Opinion
April 5, 1985
Appeal from the Supreme Court, Erie County, Mintz, J.
Present — Hancock, Jr., J.P., Callahan, Denman, Green and O'Donnell, JJ.
Order unanimously affirmed, without costs. Memorandum: Plaintiff appeals from an order which granted defendants' motion for summary judgment and dismissed his complaint alleging legal malpractice. On February 28, 1977 plaintiff was discharged from his job at Hooker Chemical and Plastics Corp. (Hooker). Shortly thereafter, plaintiff filed a complaint alleging age discrimination ( see, Executive Law § 296). The State Division of Human Rights, after an extensive investigation, made a finding of no probable cause which was affirmed by the State Human Rights Appeal Board. On December 12, 1980, this court confirmed that determination and dismissed the petition ( State Div. of Human Rights v. Hooker Chem. Plastics Corp., 79 A.D.2d 891).
On January 2, 1981 plaintiff filed an action against Hooker in Federal District Court ( see, 29 U.S.C. § 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 U.S.C. § 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 meritless ( see, Kremer v. Chemical Constr. Corp., 456 U.S. 461; cf. State Div. of Human Rights v. Dunlop Tire Rubber Corp., 105 A.D.2d 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 N.Y. 199, 204; Vooth v McEachen, 181 N.Y. 28, 31; Carpenter v. Weichert, 51 A.D.2d 817, 818; see also, 1 N.Y. PJI2d 406-407; cf. Becker v. Julien, Blitz Schlesinger, 66 A.D.2d 674, lv dismissed 47 N.Y.2d 761).