ORDERED that defendants' motion to dismiss pursuant to CPLR 3211 (a)(4) on the ground that there is another action pending between the same parties for the same cause of action in a court of the United States is denied.

On or about November 7, 2000, defendant Robert Tolnai allegedly terminated the employment of plaintiff in an effort to "project a younger image."

On May 29, 2002, an action was commenced in the Eastern District of New York by the Equal Employment Opportunity Commission ("EEOC"), claiming violations of 29 U.S.C. § 621, et seq. The named defendants in said action are Papillon Salons & Co., Inc. a/k/a Papillon Hair Salon & Spa, Inc. a/k/a Papillon Spas, Inc. a/k/a Papillon Hair Salon & Spa, II, Inc. (collectively "Papillon"). While this action was commenced on behalf of plaintiff, she is not the plaintiff in that action.

On October 30, 2003, the present action was filed by plaintiff, alleging violations of Executive Law § 296(1)(a) against named defendants Papillon Salons & Co., Inc. a/k/a Papillon Hair Salon & Spa, Inc. a/k/a Papillon Spas, Inc. a/k/a Papillon Hair Salon & Spa, II, Inc. The complaint also alleges violations of New York State Human Rights Law § 296(6) against named defendants Mary Tolnai, Robert Tolnai, Jeffrey Trichon, Yakub Yusupov, and Abakhay Chulpayev.

Under the CPLR a court may dismiss any cause of action only when it can be shown that another action is pending between the same parties for the same cause of action in a court of any state or the United States (CPLR 3211 [4]). Despite the claims of defendants, there is no basis for determining that the parties in both suits are the same or even substantially the same. Even a cursory look at the first page of the complaints in both cases reveals that there is no substantial similarity.

In the first instance, plaintiffs in the two cases are not the same. In the federal action, the EEOC has brought the action. In this case, Spellman is the plaintiff. While the EEOC is suing to enforce Spellman's rights under the federal law, it cannot be said that Spellman is the plaintiff in that case. In fact, under 29 U.S.C. § 626(c)(1), Spellman lost her right to sue defendants under federal law at the moment that the EEOC chose to sue to enforce her rights. Based upon this forfeiture, it cannot be said that Spellman is in any meaningful way the plaintiff in both actions. The difference in plaintiffs is a matter of substance, not just form. In the federal action the EEOC's primary concern is the enforcement of the federal law. Any benefit realized by Spellman is secondary. In the instant action brought by Spellman, the primary concern is to be compensated for the alleged wrongs done to her. [*2]

In addition, the federal action referred to by defendants in their motion is based solely upon violations of the Age Discrimination in Employment Act ("ADEA"). There is no individual liability under the ADEA. Therefore, the only discrimination claim is one levied against Papillon as a corporate entity. This action alleges unlawful age discrimination in violation of Executive Law §§ 296(1)(a) and 296(6). While the state claims are analyzed in the same fashion as claims brought under the ADEA (Abdu-Brisson v Delta Air Lines, Inc., 239 F.3d 456, 466 [2nd Cir. 2001]), it cannot be said that individual liability follows a similar pattern of analysis under the state and federal statutes.

Under the ADEA there is no individual liability (Bailey v Synthes, 295 F.Supp.2d 344 [S.D.N.Y. 2003]). However, the governing state law does permit for individual liability (see, Executive Law §296(6). While Spellman must show discriminatory conduct on the part of each defendant in this matter to sustain her burden, that fact does not render the individual claims asserted in this matter the same as those claims asserted against the corporate employer. In order to sustain her claim against the five individuals, plaintiff must show that they had an ownership interest in the business or had the ability to make personnel decisions (Patrowich v Chemical Bank, 63 NY2d 541, 483 NYS2d 659 [1984]). Plaintiff must also show that these individuals actually played some role in the discriminatory conduct alleged in this matter (see, Murphy v ERA United Realty, 251 AD2d 469, 472, 674 NYS2d 415, 417 [1998]; see also, Tomka v Seiler Corp., 66 F.3d 1295, 1317 [2nd Cir. 1995]).

It is clear that the two actions are not the same or substantially the same. Although both arise out of the same basic set of facts and the relief sought is the same, the content of the claims is not the same or even substantially the same. The inclusion of individual claims under the Executive Law has the effect of altering the cause of action in this case, such that dismissal is not warranted under CPLR 3211(4).

Accordingly, defendants' motion is denied.

Dated:___________________ ____________________________________________

J.S.C.

FINAL DISPOSITION X NON-FINAL DISPOSITION