Maira v. Stamm

1058 On January 2,1981 plaintiff filed an action against Hooker in Federal District Court (see, 29 USC § 623 [a]) based upon the same allegations of age discrimination contained in his State complaint. This action was dismissed as untimely on Hooker’s motion for summary judgment because it was not commenced within two years from plaintiff’s discharge (see, 29 USC §§ 255, 626 [e]). Plaintiff then commenced the instant action against defendants for legal malpractice alleging that “as a result of the negligence of said defendants, plaintiff has been deprived of his right to have his claim tried in Federal Court” and that “the failure of the defendants to commence the action within the statute of limitations applicable caused the plaintiff to suffer a loss.” Special Term properly granted defendants’ motion for summary judgment in the legal malpractice action. Since the elements of an employment discrimination claim, based upon age, in State and Federal court are virtually identical, this court’s affirmance of a finding of no probable cause on plaintiff’s State age discrimination claim necessarily decided that his Federal claim arising from the same allegations would be equally merit-less (see, Kremer v Chemical Constr. Corp., 456 US 461; cf. State Div. of Human Rights v Dunlop Tire & Rubber Corp., 105 AD2d 1071). Thus, plaintiff cannot establish that his Federal age discrimination claim had merit, a fact that he must establish if he is to recover in the malpractice action (see, McAleenan v Massachusetts Bonding & Ins. Co., 232 NY 199, 204; Vooth v McEachen, 181 NY 28, 31; Carpenter v Weichert, 51 AD2d 817, 818; see also, 1 NY PJI2d 406-407; cf. Becker v Julien, Blitz & Schlesinger, 66 AD2d 674, lv dismissed 47 NY2d 761). (Appeal from order of Supreme Court, Erie County, Mintz, J. — summary judgment.) Present — Hancock, Jr., J. P., Callahan, Den-man, Green and O’Donnell, JJ.