FILED: NASSAU COUNTY CLERK 10/06/2015 10:07 AM

NYSCEF DOC. NO. 51

INDEX NO. 606650/2014

RECEIVED NYSCEF: 10/06/2015

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NASSAU
AHDY ATTALLAH,
Plaintiff,
v.
MILBANK, TWEED, HADLEY & McCLOY LLP

Index No. 606650/2014

Defendant.

MEMORANDUM OF LAW IN OPPOSITION TO

PLAINTIFFS MOTION TO STRIKE
PORTIONS OF DEFENDANTS MEMORANDUM OF LAW
IN SUPPORT OF THE MOTION TO DISMISS THE AMENDED COMPLAINT

Defendant Milbank, Tweed, Hadley & McCloy LLP (Milbank) respectfully

submits this memorandum in opposition to Plaintiff Ahdy Attallahs Motion to Strike, dated
September 24, 2015 (Doc. No. 42) (the Motion to Strike). Plaintiff moves to strike, pursuant
to Rule 3024(b) of the New York Civil Practice Law and Rules (CPLR), portions of Milbanks
Memorandum of Law in Support of its Motion to Dismiss the Amended Complaint, dated June
9, 2015 (Doc. No. 17) (the Motion to Dismiss), and Milbanks Memorandum of Law in
Opposition to Plaintiffs Motion to Strike Portions of Defendants Memorandum of Law in
Support of its Motion to Dismiss the Complaint, dated June 19, 2015 (Doc. No. 24) (the
Opposition to the May 26 Motion to Strike).1 The Motion to Strike, which is the third such
motion Mr. Attallah has attempted to file, lacks merit and should be denied.
This case stems from pro bono legal services provided by Milbank to Mr. Attallah
related to Plaintiffs expulsion from the New York College of Osteopathic Medicine
(NYCOM). Mr. Attallah has brought claims for breach of fiduciary duty, legal malpractice,
and human rights violations against Milbank, all purportedly arising from the discrete legal
services Milbank provided Mr. Attallah. According to the terms of the parties written
engagement letter, however, Milbank agreed to represent Mr. Attallah only in connection with
the negotiation of his attempted re-admission to NYCOM. Although Mr. Attallah alleges that
Milbank should have commenced litigation against NYCOM and others to secure his readmission, he ignores that his engagement letter with Milbank expressly provided that Milbanks
representation did not extend to conducting litigation on his behalf.

At a September 3, 2015 conference with the Courts clerk, Mary Louise Biunno, Plaintiffs Motion to
Strike, dated May 26, 2015 (Doc. No. 14), was withdrawn. The present Motion to Strike seeks to strike
portions of Milbanks Opposition to the May 26 Motion to Strike. Because that Motion to Strike, and all
filings related thereto, were deemed withdrawn, this memorandum does not address allegedly objectionable
text in the Opposition to the May 26 Motion to Strike.

Milbank has moved to dismiss the Amended Verified Complaint (Doc. No. 12)
(the Amended Complaint or Am. Compl.) on the grounds that (i) Mr. Attallahs claims of
malpractice fall outside the scope of Milbanks limited engagement; (ii) Mr. Attallah does not
adequately allege that Milbanks representation proximately caused his injury; and (iii) that the
alleged damages are too speculative to be recoverable.
PROCEDURAL HISTORY
On September 3, 2015, the parties met with Ms. Biunno to discuss various
motions pending on the Courts docket. During that conference, Ms. Biunno informed Plaintiff
that his putative motion to strike filed on July 16, 2015 (Doc. No. 32) was not properly submitted
because Plaintiff had filed the motion as related to Defendants Motion to Dismiss, and thus had
failed to pay the required fee for the filing of motions. The Courts clerk told Mr. Attallah how
to properly file the motion if he chose to. On September 24, 2015, 21 days after the conference
with the Courts clerk and 77 days after the Motion to Dismiss was filed, Mr. Attallah filed the
current Motion to Strike.
ARGUMENT
I.

THE MOTION TO STRIKE SHOULD BE DENIED BECAUSE A PARTY CAN

ONLY MOVE TO STRIKE PLEADINGS UNDER CPLR 3024
A motion under CPLR 3024(b) is appropriate only to strike scandalous and

prejudicial matters in a pleading. N.Y. Civ. Prac. L. & R. 3024(b). Pleadings include a
complaint and an answer, but motions and the accompanying papers are not pleadings. N.Y.
Civ. Prac. L. & R. 3011. Mr. Attallahs Motion to Strike, purportedly filed pursuant to CPLR
3024(b), seeks to strike portions of Milbanks Motion to Dismiss. Because Milbanks Motion to
Dismiss is not a pleading, Mr. Attallahs cannot move to strike any portion of the Motion to
Dismiss under CPLR 3024(b).
2

II.

EVEN ASSUMING, ARGUENDO, THAT MR. ATTALAHS MOTION WERE

PERMITTED, THE MOTION TO STRIKE SHOULD BE DENIED BECAUSE
THE MOTION TO DISMISS CONTAINS NO SCANDALOUS OR PREJUDICIAL
MATERIAL
Even if Mr. Attallah were permitted to move to strike the Motion to Dismiss

under CPLR 3024(b), or otherwise, CPLR 3024(b) permits a matter to be stricken only where a
scandalous or prejudicial matter has been unnecessarily inserted in a pleading. N.Y. Civ.
Prac. L. & R. 3024(b). Here, however, none of the statements in the Motion to Dismiss is either
scandalous or prejudicial. In assessing whether particular statements are scandalous or
prejudicial, New York courts inquire into whether the purportedly scandalous or prejudicial
allegations are relevant to a cause of action. Soumayah v. Minnelli, 41 A.D.3d 390, 392 (1st
Dept. 2007). Where, as here, pleadings are directly relevant to a matter, they should not be
struck no matter their content. Irving v. Four Seasons Nursing & Rehab. Ctr., 995 N.Y.S.2d
184, 186 (2d Dept. 2014) (denying a motion to strike because the contested matter was relevant
to the proceeding). Moreover, where the targeted statements are not scandalous or prejudicial in
their own right, they should not be stricken in a pleading. See Info. Mgmt. Network, LLC v.
OConnor, 2008 N.Y. Misc. LEXIS 10641, at *8, 22 (Sup. Ct. N.Y. County 2008) (denying a
partys motion to strike because the materials were not prejudicial or scandalous). Mr. Attallah
has fallen far short of meeting the standard to show a motion to strike is appropriate.
A.

Milbanks references to orders of protection have been corrected, are

relevant to the Motion to Dismiss, and are neither scandalous nor
prejudicial.
In the Motion to Strike, Mr. Attallah claims that portions of Milbanks Motion to

Dismiss should be stricken because it uses the term order of protection, when it should have
used the term ex parte order or an application for an order. One of the allegations in Mr.
Attallahs complaint is that NYCOM wrongfully expelled him due to a series of ex parte orders,
3

and applications for such orders, that had been rendered against him. Milbanks Motion to
Dismiss, however, is abundantly clear that in expelling Mr. Attallah, NYCOM relied on
applications for orders of protection made by a medical resident at Nassau University Medical
Center (the Hospital) and on orders of protection that had been obtained on an ex parte basis.
(See Motion to Dismiss at 7-8, n.5, n.7.) Mr. Attallahs motion should be denied on this ground
alone.
Moreover, Mr. Attallahs Motion to Strike should be denied because there is
nothing scandalous or prejudicial about anything in Milbanks Motion to Dismiss. Mr. Attallah
has filed numerous lawsuits with voluminous complaints and other pleadings against NYCOM,
the Hospital, and numerous senior executives of NYCOM and the Hospital. Those pleadings are
replete with allegations concerning the circumstances of Mr. Attallahs expulsion, including the
filing of applications for orders of protection and the issuance of temporary restraining orders
against him. (See, e.g., Federal Complaint 265, 292, 376, 715, 1023.)2 The suggestion that
Milbanks mere mention of orders of protection against Mr. Attallah constitutes prejudicial or
scandalous matter harmful to Mr. Attallahs reputation is meritless.
B.

Milbanks references to NYCOMs conclusion that Mr. Attallah lied are

relevant to its defense and are neither scandalous nor prejudicial.
Mr. Attallah also seeks to strike statements in the Motion to Dismiss that when

expelling Mr. Attallah, NYCOM reached the conclusion that Mr. Attallah had lied to the
school about his arrest and disciplinary record. But there is a more than ample basis for that
statement in Milbanks Motion to Dismiss. In an email cited by Mr. Attallah himself in the
2

References to the Federal Complaint are to the Verified Fourth Amended Complaint, Attallah v. New
York College of Osteopathic Medicine et al., No. 12-cv-06132 (E.D.N.Y. 2015), 2015 WL 1400530, which
is attached as Exhibit 2 to the Affirmation of Thomas A. Arena in Opposition to Plaintiffs Motion to Strike
Portions of Defendants Memorandum of Law in Support of Motion to Dismiss the Amended Complaint,
dated July 29, 2015. (Doc. No. 37.)

Amended Complaint (Am. Compl. 116), Mary Ann Achtziger, Associate Dean at NYCOM,
wrote to others at NYCOM that the schools expulsion decision was based on its conclusion that
Mr. Attallah was guilty of, among other things, providing false and misleading information to
NYCOM (Doc. No. 22) (the Achtziger Email). As detailed by Milbank in its Motion to
Dismiss, this email shows that if Milbank had filed a defamation complaint against the Hospital
and others, or engaged in further efforts to seek a reversal of NYCOMs expulsion, as Mr.
Attallah alleges it should have (Am. Compl. 363, 365), it is unlikely that any such efforts
would have caused NYCOM to change its decision. (Motion to Dismiss at 16-17.) The email
also supports the conclusion that NYCOM determined Mr. Attallah had lied to the school,
regardless of whether Mr. Attallah was guilty of threatening his girlfriend or other such
statements made by the Hospital, and thus any damages stemming from NYCOMs failure to
reverse its expulsion decision are too speculative to sustain a claim against Milbank. (Motion to
Dismiss at 18-19.) Because NYCOMs decision is relevant to the present cause of action, Mr.
Attallahs objection to Milbanks statements are meritless and the Motion to Strike should be
denied.
CONCLUSION
For the foregoing reasons, Defendant Milbank, Tweed, Hadley & McCloy LLP
respectfully requests that the Court deny Plaintiffs Motion to Strike.

Dated:

New York, New York

October 6, 2015

MILBANK, TWEED, HADLEY & MC CLOY LLP

________/s/________________
Thomas A. Arena
28 Liberty Street
New York, New York 10005
Phone: (212) 530-5000
Fax: (212) 530-5219
tarena@milbank.com