Marita E. HYMAN, Appellant, v ARTHUR SCHWARTZ et al., Respondents.
Supreme Court, Appellate Division, Third Department, New York
April 2, 2015
127 AD3d 1281 | 6 NYS3d 732
Egan Jr., J.
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 AD3d 1309 [2011]). Schwartz also represented plaintiff in a Title IX action (see
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
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 AD3d 1290, 1291-1292 [2014], quoting DerOhannesian v City of Albany, 110 AD3d 1288, 1292 [2013], lv denied 22 NY3d 862 [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 AD3d at 1291-1292; Goldstein v Derecktor Holdings, Inc., 85 AD3d 728, 729 [2011]). Moreover, contrary to her assertion,
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 AD3d 573, 573 [2014]; Torok v Moore‘s Flatwork & Founds., LLC, 106 AD3d 1421, 1422 [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
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 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 to go beyond all possible bounds of decency . . . and [be] utterly intolerable in a civilized community” (Murphy v American Home Prods. Corp., 58 NY2d 293, 303 [1983] [internal quotation marks and citations omitted]; accord Cusimano v United Health Servs. Hosps., Inc., 91 AD3d at 1152). 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 NY2d at 303 [internal quotation marks and citation omitted]; see generally Gray v Schenectady City School Dist., 86 AD3d 771, 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 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 NY2d 314, 333 [1983] [internal quotation marks and citation omitted]; see Wiggins & Kopko, LLP v Masson, 116 AD3d 1130, 1131 [2014]; Cusimano v United Health Servs. Hosps., Inc., 91 AD3d at 1153). 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 NY2d at 333 [internal quotation marks and citation omitted]; see Lerwick v Kelsey, 24 AD3d 931, 932 [2005], lv denied 6 NY3d 711 [2006]).
Here, Schwartz alleged that plaintiff commenced the instant action and opposed his motion to be relieved as counsel in the federal action solely to inflict harm and that, as a result, he incurred damages. Plaintiff‘s complaint alleged four causes of action, one of which sought a de novo review of a fee dispute arbitration award to Schwartz. Even accepting as true the allegation that plaintiff‘s commencement of the action was intended to inflict harm upon Schwartz, it cannot be said that plaintiff was solely motivated by malevolence. Indeed, at the time that Schwartz sought to be relieved as counsel in the
Finally, we have no quarrel with Supreme Court‘s denial of plaintiff‘s motion to renew. As relevant here, a motion to renew must “be based upon new facts not offered on the prior motion that would change the prior determination” (
After Supreme Court determined in its December 2012 order that plaintiff failed to properly serve Lichten and Bright, plaintiff moved to renew, offering new evidence that she claimed established proper service. Specifically, plaintiff claimed that she obtained two affidavits of service from the New York City Sheriff‘s Office, one of which indicated that Lichten and Bright were served on July 19, 2012 by delivery of a copy of the summons with notice to a paralegal at their office. This affidavit, however, did not establish 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 Lichten and Bright‘s place of business was not sufficient to confer jurisdiction, as it was not coupled with the required mailing within 20 days (see
McCarthy, J.P., Devine and Clark, JJ., concur. Ordered that the order is modified, on the law, without costs, by reversing so much thereof as denied plaintiff‘s motion to dismiss the breach