Hyman v Schwartz2014 NY Slip Op 33274(U)

December 17, 2014Supreme Court, New York County

Docket Number: 2014-1193Judge: Eugene D. Faughnan

Cases posted with a "30000" identifier, i.e., 2013 NYSlip Op 30001(U), are republished from various state

and local government websites. These include the NewYork State Unified Court System's E-Courts Service,

and the Bronx County Clerk's office.This opinion is uncorrected and not selected for official

publication.

At a Motion Term of the Supreme Court of the State of New York held in and for the Sixth Judicial District at the Madison County Courthouse, Wampsville, New York, on the 24'h day of October, 2014.

PRESENT: HON. EUGENE D. FAUGHNAN Justice Presiding

ST ATE OF NEW YORK SUPREME COURT : MADISON

MARITA E. HYMAN,

Plaintiff,

-vs-

ARTHUR SCHWARTZ, ESQ., STUART LICHTEN, ESQ., DANIEL BRIGHT, ESQ. and SCHWARTZ, LICTHEN AND BRIGHT, P.C

Defendants.

APPEARANCES:

PLAINTIFF:

DEFENDANTS:

STUART LICHTEN, ESQ. AND DANIEL BRIGHT, ESQ. (By written submission)

DECISION AND ORDER

Index No. 2014-1193 RJI No. 2014-0136

MARITA HYMAN Pro se litigant 734 Wilcox Road West Edmeston, NY 13485

LICHTEN & BRIGHT, P.C. 475 Park Avenue South, 17th floor New York, NY 10016

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EUGENE D. FAUGHNAN, J.S.C.

Th~re are 2 current motions before the Court in connection with this case. 1 Defendants

Stuart Lichten, Esq. (hereinafter "Lichten") and Daniel Bright, Esq. (hereinafter "Bright") seek

an Order dismissing the Complaint pursuant to CPLR §3211 (a)(S) and (7). Marita Hyman

("Plaintiff') filed a motion seeking 1) leave to replead her first amended complaint and/or 2)

Default Judgment against Defendants Licthen and Bright.

In support of the motion to dismiss, Defendants Lichten and Bright submitted an

affirmation of Bright dated June 23, 2014, with Exhibits. They also submitted a Memorandum of

Law in Support of their Motion.

In support of her motions, Plaintiff submitted her Notice of Motion, Memorandum of

Law, and a Supplemental Affidavit dated October 3, 2014 with Exhibits.

Defendant Bright submitted another affirmation dated October 1, 2014, and Plaintiff

submitted additional information concerning leave to amend pleadings, and other matters. The

Court heard oral argument on these motions on October 24, 2014. Plaintiff appeared and

presented arguments. Defendants Licthen and Bright advised the Court that they would rest on

their papers.

The instant action was commenced by the filing of a Verified Complaint on March 10,

2014. The complaint was filed against the three attorney defendants and their law firm

(Schwartz, Licthen and Bright, PC or "SLB")). The firm has subsequently dissolved, and

defendants Licthen and Bright have formed their own firm and defendant Arthur Schwartz

(hereinafter "Schwartz") has his own practice. Defendant Schwartz filed a motion on April 4,

2014 seeking to dismiss the Complaint on res judicata grounds. Oral argument was heard on

that motion on May 9, 2014. The Court granted the motion and dismissed the Complaint as

against Schwartz and SLB. Defendants Licthen and Bright now also seek to dismiss the

complaint as against them. They claim that Plaintiffs complaint is based on the same facts as

1There was also a motion made and heard in connection with Index 2014-1059, which will be the subject of a separate Decision.

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another complaint she filed in 2012, bearing Index 2012-1186, which was dismissed for failure to

state a cause of action. Accordingly, and similar to Schwartz and SLB, Licthen and Bright argue

it should be dismissed as against them.

Plaintiff contends that she should be allowed to amend her complaint to cure any defects

in the sentences characterizing her claim. She also argues in her memorandum of law that the

Court's May 9, 2014 decision should be reversed in the interest of justice. However, that matter

was not raised in the motion, and cannot be considered at this juncture. She also argues that

Defendants Licthen and Bright should be found in default.

The Plaintiff commenced an action in March, 2012 against Schwartz, his two law

partners, Licthen and Bright, and SLB. That case is Index No: 2012-1186. That complaint

contained four causes of action: 1) a fee dispute, 2) negligent infliction of emotional distress, 3)

intentional infliction of emotional distress, and 4) legal malpractice. In a Decision and Order

filed December 20, 2012, this Court (Hon. Donald Cerio) concluded, with respect to Schwartz

and the firm, that the motion to dismiss the fee dispute was denied, the claims for Negligent

Infliction of Emotional Distress and Intentional Infliction of Emotional Distress were dismissed,

and the claim for malpractice would not be dismissed. The Third Department, in a Memorandum

and Order dated February 27, 2014, affirmed dismissal of the 2 causes of action and also granted ·

dismissal of the fourth cause of action for legal malpractice. Hyman v. Schwartz et al. 114

AD3d 1110 (3rd Dept. 2014 ). Plaintiff thereafter made a motion to the Third Department, for re­

argument, or in the alternative, leave to amend the complaint, or permission to appeal to the

Court of Appeals. The motion was denied by the Third Department on May 1, 2014. Plaintiff

thereafter filed a motion with the Court of Appeals for leave to appeal, which was denied.

Hyman v. Schwartz et al., 24 NY3d 930 (September 4, 2014).

Plaintiff filed another complaint (Index 2014-1059) on January 22, 2014 against Schwartz

only for intentional infliction of emotional distress. That case was dismissed by this Court in a

Decision and Order filed on September 3, 2014. The Court found that 2014-1059 arose out of

the same facts and circumstances as the 2012 case, and was therefore barred by res judicata. The

Court also denied Plaintiffs motion to re-plead in that case.

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After the Third Department's decision of February 27, 2014, the Plaintiff filed another

action against Schwartz, his two law partners and their firm. That is this case, Index No.: 2014-

1193, and was filed on March 10, 2014. There are two causes of action alleged in the March,

2014 suit, for legal malpractice and breach of contract. This Court determined that the claims

against Schwartz and SLB in 2014-1193 arose from the same set of facts and circumstances as

2012-1186, and that since the 2012 case had been brought to conclusion, any other claims arising

from the same transaction or series of transaction are barred, even if based upon a different

theory.

The allegations of the current complaint deal with the same set of facts as the 2012 case,

and recount a chronology of events from 2008 up to February, 2014. Thus, the complaint

encompasses all the actions from the time from the inception of representation up to the filing of

2014-1193, in March 2014. This Court previously determined that 2014-1193 was barred by res

judicata as against Schwartz and SLB, concluding that since the earlier claim in 2012 had been

brought to a conclusion, all other claims arising from the same transaction or series of

transactions are barred, even if based on a different theory. See, O'Brien v. City of Syracuse, 54

NY2d 353 (1981); Tovar v. Tesoros Prop. Mgt, LLC, 2014 NY Slip Op 5233 (3rd Dept. July 10,

2014).

The Court again concludes that this case, Index 2014-1193 is barred by the doctrine of res

judicata, in that it contains the same core set of facts as those contained in Index 2012-1186.

That is true regardless of the theory advanced, be it legal malpractice or breach of contract.

Therefore, the motion of Defendants Lichten and Bright will be granted.

Plaintiff also seeks to amend her complaint. Although leave to amend "shall be freely

given upon such terms and conditions as may be just", the Court must also consider the facts of

each case. In this case, this Court has already dismissed causes of action for negligent infliction

of emotional distress and intentional infliction of emotional distress. The Third Department also

dismissed the legal malpractice claim. The Third Department also denied Plaintiffs motion to

re-argue and motion to amend her 2012 complaint. This Court is obliged to follow those

determinations, including the request for leave to re-plead. This is also consistent with this

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Court's Decision and Order filed on September 3, 2014 in connection with 20 14-1059.

Plaintiff al so seeks default against Lichten and Bright. However, the Compla int was

served on Bright on June 16, 2014, and on Lichten on June 19, 2014. The motion to dismiss was

served on June 23, 2014 and filed on June 27, 2014. This is within the time to Answer or

otherwise respond. Accordingly, Plaintiff is not entitled to a default judmgent.

Accordingly, the motion of Defendants Lichten and Bright to dismiss the Complaint as

against them is GRANTED. Plaintiffs motion for leave to re-plead, or for defau lt judgment is

DENIED.

This constitutes the Decision and Order of this Court.

Dated: December il , 2014 Binghamton, New York

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