Olaiya v Golden

[*1] Olaiya v Golden 2006 NY Slip Op 51503(U) [12 Misc 3d 1189(A)] Decided on July 31, 2006 Supreme Court, Kings County Schack, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 31, 2006
Supreme Court, Kings County

Kayode S. Olaiya, Plaintiff,

against

Michael Golden, Defendant.



27519/01

Arthur M. Schack, J.

Pro se plaintiff sued defendant Michael Golden, Esq., who represented him in an employment disciplinary action by the New York City Department of Juvenile Justice, for $300,000,000 in alleged damages caused by defendant's legal malpractice. Defendant moves, pursuant to CPLR Rule 3212, for summary judgment and dismissal of the instant action.

Plaintiff blames his former employer, former coworkers and Mr. Golden for his termination and resulting damages. Unfortunately for plaintiff, as will be discussed, he has no one to blame but himself. Summary judgment is granted to defendant.

Background

Plaintiff was employed as a Juvenile Counselor by the New York City Department of Juvenile Justice (DJJ) from 1988 until his March 27, 1998 termination for cause [exhibit C of motion - plaintiff's EBT, p. 9; exhibit Q of motion - termination letter]. Plaintiff's duties included transporting and escorting "residents" (DJJ's politically correct term for juvenile detainees) to and from the Spofford Juvenile Center for various court [*2]appearances in Manhattan [memorandum of law in support of motion - p. 2].

DJJ accused plaintiff of making inappropriate comments of a sexual nature to a thirteen-year-old male detainee, J. E., on July 29, 1997 at New York County Family Court [exhibit C - March 18, 1998 Report and Recommendation of Faye Lewis, Administrative Law Judge (ALJ) of New York City Office of Administrative Trials and Hearings (OATH)]. Mr. Golden was retained as plaintiff's counsel by plaintiff's union, Local 1457 of District Council 37, American Federation of State, County and Municipal Employees [exhibit C of motion - plaintiff's EBT, pp. 14-15]. Defendant unsuccessfully attempted to resolve informally plaintiff's suspension by DJJ and then represented plaintiff at an OATH trial on November 10 and December 1, 1997 [Golden affirmation in support of motion; exhibit A of motion - transcript of OATH trial].

At the OATH trial, DJJ called four employees who had heard plaintiff's alleged inappropriate comments to the youth as witnesses. They also called two employees who had investigated the allegations to testify, and presented into evidence written statements by the alleged victim and two other youths.

Mr. Golden, in defending plaintiff, called a character witness to testify regarding plaintiff's work history and his ability to speak appropriately to Spofford's "residents." The ALJ cut off further character testimony. Mr. Golden summarized the expected favorable testimony of two additional character witnesses for the ALJ. He sought to present two witnesses regarding the possible false accusations by Mr. Olaiya's fellow workers. Only one was allowed to testify by the ALJ. Mr. Golden had plaintiff testify about his satisfactory work performance and positive performance reviews. Defendant placed into evidence eight memos from plaintiff to his supervisors about poor workplace conditions created by coworkers. Plaintiff also denied making any inappropriate comments to the youth. He testified that the youth, after being sentenced to 18 months in DFY's custody, made inappropriate comments to him. In his summation to the ALJ, Mr. Golden pointed out what he believed to be inconsistencies and lack of credibility in the testimony of DJJ's witnesses. He emphasized the years that plaintiff had worked for DJJ without incident.

ALJ Lewis, at page 13 of her Report and Recommendation, found:

Generally speaking, I did not find respondent [Mr. Olaiya]

credible, nor do I find his denial of any misconduct to be genuine.

The character testimony adduced by respondent did not convince me

that he would not engage in the misconduct alleged, particularly given

that other witnesses alluded to similar misconduct.

Further, the ALJ concluded, at page 17 of her Report and Recommendation, that DJJ met its burden of proving all of the allegations against plaintiff. Specifically she found:

1. On or about July 29, 1997, at the New York County Family Courthouse,

respondent Kadoye Olaiya told resident J.E. either "You are my

son and my dick is your DFY [Division for Youth]. Come to your DFY, [*3]

my son," or "18 months on my dick," as alleged in specification one,

as amended to conform to the proof.

2. On or about July 29, 1997, at the New York County Family Courthouse,

respondent Kayode Olaiya told resident J.E., "Suck my dick,"

as alleged in specification two.

3. On or about July 29, 1997, at the New York County Family Courthouse,

respondent Kayode Olaiya told resident J.E., "Just a little

lower," or "down a little lower" as alleged in specification three.

Then, ALJ Lewis recommended "that the proven misconduct is so serious that termination is the only appropriate disposition," and concluded that "respondent has demonstrated that he is not a person who can be trusted with the care of children and adolescents committed to the custody of the city. Therefore, I recommend that respondent be terminated from his employment." DJJ terminated Mr. Olaiya nine days later [exhibit Q of motion - termination letter].

Defendant Golden served a timely appeal with the New York City Civil Service Commission [exhibit R of motion]. Mr. Golden was prepared to argue that in light of plaintiff's employment history the penalty of termination was too harsh and disproportionate to the offense [exhibit H of motion - defendant's EBT, p. 88]. On the morning of the oral argument of the appeal, plaintiff disagreed with defendant and only wanted defendant to argue that he was not guilty of the charges [Id.]. Defendant disagreed because he believed that the argument would fail in light of the overwhelming eyewitness evidence given at the OATH trial against defendant [Id.]. In light of their vast differences in how the appeal should be argued, Mr. Golden told plaintiff that he could not proceed in the manner requested by plaintiff [Id.].

At the commencement of the March 25, 1999 appeal hearing, Mr. Golden explained to the Civil Service Commission that he felt uncomfortable proceeding with the case due to the differences between himself and plaintiff in how to present the appeal [exhibit S of motion - March 25, 1999 Civil Service Commission hearing transcript, p.2]. Mr. Golden asked to be relieved as counsel for plaintiff and plaintiff consented [Id. at 5]. The Commission then granted defendant's application to be relieved as counsel [Id. at 5]. The Commission advised plaintiff that he could adjourn the proceedings to retain new counsel [Id. at 6]. Plaintiff refused and insisted on trying the matter that day before the Commission [Id.]. The Commission, after a discussion on the record, granted plaintiff's application to proceed that day [Id. at 9]. Plaintiff then argued the appeal on his own [Id. at 10-34].

The Civil Service Commission, on May 4, 1999, issued its findings and upheld DJJ's termination of plaintiff [exhibit T of motion - Notice of Civil Service Commission Action]. The unanimous findings of the commissioners were that "[a]fter a careful review of the testimony adduced at the departmental hearing and based on the record in this case, the Civil Service Commission finds no reversible error and affirms the decision and penalty imposed by the New York City Department of Juvenile Justice."

Plaintiff, in July 2000, filed charges of professional misconduct against Mr. Golden with the First Department's Disciplinary Committee [exhibit U of motion]. For reasons unknown to the Court, he also served copies of the complaint upon United States Senators Joseph Biden and Edward Kennedy, as well as the Clerk and Chief Judge of the United States Second Circuit. Mr. [*4]Golden responded [exhibit V of motion]. Several months later, the Disciplinary Committee informed Mr. Golden that the charges of professional misconduct were unfounded and the case was closed [Golden affirmation in support of motion]. This Court's review of the Office of Court Administration's Attorney Registry confirms that there is no record that Mr. Golden has ever been disciplined by the Appellate Division.

On or about July 20, 2001, plaintiff commenced the instant action for legal malpractice [exhibit W of motion]. Plaintiff, in a disjointed, almost incoherent manner, asserts five grounds for legal malpractice. They are that: Mr. Golden failed to admit a September 26, 1997-letter from the New York State Department of Social Services into evidence; Mr. Golden, at p. 2 of the complaint, failed, "to timely file suit, pleadings or other documents with the court was the proximate cause of injury sustained by plaintiff" [sic]; Mr. Golden did not inform the ALJ that DJJ's attorney failed to inform plaintiff that DJJ reported plaintiff to the New York City Department of Investigation; Mr. Golden failed to subpoena 14 "key" witnesses; and, Mr. Golden "concealed criminal activities" by failing to bring to ALJ's attention that a DJJ exhibit had a blank page and had lied in his response to the First Department's Disciplinary Committee.

While DJJ's charges were pending and plaintiff was suspended by DJJ, plaintiff commenced a federal action on January 12, 1998. In Olaiya v Department of Juvenile Justice, No. 98-CV-228 FB, 1999 WL33104879 (US Dist Ct, EDNY1999), plaintiff alleged discriminatory and retaliatory termination, in violation of Title VII of the 1964 Civil Rights Act (42 USC § 2000 [e]), after filing a complaint with the Equal Employment Opportunity Commission (EEOC). Judge Frederic Block, in granting summary judgment to DJJ on August 17, 1999, held at 4, that "[t]he ALJ's decision sets forth on behalf of the employer DJJ, non-discriminatory reasons for terminating Olaiya's employment." In reaching his decision, Judge Block noted, further at 4, that "[t]he Court has made its best effort to discern from Olaiya's rambling pro se papers whether he challenges DJJ's reasons for his termination as a pretext for discrimination. It appears that Olaiya simply makes unsupported general denials." In granting DJJ summary judgment on retaliation claims, Judge Block, at 5, held that "Olaiya has failed to articulate anything other than confused, conclusory allegations in his papers regarding the retaliation claim." On appeal, the United States Court of Appeals, Second Circuit, affirmed Judge Block at 210 F3d 355, 2000 WL 501756, holding at 2, that "[w]e agree with the district court that Olaiya offered no competent proof in support of his wrongful discharge and retaliation claims."

In reading plaintiff's opposition papers to defendant's instant motion, in the words of Judge Block, "[t]he Court has made its best effort to discern from Olaiya's rambling pro se papers" why I should not grant defendant's summary judgment motion. For the reasons that follow, plaintiff has failed to allege that the defendant Golden was the proximate cause of his injury. Further, plaintiff has not proven that "but for" the alleged malpractice of defendant, plaintiff sustained actual and ascertainable damages. Plaintiff's papers in the instant action are similar to those in the federal action, in that plaintiff "has failed to articulate anything other than confused, conclusory allegations."

Summary judgment standard

The proponent of summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any [*5]material issues of fact from the case. See Alvarez v Prospect Hospital, 68 NY2d 320, 324 (1986); Zuckerman v City of New York, 49 NY2d 557, 562 (1980); Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. Matter of Redemption Church of Christ v Williams, 84 AD2d 648, 649 (3d Dept 1981); Greenburg v Manlon Realty, 43 AD2d 968, 969 (2d Dept 1974); Winegrad v New York University Medical Center, 64 NY2d 851 (1985).

CPLR Rule 3212 (b) requires that for a court to grant summary judgment the court must determine if the movant's papers justify holding as a matter of law, "that the cause of action or defense has no merit." The evidence submitted in support of the movant must be viewed in the light most favorable to the nonmoving party. Marine Midland Bank, N.A. v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 (2d Dept 1990). Summary judgment shall be granted only where there are no issues of material fact and the evidence requires the court to direct judgment in favor of the movant as a matter of law. Friends of Animals, Inc., v Associated Fur Mfrs., 46 NY2d 1065 (1979).

Discussion

In the instant case, defendant Golden's motion for summary judgment demonstrates a prima facie showing of entitlement to judgment as a matter of law. In reviewing plaintiff's opposition papers, plaintiff has failed to establish the four elements necessary to prove legal malpractice. The Court in Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d 1082, 1083 (2d Dept 2005), quoting from its holding in Iannarone v Gramer, 256 AD2d 443 (2d Dept 1998), at 444, held that:

To establish a cause of action to recover damages for legal malpractice,

a plaintiff must prove (1) that the defendant attorney failed to exercise that

degree of care, skill, and diligence commonly possessed by a member of

the legal community, (2) proximate cause, (3) damages, and (4) that the

plaintiff would have been successful in the underlying action had the

attorney exercised due care (see, Volpe v. Canfield, 237 AD2d 282 [2d

Dept 1997]).

Plaintiff was terminated from his employment with DJJ by the overwhelming eyewitness testimony that he made inappropriate sexual comments to a minor. Plaintiff's complaint and opposition papers are replete with his continued rants and rambles about his dissatisfaction with the strategic choices made by Mr. Golden at the OATH trial and Mr. Golden's recommendations for argument on the appeal to the Civil Service Commission. Dissatisfaction with an attorney's strategic choices does not support a malpractice claim. Bernstein v Oppenheim & Co., P.C., 160 AD2d 428 (1st Dept 1990); Morrison Cohen Singer & Weinstein v Zuker, 203 AD2d 119 (1st Dept 1994); Rubinberg v Walker, 252 AD2d 466 (1st Dept 1998); Magnacoutics, Inc. v Osterlenk, Faber, Gerb & Soffen, 303 AD2d 562 (2d Dept 2003); Albanese v Hametz, 4 AD3d 379 (2d Dept 2004); Pere v St. Onge, 15 AD3d 465 (2d Dept 2005).

Further, in review of plaintiff's complaint and opposition papers, plaintiff is unable to articulate how he would have had a favorable outcome in his DJJ disciplinary action, "but for" Mr. Golden's actions, the fourth element in the Tortura legal malpractice standard. See Arnav Industries Inc. Retirement Trust v Brown, Raysman, Millstein Felder & Steiner, L.L.P., 96 NY2d 300, 303-304 (2001); McCoy v Feinman, 99 NY2d 295, 301-302 (2002); Hill v Fisher & Fisher, [*6]203 AD2d 328 (2d Dept 1994); Zasso v Maher, 226 AD2d 366, 367 (2d Dept 1996); Natale v Jeffrey Samel & Associates, 308 AD2d 568, 569 (2d Dept 2003); Edwards v Haas, Greenstein, Samson Cohen & Gerstein, P.C., 17 AD3d 517, 519 (2d Dept 2005); Levy v Greenberg, 19 AD3d 462, 444 (2d Dept 2005); Terio v Spodek, 25 AD3d 781 (2 Dept 2006).

In opposing Golden's summary judgment motion the burden shifts to plaintiff to demonstrate the existence of triable issues of fact. See Alvarez v Prospect Hospital, supra; Winegrad v New York University Medical Center, supra. Plaintiff has failed to do this. Viewing plaintiff's complaint and his motion papers in the most favorable light, plaintiff has not demonstrated that Mr. Golden failed to exercise that degree of care, skill and diligence that an attorney would possess in defending a client in an employment disciplinary case. Mr. Golden's defense in the OATH trial and his advice to Mr. Olaiya with respect to how to argue the appeal to the Civil Service Commission was reasonable in defendant's exercise of his legal skill to prevent his client's discharge at the OATH trial or to mitigate the discipline at the Civil Service Commission appeal. The eyewitness evidence against plaintiff was too overwhelming for a skilled attorney to prevent the outcome at the OATH trial. If plaintiff had heeded Mr. Golden's advice at the Civil Service Commission appeal, he might have saved his job with a period of suspension, instead of his continued termination. There are no triable issues of fact present as to whether or not Mr. Golden committed legal malpractice. The Court must grant Mr. Golden summary judgment and dismiss the instant complaint.

Plaintiff blames everyone but himself for his troubles. He has refused to take personal responsibility for being the sole proximate cause of any damages resulting from his termination by DJJ due to his inappropriate July 29, 1997 comments. Plaintiff, in blaming others for his woes, failed in his federal employment discrimination action and in his complaint to the Appellate Division about Mr. Golden's alleged professional misconduct. Plaintiff, in his pro se quest for exoneration and damages, should have heeded the famous admonition that Cassius gave to Brutus, in Act I, Scene Two, of William Shakespeare's Julius Caesar:

The fault, dear Brutus, is not in our stars,

But in ourselves.

Conclusion

Accordingly, it is

ORDERED, that the motion of defendant Golden, pursuant to CPLR Rule 3212, to grant summary judgment to defendant Golden and dismiss plaintiff's complaint is granted.

This constitutes the Decision and Order of the Court.

E N T E R

HON. ARTHUR M. SCHACK

J. S.C.