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Dowlah v Professional Staff Congress |
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2024 NY Slip Op 02980 |
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Decided on |
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Appellate Division, First Department |
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Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
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This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided and Entered:
Before: Moulton, J.P., Scarpulla, Shulman,
Higgitt, O'Neill Levy, JJ.
Index No. 151561/22 Appeal No. 2412 Case No.
2023-06121
[*1]Caf Dowlah, Plaintiff-Appellant,
v
Professional Staff Congress (PSC-CUNY), et al., Defendants-Respondents.
Caf Dowlah, appellant pro se.
Levy Ratner, P.C.,
Wilson Elser Moskowitz Edelman & Dicker LLP,
Order, Supreme Court, New York County (Eric Schumacher, J.),
entered October 25, 2023, which granted defendants' motions to dismiss the
complaint pursuant to CPLR 3211(a)(7), unanimously affirmed, without costs.
Plaintiff's legal malpractice claim against his union-appointed
attorney who represented him in arbitration is preempted by Federal labor law,
as "attorneys who perform services for and on behalf of a union may not be
held liable in malpractice to individual grievants where the services performed
constitute part of the collective bargaining process" (Mamorella v
Derkasch, 276 AD2d 152, 155 [4th Dept 2000]).
Plaintiff's claims against his union, Professional Staff Congress
(PSC-CUNY), and its legal director, arising from their selection of an
allegedly biased arbitrator are barred by res judicata and collateral estoppel
based on this Court's resolution of that issue in plaintiff's prior appeals (see Matter of Dowlah v City Univ. of N.Y., 189 AD3d 533,
534 [1st Dept 2020]; Dowlah v American Arbitration Assn., 221 AD3d 426,
426 [1st Dept 2023]). Plaintiff's instant claims are based on the same
transaction as in both earlier actions, and therefore they are barred even
though they are based upon different legal theories (Dowlah, 221 AD3d at
427). "That plaintiff has pleaded different causes of action and included
new parties is of no moment" since "plaintiff, the party against whom
preclusion is sought, was a party in the earlier action[s]" (id.).
To the extent plaintiff's claim against PSC-CUNY arises from its
appointment of plaintiff's allegedly negligent attorney and thus raises a
distinct issue, his allegations constitute a claim that he was improperly
represented by his union, which is untimely under CPLR 217(2)(a)'s four-month
limitations period (see Roman v City Empls. Union Local 237, 300 AD2d
142, 142 [1st
Res judicata also bars plaintiff from relitigating his prior
appeals, and his arguments for recusal of Justices who participated in those
appeals are entirely unsupported by evidence.
Plaintiff cites several nonexistent cases in his initial
memorandum of law. In his reply brief he acknowledges that these citations were
the result of research using "legal software applications" that
deploy artificial intelligence. Plaintiff avers that he has an LLM (among other
advanced degrees) but not much "legal expertise" and he apologizes
for the fictitious precedents. We caution plaintiff that his pro se status does
not excuse his failure to check the legal citations that he offers to a court.
We have considered plaintiff's remaining arguments and find them
unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: