Hyman v. Schwartz — 137 A.D.3d 1343

Majority

p. 1343

Marita E. Hyman, Appellant, v Arthur Schwartz, Respondent.

[26 NYS3d 630]

Appeals (1) from an order of the Supreme Court (Faughnan, J.), entered September 2, 2014 in Madison County, which, among other things, granted defendant’s motion to dismiss the complaint, and (2) from an order of said court, entered December 22, 2014 in Madison County, which denied plaintiffs motion to renew.

p. 1344

Defendant, an attorney, represented plaintiff in two unsuccessful matters (Matter of Hyman v Cornell Univ., 82 AD3d 1309 [2011]; Hyman v Cornell Univ., 834 F Supp 2d 77 [ND NY 2011], affd 485 Fed Appx 465 [2d Cir 2012], cert denied 568 US —, 133 S Ct 1268 [2013]). Plaintiff then commenced an action in 2012 against defendant and others, and defendant successfully moved to have several—but not all—causes of action dismissed, including claims for intentional and negligent infliction of emotional distress (Hyman v Schwartz, 114 AD3d 1110 , 1110 [2014], lv dismissed 24 NY3d 930 [2014]). Defendant’s subsequent answer in that action set forth various counterclaims including intentional infliction of emotional distress, which was dismissed on appeal (Hyman v Schwartz, 127 AD3d 1281 , 1283-1286 [2015]). While the last appeal was pending, plaintiff commenced this action in January 2014 asserting a single cause of action for intentional infliction of emotional distress allegedly caused by defendant’s now dismissed counterclaim in the earlier action in which he had asserted intentional infliction of emotional distress against her.^[1]

Defendant moved to dismiss the complaint and plaintiff moved pursuant to CPLR 3025 to “replead.” Supreme Court granted defendant’s motion and denied plaintiff’s motion. Plaintiff thereafter moved to renew, which Supreme Court denied. She now appeals from both orders.

We affirm. The statements made by defendant in his counterclaim were made within the context of a pending lawsuit and do not provide a basis to support an action against him for intentional infliction of emotional distress (see Kaye v Trump, 58 AD3d 579 , 579 [2009], lv denied 13 NY3d 704 [2009]; Walentas v Johnes, 257 AD2d 352 , 353 [1999], lv dismissed 93 NY2d 958 [1999]; Yalkowsky v Century Apts. Assoc., 215 AD2d 214 , 215 [1995]). Supreme Court properly denied plaintiff’s motion to “replead” since her motion was framed as a request to plead the previously dismissed intentional infliction of emotional distress claim from her 2012 action rather than amend a pleading in the current action (see generally CPLR 3025) and, in any event, plaintiff did not submit a proposed amended pleading and “failed to establish that the proposed amendment is not plainly without merit” (Dinstber v Allstate Ins. Co., 110 AD3d 1410 , 1412 [2013]; see Boyce v Vazquez, 249 AD2d 724 , 727 [1998]). Plaintiff’s motion to renew was ad

* Plaintiff also commenced, in March 2014, another action in which she alleged legal malpractice and breach of contract. The appeal from Supreme Court’s dismissal of that action is decided herewith (Hyman v Schwartz, 137 AD3d 1334 [2016]).

p. 1345

dressed to “ ‘the sound discretion of the trial court’ ” (Onewest Bank, FSB v Slowek, 115 AD3d 1083 , 1083 [2014], quoting Matter of City of New York v New York State Pub. Empl. Relations Bd., 103 AD3d 145 , 152 [2012], lv denied 21 NY3d 855 [2013]), and Supreme Court acted well within that discretion in denying plaintiff’s motion, in which she submitted a newspaper article regarding the value of defendant’s personal residence. The article was not relevant to plaintiff’s action and, as stated by Supreme Court, would not have changed the prior determination (see CPLR 2221 [e] [2]; Johnson v State of New York, 95 AD3d 1455 , 1456 [2012]). The remaining arguments have been considered and are unavailing.

Garry, Rose and Devine, JJ., concur.

Ordered that the orders are affirmed, without costs.

Cases cited

Hyman v. Cornell University 82 AD3d 1309 N.Y. App. Div. 2011-03-03 p. 1344
Hyman v. Schwartz 114 AD3d 1110 N.Y. App. Div. 2014-02-27 at 1110 p. 1344
Hyman v. Schwartz 127 AD3d 1281 N.Y. App. Div. 2015-04-02 at 1283-1286 p. 1344
Kaye v. Trump 58 AD3d 579 N.Y. App. Div. 2009-01-29 at 579 p. 1344
Walentas v. Johnes 257 AD2d 352 N.Y. App. Div. 1999-01-05 at 353 p. 1344
Yalkowsky v. Century Apartments Associates 215 AD2d 214 N.Y. App. Div. 1995-05-11 at 215 p. 1344
Dinstber v. Allstate Insurance 110 AD3d 1410 N.Y. App. Div. 2013-10-31 at 1412 p. 1344
Boyce v. Vazquez 249 AD2d 724 N.Y. App. Div. 1998-04-16 at 727 p. 1344
Onewest Bank, FSB v. Slowek 115 AD3d 1083 N.Y. App. Div. 2014-03-13 at 1083 p. 1345
City of New York v. New York State Public Employment Relations Board 103 AD3d 145 N.Y. App. Div. 2012-12-27 at 152 p. 1345
Johnson v. State 95 AD3d 1455 N.Y. App. Div. 2012-05-10 at 1456 p. 1345