Hyman v Schwartz
2014 NY Slip Op 33274(U)
December 17, 2014
Supreme Court, New York County
Docket Number: 2014-1193
Judge: Eugene D. Faughnan
Cases posted with a "30000" identifier, i.e., 2013 NY
Slip Op 30001(U), are republished from various state
and local government websites. These include the New
York 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.
[* 1]
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
STATE OF NEW YORK
SUPREME COURT : MADISON
MARITA E. HYMAN,
DECISION AND ORDER
Plaintiff,
Index No. 2014-1193
RJI No. 2014-0136
-vsARTHUR SCHWARTZ, ESQ.,
STUART LICHTEN, ESQ., DANIEL BRIGHT, ESQ.
and SCHWARTZ, LICTHEN AND BRIGHT, P.C
Defendants.
APPEARANCES:
PLAINTIFF:
MARITA HYMAN
Pro se litigant
734 Wilcox Road
West Edmeston, NY 13485
DEFENDANTS:
STUART LICHTEN, ESQ. AND DANIEL
BRIGHT, ESQ. (By written submission)
LICHTEN & BRIGHT, P.C.
475 Park Avenue South, 17th floor
New York, NY 10016
[* 2]
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
1
There 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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[* 3]
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 reargument, 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.
-3-
[* 4]
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.: 20141193, 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 ofSyracuse, 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
-4-
[* 5]
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, 20 14. 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:
il ,
20 14
December
Binghamton, New York
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