                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: April 2, 2015                      518622
________________________________

MARIA E. HYMAN,
                     Appellant,
     v                                       MEMORANDUM AND ORDER

ARTHUR SCHWARTZ et al.,
                    Respondents.
________________________________


Calendar Date:    February 11, 2015

Before:   McCarthy, J.P., Egan Jr., Devine and Clark, JJ.

                              __________


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

      Advocates for Justice, Chartered Attorneys, New York City
(Arthur Schwartz of counsel), for Arthur Schwartz and another,
respondents.

      Lichten & Bright, PC, New York City (Daniel R. Bright of
counsel), for Stuart Lichten and another, respondents.

                              __________


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 20 USC §
1681 et seq.) against Cornell in federal court (Hyman v Cornell
                              -2-                518622

Univ., 834 F Supp 2d 77 [ND NY 2011], affd 485 Fed Appx 465 [2d
Cir 2012], cert denied     US    , 133 S Ct 1268 [2013])
(hereinafter the federal action). As a result of disagreements
between plaintiff and Schwartz over his representation and fees,
plaintiff commenced this action against Schwartz and defendant
Schwartz, Lichten & Bright, PC, Schwartz's law firm, as well as
defendants Stuart Lichten and Daniel Bright – Schwartz's former
partners. The complaint asserted, among other things, claims for
legal malpractice, negligent infliction of emotional distress and
intentional infliction of emotional distress. In two motions –
one by Schwartz and the law firm and the other by Lichten and
Bright – defendants moved to dismiss the complaint alleging,
among other things, improper service upon Lichten and Bright. In
a December 2012 order, Supreme Court, among other things, held
that plaintiff had not properly served Lichten and Bright and
dismissed the complaint against them. The court also partially
granted the motion of Schwartz and the law firm by dismissing the
negligent and intentional infliction of emotional distress
claims. Upon appeal by Schwartz and the law firm, this Court
modified and dismissed the legal malpractice claim (114 AD3d
1110, 1112 [2014], lv dismissed 24 NY3d 930 [2014]).

      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 CPLR 3211
[e]), denied that motion as well. Plaintiff now appeals solely
from the June 2013 order.

      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
                              -3-                518622

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, 1289
[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,
plaintiff did not submit documentary evidence utterly refuting
this claim (see CPLR 3211 [a] [1]; see generally Goshen v Mutual
Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; State of N.Y.
Workers' Compensation Bd. v Madden, 119 AD3d 1022, 1026 [2014]).
Accordingly, Supreme Court properly denied plaintiff's motion to
dismiss this counterclaim.

      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 CPLR 3211 (a) (7), "the
pleading is to be given a liberal construction, the allegations
contained within it are assumed to be true and the plaintiff[]
[is] to be afforded every favorable inference. This liberal
standard, however, will not save allegations that consist of bare
legal conclusions or factual claims that are flatly contradicted
by documentary evidence or are inherently incredible"
(DerOhannesian v City of Albany, 110 AD3d at 1289 [internal
quotation marks and citations omitted]; see Tenney v Hodgson
                              -4-                518622

Russ, LLP, 97 AD3d 1089, 1090 [2012]; Mesiti v Mongiello, 84 AD3d
1547, 1549 [2011]). Here, in support of the motion to dismiss,
plaintiff submitted documentary evidence that flatly contradicted
the allegation that an agreement had been reached between
plaintiff and Schwartz. Such proof included a letter written by
Schwartz to the judge who presided over the federal action,
wherein Schwartz explained that he was hired by plaintiff without
any agreement as to fees beyond the initial filing and was
proceeding without a retainer and agreement. As this proof
utterly disputes Schwartz's allegations that an agreement was
formed, the breach of contract counterclaim must be dismissed
(see DerOhannesian v City of Albany, 110 AD3d at 1290).

      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., Inc., 298 AD2d 721, 722-723 [2002]).
                              -5-                518622

      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];
Cuimano 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
federal action, a motion to dismiss plaintiff's complaint was
pending. Had plaintiff not opposed Schwartz's motion to withdraw
as counsel, she faced the possibility of being unrepresented in
that action. Considering these facts, it cannot be said that
plaintiff's actions were solely motivated by malevolence and,
therefore, this counterclaim must be dismissed.

      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" (CPLR 2221 [e]; see
Howard v Stanger, 122 AD3d 1121, 1123 [2014], lv dismissed 24
NY3d 1210 [2015]; Johnson v State of New York, 95 AD3d 1455, 1456
[2012]). Further, a motion to renew "is not a second chance to
remedy inadequacies that occurred in failing to exercise due
diligence in the first instance" (Tibbits v Verizon N.Y., Inc.,
                              -6-                518622

40 AD3d 1300, 1303 [2007]; accord Howard v Stanger, 122 AD3d at
1123), and such applications "are left to the sound discretion of
the trial court" (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]; accord Onewest Bank, FSB v Slowek, 115 AD3d
1083, 1083 [2014]).

      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 CPLR 308 [2]; Maiuri v Pearlstein, 53
AD3d 816, 817 [2005]; cf. Sutton v Hafner Valuation Group, Inc.,
115 AD3d 1039, 1041 [2014]). Inasmuch as plaintiff's proof did
not establish that it would have led to a different result, the
motion to renew was properly denied (see CPLR 2221 [e]).
Plaintiff's remaining contentions, to the extent not specifically
addressed, have been considered and found to be lacking in merit.

     McCarthy, J.P., Devine and Clark, JJ., concur.
                              -7-                  518622

      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 of contract, intentional infliction of
emotional distress and prima facie tort counterclaims; motion
granted to that extent and said counterclaims dismissed; and, as
so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
