                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 3, 2016                     520432
________________________________

MARITA E. HYMAN,
                    Appellant,
     v                                      MEMORANDUM AND ORDER

ARTHUR SCHWARTZ,
                    Respondent.
________________________________


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 respondent.

                             __________


McCarthy, J.P.

      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 plaintiff's motion to
renew.

      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 ___ 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
                               -2-                520432

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 addressed to "'the sound discretion of the
trial court'" (Onewest Bank, FSB v Slowek, 115 AD3d 1083, 1083


     1
        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, ___ AD3d ___ [appeal Nos.
519058/520431]).
                              -3-                  520432

[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.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
