Defense attorneys in legal malpractice cases typically raise several arguments against plaintiff.  One is that plaintiff had multiple attorneys which they posit indicates lack of merit or rigor in the case.  Another argument is that plaintiff is just monday-morning-quarterbacking, or whatever simile they choose.  Sadly, sometimes they are correct, and Hyman v Schwartz   2016 NY Slip Op 01529 and 2016 NY Slip Op 01526, both decided on March 3, 2016  Appellate Division, Third Department are poster children for defendants’ arguments.

Ms. Hyman had an unfortunate experience at Cornell which led to extensive litigation, all of which turned out badly for her.  As the AD reports: “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 [*2]930 [2014]).^[FN1]

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 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.”