Hyman v. Schwartz

• Decision Date: 27 February 2014
• Citation: 981 N.Y.S.2d 468,2014 N.Y. Slip Op. 01362,114 A.D.3d 1110
• Parties: Marita E. HYMAN, Respondent, v. Arthur SCHWARTZ et al., Appellants, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

114 A.D.3d 1110
981 N.Y.S.2d 468
2014 N.Y. Slip Op. 01362

Marita E. HYMAN, Respondent,
v.
Arthur SCHWARTZ et al., Appellants, et al., Defendants.

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

Feb. 27, 2014.

Arthur Schwartz, Advocates for Justice Chartered Attorneys, New York City, appellant pro se, and for Schwartz, Lichten & Bright, PC, appellant.

[981 N.Y.S.2d 469]

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

Before: PETERS, P.J., STEIN, ROSE and EGAN JR., JJ.

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 by defendants Arthur Schwartz and Schwartz, Lichten & Bright, PC to, among other things, dismiss the complaint.

In August 2007, plaintiff—then a Cornell University graduate student—was charged with violating the University's Campus Code of Conduct by allegedly harassing a professor. Following disciplinary proceedings, the University's Hearing Board sustained the harassment charge and issued a penalty, which was, apart from a slight modification, affirmed by the University's Review Board. Plaintiff then retained defendant Arthur Schwartz to represent her in a CPLR article 78 proceeding challenging the University's determination. In addition, Schwartz represented plaintiff in a Title IX claim ( see20 USC § 1681 et seq.). After both of those matters were unsuccessful (Matter of Hyman v. Cornell Univ., 82 A.D.3d 1309, 918 N.Y.S.2d 226 [2011];Hyman v. Cornell Univ., 834 F.Supp.2d 77 [2011] ), plaintiff commenced the instant action against Schwartz, defendant Schwartz, Lichten & Bright, PC (hereinafter the law firm)—Schwartz's former and now dissolved law firm—and defendants Stuart Lichten and Daniel Bright—his former partners—seeking damages for negligent and intentional infliction of emotional distress and legal malpractice. In the same complaint, plaintiff also challenged an arbitration award made in Schwartz's favor in connection with a fee dispute between Schwartz and plaintiff.

Schwartz and the law firm (hereinafter collectively referred to as defendants) moved, and Lichten and Bright cross-moved, to dismiss the complaint for, among other things, failure to state a cause of action and lack of personal jurisdiction ( seeCPLR 3211[a][7], [8] ). Defendants also moved in the alternative for a change of venue ( seeCPLR 510[3] ). Supreme Court partially granted defendants' motion by dismissing the claims against them for intentional and negligent infliction of emotional distress, and granted the cross motion by Lichten and Bright in is entirety. Defendants now appeal.

Initially, we reject defendants' argument that Supreme Court should have dismissed the claims against the law firm due to lack of personal jurisdiction. Supreme Court found that service was effectuated upon the law firm by delivery of the summons with notice to Schwartz as an officer/director ( seeCPLR 311[a][1]; Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 311:1 at 359).¹ As limited by their briefs, defendants now argue that, because the law firm was dissolved, 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 Wave Mech., 4 A.D.3d 444, 445, 773 N.Y.S.2d 408 [2004];Camacho v. New York City Tr. Auth., 115 A.D.2d 691, 693, 496 N.Y.S.2d 516 [1985];see also Centennial El. Indus., Inc. v. Ninety–Five Madison Corp., 90 A.D.3d 689, 690, 934 N.Y.S.2d 483 [2011],lv. dismissed19 N.Y.3d 936, 950 N.Y.S.2d 90, 973 N.E.2d 186 [2012];Speroni v. Mid–Island Hosp., 222 A.D.2d 497, 498, 635 N.Y.S.2d 255 [1995] ). However, the record reflects that the law firm's dissolution

[981 N.Y.S.2d 470]

postdated the date on which service was purportedly made....