The opinion of the court was delivered by: LEWIS A. KAPLAN
This action asserts that plaintiff was terminated by his employer, defendant Chicago Title Insurance Company ("Chicago Title"), "in direct violation of his civil rights and the laws of the State of New York" shortly after the employer became aware of certain alleged disabilities and infirmities. The action was commenced in the New York State courts and removed to this Court on the basis of diversity of citizenship. Chicago Title moves to dismiss or, in the alternative, for summary judgment on the ground that the action is barred by res judicata or, alternatively, premature in consequence of the alleged pendency of an administrative complaint before the New York State Division of Human Rights (the "Division").
Plaintiff was terminated by defendant on September 17, 1991 after approximately six months of employment. (Fitzgerald Aff. P 4) He filed a complaint with the Equal Employment Opportunity Commission ("EEOC"), which issued a right to sue letter on January 27, 1993, holding that it lacked jurisdiction because the charge was not timely filed. (Id. Ex. 2)
The facts concerning the complaint to the Division are considerably murkier. Plaintiff's counsel, who acknowledges inexperience in this area, says that plaintiff made a complaint to the Division in December 1992, but that it was transferred to the EEOC and thus terminated. (Greco Aff. P 4,7) Defendant contends that the lack of any indication of a disposition by the Division means that plaintiff's complaint still is pending there. No documentary evidence has been submitted by either side as to the continued existence or nonexistence of any proceeding in the Division. Moreover, although the pertinent regulations require that the Division promptly serve any complaint filed with it,
defendant, which relies on the alleged existence of a proceeding, does not claim that it was ever served.
On April 6, 1993, plaintiff commenced an action in this Court entitled Fitzgerald v. Alleghany Corp., et ano., 93 Civ. 2203 (KC) ("Fitzgerald I"). The complaint in Fitzgerald I is virtually identical to the complaint in this action save that it charged that defendants' actions violated the Americans with Disabilities Act ("ADA") whereas the complaint in this case asserts that they violated New York State law. (Compare Def. Mem. Ex. 1 with Verified Complaint)
On May 27, 1993, Judge Conboy signed an order of voluntary dismissal, prepared and submitted by plaintiff's counsel (the "May 27 Order"). The decretal paragraph directed "that the within summons and complaint be withdrawn and this cause of action be dismissed voluntarily and without prejudice." The order did not contain the signatures of defendants' counsel, although it recited that defendants' counsel consented to it. (Greco Aff. Ex. A)
On June 7, 1993, plaintiff's counsel mailed copies of the May 27 Order to defendants' counsel under cover of letters indicating that plaintiff intended to bring a new action in the State court. (Id. Exs. D, E) On June 21, counsel for Chicago Title wrote to Judge Conboy. Counsel contended that the May 27 Order had been submitted to the Court without notice to defendants, that defendants had not consented to dismissal without prejudice, and that plaintiff was not entitled to dismiss without prejudice as a matter of right because the defendants had answered the complaint. Defendants asked that the Court enter a supplemental order dismissing the action with prejudice and sought sanctions. The letter, however, did not refer to the threatened State court action. (Id. Ex. C)
Plaintiff's counsel promptly responded with a letter claiming that he had explained to defendants' counsel his intention to dismiss Fitzgerald I and replace it with a State court action, and that they had not objected. He concluded his letter with a request that Judge Conboy "not change [the May 27] order as it now stands." (Id. Ex. B)
Judge Conboy held a conference with counsel on July 1, 1993. It is undisputed that all present agreed that Fitzgerald I would be dismissed because it was untimely and that Judge Conboy told plaintiff's counsel to pursue plaintiff's State claim "across Pearl Street." (Id. P 18) On July 6, 1993, however, Judge Conboy entered an order (the "July 6 Order") that reads, in its entirety:
"The Court's previous Order of May 27, 1993 is hereby modified to note that the complaint is dismissed with prejudice."
This action was filed in the State court on ...