Opinion
520432.
03-03-2016
Marita E. HYMAN, Appellant, v. Arthur SCHWARTZ, Respondent.
Marita E. Hyman, West Edmeston, appellant pro se. Advocates for Justice, Chartered Attorneys, New York City (Arthur Schwartz of counsel), for respondent.
Marita E. Hyman, West Edmeston, appellant pro se.
Advocates for Justice, Chartered Attorneys, New York City (Arthur Schwartz of counsel), for respondent.
Opinion
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 A.D.3d 1309, 918 N.Y.S.2d 226 2011; Hyman v. Cornell Univ., 834 F.Supp.2d 77 [N.D.N.Y.2011], affd. 485 Fed.Appx. 465 2d Cir.2012, cert. denied ––– U.S. ––––, 133 S.Ct. 1268, 185 L.Ed.2d 184 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 A.D.3d 1110, 1110, 981 N.Y.S.2d 468 2014, lv. dismissed 24 N.Y.3d 930, 993 N.Y.S.2d 541, 17 N.E.3d 1137 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 A.D.3d 1281, 1283–1286, 6 N.Y.S.3d 732 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. 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.
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, ––– A.D.3d ––––, 26 N.Y.S.3d 407 [appeal Nos. 519058/520431] ).
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 A.D.3d 579, 579, 873 N.Y.S.2d 5 2009, lv. denied 13 N.Y.3d 704, 2009 WL 2871206 2009; Walentas v. Johnes, 257 A.D.2d 352, 353, 683 N.Y.S.2d 56 1999, lv. dismissed 93 N.Y.2d 958, 694 N.Y.S.2d 635, 716 N.E.2d 700 1999; Yalkowsky v. Century Apts. Assoc., 215 A.D.2d 214, 215, 626 N.Y.S.2d 181 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 A.D.3d 1410, 1412, 974 N.Y.S.2d 171 2013; see Boyce v. Vazquez, 249 A.D.2d 724, 727, 671 N.Y.S.2d 815 1998 ). Plaintiff's motion to renew was addressed to “ ‘the sound discretion of the trial court’ ” (Onewest Bank, FSB v. Slowek, 115 A.D.3d 1083, 1083, 982 N.Y.S.2d 193 2014, quoting Matter of City of New York v. New York State Pub. Empl. Relations Bd., 103 A.D.3d 145, 152, 956 N.Y.S.2d 689 2012, lv. denied 21 N.Y.3d 855, 967 N.Y.S.2d 688, 989 N.E.2d 970 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 A.D.3d 1455, 1456, 944 N.Y.S.2d 348 2012 ). The remaining arguments have been considered and are unavailing.
ORDERED that the orders are affirmed, without costs.
GARRY, ROSE and DEVINE, JJ., concur.