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This appeal pertains to an order granting partial summary judgment entered in the United States District Court for the Western District of New York (Larimer, J.). The order granted defendants' motion for summary judgment on plaintiff Deputy County Attorney's claims that defendants County and County officials violated the First, Fourth, Fifth and Fourteenth Amendments of the Constitution, 42 U.S.C. §§ 1981, 1983 and 1985, and breached an employment contract, by terminating plaintiff's employment on the basis of political affiliation and age, and without proper notice. The order denied summary judgment on a claim that defendant County violated the Age Discrimination in Employment Act ("ADEA"), see 29 U.S.C. § 621 et seq., by terminating plaintiff's employment because of age. Summary judgment was granted in favor of the two individual defendants on the ADEA claim, however, because the district court found that neither of these individuals could be considered an "employer," as defined in ADEA, 29 U.S.C. § 630(b).

Plaintiff-appellee-cross-appellant Thomas F. Tranello, a Republican, was a Deputy County Attorney for defendant-appellant-cross-appellee Monroe County. In 1987, a Democrat, defendant-appellant-cross-appellee Thomas R. Frey, was elected Monroe County Executive. Frey appointed another Democrat, defendant-appellant-cross-appellee Patrick M. Malgieri, as County Attorney after assuming office. Shortly after Malgieri took office, he terminated Tranello's employment. Tranello commenced this action in the district court, alleging that he was fired because of his political affiliation and age, and without any pretermination hearing. The district court granted defendants' motion for summary judgment, by an order dated and filed March 13, 1991, on all but the ADEA claim asserted against defendant Monroe County.

By order dated and filed July 29, 1991, the district court granted the County's application 246*246 for certification pursuant to 28 U.S.C. § 1292(b), thereby enabling the County to seek permission to appeal the denial of summary judgment on the ADEA claim. By notice of motion dated August 8, 1991, the County sought permission from this Court for leave to appeal, pursuant to section 1292(b) and Rule 5 of the Federal Rules of Appellate Procedure. Thereafter, Tranello, by notices of motion dated August 16, 1991, sought leave of this Court to file a late answer to the County's petition for leave to appeal and applied, on the basis of an untimely filed cross-petition, for leave to appeal the district court's grant of summary judgment for defendants on the various causes of action asserted in the complaint. On October 1, 1991, this Court granted both of Tranello's motions, and also granted the County's request for leave to appeal.

For the reasons stated below, we now hold that permission for Tranello to file a late cross-petition and for leave to appeal was improvidently granted and therefore dismiss for lack of jurisdiction his cross-appeal challenging the portion of the district court's order granting summary judgment for defendants. We affirm the portion of the district court's order, timely appealed from by the County, denying the County's motion for summary judgment on the ADEA claim.


962 F.2d 244 (1992)

Lawrence F. TRANELLO, Plaintiff-Appellee — Cross-Appellant,


Thomas R. FREY, individually, and as Monroe County Executive, Patrick M. Malgieri, individually, and as the Monroe County Attorney, County of Monroe, Defendants-Appellants — Cross-Appellees.

Nos. 883, Dockets 91-7944, 91-7946.

United States Court of Appeals, Second Circuit.

Argued February 14, 1992.

Decided May 1, 1992.

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