTZ et al., Respondents.
• Court: New York Supreme Court — Appellate Division

127 A.D.3d 1281

6 N.Y.S.3d 732

2015 N.Y. Slip Op. 02819

Marita E. HYMAN, Appellant

v.Arthur SCHWARTZ et al., Respondents.

518622.

Supreme Court, Appellate Division, Third Department, New York.

April 2, 2015.

Marita E. Hyman, West Edmeston, appellant pro se.

Advocates for Justice, Chartered Attorneys, New York City (Arthur Schwartz of counsel), for Arthur Schwartz and another, respondents.

Lichten & Bright, PC, New York City (Daniel R. Bright of counsel), for Stuart Lichten and another, respondents.

Before: McCARTHY, J.P., EGAN JR., DEVINE and CLARK, JJ.

Opinion

EGAN JR., J.

Appeal from an order of the Supreme Court (Cerio Jr., J.), entered June 24, 2013 in Madison County, which, among other things, denied plaintiff's motion to dismiss defendant Arthur Schwartz's counterclaims.

Defendant Arthur Schwartz, a licensed attorney, represented plaintiff in connection with disciplinary action taken against her while she was a graduate student at Cornell University (Matter of Hyman v. Cornell Univ., 82 A.D.3d 1309, 918 N.Y.S.2d 226 [2011] ). Schwartz also represented plaintiff in a Title IX action (see 20 U.S.C. § 1681 et seq. ) against Cornell in federal court (Hyman v. Cornell Univ., 834 F.Supp.2d 77 [N.D.N.Y.2011], affd. 485 Fed.Appx. 465 [2d Cir.2012], cert. denied ––– U.S. ––––, 133 S.Ct. 1268, 185 L.Ed.2d 184 [2013] ) (hereinafter the federal action). As a result of disagreements between plaintiff and Schwartz over his representation and fees, plaintiff commenced this action against Schwartz and defendant Schwartz, Lichten & Bright, P.C., Schwartz's law firm, as well as defendants Stuart Lichten and Daniel Bright—Schwartz's former partners. 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 and Bright-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 Bright and dismissed the complaint against them. The court also partially granted the motion of Schwartz and the law firm by dismissing the negligent and intentional infliction of emotional distress claims. Upon appeal by Schwartz and the law firm, this Court modified and dismissed the legal malpractice claim (114 A.D.3d 1110, 1112, 981 N.Y.S.2d 468 [2014], lv. dismissed 24 N.Y.3d 930, 993 N.Y.S.2d 541, 17 N.E.3d 1137 [2014] ).

Schwartz and the law firm subsequently filed an answer, and Schwartz asserted four counterclaims against plaintiff (breach of contract, quantum meruit, intentional infliction of emotional distress and prima facie tort). Plaintiff moved for reconsideration of the December 2012 order dismissing the complaint against Lichten and Bright, claiming that she obtained new evidence that established that Lichten and Bright had been properly served, and, in a second motion, moved to dismiss the subject counterclaims. In a June 2013 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] ), denied that 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's counterclaims. A cause of action for quantum meruit requires a showing of “ ‘a plaintiff's performance of services in good faith, acceptance of those services by a defendant, an expectation of compensation and proof of the reasonable value of the services provided’ ” ( Rafferty Sand & Gravel, LLC v. Kalvaitis, 116 A.D.3d 1290, 1291–1292, 984 N.Y.S.2d 462 [2014], quoting DerOhannesian v. City of Albany, 110 A.D.3d 1288, 1289, 975 N.Y.S.2d 188 [2013], lv. denied 22 N.Y.3d 862, 2014 WL 642724 [2014] ). Here, Schwartz alleged that he performed legal services for plaintiff at the direction of the federal court, which had denied his application to be relieved as counsel, and that the value of his services was approximately $8,000. While not a model of clarity, the counterclaim—read liberally and after affording Schwartz the benefit of every possible inference—states a cause of action for quantum meruit (see Rafferty Sand & Gravel, LLC v. Kalvaitis, 116 A.D.3d at 1291–1292, 984 N.Y.S.2d 462 ; Goldstein v. Derecktor Holdings, Inc., 85 A.D.3d 728, 729, 924 N.Y.S.2d 804 [2011] ). Moreover, contrary to her assertion, plaintiff did 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 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 [2002] ; State of N.Y. Workers' Compensation Bd. v. Madden, 119 A.D.3d 1022, 1026, 989 N.Y.S.2d 156 [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. BTA Bldg. & Developing, Inc., 122 A.D.3d 573, 573, 996 N.Y.S.2d 129 [2014] ; Torok v. Moore's Flatwork & Founds., LLC, 106 A.D.3d 1421, 1422, 966 N.Y.S.2d 572 [2013] ). Here, Schwartz alleged that, in December 2010, he and plaintiff entered into an agreement whereby he would provide legal services to plaintiff, plaintiff agreed to tender payment for those services, he thereafter provided those services, plaintiff failed to make payment and, as a result, he sustained damages.

On a motion to dismiss pursuant to CPLR 3211(a)(7), “the pleading is to be given a liberal construction, the allegations contained within it are assumed to be true and the plaintiff[ ] [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 are flatly contradicted by documentary evidence or are inherently incredible” (DerOhannesian v. City of Albany, 110 A.D.3d at 1289, 975 N.Y.S.2d 188 [internal quotation marks and citations omitted]; see Tenney v. Hodgson Russ, LLP, 97 A.D.3d 1089, 1090, 949 N.Y.S.2d 535 [2012] ; Mesiti v. Mongiello, 84 A.D.3d 1547, 1549, 924 N.Y.S.2d 175 [2011] ). Here, in support of the motion to dismiss, plaintiff submitted documentary evidence that flatly contradicted the allegation that an agreement had been reached between plaintiff and Schwartz. Such proof included a letter written by Schwartz to the judge who presided over the federal action, wherein Schwartz explained that he was hired by plaintiff without any agreement as to fees beyond the initial filing and was proceeding without a retainer and agreement. As this proof utterly disputes Schwartz's allegations that an agreement was formed, the breach of contract counterclaim must be dismissed (see DerOhannesian v. City of Albany, 110 A.D.3d at 1290, 975 N.Y.S.2d 188 ).

We reach a similar conclusion with respect to the counterclaim for intentional infliction of emotional distress. Schwartz was required to plead “extreme and outrageous conduct, the intentional or reckless nature of such conduct, a causal relationship between the conduct and the resulting injury, and severe emotional distress” ( Cusimano v. United Health Servs. Hosps., Inc., 91 A.D.3d 1149, 1152, 937 N.Y.S.2d 413 [2012], lv. denied 19 N.Y.3d 801, 2012 WL 1500604 [2012] ; see Howell v. New York Post Co., 81 N.Y.2d 115, 121, 596 N.Y.S.2d 350, 612 N.E.2d 699 [1993] ). Notably, the alleged conduct must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency ... and [be] utterly intolerable in a civilized community” (Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 303, 461 N.Y.S.2d 232, 448 N.E.2d 86 [1983] [internal quotation marks and citations omitted]; accord Cusimano v. United Health Servs. Hosps., Inc.,

91 A.D.3d at 1152, 937 N.Y.S.2d 413 ). Here, Schwartz alleged that, during the course of their professional relationship, plaintiff sent unwanted gifts and letters, engaged in suggestive conversations and made threats of future conduct toward him. Even reading the allegations liberally and accepting them as true, we find that the alleged conduct, while undeniably inappropriate, did not rise to the level of being “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency” (Murphy v. American Home Prods. Corp., 58 N.Y.2d at 303, 461 N.Y.S.2d 232, 448 N.E.2d 86 [internal quotation marks and citation omitted]; see generally Gray v. Schenectady City School Dist., 86 A.D.3d 771, 772, 927 N.Y.S.2d 442 [2011] ; Hart v. Child's Nursing Home Co., Inc., 298 A.D.2d 721, 722–723, 749 N.Y.S.2d 297 [2002] ).

As for Schwartz's counterclaim for prima facie tort, there can be no recovery under this theory “unless malevolence is the sole motive for [plaintiff's] otherwise lawful act or, in [other words], unless [plaintiff] acts from disinterested malevolence” (Burns Jackson Miller Summit & Spitzer v. Lindner, 59 N.Y.2d 314, 333, 464 N.Y.S.2d 712, 451 N.E.2d 459 [1983] [internal quotation marks and citation omitted]; see Wiggins & Kopko, LLP v. Masson, 116 A.D.3d 1130, 1131, 983 N.Y.S.2d 665 [2014] ; Cusimano v. United Health Servs. Hosps., Inc., 91 A.D3d at 1153, 937 N.Y.S.2d 413 ). Stated another way, the act “must be a malicious one unmixed with any other and exclusively directed to injury and damage of another” (Burns Jackson Miller Summit & Spitzer v. Lindner, 59 N.Y.2d at 333, 464 N.Y.S.2d 712, 451 N.E.2d 459 [internal quotation marks and citation omitted]; see Lerwick v. Kelsey, 24 A.D.3d 931, 932, 807 N.Y.S.2d 147 [2005], ...