This case is not published in a printed volume and its disposition appears in a table in the reporter.
Attorney for Plaintiff PETER MCCLUSKEY
Attorney for Defendants PETER D. RIGELHAUPT, ESQ. L'ABBATE, BALKAN, COLAVITA & CONTINI
Arthur M. Diamond, J.
Motion by plaintiff for partial summary judgment is denied. Cross-motion by defendants for summary judgment dismissing the complaint is granted in part and denied in part.
This is an action for legal malpractice. Plaintiff Peter McCluskey was an adjunct professor at Suffolk Community College. Defendants, who are attorneys, represented plaintiff in connection with an age discrimination suit which he filed against the college based upon its failure to grant him a full-time position on the faculty. Defendant David Gabor was primarily responsible for handling the litigation.
Plaintiff became an adjunct, or part-time, instructor in the theater department of Suffolk Community College in 1988. At the time that plaintiff was hired, he was told by Wayne Pevey, the chairman of the department, that he would be given "preference" for a full-time position if one became available. In March 1998, there was an opening for a full-time professor, and plaintiff, who was 56 years of age, submitted an application. Plaintiff claims that the position was filled by a less-qualified candidate who was twelve years younger than plaintiff. When plaintiff inquired why he was not even interviewed for the position, he was told by Richard Johnson, who was then chairman of the department, that it was time for him "to retire."
In September 1998, plaintiff filed charges of age discrimination against Suffolk County and the Community College with the New York State Division of Human Rights and the United States Equal Employment Opportunity Commission. Plaintiff also filed a notice of claim with Suffolk County on September 8, 1998. After a "right to sue" letter was issued by the EEOC, Gabor filed an age discrimination suit on plaintiff's behalf with the United States District Court for the Eastern District of New York on August 30, 1999. The federal complaint included both a federal claim for violation of the Age Discrimination in Employment Act and a state law claim pursuant to 296 of the Executive Law. Subsequent to the filing of the federal action, the United States Supreme Court held in Kimel v. Board of Regents, 528 U.S. 62 (2000) that Congress lacked power under Article 1 of the Constitution to abrogate the States' sovereign immunity. Thus, Congress could not in the Age Discrimination in Employment Act subject a state to suit by an individual without the state's consent.
In response to the U.S. Supreme Court decision, the parties in the district court action entered into a so-ordered stipulation, discontinuing plaintiff's federal claim with prejudice. The stipulation provided that the Executive Law 296 claim was discontinued without prejudice in order to allow plaintiff to bring an action based on that claim in Supreme Court, Suffolk County. The stipulation further provided that plaintiff could add additional claims against the college with the consent of the defendants in the Suffolk County action or by leave of the state court.
Pursuant to the stipulation, Gabor commenced an action on plaintiff's behalf in Supreme Court, Suffolk County on August 2, 2000. In that suit, plaintiff named as defendants Suffolk County, the Community College, the college's board of trustees, the State University of New York, and New York State. The complaint asserted a single claim for employment discrimination based upon age pursuant to 296 of the Executive Law. By order dated May 8, 2001, Justice Thomas F. Whelan dismissed the complaint as against SUNY and New York State on the grounds of lack of personal and subject matter jurisdiction. In the order, Justice Whelan granted plaintiff leave to serve an amended complaint, asserting claims for breach of an oral employment contract and fraud, as to the remaining defendants.
A note of issue was filed on July 9, 2002, and the action first appeared in the Calendar Control part on March 26, 2003. However, rather than proceeding to trial, Gabor sought leave to file a second amended complaint, asserting additional employment discrimination claims. The proposed pleading alleged discrimination not only with respect to the teaching position which was open in 1998 but also certain other full-time positions which became available in 2002. The second amended complaint also added a claim for retaliation, on the theory that the college refused to employ plaintiff as a full-time professor, or as an adjunct in 2003, as punishment for his filing the age discrimination claim with the Division of Human Rights in 1998( See Executive Law 296 [e]). It appears that plaintiff disagreed with Gabor's decision to seek leave to amend because it would result in significant delay. By order dated February 10, 2004, Justice John Jones granted the motion for leave to serve the second amended complaint.
After discovery was complete, Justice Jones issued a new certification order, directing the parties to file a new note of issue and to make motions for summary judgment within 120 days after the new note of issue was filed. However, because the original note of issue was never vacated, the clerk would not accept the new note of issue for filing. Since time had expired based on the old note of issue, the parties were unable to make motions for summary judgment. By order dated September 10, 2004, Justice Edward Burke granted Suffolk County's motion to vacate the July 9, 2002 note of issue without opposition on the part of plaintiff. While ...