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June 17, 1998


The opinion of the court was delivered by: SCHEINDLIN



 Plaintiff filed an action in New York state court on October 27, 1997, asserting claims for breach of fair representation by defendant Transport Workers' Union Local 100 and legal malpractice by defendants Malcolm Goldstein and O'Donnell Schwartz Glanstein & Rosen. Defendants removed the action to federal court on November 26, 1997. On February 23, 1998 defendants moved for summary judgment. For the reasons stated below, defendants' motion is granted.

 I. Legal Standard for Summary Judgment

 A motion for summary judgment may be granted only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The party moving for summary judgment has the burden of identifying evidence that demonstrates the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). In response to the identification of such evidence, the non-movant must "set forth specific facts showing that there is a genuine issue for trial." Liberty Lobby, 477 U.S. at 248 (quoting First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 288-89, 20 L. Ed. 2d 569, 88 S. Ct. 1575 (1968)). If there is any evidence in the record from which a reasonable inference could be drawn in favor of the non-movant on a material issue of fact, summary judgment is improper. See Hetchkop v. Woodlawn at Grassmere, Inc., 116 F.3d 28, 33 (2d Cir. 1997).

 In determining whether summary judgment should be granted, the court resolves all ambiguities and draws all reasonable inferences against the moving party. See Liberty Lobby, 477 U.S. at 248. However, the moving party is not required to affirmatively disprove unsupported assertions made by the non-movant. See Celotex, 477 U.S. at 323.

 II. Factual Background

 The following facts are undisputed. Plaintiff Andre Waterman began working as a bus driver for the City of New York in 1982. See Affidavit of Andre Waterman, dated April 8, 1998, ("Waterman Aff."), at P 2. Defendant Transport Workers' Union Local 100 ("the Union") is a labor union that represents various wage and hour employees of the Manhattan and Bronx Surface Transit Operating Authority ("MABSTOA"), plaintiff's former employer. See Defendants' Statement of Material Facts on Motion for Summary Judgment Pursuant to Local Rule 56.1 ("Def.'s 56.1 Stat.") at P 3. The Union and MABSTOA are parties to a collective bargaining agreement ("CBA") covering various hourly employees of MABSTOA. See id. at P 5. This agreement provides that discipline may be grieved by the Union before an impartial arbitrator employed jointly by the Union and MABSTOA. See id. In addition, pursuant to the agreement, decisions of the arbitrator are final and binding. See id. ; Affidavit of Malcolm A. Goldstein, dated February 17, 1998, ("Goldstein Aff."), Exh. E. Defendant Malcolm Goldstein ("Goldstein") is a partner in the law offices of O'Donnell Schwartz Glanstein & Rosen ("the firm"), the firm that is general counsel to the Union. See Goldstein Aff. at P 1.

 On or about September 29, 1995, Waterman tested positive for cocaine following a random drug test. See Def.'s 56.1 Stat. at P 6; Waterman Aff. at P 2; Goldstein Aff. at P 5. Thereafter, MABSTOA referred him to its Employee Assistance Program ("EAP"). See Def.'s 56.1 stat. at P 7. Following clearance from MABSTOA's medical department, plaintiff returned to work on or about January 22, 1996 and continued his drug treatment. See id. at P 8; Goldstein Aff., Exh. I.

 On or about April 1, 1996, plaintiff allegedly tested positive again for cocaine in a test administered by Gracie Square Hospital as part of his drug treatment program. See Def's 56.1 Stat. at PP 7, 9; Waterman Aff. at P 3. Plaintiff denies use of any controlled substances and claims that flawed testing procedures are to blame for the results. See Waterman Aff. at P 4.

 According to Goldstein, MABSTOA terminated Waterman's employment on or about May 9, 1996, retroactive to April 26, 1996. See Goldstein Aff. at P 18. However, Waterman claims that he never received notice of this discharge and that he still possesses his identification pass and shield-- items which are collected by MABSTOA upon discharge or termination. See Waterman Aff. at P 12. Despite this disagreement of fact, the parties agree that the union promptly filed a grievance on behalf of Waterman and that Goldstein was assigned to represent him at the arbitration. See Def.'s 56.1 Stat. at PP 12, 15; Waterman Aff. at P 6; Goldstein Aff. at PP 19, 21.

 On or about July 12, 1996, a neutral arbitrator, Thomas Hartnett, employed jointly by the Union and MABSTOA, heard Waterman's grievance. See Goldstein Aff. at P 20; Waterman Aff. at P 7. Hartnett issued a written decision denying plaintiff's grievance on or about September 4, 1996. See Goldstein Aff. at P 24; Waterman Aff. at P 10. Waterman claims that he learned of this decision through his attorney in this suit, Regina Felton, on or about October 22, 1997. See Waterman Aff. at P 10. He also contends that he has never been served with a copy of that decision. See id. at P 11.

 On December 23, 1996 plaintiff filed a petition to compel arbitration pursuant to CPLR § 7511 against the Union and MABSTOA in Kings County Supreme Court ("1996 Action"). See Goldstein Aff. at P 27. He claimed that his request for an arbitration following his discharge had been refused and that the April 1, 1996 drug test had not been properly verified. See id. The court dismissed Waterman's action in its entirety in an order dated June 14, 1997. See Goldstein Aff. at P 28; Waterman Aff. at P 13. The court found that plaintiff's petition was more accurately characterized as a petition to set aside the previous arbitration award rather than a motion to compel arbitration. See Waterman v. MABSTOA, The New York City Transit Authority, and the Transport Workers' Union Local 100, Index No. 48687/96 (Sup. Ct. Kings Co., July 14, 1997) ("Waterman I "). Viewed in this light, the court reasoned that the action was barred by the 90 day statute of limitations for such relief; that the action was barred by res judicata because plaintiff had already had his arbitration; and, that plaintiff did not have standing to bring an action pursuant to CPLR § 7511 because he was not a party to the arbitration agreement between MABSTOA and the Union. See id. ; Waterman Aff., Exh. 2.

 Following this dismissal, Waterman commenced the instant action in New York County Supreme Court, alleging claims for both breach of the duty of fair representation against the union and legal malpractice against the firm and Goldstein. See Verified Complaint in Goldstein Aff., Exh. A. As noted above, defendants removed plaintiff's action to this court.

 III. Discussion

 The defendants press three arguments in support of their motion for summary judgment: 1) that the claim against the union for breach of fair representation is barred by res judicata, 2) that this claim is also barred by the statute of limitations, and 3) that the claim against the firm and Goldstein for malpractice is barred because these defendants are immune from suit. See Defendants' Memorandum of Law in Support of the Motion for Summary Judgment ...

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