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Case 17-38, Document 29, 02/17/2017, 1975443, Page1 of 175

17-38-cv
mtniteb ~tates ~ourt of ~ppeals
jfor tbe
~econb ~ircuit

Jeffrey Malkan,
Plaintiff-Appellant
v.
Makau W. Mutua,
Defendant-Appellee
Charles P. Ewing
Defendant

ON APPEAL FROM THE UNITED STATES DISTRICT COURT


FOR THE WESTERN DISTRICT OF NEW YORK

SPECIAL APPENDIX FOR PLAINTIFF-APPELLANT

Jeffrey Malkan
Plaintiff-Appellant, pro se
12 Valleywood Ct. W,
St. James, N.Y. 11780
(631) 862-6668
Case 17-38, Document 29, 02/17/2017, 1975443, Page2 of 175

INDEX TO APPENDIX
Special Appendix

Docket Sheet and Judgment. ................................................................................. 2


Notices of Appeal, January 3, 2017, January 13, 2017 ................................................. 15
Complaint, March 23, 2012 ................................................................................ .20
Answer, August 3, 2014 ..................................................................................... .31
Decisions Below in Malkan v. Mutua ........................................................................................... .35

1. Decision of Hon. Michael A. Telesca, filed 12/18/2016 ............................................ 36

2. Report and Recommendation of Hon. H. Kenneth Schroeder on summary judgment motion,


filed 12/1/2015 ............................................................................................... .42

3. Report and Recommendation of Hon. H. Kenneth Schroeder on Rule 11 motion, filed


12/1/2015 ...................................................................................................... 54

4. Decision and Order of Hon. Richard A. Arcara on motion to dismiss and motion for stay, filed
10/3/2012 ...................................................................................................... 94

Decisions in Related State Court Litigation .............................................................. 118

1. Memorandum Decision of Appellate Division, Fourth Department, in Malkan v. State of New


York (SUNY Buffalo), filed 12/23/2016 ................................................................ .119

2. Decision of Court of Claims, Hon. Michael E. Hudson, in Malkan v. State of New York
(SUNYBuffalo), filed 6/19/2015 ........................................................................ .120

3. Decision of Court of Claims, Hon. Jeremiah J. Moriarty, III, in Malkan v. State ofNew York
(SUNY Buffalo), filed 9/6/2012 ........................................................................... 130

4. UUP-NYSUT v. State University of New York (SUNY Buffalo), Board Decision, filed
8/29/2013 .................................................................................................... .140

5. UUP-NYSUT v. State University ofNew York (SUNY Buffalo), ALJ Kenneth S. Carlson,
filed 11/15/2012 ........................................................................................................ 153

Volume I

Motion for Separate Trials, Charles P. Ewing, Aug. 13, 2014 .......................................... 176
Memorandum ...................................................................................................... .181
Declaration of Randolph C. Oppenheimer, Esq ......................................................... 195
Case 17-38, Document 29, 02/17/2017, 1975443, Page3 of 175

Appendix (Tabs A-P), Declarations, Depositions, and Exhibits of Jeffrey Malkan, Dianne Avery,
Susan V. Mangold, Robert J. Steinfeld, Rebecca Redwood French, Shubha Ghosh, Alfred
Konefsky, Isabel Marcus, Lynn Mather, Makau W. Mutua, Charles P. Ewing ..................... 197

Makau M:utua Deposition (excerpt), Dec. 19, 2013 ................................................... 300

Volume 11

Declaration ofMakau Mutua, June 26, 2015 ........................................................... .332

Correspondence between Frederic Ostrove, Esq. and David Sleight, Esq. (October 2014 to March
2015) .......................................................................................................... 354

Documents (2006-2014) .................................................................................... 374

1. Malkan contract with ABA Standard 405(c), Oct 19, 2006 ............................. 375

2. Policy on LRW faculty reappointments, Dec. 9. 2009 ..................................... 382

3. Mutua notice of nonrenewal, Aug. 28, 2008 ............................................... 383

4. Malkan offer letter, July 25, 2000 ............................................................ 384

5. Malkan Deposition (excerpt), Dec. 18, 2013 ............................................... 387

6. Malkan interview schedule, June 25, 2000 .................................................. 398

7. Declaration of President Satish K. Tripathi, Dec. 12, 2013 ............................... 399

8. ABA Self-Study, Jan. 2009, and Findings of Fact, Jan. 2010 (excerpts) .............. .405

9. Mutua Statement of Undisputed Facts (Local Rule 56.1), June 7, 2014 ............... .411

10. Faculty Bylaws, Clinical Faculty Appointment Policy, Mar. 20, 2009. .... . . ....... 4

Complaint in A1alkan v. Gardner, Erie County Supreme Court, Oct. 21, 15 ................... 438

Board (excerpts), current June 1, 14 ............................... ..


Case 17-38, Document 29, 02/17/2017, 1975443, Page4 of 175

Docket Sheet, Complaint and i\nswer

Docket Sheet and Judgment.. ................................................................................ 2


Notices of Appeal, January 3, 2017, January 13, 2017 ................................................ 15
Complaint, March 2012 ................................................................................ 20
Answer, August 3, 20 J4 ................................................... ,. ................................ .31
Case 17-38, Document 29, 02/17/2017, 1975443, Page5 of 175

l
Case 1:1Eaifa)(l21U3-M~6!Kl!is lfifoOtlffler'RCl117l03:4BletlVOB:fffi/11:' oPa.tJe 1 of 11
APPEAL, CLOSED_ 2016,MEDIA TION
U.S. DISTRICT COURT
U.S. District Court, Western District of New York (Buffalo)
CIVIL DOCKET FOR CASE#: 1:12-cv-00236-MAT-HKS
Internal Use Only

Malkan v. Mutua et al Date Filed: 03/23/2012


Assigned to: Hon. Michael A. Telesca Date Terminated: 12/20/2016
Referred to: Hon. H. Kenneth Schroeder, Jr Jury Demand: Both
Cause: 42: l 983 Civil Rights Act Nature of Suit: 440 Civil Rights: Other
Jurisdiction: Federal Question
rlahltiff
Jeffrey Maikan represented by Jeffrey Malkan
l 2 Valleywood Court West
Saint James, NY 11780
PRO SE .

Frederic D. Ostrove
Leeds Brown Law, PC
One Old Countrv Road
Suite 347
Carle Place, NY 11514
(516) 873- 9550
Fax: (516) 747-5024
Email: rostrove@lmblaw.com
TERM!NATED: 0711612015
LEAD ATTOR.NEY

Bryan Arbeit
Leeds Brown Law, PC
One Old Country Road
Suite 347
Carle Place, NY l l 5 l 4
516-873-9550
Fax: 516-747-5420
Email: barbeit1@Ieedsbrownlaw.i.;Qll1
TERMINATED: 07/16/2015

V.
Defendant
J\'lakau\V.l'dutua represented by David J. Sleight
Office of the Attorney General
Main Place Tower
Suite 300A
350 Main Street
Buffalo, NY 14202
71ti--852-6274
Fax: 716-853 -8428
Email: david.sleigbl@ag.ny.gov
LEAD ATTORNEY
A11'URNEY ro
BE NOT1L'ED

NYS
Main Place
Suite 300A
350 Main Street
Buffalo, NY 14202
7 l 6-853-8457
Fax: 716-853-8428
Case 17-38, Document 29, 02/17/2017, 1975443, Page6 of 175

Case 17-38, Document 22, 02/01/2017, 1961823, Pages of 487


Case 1:1ZariE002li3-Ml036f!Q;s lfiJoOOfflMI01171ID:4tl1Mm8iffi/12 o~e 2 of 11

Email: christo.pher .beyd@fljp)y.goy


ATTORNEY TO BE NOTICED
Defendant
Charles P. Ewing represented by Abigail Deirdre Flynn-Kozara
in their individual capacities Barclay Damon, LLP
TERMINATED: 0912312014 200 Delaware Avenue
Suite 1200
Buffalo, NY 14202
716-856-5500
Fax.:716-856-5510
Email: akOzara@barclaydHmon.com
TERMINATED: 1011712014
LEAD ATTORNEY

Randolph C. Oppenheimer
Damon Morey LLP
200 Delaware Avenue
Suite 1200
Buffalo, NY 14202
716-856-5500
Fax.:716--85-5510
Email: mwenhimer@i;lamonmorey.com
TERMINATED: 1011712014
LEAD ATTORNEY

David J. Sleight
(See above for address)
TERMINATED: 0112812013

Moyant
Jessica M. Baker represented by Jessica M. Baker
(as counseifor certain non-party SUNY Office of General Counsel
witnesses who are employees ofthe University at Buffalo
University at Buffalo) 3435 Main Street
216 Harriman Hall
Buffalo, NY 14214
Email: iba.ker4@buffalo.edu
LEAD ATTORNEY
AITORNEY TO BE NOTICED

Robert E. Ruggeri
SUNY Office of General Counsel
University Plaza
Albany, NY 12246
518-320-1400
Fax:518-443-5137
Email: robert.ru!!:geri@.suny.edu
PROHACVICE
ATTORNEY TO BE NOTICED

Date Filed # Docket Text


03/23/2012 l COMPLAINT against Charles P. Ewing, Makau W. Mutua, filed by Jeffrey
Malkan.(DZ) (Entered: 03/23/2012)
03/23/2012 Summons Issued as to Charles P. Ewing, Makau W. Mutua. (DZ) (Entered:
03/23/2012)
03/23/2012 2. NOTICE, CONSENT, AND REFERENCE of a civil action to a Magistrate Judge
(forms attached) (DZ) (Entered: 03/23/2012)
Case 17-38, Document 29, 02/17/2017, 1975443, Page7 of 175

Case 17-38, Document 22, 02/01/2017, 1961823, Page6 of 487


Case 1:1ZawEDCJ2ll..0-M'Aa361K.Ss diJoOO.fflet'ICl117/U3:4tlletli.mBiIB/13' oPlQ;Je 3 of 11
03/2312012 .3. AUTOMATIC REFERRAL to Mediation; ADR Plan forwarded to plaintiff's
attorney.(DZ) (Entered: 03/23/2012)
03/23/2012 (Court only) Request for verification of admission sent to Attorney (DZ) (Entered:
03/23/2012)
04/06/2012 ~ SUMMONS Returned Executed by Jeffrey Malkan. All Defendants. (Attachments: # 1
Certificate ofService)(Ostrove, Frederic) (Entered: 04/06/2012)
05/0812012 ~ MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Charles P. Ewing,
Makau W. Mutua.(Sleight, David) (Entered: 05/08/2012)
05/08/2012 2 DECLARATION re~ MOTION TO DISMISS FOR FAILURE TO STATE A
CLAIM filed by Charles P. Ewing, Makau W. Mutua. (Sleight, David) (Entered:
05/08/2012)
05/08/2012 1 MEMORANDUM IN SUPPORT rel MOTION TO DISMISS FOR FAILURE TO
STATE A CLAIM byCharles P. Ewing, Makau W. Mutua. (Sleight, David) (Entered:
05/08/2012)
05/14/2012 8 TEXT ORDER: Plaintiff shall respond to Defendant's Partial Motion to Dismiss and
for a Stay by May 29, 2012. Defendants may file a reply by June 5, 2012. Oral
argument will be at the Court's discretion. Issued by Hon. Richard J. Arcara on May
14, 2012. (MLM) (Entered: 05/14/2012)
05/29/2012 2 MOTION for Extension of Time to File Response/Reply by Jeffrey Malkan.(Ostrove,
Frederic) (Entered: 05/29/2012)
05/29/2012 E-Filing Notification: 2 MOTION for Extension of Time to File Response/Reply
(Ostrove, Frederic) **document filed without proof of service** (DZ) (Entered:
05/30/2012)
05/30/2012 .ll! AFFIDAVIT of Service for Motion to Extend Time served on David Sleight and
Rowena Pelenio on 05/30/201.2, filed by Jeffrey Malkan. (Ostrove, Frederic) (Entered:
05/30/2012)
05/30/2012 I 11 TEXT ORDER: the consent Motion for Extension of Time to File Response 2 is
granted. Plaintiff shall have until June 5, 2012 to respond to the motion to dismiss and
defendants' shall have until June 12, 2012 to reply to the response. Issued by Hon.
Richard J. Arcara on May 30, 2012. (WJG) (Entered: 05/30/2012)
06/05/2012 ll MEMORANDUM in Opposition re~ MOTION TO DISMISS FOR FAILURE TO
STATE A CLAIM filed by Jeffrey Malkan. (Attachments:# 1 Affidavit)(Ostrove,
Frederic) (Entered: 06/05/2012)
06/05/2012 u AFFIDAVIT of Service for Memorandum of Law in Opposition to Defendants Motion
to Dismiss the Complaint and the Affidavit of the Plaintiff, served on David Sleight
and Rowena Pelenio on 06/05/2012, filed by Jeffrey Malkan. (Ostrove, Frederic)
(Entered: 06/05/2012)
06/12/2012 li MEMORANDUM in Support re~ MOTION TO DISMISS FOR FAILURE TO
STATE A CLAIM filed by Charles P. Ewing, Makau W. Mutua. (Sleight, David)
,___ (Entered: 06/12/2012)
t---~-'"''"'~~

06/29/2012 15 TEXT ORDER: Oral argument of defendants' Motion to Dismiss 2 shall be July 12,
2012, at 2:00 p.m., United States Courthouse, 2 Niagara Square, Buffalo, New York
14202. Issued by Hon. Richard J. Arcara on June 29, 2012. (WJG) (Entered:
06/29/2012)
07/09/2012 12 MOTION to Adjourn Oral Argument on Defendants Motion by Jeffrey Malk:an.
(Attachments:# 1 Supplement)(Ostrove, Frederic) (Entered: 07/09/2012)
07/09/2012 11 AFFIDAVIT of Service for Notice of Motion and Motion to Adjourn served on David
Sleight, Esq. and Rowena Pelenio, Esq. on 07/09/2012, filed by Jeffrey Malkan.
(Ostrove, Frederic) (Entered: 07/09/2012)
07/10/2012 18 TEXT ORDER. The plaintiff filed 12 Motion to Adjourn the 7/12/2012 Oral
Argument as to ~Motion to Dismiss for Failure to State a Claim and for a Stay filed
by defendants. The motion is granted. Oral Argument is adjourned to 7/26/2012 at
I
2:00 PM before Hon. Richard J. Arcara. SO ORDERED. Issued by Hon. Richard J. ..
Case 17-38, Document 29, 02/17/2017, 1975443, Page8 of 175

Case 1:1Las002:Il8-MJ.lm6!KSs ififoel!l.r'tleffl01177ID:4tl!~Biffi/12f oP.llge 4 of 11


1

r, I 1
1
Arcara on June JO, 2012, (DJD) (Entered: 07/10/2012) . _ _ _ _\
)7/20/2012 ITI<:XT ORDER. The 7126/2012 Oral Argument as to as to~ Mo_tion to Dismiss for J

~
i Failure to State a Claun and for a Stay filed by defendants is adjourned by the Court j
I until further notice. SO ORDERED. Issued by Hon. Richard J. Arcara on July 20, ~
~(DID) (Entered: 07/20/2012)
09/25/2012- --12 f '.:'P!}CE of Change of Ma..,,, by frederie D. O"mve (Ostmvo, Frndcrk) (Eore"d' I
i----~--i09/25/2012) -----
l 0/03/2012 2il IDECISION AND ORDER denying~ Motion to Dismiss for Failure to State a Claim,
. Signed by Hon. Richard J. Arcara on 10/3/2012. (JMB) (Entered: 10/03/2012) \
-J;;/04/;;12 e--1 CASE REFER RFD to Mogfatrato fodge Hon. Lo,lie G. Fo"hio fw- oil prnceedin!l' -
necessary to a determination of the merits of the factual and legal issues presented by i
this action. At the conclusion of such proceedings, the Magistrate Judge shall prepare i
and submit a Report and Recommendation (DZ) (Entered: J0/04/2012) i
10/0512012 21 ! TEXT OR~~R
OF REC.USAL Hon. Leslie G. F~schio
recused. So Ordered. Issued j
1--~~~---1~~+--~--~~~-
'by Hon, Leslie G. Fosch10 on 10/5/2012. (SDW) (Entered: 10/05/2012) ~

l 0/05/2012 I 22 TEXT ORDER Rfr~REFERRING CASE to Magistrate Judge Hon. H. Kenneth


Schroeder, Jr The Magistrate Judge is hereby designated to act in this case as follows: \
Pursuant to 28 U.S.C. Section 636(b)(l )(A) and (B), all pre-trial matters in this case
are referred to the above-named United States Magistrate Judge, including but not 1
limited to: (1) conduct ofa scheduling conference and entry ofa scheduling order
pursuant to Fed. R. Civ. P. 16, (2) hearing and disposition of all non-dispositive
motions or applications, (3) supervision of discovery, and (4) supervision of an
procedural matters involving the aforementioned or involving the preparation of the
case or any matter therein for consideration by the District Judge. The Magistrate
Judge shall also hear and report upon dispositive motions for the consideration of the
District Judge pursuant to 28 U.S.C. Section 636(b)(l)(B) and (C). All motions or
applications shall be filed with the Clerk and made returnable before the Magistrate
Judge. The parties are encouraged to consider the provisions of 28 U.S.C. Section
636(c) governing consent to either partial or complete disposition of the case,

9
1 I including trial if necessary, by the Magistrate Judge. Consent forms are available from
1
the office of the Magistrate Judge or the office ofthe Clerk of Court IT IS SO
ORDERED .. Signed by Hon. Richard J. Arcara on 10/5/2012. (JMB) (Entered:
10/05/2012)
10/J0/2012 2l ORDER regarding issuance of Case Management Order. Signed by Hon. H. Kenneth
Schroeder, Jr. on 10/10/12. (Attachments:# 1 Case Management Order Form,# 2
,_________ ~- Consent Memorandum2_f!~_<;:onsc:.nt Fo~(LMG) (En~red: l 0/l 0/20J1L____ _
1012312012 i 241 ANSWER to 1 Complaint by ClurrlM P. Ewmg, Mok" W. Mutua.(Sl,ight, David)
(Entered: 10/23/2012)
110/24/2012 ~ ADR Plan electronically forwarded to attomeys.(DZ) (Entered_;, I 0/24/2_0_1_2)_ _
10/29/2012 26 CASE MANAGEMENT ORDER (Please Note: This docket text contain the
entire contents of the attached Order. It is your responsibility to attached
Order and do\vnlnad it for fnture reforcrv::,.:. Dire<.:t any questions to the Chamh-crs uf
the Judge who entered this Order.) Stipulation of Selection of Mediator due by
l J/20/2012; First Mediation Session due by 1/15/2013; Motions to Join Parties/Amend
Pleadings due by 113112013; Plaintiff Expert Witness ID due by 5/3112013; Defendant
Expert Witness ID due 6/28/2013; Discovery completed 8/30/2013; Dispositiw
Motions due Mediation To End by 9/30/2013. by Hon. H.

Notification: 21 event modified to indicate entry is a NOTICE OF MOTION


of ADR Plan. No further action at this time.
Case 17-38, Document 29, 02/17/2017, 1975443, Page9 of 175

II 1211212012 I
TEXT ORDER: the joint motion 22 to opt out of ADR is denied. The excuse of
28
'plaintiff for filing the motion late does not excuse the failure timely to file the joint
motion by defendants. Moreover, the Co!Lrt has carefully reviewed the grounds offered
in support of the motion and finds no good cause to opt out of ADR. The individual
request of plaintiff that the Court order non-parties to attend the mediation is a[so
denied. Because the Court did not decide the joint opt out motion sooner, an extension
1 of time to confer and select a Mediator, confim1 availability of the Mediator, ensure
the Mediator does not have a conflict with any parties, identify a date and time for the
II
initial mediation session, and to file the stipulation confirming the selection of the
1 Mediator, is granted nunc pro tune to January 18, 2013. The action remains committed
' to Magistrate Judge Schroeder pursuant to the Courts October 5, 2012 Text Order 22.
l
.---------+---1-I-ss_u_e_d_b_y_H-'-o-n. Richard J. Arcara on December 12, 2012. (WJG) (Entered:
12/12/2012)
----------------------------------
! Ol/22/2013 2.2. Stipulation-Selection of Mediator by Charles P. Ewing, Makau W. Mutua(Sleight,
David) (Entered: 0 I/~_2,_
12_0_1~3)_________________________---1

rOl/23/2013 (Court only) ***Party Hugh M. Russ, III added as Mediator. (DZ) (Entered:
i 01/23/2013)
1-------i--+-----'-----~---------------------~-----
lli 01125/2013 .:iQ CONSENT to Substitute Attorney by Charles P. Ewing.(Oppenheimer, Randolph) I
~/28/2013
I
-iI Modified on 1128/2013 (DZ). (Entered: 01/25/2013)
E--Filing Notification: 30 *Text modified to
Substitute Attorney* (DZ) (Entered; Ol/28/2013)
in<l-i-ca~te-en--tr-y-is_a_C_O._N_S_E--N-'l-'to

\
~1/28/2013 'I (Court only) ***Motions tenninated: lQ MOTION to Substitute Attorney filed by
Charies P. Ewing. (DZ) (Entered: 01/28/2013)
01/29/2013 31 TEXT ORDER: The 30 Consent Motion to Substitute Attorney filed by Charles P.

i
1 01/30/2013
I
't .32.
Ewing is hereby SO ORDERED. Issued by the Hon. ff Kenneth Schroeder, Jr. on
1/29/13. (LMG) (Entered: 01/29/2013) _
MOTION to Amend/Correct 2:1: Answer to Complaint by Charles P. Ewing.
-------=-I
1 (Attachments: # 1 Declaration to Motion, # 2. Exhibit)(Oppenheimer, Randolph)
{"f!.ot.>rp.rf I) 1 /1.llF'll'l I 1. \
1 ,.~,.-w-. ,,,,~v~VAJJ --------------------i,
02/01/2013 II 33 ITEXT ORDER re J2 MOTION to Amend/Correct 24 Answer to Complaint filed by 1

Charles P. Ewing: Responses due by 3/1/2013. Replies due by 3/22/2013. SO


IORDERED. Issued Hon. by H.
Kenneth Schroeder, Jr on 2/1/2013. (KER) (Entered: '
l----------1--f?~. ---~
~l/2013_ .Ji Mediation Certificat.~on by Hugh M. Russ, IH(Russ, Hugh) (Entered: 03/01/2013L
04/02/2013 35
, .. -~,-----~-~~-A~~~:;;-~ "'
Mediation Certification by Hugh M. Russ, HI(Russ, Hugh) (Entered: 04/02/201_~---
~----~-

05/10/2013 36lMOTION to Amend!Correct 26 Scheduling Order,, by Charles P.


----- Ewing.(Oppenheimer, Randolph) ~Entered: 05/1~/20132__ ______..________ _
05/i3/2013 37 TEXT ORDER granting .32. Motion to Amend Answer. SO ORDERED. Is.sued by
Hon. H. Kenneth Schroeder, Jr on 5/13/2013. (KER) (Entered: 05113/2013)
05/13/2013 38 TEXT ORDER granting 36 Motion to Amend Case Management Order. SO

r~~/l3/Z~13~ I
tiORDERED. Issued by Hon. H. Kenneth Schroeder, Jr on 5/13/2013. (KER). (E.ntered: 1
05/13/2013)

I
I_
~------
L 1
~e.t/Re.s~t
Scheduli_n.g Order D. eadiines:._ FactDepositions

complete~ by 9(27/Wl~. Ex~ert I?~pos1t101!s co~pl~ted ?.Y ~ l/29/2013._ .


I
~c01".1-pl.et;~~~~/2~~~---\
Plaintiff Expert Witness ID completed ?::f 8/30/2013. Detendant Expert Witness ID

I com.ple.ted. by l.1.12912013. D1spos1tlve Motions nue oy li 10120.14. Media.tmn may .


Icontinue t~ug!JJ/10/2014. (~Entered: 05~3/2013)_______.._______.________i
I

';,5/13/2013 \ .3.2. l1AMENDED ANSWER to l Complaint by Charles P. (Oppenheimer, :


f _____________L __ Rand<:J!Ph) (Entered: ~1/20132_______----------------------~
0. 8/22/20- 13 ll .1.0... Joh:.t.MOTI.ON. t? Arnend/Correct 2,6 Scheduling ?rdei:,, Charles P. !
[,. __________ - - _ 1 Ewmg,(Oppenhe1mer, Randolph) (En~ere~-08/2_?~9.2.L.--~------------J
Case 17-38, Document 29, 02/17/2017, 1975443, Page10 of 175

Case 1:1Za~E002ll&M~61K.Ss dlfoOO.l'Ml'it0117100:4BIMimfliffi/16' oPBtie 6 of 11


!08/22/2~ - 41 i TEXT ORDER granting ::ill Motion to Amend or Correct. Signed by Hon. H. Kenneth
I08/22/2013 I ~:~:::e:r~~:::u~:~:/~~~:~ ~::~~:~~t;::~ :I~i:~~:::; :~m;i~ed by_J.;/;9/20-;;~-
I Plaintiff Expert Witness ID due by 11/29/2013. Defendant Expert Witness ID due by
1/10/2014. Expert Depositions completed by 3/14/2014. All Discovery completed by
I 3114/2014. Dispositive Motions due by 4/25/2014. Mediation may continue through
\ 4/25/2014. NO FURTHER EXTENSIONS WILL BE GRANTED. (KER) (Entered:

10/23/2013 ;tl NOTICE of Appearance by Bryan Arbeit on behalf of Jeffrey Malkan (Arbeit, Bryan)
------ (Entered: 10/23/2013)
ll/07/2013 il Joint MOTION to Amend/Correct Scheduling Order by Jeffrey Malkan.(Arbeit,
f--~--~--t~~+--~-'
Bryan) (Entered: l 1107/2013)

1
_11/08/2013 L44 .fEXT OR..DER. granting il Motion to /unen ..d or Correct Case Management Order
solely with respect to deadline for completing fact depositions. SO ORDERED. Issued
~
by fion. H. Ke~neth Schroeder, Jr on 11/8/2013. (KER) (Entered: l l/08/2013)
l l/19/2013 45 TEXT ORDER: The Court having been advised of a potential conflict between
cmmsel to nonparty deponents Satish Tripathi and Susan Mangold, it is hereby
ORDERED that the nonparty deponents may defer their currently scheduled
depositions to a mutually convenient date within the deadline of the current case

b -+--->---
management order to afford them the oppottunity to obtain alternate representation.
Issued by Hon. H. Kenneth Schroeder, Jr on 11/19/2013. (KER) (Entered: 11/19/2013)

- Jessica) (Entered: 12/02/2013) . .


j 12/02/2013 i l MOTION to appear pro hac vice ( Filing fee $ 150 receipt number 0209-1928296.) by
- Makau W. lVlutua. (Attachme. nts: # l Supplem~~t _Adm!ssi,on Sponsor Affida.vit, # 2. I

d
Supplement Attorney Oath, # 3. Supplement C1Ylhty Pnnc1ples Oath, # .1 Supplement
\ Attorney Database Form, # 2 Supplement CM ECF Fonn)(Baker, Jessica) (Entered:
\ 12/02/2013)
I ~-2/~;no --- E-Fil~~ Notification: :11 MOTION to appear pro hac vice for R~bert E. Ruggeri, Esq.
!A Notice of Motion is required for all motions (See Local Rule 7(a)(l)). ACTION
J
I
I REQUIRED: Please file a Notice of Motion using the "Motion" event and select
''appear" to avoid a second fee payment. Please re-file all attachments required for pro
hac vice admission together with a Certificate of Service. (CMD) (Entered:

tl21MD013r (Court only) ***Motions terminated: 47 MOTION to appear pro hac vice (Filing fee$
150 receipt number 0209-1928296.) filed by Makau W. Mutua. (CMD) (Entered:
L------+--
12/1112013 I :IB
12/04/2013)
-------------
MOTION for Leave to Appear On behalf of certain non--party witnesses/or Robert E.
il
Ruggeri by Jessica M.
Baker. (Attachments: # l Supplement Motion for Admission
I' pro hoc vice, # 2 Supplement Sponsoring Affidavit, # 3. Supplement Attorney's Oath, #

l
~. 01/!0l;~;;
. t.. 11 Supplement Civility Principles Oath,# .S, Supplement Attorney Database information
i~orm, #, ~ ~UPJ?lement ECF ~egistration Fon;n, # 1, Supplement Attorney Petition
1ocm, li cert,ficate of Semoe)(Bllim,
(Court only).
*. **Staffn~tes:
''"'')(Ente<ol' 12/ ll 120 l3)
Confirmed admission. to Ne: Y:;k Stat.e.bar
Robert E. Ruggeri. (CMD) (Entered: 01/10/2014)
~ir a;.orne;lI
I

I~-ll~O-;-~~- r~~urt only)~* ~ttorney Robert ;,,-;uggeri fo-; Je~sica M. Baker ~~~;.d. (C~D)-~--1
~~110;~;~-[
I
1
d9 \~~;,:~~~.~~.1 ~.~~f~~w .l~.r~~~~XT o;~~~-;~ti~ Mi Ro~;~-~:-;;~e~i~~--~~~:i~~--1
j for Leave to Appear Pro Hae Vice. SO ORDERED. fasued by Hon. H. Kenneth J

f---~- _ '~chroeder, :'.!:_~n I/10/2014. (~ER) (Entered: Ol/10/~014) - - - - - - -j


I03/21/2014 I 5~ TEXT ORDER. Defendants' letter request seeking an extension of the deadline for the \
l I
1
i All
! ofd,iscoyery is granted. All discovery shall be
dates m this Court's Case Management Order and
I 2014. !
I
I
1

I ' '. L
L---------- ,_ _
j thereto shall remain in place. SO ORDERED. Issued by Hon.
1 1_!..:_.()_~_Mar~~ 20!.'.!: (AP(_!) (EEtere<l: 03/21/201.L_____. - . -c
Schroeder,
_ _ _ _ _j

00000 '{
Case 17-38, Document 29, 02/17/2017, 1975443, Page11 of 175

Document
Case 1:1Zmi6302:BB-MA!t36lf<Ss difo0Ci.ffler'lla.ID7ill:4Bl~l6T6117 oPa1Je 7 of 11
--
I04/22/2014 51 TEXT ORDER. Based upon the extraordinary circumstances (trial schedule) outlined
in counsel for the defendants' April 22, 2014 letter, defendants' request se eking an

Ii
-
f extension of the deadline for the filing of dispositive motions is granted. Dispositive
, motions shall be filed by May 23, 2014. Mediation may also continue to May 23,
014. SO ORDERED. lued by Hon. H. Kennoth Sdrrocde<, Jc. nn Ap'i l 22, 2014.
(APG) (Entered: 04/22/2014)
05/22/2014 ~--- NOTICE of Appearance by Abigail Deirdre Flynn-Koz.ara on behalf of('.:barles P.
,__ ! Ewing (Flynn-Kozara, Abigail) (Entered: 05/22/20.14)
05/22/2014 53 lrEXT ORDER re 51 Text Order, Set Deadlines. Defendant Mutua's May 22,2014
j letter request for an extension of the dispositive motion filing deadline is granted.
'Dispositive Motions are due by 6/6/2014. Responses to any and all dispo sitive motions
I
are due by 7/18/2014. Replies are due by 8/8/2014. If necessary, oral arg ument will be )
scheduled at a later date. SO ORDERED. Issued by Hon. H. Kenneth Sc hroeder, Jr. on
May 22, 2014. (APG) (Entered: 05/22/2014)
05/23/2014 54 MOTION for Summary Judgment by Charles P. Ewing. (Attachments:# 1 Declaration
in Support,# 2. Statement of Undisputed Facts,# .3. Appendix,# ;1 Exhibit Exhibit A, #
i 2. Exhibit Exhibit B, # il Exhibit Exhibit C, # l Exhibit Exhibit D, # 1l. E xhibit Exhibit
E, # 2 Exhibit Exhibit F, # 10 Exhibit Exhibit G, # ll Exhibit Exhibit H Part 1, #
Exhibit Exhibit H Part 2, # U. Exhibit Exhibit I,# 14 Exhibit Exhibit J, # 12
Memorandum in Support)(Oppenheimer, Randolph) (Entered: 05z23/201 __iL__ ~
1061rr1120
~~ 14 ~ MOTION fot Summary Judgment by Makau W. Mutua.(Sleight, David)
'0610712014) (Entered:

06/07/2014 I j.!5.1 STATEMENT OF FACTS by Makau W. Mutua Related document: Si Motion for
Summary Judgment (Attachments: # l Exhibit A,# 2 Exhibit B, # 3. Exhibit C, #:I:
I
Exhibit D, # .i Exhibit E, # !i Exhibit F, # l Exhibit G, # .8. Exhibit H, # 2 Exhibit I,#
10 Exhibit J, # ll Exhibit K, # 12 Exhibit L, # U Exhibit M, # 14 Exhibit N, #.Li
Exhibit 0, # lii Exhibit P, # ll Exhibit Q, # ll Exhibit R, # 12 Exhibit S, # 2.Q Exhibit I
T, # 21 Exhibit U)(Sleight, David) (Entered: 06/07/2014) ~

r-~-6/-0-7/_2_01--~-... +-l-U--~-J+-~-.,-~~~!~~s?;[~t:~:VY~~~~r~~~6~~/~t?~ for s::~a~ Ju~~ment byMa~-au_j


\ 07/l~/lO l 4 58 \TEXT ORDER re~ MOTION for Su.1111Ilary Judgment filed by Charles P. Ewing,~ \
MOTION for Summary Judgment filed by Makau W. Mutua. Plaintiff's July 14, 2014
i letter requesting a one month extension of time to file responses to defondants' motions I
for summary judgment is granted. Responses due by 8/18/2014. Replies due by
9/12/2014. If necessary, oral argument will be scheduled at a later date. SO
I I ORDERED. Issued by Hon. H. Kenneth Schroeder, Jr. on July 15, 2014. (APG)
r= I (Entered: 07115/2014)

l 08/l3/2014 .5.2 MOTION to Sever Separate Trials by Charles P. Ewing. (Attachments:# l


Declaration of Randolph C. Oppenheimer,# 2. Memorandum in Support,#~
Appendix, #:I: Exhibit A-O)(Oppenheimer, Randolph) (Entered: 08/13/2014)
i08/15/2014
1
l! 60 TEXT ORDER re.,2i M.OTION for Summary Judgment filed by Charles P. Ewing,
MOTION for Summary Judgment filed by Makau W. Mutua. The plaintiff's letter
01
\ . request for additional time to submit his opposition to the motions for sulJh'lla.~; 1
II
1
\ Ijudgment is granted. The plaintiffs opposition is due August 29, 2014. Replies, if any, 1

Iare due September 24, 2014. If necessary, oral argument will he scheduled at a later
I I Imotions and for that memora.11dum not to exceed 50 pages is also granted. SO
date. The plamtiffs request to file a single memorandum of iaw with respect to both
1

1
I1

1 ORDERED. Issued by Hon. H. Kenneth Schroeder, Jr. on August 15, 2014. (APO)
(Entered: 08/15/2014)
I
.
I08/30/WMTfilj MEMORANDUM in ~pposition re-~~0-;:ION for Su_~mary Jud~~~t-filed by --~-11
I
r - - - - -...
!-
114

08/30/2014
-------r~
I I Jeffrey Malkan. (Arbeit, Bryan) (Entered: 08/3012014)
-1-:::-1-------~--------
fil . MEMORANDUM in Opposition re .5.1 MOTION for Summary Judgment filed by
-+---
1
Jeffrey Malkan. (Arb_f;it, Bryan) (Entered: 08/30/201_42_____, _ -------~--- ___ .
..
]
I08/3012014 'i fil (DECLARATION re j1 Memorandum in Support, Statement ofFac!s, filed by
I
IJeffrey Malkan filed by Jeffrey Malkan. (Attachments: # 1 Exhibit 19 (Deposition
I I Testimony),# 2 Exhibit Exs. 10-l 9, # .l Exhibit Exs. 20-29, # 1 Exhibit Exs.
I I

00000 8
Case 17-38, Document 29, 02/17/2017, 1975443, Page12 of 175

1. ~-+--1 j, Exhibit Exs. 35, # .Q Exhibit Exs. 36~47, # 1 Exhibit Exs. 48-49, #ft Statement of
!----- f Undisputed Facts)(Arbeit, Bryan) (Entered: 08/30/2014)
09/24/2014 ~ .. STIPULATiON of Dismissal by Charles P. Ewing. (O~p._e_nh-ei_m_e-r,_R_an_d_o_lp_h_)_ I
(Entered: 09/24/2014) J
09/25/2014 65 TEXT ORDER: the Stipulation of Dismissal as to Defendant Charles P. Ewing .:1: is .. -!
approved. The Clerk shall reform the caption of the case to remove defendant Ewing
and shall terminate all pending motions filed by defendant Ewing as moot. Counsel for
plaintiff Jeffrey Malkan and defendant Makau W. Mutua shall confer about whether
returning to mediation is appropriate before the presiding Magistrate Judge considers
the pending motion for summary judgment jj_ , and shall advise the Court whether
they request time to return to mediation in a short joint filing no later than October l,

I 2014. Issued by Hon. Richard J. Arcara on September 25, 2014. (WJG) -CLERK TO
FOLLOW UP- (Entered: 09/25/2014)

I
09/2512014 ! 66
!
TEXT ORDER amending 60 Scheduling Order: Replies due by 10/16/2014. SO
ORDERED. Issued by Hon. H. Kenneth Schroeder, Jr on 9/25/2014. (KER) Modified
I~ i on 9/25/2014 (KER). (Entered: 09/25/2014) ------------
09125/2014 I ___ I(Court only) ***Motions terminated: j,2 MOTION to Sever; 54 MOTION for
-~ __ Summary Jud~ent filed by Charles P. Ewing'. (DZ) (Entered: 09/26/2014)

l
_
I J0/01/2014 6( STATUS REPORT regarding mediation by Makau W. Mutua. (Sleight, David)
' (Entered: 10/01/2014)

110/.16/2014 <ill STATEME!:'f.OF FAC~'S, Supplemental. by M~~ !"futu.a Relat~d. doc.ument: jj_
YI,:
1 1 Motion tor ~ummary Juagment. (Attachments:# l cxmb1t A,# 2 Exlub1t B, # i
L I Exhibit C)(Sleight, David) (Entered: 10/16/2014)
j 10116/2014 Q2 MEMORANDUM in Support re~ MOTION for Summary Judgment filed by Makau
!----- --+ W. Mutua. (Sleight, David) (Entered: 10/16/2014) -----~-~!

If-- 04/14/2015 'I 70 IMOTION for Sanctions by Jeffrey Malkan. (Attachments:# l Affidavit Declaration of
Rick Ostrove, # 2 Exhibit A-J, # .3. Exhibit K-N, # i Exhibit 0, # j_ Exhibit P-Q, # !i I
I
. i Ex..liibit R, # 1 Memorandum h< Support)(Ostrove, Fre~eric) (Entered: 04/14/2015) I
05129/2015 L71 1 TEXT ORDER re 1Q MOTION for Sanctions filed by Jeffrey Malkan: Responses due
by 6/26/2015. Replies due by 7/24/2015. SO ORDERED. Issued by Hon. H. Kenneth
I
----- Schroeder, Jr on 5/29/2015. (KER) (Entered: 05/29/2015) ~---~
06/26/2015 72 DECLARATION sign.ed by David J. Sleight re 1Q MOTION for Sanctions filed by 1

Makau W. Mutua . (Attachments:# l Exhibit A,# 2. Exhibit B, # 3. Exhibit C, # 4


I Exhibit D, # ,l Exhibit E, # !i Exhibit F, # 1 Certificate of Service)(Sleight, David)
L ~~~-r-~-r~~-~
(Entered: 06/26/2015) 1

06/26/2015 CONTINUATION OF EXHIBITS to TI Declaration,. (Attachments:# l Exhibit G, #


\ 2 Exhibit H, # 3. Exhibit I, # .4. Exhibit J, # ,5. Exhibit K, # !i Exhibit L, # 1 Exhibit M, #

r
1l, Exhibit N, # 2. Exhibit 0, # 10 Certificate ofService)(Sleight, David) (Entered:
06/26/2015) --1
0612612015 74 DECLARATION signed by Maka\' M~~8:,r~ 1J2 ~f>!I?~.f~ s.'."::c!jo.n~ !Il~d by_ I

~06/~~;~;;~- -; 1 Makau W. Mutua. (Attachments:# 1 Exmmt A,#.;. l:'.xn1on tl, ff J. bXh1b1t C, ff :1


Certificate of Service)(Sleight, David) (Entered: 06/26/2015)
~EM0~1:1JJ~JM I~ .o~POSITION re 1Q MOTION for San.ctions by Makau w...
'1vmrua. tSieighi, Davrn) 1,Entered: 06/26/2015)
__J
. I
J.

[-~-.6n9/20 ;~~r--t. c?~~INU...;_


------
TION C?F_ EXHIB. ~TS .to iioe.?!~ratio~, ._(A;~~h~ent~: fe---~~hl~lt---~-J
I~ xh1b1t R, # 3. Exh1b1t S, # :1 Exh1b1t I,#~ Exhibit lJ, # Q. Exhibit
-~f._~~~c~l(Sleigh!:__D_ayid) (E?_!~ed: 06j29/2015) _______________~---
Certificate

i 06/29/2015 i E-fllin.g Notification: 76 CONTlNUATION OF EXHIBITS to 72 Declaration,; 1


'I I CONTil'HJATION OF EXHIBITS to J2 Declaration, (Sleight, David) **Ex11ibits of 1
I #73 and Exh~~it;:._R, ~'I, ofitem #76 to be re-fifod as pages are blank** (DZ) .l
~ l 06i.,Ou:OlJJ
:. 06/3~1\---~--..- CONTINUA. TION OF ~~~-iTS to ---Declaration,. (Atta~~~en~~~; l Exh~hlt-~ --1 .
1 2. Exhibit R, # ;i Exhibit S, # :1 Exhibit # .5. Certificate ofService)(Sleight, 1

'
00000 9
Case 17-38, Document 29, 02/17/2017, 1975443, Page13 of 175

/ i (Entered: 06/30/2015) I
ro6/30/20l 5
\
I
- 18. CONTINUATION OF EXHIBITS to 72 Declaration,. (Attachments:# l Exhlbit
2. Exhibit R, # J. Exhibit S, # 4. Exhibit T, # j, Certificate of Service)(Sleight, David)
;,-;lj
,_-----+-___,_{Entered: 06/30/2015) -------
07/14/2015 79 TEXT ORDER denying request for leave to file a memorandum in excess of the
. ~ I siai'ldard page limits. SO ORDERED. fssued by Hon. H. Kenneth Schroeder, Jr on
7114/2015 (KER) ~ (Entered : 07/l4/2015) . -----1I
I07/15/2~;~
----1
---~ -~-

fill MOTION to Withdraw as Attorney by Jeffiey MaJ


Affidavit)(Ostrove, _!:':rederic) (Entered: 07/15/20_15) _k_an_._c_A~_c_h_m_:t~: # 1
to71l6/2015 81 I -CLERK TO FOLLOW UP-TEXT ORDER granti ng in part and denying in part
) plaintiff's fill Motion to Withdraw as Counsel and fior Further Relief. The Clerk of the
Court shall terminate attorney Bryan Arbeit and ide ntify Frederic D. Ostrove as an
Interested Party so that he continues to receive noti ce of electronic filings. Plaintiffs
request to deem the JlJ. motion for sanctions as filed by plaintiff nunc pro tune is
I
denied. As the affiant to the 1Q Motion for Sanctions, Mr. Ostrove is gra..11ted I
permission to respond to defendant's anticipated m otion for sanctions to the extent that
such motion may challenge Mr. Ostrove's conduct as - counsel on behalf of plaintiff
prior to his withdrawal from this action. The Clerk of the Court shall identify Plaintiff
as proceeding pro se and direct correspondence to plaintiff at 12 Va.lleywood Court
West, Saint James. New York 11780. SO ORDERED. Issued by Hon. H. Kenneth
I
l
I
Schroeder, Jr on 7fI6/2015. (KER) (Entered: 07/16/2015)

1~7!1612015 I
. ---------
(Court only) ***Party Frederick Ostrove added as an interested party pursuant to order
entered on 7116/2015. (ThfM) (Entered: 07116/2015
L-----~--
I01116120; s
l
Remark: This is a TEST entry on the docket to con firm email notification to interested
pa.Tty Fre-deric Ostrove. No action is required by any parties. (JMM) (Entered:
07/16/2015)
-
12015 Remark: Dkt. #81 mailed to pro se plaintiff (KER) (Entered: 07/16/2015)
1u , , ~~'
')/")fl 1
MV, 5
I .82 I ._...__,._,,_,A,,1lA,,
') n:1::;r1 ION uy J1:afre)
'r L . T""'-C. -; ....,1 _..., -
l'vhukau
;
m-- :support
- re lJ). MOTION for Sanctions .
I(Attachments: # l notice of appearance pro se)(DZ) (Ente~~: 07/22/2015)_"-~-~--i
07/23/2015 .83. MOTION for Sanctions by Makau W. Mutua. (Attachments:# l Memorandum in I
Support)(Boyd, Christopher) {Entered: 07/23/2015) ~
I
:J'
07123/2015 84 DECLARATION signed by David J. Sleight re R3. MOTION for Sanctions filed by
Makau W. Mutua. (Attachments:# 1 Exhibit A,# 2. Exhibit B, # l Exhibit C, # ~ 1

~
Exhibit D, #~Exhibit E, #ti Exhibit F, # 1 Certificate ofService)(Sleight, David) I
(Entered: 07/23/2015)
07/27/2015. ~; T.EXT ORDER re .8J. MOTION- for Sanctions filed by ~akau
W. Mutua; Responses .
\due by 8/28/2015. Replies due by 9/18/2015. SO ORDERED. Issued by Hon. H.
' - - - - - - ~Kenneth Schroeder, Jr on 7/27/2015. (KER) (Entered: 07/27/2015_)_ _ _ _ _ _ _ _
07/~7/201~ --~_emark: Dk:t. #86 mailed to prose plaintiff(KER) (Entered; 07!27/2015) --\

ft
108124(2015

,---~------
I
.8!i IMOTION for Extension of Time to File Response/Repl.y by Frederick Gstrove.
i (Attachments:# 1 Exhibit Motion to Extend Time,# 2 Affidavit)(Ostrove, Frederic)
I. (Entered: 08/24/2015)
/24/;l~-r-aBI\'it.rEMOP..ANDUM in Opposition re .8.1 M<;>TION.r for Sanctions file~ by ?effrey
Malkan. (Attachments: # 1 document contmued, # 2 document contmuea, # l
'document continued)(KM)
."
(Entered: 08/27/2015)
I
I
l
I
I
I

! 08/25/2015
----t.-:-~ --~-~~---~_;:,.---~~--~--~~---~~--~---~~--------~--!

87)1. TEXT O.RJ?ER.~_ g~anti11;g .8!i Motion for Extensiofl of Time to F~le Response/Reply re .. I
.8..l MOTION tor :sanct10ns. Responses due by 9rl 112015. Rephes due by 10/2/2015. I
b 0::>1d1.1:.0l5
j \;;;:,,ORDERED. Issued by Hon. H. Kenneth Schroed. er, Jr. on August 25, 2015 .. (APG)
~ered: 08/25/20._1_5)~--
I .89.. 'I MEMORANDlJM in Opposition~~fil_
.. -- MOTION for Sa~ctions.filed ;.;~
I
.I
l_______J___L,2.stro~.'.- (Ostrove, Frederic) (Enter~d:_09/l l/2_Q.15) -~-------------~-~,__!

00000'0
Case 17-38, Document 29, 02/17/2017, 1975443, Page14 of 175

Document
Case i:u::-asEDCl2l!B-MAa361KSs lfifo50.fflet'RCllI7!00:40!~1.!ilE/1'.YO ~~ 10 of 11
I ~~~~~~

'09/11 12015 2.Q DECLARATION re .8.2. Memorandum in Opposition to Motion filed by Frederick
I Ostrove filed. by F.rederick 0. strove. (Attac. hments: # l Exhibit l -15).(.0strove,
Frederic) (Entered: 09/11/2015)
~-< ' -----------~.~~

12015 .21 REPLY/RESPONSE to re fil MOTION for Sanctions, .8.li Memorandum in


j' .

I I Opposition to Motion filed by Makau W. Mutua. (Boyd, Christopher) (Entered:


109/18/2015)

'P
ro~-/1-8-/2_0_15-i-22. IDECLARATION~~~;-David J. Sleight re .a:i. MOTION for Sanction-sfi-!l-.ed_b_y_

I 0/02/2015
~ ~!,~) ~~i:,~o.S~i~~~~)"" # l Exhibit A,# 2 Cortifioate

93 , REPLY/RESPONSE to re 83 MOTION for Sanctions , .8.2. Memorandum in


ofSONice)(Sloigb~ ~-i
__,l

,
I Opposition to Motion filed by Makau W. Mutua. (Boyd, Christopher) (Entered: I
I 1010212015 10/02/2015) - -1
.2:!; DECLARATION signed by David Sleight re lU. MOTION for Sanctions filed
f 2
\~~~y i;i S~utua . (Attachments: # l Exhibit A)(Sleight, David) (Entered:
1
_ I

1I0/27/2015 95 /TEXT ORDER: the parties are reminded undocketed letters are not accepted as a

~ ~
. motion. Issued by Hon. Richard J. Arcara on October 27, 2015. (WJG) (Entered:
---- - _912712015)_ -~-

L
2/0112015 .2.Q REPORT AND RECOMMENDATIONS re 55 MOTION for Summary Judgment
. IH.fi. ledKenn.eth
by Makau W. Mutua. Objections due fourteen days from receipt. Signed by Hon.
Schroeder, Jr on 12/1/2015. (KER) (Entered: }2/01/2015) __
\ 12/0l/2015 9J.. 1 REPORT AND RECOMMENDATIONS re .6.3. MOTION for Sanctions filed by
I Makau W. Mutua and 1Q MOTION for Sanctions filed by Jeffrey Malk.an: Objections
due fourteen days from receipt. Signed by Hon. H. Kenneth Schroeder, Jr on
I 12/1/2015. (KER) (Entered: 12/01/2015)
\ I 210112015 Remark: Copy of Dkt #96 and Dkt. #97 mailed to plaintiff (KER) (Entered:
~-----F----t-1_21_0_11'.~015) -----~- - - - - -
I 12/I4/20i 5 I .22 IDECLARATION IN SUPPORT 017 OBJECTIONS TO REPOR1 AND _ll

l.
I RECOMMEND A TIO NS filed by Jeffre}'. Malkan. (KM) (Entered: 12/17/2015) .

1- 2/14/201-5-- 100 MEMORANDUM OF LAW IN SUPPORT OF OBJECTIONS TO REPORT AND


RECOMMENDATION OPPOSITION re 22, Declaration by Jeffrey Malkan.
(Attachments:# 1 Apppen~~A)(KM) (Entered: 12/17/2012)_ _ _~
'j l 2/15/2015 28 OBJECTION to 2.Q, 21 Report and Recommendations by Frederick Ostrove,
(Attachments: # 1 Memorandum in Support Memo of Law,# 2. Exhibit exhibits

~
1-15)(0strove, Frederic) (Entered: 12/15/2015)
!2/21/2015 lQl CONTINUATION OF EXHIBITS by Jeffrey Malkan. to lQQ Memorandum in
.J---- Opposition,22. Declaration filed by Jeffrey Malkan. (KM) (Entered: 12/28/2015)
1
01/08/2016 I 102 TEXT ORDER: The response of defendant Mutua to the objections to the Report and
lI I Recommendation 2.Q regarding the motion for summary judgment filed by defendant

t.
I I~ shall be due January 2 l, 2016. A reply by plaintiff Malkan shall be due February 3,
I 2016. Oral argument will be February 18, 2016 at 2:00 p.m. SO ORDERED. Issued by
Hon. Richard J. Arcara on 1/8/16. (LAS) (Entered:_ 01/08/2016_)_ _ _ _ _ __

r~~/08;20 ~ ~l3 TEXT ORDER: The response of defendant Mutua to the objections to the Report and
Recommendation 91 regarding the motion for sanctions filed by defendant 83 shall be

~
( j due January 28, 2016. Replies by plaintiffMalkan and fonner counsel shall be due
February IO, 2016. Oral argumenl wiii be scheduled after the response and replies are I
I filed, ifnecessary. SO ORDERED. Issued by Hon. Richard J. Arcara on l/8/16. (LAS) I
~-------~ ____ (Enrered: 01/08/2016)_______ -- -l
I01/08/2016 I 104 IRpmark: Copies of text orde:s l 02 and 103 have been :nailed to Jeffrey 1;-fal~an, 12 j
~~ ,__J_V alle~ood_ C~urt ~.est, Samt James, NY 117~Q_i~~nt~ed: -~~L-~~-
~
[ 0 /21/20 l
L____________
611.Qj, lMEMORANDUM IN OPPOSITION re .l.QQ Memorandum in Opposition,____
_____J.Peclaration l_>y Makau W. Mutua. (Sleight, David) (Entered: O--~~l/2016) ~---
JI

00000!1
Case 17-38, Document 29, 02/17/2017, 1975443, Page15 of 175

Case 1:1LaijEOQ2.JU3-MA:D61K& 4ifo011f00r'1Ulll71W:4t:llewa:515/11'1l&f@11of11


to
~
O_l./28/2016 lQQ REPLY/RESPONSE re lfil Continuation of Exhibits, 98 Objection to Report an~l
Recommendations, liill Memorandum in Opposition, 22 Declaration filed by Makau .
W. Mutua. (Boyd, Christopher) (Entered: 01/28/2016)
-----
71 SECOND DECLARATION in furt.h.er support to re 22 Declaration filed by Jeffrey
; 01/28/2. 016 . lQl.
~~~-::---::--- ~~:kan. (KM) ~En~~:~d: 0~/30/2~~6_)_ _ _ _, -::- . .
j U:L/U4/:LOlo 1illi I IruRD D. ECLARA 110N m funner support of re 29, Declaration filed by Jeffrey
C ,Malkan. (KM) (Entered: 02/04/2016) .

I 02/;~/2~16
-----
lQ2
.
REPLY/RESPONSE to re lQ2 Memorandum in Opposition to Bmwn Law Leed~
objections_f'.iled by Frederick Ostrove. (Ostrove, Frederic) (E~ered: 02/l 0/2016,~
I
\a 2/11/2016 110 TEXT ORDER. The time of the February 18, 2016 Oral Argument as to the I
IObjections to 96 Report and Recornme.ndation is changed by the Court to 9:00 AM on
February 18, 2016 before Hon. Richard J. Arcara. SO ORDERED. Issued by Hon.
I
! ~ichard J. A:rcara on February 11, 2016. (DID) (Entered: 02/11/2016)
lo;/l 1/2016
jo2118/2016
( ~emark:, A copy o~Text Order 110 has been mailed to Jeffr~y Malkanl2 Valleywood
i Coun West, Srunt James, NY 11780. (DID) (Entered: 02/11/2016)
TMinute Entry for proceeding& held 2/18/2016 before Hon. Richard J. Arcara. Oral
1
Argument is held as to the 22 Objections filed by Plaintiff, Jeffiey Malkan to 2.Q
I Report and Recommendation (summary judgment motion). Decision is reserved.
Appearances: Pltf- Jeffrey Malkan, prose; Deft~ David Sleight (Court Reporter
Megan Pelka.) (DJD) (Entered: 03/03/2016) ~
1

I11116/2016
I
11 l TEXT ORDER REASSIGNING CASE. Case reassigned to Hon. Michael A. Telesca
1for all further proceedings. Hon. Richard J. Arcara no longer assigned to case. Issued. .
by Hon. Richard J. Arcara on 11/16/16. (LAS) (Entered: 11116/2016) ______
jI
i 11/16/2016 l 12 Remark: A copy of text order I 11 has been mailed to Jeffrey Malkan, 12 Valleywood
Court We~t, Saint James, NY 11780 (LAS) (Entered: 11/16/~16) ~
t12116/201; ill DECISION AND ORDER granting ii Motion for Summary Judgment; denying 1Q I

j
J
Motion for Sanctions; denying .!U Motion for Sanctions; adopting Report and
I l Recommendations re 2Q Report and Recommendations.; denying 21. Report and
Recommendations. (Clerk to close case.) Signed by Hon. Michaei A. Telesca on
12/16/16. Copy of Decision and Order sent by first class mail to Plaintiff. ~JMC-)-
-CLERK TO FOLLOW UP (Entered: 12/16/2016) ..... .-
~~ 8/;016 O_R_D_E_R_a_m_e"--n-d-in_g_D-ec-is_i_on-an-d~O'--r-d-er_d_a-te_d_D_ec_e_n_1b-er 16, 2016 ..
IB--+D-E._C_IS_I_O_N_A_N_D__
Signed by Hon. Michael A. Telesca on 12/l 8/l 6. (JMC)

-CLERK TO FOLLOWUP-(Bntered: 12/18/2016)


12118/2016 (Court only) Copy of A.mended Decision and Order. dated December 18, 2016 sent by
_ _ first class mail to Plaintiff. (JMC) (Entered: 12/18/2016) _ __
J
12/20/2016 ill JUDGMENT in favor ofMakau W. Mutua against Jeffrey Malkan. Signed by Mary C.
C-----,-~---- Loewengutb, Clerk of Court on 12/20/2016. ~) (En!ered: 12/20/2016) ----
;.-1. _2_12_0.._12_J_H._6-+---+(g_ourt o~"'.2'.! Cl.?.~~9 Flags (KM) (En~red: 12/~Ql}Ol?l_~--------
NOTICE OF APPEAL by Jeffrey Malkan. FEE STATUS PAID (KM) (Entered:

Notice of

oooorp 2
Case 17-38, Document 29, 02/17/2017, 1975443, Page16 of 175

Case

United States District Court


,_ _ _ _ _ _ _ _ _WESTERN DISTRICT OF NEW

JEFFREY MALKAN JUDGMENT IN A CIVIL CASE


CASE NUMBER: 12-CV-236-T
v.

MAKAU MUTUA

Jury Verdict. This action came before the Court for a trial by jury. The
issues have been tried and the jury has rendered its verdict.

!Zl Decision by Court. This action came to trial or hearing before the Court.
The issues have been tried or heard and a decision has been rendered.

IT IS ORDERED AND ADJUDGED: that the first Report and Recommendation


addressing defendant's summary judgment motion is adopted in its entirety and
defendant's motion for summary judgment is hereby granted. The Court modifies
the second Report and Recommendation to the extent that monetary sanctions
\NiU not be imposed by the Court against plaintiff's counseli but in an other
respects the sanctions as stated by judge Schroeder are accepted and adopted.

Date: December 20, 2016 MARY C. LOEWENGUTH


CLERK OF COURT

By: s/K.McMillan
Deputy Clerk
Case 17-38, Document 29, 02/17/2017, 1975443, Page17 of 175

Case 17-38, Document 22, 02~01/2017, 1961823, Page16 of 487

Case 1:12-cv-00236-MAT-HKS Page 1of1

UNITED STATES DISTRICT COURT Form I


WESTERN DlSTRlCT OF NEW YORK

:Jeffrey Malkan

Plaintiff,

v. NOTICE OF APPEAL
Makau Mutua
~l,Z....__ -CV-236-T

Defendant(s).

Noticeisherebygiventhat Jeffrey Malkan [print your name],

-:Pi:'cl;.,a!'l-J:'i-!.flFr'l::F'clr'fr.f r - - - - - - [identify yourselfas plaintiffor defendant in the district court action]

in the above-named case, hereby appeals to the United.States Court of Appeals for the Second

Circuit from x all ---"'part [check one} of the decision of this Court entered on
_ _ _ _ _ __,20__.

[Complete the next section only ifyou are not appeali.ng the whole order.] I am appealing

from thepa.rtoftheorderwhich _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

Dated: December 3 1 , #!tb~

Jeffrey Malkan
Print Your Name
Appearing Pro Se

Address: 12 Valleywood Ct. W.,


s
Saint James, N.Y. 11780

Telephone: ( 631) 862-6668

00000 t 1
Case 17-38, Document 29, 02/17/2017, 1975443, Page18 of 175

Case 1:12-cv-00236-MAT-HKS Document 118 Filed 01/13/17 Page 1of1

UNITED STATES DISTRICT COURT


WESTERN DISTRICT OF NEW YORK

JEFFREY MALKAN,

Plaintiff,
DKT. NO.: 12 CV 00236
-against-
NOTICE OF APPEAL
MAK.AU MUTUA,

Defendant.

----------------------~---------------------------------x

PLEASE TAK.ll~ NOTICE that Plaintiff's former counsel hereby appeals to the United
States District Court for the Western District of New York from the Amended Decision and Order
dated December 18, 2016 (ECF Document 114, attached hereto as Attachment A) issued by the
Honorable Michael A. Tele.sea, United States District Judge fo:r t.he Western District of New York.
Additionally, attached within "Attachment A" is the original Decision and Order dated December
16, 2016 (ECF Document 113), issued by the Honorable Michael A. Telesca. United States District
Judge for the Western District of New York. Judgment was entered in this action on December
20, 2016 (ECF Document 115, attached hereto as Attachment B). Specifically, counsel appeals to
that portion of the Decision and Order which found that counsel's actions "are worthy of verbal
sanctions"' and all findings related thereto.

Dated: January 13, 2017


Carle Place, New York

LEEDS BROVlN LAW, P.C.


Fonner Counsel for Plaintiff
One Old Country Road, Suite 347
Carie Place, New Y lJ S14
(516) 3~9550

0000015
Case 17-38, Document 29, 02/17/2017, 1975443, Page19 of 175

Case 17-38, Document 22, 02/01/2017, 1961823, Page18 of 487


Case 1:12-cv-00236-MAT-HKS Document 64 Filed 09/24/14 Page 1of2

UNITED STATES DISTRICT COURT


WESTERN DISTRICT OF NEW YORK

JEFFREY MALKAN,

Plaintiff,
v. STIPULATION OF DISMISSAL AS
TO DEFENDANT
MAKAU W. MUTUA and CHARLES P. EWING
CHARLES P. EWING
in their individual capacities, 12-CV..0236(A)

Defendants.

IT IS HEREBY STIPULATED, by and between counsel for Plaintiff Jeffrey Malkan and
counsel for Defendant Charles P. Ewing, that this action against only Defendant Charles P.
Ewing is dismissed with prejudice and without costs or attorneys' fees to any of the parties. This
stipulation may be filed with the Court's clerk. without further notice. This stipulation is not
intended to and shall not affect any r1ghts, including but not limited to, claims and defenses, as
between Plaintiff Malkan and Defendant Mutua.

Dated: September 24, 2014

Isl Frederic D. Ostrove I/ Randolph C. Oppenheimer


Frederic D. Ostrove Randolph C. Oppenheimer
B1yan Arbeit Abigail D. Flynn-Kozara

LEEDS BROWN LAW, PC DAMON MOREY LLP


One Old Country Road - Suite 347 The Avant. Building - Suite 1200
Carle Place, NY 11514 200 Delaware Avenue
T: (516) 873-9550 Buffalo, New York 14202
rostrove@Imblaw.com T: (716) 856-5500
roppenheimer@damonmorey.com
Attorneys for Plaintiff akozara@damonmorey.com

Attorneys for Defendant


Charles P. Ewing
Case 17-38, Document 29, 02/17/2017, 1975443, Page20 of 175

Case 1:12-cv-00236-MAT-HKS Document 64 Filed 09/24/14 Page 2 of 2

CERTIFICATE OF SERVICE

I, Randolph C. Oppenheimer, hereby certify and affirm that on September 24, 2014, I

electronically filed the foregoing Stipulation of Dismissal with the Clerk of the United States

District Court for the Western District of New York using its CM/ECF system, which would then

electronically notify the follo\Ving Cl\1/ECF participants in this case:

Frederic D. Ostrove, Esq.


Brian Arbeit, Esq.
Leeds Brown Law, P.C.
rostrove@lmblaw.com
barbeit@leedsbrownlaw.com

David J. Sleight, Esq.


Assistant New York State Attorney General
david.sleight@ag.ny.gov

Robert E. Rugged, Esq.


Jessica M. Baker, Esq.
SUNY Office of General Counsel
robert,ruggeri@suny.edu
jbaker4@buffalo.edu

Randolph C. Oppenheimer
Dot #1964072.l

00000l7
Case 17-38, Document 29, 02/17/2017, 1975443, Page21 of 175

Case 1:12-cv-00236-MAT-HKS Document 5 Filed 05/08/12 Page 1 of 2

UNITED STATES DISTRICT COURT


WESTERN DISTRICT OF NEW YORK

JEFFREY MALKIN,

NOTICE OF MOTION

Plaintiff,
12-CV-0236(A)
-vs-

MAKAU W. MUTUA and


CHARLES P. EWING,

Defendants.

PLEASE TAKE NOTICE that Defendants Makau W. Mutua and Charles Ewing, by

their attorney, Eric T. Schneidennan, Attorney General of the State of New York, David J.

Sleight, Assistant Attorney General, of Counsel, will move this Court before the Hon. Richard J.

Arcara, at the United States Courthouse, 2 Niagara Square, Buffaio, New York, at a time and

date set by the Court, for: l) an order pursuant Fed. R. Civ. P. l2(b)(l) and 12(b)(6) partially

dismissing Plaintiffs complaint; and, 2) for a stay of this action.

Dated: Ruffalo, New York


May 8, 2012

ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
Attorney for Defendants
BY:
s/ David J J.flgl1
DAVID J. SLEIGHT
Assistant Attorney
of Counsel
Main Place Suite 300A
350 Main Street
Buffalo, New York 14202
(716) 852-6274

OOOOfP "'
Case 17-38, Document 29, 02/17/2017, 1975443, Page22 of 175

Document
Case 1:12-cv-00236-MAT-HKS Document 5 Filed 05/08/12 Page 2 of 2

CERTIFICATE OF SERVICE

I hereby certify that on May 8, 2012, I electronically filed the foregoing with the
Clerk of the Disuict Court using its CM/ECF system, which would then electrnnical!y
notify the following CM/ECF participants on this case:

FREDERIC D. OSTROVE, ESQ


Attorneyfor Plaint~ff
Leeds, Morelli & Brown
One Old Country Road
Suite 347
Carle Place, New York 115 I 4
(516) 873-9550
rostrove(@lmblaw.com

DATED: Buffalo, New York


May 8, 2012

ERIC T. SCHNEIDERMAN
New York State Attorney General
BY:
S/Davj.c.LL_~Ji:J.gh!
DAvm J. SLEIGHT
Assistant Attorney General
Of Counsel
Main Place Towers
350 Main Street-Suite 300A
Buffalo, New York 14202
(716) 852-6274
david. sleight@ag.ny.gov

0000019
Case 17-38, Document 29, 02/17/2017, 1975443, Page23 of 175

---------ease-B--38, Docu1ne1 it 22, 02/0112017, 1961823, Page22 of 487


Case 1:12-cv-00236-MAT-HKS Document 1 Filed 03/23/12 Page 1of9

UNITED STATES DISTRICT COURT


WESTERN DISTRICT OF NEW YORK
------------------------------------------------------------------X
JEFFREY MALKAN,

Plaintiff,
12
COMPLAINT
CV 0'2se -A
-against- Jury Trial Demanded

MAK.AU W. MUTUA and CHARLES P. EWING in their


individual capacities,

Defendants.

--------------------------------------------------X

Plaintiff, JEFFREY MALKAN, through his attorneys, LEEDS MORELLI & BROWN,

P.C., alleges upon knowledge as to himself and his own actions, and upon information and belief

as to all other matters, as follows:

JURISDICTION AND VENUE

1. This is a civil action for compensatory and punitive damages, proximately resulting from

Defendants' violations of Plaintiff's rights as guaranteed him by the Fourteenth

Amendment to the Constitution of the United States and is brought pursuant to 42 U.S.C.

1983.

2. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. 1331.

3. Venueisproperpursuantto28U.S.C. 1391.

i-
ORIGINAL
Case 17-38, Document 29, 02/17/2017, 1975443, Page24 of 175

Ce:!3e 17 38, @eeeiM@lit 22, ii:'iil::/QQi?; ii0Cl0ii; 9 r g 9 2


f !9 1

Case 1:12-cv-00236-MAT-HKS Document 1 Filed 03/23/12 Page 2 of 9

PARTIES

4. Plaintiff, Jeffrey Malkan ("Malkan"). is a resident of Suffolk County, State of New York.

5. Defendant, Makau W. Mutua rMutua"), at all times hereinafter mentioned, is an

individual employed by the State University of New York at Buffalo, School of Law (the

"Law School"), and acted under color of state law. Mutua is the current Dean of the Law

School and is responsible for its maintenance and operation, including but not limited to,

the hiring, firing, promotion, and discipline of employees, and all other employment

related matters. During the relevant time period, Mutua, as Dean, was a policymaker for

the Law School, and was charged with the responsibility of ensuring that its employees

were not subjected to unconstitutional acts. He was also responsible for properly training

and supervising empioyees with respect to employment issues.

6. Defendant, Charles P. Ewing ('"Ewing"), at all times hereinafter mentioned~ is an

individual employed by the Law School and acted under color of state law. Ewing is the

current Vice-Dean for Legal Skills and is responsible. among other things, for the

administration of the Legal Research and Writing Program. During the relevant time

period, Ewing was a tenured faculty member and ch&.Lrperson of the faculty's Grievance

Committee. In this capacity he was responsible. under the faculty's by-laws. for

receiving and investigating faculty members' grievances regarding their terms and

conditions of employment, and reporting these grievances, with appropriate

recommendations, to the faculty.

000001
Case 17-38, Document 29, 02/17/2017, 1975443, Page25 of 175

. ------ -----\:G::oia~s~e::-17-f-'!37t8r,-,-t:D~O:H:Cl'tUH'lffi'!'!C~ll'ttt-z2~2:-;,-ie91'11!2!1-1!9~l!!!i/oe2~Q~1.,.7":""",~19eto1ii!11!l!l!!i!Q!'!2!!'1!l:!~;""'P"'8:il!4!~~8io!!il~1~8!Jif1..,.Q1o117_ _ _ _ _ _ __

Case 1:12-cv-00236-MAT-HKS Document 1 Filed 03/23/12 Page 3 of 9

FACTS

7. In June 2000 Malkan was offered and accepted a full-time faculty appointment as

Director of the Legal Research and Writing Program at the Law School, pursuant to a

recommendation from the faculty's Appointments Committee that was approved by the

full voting faculty and endorsed by the Dean.

8. The newly-created Director position was designated by the faculty to be held by an

individual with an entry-level academic rank of Clinical Associate Professor.

9. The terms of his appointment stated that Malkan would receive an initial three-year

contract after which the Dean of the Law School could authorize a three-year renewal

upon a fmding that his job performance had met or exceeded expectations.

IO. In the sixth year of his appointment. the faculty's Promotion and Tenure Committee,

which consists of the entire tenured faculty, would vote on whether he should be

reappointed to a full clinical professorship with the security of employment reasonably

similar to tenure.

11. On April 28, 2006, upon a review of his job perfonnance, applying the faculty's

scholarship, teaching, and service st.andards, the Promotion and Tenure Committee

recommended that Malkan be reappointed to the position of full Clinical Professor with

the protections of ABA Standard 405(c) and accompanying interpretations,' which

---------------------------------'-'------------
Case 17-38, Document 29, 02/17/2017, 1975443, Page26 of 175

Case 1:12-cv-00236-MAT-HKS Document 1 Filed 03/23/12 Page 4 of 9

requires law schools to protect the academic freedom of clinical professors by providing

them with job security reasonably similar to tenure.

12. The Dean at the time, R. Nils Ol.sen, accepted the faculty's recommendation and

promoted Malka.n to the status of a full Clinical Professor.

13. The Dean and Malkan signed a contract, dated October 19, 2006, to formalize his

promotion and reappointment To comply with ABA Standard 405(c), which requires

law schools to grant five-year contract terms, the contract provided for a three-year

contract term, followed by a mandatory two-year extension. AU ensuing reviews and

renewals were provided the protections of ABA Standard 405(c) and accompanying

interpretations and were to be implemented in accord with the faculty's personnel

procedures.

14. The contract further specified that Malkan's administrative position as Director of the

Legal Research and Writing Program was separate and distinct from his instructional

position as a Clinical Professor, and that if his service as Director was discontinued, at

any tllne or for any reason, his instructional position as a Clinical Professor WQuld be

unaffected.

15.
Case 17-38, Document 29, 02/17/2017, 1975443, Page27 of 175

Case 1:12-cv-00236-MAT-HKS Document 1 Filed 03/23/12 Page 5 of 9

16. In January 2008, Nils Olsen resigned as dean and Mutua was appointed Interim Dean of

the Law School by the University's Provost, Satish K. TripatliJ.

I 7. On March !3, 2008, Mutua announced to the faculty that he had dismissed Madkan as

Director of the Legal Research and Writing Program, effective as of noon that day.

18. Malkan continued to abide by his contract and serve as a Clinical Professor, teaching a

full schedule of both legal writing courses and doctrinal courses.

19, In May 2008, after an unsuccessful dean search, Mutua was appointed Dean of the Law

School by the University's Provost, Satish K. Tripathi.

20. In a letter dated August 28, 2008, Mutua notified Malkan that his appointment term

would expire on August 31, 2009 and would not be renewed unless further action was

taken,

21. The letter was delivered on the last business day of the last month of the academic year,

which wouJd prevent Malkan's appointment from automatically roll1ng-over .for an

..,,,..,,. ..,,,.,,, academic year.

22. MafJr.an's employment could have been terminated for cause upon a

recommendation to the Dean from the entire tenure-d at his rank or

convened as the Committee on Clinical Promotion and Renewal the letter

5
0000 0?. G
Case 17-38, Document 29, 02/17/2017, 1975443, Page28 of 175

Case 1:12-cv-00236MAT-HKS Document 1 Filed 03/23/12 Page 6 of 9

made no reforence to the non-discretionary faculty revi.ew procedures for clinical

renewals and reappointments.

23. Mutua, in his haste to serve a timely twelve-month notice of non renewal, had not yet

convened the CCPR, or even infonned the faculty of the letter he had sent to MalknJ1.

24. In January 2009, having waited nearly five months to be heard by the CCPR, which could

be called into session by the Dean at any time during the last year of the contract term,

Malkan filed a protest with the Grievance Committee, headed by Ewing, complaining

that Mutua had not yet convened the CCPR to vote on his reappointment.

25. Ewing admitted, in response, that Malkan's complaint fell within the jurisdiction of the

Grievance Committee, and informed Malkan that he had approached Mutua in an attempt

to investigate and adjust the grievance, but Mutua had refused to discuss the timing of the

requisite faculty procedures or any aspect ofMalkan's employment.

26. Ewing declined to pursue the grievance any further, over Malka.n's continuing objections,

and refused to report it to the faculty at any of the remaining monthly faculty meetings of

the academic year.

21, Mutua convened the sole meeting of the CCPR to the


Case 17-38, Document 29, 02/17/2017, 1975443, Page29 of 175

Case 1:12-cv-00236-MAT-HKS Document 1 Filed 03/23/12 Page 7 of 9

Professors whose appointments were scheduled to expire on the same day as M.alkan's,

August 3 i, 2009.

28. Although Malkan expected to be heard that day, together with his two colleagues of equal

rank and status, Mutua, without explanation, refused to place Malkan's reappointment on

the agenda and prevented the CCPR from deliberating or voting on the non-renewal of

his contract.

29. In June 2009, Mutua announced to the faculty that Ewing would join his "team,"

effective immediately, as Vice-Dean for Legal Skills, in which role he would be taking

over Malkan's former responsibilities for the administration of the Legal Research and

Writing Program.

30. On September 1, 2009, when his current appointment term ended without a hearing by

the CCPR, Malkan was deprived of his property interest in his continued employment at

the Law School.

CLAIMS FOR RELIEF

CAUSE OF ACTION
(DUE PROCESS)

31. Plaintiff's 405(c)-.-qualified, presumptively renewable contract and university title/rank of

he couid not be deprived v.rithout due process oflaw.

00000223
Case 17-38, Document 29, 02/17/2017, 1975443, Page30 of 175

a
Case 1:12-cv-00236-MAT-HKS Document 1 Filed 03/23/12 Page 8 of 9

32. Both the Plaintiff's employment contra.ct and the faculty's by.Jaws provided for such

process in the form of the CCPR review.

33. The faculty's by-laws also provided review in the form of the Grievan.ce Committee's

procedures.

34, Defendant, Mutua, acting under color of state law, deprived Plaintiff of his property

without due process by terminating Plaintiff's employment without the CCPR review and

by refusing to cooperate with the C.rrievance Committee and failing to place Plamtiff on

the agenda for a vote on the date he should have been reviewed, in violation of the

Fourteenth Amendment to the United States Constitution, as enforced by 42 U.S.C.

1983, and all related provisions of the New York State Constitution.
I

35. Defendant, Ewing, acting under color of state law, deprived Plaintiff of his property

without due process by preventing his grievance from being heard by the faculty, in

violation of the Fourteenth Amendment to the United States Constitution, as enforced by

42 U.S.C. 1983, and all related provisions of the New York State Constitution.

WHEREFORE, Plaintiff demands judgment against Defondants in the of and/or for

also den:umds
Case 17-38, Document 29, 02/17/2017, 1975443, Page31 of 175

------- -aseH-38, Documerit 22, 02/01/2017, 1961023, Page30 ef 487 .


Case 1:12-cv-00236-MAT-HKS Document 1 Filed 03/23/12 Page 9 of 9

damages, in an amount to be assessed at the time of trial. The Plaintiff further seeks injlinctive

relief, including but not limited to, the clearing of his personnel file of any wrongful disciplinary

actions, immediate reinstatement, and a pennanent injunction enjoining Defendants arid their

agents from any further actions abridging Plaintiff's rights. Plaintiff further demands all

attorneys' fees, disbursements and other costs and all further relief, equitable or otherwise, to

which Plaintiff is entitled and/or which the court deems just and proper.

Dated: Carle Place, New York


March22, 2012

LEEDS MORELLI & BROWN, P.C.


Attorneys for Plaintiff
One Old Country Road, Suite 347
Carle Pr9jlaceNew York.11514
(516) 8 -9 50
, .-""
.

..........................................9 ..... _,, ............ ,_, , ,


0000030
Case 17-38, Document 29, 02/17/2017, 1975443, Page32 of 175

Case 17-38, Document 22, 02/01/2017, 1961823, of 487


Case 1:12-cv-00236-MAT-HKS Document 63-4 Filed 08/30/14 Page 44 of 47
Gase 1:12-cv-00236-RJA-HKS Document 24 Filed 10/23/12 Page 1 of 5

UNITED STATES DISTRICT COURT


WESTERN DISTRJCT OF NEW YORK

JEFFREY MALKIN,

Plaintiff, ANSWER
vs.
12CV0236(A)
MAK.AU W. MUTUA and
CHARLES P. EWING,

Defendants.

Defendants, by and through their attorney, Eric T. Schneiderman, Attorney General of the

State of New York, David J. Sleight, Assistant Attorney General, of counsel, answer Plaintiff's

Complaint as follows:

1. Deny the allegations contained in paragraphs 23, 25, 26, 28, 29, 30, 31, 32, 33, 34 and 35

2. Deny knowledge or infonnation sufficient to form a belief as to the truth or falsity of the

allegations contained in paragraphs 4, 7, 8, 9, l 0, 11, 12, 16, 17, 18, 19, 21, 24 and 27.

3. With respect to the allegations contained in paragraph 1, Defendallts assert that no

response is due as the allegations call constitute a legal conclusion, but to the extent that any

response is required, deny the allegations .

4. Neither admit nor deny the allegations in para.graph 2, except admit that Plaintiff purports

to invoke the cited. statutes and base bis claim of jurisdiction thereon.

5. Neither admit nor deny the allegations in paragraph 3, except admit that Plaintiff purports

to invoke the cited statute and base his claim of proper venue thereon.

6. With respect to the allegations contained in paragraph 5, admit that Defendant Mutau is

an employee of the Law School and is currently the Dean of the Law School; however, deny

knowledge or information sufficient to form a belief as to the truth or falsity of the remaining

00001131
Case 17-38, Document 29, 02/17/2017, 1975443, Page33 of 175

Case 1:12-cv-00236-MAT-HKS Document 63-4 Filed 08/30/14 Page 45 of 47


Case 1:12-cv-00236-RJA-HKS Document 24 Filed 10/23/12 Page 2 of 5

allegations contained in this paragraph.

7. With respect to the allegations contained in paragraph 6, admit that Defendant Ewing is

an employee of the Law School and is currently the Vice Dean for Academic Affairs; however,

deny knowledge or infonnation sufficient to fonn a belief as to the truth or falsity of the

remaining allegations contained in this paragraph.

8. Neither admits nor denies the allegations in paragraphs 13, 14, 15, 20 and 22, but refors

to the documents described for the truth of the contents contained therein.

9. Defendarits deny each and everj al legation not adrnitted, denied; or otherwise responded

to above.

FIRST DEFENSE

I 0. The Complaint fails, in whole or in part, to state a claim upon which relief can be

granted.

SEC'OND DEF'ErfS~

l l. Defendants, at all times relevant hereto, acted without malice and under the reasonable

belief that their actions were proper and in accordance with existing law.

12. Defendants, at aU times relevant hereto, acted in good~faith in the Iavv'ful exercise of the

discretion committed to them under federal and/or state law and are immune from liability.

13, Defendants did not violate any clearly established statutory or constitutional rights of the

plaintiff which a reasonable person would have known, and therefore, are entitled to

immunity.

THIRD DEFENSE

The alleged conduct set forth in the Complaint, in whole or in was properly within
Case 17-38, Document 29, 02/17/2017, 1975443, Page34 of 175

Case 1:12-cv-00236-MAT-HKS Document 63-4 Filed 08/30/14 Page 46 of 47


Case 1:12-cv-00236-RJA-HKS Document 24 Flied 10/23/12 Page 3 of 5

the relief prayed for would constitute an improper intrusion by the federal judiciary into said

discretionary authority.

FOURTH DEFE.~SE

15. Plaintifi"s claims are barred, in whole or in part, by the holdings in Heck v. IJ.ymphrey,

512 U.S. 477 (1994) and Edwards y. BaHsok, 117 S.Ct 1584 (1997), and their progeny.

FIFTH DEFENSE

16. This action is batted, in whole or in part, by the Eleverrt.hA_mendmentto the United

States Constitution.

SIXTH DEFENSE

17. Defendants at ail times acted in conformity with all federal and state coruititutional,

statutory and/or regulatory provisions.

SEVENIB DEF'ENSE

18. Plaintiff's complaint, in whole or in part, fails to state a cl.aim pursuant to Mt. Healthy

School District v. Do~, 429 U.S. 274 (1997).

EIGHTH DEFENSE

19. Defendants did not act in willful disregard of plaintiff's rights and therefore, plaintiff is

not entitled to punitive dam.ages.

NINTH DEFENSE

20. The action is in whole or in part, barred by the doctrines of res judicata and collateral

TENTH DEFENSE

21. Plaintiff has failed to exhaust his available administrative remedies.

OOOOIL. 3
Case 17-38, Document 29, 02/17/2017, 1975443, Page35 of 175

, Document
Case 1:12-cv-00236-MAT-HKS Document 63-4 Filed 08/30/14 Page 47 of 47

Case 1:12-cvw00236-RJA-HKS Document 24 Filed 10/23/12 Page 4 of 5

Df:MAND FOB JURY TRIAL

22. Defendants demand a trial by jury.

WHEREFORE, Defendants pray that judgment be entered in their favor, dismissing the

Complaint in all respects, with prejudice, and that Defendants be awarded reasonable costs and

attorneys' fo.es, along with such other and fort.her relief as may be just, proper, and equitable.

DATED: Buffalo, New York


October 23, 2012

ERIC T. SCHNEIDERMAN
New York State Attorney General
BY:
S/David J. Sleight
DAVID J. SLEIGHT
Assistant Attorney General
Of Counsel
Main Place Towers
350 Main Street-Suite 300A
Buffalo, New York. 14202
(716) 852-6274
david,s!eight@ag.ny.goy_

0
Case 17-38, Document 29, 02/17/2017, 1975443, Page36 of 175

Decisions Belo\v in }vf_alkan v. A1utua

1. Decision of Hon. Michael A. Telesca, filed 12/18/2016 (page 36)

2. Report and Recommendation of Hon. H. Kenneth Schroeder on summary judgment motion,


filed 12/1/2015 (page 42)

3. Report and Recommendation of Hon. H. Kenneth Schroeder on Rule 1 I motion, filed


12/1/2015 (page 54)

4. Decision and Order of Hon. Richard A. Arcara on motion to dismiss and motion for stay, filed
10/3/2012 (page 94)
Case 17-38, Document 29, 02/17/2017, 1975443, Page37 of 175

17-38, Document 02/01/2017, 1961823, Page36 of 487

Case 1:12-cv-00236-MAT-HKS Document 114 Filed 12/18/16 Page 1 of 6

UNITED STATES DISTRICT COURT


WESTERN DISTRICT OF NEW YORK

JEFFREY MALKAN, AMENDED


No. 1:12-CV-00236 (MAT)
Plaintiff, DECISION AND ORDER
-vs-

MAKAU MUTUA,

Defendants.

This Decision and Order amends the Decision and Order dated

December 16, 2016 and filed on that date.

I. Introduction

Presently before the Court for review are two Reports and

Recommendations ("R&Rs") prepared by Magistrate Judge Kenneth

Schroeder, Jr. and filed December 1, 2015. 1 Jeffrey Malkan

("plaintiff"), proceeding pro .se, 2 brings this action pursuant to

42 u.s.c. 1983, alleging a single due process claim pursuant to

the Fourteenth Amendment. Defendant Makau Mutua ("defendant") has

moved for summary judgment (doc. 55) pursuant to Fed. R. Civ. P. 56

and both parties have cross-moved for sanctions pursuant to Rule

11. Docs. 70, 83. The parties' motions were referred to Magistrate

This case was originally assigned to Judge Richard Arcara, who referred
it to Magistrate Judge Schroeder for two Reports and Recommendations, which were
completed and filed on December 1, 2015. The case was referred to this Court by
order dated November 16, 2016.

2 On the underlying motions for summary judgment and sanctions, plaintiff


was represented by Frederic D. Os trove, Esq., of Leeds Brown Law, P. C.
Plaintiff's counsel was terminated by plaintiff on July 16, 2015, however, and
plaintiff now proceeds pro se.
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Judge Kenneth Schroeder, Jr., for consideration of the factual and

legal issues presented, and to prepare and file Reports and

Recommendations ("R&R") containing a recommended disposition of the

issues raised.

Judge Schroeder issued two R&Rs on December 1, 2015. In the

first ("the first R&R"), Judge Schroeder recommended that

defendant's motion for summary judgment be granted. In the second

R&R ("the second R&R") , Judge Schroeder recommended that

defendant's motion for sanctions be granted in part, and

plaintiff's motion for sanctions be denied.

II. Factual Background and Procedural History

Plaintiff commenced this civil rights action pursuant to 42

U.s.c. 1983 on March 23, 2012, alleging that defendant Makau W.

Mutua ("defendant"), then Dean of the State University of New York

("SUNY") Buffalo Law School ("the law schooln), violated his due

process rights under the Fourteenth Amendment when he declined to

renew plaintiff's three-year contract as a clinical professor at

the law school. The Court hereby incorporates the thorough factual

summaries included in Judge Schroeder's R&Rs. Doc. 96 at 1-6; doc.

97 at 1-20.

At issue for purposes of defendant's summary judgment motion

is whether plaintiff was afforded the requisite due process when he

was term~nated, via non-renewal of his three-year term contract,

from his position as clinical professor. The first R&R (doc. 12)

2
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found that, as a threshold issue, plaintiff had no property

interest in his poE1ition. The H&R therefore recomrnended that the

Court grant defendant'a motion for summary j on that basis.

Plaintiff, proceeding pro se, has submitted objections to the first

R&R. See docs. 99, 100.

The second R&R recominended that the Court defendant's

motion for sanctions in by sanctioning plaintiff's former

counsel, Frederic D. Ostrove, Esq., and his firm, Leeds Brown Law,

P.C., in the amont of $10,000.00, payable to the Clerk of the

Court for the Western District of New York. The second R&R declined

to recommend sanctioning plaintiff himself due to his "current

[financial] circumstances." Doc. 97 at 37. Plaintiff and his former

counsel have filed objections to the second R&R. See docs. 98 (Mr.

Ostrove' s objections); 99~101 (plaintiff's ec L.ions) . For the

reasons stated below, the Court adopts the first R&R in its

entire~y and adopts the second R&R to the extent stated in this

Decision and Order.

III. Discussion

When a "specific" objection is made to a of a

strate judge's and recommendation, the district j

ects that portion of the report and recommendation to a de nova

review. Fed. R. Civ. P. 72 (b) (2); 28 U.S.C. 636(b) ) (C) ;

3 L:3 F . 3 d 7 5 8 , 7 6 6 ( 2 d Ci r . 2 0 0 2 ) . !fJh en

only a ection is made to a of a rna.gis trate

3
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IS and recomn1endation, or the objection mere

reiterates the same arguments made by the y in its

ori papers, the district judge subjects that portion of the

report and recommendation to only a clear error review. Fed. R.

Civ. P. 72(b)(2), (3}; Fed. R. Civ. P. 72(b), Advisory Comm.:_ttee

Notes: 1983 hddition. The objections made by intiff and his

former counsel merely reiterate arguments which were fully briefed

in the original motion argument. Therefore, the Court reviews ~he

R&Rs for clear error.

A. The First R&R

The Court has reviewed ~he record in this case as well as the

parties' arguments on summary judgment. Upon due considerat:i_on of

the first R&R, the Court finds no clear error. The Court agrees

with Judge Schroeder's conclusio~ that plaintiff had no property

interest in his position as clinical professor at the law school,

because the rules governing term appointments in SUNY schools

that a term appointment can last no longer than three years

and that an individual so appointed has no "legal , interest,

or expectancy" n a renewed appointment. 8 N.Y.C.R.R. 338.2; see

8 N.Y.C.R.R. 335.10. The Court therefore adopts the firs R&R in

its entirety and grants defendant's motion for summary j

B. The Second R&R

The secona R&R discussed cross-motions for sanctions made

ies to Rule 11 of the Federal Rules of Civil

4
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487
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Procedure. The R&R recommended that defendant's mo~ion be

~o the extent that sanctions in the amount of $10,COO.OO be awarded

against plaintiff's counsel. The R&R recommended no monetary

sanctions against plaintiff himself due to his "current [financial]

circumstances." Doc. 97 at 37. Accordingly, for equitable concerns

and weighing the combined behavior of both the iff and his

counsel, the Court decJ_ines to adopt the recommendation of a

monetary sanction in the amount of $10,000.00 against plaintiff's

former counsel. In declining to adopt the monetary sanction as

in the R&R, the Court emphasizes that the reasons Judge

Schroeder gave for impo.sing such a monetary sanction are well-

supported this record. Counsel's actions and unduly contentious

behavior, as described in extensive detail in the second R&R, are

of verbal sanctions as stated by Judge Schroeder.

IV. Conclusion 3

For the foregoing reasons, the first R&R addressing

defendant's sumrnary judgment motion (doc. 96) is adopted in its

entirety and defendant's motion for summary judgment (doc. 55) is

granted. The Court modifies the second R&R (doc. 97) to the

extent that monetary sanctions will not be imposed the Court

against ff's counsel, but in all other respecls the

sanctions as stated by Schroeder are and

s conc2.TJS.ion is amended to clarify the modified a.doFtion of the


R&R. In all other respects, the Decision and Order remains as originally filed.

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Defendant's motion for sanctions (doc. 83) is, therefore,

in part and ff's motion for sanctions (doc. 70) is denied.

Plaintiff's objections (docs. 99, 100) and former counsel's

ect ions (doc. 98) are overruled to the extent stated in this

Decision and Order. The Clerk of the Court is directed to close

this case.

ALL OF THE ABOVE IS SO ORDERED.

S/Michael A. Telesca

A. TEL2SCA
United States District Judge

Dated: December 18, 2016


Rochester, New York.

6
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UNITED STATES DISTRICT COURT


WESTERN DISTRICT OF NEW YORK

JEFFREY MALKAN,

Plaintiff,

12~CV~0236A(Sr)
MAKAU W, MUTUA, et al.,

Defendants.

REP_Q_RT, RECOMMENDATION AND_QBDER

This case was referred to the undersigned by the Hon. Richard J. Arcara,

in accordance with 28 U.S.C. 636(b), for all pretrial matters and to hear and report

upon dispositlve motions. Dkt. #22.

Currently before the Court Is defendant Makau W. Mutua's motion for

summary judgment. Dkt. #55. For the following reasons, it is recommended that

defendant's motion be granted.

FACTS

By letter dated Juiy 25, 2000, R. Niis Olsen, Jr., Dean of the State

University of New York ("SUNY") Buffalo Law School, extended to Mr. Maikan an initial

as a
C!lnicai Professor and Director of and
Writing for a three~year term, with reappointment for a
second three"year [term] during your second year. In your
year, the will make for a third
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three-year term. This process of three-year term renewals


then continues indefinitely.

Dkt. #63-5, Mr. Malkan accepted this appointment on August 7, 2000. Dkt. #63-

5, p.30. The appointment was renewed for a second three-year term. Dkt #63-8, ~ 24.

By letter dated October 19, 2006, Dean Olsen advised Mr. Malkan of his

promotion to Clinical Professor and documented the following agreement:

As we have discussed throughout your service to UB Law


School, your appointment is covered by the ABA rules
and is intended to fully comply with those rules,
particularly standard 405(c)1 and all accompanying
interpretations, especially interpretations 405-6 2 and

1 Section 405(c} of the ABA Standards for Approval of Law Schools provides that a "law

school shall afford to full-time clinical faculty members a form of security of position reasonably
similar to tenure .... " Dkt. #56-20.

2 Interpretation 405-6 provides:

A form of security of position reasonably similar to tenure includes


a separate tenure track or a program of renewable long-term
contracts. Under a separate tenure track, a full-time clinical
faculty member, after a probationary period reasonably similar to
that for other full time faculty, may be granted tenure. After
tenure is granted, the faculty member may be terminated only for
good cause, including termination or material modification of the
entire clinical program.

A program of renewable long-term contracts shall provide that,


after a probationary period reasonably similar to that for other full-
time faculty, during which the clinical faculty member may be
employed on short-term contracts, the services of a faculty
member in a clinical program may be either terminated or
continued by the granting of a long-term renewable contract For
the purposes of this Interpretation, "iong-"term contract" means at
least a five-year contract that is presumptively renewable or other
arrangement sufficient to ensure academic freedom. During the
initial long-term contract or any renewal period, the contract may
be terminated for good cause, including termination or material
modification of the entire clinical program.

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405-8. 3 Now that you have successfully been appointed


following a full review, future reviews will have the "for cause
only'' removal standard set forth in the ABA Standards.
Under ABA policies, this standard means you may only be
denied reappointment for cause such as dishonesty, failure
to report to work or some other equally egregious action.
The "for good cause" standard is meant to be similar to that
term as applied when dealing with tenured faculty and is
intended to ensure academic freedom.

This is a 5-year contract, intended to comply with the


relevant ABA accreditation standards. Because current
SUNY policies only provide for 3-year contract terms, 4 the
Dean will provide a 2-year administrative extension at the
end of every 3-year period. The Dean for the purpose of
maintaining compliance with the mandate of the law school's
accrediting agency will do all such 2-year extensions
routinely. If SUNY allows the law school to grant 5-year
contracts in order to comply more directly with the ABA, the
automatic 2-year extensions will be discontinued and all
contract renewals will be for 5-years. The 5-year contract
renewals will alternate between the Dean and the Faculty's
Promotion & Tenure Committee, unless the Faculty, in the
course of updating its personnel procedures for clinical
professors, decides to cede its ro!e to the Dean, in which
case the Dean will do all 5-year renewals.

Your current contract term as Clinical Professor extends


from 9/1/2006-8/31/2009, and your current salary rate is
$95,000, At the expiration of this term, the Dean will extend

3 Interpretation 405-8 provides:

A law school shall afford to full-time clinical faculty members


participation in faculty meetings, committees, and other aspects of
law school governance in a manner reasonably similar to other
full-time faculty members ....

Dkt. #56-20, p.7.

4 SUNY policy provides that "a term appointment shall be an appointment for a specified

period of not more than three years which shall automatically expire at the end of the period
unless terminated earlier because of resignation, retirement or termination." Dkt. #56-1, p.24.
"[T)erm appointments may be renewed ... for successive periods of not more than three years
each." Dkt. #56-1, p.25. "No term appointment, of itself, shall be deemed to create any manner
of legal right, interest or expectancy in any other appointment or renewal." Dkt. #56-1, p.25.

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Docurnent
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your contract for 2-years, or from 9/ 1/2009-8/31/2011, to


provide the 5-year contract term mandated by the ABA. The
Dean will perform the first 5-year renewal of your contract in
2011-2012, followed by a second 5-year renewal, performed
by the Faculty's Promotion & Tenure Committee in 2016-
2017. All subsequent 5-year renewals at the expiration of
each term wHI alternate in this format between the Dean and
the Faculty. The renewals wHI incorporate al! the terms of
the preceding contracts and this letter unless both parties
agree to new terms. All reviews and rnnewals will comply
with the ABA's accreditation standards, particularly standard
405(c) and all accompanying interpretations, as well as with
the implementation of those requirements set forth in this
letter. A copy of standard 405(c) is attached to this letter for
reference.

I am additionally renewing your administrative appointment


as Director of Research and Writing. I want to sincerely
thank you for your work as Director and look forward to youi
continued leadership of the program. This is a decanal
administrative appointment and is not part of the faculty
review process. The Dean will renew this appointment in 5-
year increments unless there is good cause for an earlier
review or as a result of mutual agreement.

A change in structure or staffing of the law schoors research


and writing program will not equate with "for good cause" to
terminate or not renew your contract since your contract as
Clinical Professor is separate from your administrative
appointment as Director of Research and Writing. Should
your appointment as Director of Research and Writing end,
you would still maintain your position as Clinical Professor.
In that capacity, without the administrative workload as
Director of Research and Writing, you would be expected to
teach two courses each semester as per the normal
teaching load of all faculty. Those courses could be writing
courses, IP courses or whatever teaching !oad you mutually
agree upon with the Dean and Vice Dean for Academic
Affairs at the time.

Dkt. #63-3, pp. 7-8. Mr. Malkan accepted the appointment as Clinical Professor and

the administrative appointment as Director of Research and Writing on November 16,

2006. Dkt. #63-3, p.8.

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Document

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On October 30, 2007, plaintiff signed a SUNY Buffalo Human Resources

Appointment Data Sheet provided to him pursuant to UB President John B. Simpson's

appointment letter which provided plaintiff a term appointment to the rank of Clinical

Professor, effective September 6, 2007 through August 31, 2009. Dkt #56-16 & Dkt

#63-8, ml 29-30.

Makau Mutua was appointed Interim Dean of the Law Schoof in

December of 2007. Dkt #63-8, 1140. Effective March 13, 2008, Dean Mutua relieved

Mr. Malkan of his duties as Director of the Research and Writing Program. Dkt. #56-21,

p.4. By letter dated August 28, 2008, Dean Mutua advised Mr. Malkan as follows:

In accordance with the Policies of the Board of Trustees, i


regret to inform you that your three-year term appointment
as Clinical Professor ending on August 31, 2009 in the Law
School will not be renewed. As such, your last day of work
wii! be May 15, 2009 ....

As you know, the Law School has terminated the Research


and Writing Program such as it was and under which you
were hired as Director and Clinical Professor and is
replacing it with the Skills Program to be headed by a
tenured faculty member. The position of Director of
Research and Writing does not now exist. ...

I have carefuliy reviewed the October 19, 2006 letter of


appointment issued to you by former Dean Nils R. Olsen.
The letter states that it was written to comport with ABA
rules and notes that you could only be terminated as Clinical
Professor "for cause only" or "for good cause." The official
interpretation of ABA Rule 405 states that a clinical
professor "may be terminated only for good cause, including
termination or material modification of the entire clinical
program." The termination of the Research and Writing
Program and its replacement by the Skills Program meet the
requirements of this rule.

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In addition, I note that Dean Olsen described your


appointment as a "five-year contract." Such a five-year
appointment is not permitted under SUNY Board of Trustees
Policies.

***

Dkt. #63-2, p.67. Mr. Malkan continued to teach at the Law School through the Spring

Semester of 2009. Dkt. #63-8, ~ 41.

Plaintiff commenced this action pursuant to 42 U.S.C. 1983, alleging

that defendant Mutua deprived plaintiff of his property interest tn a "405(c}-qualified,

presumptively renewable contract and university title/rank of full clinical professor"

without due process, to wit, review by the Committee on Clinical Promotion and
Renewal {"CCPR"). Dkt. #1.

DISCUSSION AND ANALYSIS

Summary Judgment

Summary judgment is appropriate "if the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law." Fed.R.Civ.P. 56(c). ~In reaching this determination, the

court must assess whether there are any material factual issues to be tried while

resolving ambiguities and drawing reasonable inferences against the moving party."

Thomas v. Irvin, 981 F. Supp. 794, 798 {W.D.N.Y. 1997) (internal citations omitted).

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487

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A fact is "material" on!y if it has some effect on the outcome of the suit

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see Catanzaro v. Weiden,

140 91, 93 (2d Cir. 1998). A dispute regarding a material fact is genuine "if the

evidence is such that a reasonable jury could return a verdict for the nonmoving party."

Anderson, 477 U.S. at 248; see Bryant v. Maffucci, 923 F.2d 979 (2d Cir.), cert. denied,

502 U.S. 849 (1991 ).

Once the moving party has met its burden of "demonstrating the absence

of a genuine issue of material fact, the nonmoving party must come forward with

enough evidence to support a jury verdict in its favor, and the motion will not be

defeated merely upon a 'metaphysical doubt' concerning the facts, or on the basts of

conjecture or surmise." Bryant, 923 F.2d at 982 (internal citations omitted). A party

seeking to defeat a motion for summary judgment

must do more than make broad factual allegations and


invoke the appropriate statute. The [party] must also show,
by affidavits or as otherwise provided in Rule 56 of the
Federal Rules of Civil Procedure, that there are specific
factual issues that can only be resolved at trial.

Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).

Due P;ocess Cfaim

Defendant argues that plaintiff did not possess a property interest in his

continued employment because the terms and conditions set forth in employment
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l
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and prohibiting any expectation of any other appointment or renewaL Dkt. #54-15,

pp.8-16; Dkt #57, pp.4-5 & Dkt. #69, p.2.

Plaintiff responds that his agreement with Dean Olsen afforded him a

protected property interest in his position as Clinical Professor as required by ABA

Standard 405(c). Dkt. #61, pp.4-10.

To state a claim under 42 U.S.C. 1983, a plaintiff must allege facts

indicating that some official action has caused the plaintiff to be deprived of his

constitutional rights. Zherka v. Amicone, 634 F.3d 642, 644 (2d Cir. 2011 ); See Sykes

v. James, 13 F.3d 515, 519 (2d Cir. 1993) ("Section 1983 itself creates no substantive

rights; lt provides only a procedure for redress for the deprivation of rights established

The Due Process Clause of the Fourteenth Amendment to the United

States Constitution provides that "[n]o State shall ... deprive any person of life, liberty,

or property, without due process of law ... " U.S. CONST. amend. XIV. To prevail on

a Fourteenth Amendment Due Process claim pursuant to 42 U.S.C. 1983, the plaintiff

must demonstrate that he possessed a protected liberty or property Interest and that he

was deprived of that interest without due process. McMenemy v. City of Rochester,

241 F.3d 286 (2d Cir. 2001 ). "The threshold issue is always whether the plaintiff

has a property or liberty interest protected by the Constitution." Narumanchi v. Board of

of Conn. State Univ., 850 F.2d 70, 72 (2d Cir. 1988).

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"Property interests are not created by the Constitution, they are created

and their dimensions are defined by existing rules or understandings that stem from an

independent source such as state law - rules or understandings that secure certain

benefits and that support claims of entitlement to those benefits." Id.; See Baden v.

Koch, 638 F.2d 486, 489 (2d Cir. 1980) ("property right must come from either state law

or, in its absence, from mutual understandings of the parties.").

To have a property interest in a benefit, a person clearly


must have more than an abstract need or desire for it. He
must have more than a unilateral expectation of it. He must,
instead, have a legitimate claim of entitlement to ft.

Board of Regents of State Colleges v. Roth, 408 U.S, 564, 577 (1972).

As set forth in New York's Compilation of Codes, Rules and Regulations,

SUNY Policies of the Board of Trustees provide that "a term appointment shall be an

appointment for a specified period of not more than three years, which shall

automatically expire at the end of that period unless terminated earlier because of

resignation, retirement or termination." 8 N.Y.C.RR. 335.10; See 8 N.Y.C.R.R.

338.2 ("The services of academic and professional employees having term

appointments shall cease automatically at the end of their specified terms.

Furthermore, "[n]o term appointment, of itself, shall be deemed to create any manner of

legal right, interest or expectancy in any other appointment or renewal." 8 N.Y,CR.R.

335.10.

Plaintiff argues that "of ltse!f' suggests that other agreements can create

an Interest" in an appointment or renewaL Dkt. #61, p.3!. However, is

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universally agreed that the mere expectancy of tenure or renewed employment does

not give rise to a property interest protected by U.S. Constitution." Gotiob v.

Beyard, 837 F. Supp.26, 28 (D. Conn. 1993). Thus, whatever the intent of the

agreement between Dean Olsen and Mr. Malkan, the Court cannot permit the parties to

circumvent the rules and regulations applicable to term appointments in an attempt to

afford plaintiff the protected property interest of a continuing appointment under the

label of a term appointment !n other words, plaintiff can have no protected property

interest in continued employment beyond that which is provided for term appointments

by New York's Codes, Rules and Regulations. See Hawkins v. Steingut, 829 F.2d 317,

321 (2d Cir. 1987) ("controlling state law created a 'legitimate claim of entitlement' only

during tile seven-year term of appointment" set forth in New York's Workers'

Compensation Law}; Chu v. Schweiker, 690 F.2d 330, 334 (2d Cir. 1982) (agreement

cannot create property interest where the statute provides that commission could be

terminated at any time); Baden, 638 F.2d at 492 (collecting cases holding "that mutual

understandings and customs could not create a property interest for purposes of due

process when they are contrary to the express provisions of regulations and statutes).

Since plaintiff remained employed for the duration of the term of his appointment, it is

recommended that defendant's motion for summary judgment be granted.

C_QN~!,,!JSION

the foregoing reasons, it is recommended that defendant's motion for

summary .11.-.1ma1n1 (Dkt. be granted.

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Therefore, it is hereby ORDERED pursuant to 28 U.S.C. 636(b)(1) that:

This Report, Recommendation and Order be filed with the Clerk of the

Court.

ANY OBJECTIONS to this Report, Recommendation and Order must be

filed with the Clerk of this Court within fourteen (14) days after receipt of a copy of this

Report, Recommendation and Order in accordance with the above statute, Fed.R.Civ.P.

72(b) and Local Rule 72(b).

The district judge will ordinarily refuse to consider de novo arguments, case

law and/or evidentiary material which could have been, but were not presented to the

magistrate judge in the first instance. See, e.g., Patterson-Leitch Co. v. Massachusetts

Mun. Wholesale Electric Co., 840 F.2d 985 (1st Cir. 1988).

Failure to file objections within the specified time or to request an extension

of such time waives the right to appeal the District Court's Order. Thomas v. Am, 474

U.S. 140, 106 S. Ct. 466, 88 L. Ed.2d 435 (1985}; Wesolek v. Canadair Ltd., 838 F.2d 55

(2d Cir. 1988).

The parties are reminded that, pursuant to Rule 72(b) of the Local Rules for

the Western District of New York, "written objections shall specifically identify the portions

of the proposed findings and recommendations to which objection is made and the basis

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for such objection and shall be supported by legal authority." Faiiure to comQ!y with the

12rovtsions of Rule 72(b) may result in the District Judge's refusal to consider the

The Clerk is hereby directed to send a copy of this Report,

Recommendation and Order to the attorneys for the parties.

SO ORDERED.

DATED: Buffalo, New York


December 1, 2015

sf H. Kenneth Scnroec[<?r_,_.ft,_
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge

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UNITED STATES DISTRICT COURT


WESTERN DISTRICT OF NEW YORK

JEFFREY MALKAN,

Plaintiff,
v.
12-CV-0236A{S r)
MAKAU W. MUTUA, et al.,

Defendants.

REPORT, RECOMMENDATION AND ORDER

This case was referred to the undersigned by the Hon. Richard J. Arcara,

in accordance with 28 U.S.C. 636(b), for all pretrial matters and to hear and report

upon dispositive motions. Dkt. #22.

Currently before the Court is Jeffrey Malkan's motion for sanctions against

defendant Makau Mutua and his attorney, Assistant Attorney General ("AAG"), David

Sleight (Dkt. #70), and Makau W. Mutua's motion for sanctions against Jeffrey Malkan

his attorney, Rick Ostrove, and Leeds Brown Law, P.C. Dkt. #83. For the following

reasons, it is recommended that sanctions be denied as to Mr. Mutua and AAG Sleight

and that sanctions be imposed against Mr. Malkan and Mr. Ostrove.

Mr. Malkan commenced employment as an Associate

and Director of Research and Writing for the State University of New ("SUNY")

Buffalo Law School in the Fall of 2000. Dkt. #70-2, p.7.


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On April 28, 2006, the Committee on Clinical Promotion and Renewal

("CCPR"), met to discuss the promotion of ProfessOi Malkan to Clinical Professor. Dkt.

#70-2, p.39, 'fl 4. The fo!fowing faculty were in attendance: Makau Mutua, Susan

Mangold, Diane Avery, Errol Meidinger, Elizabeth Mensch, Fred Konefsky, George

Kannar, Tony Szczygiel, Rob Steinfeld, Rebecca French, Bert Westbrook, Shubha

Ghosh, Janet Lindgren, Marcus Dubber, Stephanie Phillips, Barry Boyer, Jim Gardner,

Guyora sinder and Isabel Marcus. Dkt #70-2, pp.15-17.

Professor Mangold, who chaired the meeting due to the absence of Dean

Olsen, testified at her deposition that there was "a iot of discussion about the Research

and Writing Program" at the meeting. Dkt. #70-2, p.27. Professor Steinfeld testified

that

it was a !ong contentious meeting; there were strong


opponents of his promotion. Went on for a long time and
the way I recollect things, after a certain amount of time had
gone by and there was confusion in the meeting having to
do with the research and writing program versus Professor
Malkan's promotion and at a certain point ! believe it was I
who made a motion to separate the two decisions. That is,
one vote ... for promotion and tenure and another vote on
what to do about the structure of legal research and writing.
What I remember about that is that the vote - there was a
vote in favor of Professor Malkan's promotion to clinical
professor. !twas a close vote I remember. It was by one or
two votes. And when lt came to deciding upon what was to
be done about the research and writing program, the ...
Committee voted to study it and let it go on for another year
and then in a year come back and consider what was to be
done about the research and writing program.

Dkt #70-2, p.34. Professor Avery similarly testified that the meeting became

acrimonious and that the CCPR decided to bifurcate the issue of Professor Malkan's
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promotiOn to Clinical Professor from the discussion of the Research and Writing

Program. Dkt #70-2, pp.14 & 17. Professor Avery's notes indicate that the vote was 9

in favor of promoting Professor Malkan to the poslt!on of Clinical Professor, with seven

opposed and three abstentions. Dkt. #70-2, p. 14. Professor French, Professor Ghosh,

Professor Konefsky, Professor Mangold, Professor Marcus and Professor Steinfeld

each declare that the CCPR voted by secret ballot to recommend that Mr. Malkan be

promoted to Clinical Professor. Dkt #70-2, pp.41, 43, 45, 47, 49 & 53.

Professor Mutua testified at his deposition that

lt was a very heated meeting, but I think people ... were


concerned that the program was not doing what it should
have done for our students, that was the overwhelming
concern of the faculty members. I think that . , , people felt
that Jeff should be removed from that position so that we
could find someone who could .. , lead a good program for
l"'H
vu~
1r- ~1 u"'iontc-
...:Jt.VL'w!I...,.~ 11.<J.

So the discussion continued and at some point, I think


people began to feel that although we felt that Jeff should be
removed, that we should not simply throw him out into the
street immediately, that we should give him a year, a
terminal year and then instruct or ask the Dean to form a
faculty committee to study the program and come back with
recommendations of how the program could be recreated.

Dkt. #70-2, p.57. Thus, Professor Mutua recalled that the CCPR voted

to recommend to the Dean that he give Mr. Malkan a


terminal one year appointment and then establish a
committee to study the program and make
recommendations for change.

Dkt. p.58. Professor Mutua reiterated that he remembered clearly" that

"[tJhere was only one vote, which was to extend him for another year as the

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program." Dkt. #70-2, p.61. He testified that the vote

was very dose ... something like 6 to 5 with maybe two


abstentions. I can't recall, something like that. Because I
remember someone asking whether a 6 to 5 vote with two
abstentions was an affirmative vote.

Dkt. #70-2, p.59. Professor Mutua couldn't recall who asked that question, but did

"remember the person who answered the question was the former President Bil!

Greiner who said yes, it's an affirmative vote." Dkt. #70-2, p.59. Professor Avery

declares that Professor William Greiner was not in attendance at this meeting. Dkt

#70-2, p.40.

By letter dated October 19, 2006, Dean Olsen advised Professor Malkan

of his promotion to Clinical Professor and the renewal of his appointment as Director of

Research and Writing. Dkt. #63~3, pp. 7-8.

Professor Mutua was appointed Interim Dean of the Law School in

December of 2007. Dkt #63-8, 1T 40. Effective March 13, 2008, Dean Mutua relieved

Professor Malkan of his duties as Director of the Research and Writing Program. Dkt.

#56-21, p.4. By dated August 28, 2008, Dean Mufua advised Professor Malkan

that his three-year term appointment as Clinical Professor ending on August 31, 2009

would not renewed and that his last day of work would be May 15, 2009. Dkt. #63-2,

The United University New York State United AFT,

Local 2190, AFL-CiO ("Union"), filed an improper


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Malkan's behalf, alleging that the Law School violated the Public Employees' Fair

Employment Act when it not renew his appointment as Clinical Professor. Dkt #'70-

3, p.8. Specifically, the Union alleged that Dean Mutua decided not to renew Professor

Malkan's appointment as Clinical Professor in retaliation for Professor Malkan seeking

the Union's assistance to meet with Dean Mutua regarding his termination as Director

of the Research and Writing Program. Dkt. #72-1, pp.4-5.

At the Public Employee Relations Board ("PERB"), hearing on April 1,

2010, Dean Mutua testified regarding the CCPR meeting on April 28, 2006 as follows:

The meeting began on a note of controversy, in which


faculty members argued that the purpose of the meeting
was not clear. The reason for that was because faculty
members asked how Jeff Malkan could be promoted from an
assoclate clinical professor to a full clinical professor when
he was not teaching in clinics in the first place, and many
questioned \rvhy he had been appointed in the first place or
been given the title of an associate clinical professor when
he was not a clinical professor. But that discussion was ...
put aside and we focused our attention on discussing Jeff
Malkan's suitability as director of the research and writing
program and that discussion was very heated. Faculty
members were disappointed about the nature of this
particular program. I can say that I have not been in many
faculty meetings where emotions ran so high and, you know,
much of the angst was about why the dean and the faculty
had not responded to the very poor state of the legal
research and writing program and why no one had, you
know, brought up the matter of Jeff Malkan's leadership of
the program to a faculty meeting for discussion. It was felt
by many that ... Jeff Malkan should not continue to be
director of this program, that we should not reappoint him
because he had failed utterly as director of the prograrn, to
lead it, and that we should scrap the program and start from
scratch by rethinking the entire program,.

So this particular meeting resolved two things. One, that Mr.


Jeff Malkan should be given an additional year as director of

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the program, after which we would look for a new director of


the program. The reason for this additional year was to give
us more time to look for a new director and to give Mr.
Ma!kan time to look for employment elsewhere. The second
resolution of that particular faculty meeting was that the
dean would be asked to appoint a committee of the faculty
to study the program and to reconstruct it from the ground
up. These were the two resolutions of this particular
meeting.

Dkt. #72-2, pp.3-4. When asked if the faculty took any action regarding Professor

Malkan's promotion, Dean Mutua responded:

I do not recall the faculty acting on that part of ... the


agenda of the meeting. The discussion regarding Jeff
Malkan's directorship of the program was so heated and ...
so expressive ... that the faculty was consumed at that
particular issue and once we decided on these two
resolutions, the meeting broke up.

Dkt #72-2, p.5. Dean Mutua admitted that he

was one of the main advocates for the position that we


should terminate Jeff tv1alkan immediately) not even granting
him an additional year to transition. I made the argument
before the faculty that we should not give him one more
year, because we did not have an additional year to waste
on our students, without giving them a quality product in this
particular program. I felt that we would be wasting our
students' resources and time to allow him to continue as
director of the program. I made this particular case. The
faculty in its wisdom decided ... to give him one year, and
so there was disagreement between myself and most of the
faculty on that situation.

Dkt. #72-2, p.5. Dean Mutua reiterated that the Committee "dld not vote on t1is faculty

appointment" Dkt #72-2, p.9.

The Administrative Law Judge's ("ALJ's"), Decision recounted Dean

Mutua's testimony regarding the CCPR meeting, but noted that the actions

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"were not binding on the Dean," and that plaintiff was, in fact, appointed to the position

of Clinical Professor. Dkt. #70-3, p.10. As to the merits of the charge, the ALJ

determined that the evidence supported the State's argument that Mr. Malkan was non-

renewed because the Program was being replaced by a more comprehensive Legal

Skills Program rather than as a pretext masking some inappropriate motive for Mr.

Malkan's non-renewal. Dkt. #70-3, pp.29-30. As a result of this determination, the

PERB charge was dismissed. Dkt. #70-3, p.30.

By letter dated November 22, 2011, Mr. Malkan advised the PERB ALJ

"that Makau Mutua committed perjury in your courtroom on March 31 and April 1,

2010." Dkt. #84-1, p.2. By letter dated November 28, 2011, plaintiff advised the Hon.

Jeremiah Moriarty, Ill, New York State Court of Claims, 1 that he was "accusing Makau

Mutua of committing perjury in the PERS proceeding that is running parallel to this

case." Dkt. #84-1, p.3.

On March 23, 2012, plaintiff commenced this action pursuant to 42 U.S.C.

1983, alleging that Dean Mutua deprived plaintiff of his property interest in a "405(c)-

1 Plaintiff filed two claims alleging that the State had breached an employment

agreement between plaintiff and Dean Olsen. Dkt. #72, 'IT 19, n.5. Plaintiff's initial claim was
dismissed for failure to state the total sum claimed and his second claim was dismissed as
untimely. Dkt. #73-6, p.4. Plaintiff's application to file a late claim was denied by Decision and
Order entered March 23, 2015 for failure to establish merit. Dkt. #73-6, p.7. Specifically, the
Court of Claims determined, inter alia, that ~it was the president of the University at Buffalo, and
not the dean of the School of Law, who served as the chief administrative officer ... and
possessed the power to make term appointments." Dkt. #73-6, p.8. In any event, the Court of
Claims noted that the maximum duration of a term appointment was three years, with an
automatic expiration at the end of the designated term, without legal right, interest or
expectancy to any other appointment or renewal. Dkt. #73-6, p.8.

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qualified, presumptively renewable contract and university title/rank of full clinical

professor" without due process, to wit, review by the Committee on Clinical Promotion
and Renewal ("CCPR"). Dkt. #1.

By letter dated September 5, 2012, plaintiff informed SUNY Buffalo

Provost Charles Zukoski that

On two previous occasions, November 11, 2011 and June


18, 2012, I informed President Satish K. Tripathi that Dean
Makau W. Mutua committed perjury in the first degree at the
hearing of the PublicEmployment Re~ations Board {PERS)
in Albany on March 31 and April 1, 2010 .... At this point, I
beleive President Tripathi is complicit in the cover-up of a
crime by a high-ranking member of his administration, which
could have calamitous consequences for himself, for the law
school, and for the university.

Dkt. #84-1, p.5.

By letter dated September 13, 2012, the AAG requested of counsel for

plaintiff that plaintiff be instructed to cease "improper contact and cornrnunication 2 with

the Defendants, SUNY's staff including the President, Dean and Provost and some

thirty members of the SUNY staff." Dkt. #70-4, p.16.

By letter dated November 20, 2012, Mr. Ostrove advised AAG Sleight that

more than fifteen of the responses contained in defendants' Answer violated Rule 11.

2 Samples of Mr. Malkan's letters and e-mails to SUNY staff, SUNY Buffalo Council,

SUNY Buffalo Law School Dean's Advisory Council, the Attorney General's Office and media
outlets accusing Dean Mutua of subverting the judicial process, swearing to false testimony,
committing perjury, and engaging in criminal misconduct and defamation, and accusing SUNY
officials and the AAG of complicity, are attached at Dkt. #72-5; Dkt. #84-1: Dkt. #84-2; Dkt.
#92-1 & Dkt. #94-1.

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Okt #70-4, pp.2 & 4-5. As relevant to the instant motion, Mr. Ostrove argued with

respect to paragraph j 1 that "it is within Defendants' knowledge whether Maikan was

recommended to full Clinical Professor especially considering that Mutua testified

previously to this very issue." Dkt. # 70-4, p.4.

On February 27, 2013, plaintiff posted a copy of his statement in

anticipation of mediation on the Internet, where it remains available for public view. See

http://www.scribd.com/doc/2177614 77 f statement-of-facts-and-damages-submitted-2-

27-2013. Mediation was conducted on March 1, 2013 and April 2, 2013. Dkt #34 &

Dkt. #35.

An article in the SUNY Buffalo Spectrum published April 28, 2013 detailed

~v1r~ t..,1aikinis accusations in this la\AJsu\t and outHned concerns of La\111 School faculty

regarding Dean Mutua's leadership. Dkt. #84-1, pp.11-13. Mr. Malkan is also reported

to have discussed the mediation proceedings with the Spectrum:

Malkan said he was there with his attorneys, along with


Ewing, SUNY Counsel Jim Jarvis, Esq., and Assistant
Attorney General David Sleight.

According to Malkan, Mutua did not show up to the


mediation, claiming that he had more important business
elsewhere. Malkan claims this is a violation of the rules.

Malkan also claims the attorney general asked for time until
March 21 to come back with a settlement offer but later
asked for an extension until April 2. The attorney general
informed Malkan that UB declined to make any settlement
offer, saying the case will be going to trial in federal court
before the end of 2013.

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"This is disappointing, of course, because over the five years


of this dispute SUNY Buffalo has refused to make any
settlement offer at ail, not one dollar, and has blocked me
from obtaining a teaching job at any other law school,"
Malkan wrote in an email. "I'm also afraid that the trial in
federal court will be harmful to the law school's reputation
because the facts that will be revealed will not be flattering."

Dkt. #84-1, p.12.

Dean Mutua moved for summary judgment ln this act"1on on June 7, 2014.

Dkt. #55. In his Statement of Undisputed Facts, Dean Mutua asserted that:

There ls sharp disagreement regarding what occurred at the


meeting and what exactly the Committee voted on. Malkan
and several third party witnesses deposed in this action
claim that a vote was taken on whether the Committee
should recommend to the Dean that he be promoted to full
Clinical Professor, and that the vote was in his favor.
Defendant Matua [sic], on the other [hand], recalls that the
meeting quickly devolved to a discussion of whether Malkan
should continue as Director of the Research and Writing
Program, and that a vote was eventually taken on whether
the Committee would recommend that the Dean offer
Malkan a terminal one year appointment, and that vote
came out in Malkan's favor.

Dkt. #56, ~ 29.

On August 19, 2014, Professor Ewing 3 and seven other law school faculty

members filed a complaint against Dean Mutua with the New York State Appellate

Division, Fourth Department Attorney Grievance Committee. Dkt #74, '{111. In

response to that complaint, Dean Mutua advised the Grievance that

3 Professor Mutua notes that he removed Professor from an administrative


appointment as Vice Dean for Academic Affairs on May 27, 2014. Dkt #74, '1rn 7 & 10.

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l have testified that I was present at the meeting of the


Committee on Clinical Promotion and Renewal (CCPR) at
SUNY Buffaio Law School on April 28, 2006 at which Jeffrey
Malkan's employment was discussed. I recall, and repeat
here for clarity, that the CCPR only voted to authorize the
Dean of the Law School to offer Malkan a one-year terminal
contract as Director of the Research and Writing Program
because he was universally viewed as incompetent
According to my recollection, the CCPR did not hold a vote
on a second question of whether Malkan would have been
considered for promotion from Associate Clinical Professor
to full Clinical Professor. I have maintained throughout that
Malkan could not be legally promoted to the rank of Clinical
Professor since he was not a clinician and had never taught
in the clinics. The CCPR meeting was heated and
rancorous and broke up after the vote to grant Malkan a
terminal one-year contract These are the facts as I
remember them and as I have truthfully testified in several
legal proceedings. By pracflce and traditlon of the Law
School, no formal or official written record of CCPR
meetings is kept.

Dkt. #74-3, p.2.

On September 22, 2014, SUNY at Buffalo Provost Charles Zukoski

announced Dean Mutua's resignation as Dean of SUNY Buffalo Law School, effective

December 19, 2014. http://www.buffalo.edu/provost/messapes/mutua.htmL

On October 18, 2014, Mr. Malkan sent a letter to AAG Sleight, copied to

Mr. Ostrove, attaching a copy of his complaint to the Public Integrity Bureau of the

District Attorney of Albany County because:

You have stated in your filings to the Western District


that you know are untrue, on the word of your ciient, against
all other evidence, and done no investigation at all. I believe
that you have violated Rule 11 of the Federal Rules of Civil
Procedure and I have instructed my attorneys to file a
motion for sanctions against you.

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I also believe that you have violated numerous provisions of


the New York Rules of Professional Conduct and have
thereby assisted your client in perpetrating a fraud on this
Court.

Finally, you are aware that your client gave the same false
testimony to a state administrative agency, PERS, on March
31-April 1 . 2010. This false testimony had the effect of
causing a miscarriage of justice.

I am not threatening to prosecute Dean Mutua. I have filed


charges that I expect will result in his prosecution. He has
committed a crime against the judicial process for which he
must answer, entirely apart from my civil actions in the Court
of Claims and this court.

Dkt #72-6, p.2.

By e-mail dated October 23, 2014, AAG Sleight advised Mr. Ostrove:

r presume you know about your client's October 18, 2014


letter to me. In it he advised me that he believes that I have
stated facts in my court submissions, on the word of my
client, that I know to be untrue. He goes on to state that he
has instructed the two of you to file a Rule 11 motion for
sanctions against me. He then posted this letter on a llst
server and sent an e-mail to the entire faculty of the UB Law
School and various UB administrators with a link to the
letter.

Needless to say, I am not pleased that your client has now


decided to expand his sphere of rage and vitriol by engaging
in personal, public attacks on my integrity as a lawyer when I
am just doing my job and representing my client pursuant to
the obligations that I owe him as an attorney ....

What is even more alarming than your c!ient's threat of a


frivolous Rule 11 sanctions motion is his intimation that ...
you may actually be considering bringing such a motion on
his behalf.

Dkt. #70-3, p.34.

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By e-rnaH dated October 27, 2014, Mr. Ostrove advised AAG Sleight that:

Rule 3.3 precludes you from using or offering evidence that


you "know" to be false. If you "know" the testimony is false,
you also have a duty to remedy the false testimony and not
submit it to a court. Below you have not argued that you
don't "know" your ciient's testimony to be false .

However, I assume you may argue that you don't "know" it


[sic] false based on "the word" of your client. Rufe 3.3 does
not allow you to blindly accept the word your client
According to Comment 8, a lawyer "cannot ignore an
obvious falsehood." Comment 8 indicates that you have to
have a "reasonable belief' that the testimony is truthful.
NYCLA Opinion No. 741 (attached) sheds additional light on
the issue. !t provides a discussion of "knowledge" in this
context Under this opinion, which cites a Second Circuit
Opinion, a lawyer cannot rely on his client's statements if it is
unreasonable to do so. See aiso ln re Grivance [sic]
Committee of the United States District, District of
Connecticut, John Doe, 847 F.2d 63 (applying an
objective test to whether a lawyer has actual knowledge by
noting that the lawyer must have a "reasonable" belief that
his client is being truthful). The objective portion of the
"knowledge" rule is necessary, otherwise everyone would
just say they believe their client. regardless of how
unreasonable that belief may be.

Other than your client's "word," there ls no basis to believe


the truth of Mutua's statement. Given the overwhelming
evidence disputing your client's testimony, no reasonable
person could believe him ....

. . . RPC 1.0(k) specifically says that "knowledge may be


inferred from the circumstances." Having read the
overwhelming evidence disputing position, any
reasonable person would have to condude that Mutua
definitely iied.

ln your 56.1 you offered Mutua's false


as there was a sharp regarding
Malkan was promoted. ! vvith this case law and
remedy to give you a chance to this on own. I
with the that are in a
email. But, it ls your client's

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perjury which has put us both in this position. Obviously,


you will take whatever actions you think appropriate. But, I
suggest that before you decide how to proceed, you review
the information I have provided, carefully consider your
options, and possibly conduct additional legal research.

Dkt #70-3, pp.32-33.

e-mail dated November 3, 2014, AAG Sleight advised Mr. Ostrove that

I suggest you read Doe v. Federal Grievance Committee,


847 F.2d 57 (2d Cir. 1988), more closely, and also read
subsequent decisions that cite it, for a fuller understanding
of the knowledge standard. l also remind you that the
bringing of a baseless Rule 11 motion is in itself
sanctionable conduct

Dkt #70-3, p. 32.

By e-mail dated November 24, 2014, following receipt from plaintiff of an

e-mail accusing AAG Sleight of violating the Rules of Professional Conduct, AAG

him directly. Dkt #84-3.

dated December 5, 201 plaintiff advised Professor and


Mangold, as well as numerous other faculty members at SUNY Buffalo Law

School "I to find $25,000 by next to finance my 11 motion." 4 Dkt

Mr. Malkan's e-mail continued; "[t]he

has continued to the that I have to that my their own

Plaintiff subsequently declared that this $25,000 was the balance due as of that date
for the Firm's work on the summary motion. Dkt #88, 'ff 'IT 66 & 72

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wishes, hold the AAG personally responsible for the fraudulent pleadings he has

signed." Dkt. #73-3, p.2.

By e-mail dated February 20, 2015, Mr. Ostrove advised AAG Sleight:

I am convinced that you know your client has lied in two


proceedings about material issues. Any rational person
would easily reach that conclusion, despite your client's
"word." I am sorry that I have been put in the position to
force you to take action and I wish you corrected this without
warning. Nonetheless, here is one more, final warning: you
and your client have 21 days safe harbor to take corrective
actions before l file the attached motion.

Dkt. #70-3, p.37, Mr. Ostrove attached a copy of his Notice of Motion and

Memorandum of Law in Support of the Sanctions Motion to his e-mail. Dkt #70-3, p,37

& Dkt #70-7, p.13.

By letter dated March 12, 2015, AAG Sleight responded as fo!iows:

Your draft motion argues that I have violated Rule 11


because l cite Mr. Matua's [sic] allegedly perjurious
testimony in my Rule 56.1 statement As is clear from that
paragraph you reference, I am not citing Matua's [sic]
testimony or the testimony of the other deponents in this
action for the truth of the matter asserted; rather, I included
that paragraph and cite that testimony only for the purpose
of providing continuity to the narrative and to identify a fact
issue for the Court. I have never cited Matua's [sic]
testimony regarding what occurred at the Committee on
Clinical Promotion and Renewal meeting for the truth of the
matter asserted, nor would I, because, as our Summary
Judgment Motion reflects, we do not think it is relevant to the
legal issues in this case. While your client seems to be
obsessed with al! things Makau Matua and, ln particular,
what Mr. Matua [sic] says about what occurred at the
Committee on Clinical and Renewal it is
irrelevant to his due process claim. What is relevant is what
happened afterward.

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Our separate and independent grounds for summary


judgment are threefold. First, that your client did not have a
protected liberty interest because he did not have a
legitimate expectation of continued public employment
based on the letter agreement between him and Nils Olsen .
. . . Thus, we do not deny that your client was offered and
accepted a term appointment as a clinical professor that
expired on August 31, 2009 .... What we do deny, however,
is that your client had a legitimate expectation of continued
employment past August 31, 2009 based on his contract
with Olsen, because Of sen was prohibited by the SUNY
Board of Trustees' policies from offering him a term
appointment longer than three years, and your client knew it.

Your draft motion papers also misstate the !aw on the


knowledge standard applicable to both Rule 11 and RPC
3.3. As you acknowledge in your draft memo of law ...
there ls no case law interpreting the definition of "actual
knowledge" under RPC 1.0(k). There Is, however, a Second
Circuit decision that discussed the "actual knowledge"
standard and that case is binding precedent on our court. I
previously encouraged you to read the decision in In Re
Doe, 847 F.2d 57 (2d Cir. 1998), and cases that cite it, more
closely. Instead, you have either not done so, or you have
applied sophistry to its clear meaning in order to mold it to
your purposes. Doe does not support the proposition that a
lawyer's "actual knowledge" of a witness's false testimony is
judged by an objective standard. fn fact, to the contrary, it
supports the proposition that it is judged by a subjective
standard, that is, "actual knowledge." The Second Circuit in
Do~ approved of the definition used in Virginia for when
"actual knowledge" is clearly established. Id_ at 62.
'"[l]nformation is clearly established when the client
acknowledges to the attorney that he has perpetrated a
fraud on the court."' Id, (emphasis in original). That Is not
an objective standard. The Second Circuit went on to
cogently explain why actual knowledge had to be the
standard:

1' **

, .. Thus, in and all of the cases that I have found that


cite it for its interpretation of "actual knowledge," what courts
find determinative is whether evidence of actual intentional
misconduct has been brought to the attorney's attention.
[citing 6 cases].

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Additionally, New York's RPC is essentially the State's


adoption of the ABA Model Rules of Professional Conduct
(1983). In ABA Formal Opinion 87-353, the "actual
knowledge" standard is discussed .... That Opinion advises
that it will be "the unusual case" where the lawyer "does
know" that a client intends to commit perjury, and
that knowing can only be established by the clients "clearly
stated intention" to perjure himself. Id.

\!Vhere is your evidence in this case that I know that Mr.


Matua [sic] intentionally testified falsely at his deposition?
There is no evidence that Mr. Matua [sic] ever
acknowledged to anyone that his testimony was false, let
alone to me. In fact, his testimony at his deposition was
entirely consistent with the testimony he gave at the PERB
hearing. Ali you have here is one witness to an event that
remembers it one way and other witnesses that remember it
another way; which is the most usual of circumstances in
litigation where memory is involved. At best, this is evidence
that might lead me to suspect that Mr. Matua's [sic]
recollection of the event is not accurate: however it is not
evidence that leads me to believe he is Intentionally lying.
There is a distinction and you know this, or at least you
should. What you are doing here is asking me to weigh
evidence and assess the credibility of witnesses in order to
come to a conclusion on an issue of fact That is not my job
as counsel; that is the job of the trier of fact.

***

... if you proceed, I w!ll file a cross motion for sanctions against
you and your client. Your draft motion is frivoious, has no basis in
law or fact, and appears to serve no other purpose than to harass
and vex me.

Dkt. #73-5, pp.2-5.

On April 14, 2015, plaintifffiled his motion seeking sanctions against

Professor Mutua MG pursuant to Rule 1 the inherent power.

Dkt.

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In opposif1on to plaintiff's motion for sanctions, Professor Mutua declares

"unequivocally that l testified truthfully and to the best of my recollection at both

Plaintiff's PERS hearing and at my deposition in this case," Dkt. #74, irr 3.

On June 19, 2015, the Attorney General's Office served Mr, Ostrove with

a Notice of Motion seeking sanctions against Mr. Ostrove, Leeds Brown Law, P.C. and

Mr. Malkan, as well as a copy of AAG Sleight's letter, dated March 12, 2015, setting

forth the basis for defendant's motion for sanctions. Dkt. #84-5 & Dkt. #90, 1f 20.

By e-mail dated June 23, 2015, Mr. Malkin advised the faculty at US Law

School that he ''will defy any civil contempt citation entered against me, so you will

continue to receive information about this case throughout next year." Dkt. #84-2,

p.-140.

On June 26, 20'15, Mr. Malkan advised Mr. Ostrove that he intended to

terminate the services of Leeds Brown Law, P.C. Dkt. #90, 1f 22.

On July i5, 2015, counsel moved to withdraw and have the sanctions

motion deemed filed solely by plaintiff, prose, nunc pro tune. Dkt. #80. In doing so,

counsel declared that the "Firm and I wish to exercise our safe harbor rights." Dkt. #90,

~ 31. However, counsel further declared that

our safe harbor exercise Is unrelated to the merits of the


motion. Prior to filing our sanctions motion,
attorneys from the Firm and I reviewed the situation

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exceptionally carefully. We reviewed every case to which


the AG directed us as well as numerous other cases. I am
100% positive that the motion for sanctions is well grounded
in fact and law, and is therefore not frivolous.

Dkt. #80-1, 1f 5.

By Text Order entered July 16, 2015, the Court terminated Leeds Brovm

Law, P.C. as counsel for plaintiff but directed the Clerk of the Court to

identify Frederic D. Ostrove as an Interested Party so that he


continues to receive notice of electronic filings. Plaintiff's
request to deem the motion for sanctions as filed by plaintiff
nunc pro tune is denied. As the affiant to the Motion for
Sanctions, Mr. Ostrove ls granted perm'1ssion to respond to
defendant's anticipated motion for sanctions to the extent
that such motion may challenge Mr. Ostrove's conduct as
counsel on behalf of plaintiff prior to his withdrawal from this
action. The Clerk of the Court shall identify Plaintiff as
proceeding pro se and direct correspondence to plaintiff
at ... Saint James, New York 11780.

Dkt. #81.

On July 22, 2015, Mr. Malkan filed a declaration in support of his motion

for Ruie 11 sanctions against Professor Mutua and AAG Sieight, stating, e.g.,

The judicial process is based on the understanding that


there are undisputed facts that are accessible to the
common knowledge of responsible and mentally competent
human beings. That includes lawyers and law professors.
Everyone on the Law School faculty has actual knowledge
of what happened in the P&T Committee meeting, even if
they were not in the room, and so does Mr. Sleight.

" *

Any reasonable based on the record in this


and the related legal proceedings in state court would

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confirm that the evidence of Makau W. Mutua's perjury is not


just compelling, but conclusive. The truth is that former-
Dean Mutua committed perjury and that President Tripathi
obstructed justice in a manner that is strikingly similar to the
cover-up by the administration at Penn State University of its
athletic program's scandal.

Dkt. #82, ,-i 58. Mr. Malkan declares that despite "the benefit of hundreds of hours of

donated lega! work from the union and ... countless hours of my own legal time ... the

meter on my private attorneys ran to over $140,000 before I exhausted my last

resources earlier this summer.;; Dkt. #82, 1190. Mr. Malkan declares that he Is currently

"impecunious." Dkt. #82, 1[ 90.

On July 23, 2015, defendant flied his motion seeking sanctions against

Mr. Malkan, Mr. Ostrove and Leeds Brown Law, P.C., pursuant to Rule 11, 28 U.S.C.

1927 and the Court's inherent power. Dkt. #83. Defendant seeks dismissal of this

action with prejudice; an order directing plaintiff to cease his harassment of Mr. Mutua

and AAG Sleight; an order holding Mr. Malkan in civil contempt for his disclosure of

mediation proceedings; referral of Mr. Malkan and Mr. Ostrove for discipline due to

possible violations of the New York State Rules of Professional Conduct; and attorneys'

fees and costs, Dkt #83.

Fed. R. Civ. P. 11(a)

Rule 11 (a) of the Federal Rules of CivH Procedure that every

written motion and other paper be in

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the attorney's name -- or by a party personally if the party is unrepresented. The Rule

further provides that

By presenting to the court a pleading, written motion, or


other paper - whether by signing, filing, submitting, or later
advocating it - an attorney or unrepresented party certifies
that to the best of the person's knowledge, information, and
belief, formed after an inquiry reasonable under the
circumstances:

(1) it is not being presented for any improper purpose, such


as to harass, cause unnecessary delay, or needlessly
increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are


warranted by existing law or by a nonfrivolous argument for
extending, modifying, or reversing existing law or for
establishing new law;

(3) the factual contentions have evidentiary support or, if


specifically so identified, will likely have evidentiary support
after a reasonable opportunity for further invest'1gation or
discovery; and

(4) the denials of factua! contentions are \AJarranted on the


evidence or, if specifically so identified, are reasonably
based on belief or a lack of information .

Fed. R Civ. P. 11 (b). "A signature certifies to the court that the signer has read the

document, has conducted a reasonable inquiry into the facts and the law and is

satisfied that the document is well grounded in both, and is acting without any improper

motive." Business Guides, Inc. v. Chromatic Communications Enterprises, Inc., 498

U.S. 533, 542 (1991).

lf, after notice and a reasonable opportunity to respond, the court

that Rule 11 has been violated, the court may impose an

or party that violated the rule or is responsible for the

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violation. Fed. R. Civ. P. 11 (c). "A pleading, motion or paper violates Rule 11 if it is

frivolous, legally unreasonable, or factually without foundation, even though not signed

in subjective bad faith." Wechsler v. Hunt Health Systems, Ltd., 216 F. Supp.2d 347,

356 (S.D.N.Y. 2002). The appropriate standard ls "an objective standard of reasonable

inquiry." Business Guides, 498 U.S. at 554; See Fed.R.Civ.P.11 advisory committee.

"Rule i 1 is violated when it is dear under existing precedents that a

pleading has no chance of success and there is no reasonable argument to extend,

modify, or reverse the law as it stands." Corroon v. Reeve, 258 F.3d 86, 92 (2d Cir.

2001 ); See Oliveri v Thompson, 803 F.2d 1265, 1275 (2d Cir. 1986) (sanctions are

appropriate "when it appears that a competent attorney could not form the requisite

reasonable belief as to the validity of what 'is asserted ln the paper."), cert. denied sub.

nom Suffolk County v. Grascek, 480 U.S. 918 (1987). ln assessing wr1ether Rule 11

sanctions should be imposed, the court considers "whether the attorney has abused the

judicial process." Safe-Strap Co., Inc. v. Koala Corp., 270 F. Supp.2d 407, 417

(S.D.N.Y. 2003). If a party's motion for Rule 11 sanctions is not well grounded in fact or

law, or is filed for an improper purpose, a court may find itself in the position of

imposing Rule 11 sanctions on the moving party and/or his attorney. Id. at 421. "A

Rule 11 violation is ... a serious thing, and an accusation of such wrongdoing is

equally serious: Id.

"The decision whether to impose a sanction for a Rule 11(b) violation is ..

. committed to the district court's discretion." Perez v. Posse Comitatus, 373 F.3d 321,

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325 (2d Cir. 2004 }. Sanctions under Rule 11 are discretionary. /peon Collections LLC

v. Costco Wholesale Corp., 698 F.3d 58, 63 (2d Cir. 2012). "Once a court determines

that Rule 11 (b) has been violated, it may in its discretion impose sanctions limited to

what is 'sufficient to deter repetition of such conduct."' Margo v. Weiss, 213 F.3d 55, 64

(2000). Although dismissal should be imposed only in extreme circumstances, it is an

available remedy for Rule 11 violations. Safe-Strap, 270 F.Supp.2d at 418. Because

"the principal objective of the imposition of Rule 11 sanctions is not compensation of the

victimized party but rather the deterrence of baseless filing and the curbing of abuses,"

any monetary sanctions imposed should ordinarily be paid into the court as a penatty.

Caisse Nationale de Credit Agricole - CNCA, N. Y. Branch v. Va/cop, Inc., 28 F.3d 259,

266 (2d Cir. 1994).

28 u.s.c. 1927

28 U.S.C. 1927 provides that "[a]ny attorney ... who so multiplies the

proceedings in any case unreasonably and vexatiously may be required by the court to

satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred

because of such conduct." An award pursuant to this provision, which may be made

only against attorneys, "requires a clear showing of bad faith." Oliveri, 803 F .2d at

1273.

Inherent Power

"A district court's inherent power to sanction derives from the fact that

courts are 'vested, by their very creation, with power to impose silence, respect. and

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decorum, in their presence, and submission to their !awful mandates."' Schlaifer Nance

& Co. v. Estate of Warhol, 194 F.3d 323, 336 (2d Cir. 1999), quoting Chambers v.

NASCO, 501 U.S. 32, 43 (1991 ). "In order to impose sanctions pursuant to its inherent

power, a district court must find that (1) the challenged claim was without a colorable

basls and (2) the claim was brought In bad faith, i.e., motivated by improper purposes

such as harassmeni or delay." Id.; See Oliveri, 803 F.2d at 1272 (an award of sanction

under the court's inherent power may be imposed for actions taken "in bad faith,

vexatiously, wantonly, or for oppressive reasons.").

Plaintiff's Motion for Sanctions

Perjury

Plaintiff seeks sanctions pursuant to Rule 11 of the Federal Rules of Civil

Procedure and the Court's inherent powei to sanction attorneys for ethical violations

against Dean Mutua for perjuring himself during his testimony before PERB and at his

deposition and against AAG Sleight for utilizing Dean Mutua's perjurious testimony in a

Rule 56.1 Statement of Facts and implicitly relying upon it in defendants' Memorandum

of Law. Dkt. #70-7. Essentially, plaintiff argues that because eight non-party witnesses

testified that a vote was held to grant plaintiff a full clinical professorship, Dean Mutua's

testimony before PERB and at his deposition that no such vote was taken must have

been a lie. Dkt. #70-7, pp.5 & 20.

AAG Sleight argues that "just because witnesses' recollections may differ

on what happened during a particular incident does not necessarily mean that one of

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them is lying." Dkt. #75, p.4. AAG Sleight also argues that Dean Mutua's testimony

regarding the CPPR meeting is irrelevant to the legal issues raised before PERB and

this Court. Dkt. #72, p.4.

In determining what constitutes perjury, the courts "rely upon the definition

that has gained genera! acceptance and common understanding under the federal

criminal perjury statute, 18 U.S.C. 1621." United States v. Dunnigan, 507 U.S. 87, 94

(1993). As both plaintiff and his attorney should be aware, "[aJ witness testifying under

oath or affirmation violaies this statute if [heJ gives false testimony concerning a

rnateriai matter with the willful intent to provlde false testimony, rather than as a result

of confusion, mistake, or faulty memory." Id. "Differences in recollection alone do not

add up to perjury." United States v. Sanchez, 969 F.2d 1409, 1415 (2d Cir. 1992); See

United States v. Schlesinger, 438 F. Supp.2d 76, 106 (E.D.N.Y. 2006) ("Perjury is not

demonstrated by showing that testimony of a witness is inconsistent with the

statements of another witness."). Moreover, "[a] statement can be false without being

uttered with the scienter required to render it perjurious." Margo v. Weiss, 213 F.3d 55,

63 (2d Cir. 2000).

As there is no evidence before the Court to suggest anything other than

differing recollections of a meeting of tenured faculty on April 28, 2006, there is no basis

for the accusation perjury against Dean Mutua. Concomitantly, there is no evidence

to suggest that .AAG Sleight possesses actual knowledge that Professor Mutua ts lying

about his recollectlon of that meeting. AAG Sleight should not be maligned for

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accurately depicting witnesses' differing recollections of the meeting in his Statement of

Undisputed Material Facts. See Storey v. Cello Holdings, L.L.C., 347 F.3d 370, 388 (2d

Cir. 2003), ("With regard to factual contentions, 'sanctions may not be imposed unless a

particular allegation is utterly lacking in support."'), quoting O'Brien v. Alexander, 101

F.3d 1479, 1489 (2d Cir. 1996). In any event, as there is no disagreement over the fact

that plaintiff was promoted to the position of Clinical Professor, the events of April 28,

2006 are immaterial.

Rule ~.3 of the New York Rules of Professionai Conduct

Plaintiff seeks to impose sanctions against AAG Sleight pursuant to the

Court's inherent power based upon AAG Sleight's alleged violation of Rule 3.3 of the

New York Rules of Professional Conduct by submitting Mr. Mutua's perjured testimony

to the Court. Dkt. #70-7, p.20. Relying on the definition of knowledge set forth in Ruie

i .O(k), plaintiff argues that AAG Sleight's knowledge that Mr. Mutua's testimony is false

may be inferred from the circumstances. Dkt. #7Q ... 7, p.21.

Rule 3.3 of the New York Rules of Professional Conduct provides that a

lawyer shall not knowingly offer or use evidence that the lawyer knows to be false. N.Y.

Comp. Codes R & Regs. Ut. 1200.0, Rule 3.3(a)(3). The definitions for the New

York Rules of Professional Conduct provide that knowingly "denotes actual knowledge

of the fact in question." N.Y. Comp. Codes R. & tit 1 Rule 1 .O(k).

The definition also acknowledges that "[aJ person's knowiedge may be inferred from

circumstances. Id.

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In Doe v. Federal Grievance Committee, however, the Court of Appeals

for the Second Circuit determined that even subjective beliefs or strong suspicions that

a witness is lying are insufficient to meet the actual knowledge standard. 847 F.2d 57,

63 (2d Cir. 1998). In reaching this conclusion, the Court of Appeals explained that:

If attorneys were bound as part of their ethical duties to


report to the court each time they strongly suspected a
witness lied, courts wouid be inundated with such reports.
Court dockets would quickly become overburdened with
conducting these collateral proceedings which would
necessarily hold up the ultimate disposition of the underlying
action. We do not believe that the Code's drafters intended
to throw the court system into such a morass. Instead, it
seems tliat the only reasonable conclusion is that the
drafters intended disclosure of only that information which
the attorney reasonably knows to be a fact and which, when
combined with other facts in his knowledge, would clearly
establish the existence of a fraud on the tribunal.

To interpret the rule to mean otherwise would be to require


attorneys to disclose mere suspicions of fraud which are
based upon incomplete information or information which
may fail short of clearly establishing the existence of a fraud.
We do not suggest, however, that by requiring the attorney
to have actual knowledge of a fraud before he ls bound to
disclose it, he must wait until he has proof beyond a moral
certainty that fraud has been committed. Rather, we simply
conclude that he must clearly know, rather than suspect,
that a fraud on the court has been committed before he
brings this knowledge to the court's attention.

Id. In that case, even though an adverse witness had informed the attorney's client that

he had been instructed to change his story at his deposition and subsequently informed

the attorney's cHent that he had followed his attorney's instructions and lied at his

deposition, and even though attorney believed that the adverse witness had lied at his

deposition based upon his own independent conclusions drawn from his knowledge of

the case, the Court of Appeals concluded that the attorney lacked actual knowledge

that the witness committed perjury. Id.

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In United States v. Shaffer Equipment Co., in contrast, the Court of

Appeals for the Fourth Circuit determined that an attorney possessed actual knowledge

of misstatements by an expert witness where the expert witness admitted to that

attorney that he had lied about his credentials and the attorney confirmed with the

University cited on the expert witness' curriculum vitae that the witness had not received

a degree. 11 F.3d 450, 459 (41" Cir. 1993). Similarly, in Patsy's Brand, Inc. v. 1.0.B.

Realty, Inc., the district court determined that, inter alia, a printer's statement that he did

not conduct business with the defendant in 1993 provided the lawyer with actual

knowledge that his client's declaration that the label his client declared had been

printed by that printer in 1993 was false. No. 98 CIV 1Oi75, 2002 WL 59434, at *7

(S.D.N.Y. Jan. 16, 2002).

In the instant case, as set forth above, there is no evidence before the

Court to suggest that Dean Mutua testified falsely as to his recollection of events on

April 28, 2006, let alone that AAG Sleight possesses actual knowledge that Dean

Mutua testified falsely. As the ABA Commission on Ethics and Professional

Responsibility opined:

It must be emphasized that this opinion does not change the


professional relationship the lawyer has with the client and
require the lawyer now to judge, rather than represent the
client. The lawyer's obligation to disclose client perjury ...
is strictly limited ... to the situation where the lawyer knows
that the client has committed pe~jury, ordinarily based on
admissions the client has made to the lawyer. The lawyer's
suspicions are not enough.

Formal 87-353 (1 omitted). as the Court of concluded

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in Doe, the proper forum for challenging Professor Mutua's credibility and resolving

questions regarding the accuracy of Professor Mutua's recollection is not a collateral

proceeding for sanctions against counsel, but a trial. 847 F.3d at 63.

Answer
----
Plaintiff seeks to sanction AAG Sleight pursuant to Rule i 1 for failing to

amend the answer to admit the allegations contained in paragraph 11 of his complaint

"upon learning that Mutua had perjured himself regarding the tenure vote." Dkt #70-7,

p.12, n.4. Paragraph 11 of the Complaint alleges:

On April 28, 2006, upon a review of his job performance,


applying the faculty's scholarship, teaching, and service
standards, the Promotion and Tenure Committee
recommended that Malkan be reappointed to the position of
full Clinical Professor with the protections of ABA Standard
405(c) and accompanying interpretations, which requires law
schoo!s to protect the academic freedom of clinical
professors by providing them with job security reasonably
similar to tenure.

Dkt. #1, 'lf 11 & Dkt. #70-7, pp. 5 & 11.

AAG Sleight declares that he denied knowledge or information sufficient

to form a belief as to the truth or falsity of the allegation contained in paragraph 11

because

the allegations are not precise. It alleges that the Promotion


and Tenure Committee met on April 28, 2006, when it was
the Committee on Clinical Promotion and Tenure. It alleged
that Plaintiff was reappointed to the position of full Clinical
Professor when in fact from what I knew at the time the
issue at that meeting was his promotion from Associate
Clinical Professor to full Clinical Professor. It alleged that the

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faculty reviewed Plaintiff's job performance, applied the


faculty's scholarship, teaching, and service standard, and I
did not know that to be the case one way or the other. And,
it alleged that the appointment was "with the protections of
ABA Standard 405(c) and accompanying interpretations,
which require law schools to protect the academic freedom
of clinical professors by providing them with job security
reasonably similar to tenure," which l did not know to be the
case one way or [the} other.

Dkt. #72, !fl 20. AAG Sleight further declares that if he were to amend his Answer, he

would deny the allegations. Dkt #72, 'U 28. In any event, AAG Sleight responds. Inter

a!ia, that Rule 11 applies only to the attorney's conduct at the time of signing and

cannot be used to sanction counsel for failing to amend a pleading. Dkt #75, p.10.

Rule 11 applies only to the initial signing of a "pleading,


motion, or other paper." Limiting the application of rule 1 i to
testing the attorney's conduct at the time a paper is signed is
virtually mandated by the plain language of the rule.

Moreover, the advisory committee note to the amended rule


states that the signer's conduct is to be judged as of the time
the pleading or other paper is signed. Fed. R. Clv. P. 11
advisory committee note. It is difficult to imaging why this
comment would be made if the rnle were meant to impose a
continuing obligation on the attorney.

Oliveri, 803 F .2d at 1274. "There is thus no obligation to update a pleading, motion or

other paper based on new information provided that the document met the

requirements of Rule 11 at the time it is signed." Curley v. Brignoli Curley & Roberts,

128 F .R.D. 613, 616 (S.D.N Y. 1989). "In determining whether the signer has met this

objective requirement, 'the court is to avoid hindsight and resolve all doubts in favor of

the signer."' Id., quoting Oliveri, 803 F.2d at 1275.

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As It is clear that Rule 11 imposes no obligation upon an attorney to

amend his pleading, plaintiff has no grounds to move to sanction AAG Sleight regarding

the answer. Moreover, AAG Sleight articulated sufficient grounds for his denial of

knowledge or information sufficient to form a belief as to the truth or falsity of the

allegation contained in paragraph 11 at the time the Answer was fired.

Defendant's Motion for Sanctions

Rule 11 Safe Harbor Provision

Mr. Ostrove argues that defendant failed to follow the appropriate

procedure for filing a Rule 11 motion because he failed to provide him or plaintiff with a

copy of his memorandum of law or declaration in support of the motion before filing it

and the motion did not describe the specific conduct that allegedly violated Rule 11.

Dkt. #89, p.4 & Dkt #90, 1f 61.

Defendant responds that he complied with Rule 11 by serving a copy of

the Notice of Motion and copies of his prior letter accusing counsel of filing a frivolous

motion without basis in law or fact for the sole purpose of harassing Professor Mutua

and AAG Sleight, delaying resolution of the merits of plaintiff's complaint,

increasing the costs of defending the action. Dkt #93, p.3.

A motion for sanctions must be made separately from any


other motion and must describe the specific conduct that
allegedly violates Rule 11 (b ). The motion must be served
under Rule 5, but it must not be filed or be presented to the
court if the challenged paper, claim, defense, contention, or

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denial is withdrawn or appropriately corrected within 21 days


after service or within another time the court sets. If
warranted, the court may award to the prevailing party the
reasonable expenses, including attorney's fees, incurred for
the motion.

Fed. R Civ. P. 11 (c)(2). The !aw is clear that Rule i 1(c)(2) requires only the service of

a motion; it does not require the service of a memorandum of law or affidavits. Star

Mark Mgmt. v . .Koon Chun Hing Kee Soy & Sauce, 682 F.3d 170, 176 (2d Cir. 2012).

So long as the party subject to the sanctions motion receives notice of the specific

conduct that allegedly violated Rule 11 (b), the requirements of Rule 11 (c) are satisfied.

Id.; Storey, 347 F.3d at 389.

AAG Sleight served his Notice of Motion and his letter of March 12, 2015

upon Mr. Ostrove on June 19, 2015. Dkt. #84-5, p.5. In accordance with those

documents, ~/ir. Ostrove received notice of the potential for Rule 11 sanctions based

upon AAG Sleight's allegation that Mr. Ostrove's motion for sanctions was based upon

an erroneous legal standard and false factual predicate. Dkt. #84-5, pp.6-9. Mr.

Ostrove did not withdraw his motion for sanctions within 21 days of service of that

notice of motion as would allow him and his client to claim refuge in the safe harbor

provision of Rule 11 In fact, Mr. Ostrove did not withdraw his motion for sanctions at

, but merely attempted to shift responsibility for the consequences of the motion to his

client following his termination as plaintiffs counsel. The Court will not permit counsel

to escape responsibility for improper conduct simply because he was subsequently

terminated as counsel. As Mr. Malkan encouraged the filing of the motion for sanctions

and adopted the arguments contained in the motion following his termination of Mr.

32-

0000086
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Ostrove, defendant's motion for sanctions against Mr. Malkan is also properly before

this Court.

Frivolousness of Plaintiff's Rule 11 Motion

Defendant argues that plaintiff's Rule 11 motion is frivolous and warrants

a substantial monetary sanction to deter Mr. Ostrove and Leeds Brown Law, P.C. from

such conduct in the future. Dkt. #83-1, pp.6 & 8-9. In light of Mr. Malkan's dire financial

situation, defendant seeks dismissal of this action as an appropriate sanction against

plaintiff. Dkt. #83-1, p.9.

Mr. Ostrove responds that the motion for sanctions was appropriate

because "an objective assessment of the facts compels the conclusion that Mutua lied."

Dkt. #89, p. 10.

In a declaration in opposition to the motion for sanctions, Mr. Malkan

states: "My purpose in everything I have said and done since November 11, 2011 has

been to report my evidence of former-Dean Makau Mutua's criminal misconduct, not to

vex, harass, or defame anyone who stands in the path of my legal claims, nor for any

unethical or unlawful reason." Dkt. #88-2, 1T 1. Mr. Malkan declares that:

The crime I am alleging is subversion of the judicial process


by a state official who is also a member of the New York
State Bar, a law professor, and the former-Dean of the
SUNY Buffalo Law School. Mr. Sleight is in violation of Rule
11 because he has certified documents based on perjured
testimony to this Court without disclosing the perjury, which
puts this court in exactly the position Rule 11 is intended to

-33-

0000087
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Document
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prevent. Mr. Sleight's signature means that he has inquired


into the facts in a manner that is reasonable under the
circumstances. He knows that my allegations on this motion
are as serious as any allegations in a civil lawsuit. can be.

Dkt. #88-2, '!13.

Plaintiff's motion for sanctions against Professor Mutua and AAG Sleight

is frivolous. As AAG Sleight repeatedly attempted to advise, "just because witnesses'

recollection may differ on what happened during a particular incident, does not

necessarily mean that one of them is lying." Dkt. #75, p.4. While the fact that Mr.

Mutua's recollection differs from that of every other individual in the room may well

suggest that his recollection is faulty, as discussed, supra, plaintiff has proffered no

evidence that his testimony was intentionally false. In other words, plaintiff had no

factual or legal basis for the accusations of perjury set forth in his Rule 11 motion

against Dean Mutua and .MG Sleight.

In addition, given that there was never any dispute that Mr. Malkan was

promoted to the position of Clinical Professor, the Court can fathom no reason to fixate

on Professor Mutua's recollection of this meeting other than to harass Professor Mutua,

needlessly increase the costs of this litigation and unduly burden the court. Neither

plaintiff nor his attorney has ever articulated how plaintiff's claim would be strengthened

if Professor Mutua's recoi!ection aligned with the recollection of the other faculty

members present at the CCPR meeting on April 28, 2006 nor have they articulated how

recollection compromises plaintiff's claim.

-34-
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Bad Faith

The same factors which establish the frivolousness of plaintiffs motion for

sanctions also demonstrate bad faith.

In addition, as defendant argued in opposition to plaintiff's motion for

sanctions, the memorandum of law in support of plaintiff's motion is "riddled with

citation to vacated authority, misstated legal standards and goes so far as to quote from

an outdated version of Rule 11 ." Dkt #75, p.12. Plaintiff cites cases, albeit for different

points of law, without recognizing that they contradict other arguments being made by

plaintiff. For example, plaintiff cites Oiiveri as a point of iaw regarding the Ruie i 1

standard (Dkt. #70-7, pp.14-15), without acknowledging that the decision refutes

plaintiffs argument that AAG Sleight was obliged to amend his answer. 803 F.2d at

1274 ("[!]imiting the application of rule 11 to testing the attorney's conduct at the time a

paper is signed is virtually mandated by the plain language of the rule.").

As a result, sanctions are also appropriate pursuant to 28 U.S.C. 1927

and the Court's inherent power.

pvil Contem_Q!

Defendant argues that Mr. Malkan should be held in civil contempt for

violating local court rules affording confidentiality to mediation nrnP~~>fl Dkt. #83-1,

p.12.
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"A party may be hefd in civil contempt for failure to comply with a court

order if: (1) the order the contemnor failed to comply with is clear and unambiguous: {2)

the proof of noncompliance ls clear and convincing; and (3) the contemnor has not

diligently attempted to comply in a reasonable manner." Paramedics Electromedicina

Comercial, Uda v. GE Medical Systems Information Technologies, Inc., 369 F.3d 645,

655 (2d Cir. 2004 )(internal quotation omitted). "it need not be established that the

violation was willful." Id.

The Alternative Dispute Resoiution Plan provides for confidentiality of ali

mediation interventions and processes. Rule 4.4. The ADR Plan specifically provides

that Mediation Memorandum "shall be subject to the confidentiality of the mediation

process and treated as a document prepared 'for settlement purposes only."' Rule

5.68. The ADR Plan is attached to the Automatic Refemal to Mediation on Hie Docket

(Dkt. #3), and is available on the Court's public website. 5 In addition, the Court's Local

Rules, which are available on the Court's public website, 6 provide that "[t]he ADR

process is confidential." Rule 16(a).

P!alntiff's disclosure of his mediation statement on the internet and

discussion of the mediation proceedings with SUNY Buffalo Spectrum is contemptuous.

6 httQ://www.n~uscourl:s.gov/rules-individuaf-local-federa[

-36-

0000090
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Sanction

In light of the foregoing discussion, it is recommended that Mr. Ostrove

and his firm, Leeds Brown Law, P.C., be sanctioned pursuant to Rule 11, 28 U.S.C.

1927 and the Court's inherent power in the amount of $10,000, payable to the Clerk

of the Court for the Western District of New York. This sum is selected as a reasonable

sum in comparison to the amount of legal fees incurred, yet a sufficient sum to
demonstrate the Court's displeasure with counsel's conduct and to deter such conduct

in the future.

As to plaintiff, the Court agrees with defendant that a financial sanction

would be inappropriate in light of plaintiff's current circumstances. However, as the

Court believes that it is important to the parties and to the integrity of the judicial system

that plaintiff's accusations be resolved on the merits, the Court declines to recommend

dismissal of this action even though Mr. Malkan's conduct during the course of this

litigation would easily warrant even such a severe sanction.

CONCLUSION

For the foregoing reasons, it is recommended that plaintiff's motion (Dkt.

#70), for sanctions be denied and that defendant's motion (Dkt. #83), for sanctions be

granted in part.

Therefore, it is hereby ORDERED pursuant to 28 U.S.C. 636(b)(1) that:

-37-

tsouuoo
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This Report, Recommendation and Order be filed with the Clerk of the

Court.

ANY OBJECTIONS to this Report, Recommendation and Order must be

filed with the Clerk of this Court within fourteen (14) days after receipt of a copy of this

Report, Recommendation and Order ln accordance with the above statute, Fed.R.Civ.P.

72(b) and local Rule 72(b).

The district judge will ordinarily refuse to consider de novo arguments, case

law and/or evidentiary material which could have been, but were not presented to the

magistrate judge in the first instance. See, e.g., Patterson-Leitch Co. v. Massachusetts

Mun Wholesale Electric Co,, 840 F.2d 985 (1st Cir. 1988).

Failure to file objections within the specified time or to request an extension

of such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474

U.S. 140, 106 S. Ct 466, 88 L. Ed .2d 435 (1985 ); Wesolek v. Canadair Ltd., 838 F .2d 55

{2d Cir. 1988).

The parties are reminded that, pursuant to Rule 72(b) of the Local Rules for

the Western District of New York, "written objections shall specifically identify the portions

of the proposed findings and recommendations to which objection is made and the basis

for such objection and shall be supported by legal authority." '-="-=:-::.:..-=-"'-=''~-:r::...._c=.:::..:..::..:..=.

-38-

000(1092
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The Clerk is hereby directed to send a copy of this Report,

Recommendation and Order to the attorneys for the parties.

SO ORDERED.

DATED: Buffalo, New York


December 1, 2015

sf H. Kenneth ~C!.hroeder, JI::__


H. KENNETH SCHROEDER, JR.
United States Magistrate Judge
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UNITED STATES DISTRICT COURT


WESTERN DISTRICT OF NEW YORK

JEFFREY MALKAN,
Plaintiff,

v. DECISION AND ORDER


12-CV-236-A

MAKAU W. MUTUA and


CHARLES P. EWING,

Defendants.

Plaintiff Jeffrey Malkan brings this action pursuant to 42 U.S.C. 1983

alleging that defendants Makau W. Mutua and Charles P. Ewing deprived him

property without due process of law in violation of the Fourteenth Amendment to

the United States Constitution. U.S. Const. XIV. Plaintiff Malkan was a Clinical

Professor at the State University of New York at Buffalo Law SchooL Defendant

Mutua Is the Dean of the law School. Defendant Ewing Is the chair of the faculty

Grievance Committee of the Law School.

In his complaint, plaintiff Malkan alleges that defendant Mutua wrongfully

terminated the plaintiff's contract as a Clinical Professor on the faculty of the Law

School. The plaintiff alleges that defendants Mutua and intentionally

violated hls due process rights to

consultation and rev1ew of defendant Mutua's termination the contract.


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Defendants Mutua and Ewing have moved to stay this action until a breach

of contract action that plaintiff Malkan filed against the State University of New

York in the New York State Court of Claims is resolved. The defendants argue

that the two cases are duplicative and wasteful.

Defendants Mutua and Ewing have also moved pursuant to Fed. R. Civ. P.

12(b) partially to dismiss plaintiff Malkan's claims. The defendants do not seek

dismissal of the due process cause of action in the complaint, and only challenge

some remedies sought by the plaintiff. They argue that the remedies are either

beyond the Court's subject-matter jurisdiction or are unwarranted by the facts

alleged in the complaint. For the reasons stated below, the defendants' motions

are denied.

BACKGROUN0 1

The plaintiff, Jeffrey Malkan, joined the faculty of the State University of

New York at Buffalo Law School in June, 2000 as a Clinical Associate Professor

and as Director of the Legal Research and Writing Program. On April 28, 2006,

plaintiff Malkan was promoted by the dean at the time, R. Nils Olsen, upon the

recommendation of the faculty Promotion and Tenure Committee, to the position

of Clinical Professor.

Plaintiff Malkan executed an employment contract for the position of

1When addressing a motion to dismiss pursuant to Fed. R. Civ. P. 12(b), the Court assumes the
well-pleaded allegations in a complaint are true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

0000095
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Clinical Professor on November 16, 2006. The contract provided for a three-year

term of employment, followed by a "mandatory" two-year "administrative

extension" to be made at the end of the three-year term. The contract provided

that, while American Bar Association ("ABA") accreditation standards required

accredited law schools to grant five-year contracts to full professors of the

plaintiff's rank, State University of New York ("SUNY") policies, by which the Law

School was bound, permitted only three-year contracts. The contract

nevertheless provided that it was a ~five-year contract," and characterized the

two-year extension necessary to make it a five-year contract as "routine[]" and

"automatic." It specifically promised that "the Dean will extend your contract for

2-years, or from 9/1 /2009-8/31/2011, to provide the 5-year contract term

mandated by the ABA."

The November 16, 2006 contract also provided that plaintiff Malkan's

appointment as a Clinical Professor could only be terminated "for good cause" in

accordance with ABA accreditation standards. It specifically promised:

A change in the structure or staffing of the law school's


research and writing program will not equate with "for
good cause" to terminate or not renew your contract since
your contract as a Clinical Professor is separate from your
administrative appointment as Director of Research and
Writing. Should your appointment as Director of Research
and Writing end, you would still maintain your position as
Clinical Professor.

Dkt. No. 12-1, p. 23.

0001'1096
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On March 13, 2008, shortly after being appointed interim Dean of the Law

School, defendant Makau W. Mutua dismissed plaintiff Malkan as Director of the

Legal Research and Writing Program, effective March 14, 2008. The plaintiff's

dismissal was ostensibly in connection with termination of the existing Legal

Research and Writing Program. Defendant Mutua refused repeated attempts by

the plaintiff to discuss the plaintiffs termination as Director of the Legal Research

and Writing Program. The plaintiff continued teaching as a Clinical Professor.

However, six months later, on August 28, 2008, defendant Mutua, who was

appointed Dean of the Law School in May, 2008, notified plaintiff Malkan by letter

that the plaintiff's contract as a Clinical Professor would expire at the end of the

next academic year and that the contract would not be renewed. Defendant

Mutua stated in the letter that under ABA Standard 405, an instructor was subject

to termination upon "termination or material modification" of the clinical program,

and that the termination of the Legal Research and Writing program at the Law

School met the requirements of Standard 405.

Plaintiff Malkan asked to meet with defendant Mutua about his termination,

but defendant Mutua refused. Defendant Mutua later refused similar requests.

In January of 2009, plaintiff Malkan filed a protest with the faculty

Grievance Committee of the Law School, which was chaired by defendant

Charles P. Ewing. The protest was on the ground that defendant Mutua had

refused to consult with the Law School faculty Committee on Clinical Promotion

0000097
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and Renewal ("CCPR") regarding the plaintiffs reappointment as a Clinical

Professor. The plaintiff asserted that defendant Mutua lacked authority to

terminate the plaintiffs appointment as a Clinical Professor for cause without

consulting with and receiving a recommendation from the CCPR. Defendant

Mutua refused to consult with the CCPR.

Defendant Mutua also refused to participate in the faculty Grievance

Committee's attempts to address plaintiff Malkan's protest that defendant Mutua

was terminating the plaintiff without consultation with the CCPR and without a

recommendation by the CCPR. Defendant Ewing, as chair of the Grievance

Committee, orally acknowledged that the protest was within the Grievance

Committee's jurisdiction. As chair of the Grievance Committee, defendant Ewing

spoke to defendant Mutua about the plaintiff's termination and protest to the

Grievance Committee, but defendant Mutua refused to address the protest

through the Grievance Committee. The plaintiff requested that defendant Ewing

report the plaintiff's unaddressed Grievance Committee protest to the Law School

faculty, as defendant Ewing was required to do as chair of the Grievance

Committee, but defendant Ewing refused to do so.

The CCPR convened for its only meeting of the 2008-2009 academic year

on April 21, 2009, to discuss the reappointment of two other Law School clinical

professors with contracts that were to expire on August 31, 2009. Defendant

Mutua refused to allow the CCPR to hear recommendations or to vote on plaintiff

0000098
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Malkan's reappointment. The Grievance Committee did not address the plaintiff's

protest after the April 21, 2009 CCPR meeting. On September 1, 2009, the

plaintiff's appointment as Clinical Professor terminated, ending his employment

relationship with the Law School.

!n January of 2009, plaintiff Malkan brought an action against SUNY in the

New York State Court of Claims for breach of his employment contract. The

plaintiff alleged in the Court of Claims that, by terminating him as a Clinical

Professor before the expiration of the five-year term of his contract, SUNY

breached the terms of the contract as agreed to on November 16, 2006. The

plaintiff seeks damages from SUNY in the state court action, including past and

future lost pay.

SUNY has answered in the New York State Court of Claims that piaintlff

Maikan lacked an employment contract extending beyond the initial three-year

term that he served. SUNY alleges that, no matter what ABA accreditation

standards may require, the former dean of the Law School lacked authority to

enter into a contract with the plaintiff to extend the initial three-year term of the

contract by an "automatic" and "routine" two-year extension. The Court of

Claims action is still in pre-trial discovery.

0000 1199
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DISCUSSION

I. Entry of a Stay. Defendants Mutua and Ewing move pursuant to the

Court's inherent authority to stay this action until resolution of plaintiff Malkan's

breach of contact action against SUNY in the New York State Court of Claims.

The defendants argue that this action is "entirely duplicative" of the Court of

Claims action and a waste of time.

The law upon which defendants Mutua and Ewing rely in support of their

motion to stay this action governs the entry of a discretionary stay where parallel

actions are pending in federal courts. See, e.g., Landis v. North Am. Co., 299

U.S. 248 (1936). However, the defendants' motion to stay this action in favor of

an action pending in state court is necessarily governed by a different and more

strict "exceptiona!~circumstances" standard. Moses H. Cone Memorial Hospital

v. Mercury Construction Co., 460 U.S. 1, 19 (1979) (authority to stay "must be

exercised under the relevant standard."); Burnett v. Physician's Online, Inc., 99

F.3d 72, 77 (2d Cir. 1996) (a "district court must balance the relevant factors in

reaching its decision.").

A motion to stay a federal court action such as this one in favor of an action

pending in state court triggers very different considerations of comity between

sovereigns and of judicial administration than those triggered by parallel federal

litigation. It is well settled that a federal court may stay an action that is within its

subject-matter jurisdiction in favor of a parallel matter pending in a state court

7
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only in truly exceptional circumstances. Moses H. Cone Memorial Hospital, 460

U.S. at 23-26 (1979); Colorado River LA/ater Conservation Dist. v. United States,

424 U . 800, 817 (1976). The considerations that may arguably favor a federal

court's surrendering its jurisdiction to a parallel state court action by staying the

federal action must far outweigh a federal court's "virtually unflagging obligation"

to exercise its subject-matter jurisdiction. Colorado River, 424 U.S. at 813, 817;

Woodford v. Cmty. Action Agency of Greene Cnty., Inc., 239 F.3d 517, 522 (2d

Cir. 2001} (six-factor standard for entry of a stay of a federal action in favor of a

state court action).

Moreover, as a threshold matter, a stay of this federal action can be

entered only if this action is genuinely parallel to plaintiff Malka n's New York State

Court of Claims action. Colorado River, 424 U.S. at 818; Dittmer v. Cnty. of

Suffolk, 146 F .3d 113, 118 (2d Cir.1998). "For two actions to be considered

parallel, the parties in the actions need not be the same, but they must be

substantially the same, litigating substantially the same issues in both actions."

Royal and Sun Alliance Ins. Co. of Canada v. Century Intern. Arms, 466 F .3d 88,

94 (2d Cir. 2006) (citing Dittmer, 146 F.3d at 118).

Defendants Mutua and Ewing argue that this action and plaintiff Ma!kan's

New York Court of Claims action are "entirely duplicative." The defendants

some substantial differences, however.

issues in both the federal civil action and state breach of

0000101
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contract action wili depend upon the construction of plaintiff Malkan's employment

contract. The state law reading of the contract's duration will obviously be a

critical factor in assessing the extent of the plaintiff's property interest in

continued employment with the State - an essential predicate for this action -

but it will not be dispositive.

When considering whether plaintiff Malkan's employment contract gave

him a property interest in continuing employment with the State sufficient to merit

due process protection, this Court will look both to the express terms of the

contract, and to the underlying policies and "unwritten common law" applicable

to the faculty appointment. See Perry v. Snyderman, 408 U.S. 593, 601-02

(1972); Bishop v. Wood, 426 U.S. 341, 344 (1976). The Court will assess

evidence of the relevant em.ployment policies and practices of the Lavv Schoo1

and SU NY, including, among other evidence, the plaintiff's November 16, 2006

contract promising the plaintiff that: (1) "the Dean will extend your contract for 2-

years, or from 9/1/2009-8/31/2011, to provide the 5-year contract term mandated

by the ABA"; and, (2) "[s]hould your appointment as Director of Research and

Writing end, you would stilt maintain your position as Clinical Professor." In light

such evidence, a ruling against the plaintiff on his state law breach of contract

claim in the New York State Court of Claims would not necessarily preclude a

this Court a viable property interest in the plaintiff's continued

em with the State.

0000102
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When defendants Mutua and Ewing argue that this action is entirely

duplicative of the state action, they also overlook that the due process questions

at the core of plaintiff Malkan's civil rights claim are unique to this actlon.

Assuming that the plaintiff had a property interest in his continued employment

with the State that was subject to due process protection, the questions

concerning what process he was actually due are unique to this action. See

Shakurv. Se/sky, 391F.3d106, 118 (2d Cir. 2004). There will be witnesses and

documentary evidence relevant to the property interest and due process issues in

this federal civil rights action that will not be relevant to the state !aw breach of

contract issues in the Court of Claims action.

The Second Circuit has held that the existence of related and overlapping

subject matter with a state proceeding is insufficient to permit entry of a stay.

Alliance of Am. Insurers v. Cuomo, 854 F.2d 591 (2d Cir. 1988) (state action

involving adequacy of insurance rates was insufficiently similar to federal action

attacking constitutionality of related state medical malpractice statutes to justify a

stay). ln light of the federal questions that are unique to this case and which

stand to be resolved here regardless of the outcome of the plaintiff Malka n's New

York State Court of Claims action against SUNY, the overlapping issues in this

case and the plaintiff's state case are not "substantially the same" so as to

consideration of a . See Royal and Sun Alliance Ins. Co. of

466 F.3d at 94.

10

0000103
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In addition, the Second Circuit has held in this context that "[s]imilarlty of

parties is not the same as identity of parties. 1


' Alliance of ,4m. Insurers v. Cuomor

854 F.2d at 603. (stay inappropriate where the plaintiff in two pending state cases

- the New York Medical Malpractice Insurance Association - was an

unincorporated association that included the federal plaintiff - the Alliance of

American Insurers). Defendants Mutua and Ewing are not parties to the New

York State Court of Claims proceeding. While the defendants are in privity with

SUNY for some purposes, and may have some interests aligned with those of

SUNY in the Court of Claims proceeding, the university is distinct from the

defendants, who are sued here in their individual capacities and face personal

liability without the protection of the State's sovereign immunity. "[S]uch

differences in parties and issues are strong factors against invoking exceptional

circumstances ... " to justify a stay. Alliance of Am. Insurers v. Cuomo, 854 F.2d

at 603; see Burnett, 99 F .3d at 77. The Court finds that the parties in the state

action are not "substantially the same" as the parties in action. See Royal

and Sun Alliance Ins. Co. of Canada, 466 F.3d at 94.

Based upon the substantial differences in this federal civil rights case and

plaintiff Maikan's Court of Claims breach of contract case, the argument of

defendants Mutua and Ewing that the two actions are "entirely duplicative" is

without merit The two actions are not genuinely parallel. The Court finds that

the defendants tail even to make the preliminary, threshold that is


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necessary to warrant the Court's consideration of the defendants' exceptional-

circumstances motion for a stay. The defendants' motion for a stay is denied.

IL Motions to Dismiss. Defendants Mutua and Ewing move pursuant to

Fed. R. Civ. P. 12(b)(1) to dismiss some remedies sought by plaintiff Malkan

against the defendants in their official capacities - including reinstatement and

the clearing of the plaintiff's personnel record of evidence of his termination - as

barred by New York state's sovereign immunity and the Eleventh Amendment.

U.S. Const. Amend. XL A claim is properly dismissed for lack of subject~matter

jurisdiction pursuant to Rule 12(b)(1) "when the district court lacks the statutory

or constitutional power to adjudicate it" Arar v. Ashcroft, 532 F .3d 157, 168 (2d

Cir.2008).

Defendants Mutua and Ewing move to dismiss plaintiff Malkan's claims for

compensatory and punitive damages "to the extent" that they are asserted

against the defendants in their official capacities. The plaintiff's complaint does

not on its face seek compensatory or punitive damages from the defendants in

their official capacities. The plaintiff's response to the defendants' motions to

dismiss confirms that the plaintiff is not seeking to recover compensatory or

punitive damages the defendants in their official capacities. The defendants'

motions to dismiss those remedies are denied as moot.

For the reasons that follow, the Court also denies the defendants'

motions to dismiss. the Court dism sua the

12

0000105
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Document 487
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plaintiff's equitable pay claim as beyond the Court's subject-matter jurisdiction.

!n general, the Eleventh Amendment protects state officials from civil suits

for actions taken in their official capacities. Will v. Michigan Dep't of State Police,

491 U.S. 58, 71 (1989). However, pursuant to the U.S. Supreme Court's decision

in Ex parte Young, a state official may be sued in his official capacity to enjoin an

ongoing violation of federal law. Ex parte Young, 209 U.S. 123 (1980). As the

Supreme Court has explained. where a state official seeks to enforce an allegedly

unconstitutional act or acts in violation of the federal rights of others, "the state

has no power to impart to him any immunity from responsibility to the supreme

authority of the United States." Id. at 159-160.

In determining whether a suit against a state official falls within the Ex parte

Young exception to state sovereign immunity, the necessary inquiry focuses on

the nature of the relief sought. See Edelman v. Jordan, 415 U.S. 651 (1974).

Under Ex parte Young, a federal court is only permitted to grant injunctive relief

against future violations of federal law. See Green v. Mansour, 474 U.S. 64, 68

(1985) ("[T]he Eleventh Amendment does not prevent federal courts from

granting prospective injunctive relief to prevent a continuing violation of federal

law"). The Supreme Court has declined to extend the reasoning of Ex ,oarte

Young to claims for relief that are retrospective. Pennhurst State Schoof &

v. 465 U.S. 89, 102 (1984). When a seeks relief in

the form of retroactive or compensatory as a for a past ry,

13

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and the damages would be paid from a state treasury, the suit ls barred by the

Eleventh Amendment See Edelman v. Jordan, 415 U.S. 651, 667 (1974) (a suit

"seeking to impose a liability which must be paid from public funds in the state

treasury is barred by the Eleventh Amendment"}.

The Supreme Court has acknowledged that its prospective-retrospective

distinction - the dividing line between relief permitted under Ex parte Young and

that barred by the Eleventh Amendment - "wiil not in many instances be [as

distinct as] that between day and night" Edelman, 415 U.S. at 667. While the

prospective-retrospective distinction can be difficult to apply, a central principle is

well established: where the effect on a state treasury is only "ancillary" to a

grant of prospective relief, the Eleventh Amendment does not bar the relief. See

Edelman, 415 U,S. at 667, Fisca! consequences are often a necessary result of

state compHance with injunctive relief permitted under Ex Parte Young, and their

existence ls not an absolute bar to entry of such relief against a state official.

See, e,g,, In re Dairy Mart Convenience Stores, Inc., 411 F.3d 367 (2d Cir. 2005)

(injunctive relief requiring state officials to accept plaintiff's claims for

reimbursement from a state environmental assurance fund).

A.. Official-Capacity Claim for Reinstatement .. Empioyment

reinstatement has been recognized by the Second Circuit as a prospective form

of injunctive permitted under the Ex parte Young to a state's

im '777 F.2d (2d CiL 'I , modified

14

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Docurnent
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on other grounds, 793 F .2d 457 (2d Cir. 1986). In Dwyer, a state employee

brought an action pursuant to 42 U.S.C. 1983 against a state agency, alleging

that he had been deprived of a property interest in continued employment without

due process of law. The Second Circuit held on appear that "reinstatement is

purely prospective injunctive relief that orders the state official to return the former

employee to the state's payroll," and that reinstatement is permissible under Ex

parle Young. Dwyer at 836 . This reasoning has been followed repeatedly. See .

e.g., Dotson v. Griesa, 398 F.3d 156, (2d Cir. 2005); Russell v. Dunston, 896

F.2d 664 (2d Cir. 1990). Plaintiff Malkan's clalm for reinstatement to the position

of Clinical Professor is therefore not barred by the Eleventh Amendment and the

defendants' motion to dismiss the claim for that remedy is denied.

Defendants Mutua and Ewing overlook Second Circuit precedent that

reinstatement can be permissible under Ex Parle Young. Instead, the defendants

argue that because an order of reinstatement would be "intended to remedy an

alleged past violation," it is "clearly retrospective." But the mere existence of a

past harm does not "render an otherwise forward-looking injunction retroactive."

Russell, 896 F .2d at 668. The need for prospective relief often arises out of an

injury inflicted ln the past. The holding of Ex Young would mean nothing if

relief relating to past injuries were barred. Id.

Defendants Mutua and Ewing also contend that because reinstatement of

Malkan have an effect on the state , it must barrnd

15

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the Eleventh Amendment. However, under the prospective-retrospective

distinction articulated in Edelman, "sovereign immunity is not invoked simply

because prospective injunctive relief ultimately results in a diminution of state

funds." See In re Dairy Mart Convenience Stores, Inc., 411 F.3d at 375. In cases

where effects on the state treasury are ancillary to an order of prospective relief

permitted under Ex parte Young, the Eleventh Amendment does not bar that

relief. In this case, while plaintiff Malkan's reinstatement would necessarily

require the expenditure of state funds, it appears that the expenditure would be

an ancillary consequence of permissible prospective relief.

B. Official-Capacity Claim to Clear Personnel File. The Court also finds

that plaintiff Malka n's claim for "the clearing of his personnel file of any wrongful

disciplinary actions" is similarly permitted under Ex parte Young. The existence

of derogatory information in the plaintiff's personnel file, if found to be the result of

a violation of due process, would be an ongoing violation of federal law. Even

though removal of such information is arguably remedial, the Court finds the

remedy may be entered to compel state officials to prospectively bring their

actions into compliance with federal law to prevent future harm.

In Elliot v. Hinds, 786 F .2d 298 (7th Cir.1986), the Seventh Circuit Court of

Appeals found a former state employee's similar claim requesting that his

personnel file be cleared of derogatory material to be purely prospective

injunctive relief. Id. at 302. As the Seventh Circuit held, "the removal of

16

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damaging information from the plaintiff's work record is not compensatory; rather,

it is to compel the state official to cease her actions in violation of federal law and

to comply with constitutional requirements." Id. Other Circuit Courts have ruled

similarly, finding the removal of derogatory information from a plaintiff's state

personnel file to be permitted under Ex parte Young. See, e.g., Williams v.

Kentucky, 24 F .3d 1526 (6th Cir. 1994} (expungement of all references relating to

demotion was prospective); Flint v. Dennison, 488 F.3d 816 (9th Cir. 2007) (state

university student's prayer for injunctive relief clearing his school record of past

violations was prospective}. The Court finds this reasoning to be correct.

Clearing plaintiff Malkan's personnel file of references to an unlawful termination

would be directed toward preventing future violations of the plaintiff's federal civil

rights. It therefore is prospective relief consistent with Ex parte Young, and is not

barred by the Eleventh Amendment.

C. Official~Capaclty Claim for an Equitable Award of Pay. Plaintiff

Malkan also seeks equitable relief in the form of back pay and front pay.

Because these forms of relief would impose a monetary liability directly on the

state treasury, they are barred by the doctrine of sovereign immunity and the

Eleventh Amendment to the United States Constitution. U.S. Const. Amend Xl. 2

' Defendants Mutua and Ewing have not challenged the equitable claims in the plaintiffs
complaint for back pay and front pay. Because that relief would be available from the
defendants, if at all, only in their official capacities, it is beyond the subject-matter jurisdiction of
the Court and is therefore addressed sua sponte pursuant to Fed. R. Civ. P. 12(h)(3).

17

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A claim for back pay seeks "the payment of ... money which should have

been paid, but was not." Edelman, 415 U.S. at 664. Such an award would

necessarily require the payment of funds from the state treasury to remedy a past

injury. Applying this distinction, the Second Circuit has found a demand for back

pay in a suit against a state officer to be barred by the Eleventh Amendment.

Dwyer v. Regan, 777 F.2d 825, 835 {2d Cir. 1985). Plaintiffs claim for back pay

is likewise therefore barred.

An award of front pay is similarly within the scope of the Eleventh

Amendment. While front pay is generally available in other contexts as an

alternative to reinstatement, were it to be awarded in this suit against state actors,

it would impose monetary liability on the state. See Campbell v. Arkansas Dept.

of Corr.. 155 F.3d 950, 962 (8th Cir. 1998) ("For purposes of the E!eventh

Amendment, front pay is not analogous to the prospective relief permitted under

Ex parte Young because it must be paid from public funds in the state

treasury".); B!anciak v. Allegheny Ludlum Corp., '77 F.3d 690, 698 (3d Cir. 1996)

(front pay is equivalent to "compensatory damages which would have to be paid

from the state," and is barred by the Eleventh Amendment); Freeman v. Michigan

Dept, of State, 808 F .2d 1174, 11 (6th Cir. J 987). Although the Second Circuit

does not seem to have ruled on this specific issue, the Court finds that front pay

is unavailable as an alternative to reinstatement in an official-capacity suit against

a state official where it wrn be from a state

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D. lndividual-C~pacitl Claim for Punitive Dan:!filles. Defendants Mutua

and Ewing have also moved pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss

plaintiff Malkan's claim for punitive damages on the ground that the complaint

fails to plead facts sufficient to support a finding of the evil intent required to

support an award of punitive damages. In general, to survive a motion to dismiss

under Fed. R. Civ. P. 12(b)(6), a complaint must "state a claim to relief that is

plausible on its face.'' Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

The Court generally confines its analysis of such a motion to the four corners of

the complaint Roth v. Jennings, 489 F.3d 499, 509 (2d CiL 2007); see Fed, R

Civ. P. 12(d).

Punitive damages may be awarded under 42 U .S.C. 1983 only where

"the defendant's conduct is shown to be motivated by evil motive or intent, or

when it involves reckless or callous indifference to the federally protected rights of

others." Smith v. Wade, 461 U.S. 30, 56 (1983). The Second Circuit has found

punitive damages to be appropriate in cases involving wrongful termination on

prior occasions. See, e.g., Vasbinder v. Ambach, 926 F.2d 1333, 1343 (2d Cir.

1991) (punitive damages warranted where New York State Department of

Education employee was discharged in violation of First Amendment). be

entitied to punitive damages, a plaintiff must show positive element of

conscious wrongdoing." Kolstad vo American Dental Ass'n, 527 U OS 526, 0

119 (1999).

19

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Plaintiff Malkan essentially complalns that his procedural rights to

mandatory Law School faculty review of his termination as a Clinical Professor

were denied by defendant Mutua in violation of the plaintiff's Fourteenth

Amendment rights to due process. The plaintiff alleges that his termination as a

Clinical Professor was in wanton breach of specific promises made in his

November 16, 2006 employment contract. The contract, upon which the plaintiff

relies in the complaint, promised that "[a] change in the structure or staffing of

the Law School's research and writing program w[ould] not" be good cause to

terminate or to not renew the plaintiffs appointment as a Clinical Professor.

Nevertheless, defendant Mutua's August 28, 2008 termination letter stated that

the "good cause" for the plaintiff's termination was the termination of the law

School's legal Research and Writing Program. The termination letter addressed

plaintiffs termination as if the plaintiff were an instructor, not a Clinical Professor.

The termination letter disposed of the promise to the plaintiff of a five-year

contract as unot permitted by SUNY."

The broken promises alleged by plaintiff Malkan are not directly relevant to

the plaintiff's claim for punitive damages for violations of his rights to due process.

But those allegations, along with the allegations of defendant Mutua's

stonewalling of the plaintiff's various attempts to seek redress, together support a

reasonable inference that defendant Mutua was determined to resist mandatory

Law School faculty consultation and review of the plaintiffs termination in order to

20

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dismiss the plaintiff from the faculty no matter what. The complaint adequately

alleges that, when defendant Mutua refused to allow the plaintiffs status to be

addressed by the CCPR and refused to address the plaintiff's protest of the

circumstances of the plaintiff's termination through the Grievance Committee,

defendant Mutua was acting in reckless and callous disregard of the plaintiff's

rights to due process. The allegations of the complaint therefore support a claim

for punitive damages against defendant Mutua. 3

Plaintiff Malkan alleges that defendant Ewing orally admitted that the

plaintiff's protest of the circumstances of his termination, including defendant

Mutua's refusal to consult with the CCPR, was within the jurisdiction of the faculty

Grievance Committee chaired by defendant Ewing. The plaintiff further alleges

that defendants Ewing and M utua refused to address the p!alntiff's protest after

defendant Ewing spoke to defendant Mutua about the plaintiff's termination and

the protest before the Grievance Committee.

After careful consideration, the Court finds it plausible that defendant

Ewing's refusal as chair of the Grievance Committee to address plaintiff Malkan's

protest, and his refusal to report the unaddressed protest to the faculty, was the

result of defendant Mutua's refusal to cooperate witl1 the Grievance Committee.

The complaint adequately alleges that defendant Ewing's actions recklessly or

' The Court has not cons'1dered plaintlff Malkan"s argument lhat defendant Mutua was retaliating against
the plaintiff for complaining about his termination as Director of Research and Writing in violation of the
Taylor Law, N,Y, Civi! Service Law 200 et seq., as is alleged in a Public Employee Relations Beard
proceeding, because it is not aileged in the com plaint

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callously denied the plaintiff the procedural protections to which he was entitled.

Defendant Ewing's motion to dismiss the plaintiff's claim for punitive damages is

therefore also denied.

Ill. New York Due Process. Defendants Mutua and Ewing fail to

challenge plaintiff Malkan's cause of action to the extent that it purports to be

stated under provisions of the New York State Constitution. Because such a

claim is beyond the Court's subject-matter jurisdiction, it is dismissed, sua sponte,

pursuant to Fed. R. Civ. P. 12(h)(3).

The New York Court of Appeals has recognized a private right of action for

violations of the state constitution, but such claims are limited to circumstances in

which no alternative remedy is available to the plaintiff. Brown v. State, 89

N.Y.2d 172, 191-92 (N.Y. 1996). Here; the plaint!ff alleges a cause of action

under 1983 and the Fourteenth Amendment to the United States Constitution.

The 1983 remedies are adequate remedies. There is no reason for this Court

to entertain an implied private right of action under an analogous clause of the

New York State Constitution. See Wahad v. F.8.1., 994 F.Supp. 237, 239-40

(S.D.N.Y. 1998) (no implied private right of action under New York State due

process clause where plaintiff had analogous claim under 42 U.S.C. 1983 for

federal due process violations); see Lyles v. State, 194 Misc.2d 32 (N.Y. Ct. Cl.

2002), affirmed, 3 N.Y.3d 396 (N.Y. 2004)(adequacy of common law remedy held

by Court of Claims to preclude implied private right of action under New York

22

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17~38, 7, Pagel15 48
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State Constitution). To the extent plaintiff Malkan's due process claim is stated

under provisions of the New York State Constitution, it is dismissed.

CONCLUSION

For the foregoing reasons, the motion to stay this action in favor of a

overlapping New York State Court of Claims action and the partial motions to

dismiss pursuant to Fed. R. Civ. P. 12(b) filed by defendants Makau W. Mutua

and Charles P. Ewing are all denied. The Court dismisses sua sponte plaintiff

Jeffrey Malkan's equitable claims against the defendants in their official

capacities for front pay in lieu of reinstatement and for back pay, because the

claims are barred by New York State's sovereign immunity and the Eleventh

Amendment to the United States Constitution. U.S. Const, Amend. XI. The

Court also dismisses sua sponte so much of plaintiff Ma!kan's claim as may be

predicated upon an implied private right of action under the New York State

Constitution.

Pursuant to 28 U.S.C. 636(b)(1 )(B). this case is referred to a United

States Magistrate Judge for the Western District of New York, to be assigned by

the Clerk of the Court, for all proceedings necessary to a determination of the

merits of the factual and legal issues presented by this action. At the conclusion

of such proceedings, the Magistrate Judge shall prepare and submit to this Court

a Report and Recommendation containing proposed findings of if

and recom for the disposition of any motions in this case.

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All papers shall continue to be filed in the Clerk's office.

SO ORDERED.

HONORABLE RICHARD J. ARCARA


UNITED STATES DISTRICT JUDGE

DATED: October 3, 2012

24

0000117
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Decisions in Related State Court Litigation

1. Memorandum Decision of Appellate Division, Fourth Department, in Malkan v. State of New


York (SUNY Buffalo), filed 12/23/2016 ................................................................ 119

2. Decision of Court of Claims, Hon. Michael E. Hudson, in Malkan v. State of New York
(SUNY Buffalo), filed 6/19/2015 ........................................................................ 120

3. Decision of Court of Claims, Hon. Jeremiah J. Moriarty, III, in Malkan v. State of New York
(SUNY Buffalo), filed 9/6/2012 .......................................................................... 130

4. UUP-NYSUT v. State University ofNew York (SUNY Buffalo), Board Decision, filed
8/29/2013 ................................................................................................... .140

5. UUP-NYSUT v. State University ofNew York (SUNY Buffalo), ALJ Kenneth S. Carlson,
filed 11/15/2012 ............................................................................................. 153
Case 17-38, Document 29, 02/17/2017, 1975443, Page119 of 175

1
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

1214
CA 16-00538
PRESENT: SMITH, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.

JEFFREY MALKAN, CLl\IMANT-P."PPELLANT I

v MEMORANDUM AND ORDER

STATE OF NEW YORK, DEFENDANT-RESPONDENT.

RICHARD E. CASAGRANDE, LATHAM (ANTHONY J. BROCK OF COUNSEL), FOR


CLAIMANT-APPELIANT.

ERIC T . .SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (JULIE M. SHERIDAN OF


COUNSEL), FOR DEFENDANT- RESPONDENT.

Appeal from an order of the Court of Claims (Michael E. Hudson,


J.), entered June 19, 2015. The order denied the motion of claimant
for leave to file and serve a late claim.

I~ is hereby ORDERED that the order so appealed from is


unanimously affirmed without costs.

Hernorandu:m: we reject claimant's contenx.i.on that the Court of


Claims erred in denying his moti.on seeking permission to file a late
claim against defendant based upon its alleged breach of contract.
n 'A determination by the Court of Claims to grant or deny a motion
for permission to file a late . . . claim lies within the broad
discretion of that court and should not be disturbed absent a clear
abuse of that discretion' " (Ledet v State of New York, 207 }\D2d 965,
965-966). Here, the court considered the requisite statutory factors
and concluded that three of them favored claimant, i.e., notice,
opportuni.ty to investigate, and lack of substantial prejudice to
defendant (see Court of Claims Act 10 [6); see also Ledet, 207 AD2d
at 966). We nonetheless decline to disturb the court's exercise of
discretion inasmuch as we agree with the court's conclusions that
claimant failed to demonstrate an adequate excuse for the delay, that
the proposed claim lacks merit, and that claimant had and/or has
alternative remedies (see Lange v State of New York, 133 AD3d 1250,
1250; Matter of v State of Neiv York, 54 AD3d 1117, 1118 Olsen v
State of New York, 45 AD3d 824, 824-825).

Entered December 23, 2016


Clerk o

0000119
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Document

STATE OF NEW YORK


JEFFREY MALKAN,
Claimant, DECISION AND
ORDER

STATE OF NEWYORJ(.f Claim No. None


Motion No. M-85598

Defendant.

BEFORE: HON. MfCHAEL E. HUDSON


Judge of the Court of Claims

APPEARANCES; For Claimant:


NEW YORK STATE UNITED TEACHERS
RICHARD E. CASAGRANDE, ESQ .
General Counsel
BY: MARILYN RASKIN-ORTIZ, ESQ.,
of Counsel

For Defendant
HON. ERIC T. SCHNEIDERMAN
New York State Attorney Genera!
.BY: WENDY E. MORCIO, ESQ.
Assistant Attorney General

Claimant has moved pursuant to Court of Claims Act J 0 (6) for leave to file and serve a

]are claim. The Court will deny the motion

The following documents have been reviewed:

1 Tbe Court has amendoo the caption :;ua sporn~ to reflect the Staie of New Yorl:. as the mlly proper party
defendant. "The Sme Uni11ersl1y is an integral part of the grwernment of the State and when it is sued the State is !he
real party" (Start Ul'liv, ilf N !". "Syrl:tCu.se Univ., 285 App Div 59, 6 [ [3d 1954}; see Colombo v Schw(l}'t<:, !5
AD3d 522, 521.5;13 [2d Dept 2005} Supreme Com"t's dismissal complaint again;\ a State University
hospital for lack a f jurisdiction, since was real party in intcrestj}.

0000120
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Claim No. None, Motion No. M-85598 Page2

l. Notice of Motion for Leave to File Late Notice of Claim,' dated August 27, 2014,
filed August 27, 2014;
2. Attorney Affidavit of Marilyn RaskinOrtiz, sworn to August 27, 2014, with
attached exhibits, and Claimant's Affidavit on the Merits of Jeffrey Malkan, sworn to August 26,
2014, with attached exhibits;
3. Affidavit in Opposition ofLate Claim ReliefofWendy E. Morcio, sworn to
October 28, 2014, filed October 30, 2014, with attached exhibits;
4. Reply Affirmation of Marilyn Raskin-Ortiz, dated October 31, 20 l 4, filed
November 3, 2014, with attached exhibits.

This late claim application arises from an alleged wrongful tennination of Claimant from

his position as a clinical professor at the State University of New York at Buffalo (University at

Buffalo) School of Law on August 29, 2008. Claimant was initially hired as an associate clinical

professor under a term contract in September 2000. He was subsequently reappointed to several

further term contracts, including an appointment as an associate clinical professor from

September 1, 2006 through August J l, 2009. That appointment was effectively superseded by

yet another term contract that named Claimant a clinical professor, at a higher salary, from

September 6, 2007 through the same August 31, 2009 end date. It is undisputed that each of

those term appointments was made bythe president of the University at Buffalo (see Affidavit in

Opposition of Late Claim Relief of Wendy E. Morcio, sworn to October 28, 2014 [Morcio

affidavit], exhibit B [Appointments for September 1, 2000-August 3 l, 200 l, September l, 2006-

August 3 i, 2009, September 6, 2007-August 31, 2009]).

On October l9, 2006, Mr. Malkan received an appointment letter from R. Nils Olsen,

then the Dean of the School of Law, that purportedly modified the terms of the 2006-2009

appointment (see Claimant's Affidavit on the Merits of Jeffrey Malkan, swotn to August 26,

2 Except for certain personal ir\jwy, property damage and wrongful death c!alms against Roswell Park Cancer
Institute Corporation Ulldc:r Pllblic Autbo~ Law 3567 (I) and 29SO, a "nocii::e of claim" is f()reign to the practice
in the Court ofdairns. This application will be deemed one for leave IO 6le late elaim.

t:HHl0121
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Claim No. Nooe, Motlon No. M-85598 Pagel

2014 [Malkan affidavit], exhibit A [Olsen appointment JetterJ). In his letter Dean Olsen

acknowledged that the State University's policies allowed for a max\mum three-year

appointment term, such that Mr. Malkan's contract tenn was limited to the period September l,

2006 through August 3 ! , 2009. Nevertheless, the dean agreed to provide Claimant a two-year

administrative extension at the end of the three-year contract term, thereby ostensibly affording

him a five-year appointment that evidently would conform with accreditation standards from the

American Bar Association (ABA). [n his letter Dean Olsen further agreed that Mr. Ma1kan

would only be terminated for "good cause" under rnle 405 (c) of the ABA standards. 'foe .!aw

schoo I dean also recognized Claimant's promotion to clinical professor, rathe1 than associate

clinical professor, as the president's initial 2006-2009 term contract provided.

Makau W. Mutua subsequently became dean of the Schoo! of Law. On August 28, 200!1

Dean Mutua informed Claimant that his contract would not be renewed, and that his appointment

would end on August 31, 2009 (see Malkan affidavit, exhibit B [Mutua nonrenewa! letter]). In

so doing the dean advised Mr. Malkan that the research and writing program he directed was

replaced by another skills program, and that the reconfiguration of that program constituted

good cause for his termination under the ASA rules referenced in Dean Olsen's letter.' In that

notice Dean Mutua also infonned Claimant that although Dean Oisen had described Claimant's

appointment as a five-year contract, the prior dean lacked the authority to provide for such an

extension. That appointment termination has prompted Claimant to pursue remedies in

venues.

J Dean Mutua did not add1e$S Dean Olsen's further representations that Claimant's contraci ru; a clinical
prnfos:ii:ir was separate from asslgrunent ro the clinical program, and :bar changes in !h.c diniC!!I program would nor
<:omtitme govd ~ause for Mr. l\tfalbn's termim.tion.

0000122
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7
Document { '

Claim No. None, Motion No. M-85598 Page4

Claimant's litigation in this court has a lengthy procedural history. On January 2&, 2009,

Mr. Malkan filed his first claim herein (claim No. l 16355), alleging a breach of contract based

upon the October 19, 2006 letter from Dean Olsen. That claim recited an accrual date of August

30, 2008, the date Claimant received Dean Mutua's letter advising him of the nonrenewal of his

contract In its answer, filed March 9, 2009, the State asserted inter alia a lack ofsubjec.t matter

jurisdiction, based upon the failure to plead a total sum daime.d. On November !3, 2009,

Claimant filed a second ciaim (claim No. l 17676), again asserting a beach of contract based

upon 1he October 19, 2006 letter, and reciting a total sum claimed, as well as an itemized list of

damages. In answering that claim Defendant raised multiple defenses and affirmatives defenses,

including untimeliness~ The State subsequently moved for SUt'11rnary judgment disrr..issL.ig each

of the claims. Pursuant lo a single Decision and Order (Moriarty, September 6, 2013), the

Court dismissed claim No, l 16355 for failing to state the total sum claimed, in violation of the

jurisdictional. pleading requirements of Court of Cl.aims Act J. I (b) (motion No. M-S2 l49}, and

dismissed claim No, 117676 as untimely (motion No. M-82351 ). In granting dismissal of the

latter claim the Court noted that claim No. 1l6355 affinnatively alleged an accrual date of

30, 2008, whereas claim No. 117676 did not recite a date of accrual. Nevertheless, the

Court held that Mr. Malkan's damages were reasonably ascertainable as oflhe August 30, 2008,

when he received the nonrenewal letter, such that the time for comm.encement would be

measured from that date, The decision was recently affirmed the Appellate Division, Fourth

uew:ii'Lment forthe reasons stated by the Court of Claims (Malkan v Stare of New York, 125

AD.3d 152 l (4th Dept, decided February !3, 2015]).

00001.23
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Claim No. None, Motlon No. M-85598 Page 5

On August 27, 2014, Claimant filed this application for late claim relief. In so moving

Claimant has urged in.part that his delay in filing is excusable because the two previously filed

claims were dismissed, and that the appeal of the order of dismissal would not be resolved until

the underlying statute of limitations for breach of contract expired. Claimant also asserts that

Defendant had notice of a potential claim as early as October 22, 2008, the date counsel for the

NYSUT' sent Dean Mutua a letter requesting that he reconsider the nonrenewal of Claimant's

contract, or face potential litigation for a breach of the employment agreement embodied within

Dean Olsen's letter (see Attorney Affidavit of Marilyn Raskin-Ortiz, sworn to August 27, 2014

[Raskin-Ortiz affidavit], exhibit F [letter]). Mr. Malkan contends that the claim is meritorious

because inter alia the "good cause" noted by Dean Mutua' s justification for the nonrenewal of his

contract was pretextual, and that the university did not follow the clinical appointments policy or

the faculty bylaws concerning nonrenewal of contracts in determining not to retain him.

Defendant's opposition to the motion focuses primarily on a lack of merit. It is

Defendant's position that Claim.ant's contractual rights over the period in question derived solely

from the 2006 and 2007 appointment letters from John B. Simpson, President of the University at

Buffalo, as authorized by Article XI of the Policies of the SUNY Board ofTrustees (Article Xl

Policies), which caution that a term appointment does not create any legal right, interest or

expectancy ofa reappointment. Thus, Defendant urges, any effort by Dean Olsen to extend or

modify President Simpson's term appointmenl was void. The State further observes that Mr.

Malkan was a member of a union, the United University Professions (UUP), and urges that his

4 N'ew York State United Teachers.

0000124
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Court c~mnot find an arguably merimrious cause of action by reason of rvlr. Malk:an's

terr.nination,

from Dean Olsen's !etter. Once rights, whether

were to Article Xr of the Policies. Under those

it was the president of the Uni versi!y a.t Buffaio, and not the dean of the Sr;hoo! of Law,

who served as the chiefa<lministrathe offk:er (see 8 NYCRR 326. ! (d], [hJ), and possessed the

pGwer tc make tert'.'.1 appointments (see 8 NYCRR 3 Even !hen, how-ever, the chief

adm.in1strative tifflcer was limited in the duration ~.,J"''""'"""" or reappointment 10 a

8NYCRR /u1y such appointment would

at the end of the as previously

interest or

section 135, Those

c\!llScderatinns similarly Ltndem1ine the potential merit of a cause of action that relies upon Dean

Olsen's "F'""''""''"''" letter.


"11'"""''"'"" Claimant has failed to de:mt:mstrate !ha< he can pursue a drum against the State

int.he Court cf Chums. As a member of the UUP Claimant was to the terms of his

unicm's CBA, "His well :settled that when ari ;md union enter bto a collective

;lgreement tr.Wlt creates a.

the

union, in accordance with the contract" v State

Yark, n9 AD2d 993 2.00 I}, lv denied 98 NY2d 609 cm denied 537 US 1047

0000125
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Claim No. None, II/lotion No. M-85598 Page9

2002] citing Matter of Board ofEduc., Commack Union Fne School Dist. v Ambach, 70 NY2d

501, 508, cert denied sub nom Margolin v Board of Educ., Cammack Union Free School Dist.,

485 US 1034 [1988]). Claimant's CBA did provide for a grievance procedure as "the sole

method for the resolution of grievances" (CBA 7.1 [Purpose]). The definition ofa "grievance"

extended to disputes concerning the interpretation. application or claimed violation of a specific

term or provision of the CBA (see id. at 7.2 [aJ). Grievances regarding the appointment of an

employee were restricted to procedural matters, with express reference made to Article XI and

Article XH of the Policies of the SUNY Board ofTrustees,(see id.). The grievance process

extended to arbitration (see id. at 7. 7). Significantly, the arbitrator possessed the jurisdiction to

detennine whether a disputed issue was arbitrable under the CBA (see id. at 7. 7 [c]). For that

reason it would appear that Claimant could have pursued a grievance based upon Dean Mutua' s

nonrenewal letter, and its impact upon President Simpson's term app0intments and/or Dean

Olsen's letter appointment, albeit once again limited by the CBA 'sown recognition of the Article

XI Policies. Lastly, to the extent Claimant's. pursuit of an improper practice before the Public

Employment Relations Board (PERB) constituted an election of remedies that precluded the

pursuit of a grievance under the CBA, Mr. Malkan has failed to demonstrate how that decision

would now allow for a disregard of the CBA as he attempts to file a direct claim that arguably

relates to his union agreement. 5

' Claimant's union did file a statutory impr~pnictice cnarge before the PERB in lhe fall of2009. Following
a hearing the charge was dismissed by an administrative law judge, who rejected the assertion that !be School of Law's
nonrem:wal of Claimant's tenn agreement as pert ofits institution of a new clinical studies program was slrnply a pretext
(see MorciD affidavit, exliibi! E [Decision of Kenneth S. Carlson, Administrative Law Judge, dated November S, 2012]).
That dl:cision was subsequently upheld by the Board (see id, exhibi! F [PERB affumance of dismissal, dated August 23,
2013 j). That adverse PERB dclennination lends to undermine the merit of the present allegations of pretextual
llmnination, and also constituted an alternate form of remedy, notwithstanding that it was llll5UCCcssful.

0000126
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Claim No. None, Motion No. M-35598 Page 10

The Court further notes that one of the forms of relief that Claimant seeks - an order that

the School of Law prospectively abide by its contractual obligations - is an equitable remedy

independent of an award of money damages, and likely beyond the jurisdiction of the Court. In

that regard, it is well recognized that the Court of Claims lacks jurisdiction to grant equitable

relief; except where incidental to a money judgment (see Psaty v Duryea, 306 NY 4 IJ, 417

[1954); Ozanam Hall ofQueens Nursing Home v State ofNew York, 241AD2d670, 671 [3d

Dept 1997]).

Based upon all the above, the proposed claim must be deemed as lacking the appearance

of merit.

The Court wi!! briefly review the remainingconsiderations set forth within section 10 (6).

The three interrelated factors of notice, opportunity to investigate and prejudice will be addressed

together. Although Claimant asserts that the State possessed timely notice, Defendant counters

that Mr. Maikim had not previously alleged a failure to follow proper faculty bylaw procedures in

bis termination., and that it would be prejudiced by the assertion of a new basis for relief five

years after the fact. Whlle it is true that neither of the first two claims raised those procedural

deficits, neither does the proposed claim itself; that allegation appears only in Mr. Malkan's

affidavit. The Court finds that these factors weigh in Claimant's favor. As to excuse - that tile

appeal of the dismissal would not be heard until the underlying statute expired - that excuse 1s

completely lacking in merit, since that assertion provides no true explanation as to why Mr.

000012'1
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487

Claim No. None, Motion No. M-115598

Malkan did not file a further, timely claim after receiving notice of jurisdictional defects in the

answer to each of the prior claims in 2009. That factor similarly weighs against a grant of relief.

Lastly, in this discretionary review the Cout1 has considered that Mr. Malkan did and

does have alternate .remedies available to him. He pursued a full, albeit unsuccessful, PERB

proceeding, evidently as a volunt&y alternative to a grievance and arbitration proceeding under

his union's collective bargaining agreement ln addition, Claimant's submissions support that he

has filed a claim under 42 USC 1983 against Dean Mutua and another employee of the School

of Law in the United States District Court for the Western District of New York, similarly based

upon his termination of employment (see Raskin-Ortiz affidavit, exhibit G [Decision and Order

in pending District Court matter}). To the extent the 1983 litigation is not filed directly again.,t

the State, or does not urge the specific cause of action at issue herein, an alternate remedy under

section i O (6) need not be identical to the claim that is the subject of the late c!aim application

(see Olsen v State of New York, 45 ADJd 824, 825 [2d Dept 2007] [receipt of workers'

compensation benefits are aJternate remedy to claim against State)). That factor weighs strongly

against a grant of relief herein.

Based upon the above, it is hereby

000'1128
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Claim No. None, MDtion No. M..S5598 Page 12

ORDERED, that Claimant's motion is denied.

Buffalo, New York


March 23, 2015

MICHAEL E. HUDSON
Judge of the Court or Claims

0000129
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487

DfCISION NO.
---
ftTTORNEY
' --------
fllE N o . _ .
......... -

STATE OF NEW YORK coyRT OF CLAIMS ..___~~~--

DATE
JEFFREY MALKAN,
Claimant, DECISION AND
ORDER
-v-
STATE OF NEW YORK. (STATE Claim Nos. 116355
UNIVERSITY OF NEW YORK AT 117676
Motion Nos. MB2149
BUFFALO), M-82351

Defendant.
r . . _ _,
FILED I
LSEP 08 2013 I
S1ATE COURT OF Cu\iM~
BEFORE: HON. JEREMIAH J, MOR!ARTY Ill AL_BA_N-'-V,-'-NY:....-~- .-----..
____
Acting Judge of the Court of Claims

APPEARANCES: For Claimant:


By: Marilyn Raskin-Ortiz, Esq.
James P"" Sandner1 Esq .
t:'Jll;o..h"!SrA """'"'
""-~Yl['!;il!IY
i:= f""''\~U~o::ii.n~~u..aa
.......-u..,.;;1>"4~-.:.w,111'-lf'V-,- a..--..,, .
t.::~~11

For Defendant:
Hon. Eric T. Schneiderman
New York State Attorney General
By: Wendy E. l\llorcio
Assistant Attorney General

The following were read and considered with respect to Defendant's Motio.n No. M-82149

fo:t summary judgment with to Claim No. 116355 (the first

L Defendant's Notice of}yfotion and Affidavit of Assistant Attorney General


sworn to 7, 2012, with annexed Exhibits

2. Opposing Affidavit of Marilyn Raskin-Ortiz, swom to November 12,

(1000130
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Claim Nos. 116355, 117676, Motion Nos. M-82149, M-82351 Page 2

. 4. Repjy Affidavit ofAssistant Attorney General Wendy E. Morcio sworn to November


15, 2012.

Filed papers: Claim No. 116355 filed January 28, 2009; Answer filed March 9, 2009.

The following were read and considered with respect to Defendant's Motion No. M-82351

for summary judgment with respect to Claim No. 117676 (the second claim):

I. Defendant's Notice of Motion dated October 25, 2012 and Affidavit of Assistarrt
Attorney General Wendy E. Morcio sworn to October 26, 2012, with annexed Exhibits A-E;

2. Opposing Affidavit of Marilyn Raskin~Ortiz, Esq. sworn to December 7, 2012, with


annexed Exhibit A;

3. Opposing Affidavit of Tara Singer-Blumberg swom to December 7, 2012;

4. Claimant's Opposing Memorandum of Law dated December 7, 2012;

5. Reply Affidavit ofAssistant Attorney General Wendy E. Morcio sworn to December


11, 2012, with annexed Exhibits G-I. 1

Filed papers: Claim No.117676 filed November 13, 2009; A.n5werfiled0ecember9, 2009.
I Procedural History
I On January 28, 2009, Claimant, Jeffrey Malkan, filed his first claim, Claim No. I 16355, in

which he al.leged that on October 19, 2006, he entered into a written contract of employment with

the State University of New York at Buffalo Law School (SUNYBuffalo Law School). Claimant

.further alleged that Defendant breached the contract of employment when it terminate.cl Claimant's

employment as a member of the SUNY Buffalo Law School faculty, and that this claim arose upon

receipt, on or about August 30, 200~. of a letter dated August 28, 2008 advising Claimant that his

1 On December 13, 2012, the same day the Court of Claims received and filed.Defendant's reply affidavit; !he
Court received a letter from Assistant Attorney General Morcio including pages 22 a:nd 23 of the decision of the
Administrative Law Judge with respect to the improper practice charge filed with the Public Employment Relations
Board (PERB). The-se two pages were accidentally omitted from the PERB decision attached to Assistant Attorney
General Morcio' s reply affidavit as Exhibit G. Pages 22 and 23 have been incorporated into Defendant's F.x.hibit G.

0000131
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Claim Nos. 1163551 117676, Motion Nos. M-82149, M-82351 Pagel

employment would end. On March 9, 2009, Defendant filed its answer to Claim No. 116355 in

which it alleged, among others, that this Court lacked jurisdiction as Claimant failed to comply with

Court of Claims Act 11 (b) in that the total sum claimed was not set forth in the claim (Answer to

Claim. No. 116355, first defense, Motion No. M-82149, Defendant's Exhibit B).

On November 13, 2009, Claimant filed a second claim, Claim No. 117676, in which he

alleged that Defendant breached the same written contract by terminating his employment as a

member of the faculty of SUNY Buffalo Law School. AttacheCi to c1aunant's secona claim as

attachment A was a copy of a letter dated Octobe.i; 19, 2006 which Claimant alleges is the basis of

his breach of contract claim. Unlike the first claim, Claimant's second claim contained a total sum

for each item of damage. Also attached to the second claim .as attachment B was a list of damages
I

I
or injuries with a monetary amount listed for each Hem. On December 9, 2009, Defendant filed its .

answer to the second claim, Claim No. 117676 in which it alleged, among others, that this Court did
1i
not have jurisdiction as the second claim was untimely filed and served in derogation of section 10
Ii

!
r
(4) of the Court of Claims Act (Answer to Claim No. 117676, seventh affinnative defense, Motion

No. M-823:51, Defendant's Exhibit B).

By notice ofmotion dated September 7, 2012, Defendant brought Motion No. M-8214 9 for

summary judgment to dismiss Claimant's first claim, Claim No. ll6355, alleging that Claimant

failed to comply with section 11 (b) of the Court ofClahns Act by failing to allege the total amount

claimed. It was ultimately agreed by the parties that Motion No. M-8214 9 would be submitted to the

Court for decision without oral argument. By notice of motion dated October 25, 20 I 2, Defondant

broughtMotionNo.M-82351forsumm.aryjudgmenttodismissCiaimant'ssecondclaim,ClaimNo.

117676, alleging that the second claim \Vas jurisdictionally defective. Ora! argument Wa.s heard by
);~
'I

+ 0000132
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Ii
/;
!I
~ Clalm Nos. 11635S,117676, Motion N=. M-82149, M-82351 Page4

the Court with respect to Motion No. M-82351 only. Because both claims arise out of the same

written contract of employment and because ~oth motions address, to some degree, similar issues,

the Court has decided to write one decision addressing both motions.

Defendant's Motion No. M~82149 for Summary Judgment to Dismiss Claim No. 1:16355

Defendant brought Motion No. M-82149 for summary judgment dismissing Claim No.

116355 as the claim failed to state a sum certain in derogation of section 11 (b) of the Court of

Claims Act. Pursuant to Court of Claims Act 11 (b),

"The claim shall state the time when and place where such claim arose, the
nature of same, the items of damage or injuries claimed to have been .
sustained and, except in an action to recover damages for personal injury,
medical, dental or podiatric malpractice or wrongful death, the total sum
claimed."

Strict compliance with the substantive conditions set forth :in section 11 (b) of the Court of Claims

Act is required as a .condition to the State's waiver of its sovereign immunity, and the failure to

satisfy any of these requirements constitutes a jurisdictional defect (Kolnacki v State ofNew York,

8 NY3d 277 (2007], rearg denied 8 NY3d 994 [2007]; Lepkcwski v State ofNew York, l NY3d 20 l

[2003 ]). The failure to state the total sum claimed in a breaCh of contract claim, which is not one of

the claims exempted from the total sum requirement set forth in section 11 (b) as amended (L 2007,

ch 606), constitutes a jurisdictional defect requiring dismissal of the. claim (see Friedman v State of

New York, ID No ..2007-044-563 [Ct Cl, Seba.ewe, l, Aug. 23, 2007]).2

In the claim, it was alteged that the total sum could not be calculated, but that the total swn

would equal the value of the salary and benefits lost. In: opposition to Defendant's motion, Claimant
ii

11 2 This and other unreported Court of Claims decisions may be found on the Court's web site at
;!
ii www.11yscourtofdaims.stare.ny.us.
'i
11,,

II-
. t
0000133
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Claim Nos. 116355, 117676, Motion Nos. M-82149, M-82351 Page5

argued that these allegations were sufficient under 1:!,astland Construction, Inc. v State ofNew York,

UlD No., 2012-0lS--346 [Ct Cl, Collins, J., June 26, 20121), as section l l (b) of the Court of Claims

Act merely requires that a claim provide enough detail to enable the. Defendant to investigate and

ascertain the extent of its liability. Ill Eastland, however, Defendant was argubg that t1:ie breach of

the construction oontract claim was jurisdictionally defective because it provided only examples of

the damages claimed. The jurisdictional requirement that the claim contain the total sum claimed was .

not even discussed in Eastland. Moreover~ about sjx months earlier when the same Claimant moved

for permission to late file its breach ofa,construction contract claim (see Eastland Construction, Inc.

v State of New York. UID No. 2011-0 l 5~282 [Ct Cl, Collins, J. Dec. 12, 20 l l ]), Judge Collins

mentioned in his decision granting permission to late file, the original contract price and the exact

amount ofdamages claimed. Presumably the contract price and the totii 1amount ofdamages claimed
I
were included in the proposed.claim Judge Collins considered in his earlier Eastland decision. Thus,

neither E'astland decision is relevant herein. I


More importantly, contrary to his argument, Claimant should have been able to calculate his

damages in the first claim, Claim No. 1 [6355. In fact, in his second claim, Claim No. 117676,

Claimant set forth a total sum claimed and included, as attachment B, 1111 itemized list of each item
I
of damage, establishing his ability to calculate damages. Moreover, the Court of Claims does ~ot I.
require the State of New York to ferret out infom1ation like the total sum claimed that is required

by section 11 (b) of the Court of Claims Act (Lepkowski v State ofNew York, 1 NY3d at 208).

Finally, Claimant argues that should the Court conclude that the claim is jurisdictionally

deficient for failing to include the total sum claimed that the claim should be considered as a

sufficient notice of intention to file a claim in lieu of a claim. No motion or cross motion for such

I 0000134
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' I ~ . '

,.

Ii
II
i/
r! Claim Nos. 116355, 117676,. Motion Nos. M-82149, M-82351 Page 6

I reliefis before the Court. Moreover, while section l 0 (8) (a) of the Court of Claims Act provides that

I in certain circumstances a Claimant may apply to the Court for peimission to treat a notice of

intention as a claim, there is no equivalent section of the Court of Claims Act permitting the Court

to treat a claim as a notice of intention. It further appears that Claimant always intended Claim No.

1163 5 5 to be a claim as he designated it a claim and not a notice of intention and fiied and served

the claim' (see Abbott's .Big M, Inc. v State ofNew York, lHD No. 2007-009-045 [Ct Cl, Midey, Jr.,

J., Dec. 20, 2007]).

The failure to include the total sum claimed in the rust claim, Claim No. 116355 constitutes
a jurisdictional defect requiring dismissal of the claim (Id.).

Defendant's Motion No. M-82351 for Summary Judgment to dismiss Claim No.117676

Defendant brought Motion No, M-82351 for summary judgm.ent to dismiss Claim No.

117676 on the grounds that the claim was untimely served, failed to comply with Court of Claims

Act 11, is conclusory in nature, an~ on the grounds that the griev~ce procedure afforded by the

collective bargaining agreement is the exclusive remedy and/or that the breach of the letter contract

should be brought in an Article 78 proceeding in State Supreme Court. Before the Court can address

the gravamen cifthe Claim, the Court must determine whether the claim itself is in proper form to

obtain ilie Court's jurisdiction (see generally Mujica v State ofNew York, UID No. 2003-028-530

[Ct CJ, Sise, J., Apr. 10, 2003]).

. Defendant argues that Claimant untimely served and filed his second claim, Claim No.

117676. This affirmative defensewasraisedwithparticularityinDefendant'sanswerincompliance

3 A notice ofintention to file a claim ifoo longer required to be filed with the Court of Claims (Court of Claims

Act l 0 [4J; L 1995, ch 466).

0000135
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Claim Nos. 116.355, 117676, Motf.on Nos. M-82149, M-82351 Page 7

with section 11 (c ) nf the Court of Claims Act (Answer to Claim 117676, seventh affirmative

defense, Motion No. M-8235 i, Defendant's Exhibit B). The State's waiver of sovereign immunity

is conditioned upon Claimant's comp !iance with the filing and service requirements of the Court of

Claims Act (Alston v State of New York, 97 NY2d 159 [2001]). The failure to comply with these

requirements is a jurisdictional defect compelling the dismissal of the claim (Ivy v State ofNew York,

27 AD3d 1190 [4th Dept 2006J).

Court of Claims Act 10 (4) provides that;

"[a] claim for breach of contract, express or implied, and any other claim not
otherwise provided for by this sectio11, over which jurisdiction has been
conferred upon 'the court of claims, shall be filed and served upon the
attorney general within six months after the accni.al of such claim ... "

In order to determine if the second claim was timely filed m.td served, the Court must first address

the issue of the accrual date, Like the first claim, Claimant in his second claim is seeking tl1e salary

and. benefits he allegedly lost as a result of a breach of a written letter contract dated October 19,

2006 (Claim No. 117676, attachment A, Motion No. M-82351, Defendant's Exhibit A), It is further

alleged in the second claim that Claimant was notified by letter dated August 28, 2008 that his

appointment as a professor at the law school would end on August 31, 2009, and th.at his last day of
work would be May 15, 2009.Nowhereintheseconddaim,ClairnNo. i 17676doesClaimant allege

an accmai date, Claimant however, that the claim states that "Claim.ant's employment was

31, 2009'' (Claim No, 11

Exhibit A), and argues th.at August 31, 2009 should be the accrual date as Claimant Jost no

or benefits until his employment ended,

0000136
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I Claim Nos. 116355, 117676, Motion Nos. M-82149, M-82351 Page8


1/

I A claim for breach of contract accrues when damages are reasonably ascertainable (Richard

A. Hutchens CC, L.L.C. vState ofNew York, 59 AD3d 766 [3d Dept2009J, lvdenied 12NY3d 712

[2009]; Greenspan Bros. v State of New York, 122 A~2d 249 [2d Dept 1986]). Applying this

principle, the Court of Claims in Syrkin v State of New York, U1D No. 2006-030-524 [Ct Cl,

Scuccin1arra, J., Apr. 5, 2006]) held that the claim accrued when notice was given that the Claimant

therein would not 9e reappointed as an Assistant Professor in the Science Department of the State

University ofNew York Maritime College _and not when his current term expired. \!/bile Claimant

rightly notes that the claim in S)'rkin was for discrimination and not for breach of contract, Judge

Scuccimarramade it clear in his decision that in setting the accrual at when notice of termination was

If, received and not when employment ended, he was applying the principle that a claim accrues w~n

damages are reasonably ascertainable (Syrldn v State ofNew York, at p.4.).


l1
I Moreover, it appears that Claimant, initially at least, agreed that the accrual date should be

when Claimant received notice that he would not be reappointed. In his first claim, Claim No.

116355, Claimant alleged "[t]he claim for a breach of this contract [the same letter contract dated

October 19, 2006] arose upon the receipt, on or about August 30, 2008, of a letter dated August 2&,

2008," to Claimant :from the Dean of the Law School advising Claimant that his employment would

end (Claim No. 116355, 13, Motion No. M-82149, Defendant's Exhibit A). Claimant :filed his first

claim on J~1uary 28, 2009, eight months before he now argues his second claim for the same relief

accrued.

Contrary to his argument, Claimant's alleged damages for breach of the letter cont:J:act of

October 19, 2006 were reasonably ascertainable in Ao.gust-2008 when he received notice that his

employment would end. In fact, the terms of the allegedly breached contract vere setfort.11 in the
I
j
000013?
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Claim Nos. 116355, 117676, Motion Nos. M-82149, M-82351 Page9

I letter contract dated October 19, 2006. Claimant did not have to wait until his last day. of
. J
) employment to reasonably calculate his damages. The Court concludes that Claimant's second

I breach of contract claim, Claim No. 11.7676 accrued on Augi.;.st 30, 2008 when Claimant received

notice that his employment would end. Because the second claim was filed and served more than six

months after his claim accrued, it is untimely and must be dismissed. In view of ~ fact that

Claimant's ~econd claim, Claim No. 117676 is dismissed on jurisdictional grounds, Defendant's

remaining grounds for dismissal of this claim have not been considered at this time.

Finally, in the event that


.
Defendant's motion for dismissal. of the second claim, Claim N-0.

l 17676 is granted, Claimant requests that he be permitted to seek leave to amend the claim.

Unfortunately, no such relief is available. First, there is no motion or cross motion pending for

permission to amend either the :first or the second c.laim. More importantly.. a ju.'1sdictionaJly

defective claim may not be cured through an amendment (Hogan v State ofNew York, 59 AD3d 754

[3d Dept 2009]); O'Kane v State ofNew York, UID No. 2013-040-017 [Ct Cl, McCarthy, J., Mar.
.....

7, 2013)).

Based on the foregoing, it is hereby

ORDERED, that Defendant's Motion No. M*82149 is granted and Claim No. 116355 is

dismissed; and it is further

ORDERED, that Defendant's Motion No. M-82351 is gra11ted and Claim No. 117676 is

dismissed.
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Claim Nos. 116355, 117676, Motion Nos. M-82149, M82351 Page 10

Buffalo, New York


August 26, 2013

!
I,

~
0000139
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STATE OF NEW YORK


PUBLIC EMPLOYMENTRELATIONSBOARD

In the Matter of

UNITED UNIVERSITY PROFESSIONS, NEW YORK


STATE UNITED TEACHERS, AFT, LOCAL 2190, AUG 29 2013
AFL-CIO,

Charging Party,

-and- CASE NO. U~2S826

STATE OF NEW YORK {STA TE UNNERSfTY OF


NEW YORK AT BUFFALO),

Respondent.

TARA SINGER-BLUMBERG, LABOR RELATiONS SPECIALIST, for


Charging Party

MICHAEL N. VOLFORTE, ACTING GENERAL COUNSEL {LYNN HOMES


VANCE of counsel)~ for Respondent

BOARD OECtSlON AND ORDER

Th.is case comes to the Board on exceptions filed by the United University

Professions, New York State United Teachers, AFT, Local 2190, AFL-CIO (UUP)

to a decision of an Administrative Law Judge (ALJ) dismissing an improper

practice charge alleging that the State of New York (State University of New York

at Buffalo) (State) violated 209~a.1(a) and (c) of the Public Employees' Fair

Employment Act (Act) when it did not renew the appointment of Clinical

Professor Jeffery Ma!kan {Matkan) at the University at Buffalo (UB) !aw school in

1 45PERB1f4611

0000140
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Case No. U~28826 -2 -

Mutua (Mutua.) knew that UUP was representing 'Malkan about hls status at the

law school prior to Mutua's decision to not renew Malkan as a Clinical Professor.

In the alternative, the ALJ concluded that UUP failed to prove by a

preponderance of evidence that butforthe at-issue protected activity, the State

would not have taken the adverse action against Malkan.

EXCEPTiONS

In its exceptions, UUP asserts that the ALJ's factual conclusion that Mutua

was unaware of UUP's involvement at the time of his decision to not renew

Malkan's appointment as a Clinical Professor was clealiy erroneous based upon

tl1e record evidence. In addition, UUP's exceptions challenge the ALJ's

alternative conclusion that It failed to meet its burden of proof of demonstrating

that Malkan's nonrenewal was improperly motivated. Finally, UUP objects to the

inclusion in the ALJ's decision of references to portions of Mutua's testimony

concerning Malkan. The State supports the ALJ's decision.

Following our review of the parties' arguments and the record, we affirm

the ALJ's decision to dismiss the charge on the ground that UUP did not

demonstrate by a preponderance of the evidence that Mutua was aware of the

at-issue protected activity at the time he refused to renew Malkan's appointment


as Clinical Professor. As a result, we need not reach UUP's exceptions

concerning the ALJ's a!temative basis for dismissing the charge. 2

2 We however, UUP's exception to quoting and paraphrasing in his


decision, portions of Mutua's testimony concerning Ma!kan and his job
Regardless of how characterizes that testimony, it is relevant
to the ALJ's alternative determination concerning the motivation for the adverse
taken against Malkan.

0000141
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Case No. LJ..,28826 -3-

FACTS

After he was appointed interim law schqol Dean in December .2007, Mutua

became chair of the Academic Planning and Policy Committee (APPC}. At the time,

Malkan was the at-will director of the Research and Writing Program (Program) and

held an appointment as a Clinical Professor, which was subject to a term contract.

One of Mutua's earliest priorities as interim Dean was to substantially transform the

Program into a comprehensive legal skills program, and to terminate Malkan as the

Program director.

Under Mutua's direction, APPC formed a. subcommittee focused on making

changes to the Program. On February 13, 2008, Mutua met with six Program

instructors without Malkan present. At the meeting, the instructors expressed


dissatisfaction with Malkan's leadership, their salaries and their job security. During

an APPC meeting on February 20, 2008, Mutua reported the results of his meeting

with the Instructors including their criticisms of Malkan's program management.

Malkan testified at the hearing before the ALJ that Mutua stated at the APPC

meeting thatthe instructors "were very unhappy with the direction of the program,

which really meant they were very unhappy with me, and that Mutua then
TI

commenced a "very demeaning and hostile speech toward me," which Malkan

viewed as "really crude and offensive and hostile and abuslve.''3

On the same day as the APPC meeting, Mutua sent separate letters to

Malkan and the Program instructors requesting they submit to him by February 29,

2008, a written assessment of the effectiveness of the Program and Malkan's

leadership. Each instructor was informed that the written response would be kept

3 Transcript, p. 51.

0000142
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Case No. LJ-,28826 -4-

confidential unless she or he granted written permission to share their assessments

with Ma!kan. A review of the written. submissions by Mutua in early March 2008

confirmed his conclusions that a new skills program was needed and that Malkan

should be terminated as Program director.

On March 10, 2008, Mutua's secretary sent an e-mail to Malkan stating that

Mutua wanted to schedule an in-per5on meeting with iv1a!kan in the next few days or

a telephonic meeting if he was out of town. The following day, Malkan responded

with an e-mail stating that he would not be able to meet with Mutua until the

following week and that he wanted an opportunity to review the instructors' written

assessments. Less than three hours later, Mutua's secretary sent another e-mail to

Malkan notifying him that Mutua wanted to speak to him the next day, and

requesting a convenient time and telephone number where Ma!kan can be reached.

Ma!kan replied with an e~ma.il that included a message to be forwarded to Mutua:

I'm out of town during spring break, but I can meet


with you next week. Before ! do, I need for you to tell
me in advance whether. I am going to receive the
support I asked for in my self~assessment report,
which I believe you had time to review and consider
by now.

Jeffrey

P.S. If there is something urgent that you need to


communicate to me tomorrow, send me an e-mail so I
wm know what I am supposed to respond to. One
thing you should know about me ls that I don't like
surprises to be sprung on me, Hke you did at the last
APPC meeting. I submitted my self~assessment
report on February 29, as you requested, and i was
waiting to headrom you ail iast week, but didn't. {l
was even in your office on Friday, during the
snowstorm.) I understand the sudden
in the middle of spring break, but I will certainly

000014:~
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Case No. U-28826 . 5-

answer as bast ! can if you explain to me what the


problem is. 4

Mutua testified that he interpreted Malkan's e-mail as insubordinate and

belligerent and c~nstituted a refusal to meet or speak with him without condition. 5

On March 12, 2008, Mutua sent an e-mail to Malkan requesting his resignation as

Program director effective the following day. After Malkan refused to resign, Mutua

sent him another e-maif relieving him of his duties as Program director. The

following day, Mutua sent an e-mail to-the entire law school faculty informing them of

the administrative action that had been taken against Malkan.

On March 25, 2008, Malkan met with UUP Labor Relations Specialist Tara

Singer-Blumberg (Singer~B!umberg) and UUP faculty grievance representative Paul

Zarembka. The State and UUP are parties to a collectively negotiated agreement

for the period July 2, 2007~July 1, 2011.

On the same day that he met with UUP representatives, Malkan attended an

APPC meeting chaired by Mutua. At the commencement of the meeting, Ma!kan

unsuccessfully attempted to have Mutua add the issue of his removal to the agenda.

Mutua described Malkan's behavior at the meeting as being emotional and


threatening, 6 while Malkan testified that Mutua told him to basiea!ly ushut up."7

On March 26, 2008, Singer-Blumberg telephoned UB Director of Labor

Relations Jeffrey Reed {Reed) to discuss the administrative action taken against

4 Joint Exhibit 2.
5

0000144
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Case No. U-28826 -6 -

Malkan. After Reed admitted to being unfammarwith the situation, Singer-Blumberg

sent Reed an e-mail on March27, 2008. In here-mail, Singer-Blumberg stated that

despite a request made by Malkan, Mutua "has refused to provide any reason for his

actions."a In addition, her e-mail included a request that Malkan be provided with the

reasons for his removal as Program director and for Mutua to send out a name

clearing e-mail to faculty stating that the removal was not based on any malfeasance

or wrongdoing. The e-mail did not allege that Mutua's conduct violated a provision

.of the. State~UUP agreement.

Reed forvvarded Slnger~Blumberg's e-mail to law school Vice Dean for

Resource Management Marlene Cook (Cook), who had been Reed's law school

contact concerning
,
an unrelated issue a year or two
.. .
before. Cook did not respond to

Read regarding the e~mai!.

On or about April 3, 2008, Singer-Blumberg and Reed discussed her March

27, 2008 e-mail during an informal labor-management meeting. Reed explained to

Singer-Blumberg that he had forwarded the e-mail to Cook but she had not

responded. A day after the informal meeting, Reed reforwarded Slnger-Blumberg's

e-mail to Cook and law school Vice Dean for Administration James Newton

{Newton), after Reed learned that Newton was t~e law school administrator

responsible the of issues raised in the e-mail. Newton's duties include

overseeing the !aw school's administrative units, and serving as Mutua's chief of

with responsibility to examine all matters requiring Mutua's attention.

At his next regulariy scheduled weekly meeting with Newton brought

over a dozen items requiring Among was


----~----....~---.....---=~-~--~-.

8
Exhibit 4.

0000145
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Case No. U-28826 - 7-

request for a name clearing e-mail. .During the meeting Newton to!d Mutua that" Jeff

Malkan has requested a name clearing e-mail. "9 Newton dld not inform Mutua that

the request had come from anyone but Ma!kan. In response to the request, Mutua

told Newton that he would not send such an e-mail, and that if he did distribute

another e-mail on the topic it would Include unfavorable comments concerning

~,ilalkan's performance~ On or aboui Aprif 15, 2008, ~~evv'ton informed Reed about

Mutua's response to the requested name clearing e-mai!, which Reed shared with
Singer-Blumberg a few weeks later.

At some point prior to a May 7, 2008 law school faculty meeting, during which

an APPC recommendation .about the Program was approved, Malkan sent an e-mail

directly to Mutua stating that in light of his removal as Project director he would no

longer participate in further APPC discussions about the Program unless Mutua

specially requested his participation. 10

During a labor-management meeting in early May 2008, Singer-Blumberg

requested that Reed arrange for a direct meeting between Mutua and Malkan to

discuss issues concerning the latter's removal as Project director. UB Assistant

Director of Employee Relations Sarah Couch (Couch) was delegated the

responsibility to follow-up on the request for a meeting. Couch sent a short e-mail to

Newton stating that Malkan wanted to meet with Mutua. At their next meeting,

Newton told Mutua that ",Jeff Malkan has requested [to] slt down with

9 Transcript, p. 368.

m Transcript, pp. 62~83; Charging Party Exhibit 5,

11 Transcript. f:L 369.

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487

Case No. U-28826 -8-

Mutua emphatically rejected the idea. Mutua testified that he was not aware of

UUP's involvement in representing Malkan and that he first learned of that

involvement when he received a copy of the charge tn the present case. iz

After Newton shared Mutua's answer to the requested meeting with Couch,

Couch set an e-mail to Slnger-Blumberg on May 2008, which stated in part:

3) Malkan: I have indicated to Jim Newton that Jeffrey


Malkan is seeking a sit down with someone from the
Dean's office. Jim has spoken with the Dean and the
Dean feels that they informed Jeff about his dismissal
for performance, and he does not feel the need for
additional meetings at this time. 13 (Emphasis added).

A redacted copy of Couch's &-mail was forwarded to Malkan by Singer-Blumberg.

After speaking with Malkan, Singer~Blumberg sent an e~mail to Couch and Reed on

May 29, 2008 containing the substance of ~aikan's response: Mutua refused to,

provide him with any information concerning his removal; he warns an opportunity to

revie\a1 the assessments submitted by the instructors: and l\4utua shoutd distribute a

name clearing e-mail concerning his removal.

On June 11, 2008, Singer~B!umberg sent an e-mail to UB Vice-President for

Human Resources Scott Nostaja (Nostaja) setting forth the background of Malkan's

removal as Program director and the subsequent efforts to obtain the rationale for

his removal, a name clearing e~ma!!,. and a meeting between Mutua and Malkan.

During his testimony, Reed stated that Nostaja, after receiving Singer~Blumberg's e-

mail, contacted him for background information about Malkan's situation. Reed

. explained to Nostaja that two prior requests had

12 Transcript, p, 208.

ni Charging Exhibit 15.

0000147
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Case No. U-28826 -9-

were rejected. Reed testified that:

I Indicated to him that it was a clear massage [sic] to


usfrom the Dean's office that that they didn't wish to
grant either of those requests, and [Nostaja] indicated
to me that our office had done what we needed to do
and that he would get back to Tara because he didn't
feel like we needed to do anything further. 14

Mutua and Newton testified that Nostaja did not contact them with respect

to Malkan.15

In contrast, Singer-Blumberg testified that following her e-mail to Nostaja,

she spoke with him concerning Malkan and he agreed to speak with Mutua in an

attempt to persuade him to grant the prior requests. In addition, Singer-

Blumberg testified about two additional conversations with Nostaja:

I remember having two conversations with him in his


office. In one of them he somehow knew I was in the
buildlng and came to find me and I stopped by and we
talked about a bunch of cases, Jeff Malkan being one
of them, and he told me that he had spoken with the
dean and that the dean was adamantly refusing to do
anything we were asking of him, that he was very
resistant to Scott's push to the union's request, but
that Scott would speak with hfm again to see whether
we could get any of the things that we were looking
fu~M .

In letter$ dated July 14, 2008, Mutua Informed Program instr.uctors that their

appointments ending on August 31, 2009 would not be renewed. In a letter dated

August 28, 2008, Mutua notified Malkan that his appointment as Clinical Professor

would not be renewed, and that his last day of work would be May 15, 2009.

14 Transcript, p. 358.

15 Transcript, pp. 232, 370.

16 Transcript, pp. 130-131.

0000148
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Case No. U-28826 - 10-

DISC.VSSIQN

When an Improper practice charge alleges unlawfully motivated

interference or discrimination in violation of 209-a.1 (a) and (c) of the Act, a

charging party has the burden of demonstrating three elements by a

preponderance of evidence: a) the affected individual engaged in protected

activity underthe Act; b) such activity was known to the person or persons taking

the employment action; and c) the employment action would not have been taken

"but for" the protected actMty, 17

To demonstrate a prima facie case, a charging party has a relativaly low

inltia! threshold in demonstrating an inference of improper motivation. 18 When

that inference is demonstrated, the burden of persuasion shifts to the respondent

to present evidence demonstrating that its conduct was not improperly

motivated. 19 At all times, however, the burden of proof restl3 with the charging

party to prove all three elements by a preponderance of the evidence.20 When a

charging party fails to meet its burden that the at-issue activity was known to the

person taking the adverse employment action, an allegation of improper

17 UFT, Local 2, AFT, AFL-CIO (Jenkins), 41 PERB 1[3007 (2008)(subsequent


~ history omitted}; County of. Wyoming, 34 PERS ~3042 {2001 ); Stockbridge Valley
Cent Sch Dist, 26 PERB '1f3007 (1993); County of Orleans, 25PERB1[3010
(1992); Town of Independence, 23PERB1J3020 (1990); City of Salamanca, 18
PERS iu3012 (1985).
18
Local 2, AFT, AFL-CIO (Jenkins), supra note 17; Bd of Educ of the City
Sch District of the City of New York (Grasse!) 43 PERB ~3010 (201 O); Town of
Tuscarora, 45 PERS 13044 (2012); Bd of Educ of the City Sch District of the City
of New York (Guttman), 46PERB113008 (2013).

19 Town of PERB 1f3044 (2012).

20 Elwood Union Sch 43 PERB ,-r3012 0).

0000149
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Case No. U-28826 -11-

motivation must b~ rejected.21

In the present case, UUP presented sufficient evidence as part of its prima

facie case to create an inference that Mutua might have known of UUP's

representation with respect to the requests for name clearing e-mail, a dired

meeting with Mutua and information concerning the factual basis for Malkan's

removal. The inference can be drawn from Singer-Blumberg's conversations with

US employee and human relations representatives Reed, Couch and Nostaja, the

... fact that Reed foiwarded Singer-Blumberg's March 27, 2008 e-mail to Newton, and

Singer-Blumberg's e-mail to Nostaja on June-11, 2008. Based upon the record in

the present case, however, we conclude that a preponderance of the evidence

refutes the inference that Mtua had knowledge of UUP's representation.

We credit Mutua's testimony that he was not aware of UUP's representation

at all relevant times. His denial is supported by other evidence including Newton's

testimony that during his meetings with Mutua he told him that the requests came

from Malkan. We find no evidentiary-based rationale for discrediting Newton's

testimony, and specifically reject UUP's assertion that Newton's testimony should be

afforded little weight solely because of his position and responsibilities. In fact

Couch's May 23, 2008 e-mall, introduced into evidence by UUP, demonstrates that

when Couch relayed to Newton the request for a direct meeting with Mutua, she

indicated that Malkan was the one seeking the meeting. 22 Furthermore, the record is

21 County of Tioga, 44 PERB 13016 (2011 ).

22 Charging Party Exhibit 15. After UUP and Malkan received Couch's e-mail,
they apparently did not request Couch to contact Newton to clarify the source of
the request.

0000150
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Case No. U-28826 -12 -

barren of evidence demonstrating that Singer-Blumberg's e-mails regarding Malkan

were "forwarded to fl.tlutua or that he received hard ci>pies of them.

In crediting Mutua's denial of knowledge, we also notethat the at-issue

requests were substantively similar to Malkan's prior e-mail communications with

Mutua and their orat exchange at-the March 25, 2008 APPC meeting. While UUP's

representation of Malkin is clearty a protected activity under the Act, we find that

Mutua did not have a reason to know of such representation when the indirect

requests did not reference the terms of the Sta:te-UUP agreement or were the

subject of a contract grievance.

Finally, we reject UUP's arguments that the evidence demonstrates that

Nostaja directly advised Mutua that Malkan was being represented. and that a

negative inference should be drawn against the State for not calling Nostaja.

The only evidence presented during the hearing that MUtua learned of UUP's

involvement from Nostaja Is Singer..Slumberg's hearsay testimony about a statement

made by Nostaja in his office concerning a purported conversation with Mutua.

While hearsay is admissible in an administrative hearing and it can form the sole

basis for an administrative determination,23 Singer-Blumberg's testimony lacks

sufficient specificity to outweigh Reed's testimony regarding his conversation with

Nostaja, and the denials by Newton and Mutua concerning purported contact from

Nostaja concerning Malkan.

We find no basis to draw a negative inference against the State for not calling

Nostaja as a witness under the facts and circumstances of this case. As noted, UUP
has the burden of proving all three elements of its case. The record reveals that
23 County of Erie, 43PERB13016 (2010).

0000151
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Case No. U~28826 -13-

UUP planned to call Nostaja. to testify with respect-to the second element of notice,

and Singer-Blumberg had made arrangements for his testimony well in advance of

the hearing.24 While Nostaja was not subpoenaed, and he was not present during

the hearing, he was on call to testify on behalf of UUP. Ultimately, UUP decided not

to call him to prove its case or to rebut the testimony of Reed, Newton and Mutua.

Whiie the State indicated at the end of the second day of hearing that it might call
Nostaja as its own witness,25 It subsequently decided not to call him because

ueveryone wants to finish today - the Union, [the ALJ]- we are all willing to just let

the record stand as it is, and we will not be calling Mr. Nostafa."26 Under those facts

and circumstances, we find no basis for drawing a negative inference against the

State, or for that matter UUP, for faiting to call Nostaja to testify.

Based upon the foregoing, we affinn the ALJ's decision to dismiss UUP's

charge alleging that the State violated 209-a.1(a) and (c) of the Act.

IT IS, THEREFORE, ORDERED that the improper practice charge is

dismissed.

DATED: August 23, 2013


Albany, New York

# ~
. ;fMM... . . .

24 Transcript, p. 234.

25 Transcript, pp. 234-235.

26 Transcript, pp. 376--378.

0000152
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Case 1:12-cv-00236-MAT-HKS Document 63-3 Filed 08/30/14 Page 48 of 76

---
STATE OF NEW YORK 1~~~.~-": '
PUBLIC EMPLOYMENT RELATIONS BOARD
fill NOV ~ ~. 2;1: L
In the Matter of BY=-------~--
UNITED UNIVERSITY PROFESSIONS, NEW YORK
STATE UNITED TEACHERS, AFT1 LOCAL 2190,
AFL-CIO,

Charging Party, .

- and - CASJi fiQ, U-28826

STATE OF NEW YORK (STATE UNIVERSITY OF


NEW YORK AT BUFFALO),

Respondent.

TARA SINGER-BLUMBERG, LABOR RELATIONS SPECIALIST, for


Charging Party

MICHAEL N. VOLFORTE, ACTING GENERAL COUNSEL (LYNN HOMES


VANCE of counsel), forRespondent

DECISION OF ADMINISTRATIVE LAW JUDGE


The United University .Professions, New York State United Teachers, AFT,

Local 2190, AFL-CIO (UUP) filed an improper practice charge alleging that the State

of New York (State University of New York at Buffalo) (State} violated 209~a.1(a)

and (c) of the Public Employees' Fair Employrrumt Act (Act) when it did not renew

Jeffrey Malkan's appointment as a cllnlcal professor. The State flied an answer

denying any violation of the Act.

A hearing was held on November 17, 2009, March 31, 2010 and April 1,

2010. Both parties submitted post-hearing briefs.

FACTS

fn the fall of 2000, Jeffrey Malkan was hired by the State's University at

0000153
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Case No, U-28826

Buffalo Law School (UB Law} as a Clinical Associate Professor. He was also named

Director of the Research and Writing Program (Program) at UB Law.

Malkan's initial appointment was for a term of three years. 1 He taught a

number of courses while acting as the Director of the Program, none of which were

cllnical courses. A second three year contract was offered to Maikan by Dean R.

Nlls Olsen following what Malkan described as a perfunctory review."2 In April of

2006, the faculty undertook a review of Ma!kan'e performance in order to determine

whether to offer him a permanent appaintment

Makau Mutua, the current Dean of UB Law, testified that he attended the

faculty meeting In April of 2006 during which It was discussed whether Malkan

should continue as Director of the Program and be promoted from Clinical Associate

Professor to Clinical Professor. Mutua, who st that time was a professor at UB Law,

testified that the faculty discussed whether it was appropriate to promote Malkan to

full Clinical Professor when he was not teaching in a clinic and that some members

of the faculty questioned the approprtateness of Malkan's !nltlal appointment as a

Clinical Associate Professor.3 Mutua further described a heated discussion on

whether Maikan should continue as Director of the Program. 4 Mutua testified that he

recommended that Ma!kan be terminated Immediately and that the Program be

scrapped and restructured from scratch. Ultimately, the faculty did not vote on

1 Charging Exhibit 1,

2 Transcript, at p. 40.

4 Transcript, at pp, 174-1

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Case No. U-28826

Ma!kan's faculty appointment, 5 but did resolve to recommend to Dean Olsen that

Maikan's admiri!stratlv~ appointment as Director of the Program be continued for

one year, during which time tMey vvou!d look for a new Director. The faculty also

resolved to ask Dean Olsen to appoint a committee to study and restructure the

Program.

These actions were not binding on the Dean, however, and Malkan was

offered a pasition as Clinlcal Associate Professor3 for the period September 1, 2006

through August 31, 2009. 7 Olsen Issued a reappointment letter dated October 19,

2006, which included a copy of the American Bar Assoc!ation {ABA) standard

governing clinical appointme!'lts. 8 In the letter, Olsen Indicated that future reviews

would be based on the "for cause" removal standard set forth in the ABA rules.

According to Malkan's testimony, Olsen was unable to get the State University of

New York (SUNY} legal department to amend the trustees' policies to allow clinical

professors at UB Law to be awarded five year contracts, As a result, in order to

comply with the ABA standard on clinical professors, Malkan was given a three year

contract with a guaranteed two year extension. The reappointment letter axpressed

those terms and contained two separate lines for Malkan to sign, reflecting the fact

that he was receiving two separate appointments: an academic appointment as

5 Transcript, at p. 274.
11ln a memorandum dated September 3, 2007, Olsen noted that Maikan's
reappointment to a te1m contmct should have resulted In a change in title from
"Clinical Associate Professor" to "C!!nlcal Professor," and requested that his
reappointment be to reflect that titie. Charging Party Exhibit 4.
1
Exhibit 8,
8 Charging Party Exhibit 3.

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-------
Case No. U-28826 -4-

Clinical Professor and an administrative appointment as Director of the Program. 9

In June of 2007, after Dean Olsen announced he would be resigning his

position, the planning committee, which was chaired by then-Professor Mutua, met

at a retreat and developed a strategic plan fer UB law, which Included a plan to

restructure the Program. ln a document titled KGoing F<irward,'' the faculty adopted

a plan to
[rJeview the Law Schoors apprpach to the teaching of research,
writing, and related advoaley skills both during the first year and In
the upper division. The review should also address the status,
. qualifications, compensation, mentoring, and evaluation and
retention of research and writing Instructors. A new Committee on
Research and Writing, or a subcommittee of the APPC should be
formed to conduct this review and make recommendations for
enhancing and securing the future of the Program. 10

According to Mutua, faCtJlty members felt that their instructions to Dean Olsen in

2006 had not been followed; they viewed the plan as "an opportunity to rectify that

problem with the ultimate goal being a complete overhaul of the Program. 11

In December of 2007, Mutua was appointed Interim Dean of UB Law. As

Dean, Mutua reports directly to the Provost and President of the University. He Is

responsible for hiring faculty and staff, assigning faculty, engaging in fundraising

activfties on behalf of the school, Improving the vislbllity of the school, raising the

school's ranking and improving the performance of UB Law students, with a

particular focus on the bar exam passage rate, which Mutua testified had been

below the average passage rate in New Yori< State prior to and during Malkan's

e Id.
10 Respondent Exhibit 5.

11 Transcript, at p. 186.

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tenure with the Program. Mutua described a three tier structure of faculty at UB

Law. First, tenured or tenure-track faculty members constitute the "core" of the

faculty and have the right to vote on matters of appointment and the governance of

the law school .12 Clinical associate and clinical professors teach in the law school's

clinics and are hired to three~year contracts that may be renewed. Finally,

instructors are hired for terms of a short duration.

As Interim Dean, Mutua assumed the position of Chair of the Academic

Planning and Policy Committee (APPC) and, pursuant to the strategic plan, formed a

subcommittee to address issues Involving research and writing. 13 Mutua testified

that the Program "was for a long time kind of a ghetto" and not considered an

integral part of the currlculum. 14 Tha Program Instructors hired to teach .research

and writing courses are not considered faculty members. 15 They are hired to a

series of one~year contracts, renewable annually, for a total of three years. 18 Mutua

testified that Program instructors were not visible since they were not part of the

governing faculty17 and because most were on short-term, one-year contracts and

thus "came and went."18 He testified that prior to Malkan's inltlal appointment, some

12 Transcript, at p. 165.

13 Transcript, at pp. 18~'H89,


14 Transcript, at pp. 167168.

15 Transcript, at p. 32.

r"-"''"r'"T at pp. 33-34.

at p. 169.

18 Transcript, at p. 170.

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Case No. U-28826 - 6.

members of the faculty, including himself, recognized that the Program was

important and needed to be upgraded. In 1999 or 2000, they cxmvinced the Dean to

hire a director of the Program ''to give it more coherence and ... more pedagogical

and curriculum rationale." 19 Ma!kan was hired to that position with the expectation

that he would revlta.lize the Program. However, according to Mutua, Ma!kan failed to

engage the faculty and never presented any proposal to rethink and restructure the

Program.20 Mutua testified that many faculty members-complained about the poor

quality of students' legal research and writing skills and placed the blame on the

failure of the Program, and specifically on the failure of Malkan "to create a program

that was responsive to the needs of our stooents."21

Mutua testified that as Interim Dean he knew ha wanted to elim\nate the

Program and replace it with a more comprehensive Legal Skills Program.22 Mutua

had concluded that Malkan was unfit to lead this new program because he had

shown no inclination to rethink the Program and had been unresponstve to faculty

suggestions on how to improve lt.23

19 Transcript, at pp. 170-171.

20 Transcript, at p. i 71.
21 Transcript, at p. 172:.
22 Transcript. at p. 189. In 2005, at Mutua's request, Malkan had provided Mutua
with a memorandum summarizing different staffing models used for law school
research and writing programs, Charging Party Exhibit 8, Ma!kan pointed out
that UB Law was among a small minority of law schools that capped the
contracts of Its research and writing instructors, and noted that a of
research and writing programs had raised questions about programs rely on
"a revolving stream" of instructors on short-term contraGts. Id.

23 Transcript, at p, 189.

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Shortly after hfs appointment as Interim Dean, Mutua learned that the legal

instructors were threatening to resign en masse over the poor state of the

Program. 24 On February 13, 2008, he met with the instructors outside of Malkan's

presence. They discussed Ma!kan's lack of leadership and his unavailability to meet

with them to help select problems and a syllabus for teaching. According to Mutua,

they "painted a picture' of a Director who was unapproachable and not Interested in

their welfare. 25 The instructo,rs also discussed the poor conditions of their

employment, including low pay and a lack of job security. 26

The APPC met on February 20, 2008, with both Mutua and Malkan in

attendance. Mutua advised the APPC that the Program Instructors had told him they

were unhappy with the direction of the Program, Malkan testified that th ls "really

meant they were very unhappy with me..a7 According to Malkan, Mutua then began

"sort of a very demeaning and hostile speech toward me saying that the research

and writing program was a disgrace ... [and] that the faculty had bean closing Its

eyes ...for too long and that ntJ was- time for the faculty to take it bacic"28 Ma!kan

testified that lie was "totally appalled at being spoken to this way in public" and felt it

was crude, offensive, hostile and abusive.29

24 Transcript, at pp. 190-191.


26 Transcript, at p. 191.
2a Id.

27 at p. 51.

2a Id.

2S Id.
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Also on February 20, 2008, Mutua sent a letter to Malkan30 and each

research and writing lnstructor,31 asking them to provide a written assessment of the

Program and its leadership by February 29, 2008. Mutua reviewed the submissions

in early March. They confirmed his opinion that Malkan was an incompetent,

Inaccessible Director who had not provided adequate leadership to the Program. 32

Mutua testified that the submissions from the Program's instructors confirmed his

decision to terminate Mafkan from his position as Director of the Program, as well as

his decision to end the Program In Its exlating form. Mutua further testified that after

he met with the instructors, they reported to James Gardner, the Vice Dean for

Academics, that Malkan was harassing them over their meeting with Mutua and had

threatened not to renew their contraas.33

Mutua directed hre secretary, Cheri Tubin!s, to schedule a meeting with


Malkan. Tublnls e-mailed Malkan on March 10, 2008, the start of UB law's spring

break, advising that the Dean would like to meet with Malkan in the next few days,

or, ff he was out of town, hold a telephone meeting. 34 Via e-mail dated March 11,

2008, Malkan asked Tubinis to forward a message to Mutua Indicating that he was

out of town during spring break but could meet with hlm "next week." 35 In that

30 Respondent Exhibit 2.
31 Respondent Exhibit 3.

32 Transcript, at pp. 195-196.

33 Transcript, at pp. 196-197.

34 Joint Exhibit 2.

35 Id.

I
I
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message to be forwarded to Mutua, Malkan wrote "1 need for you to tell me in

advance whether I am going to receive the support I asked for in my self~

assessment report, which I believe yau .have had time to review and consider by

now. sse Malkan further. wrote, tt there Is something urgent that you need to

communicate to me tomorrow, send me an &-mall so 1wm know what l am supposed

to respond to. One thing you should know about me Is that I 'don't like surprises to be

sprung on me like you did at the last APPC mee11ng.n37 Similarly, in another e-mail

from Malkan on March 11, 2008, he Indicated that the earliest he could meet with

Mutua was "a week from tomorrow." 38 Jn that e-mail, Malkan asked for an

opportunity to review "any documents involved" before being asked pfor my opinion

or response."38 In areply e-mall, Tublnls lndlcated that Mutua wanted to meet wlth
Ma!kan the next day and requested h!s phone number and a convenient time to can.

Mutua testified that he reQ!irded Malkan's repHes as Insubordinate and

belligerent.40 On March 12., Mutua sent an e--m~il to Malkan expressing regret that

he had been unable to meet With him, either in person or on the phone, and

indicating that he had concluded that the Program "should move in a different

direction under new leadership."41 Mutua requested that Malkan Immediately resign

36 fd.

37 Id.

as Id.
i
39 /d. I

40

41
Transcript, at pp. 200-201.

Joint Exhibit 2.
I
1.

I
I i

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Case No. U-28826 "10 -

as Director of the Program. Malkan replied vis e-mail that he was not going to

resign, questioning "why you felt that the mfddle of spring break was the appropriate

time to take this action and stating that "It certainly does not look like openness and

transparency were of much concern to you, which disappoints me .. .''42

On March 13, 2008, Mutua infonned Malkan by e-mail that he was relieved of

his duties as Director of the Program.43 Later that day, via e--mafl, Mutua advised the

faculty of the action that he had taken.

After spring break, Malkan contacted a UUP grievance representative, Paul

Zarembka, who reached out to another UUP representative, Tara Singer-Blumberg.

They met with Malkan on March 25, 2008 to discuss his removal as Director of the

Program.

~.lso on March 2.5, Mutua chaired a meeting oi the APPC, with Malli.an in

attendance. Mutua testified that during the meeting Malkan "exploded in an

outburst: .. shaking his hand at me and essentially just trembllng.'>44 Mutua testified

that Malkan shouted that Mutua would not get away with this, claiming that he -

Malkan ..i.. was not "the kind of person that {Mutual should mess with" and continuing

that the Dean "was going to get what was coming to him."45 Mutua testified that he

was concerned that Malkan would "go postar on him and that he was afraid for his

42 ld.

43 Id.

44 Transcript, at p. 205.

46 Jd.

r
I

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Case No. U-28826

safety. 46

On March 26, Singer-Blumberg called Jeffrey Reed, the Director of Employee

Relations for the University at Buffalo, and on March 27 she &-malled Reed

regarding Malkan.47 UUP asked that Malkan be provided with the reasons for his

removal and that Mutua immed!ately send out a c!arification e-mail to the faculty

advising them that Jeffs removal from Director of the program was not due to any

malfeasance or wrongdoing on Jeff's part."48

Singer-Blumberg testifled that she met with Reed on Apr!! 3 or April 4, that

Reed told her he had forwarded her March 27 e~mal! to Marlene Cook, the Vice

Dean for Resource Management at UB Law, and that she was supposed to share it

with Mutua and respond. At some point after meeting with Slnger-B!umberg, Reed

lea med that rather than Cook, James Newton, the Vice Dean for A.dmin!stratlon at

UB Law, was the approprlate contact person. He then foiwarded Slnger-B!umberg's

e~mail to Newton.

Newton oversees all of the administrative units ofUB Law, including

admissions, career services development, alumni and information teGhno!ogy. He

serves as Chief of Staff to the Dean, so that matters requiring the Dean's attention

first come to him.49 Newton testified that upon receiving the e~mall from Reed, hi~

confirmed wfth Cook that she had not discussed it with the Dean. He called Read,

46 Transcript at p. 206.
47 Joint Exhibit 4.

4s Id.

49 Transcript, at pp. 365~366.

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Case No. U-28826 -12

advised him that he was in fact the correct contact, and Indicated that he would

discuss with the Dean the request that a name~clearlng e-mall be sent to the

faculty. 50

Newton testified that he and the Dean have a standing weekly meeting during

which he will bring ten to fifteen matters to the Dean's attention.51 He further

testified that in one of those meetings, he told Mutua that Malkan had requested a

name-clearing e-mau.52 Newton testified that the Dean replied that he would not

issue an e-mafl, and if he were to do so, It "would probably... not be the type of

message that Jeff Malkan would like to go to the faculty." 53 Mutua similarly testifled

that he vaguely recalled Newton asldng him if he would issue a name-clearing e-mail

to the f~culty and that he told Newton "absolutely not" and that if he were to send .

such an e-me!!, it would truthfully state that Malkan was rsmoved for

incompetence.54 Mutua testified that Newton did not mention UUP nor was he

aware that the request had come from UUP. 55

On or about Aprll 15, 2008, Newton told Reed that the Dean would not issue

a name-clearing e-mail, and if the Dean were to Issue an e-mail to the faculty, it

50 'Transcript, at pp. 350, 367.


51 Transcript, at p. 368.

52 td.

53 Transcript, at p. 368.

54 Transcript, at pp. 206-207.

55 Transcript, at p. 207.

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would be truthful and thus wouid not be favorable to Mafkan. 56 Reed conveyed this

information to Slnger-Blumberg. She testified that Reed told her that the Dean

refused to Issue a name-cfearlng e-mail 1 and that if he was forced to issue an e-mail,

he would say that Malkan had bean removed frtim his position as Director for his

failure to perform and because he had received complaints from other faculty about

Malkan's performance.67 During this conversation, Singer-Blumberg asked Reed if

he had any Indication from the Dean's office that Malkan's clinical appointment was

in jeopardy. Reed responded that he had heard no such thing and that he had not

discussed Malkan's clinical appointment with anyone in the Dean's office.58

During the first week of May, Singer-Blumberg asked Reed to speak to the

Dean about having a "face to face" meeting with Malkan so they could discuss

issues about his performance. 59 Reed asked Sara Couch, the Assistant Director of

Employee Relations, to contact Newton. Newton testified that during his weekly

meeting with Mutua, he told him that Malkan.had requested that the Dean sit down .

with him," and that Mutua's respon!le "was an emphatic no.00 Mutua testified that

he recalled Newton teUing him that Malkan wanted to have a face-to-face meeting

with him and that he respondeq "are you crazy, absolutely nor because he felt

. 56 Transcript, at p. 351.

57 Transcript, at p. 122.
58 Transcript, at pp. 353-354.
59 Transcript, at pp. 123-i 24.

60 Transcript, at p. 369.
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Case No. U-28826 -14-

threatened by Malkan.61 Mutua testified that he was not aware that UUP was asking

for this meeting or was In any way involved on Ma!kan's behalf until he received the

pleadings in the Instant charge.62

Newton advised Couch of the. Dean's response. On May 23, 200B, Couch

sent an e-mail to Singer-Blumberg stating the following:

I have indicated to Jim Newton that Jeffrey Malkan Is seeking a sit


down with someone from the Dean's office. Jim has spoken with
the Dean and the Dean feels that they Informed Jeff about his
dlsmissaf for performance, and he does not feel the need for
additional meetings at this time.83

On May 29, 2008, Singer-Blumberg replied by e-mail to Reed and Couch, Indicating

that Malkan was never given any Information about his dismissal and again

requesting a name-clearing message.64 SingerwBlumberg testified that in early June,

Reed and Couch told her that they "hit a wafl" with the Dean, who had refused to

meet with Mafkan or to send a name-clearing message. Reed testified similarly that

he told Slnger..Slumberg that he saw no use in continuing to make the requests

since "we had already done lt."65

Malkan testified that the non-renewal of his appointment should have gone

before the Committee on Clinical Promotion and Renewal, which did not consider It.

He testified that, also during the 2008-2009 school year, two cfinical professors with

61 Transcript, at pp. 207~208.

62 Transcript. at p. 208.

63 Charging Party Exhibit 15.

64 Joint Exhibit 5.

65 Transcript, at p. 357.

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the same rank as Ma!kan had their status reviewed by the committee and a

recommendation given to the Dan.66 !n contrast, Mutua testified that Malkan was

not entitled to such a review because, ur:illka those professors, he was not teaching

in the US Law clinics. 61

At a May 7, 2008 meeting, the law school faculty resolved that the Interim

Dean:

...should consider appointing a. tenure track or tenured member of


the law faculty to develop a proposal to establish a Skllls Training
Program that would bring under one umbrella Research and
Writing, moot courts, bar review, Trial and Appellate Advocacy,
Trla! Technique, Negotiation, ADR and similar programs (which
shall not include the clinics). 68

The resolution Indicated that the appointed faculty member would also be charged

with evaluating the current research and writing program and proposing changes to

that program. By e-mail dated June 19. 2008~ f\~utua informed the facuity that

Professor George Kanner was belng tasked with directing the existing Program and

had "agreed to lead the Law School In considering the creation of a Skills Training

Program" pursuant to the recent faculty reooMion.69

Kannar anc;I Gardner were asked to lead the search for new legal

instructors. Mutua testified that he wished to "wipe the slate clean" and "begin

from scratch," and as a result, he issued non~renewal letters to all the Instructors

66 Transcript, at pp. 83~84; Charging Party Exhibit '16.

Transcript, at p. 227. Mutua described Ma!kan's status as "out of category"


ey7
since he had been given a cilnlca! appointment even though he was not teaching
in a c!lnio. Transcript, at p. 276.

'"""'"'""',... Party Exhibit 5.

6s Charging Party

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Casa No. U~28826 -16 -

in the Program, including Malkan.70 Mutua testified that for long-term contract

employees, It ls customary to issue non--renewal letters one year prior to the

expiration of their contract.7 1 By letter from Mutua dated August 28, 2008,

Malkan was advised that his appointment as Cllnical Professor was not being

renewed. 72 In that letter, Mutua indicated that UB Law had terminated the

Program and was replacing It with a Skills Program to be headed by a tenured

faculty member.73 He also noted that as a resutt of these changes, non--renewal

notices had been given to all the Instructors in the "defunct'' Program.74 Mutua

further noted that the October 19, 2006 appointmen1 letter had indicated that

Malkan could only be terminated as Clinical Professor "for cause" or "for good

cause:75 Under the "offlcfal Interpretation of the ABA rule, Mutua wrote, good

cause !11cludes "t-ermination orrr.atenal modlflcatl.on oftne c~1nfca\ program."76

Mutua concluded that the termination of the Program thus met the requirement of

the ABA rule. The fetter indicated that while all Program instructors had been

non-renewed, they would be considered for instructional positions In the new

Skills Program should they apply. Malkan was advised that he was also

70 Transcript, at p. 214.
71 Transcript, at pp. 215-216.
72 Joint Exhibit 7.

13 Jd.
74 Id. Non-renewal letters to Program instructors had been Issued on July 14,
2008. Respondent Exhibit 9.

75 Id.

76 Jd.

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welcome to apply for an instructional position under the new Skills Program.n

Malkan submitted an app!k:ation dated October 2008. 78 Following a

national search, five new instructors were hired - In the new tit!e of "lecturer"79 -

while two instructors with the Program were offered positions as iecturers.80 Mutua

testified that hiring decisions were made by a separate committee, on which he did

not sit, and that he was not involved in the interview or selection process. ay letter
dated Marcil 30, 2009, Gardner advised Malkan that ''we have decided not to pursue

.your appilcatron any further. "81


By memorandum dated April 15, 2009, KBnnar submitted a proposed facu[ty

res:oiution establishing a Legal SkU!s Program.112 According to the resolution, "the

Law School should establish a Legal Skllls Program, which should initially include

the law School's non..cllnical offerings in three areas: (1) b~sic and advanced legal

research and writing; (2) adjunct-taught training In legal skills; and (3) staff or

adjunct-led courses and activities relating to professional development.83 The legal

Skills Program, the resolution continued, ~should be coordinated and overseen by a

tenured or clinical professor who should also undertake efforts to integrate relevant

71 Id.
78 Charging Exhibit 11.
79 Transcript, at p. 217.

ao Transcript, at p. 216.

131 fd.

82 Charging Party Exhibit 7.

83

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Case No. U-28826 - 18-

extra..curricufar activities .. .into more effective setvlce of the Law Schoor s overall

educational objectives ...84 An organizational chart attached to the resolution showed

that the individual overseeing the new Legal Skllls Program would, ln addition to the

research and writing component, be responsible for overseeing professional

development and adjuncMaught legal skills, which lnciuded both litigation and non-

litigation skills. The full faculty voted to approve the measure on April 22, 2009. 85

A SUNY Distinguished Service Professor, Chartes Patrick Ewing, was hired to

lead the new Legal Skills Program.88 Nearly 40 percent of the law school curriculum

was consolidated under this new program. 87 Under fl1e new program, five sections

of the Research and Writing course were offemd in the fall of 2009 - the same

number that had been offered in the fall of 2008.88 According to Mutua, lecturers

hired undartha new program v.."6i'e paid "at least" $60,000, wnlle under the old

Program instructors had been paid "below" $40,000.89 Mutua testified that the salary

increase, along with longer-term contracts, would help him search for and hire

lecturers from around the country. 00

Malkan remained on the faculty through the 2008-2009 school year, teaching

84 Id.

85 Transcript, at pp. 66-88.


86 Joint Exhibit 8.
87 Transcript, at pp. 218-219.

as Charging Party Exhibits 13 and 14.


89 Transcript, at pp. 335-336.

00 Transcript, at p. 213.

J
I

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Case No. U-28826 -19 -

six course credits in both the faU and spring semesters.91 His employment with VB

law ended on August 31, 2009.

DISCUSSION

It is well settled that in order to estab~sh a prima facie oase of improperly

motivated interference or discrimination under 20Q..a.1(a) and (c) ofthe Act, a

charging party has the burden of pl'Ovlng, by a prep~>nderanoe of the evidence, that:

(1) the affected individual was engaged in protected activity; (2) such activity was

known to the person or persons making the adverse employment decision: and (3)

the action would not have been taken "but for" the protected activity. 92 As for the -

third prong in the test, union animus may be estab~shed by direct or circumstantial

evidence.93 If the proof estabrrshes a prlma facie case, the burden of persuaslon

shifts to the respondent to es.tahUsh that Its actions 'lr.?ll'0 mctl'.1ated by \eglttmate

business reasons. 94 This rn tum may be refuted by showing that the reason given

91 Transcript, at p. 73.
92 United Fedn of Teachers (Jenkins), 41 PERS 1(3007 (2008), conf1rmed sub nom.
Jenkins ii New York State Pub Empt Rel Bd, 41 PERS ~7007 (Sup Ct New York
County 2008); affd, 67 AD3d 567, 42 PERB 1{7008 (1st Dept 2009), Iv denied, 43
PERS 1f7003 (1st Dept 2010), citing City of Salamanca, 18 PERS ff3012 (1985);
Town of Independence, 23PERS113020 {1990); County of Orleans, 25 PERB ~3010
(1992}; Stockbridge Valley Cent Sch Dist, 26PERB1[3007 (1993); and County.of
Wyoming, 34 PERB ,3042 (2001). ,
93Town of Hempstead, 19 PER81f3022 (1986);Town of Independence, supra;
Village of New Paltz, 25 PERS '3()32 (1992}; Hudson Valley Community Coli, 25
PERB ~3039 (1992); County of Nassau, 35 PERS 13045 (2002), confirmed sub
nom. CSEA v New York State Pub Empl Rel Bd, 2A03d1197, 38 PERS f1019 (3d
Dept 2003).

e4 Jenkins, supra, citing State of New York (SUNY at Buffalo), 33 PERB ~3020
(2000). See also State of New York (SUNY), 38 PERS '3019 (2005), confirmed sub
nom., CSEA v New York State Pub Empt Rel Bd, 35 AD3d 1005,.39PERB1[7012
(3d Dept 2006).
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Case No. U~28826 - 20 -

for the conduct is pretextual.95

There is no dispute that Malkan was engaged in protected activity when UUP

advocated on his behalf afte~ he was terminated from his position as Director of the

Program, However, the State contends that UUP has not satisfied the remaining

elements. As for the second prong of the test, the State contends that Mutua, who

made the decision not to renew Malkan's contract, was unaware that UUP was

assisting Malkan in his efforts to obtain either a name-clearing e--mall or a face-to..

face meeting with the Dean.

Testimony established that In March of 2008, Singer-Blumberg communicated

with Reed regarding a name-clearing e-mail from the Dean. In early April, Reed

forwarded the message to James Newton, who testified that he told Mutua, during a

brief weekly meeting, that Malkan had requ9$led the issuance of a narne..ciearing e-

mail. In May, Singer-Blumberg told Reed that Malkan would like to meet with the

Dean. Reed's assistant, Couch, communicated this request to Newton, who then

told the Dean that Malkan had requested a meeting. Newton testified he told Mutua

that both the request for a name--cleariiig e-mail and' the request for a meeting with
'
the Dean had come from Malkan. Mutua slmllariytestlfred that wlth respect to both

requests, he was not aware that UUP was Involved, and that he only learned of its

involvement when he received the instant Improper practice charge. The undisputed

testimony thus establishes that, In both communications initiated by UUP on

Mafkan's behalf, the Dean was told that the requests had come from Malkan. There

is no evidence that Mutua was aware of UU?'s involvement on behalf of Matkan. As

a result, UUP has failed to meet its burden under the second prong of the test. On

95 Town of Independence, supra, at 3038.

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thls basis alone, the instant charge must be dismissed.

Even lf UUP had demonstrated that Mutua was aware of UUP's advocacy on

Malkan's behalf, or if! were to draw such an Jnference, as UUP argues in its post~

hearing brief that i should,96 the charge would stm be dismissed.

UUP contends that but for Singer-B!umberg's advocacy on behalf of Ma!l<an

in the spring of 2008, his employment oontracl: would not have been non-renewed in

August. The non~renewal letter was Issued less than two months after Singer-

Blumberg had sent an &-ma!! requesting more information regarding the removal of

Ma!kan as Dfrector of the Program. However, the timing of the issuance of the non-

renewal letter to Malkan was credibly explained by Mutua as resulting from the

customary practice of issuing such letters approximately one year prior to the

expiration of an employment contract. !n tl"tis instance, Ma!kan's contract expired on

August 31 , 2009, thereby explaining the issuance of the non-renewal letter on

August 28, 2008.

Even assuming, without finding, that the timing of the Issuance of the non~

renewal fetter was sufficient to meetthe "relatively low initial evldentlary threshold"97

required to establish a prima facie case, the burden then shifts to the State to

demonstrate a non-discriminatory basis for the non-renewal of Maikan's employment

r.ontract. The State contends that t'he decision not to renew Maikan's contract was

made because UB law was Instituting a new Legai Skiiis Program to replace the

Program for which Malkan or!g!hal!y had been hired. In response, UUP that

this Is simply a pretext and, msupport of that argument, contends that the Legal
9Charging PostHearlng Brlef, at p. 5.

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case No. LJ..28826 -22.

Skills Program was not markedly different from the Program in place under Malkan.

I credit Mutua's testimony regarding hfs concerns with theeffectlveness of the

Program under Malkan's leadership. The evidence shows that Mutua was

concerned with the Program as early as 2005, when he asked Ma!kan to pro\fide a

summary of the practices of other law schools regarding the staffing of research and

writing programs. Mutua expressed general concerns overthe state of the Program,

and specific concerns over Malkan's leadership, at a faculty meeting ln April of 2006.
Moreover, record evidence regarding actions taken by the faculty - including the

2007 adoption of a strategic plan to review UB Law's approach to the teaching of

research and writing and the 2008 faculty resolution recommending that the Dean

appoint a tenured faculty member to develop a comprehensive skills program that

would place a variety of matters under one umbrella - are consistent with Mutua's

testimony regarding concerns with the Program. The record evidence thus supports

the State's argument that Malkan was non-renewed because the Program was being

replaced by a more comprehensive Legal S.kllls Program.

In sum, the evidence shows that even before Malkan had engaged in any

protected activity, Mutua and the faculty had expressed concerns over the

effectiveness of the Program and were taking steps to replace it with a more

comprehensive skills program under the direction of a tenured faculty member.

Those efforts continued after Malkan was issued the non~renewal letter at issue

here, and ult!mately culminated In the Aprll .22, 2009 faculty approval of a
I
restructured Legal Skills Program at UB Law. Given this evidence, I cannot

conclude that the creation of a new Legal Skills Program was merely a pretext
I

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masking some inappropriate motive for Malkan's non-renewal.

Similarly, UUP's argument that the new Legal Skills Program was a change in

name only and, thus, merely a pretext for justifying Malkan's non-renewal, Is

rejected. The new program was more expansive than the previous Program In the

scope of courses and other activities that It covered. Salaries were increased

significantly in an effort to recrult and retain better lecturers. And finally, the new

Legal Skllls Program was led by a tenured faculty member with the same

governance rights as other members of the faculty. That introductory research and

wrtting courses remained the same or similar to the courses that had existed under

the Program, as UUP contends, does not alter the conclusion that the overall Legal

Skills Program was markedly different from the defunct Program that Malkan had

led.

In light of the above, the charge must be, and hereby is, dismissed.

Dated at Albany, New York


this 81h day of November, 20'12

Kenneth S. Carlson
Administrative Law Judge

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