                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered:   March 3, 2016                   519058
                                                       520431
________________________________

MARITA E. HYMAN,
                    Appellant,
     v                                      MEMORANDUM AND ORDER

ARTHUR SCHWARTZ et al.,
                    Respondents.
________________________________


Calendar Date:   January 6, 2016

Before:   McCarthy, J.P., Garry, Rose and Devine, 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.

                             __________


McCarthy, J.P.

      Appeals (1) from an order of the Supreme Court (Faughnan,
J.), entered May 20, 2014 in Madison County, which granted a
motion by defendants Arthur Schwartz and Schwartz, Lichten &
Bright, P.C. to dismiss the complaint against them, and (2) from
an order of said court, entered December 19, 2014 in Madison
County, which, among other things, granted a motion by defendants
Stuart Lichten and Daniel Bright to dismiss the complaint against
them.
                              -2-                519058
                                                 520431

      Defendant Arthur Schwartz, 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
___ US ___, 133 S Ct 1268 [2013]). Plaintiff then commenced an
action against Schwartz and defendant Schwartz, Lichten & Bright,
PC, his former law firm, as well as defendants Stuart Lichten and
Daniel Bright, Schwartz's former partners. Ultimately, and as is
relevant here, the complaint against Lichten and Bright was
dismissed for a lack of personal jurisdiction, and plaintiff's
legal malpractice cause of action against Schwartz and the law
firm was dismissed for failure to state a cause of action (Hyman
v Schwartz, 114 AD3d 1110, 1110-1112 [2014], lv dismissed 24 NY3d
930 [2014]).1

      Thereafter, plaintiff commenced this action, again alleging
legal malpractice and breach of contract by defendants based on
the same events. Supreme Court thereafter granted a motion by
Schwartz and the law firm dismissing the complaint against them.
Subsequently, Lichten and Bright moved to dismiss the complaint
and plaintiff moved, among other things, for leave to amend the
complaint. Supreme Court granted the motion to dismiss the
complaint against Lichten and Bright and denied plaintiff's
motion. Plaintiff now appeals from both orders, and we affirm.

      Although plaintiff's previous dismissal for a failure to
state a cause of action was not on the merits and, therefore, has
no res judicata effect (see generally Maitland v Trojan Elec. &
Mach. Co., 65 NY2d 614, 615-616 [1985]), plaintiff's complaint
suffers a similar defect as her previous complaint. Even when
viewed in the light most favorable to plaintiff and granting her
the benefit of every reasonable inference, plaintiff fails to


    1
        Schwartz also made a counterclaim in the action.
Plaintiff commenced another action alleging that Schwartz had
intentionally inflicted emotional distress upon her by making
that counterclaim. The appeal from Supreme Court's dismissal of
that action is decided herewith (Hyman v Schwartz, ___ AD3d ___
[appeal No. 520432]).
                              -3-                  519058
                                                   520431

allege facts that could support a reasonable conclusion that
Schwartz or the law firm's alleged negligence were a but-for
cause of the failure of plaintiff's underlying claims (see Hyman
v Schwartz, 114 AD3d at 1112; Siwiec v Rawlins, 103 AD3d 703, 704
[2013]). Plaintiff's breach of contract claim is duplicative of
the malpractice claim because it arises from the same factual
allegations, and it is therefore subject to dismissal (see Hyman
v Burgess, 125 AD3d 1213, 1215 [2015]). Otherwise, to state a
viable malpractice cause of action against Lichten and Bright,
plaintiff was required to allege facts sufficient to support a
conclusion that an attorney-client relationship was established
(see generally Sucese v Kirsch, 199 AD2d 718, 719 [1993]).
Plaintiff alleged facts directly to the contrary, stating that
Lichten and Bright refused her requests for legal representation.
Accordingly, plaintiff's complaint was properly dismissed.

      In addition, Supreme Court did not abuse its discretion in
denying plaintiff's motion for leave to amend the complaint given
that plaintiff neither submitted a proposed amended pleading nor
established that any such amended pleading would not be plainly
without merit (see Dinstber v Allstate Ins. Co., 110 AD3d 1410,
1412 [2013]; Boyce v Vazquez, 249 AD2d 724, 727 [1998]).
Plaintiff's remaining arguments are also unavailing.

     Garry, Rose and Devine, JJ., concur.



     ORDERED that the orders are affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
