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 [*2]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 plaintiff was not opposed to Gabor's filing a summary judgment motion on his behalf, he was displeased that the vacating of the note of issue resulted in further delay.

By order dated July 5, 2005, Justice Jones denied Suffolk County's motion for summary judgment as to plaintiff's claims for employment discrimination based on age and retaliation. Justice Jones held that plaintiff was a member of a protected class by virtue of his age, "overall" he was qualified for the positions which he sought, he was denied any of the positions, and the fact that the successful candidates were predominantly younger than plaintiff gave rise to an inference of discrimination(See Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 305 n.3 [2004]). Since [*3]plaintiff had established a prima facie case of age discrimination, Justice Jones held that the burden shifted to the County to put forth a legitimate nondiscriminatory reason for the challenged action(See Ferrante v. American Lung Association, 90 NY2d 623, 629 [1997]).

Justice Jones held that the County had established legitimate nondiscriminatory reasons for the selection of the successful candidates by demonstrating that each of the candidates had academic qualifications or "real life" experience more particularly suited to the subjects which they were being hired to teach.Thus, to defeat the summary judgment motion plaintiff was required to show a material issue of fact as to whether 1) the employer's asserted reason for the challenged action was false or unworthy of belief and 2) more likely than not the employee's age was the real reason(Ferrante v. American Lung Association, supra, 90 NY2d at 630). Justice Jones held that plaintiff had made the necessary showing by offering evidence that college officials made statements referring to plaintiff's age on more than one occasion.

To establish a prima facie case of retaliation, plaintiff must demonstrate that 1) he was engaged in protected activity, 2) the employer was aware of the activity, 3) he suffered an adverse employment action, and 4) there was a causal connection between the protected activity and the adverse action(Romney v. Transit Authority,8 AD3d 254 [2d Dep't 2004]). Justice Jones held that there was a triable issue of fact as to whether the defendants had a "subjective retaliatory motive" in not hiring plaintiff for the positions which he sought after 1998(Budzanski v. Pfizer, Inc., 245 AD2d 72 [1st Dep't 1997]).

However, Justice Jones granted Suffolk County's motion for summary judgment dismissing plaintiff's claims for breach of contract, unjust enrichment, and fraud. The court held that the alleged oral agreement whereby plaintiff was to receive a future appointment as a full-time professor in exchange for working as an adjunct was too vague to ascertain its material terms and was not capable of being enforced. As an alternative ground for dismissing plaintiff's breach of contract claim, the court held that the purported contract to appoint plaintiff "at some unspecified time" was within the "not to be performed within one year" provision of the Statute of Frauds(General Obligations Law § 5-701(a)[1]). With respect to plaintiff's claim for unjust enrichment, the court held that plaintiff was not entitled to any compensation other than that which he had received for actual services performed as an adjunct professor.

Plaintiff's fraud theory was that the college falsely represented that he would be granted a "preference" for a full-time position in order to induce him to accept a position as an adjunct. Plaintiff alleged that defendants knew that the representation was false because almost half of the adjuncts who applied for full-time positions were not even granted interviews by the college.^[FN1] Justice Jones viewed plaintiff's evidence as demonstrating "at best...a misrepresentation of an intention to perform under a contract." Nevertheless, the court dismissed plaintiff's fraud claims on the ground that "causes of action to recover damages for fraud do not lie where the only fraud claimed relates to an alleged breach of contract."^[FN2]

Following Justice Jones' decision on the summary judgment motion, Gabor recommended [*4]that plaintiff participate in non-binding mediation. However, plaintiff declined to participate in mediation, regarding it as a sign of "weakness." On December 7, 2005, Gabor wrote to plaintiff, asserting that plaintiff's refusal to participate in settlement negotiations "gives [c]ause for concern." Gabor asserted that there had been "a breakdown in the attorney-client relationship," advised plaintiff to "obtain a second opinion," and requested plaintiff to retain new counsel. On December 9, 2005, plaintiff wrote to Gabor reaffirming his refusal to participate in settlement negotiations and stating that he expected Gabor to prosecute the case without further delay unless he was "removed by the court for cause."

On December 27, 2005, Gabor again wrote to plaintiff. In the letter, Gabor asserted that it was "obvious" that plaintiff was "hav[ing] difficulty letting go of your case." Gabor stressed the "risks associated with trial," and asserted that "[D]efendants win the majority of discrimination cases that are tried." Gabor noted the difficulty proving "discriminatory animus" and asserted that "This requires the jury [to] exercise a leap of faith." Gabor expressed willingness to continue to represent plaintiff but stated that "[Y]ou are going to have to follow our advice." Gabor closed by stating that if plaintiff was "still frustrated with this office," he was "free to retain another firm to complete this case."

On December 29, 2005, plaintiff wrote to Gabor, stating that he was not persuaded by defendant's assessment of the case. Plaintiff expressed unwillingness to retain another attorney because defendant's claim for attorney's fees would reduce any potential recovery. Plaintiff promised to "cooperate fully in trial preparation" and expressed "trust that you will also proceed to prepare for trial [to] the best of your ability."

On January 6, 2006, Gabor wrote to plaintiff noting that the case was on the CCP calendar for February 1, 2006. Gabor stated that plaintiff had "several financial obligations" which had to be paid prior to commencing jury selection. Those obligations included $2,733 in legal fees and expenses and a $4,025 invoice submitted by plaintiff's expert witness, a certified public accountant.On January 14, 2006, plaintiff wrote to Gabor in response to his letter requesting payment. Plaintiff objected that the fees requested "do not accord with our retainer agreement." Plaintiff asserted that he had paid defendants $2,000 more than was required by the agreement, including $5,000 for a "pre-trial order" which was never issued. Plaintiff claimed that he was not responsible for legal fees in connection with the summary judgment motions because they had resulted in delay of the case. Plaintiff also objected that defendants were requesting payment in advance for "projected out-of-pocket expenses" which had not yet been incurred in the case.With regard to the expert's bill, plaintiff asserted that he was entitled to a credit because a previous report which had been prepared by the accountant contained "substantial" errors.Plaintiff also objected that the expert was charging for 8 hours for trial and preparation although Gabor had told plaintiff that he would be charged for only three hours. Despite his objection to the expert's charges, plaintiff offered to assign $2,000 worth of paychecks to the accountant to secure payment. With respect to the attorney fees, plaintiff requested that the parties engage in fee dispute resolution through the Nassau County Bar Association. Plaintiff closed by requesting that Gabor "communicate your intentions with respect to the February 1 CCP conference."

By order to show cause dated January 26, 2006, defendants moved to be relieved from representing plaintiff in the underlying action on the ground of a "complete breakdown of the attorney-client relationship." Gabor also requested that the court place a lien on the recovery in the [*5]action and direct that the recovery be placed in escrow pending a hearing on counsel fees.^[FN3]

In support of the motion, Gabor referred to his disagreement with plaintiff concerning the advisability of engaging in settlement negotiations. Gabor also claimed that plaintiff displayed a "continual lack of confidence" in defendants' representation. Gabor cited a telephone call which plaintiff placed to Justice Jones' chambers in July 2004, inquiring as to the status of the case, and a letter which plaintiff sent to Justice Molia on September 6, 2004, requesting that the note of issue not be vacated.^[FN4]

Plaintiff, proceeding pro se, cross-moved to discharge Gabor for cause, for a refund of unearned fees, and for the return of all documents relating to the case. In reply papers, Gabor claimed that plaintiff had been told that if he were to retain new counsel, he would not be required to pay defendants for time spent unless there were a recovery. Gabor represented that he would agree to have the court divide the legal fee between counsel. Gabor further represented that based upon a rate of $300 per hour for counsel and $100 per hour for paralegal and support staff, defendants had performed legal services worth $133,500.^[FN5] Gabor stated that plaintiff had paid $10,000 towards his legal fees and there were no unearned fees to be refunded.Gabor stated that defendants did not oppose plaintiff's request for his file, and the file would be available to plaintiff once defendants were relieved by the court.

By order dated March 30, 2006, Justice Molia granted Gabor's application to be relieved from representing plaintiff in the underlying action. Justice Molia stated that, "A disagreement between counsel and his client as to strategic choices during litigation does not rise to the level of malpractice or violations of the Code of Professional Responsibility necessary to establish a discharge for cause." The court directed counsel to turn the file over to plaintiff and granted counsel a charging lien on the proceeds of the litigation pursuant to Judiciary Law § 475. The court stated that since counsel had not addressed the alleged mishandling of the litigation, the issue of whether or not the discharge was for cause would abide the outcome of the trial. Justice Molia stated that at the conclusion of the case, a hearing would be held to determine whether any counsel fees were due, and the proceeds of the litigation were to be held in escrow pending the hearing.

Plaintiff then proceeded to trial pro se, and the case was submitted to the jury on a special verdict. On July 10, 2006, the jury found that plaintiff was qualified for the position of full-time professor which was offered in 1998. However, the jury found that plaintiff was not denied the full-time position in 1998 under circumstances giving rise to an inference of discrimination. The jury found that plaintiff suffered an adverse employment action in not being notified of or considered for a temporary one-year, full-time position that was offered in the fall of 2003. However, the jury found that there was no causal connection between the filing of a claim with the Division of Human Rights or the filing of the lawsuit in U.S. District Court and the adverse employment action. Based [*6]on the answers to the questions, judgment was entered for defendants.

This pro se action for legal malpractice was commenced on February 14, 2007. Plaintiff alleges that defendants were negligent in failing to "commence any action" with respect to two tenure track, full-time positions which were offered by the college in 2004. Plaintiff alleges that Justice Pitts, the trial judge, ruled that evidence as to these positions was inadmissible because they occurred after the filing of the second amended complaint.^[FN6] The complaint may be read as alleging that defendants were negligent in not seeking an amendment of the complaint to assert a discrimination claim based on the 2004 positions or filing a notice of claim with respect to those positions in order to bring a separate discrimination action.

Plaintiff further alleges that Suffolk Community College engaged in a "general practice" of making fraudulent representations in order to attract part-time faculty. Plaintiff alleges that defendants were negligent in failing to conduct "appropriate discovery" with respect to this general practice. The complaint may be read as alleging that defendants were negligent in not offering evidence of a more widespread fraud on the summary judgment motion, not offering evidence of "special damages," and in not appealing from Justice Jones' order dismissing the fraud claim.

Plaintiff moves for partial summary judgment as to liability with respect to his malpractice claim based on defendants' failure to commence an action concerning the positions offered in 2004. Plaintiff also moves for partial summary judgment as to liability on his malpractice claim based on defendants' handling of the fraud claim. Plaintiff argues that defendants were negligent in not offering evidence of special damages in order to differentiate the fraud claim from a mere breach of contract. Plaintiff asserts that he sustained special damages by virtue of having foregone a position as a public high school teacher in reliance upon the college's false representation that he would be considered for a full-time position on the faculty.

Defendants cross-move for summary judgment dismissing the complaint. Defendants argue that as a matter of law they were not negligent. Alternatively, defendants argue that plaintiff cannot establish that he would have prevailed in the underlying action but for defendants' malpractice.In order to sustain a claim for legal malpractice, a plaintiff must establish both that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, resulting in actual damages, and that the plaintiff would have succeeded on the merits of the underlying action "but for" the attorney's negligence(Ambase Corp. v. Davis, Polk & Wardwell, 8 NY3d 428, 434 [2007]). The standard of care expected of an attorney must be established by expert testimony, unless the jurors may determine from their ordinary, daily experience whether the attorney has been negligent(Merlin Biomed Asset Management v. Wolf Block Schorr & Solis-Cohen, 23 AD3d 243 [1st Dep't 2005]). The selection of one among several reasonable courses of action does not constitute malpractice, even if the attorney committed an error of judgment(Rosner v. Paley, 65 NY2d 736 [1985]). Whether an attorney is under a duty to perform particular legal services depends primarily on "the scopeof the agreed representation," which is ordinarily a question of fact(Shaya B. Pacific v. Wilson, Elser, Moskowitz, Edelman & Dicker, 38 AD3d 34, 41 [2d Dep't 2006]).

On a motion for summary judgment, it is the proponent's burden to make a prima facie [*7]showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact(JMD Holding Corp. v. Congress Financial Corp., 4 NY3d 373, 384 [2005]). Failure to make such a prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers(Id). However, if this showing is made, the burden shifts to the party opposing the summary judgment motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial(Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986]).

Since defendants were retained in 1999, filing a notice of claim or bringing a discrimination suit based upon positions which became available in 2004 was most likely not within the scope of defendants' agreed representation. Nevertheless, it may be inferred that an employer who discriminates based upon age, or other prohibited criteria, will continue to do so. Indeed, expert testimony upon this subject is not necessary because a jury based upon its ordinary experience would be familiar with "a continuing pattern of discrimination"(See Beame v. DeLeon, 87 NY2d 289 [1995]). Thus, an attorney of ordinary and reasonable skill might be expected to join additional claims of discrimination which accrued after the attorney was retained.

However, subsequent acts of discrimination are relevant as proof of an intent to discriminate(Gardner v. Morris, 752 F.2d 1271, 1279 [8th Cir. 1985]). Thus, counsel may have planned to offer evidence of plaintiff's denial of the 2004 positions in order to buttress the claims of discrimination in 1998, 2002, and 2003. At trial, Justice Pitts ruled that, "The fall 2004 would be out."^[FN7] However, the court's ruling may have been intended merely to preclude plaintiff from asserting a claim based upon the 2004 positions rather than barring evidence of the subsequent positions on the issue of prior discrimination. In any event, if Justice Pitts intended the latter, his incorrect evidentiary ruling was an intervening cause which led to the unfavorable verdict.

Moreover, if discrimination based upon the 1998 or 2002 full-time positions had been established, it is not clear that asserting a claim based upon discrimination in 2004 would have resulted in any greater recovery. In view of plaintiff's concern that the action not be delayed, it was a reasonable course of action for defendants to rely upon discrimination as to the 1998 and 2002 full-time positions rather than seeking leave for yet a third amendment of the complaint.The court rules, as a matter of law, that defendants were not negligent with respect to their failure to seek amendment of the complaint or file a notice of claim as to discrimination practiced in 2004. Accordingly, plaintiff's motion for partial summary judgment as to liability is denied as to the claim for malpractice based upon failure to commence an action as to the 2004 positions. Defendants' cross-motion for summary judgment dismissing the malpractice claim based upon the 2004 positions is granted.

The court next proceeds to the charges of malpractice with regard to the handling of the fraud claim. Fraud is generally defined as behavior involving intentional, false representations, and scienter, or knowledge of falsity, as well as reliance and injury on the part of the plaintiff(Gaidon v. Guardian Life Ins. Co., 94 NY2d 330, 348[1999]). Deceptive acts and practices having a widespread effect upon consumers may give rise to liability under § 349 of the General Business Law(Blue Cross and Blue Shield v. Phillip Morris, 3 NY3d 200, 205 [2004]). However, a "general practice" of false representations is not an element of a common law fraud cause of action. As with [*8]discrimination, fraudulent intent may be proved by other instances of fraudulent activity(Matter of Brandon, 55 NY2d 206, 211 [1982]). However, because of the danger of confusion, even on a summary judgment motion, it was a reasonable course of action for counsel to focus on the college's deception of the plaintiff. The court rules, as a matter of law, that defendants were not negligent in failing to offer evidence of a more widespread fraud on the summary judgment motion.

While the rules for distinguishing fraud from breach of contract may be difficult to apply, they are well settled. "Absent a present intention to deceive, a statement of future intentions, promises, or expectations is not actionable on the grounds of fraud. A complaint based upon a statement of future intention must allege facts to show that the defendant, at the time that the promissory representation was made, never intended to honor or act on his statement"(Non-Linear Trading Co. v. Braddis Associates, 243 AD2d 107, 118 [1st Dep't 1998]). "As a general rule, to recover damages for tort in a contract matter, it is necessary that plaintiff plead and prove a breach of duty distinct from, or in addition to, the breach of contract...A failure to perform promises of future acts is merely a breach of contract to be enforced by an action on the contract. A cause of action for fraud does not arise when the only fraud charged relates to a breach of contract"(Id). Nevertheless, a fraud claim will not be duplicative of a claim for breach of contract where plaintiff seeks special damages proximately caused by the false representations not recoverable under the contract measure of damages(Rivas v. Amerimed, Inc., 34 AD3d 250 [1st Dep't 2006]).

In an action for breach of an employment contract, an employee is entitled to recover the wages and other benefits he would have received under the contract, less amounts that reasonably could have been received from other employment(Siegel v. Laric Entertainment Corp., 307 AD2d 861 [1st Dep't 2003]). Thus, plaintiff is correct in his assumption that lost income as a public school teacher is not recoverable in an action for breach of contract, although it may be an item of damages in a fraud action. Nevertheless, defendants set forth in the verified complaint that the County's misrepresentations induced plaintiff "to forego an opportunity to teach in the public school system"(¶ 87). Thus, the court concludes that defendants sufficiently argued special damages in an effort to distinguish plaintiff's fraud claim from a breach of contract. The court rules, as a matter of law, that defendants were not negligent in failing to offer evidence of special damages on the summary judgment motion.

While an attorney may commit malpractice in failing to pursue an appeal, plaintiff must establish that but for such failure he would have prevailed on the appeal(Hutt v. Kanterman & Taub, 280 AD2d 379 [1st Dep't 2001]). Since plaintiff has done little more than offer the memorandum of law which defendants submitted to Justice Jones, the court concludes that plaintiff has not carried his burden of establishing prima facie that he would have prevailed on appeal. Thus, plaintiff's motion for partial summary judgment with respect to his malpractice claim predicated on defendant's failure to pursue an appeal is denied.

However, the court also concludes that defendants have not carried their burden of establishing prima facie that plaintiff would not have prevailed on an appeal from the dismissal of the fraud claims. Putting aside the question of vagueness, that is whether a promise to give a "preference" in hiring is capable of enforcement, the breach of such a promise would give rise to a claim for breach of contract but not a fraud cause of action. However, if the chairman falsely represented that adjuncts received some type of advantage or special consideration in the hiring process, knowing that they did not, in order to induce plaintiff to accept an adjunct position, a cause [*9]of action for fraud might be stated. To state a claim for fraud, a false representation must be "sufficiently definite to support a claim of reliance"(Chimart Associates v. Paul, 66 NY2d 570 575 [1986]). Nevertheless, the representation need not be sufficiently definite to support a breach of contract action(See Glen Holly Entertainment, Inc. v. Tektronix Inc., 352 F.3d 367, 381 [9th Cir.2003][fraud remedy viable even though representation too indefinite to support a promissory estoppel claim]). Thus, there were at least arguable grounds to appeal Justice Jones' order dismissing the fraud claims.

Since the retainer agreement has not been submitted, the court cannot conclude at this stage that an interlocutory appeal was not within the scope of defendants' agreed representation.

A malpractice action may be barred where the client takes over control of the suit as by negotiating the terms of a settlement(Sutherland v. Millstein, 266 AD2d 33 [1st Dep't 1999]). Nevertheless, in the circumstances of the present case, plaintiff's proceeding pro se does not bar a malpractice action. The jury returned special verdicts only as to discrimination and made no findings as to fraud on the part of the Suffolk County defendants. Because a viable cause of action for fraud might have been reinstated on appeal, the court cannot conclude that plaintiff would not have succeeded on the merits but for defendants' malpractice. Defendants' motion for summary judgment dismissing the complaint is denied as to plaintiff's claim of malpractice based on defendants' failure to pursue an appeal from Justice Jones' dismissal of the fraud claims.

This shall constitute the decision and order of the court.

This constitutes the decision and order of this Court.

_________________________________

HON. ARTHUR M. DIAMOND

J.S.C.To:

Attorney for Plaintiff

PETER MCCLUSKEY

13 Doxsey Place

Lynbrook, New York 11563

(516) 593-0281

Attorney for Defendants

PETER D. RIGELHAUPT,ESQ.

L'ABBATE, BALKAN, COLAVITA

& CONTINI

1001 Franklin Ave.

Garden Vity, New York 11530

(516) 294-8844