INDEX NO.

812536/2015

FILED: ERIE COUNTY CLERK 11/16/2015 03:45 PM

NYSCEF DOC. NO. 6

RECEIVED NYSCEF: 11/16/2015

STATE OF NEW YORK

SUPREME COURT: COUNTY OF ERIE
___________________________________________
JEFFREY MALKAN,

AFFIDAVIT IN SUPPORT OF
MOTION TO DISMISS
Plaintiff,

Index No. 812536/2015

vs.
JAMES A. GARDNER,

Hon. James H. Dillon

Supreme Court Justice

Defendant.
__________________________________________
STATE OF NEW YORK
COUNTY OF ERIE
CITY OF BUFFALO

)
) ss.:
)

CHRISTOPHER LAWRENCE BOYD, ESQ., being duly sworn, deposes and says:
1.

I am an attorney licensed to practice law in the State of New York and am an

Assistant Attorney General, of counsel to Eric T. Schneiderman, New York State Attorney
General, counsel for Defendant James A. Gardner. As such I am familiar with the facts and
circumstances had herein.
2.

I make this declaration in support of Defendants Motion to Dismiss, pursuant to

Civil Procedure Law & Rules (CPLR) 3211(a)(1), (5), (7) and (8).
OVERVIEW
3.

Plaintiff is a disgruntled former employee of The State University of New York,

University at Buffalo (the University) Law School (the Law School). Since his termination
in 2009, Plaintiff has waged an extensive campaign of litigation against all those he perceives to
have been associated with his termination. To date, Plaintiffs litigation efforts have not met

with success. Recently, Mr. Malkan sent emails to the faculty of the Law School (the Faculty)
referencing mass shootings, and as a result was barred from the Universitys campus.
Defendant, the Dean of the Law School, sent the Faculty an email to notify them that Mr.
Malkan had been barred from campus. Mr. Malkan now sues Defendant for defamation and
intentional infliction of emotional distress. Plaintiffs claims are frivolous and should be
dismissed as a matter of law.
FACTS
4.

Plaintiff filed the Complaint in this action on October 26, 2015. (NYSCEF Doc.

No. 1.) A copy of the Complaint is attached hereto as Exhibit A.

5.

Pursuant to an Affidavit of Service filed by Plaintiff, the Complaint was served on

Defendant on October 23, 2015. (NYSECF Doc. No. 2.) A copy of Plaintiffs Affidavit of
Service is attached hereto as Exhibit B.
6.

Defendant, James A. Gardner, is Interim Dean of the Law School. (Compl. 8.)

7.

Plaintiff, Jeffrey Malkan, was employed at the Law School from August 2000

until August of 2009. Id. 9.

8.

Mr. Malkan is an attorney admitted to the New York Bar. His bar number is

2232221.
9.

Mr. Malkans employment with the Law School was terminated in 2009. (Compl.

10.

Since his termination, Mr. Malkan has pursued myriad judicial and administrative

21.)

remedies. On November 19, 2008, Plaintiff filed an improper practice charge with the Public
Employment Relations Board. Id. 22-23. On March 23, 2012, Plaintiff filed a lawsuit in the

United States District Court for the Western District of New York against Makau W. Mutua,
then Dean of the Law School, alleging violations of Mr. Malkans due process rights in
connection with the termination of his employment at the Law School. Id. 24. Mr. Malkan
filed two claims in the Court of Claims regarding the termination of his employment at the Law
School, and summary judgment was granted to defendant on both claims, which decision was
affirmed by the Fourth Department. Malkan v. State of New York, 125 A.D.3d 1521 (4th Dept
2015). On August 27, 2014, Mr. Malkan moved to file a late claim in the Court of Claims
regarding his termination, which motion was denied because Mr. Malkan failed to establish the
arguable merit of his proposed claim. Malkan v. State of New York, Motion No. M-85598 (Ct. of
Claims June 19, 2015).
11.

Since his termination, Mr. Malkan has sent a barrage of email messages to the

Faculty and others within the Buffalo legal community. (Compl. 27, 28, 31-33.) These
emails run the gamut from accusing a variety of University staff and other government officials,
including Mr. Mutua, Dean Gardner, and University President Satish Tripathi, of perjury and
other crimes, to discussing vast conspiracy theories. Malkan v. Mutua, 12-cv-00236, ECF No.
84, Dec. of AAG David Sleight, Exs. A-B (W.D.N.Y. July 23, 2015).1
12.

Based on, inter alia, Mr. Malkans repeatedly inappropriate conduct in the course

of his federal court litigation, the Office of the Attorney General sought sanctions against Mr.

Mr. Malkans emails have been compiled and filed in federal court. Malkan, 12-cv-00236, ECF No. 84, Sleight
Dec., Exs. A-B. The Court may take judicial notice of these records. Headley v New York City Tr. Auth., 100
A.D.3d 700, 701 (2d Dep't 2012) (This Court may, in general, take judicial notice of matters of public record.);
Khatibi v. Weill, 8 A.D.3d 485, 485 (2d Dep't 2004) ([T]his Court may take judicial notice of undisputed court
records and files.) (citation omitted); Property Clerk, New York City Police Dep't v. Seroda, 131 A.D.2d 289, 294
n. 2 (1st Dep't 1987) (taking judicial notice of letter filed in federal court proceeding); WMK Prods., Inc. v Cook,
2013 N.Y. Misc. LEXIS 2675, at *23 (Sup. Ct. N.Y. Co. June 21, 2013) (taking judicial notice of the docket
entries in federal court action). These emails have not been attached hereto because they are voluminous,
consisting of hundreds of pages, but will be provided to the Court upon request.

Malkan and has asked the court to consider holding him in civil contempt and possible referral
for attorney discipline. Malkan v. Mutua, 12-cv-00236, ECF No. 83-1, Mot. for Sanctions,
(W.D.N.Y. July 23, 2015).
13.

On March 5, 2015, Mr. Malkan sent an email to the Faculty referring to a news

article about a faculty member at the University of Alabama who brought a gun to a faculty
meeting and murdered several of her colleagues because she had been denied tenure. (Compl.
27.) Mr. Malkans email was troubling to several members of the Faculty, and as a result the
University Police Department (UPD) was contacted. On March 8, 2015, UPD called Mr.
Malkan to perform a threat assessment, and determined that he did not present an imminent
threat. Id.
14.

On the evening of October 1, 2015, Mr. Malkan sent an email to the Faculty, with

carbon copies to me, my colleague Assistant Attorney General David Sleight, who is handling
Mr. Malkans action in federal court, and four lawyers in the University counsels office.2 In this
email, titled todays on-campus violence and Makau W. Mutua, Mr. Malkan states:
Colleagues,
Today's terrible crime is unspeakably tragic. Every time this senseless and
insane violence recurs, which is all too often, I despair that I will ever
recover my reputation and dignity. Makau W. Mutua's life-destroying
slanders, which he orchestrated with James A. Gardner, has almost
completely destroyed my ability to function in society. I'm still in
disbelief that the faculty has been unable to summon the will to hold
President Tripathi accountable for imposing Makau W. Mutua on the Law
School and is still tolerating his faculty appointment, which is within the
faculty's powers to revoke. He is a remorseless criminal. I don't know
how this is possible or why the faculty thinks that forcing me to seek
recourse through the federal courts, with year after year of litigation

A copy of Mr. Malkans October 1, 2015 email is attached hereto as Exhibit C.

against the limitless resources of a corrupt Attorney General, is consistent

with anything that anyone believes and values.
Jeffrey
15.

This emailMr. Malkans second reference to a mass shootingwas troubling to

several members of the Faculty. As a result, UPD was informed of the situation. (Compl. 2829.)
16.

On October 6, 2015, Barbara J. Ricotta, Associate Vice President for Student

Affairs at SUNY Buffalo, sent Mr. Malkan a letter informing him that his privileges as a visitor
to the campuses of the University were being revoked, based, in part, on emails you sent on
March 5, 2015 and October 1 and 5, 2015 to members of the faculty of the University at Buffalo
Law School. . . (Comp. 34, Ex B.2.) Ms. Ricotta noted that Mr. Malkans messages have
caused disruption and created a fear of harm among individuals at the University. Id.
17.

On October 9, 2015, Dean Gardner sent an email to the Faculty informing them

that pursuant to the State Education Law, the University at Buffalo issued an order declaring
Jeffrey Malkan persona non grata and barring him from campus. (the October Email,
Compl. 32, Ex B.1.)
18.

Plaintiff asserts two causes of action, the first is for defamation and libel per se

and the second is for intentional infliction of emotional distress. (Compl. 39-54.)
19.

Mr. Malkans claims appear to primarily relate to the October Email, but Plaintiff

also makes vague references to other purported slanders and libels . . . since February 25,
2008. (Compl. 4.)

LEGAL STANDARD
20.

Defendant moves to dismiss pursuant to CPLR 3211(a). [O]n a motion

addressed to the sufficiency of a complaint the facts pleaded are presumed to be true and
accorded every favorable inference. Gertler v. Goodgold, 107 A.D.2d 481, 485 (1st Dep't
1985) (citation omitted). However, allegations consisting of bare legal conclusions as well as
factual claims flatly contradicted by documentary evidence are not entitled to any such
consideration. Id.
21.

Plaintiffs first claim is for defamation. Whether particular words are

defamatory presents a legal question to be resolved by the court in the first instance. Aronson v.
Wiersma, 65 N.Y.2d 592, 593 (1985) (citation omitted).
22.

Plaintiffs second claim, for intentional infliction of emotional distress, is also

easily resolved on a motion to dismiss. Howell v. New York Post Co., 81 N.Y.2d 115, 122
(1993) ([O]f the intentional infliction of emotional distress claims considered by this Court,
every one has failed because the alleged conduct was not sufficiently outrageous.)
ARGUMENT
POINT I
CERTAIN OF PLAINTIFFS CLAIMS
ARE BARRED BY THE STATUTE OF LIMITATIONS
23.

The statute of limitations for claims of defamation, such as libel and slander, as

well as intentional infliction of emotional distress, is one year. CPLR 215 (3); see, e.g., Matter
of Williams, III v. County of Genesee, 306 A.D.2d 865, 866 (4th Dept 2003); Wilson v. Erra, 94
A.D.3d 756 (2d Dept 2012) (The causes of action sounding in defamation and intentional

infliction of emotional distress are governed by a one-year statute of limitations.) (citation

omitted).
24.

The Complaint alleges that Defendants slanders and libels have caused

[Plaintiffs] reputation, career, and peace of mind [damage] since February 25, 2008. (Compl.
4.) Plaintiff also alleges that the October Email is the most recent of a series of slanders and
libels repeated by the Defendant since February 25, 2008. Id. 41.
25.

Plaintiff appears to take issue with a confidential evaluation of him authored by

Dean Gardner on February 25, 2008. Id. 14. Plaintiff argues that the evaluation was false,
and attached it as Exhibit A to his Complaint. (Compl. 14-15, Ex A.)
26.

Plaintiff also argues that Mr. Mutua defamed him on March 31, 2010 and again

on December 19, 2013. Id. 19. Plaintiff asserts that Defendant has been aware of these
defamations at all times relevant to this complaint. Id.
27.

Plaintiffs first cause of action alleges, inter alia, that Defendant is liable for

falsely confirming the veracity of the defamations made by former-Dean Makau W. Mutua,
and by failing to correct them when he had a duty to do so, and by repeating and further
publicizing these defamations . . . Id. 47. It appears that Mr. Malkan is referring to
statements made in 2010 and 2013. Id. 19, 47.3
28.

Any cause of action for defamation or intentional infliction of emotional distress

arising prior to October 26, 2014, which is one year before this action was commenced, is barred
by the statute of limitations. Thus, any claims relating to statements made in 2008, 2010 and
2013, are time barred, and should be dismissed. CPLR 3211(a)(5).

These claims, even if not time barred, would fail because Plaintiff pleads no facts establishing that Defendant had a
duty to correct statements made by other persons, and no such claim lies as a matter of law.

POINT II
PLAINTIFFS DEFAMATION CLAIMS FAIL BECAUSE DEFENDANTS
STATEMENTS WERE TRUE AND/OR CONSTITUTED AN OPINION
29.

The elements of a cause of action for defamation are a false statement,

published without privilege or authorization to a third party, constituting fault as judged by, at a
minimum, a negligence standard, and it must either cause special harm or constitute defamation
per se. Salvatore v. Kumar, 45 A.D.3d 560, 563 (2d Dep't 2007) (quoting Dillon v. City of New
York, 261 A.D.2d 34, 37 (1st Dep't 1999)).
30.

It is axiomatic that truth is an absolute, unqualified defense to a civil defamation

action and that substantial truth is all that is required." Smith v. United Church Ministry, 212
A.D.2d 1038, 1039 (4th Dep't 1995) (citation omitted) (quoting Schwartzberg v Mongiardo , 113
AD2d 172, 174 (3rd Dept 1985) lv denied 68 NY2d 602); Fairley v. Peekskill Star Corp., 83
A.D.2d 294, 297 (2d Dep't 1981).
31.

Plaintiff alleges that Defendants October Email is [t]he defamation that is the

subject of this action. . . (Compl. 4.)

32.

The October Email was factually accurate in all respects, and this is apparent from

the face of the Complaint. The October email is also not defamatory, and the Court may
consider this issue on a motion to dismiss. Aronson, 65 N.Y.2d at 593. The full text of the
October Email sent by Defendant to the Faculty is as follows:
Dear Colleagues:
Earlier this week, pursuant to the State Education Law, the University at
Buffalo issued an order declaring Jeffrey Malkan persona non grata and
barring him from campus. Following this order, any appearance by Mr.
Malkan on any UB property will subject him to immediate arrest and
possible prosecution for criminal trespass.

As you may know, Mr. Malkan over the last several years has been the
source of a steady stream of email messages directed to members of this
faculty, Law School administrators, University administrators, University
counsel, and the Office of the New York Attorney General (which has
represented the Law School in a series of lawsuits brought by Mr.
Malkan). In these messages nearly 200 over the last twelve months alone
Mr. Malkan has rehearsed a variety of grievances against the Law
School, the University, and lawyers in the Attorney Generals Office.
In at least two of these e-mail messages, Mr. Malkan referred to mass
shootings on other university campuses including, most recently, the
tragedy earlier this month at Umpqua Community College in Oregon.
Following each of these references, an Investigator from the University
Police Department (UPD) has telephoned Mr. Malkan at his home
downstate to assess whether he poses a threat to anyone on this campus. In
each case, the Investigator has concluded that Mr. Malkan does not at
present pose an immediate and active threat.
Nevertheless, with the safety of its employees its paramount concern, and
to address the considerable stress and anxiety that these e-mail
communications have caused to their recipients, the University has
deemed it prudent to take the precaution of barring Mr. Malkan from
campus. Accordingly, if you should see Mr. Malkan on any UB campus at
any time, you are requested immediately to notify UPD (645-2222) or call
911. For those of you who did not know him, a photo of Mr. Malkan is
attached for your reference.
Please do not hesitate to contact me or Dean LaDelfa if you have any
questions or concerns. The safety of each and every one of you is my
number one priority.
(Compl. 32, Ex B.1.)
33.

Mr. Malkan has not pled that any of these statements are false, and in fact has

pled facts establishing that these statements are true. (Compl. 27-29, 33-34.)
34.

As to the first paragraph of the October Email, Plaintiff admits that he was

declared persona non grata, was barred from campus, and is now subject to arrest if he enters the
Universitys campus. (Compl. 34.) Indeed, the Complaint attaches a letter confirming these
facts. (Compl., Ex B.2.)
9

35.

As to the second paragraph of the October Email, Plaintiff admits that Plaintiffs

messages, to this day, are conveyed through the campus e-mail system. (Compl. 33.) That
Mr. Malkan has sent nearly 200 [emails] over the last twelve months alone , and that Mr.
Malkan has rehearsed a variety of grievances, is a matter of public record, of which the Court
may take judicial notice. (See fn. 1, supra).
36.

As to the third paragraph of the October Email, it is undisputed that [i]n at least

two of these email messages, Mr. Malkan referred to mass shootings on other university
campuses including, most recently, the tragedy earlier this month at Umpqua Community
College in Oregon. (Oct. Email.) Indeed, Plaintiff pleads that [o]n March 5, 2012, Plaintiff
sent an email message to the faculty . . . [regarding] a news story about an on-campus shooting in
a faculty meeting. (Compl. 27.) Plaintiff also pleads that [o]n October 1, 2015, the day of
the Umpqua Community College tragedy, Plaintiff sent another message to the faculty stating
how devastating it was to have his name associated with such heinous crimes against humanity
and asking for the facultys sympathy and support. (Compl. 28.) Mr. Malkan also admits that
he was contacted by the UPD after each email was sent, and that the UPD determined that there
was no ongoing or imminent threat on both occasions. (Compl. 27, 29.)
37.

As to the fourth paragraph, the October Email states that the University has

deemed it prudent to take the precaution of barring Mr. Malkan from campus. (Oct. Email.)
Plaintiff disagrees that this course of action was prudent, but that the University deemed it
prudent is borne out by the fact that they did, in fact, bar Mr. Malkan from campus. Moreover,
Defendants statement that this course of action was prudent is a matter of opinion, and is not a
statement of fact subject to a defamation claim. Gross v. N.Y. Times Co., 82 N.Y.2d 146, 153

10

(1993) (quoting 600 W 115th St Corp. v. Von Gutfeld, 80 NY 2d 130, 139 (1992)) (Since falsity
is a necessary element of a defamation cause of action and only facts are capable of being
proven false, it follows that only statements alleging facts can properly be the subject of a
defamation action.); Brian v. Richardson, 87 N.Y.2d 46, 50 (1995) (Since falsity is a sine qua
non of a libel claim and since only assertions of fact are capable of being proven false, we have
consistently held that a libel action cannot be maintained unless it is premised on published
assertions of fact.) (citations omitted). Moreover, [w]hether a statement is an expression of
fact or opinion is a question of law for the court. Miller v. Richman, 184 A.D.2d 191, 193 (4th
Dep't 1992).
38.

As to the fifth paragraph, Defendant merely asked the faculty to contact him with

any concerns and noted that [t]he safety of each and every one of you is my number one
priority. This statement is both true and also non-defamatory.
39.

Because all statements in the October Email are either true or constitute opinions,

Plaintiffs first cause of action should be dismissed for failure to state a claim.
POINT III
PLAINTIFF HAS NOT PLED A CLAIM FOR LIBEL PER QUOD AND HAS FAILED
TO PLEAD SPECIAL DAMAGES
40.

Libel is broken down into two discrete forms--libel per se, where the defamatory

statement appears on the face of the communication, and libel per quod, where no defamatory
statement is present on the face of the communication but a defamatory import arises through
reference to facts extrinsic to the communication. Ava v. NYP Holdings, Inc., 64 A.D.3d 407,
412 (1st Dep't 2009) (citations omitted.) Thus, [a]n action in libel per se may be maintained
when a publication is defamatory upon its face while an action premised upon libel innuendo,

11

which requires special damages, is necessary when the publication requires extrinsic evidence to
explain its defamatory meaning. Luisi v. JWT Group, Inc., 128 Misc. 2d 291, 294 (Sup. Ct.
N.Y. Co. 1985).
41.

Plaintiff has not brought a cause of action for plain libel, or libel per quod, and

instead has only pled Defamation and Libel Per Se. (Compl. at 10, First Cause of Action.) As
such, Plaintiff is not entitled to rely upon innuendo. Even if Plaintiff were entitled to rely upon
innuendo, a claim for libel per quod requires pleading special damages, which Plaintiff has failed
to do. Lyons v. New Am. Library, Inc., 78 AD 2d 723, 724 (3d Dept 1980) (In an action for
libel, it is well settled that in the absence of any allegations of special damages, the complaint
will not be found to state a cause of action unless the words are libelous per se.) (citation
omitted). Special damages contemplate the loss of something having economic or pecuniary
value. Liberman v. Gelstein, 80 NY 2d 429, 434 (1992).
42.

Plaintiff alleges that he has suffered, loss of standing in the community, loss of

his vocation and livelihood, loss of his dignity, public disgrace, and severe emotional distress.
(Compl. 49.) While loss of livelihood could establish special damages, and injury to trade
could amount to defamation per se, here Plaintiff pleads that his employment was terminated in
2009. (Compl. 9.) Defendants October Email, which was sent on October 9, 2015, could not
have caused Plaintiffs termination six years earlier. As discussed in section I, supra, any claims
regarding events in 2009 are time barred.
43.

Moreover, Plaintiff has already sworn in a declaration he filed in federal court that

his academic career came to an end when he was terminated in 2009, stating, [w]hen the
spring 2009 semester ended, so did my vocation and livelihood. Malkan v. Mutua, 12-cv-

12

00236, ECF No. 88-2, Pls Dec. in Op. to Mot. for Sanc., 80-82, (W.D.N.Y. Aug. 24, 2015)
(the Malkan Declaration).4 Given Plaintiffs prior sworn statements in federal court, he cannot
now claim that Defendants October Email caused loss of his vocation and livelihood, which
he has sworn already ended in 2009. (Compl. 49.)
44.

Because Plaintiff has not pled a cause of action for libel per quod and has failed to

plead special damages, he is not entitled to rely upon innuendo, which is the only possible basis
for his first cause of action, as explained in section IV, infra, and as such his first cause of action
should be dismissed for failure to state a claim.
POINT IV
PLAINTIFF HAS NOT PLED A CLAIM FOR LIBEL INNUENDO OR LIBEL BY
IMPLICATION
45.

Assuming, arguendo, that Plaintiff had asserted a claim for libel per quod, and

had pled special damages, his claim for libel innuendo would still fail as a matter of law.
46.

The October Email contains no false statements, and Plaintiff has not pointed to

any. Plaintiffs claims appear to rest on his belief that Defendant by innuendo stated that
Plaintiff presented an imminent threat to the campus. (Compl. 32.) However, [t]he canons
are well known that where the words are clear and plain, the court must determine whether they
are libelous or nonlibelous; and whether the innuendo is necessary. Tracy v. Newsday, Inc., 5
N.Y.2d 134, 136 (1959) (citation omitted). The admitted purpose of an innuendo is to explain
matter that is insufficiently expressed. Its office is to point out the libelous meaning of the words
used. If the article is not susceptible of a libelous meaning, then innuendo cannot make it
libelous. Id.

A copy of Mr. Malkans declaration, exclusive of exhibits, is attached hereto as Exhibit D. The Court may take
judicial notice of this declaration. See fn. 1, supra.

13

47.

Innuendo may not enlarge upon the meaning of words so as to convey a meaning

that is not expressed. Id. Loose, figurative or hyperbolic statements, even if deprecating the
plaintiff, are not actionable. Dillon, 261 A.D.2d at 38. Thus, [w]here defamation is charged
that can only be found through tortured readings, the Court will dismiss the complaint.
Jennings v Wall St. Journal, Ncew Corp., 2013 N.Y. Misc. LEXIS 2076, at *6 (Sup. Ct. N.Y. Co.
May 13, 2013) (citation omitted).
48.

Determining whether the Complaint pleads an innuendo sufficient to make any

statement by Defendant libelous is a question of law. Id. (quoting Fry v. Bennett (5 Sandf. 54,
65)) (In brief, the question which an innuendo raises, is, in all cases, a question not of fact, but
of logic. It is, simply, whether the explanation given is a legitimate conclusion from the premise
stated; and to determine this question, must be, in all cases, the exclusive province of the court.)
Courts are reluctant to allow a plaintiff to maintain a cause of action for defamation based on
implication:
Plaintiff, in this case, asks the court to find defamation not based on the
factual statements expressly contained in the article, but rather based on
the impressions and implications of seemingly accurate facts.
Courts have described the significant obstacles in the way of such a
claim, and have therefore reasoned that defamatory implication must be
present in the plain and natural meaning of the words used. Because the
Constitution provides a sanctuary for truth, in an implied defamation case,
the plaintiff must make an especially rigorous showing where the language
must not only be reasonably read to import the false innuendo, but it must
also affirmatively suggest that the author intends or endorses the
inference. In evaluating plaintiff's allegations, this court is constrained to
interpret the challenged speech from the viewpoint of the average viewer,
without straining to find a defamatory meaning beyond the natural and
ordinary meaning of the language at issue.

14

Levy v Johnson, 2012 N.Y. Misc. LEXIS 1198, at *13-14 (Sup. Ct. Nassau Co. Feb. 22, 2012)
(internal citations omitted).
49.

While the Fourth Department and the Court of Appeals have not yet articulated a

specific standard for a defamation by implication claim, the First Department has done so:
To survive a motion to dismiss a claim for defamation by implication
where the factual statements at issue are substantially true, the plaintiff
must make a rigorous showing that the language of the communication as
a whole can be reasonably read both to impart a defamatory inference and
to affirmatively suggest that the author intended or endorsed that
inference.
Stepanov v. Dow Jones & Co., Inc., 120 A.D.3d 28, 37-38 (1st Dep't 2014). Here,
Plaintiff has not come close to making such a rigorous showing.
50.

Mr. Malkan states that Defendant published the following purportedly defamatory

statements:
(a)
a false assertion that the Plaintiff had threatened mass violence
upon members of the faculty and administration of the Law School;
(b)
a false assertion that the Plaintiff was mentally unbalanced, armed,
dangerous, and capable of mass violence;
(c)
a false assertion that the safety and security of the Universitys
employees and students were endangered by the Plaintiff;
(d)
a false assertion that the Defendant was obliged to take prudent
measures to protect the safety and security of the Law Schools employees
and students, and;
(e)
a provocative and inflammatory request, with mug shots in the
form of digital photos provided for identification, for members of the Law
School community, regardless of whether they had ever before seen the
Plaintiff, to contact the State University Police immediately upon any
sighting of him in the vicinity of the campus.
(Compl. 40.) None of these statements, nor anything remotely close thereto, appears in the
October Email. Moreover, Plaintiff does not plead any specific innuendos that would suggest

15

that reasonable readers would draw an inference that Dean Gardners October Email was making
such statements about Plaintiff.
51.

The October Email did not state that Mr. Malkan had threatened mass violence,

it instead stated that Mr. Malkan, in two email messages, referred to mass shootings on other
university campuses, which is, based on Plaintiffs own admission, true. (Compl. 27-28.)
52.

The October Email does not state that Mr. Malkan, was mentally unbalanced,

armed, dangerous, and capable of mass violence. In fact, the October Email says nothing about
weapons or Mr. Malkans mental state. To the extent that the October Email can be read to
assert that Mr. Malkan is dangerous, this is a matter of opinion not subject to a defamation claim.
Kamalian v. Reader's Digest Assn., Inc., 29 A.D.3d 527, 527 (2d Dep't 2006) (holding that
article titled Dangerous Doctors was not defamatory because the statements challenged were
not reasonably susceptible of a defamatory meaning, but rather, constituted pure opinion, and
thus were constitutionally protected.)
53.

Mr. Makan contends that the October Email contains a false assertion that the

Defendant was obliged to take prudent measures to protect the safety and security of the Law
Schools employees and students. (Compl. 40.) First, what is prudent is a matter of
opinion, and thus not subject to a defamation action. Gross, 82 N.Y.2d at 153. Second, pursuant
to the Universitys Workplace Violence Prevention Policy (discussed in section VI, infra), which
is mandated by 12 N.Y.C.R.R. 800.6, Defendant was obliged to take prudent steps to ensure
the safety of the Law Schools employees and students.
54.

Lastly, Plaintiff alleges that Defendant defamed him by making a provocative

and inflammatory request, with mug shots in the form of digital photos provided for

16

identification, for members of the Law School community, regardless of whether they had ever
before seen the Plaintiff, to contact the State University Police immediately upon any sighting of
him in the vicinity of the campus. (Compl. 40.) But whether this request was provocative
or not is irrelevant; Plaintiff does not allege that this statement was false, so it cannot be
defamatory. See, e.g., Brian, 87 N.Y.2d at 50.
55.

Because Plaintiff has failed to adequately plead an innuendo or libel by

implication, his first cause of action should be dismissed for failure to state a claim.
POINT V
PLAINTFF HAS NOT ADEQUATELY PLED DEFAMATION PER SE
56.

Generally, a written statement may be defamatory 'if it tends to expose a person

to hatred, contempt or aversion, or to induce an evil or unsavory opinion of him in the minds of a
substantial number of the community. Geraci v. Probst, 15 N.Y.3d 336, 344 (2010) (quoting
Golub v. Enquirer/Star Group, 89 N.Y.2d 1074, 1076 (1997)). Damages will likewise be
presumed for statements that charge a person with committing a serious crime or that would tend
to cause injury to a person's profession or business. Id.
57.

When as here, no special damages, are pleaded, a defamation claim may survive

a motion to dismiss only if a plaintiff shows one of the four exceptions that establishes
defamation per se. Plautz v Eidlin-Quere, 2011 N.Y. Misc. LEXIS 6782, at *22 (Sup. Ct. N.Y.
Co. July 13, 2011); El Jamal v. Weil, 116 A.D.3d 732, 733-734 (2d Dep't 2014) (Unless the
defamatory statement fits within one of the four "per se" exceptions, a plaintiff must allege that
he or she suffered special damages. . . .) (citations omitted).
58.

There are four established exceptions to the general rule that special damages

are required, which are referred to as defamation per se: statements (i) charging plaintiff with a
17

serious crime; (ii) that tend to injure another in his or her trade, business or profession; (iii) that
plaintiff has a loathsome disease; or (iv) imputing unchastity to a woman. Liberman, 80 N.Y.2d
at 435. The aforementioned four exceptions constituting slander per se also apply to libel per
se. Hirsch v. New York Dept. of Educ., 2013 N.Y. Misc. LEXIS 5079, at *15 (Sup. Ct. N.Y.
Co. Oct. 30, 2013); Boehner v. Heise, 734 F. Supp. 2d 389, 398 (S.D.N.Y. 2010) (Libel claims
are not sustainable in the absence of special damages unless they fall into one of four exceptions,
which collectively constitute libel per se.) (citation omitted).
59.

Plaintiffs allegations do not fall within any of the categories of defamation per

se. First, Defendant did not accuse Plaintiff of a serious crime. Indeed, the October Email
states that campus police determined that, Mr. Malkan does not at present pose an immediate
and active threat. (Oct. Email.) Even assuming, counterfactually, that Defendant had accused
Plaintiff of having threatened mass violence upon members of the faculty, this statement
would not qualify as defamation per se because it would, at most, have accused Plaintiff of
committing harassment, which is not a serious crime. Liberman, 80 N.Y.2d 429, 436. In
Liberman, the plaintiff alleged that the defendant said Liberman threatened to kill me and my
family. Id. The Court held that this was not defamation per se because:
Harassment is a relatively minor offense in the New York Penal Law
not even a misdemeanor and thus the harm to the reputation of a person
falsely accused of committing harassment would be correspondingly
insubstantial. Hence, even if we agreed with plaintiff that the statement
would not have been construed by the listeners as rhetorical hyperbole, the
cause of action must nevertheless be dismissed because it is not slanderous
per se to claim that someone committed harassment.
Id.

18

60.

As to the Second category of defamation per se, Plaintiff is unemployed, has

sworn that his career came to an end in 2009 and thus has no trade, business or profession to
injure. (Malkan Dec. 80-82.)
61.

As to the third and fourth categories, Defendant is not alleged to have made a

statement that Mr. Malkan has a loathsome disease or is unchaste.

62.

Nor can the October email be said to induce as to Plaintiff, hatred, contempt or

aversion, or to induce an evil or unsavory opinion of him in the minds of a substantial number of
the community. Geraci, 15 N.Y.3d at 344. The October Email was sent to the Law School
Faculty. Mr. Malkan has pled that he has not worked at the Law School since 2009, now resides
450 miles away in Saint James, New York, and has not been on-campus since May 20, 2009.
(Compl. 9, 27, 30.) Thus, the October Email was not published to any members of Mr.
Malkans community.
63.

Because Plaintiff has not pled a claim that falls within the scope of defamation

per se, Plaintiffs first cause of action should be dismissed for failure to state a claim.
POINT VI
PLAINTIFFS DEFAMATION CLAIM IS BARRED BY PRIVILEGE
64.

It is well settled that [p]ublic policy mandates that certain communications,

although defamatory, cannot serve as the basis for the imposition of liability in a defamation
action. When compelling public policy requires that the speaker be immune from suit, the law
affords an absolute privilege, while statements fostering a lesser public interest are only
[qualifiedly] privileged. Rosenberg v. Metlife, Inc., 8 N.Y.3d 359, 365 (2007) (internal
citations omitted; alteration in original). The privilege of absolute immunity is bestowed upon
an official who . . . is entrusted by law with administrative or executive policy-making
19

responsibilities of considerable dimension and extends to those of subordinate rank who

exercise delegated powers. Firth v. State, 12 A.D.3d 907, 907-908 (3d Dep't 2004).
65.

Defendant is the Interim Dean of the Law School (Compl. 8), and as such is the

head of the law school, with his powers being delegated by the President of the University, who
in turn derives his authority from the Chancellor and Board of Regents. Title 8 N.Y.C.R.R. et
seq. Pursuant to 12 N.Y.C.R.R. 800.6, titled Public Employer Workplace Violence
Prevention Programs, public employers are required to develop and implement programs to
prevent and minimize the hazards of workplace violence to public employees. Id. 800.6 (a).
The University has promulgated a Workplace Violence Prevention Policy (the Policy), as is
required by law, a copy of which is attached hereto as Exhibit E.5 The Policy requires a manager
or supervisor to [r]eport all incidents and concerns for potential workplace violence to UPD
then the Employee Relations Office immediately. Id. The policy also requires
[m]anagement, to work to keep the University at Buffalo a safe place to work. Id.
66.

The October Email was sent by Dean Gardner as part of his responsibilities as the

head of the Law School, charged with helping ensure compliance with the Policy, as is required
under 12 N.Y.C.R.R. 800.6. As such, Defendants statements, even if defamatorywhich they
are notmay be shielded by absolute privilege. Cf. Stukuls v. State, 42 N.Y.2d 272, 279 (1977)
(holding that acting university president was not entitled to absolute privilege in the context of
statements made to tenure committee because the schools trustees and Chancellor have the
ultimate determination of whether tenure is to be granted).

The Court may take judicial notice of the Policy because it is publicly available on the Universitys website at
https://www.buffalo.edu/administrative-services/policy1/ub-policy-lib/workplace-violence-prevention.html. See,
e.g., Matter of LaSonde v Seabrook, 89 A.D.3d 132, 137 (1st Dept. 2011) (This Court has discretion to take judicial
notice of material derived from official government Web sites. . .).

20

67.

If the absolute privilege does not apply, then Defendant is protected by the

qualified privilege. Id. A communication made bona fide upon any subject matter in which the
party communicating has an interest, or in reference to which he has a duty, is privileged if made
to a person having a corresponding interest or duty, although it contained criminating matter
which, without this privilege, would be slanderous and actionable; and this though the duty be
not a legal one, but only a moral or social duty of imperfect obligation. Byam v. Collins, 111
N.Y. 143, 150 (1888) (emphasis in original).
68.

Here, it is undisputed that Defendant sent the October Email to his fellow Law

School Faculty members. (Compl. 32.) The common interest privilege has been applied to
communications among fellow employees . . . The privilege also attaches when the speaker
believes he has a duty to make the communication. Slue v. New York University Medical
Center, 409 F. Supp. 2d 349, 367 (S.D.N.Y. 2006); O'Neill v. New York Univ., 97 A.D. 3d 199,
213 (1st Dept 2012) ([I]t is apparent that the challenged statements Carroll made to petitioner
were communications regarding a work related common interest. Thus, the challenged
statements fall within the qualified privilege.) (internal citations omitted); Liberman, 80 N.Y.2d
at 436 (This common interest privilege has been applied, for example, to employees of an
organization . . .) (internal citation omitted). Because the October Email was sent to the
Faculty, who are Defendants colleagues, the qualified privilege applies.
69.

The shield provided by a qualified privilege may be dissolved if plaintiff can

demonstrate that defendant spoke with malice. Id. (citation omitted). However, if the
defendant's statements were made to further the interest protected by the privilege, it matters not
that defendant also despised plaintiff. Thus, a triable issue is raised only if a jury could

21

reasonably conclude that malice was the one and only cause for the publication. Id. at 438.
(quoting Stukuls, 42 N.Y.2d at 282).
70.

Plaintiff alleges that the October Email was sent by Defendant in pure malice, to

satisfy his own grudge against the Plaintiff . . . (Compl. 42-43.) But, Plaintiff pleads no
facts to support his conclusory allegation of malice and, as such, Plaintiffs claim is insufficient
to overcome Defendants qualified privilege. ONeill, 97 A.D.3d at 213 (The complaint fails to
overcome this privilege because it contains no more than conclusory allegations of malice.)
Even if Plaintiff had sufficiently pled malice, it is clear that malice was not the only cause of the
publication, because Defendant was acting to fulfill his duties as required by the Policy and
associated state regulations. 12 N.Y.C.R.R. 800.6. As such, Defendant is protected by the
qualified privilege.
71.

Because Defendant is entitled to the protection of absolute or qualified privilege,

Plaintiffs first cause of action fails to state a claim and should be dismissed.
POINT VII
PLAINTIFF FAILED TO PLEAD CERTAIN OF HIS DEFAMATION CLAIMS WITH
THE LEVEL OF PARTICULARITY REQURIED BY CPLR 3016
72.

CPLR 3016 requires that [i]n an action for libel or slander, the particular words

complained of shall be set forth in the complaint . . . The only statements by Dean Gardner set
forth in the Complaint are (i) Dean Gardners February 25, 2008 evaluation of Mr. Malkan, and
(ii) the October Email. To the extent Plaintiff is attempting to assert libel or slander claims based
on any other statements, such claims must be dismissed because they are not pled with the
requisite level of particularity. CPLR 3016. Simpson v. Cook Pony Farm Real Estate, Inc., 12
AD 3d 496, 497 (2d Dept 2004) (A cause of action sounding in defamation which fails to

22

comply with the special pleading requirements contained in CPLR 3016 (a) that the complaint
set forth the particular words complained of, mandates dismissal.)
POINT VIII
PLAINTIFF HAS NOT STATED A CLAIM FOR INTENTIONAL INFLICTION OF
EMOTIONAL DISTRESS
73.

The tort of intentional infliction of emotional distress predicates liability on the

basis of extreme and outrageous conduct, which so transcends the bounds of decency as to be
regarded as atrocious and intolerable in a civilized society. Freihofer v. Hearst Corp., 65
N.Y.2d 135, 143 (1985) (citations omitted). The conduct must consist of more than mere
insults, indignities and annoyances. 164 Mulberry St. Corp. v. Columbia Univ., 4 A.D.3d 49,
56 (1st Dep't 2004)
74.

The requirements of the rule are rigorous, and difficult to satisfy. Indeed, of

the intentional infliction of emotional distress claims considered by this Court, every one has
failed because the alleged conduct was not sufficiently outrageous. Howell v. New York Post
Co., 81 N.Y.2d 115, 122 (1993). In practice, courts have tended to focus on the outrageousness
element, the one most susceptible to determination as a matter of law. Id.
75.

Here, the act of sending the October Email, informing the Faculty that Mr.

Malkan had been banned from campus clearly falls well below the level of extreme and
outrageous conduct for which a claim of intentional infliction of emotional distress may lie.
76.

Moreover, because Defendant is protected by the absolute or qualified privilege as

to Plaintiffs claim of defamation, as discussed in section VI, supra, Plaintiff cannot use the tort
of intentional infliction of emotional distress as an end-run around that privilege:
The distinction between privileged and nonprivileged conduct as it relates
to infliction of emotional distress is implicit in our cases and explicit in the
23

Restatement. . . [Thus, if] an act [is] within the contemplation of the

privileged-conduct exception . . . even if defendants were aware that
publication would cause plaintiff emotional distress , publication--without
more--could not ordinarily lead to liability for intentional infliction of
emotional distress.
Id. at 125-126; 164 Mulberry, 4 A.D.3d at 56 (Claims [for intentional infliction of emotional
distress] typically fail because the challenged conduct is not sufficiently outrageous or because a
statement is privileged.) (internal citation omitted).
77.

Therefore, Plaintiff has failed to state a claim for intentional infliction of

emotional distress and his second cause of action should be dismissed.

POINT IX
DEFENDANTS STATEMENTS ARE CONSTITUTIONALLY PROTECTED BECAUSE
THEY INVOLVE A MATTER OF PUBLIC CONCERN AND/OR PLAINTIFF IS A
LIMITED PURPOSE PUBLIC FIGURE
78.

The First Amendment reflects a profound national commitment to the principle

that debate on public issues should be uninhibited, robust, and wide-open. Snyder v. Phelps,
562 U.S. 443, 452 (2011) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)).
The First Amendment protects speech that deals with a matter of public concern. Id. (quoting
Rankin v. McPherson, 483 U.S. 378, 387 (1987)). [S]peech on public issues occupies the
highest rung of the hierarchy of First Amendment values, and is entitled to special protection.
Connick v. Myers, 461 U.S. 138, 145 (1983).
79.

Speech deals with matters of public concern when it can be fairly considered as

relating to any matter of political, social, or other concern to the community, or when it is a
subject of legitimate news interest; that is, a subject of general interest and of value and concern
to the public. Snyder, 562 U.S. at 453 (internal citations omitted).
80.

Plaintiff has pled that three different print and online media sources, including
24

the UB Spectrum, the Buffalo News, and Above the Law published articles about the October
Email. (Compl. 35.) This suggests the matters addressed in the October Email are of public
concern. Cottom v. Meredith Corp., 65 A.D.2d 165, 170 (4th Dep't 1978) ([A] commercial
enterprise's allocation of its resources to specific matters and its editorial determination of what
is newsworthy, may be powerful evidence of the hold those subjects have on the public's
attention.) Mr. Malkan clearly believes that the issues surrounding his termination and
subsequent litigation are matters of public importance. He has stated in a sworn declaration filed
in federal Court that [t]his case is what public corruption looks like and how it comes to light.
(Malkan Dec. 114.)
81.

Because the subject of the October email is a matter of public concern, Plaintiff

must plead facts sufficient to show that Defendant acted in a grossly irresponsible manner in
publishing the October Email. Chapadeau v. Utica Observer-Dispatch, Inc., 38 N.Y.2d 196, 199
(1975) (allegedly defamed party must establish, by a preponderance of the evidence, that the
publisher acted in a grossly irresponsible manner without due consideration for the standards of
information gathering and dissemination ordinarily followed by responsible parties.) This is
true regardless of the fact that Defendant is not a member of the media. Konikoff v. Prudential
Ins. Co. of Am., 234 F.3d 92, 101 (2d Cir. 2000) (collecting cases holding that [c]ourts applying
New York law have, however, uniformly applied Chapadeau to cases involving non-media
defendants.) Here, Plaintiff has pled no facts sufficient to establish that Defendant acted in a
grossly irresponsible manner in publishing the October Email.
82.

Moreover, an individual [who] voluntarily injects himself or is drawn into a

particular public controversy [may] thereby become[] a public figure for a limited range of

25

issues. Gertz v. Robert Welch, 418 U.S. 323, 351 (1974). Mr. Malkan gave a statement to the
Buffalo News for its October 17, 2015 article regarding the October Email, and thus has thrust
himself into the public sphere and is a limited purpose public figure.6
83.

Because Plaintiff is a limited purpose public figure, he must establish that

Defendant acted with actual malice. Daniel Goldreyer v. Dow Jones & Co., 259 A.D.2d 353,
353 (1st Dep't 1999). This is true regardless of the fact that Dean Gardner is not a member of the
media. Gross v. N.Y. Times Co., 281 A.D.2d 299, 300 (1st Dep't 2001) (Applying the actual
malice standard with respect to plaintiff's defamation claims as against the non-media defendant .
. .); Colon v. City of Rochester, 762 N.Y.S.2d 749, 752 (4th Dep't 2003) (applying the
constitutional privilege to all of the media and nonmedia defendants in this case.).
84.

Here, Plaintiff has pled that Defendant acted with pure malice and that he was

motivated by malice, but fails to allege any plausible non-conclusory facts to support these
allegations. (Compl. 42-42.) As such, the Complaint does not sufficiently allege actual
malice and, as such, any claim for defamation is precluded by the First Amendment. ONeill, 97
A.D.3d at 213 (dismissing complaint because it contains no more than conclusory allegations of
malice).
85.

Likewise, because Plaintiff is a limited purpose public figure, and the October

Email touches an issue of public concern, even if Plaintiff had made out a claim for intentional
infliction of emotional distress, such a claim is barred by the First Amendment. Snyder, 562

A copy of the October 17, 2015 article by the Buffalo News, titled Former UB law professor barred from campus
after emails cross line, is attached hereto as Exhibit F. While the Court cannot take judicial notice of news
articles for the truth of the matter asserted therein, it may take judicial notice of the fact that Mr. Malkan gave a
statement to the media. WNEK Vending & Amusements Co. v. Buffalo, 107 Misc. 2d 353, 364 (Sup. Ct. Erie Co.
1980) (taking judicial notice of a newspaper article as a public record).

26

U.S. at 460 (claim for intentional infliction of emotional distress against funeral protesters barred
by First Amendment because protesters were addressing matter of public concern).
POINT X
PLAINTIFF MAY BE LIBEL-PROOF AS TO THE ISSUES IN THE OCTOBER EMAIL
AND/OR HAS ESTABLISHED ONLY AN INCREMENTAL HARM
86.

Under New York law, a plaintiff's reputation with respect to a specific subject

may be so badly tarnished that he cannot be further injured by allegedly false statements on that
subject. Guccione v. Hustler Magazine, Inc., 800 F.2d 298, 303 (2d Cir. 1986) cert denied 479
US 1091. Thus:
[I]n those instances where an allegedly libelous statement cannot
realistically cause impairment of reputation because the person's
reputation is already so low or because the true portions of a statement
have such damaging effects, even nominal damages are not to be awarded.
Instead, the claim should be dismissed so that the costs of defending
against the claim of libel, which can themselves impair vigorous freedom
of expression, will be avoided.
Id. (citation omitted). In such cases, plaintiff may be rendered libel-proof as to certain issues.
Id.; Cardillo v. Doubleday & Co., 518 F.2d 638, 639 (2d Cir. 1975) ([W]e consider as a matter
of law that appellant is, for purposes of this case, libel-proof, i.e., so unlikely by virtue of his
[past acts] to be able to recover anything other than nominal damages as to warrant dismissal of
the case.); Jones v. Plaza Hotel, 1998 N.Y. App. Div. LEXIS 3814, at *1-2 (1st Dep't 1998)
([T]he IAS Court properly dismissed plaintiff's causes of action for defamation and intentional
infliction of emotional distress, such claims having already been rejected in Federal litigation in
the course of which the District Court aptly described plaintiff as libel proof.)

27

87.

A related doctrine, known as incremental harm, holds that a defamatory

statement that does only incremental harm to a plaintiffs reputation, above and beyond the
damage done by truthful statements, is not actionable:
When the only aspect of falsity known to the defendant concerns a minor
detail which no reasonable person would find incrementally harmed
plaintiff, it is appropriate to grant summary judgment on the ground that,
as a matter of law, he could not have foreseen incremental harm to
plaintiff's reputation that would likely be damaged anyway by those
aspects of the publication [defendant] had no reason to disbelieve.
Lee v. City of Rochester, 174 Misc. 2d 763, 788 (Sup. Ct. Monroe Co. 1997); but cf. Friedman v
Rice, 47 Misc. 3d 944, 955 (Sup. Ct. Nassau Co. 2015) ([T]his State's highest court has not
conclusively decide[d] the question as to the applicability of [the incremental harm] doctrine.)
88.

The October Email could not have harmed Plaintiffs reputation by associating

him with mass shootings because Plaintiffs own emails to the Faculty had already done so.
(Compl. 27-28.) Moreover, Plaintiff has admitted that similar facts were already public
knowledge. Plaintiff stated that [n]o one was going to forget about former-Dean Mutuas
ongoing and continuous slander that he believed I might be a public safety hazard. (Malkan
Dec. 35.) Mr. Malkan has also testified that these purported slanders, dating from 2010, are
accessible to anyone who puts my name into a Westlaw or Lexis search. Id. 36. The
October Email could thus do no further damage to Mr. Malkans reputation as to these issues, or
could do, at most, incremental harm. Guccione, 800 F.2d at 303; Lee, 174 Misc. 2d at 788.
POINT XI
PLAINTIFF HAS NO ACTUAL DAMAGES
89.

[A] private person who alleges libel, even libel per se, is held to a strict

requirement of the actual damages to be proved. Moran v. Hearst Corp., 40 N.Y.2d 1071, 1073

28

(1976) (concurring). Boiler-plate allegations of some impairment to the defendant's business

reputation along with general conclusory allegations of malice are insufficient to show any actual
damages. Newsday, Inc. v. C. L. Peck Contractor, Inc., 87 A.D.2d 326, 328 (1st Dep't 1982).
90.

Plaintiff seeks compensation for unspecified monetary and economic harm,

irreparable harm to his reputation, good name, and social standing, and for the loss of his
profession, vocation, and career, and his severe emotional distress, hardship and mental
anguish, as well as punitive damages. (Compl. A-D.) Plaintiff also conclusory alleges that
Defendant acted with pure malice and was motivated by malice. (Compl. 42-43.) These
are precisely the type of boiler-plate allegations that are insufficient to survive a motion to
dismiss. Newsday, 87 A.D.2d at 328.
91.

Plaintiff has pled no actual monetary or economic loss, nor has he pled facts, as

opposed to mere conclusory assertions, showing damage to his profession, vocation, and career
from the October Email. Plaintiff is unemployed, has not worked since 2009, and has sworn that
[w]hen the spring 2009 semester ended, so did my vocation and livelihood. (Malkan Dec.
80-82.) Mr. Malkan therefore has no actual damages for loss of his vocation and livelihood,
and loss of his profession, vocation and career, as he has conclusory pled in the Complaint.
(Compl. 49, B); Newsday, 87 A.D.2d at 328.
92.

As to Plaintiffs claim for mental anguish, it is foreclosed by the fact that he has

not plausibly pled an actual loss of reputation caused by the October Email, as discussed in
section X, supra. Salomone v. MacMillan Pub. Co., 77 A.D.2d 501, 502 (1st Dep't 1980) (As
to the claim for mental anguish, it has long been held in this State that such damage is
compensable only when it is concomitant with loss of reputation .) (citations omitted).

29

POINT XII
THIS ACTION SHOULD BE DISMISSED FOR LACK OF PERSONAL JURISDICTION
93.

CPLR 304 provides that [a]n action is commenced by filing a summons and

complaint. . . A summons must bear the index number assigned and the date of filing with the
clerk of the court. CPLR 305.
94.

The Affidavit of Service filed by Plaintiff states that the Complaint was served on

October 23, 2015. (Ex B.) The Complaint was not filed until October 26, 2015. (Ex A.) There
is no Affidavit of Service establishing that the Complaint was ever served after filing. Moreover,
the Summons served on Defendant did not include an index number and the date of filing as is
required under CPLR 305and could not have because the action was not filed at the time the
Summons was served. Id.
95.

Because no action was pending at the time of service, Plaintiffs attempt at service

was a nullity. Gershel v. Porr, 89 N.Y.2d 327, 330 (1996) ([S]ervice of process without first
paying the filing fee and filing the initiatory papers is a nullity, the action or proceeding never
having been properly commenced.); Wilk v. Genesee & Wyo. R.R. Co., 45 A.D.3d 1274, 1275
(4th Dep't 2007) (same)
96.

As a result of Plaintiffs failure to properly serve the Complaint and Summons

after filing of this action, this action should be dismissed for lack of personal jurisdiction over
Defendant. CPLR 3211(a)(8).
CONCLUSION
97.

For the foregoing reasons, Defendant respectfully requests that the Court dismiss

the Complaint in all respects, with prejudice, award Defendant costs and fees to the extent
allowable under the CPLR, and grant Defendant such other relief as is just and proper.
30