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BOVI v. UNITED STATE PARCEL SERV.

December 31, 1997

Daniel Delli Bovi, Plaintiff, against United State Parcel Service, Inc., et alia, Defendants.


The opinion of the court was delivered by: SIFTON

 SIFTON, Chief Judge

 Plaintiff Daniel Delli Bovi brings this action alleging wrongful discharge by the United Parcel Service ("UPS"), Nicholas Federecci, and Anthony Santorro, alleging breach of duty of fair representation by defendant Local 804 of the International Brotherhood of Teamsters, and alleging malpractice against the law firm of Reisman, Abramson & Magro, P.C. ("Reisman"). Defendant Reisman now seeks dismissal of the claim against it and plaintiff opposes the application, seeking in the alternative to amend his complaint.

 BACKGROUND

 The following facts are taken from plaintiff's amended complaint. Plaintiff commenced this action on November 25, 1996, in state court. The action was later removed to this Court. Plaintiff's original complaint was later amended to reflect the dismissal of claims against two defendants not listed above. Plaintiff alleges that in May 1992 he retained Reisman to represent him in a dispute before the Worker's Compensation Board regarding injuries he suffered on the job while working for UPS. Plaintiff states that on May 5, 1992, he had a hearing before the Board to establish the plaintiff's rate of compensation and average wages for the time period of his recovery. Plaintiff states that at the hearing he met with Stuart Goldstein, a lawyer employed by Reisman. After a short discussion, plaintiff states that Goldstein told him to wait outside the hearing room. Plaintiff states that prior to the hearing the clerk inquired if anyone was present for the hearing and that he made his presence known to the clerk. While plaintiff was waiting for his case to be called, he states that Goldstein told him to go home. For purposes of this motion, defendant does not dispute these assertions.

 Plaintiff's complaint further alleges that he continued working for UPS until he sustained another injury that kept him out of work until November 13, 1995. Upon his return, plaintiff states that UPS charged him with fraudulently claiming four hours of pay for his attendance at the hearing on May 5, 1992, on the ground that he had not actually appeared at the hearing. On the basis of these allegations, plaintiff was terminated by defendant Santorro on November 13, 1995. Again for purposes of this motion, defendant does not dispute these assertions.

 Pursuant to a collective bargaining agreement, plaintiff states he filed a grievance with his Local 804 union representative challenging his termination. During arbitration in the spring of 1996, despite subpoenas, Goldstein failed to appear to corroborate plaintiff's account that he had in fact attended the hearing on May 5, 1992. Plaintiff alleges that his union representative did not adequately present his case because the union failed to ensure Goldstein's presence to testify as to plaintiff's presence at the hearing on May 5, 1992. As a result of this lack of corroboration, on June 15, 1996, the arbitration panel ruled against plaintiff, finding that he had been terminated for just cause. This suit followed.

 Defendant Reisman now moves for summary judgment to dismiss the claim against it on the ground that it is barred by the statute of limitations and, in the alternative, moves to dismiss plaintiff's claim on the ground that it fails to state a cause of action. *fn1"

 DISCUSSION

 Statute of Limitations

 Federal Rule of Civil Procedure 56(c) provides that summary judgment must be granted if there is no genuine issue as to any material fact and if the moving party is entitled to judgment as a matter of law. The moving party has the burden of demonstrating the absence of any disputed material facts, and the court must resolve all ambiguities and draw all inferences in favor of the party against whom summary judgment is sought. See Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990).

 The showing needed on summary judgment reflects the burden of proof in the underlying action. The court must consider "the actual quantum and quality of proof" demanded by the underlying cause of action and which party must present such proof. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Therefore, where the ultimate burden of proof is on the nonmoving party, the moving party meets his initial burden for summary judgment by "'showing' -- that is, pointing out to the district court -- that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). To survive the motion, the nonmoving party must then "make a showing sufficient to establish the existence of [the challenged] element essential to [that party's] case." Id. at 322. "The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson, 477 U.S. at 247-48. In conclusion, summary judgment is appropriate "when the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).

 At issue here is whether plaintiff's claim is barred by the statute of limitations for malpractice actions. Plaintiff filed his original complaint on November 25, 1996, four and one-half years after his cause of action accrued on May 5, 1992. In 1992, when plaintiff's cause of action arose, the statute of limitations for legal malpractice founded in contract was six years, as interpreted by the New York Court of Appeals. See Santulli v. Englert, Reilly & McHugh, P.C., 78 N.Y.2d 700, 579 N.Y.S.2d 324, 586 N.E.2d 1014 (1992). *fn2"

 On September 4, 1996, N.Y.C.P.L.R. § 214 was amended, limiting the statute of limitations for all claims of legal malpractice to three years. Thus, the question here is whether this new amendment applies to plaintiff's claim which accrued ...


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