James v. Pataki

—Order, Supreme Court, Bronx County (John Barone, J.), entered on or about June 11, 2001, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs. Plaintiff, a 59-year-old African-American who obtained the rank of Major General in New York State’s National Guard, alleges he was discriminated against on the basis of race and age, in contravention of state law, when defendant Governor appointed another individual, a General in New York’s National Guard, Caucasian and five years plaintiffs junior, to the position Adjutant General, head of New York’s Division of Military and Naval Affairs. Plaintiff, however, has no state law claim for discrimination in military employment, that area being governed by federal law (see Kolomick v New York Air Natl. Guard, 219 AD2d 367, appeal dismissed 88 NY2d 1064). Concur — Mazzarelli, J.P., Saxe, Sullivan, Rosenberger and Lemer, JJ.