17-38-cv
Wniteb $->tate1l qcourt of ~ppeal1l
jfor tbe
$->econb <!Circuit
Jeffrey Malkan,
Plaintiff-Appellant
v.
Makau W. Mutua,
Defendant-Appellee
Charles P. Ewing
Defendant
Jeffrey Malkan
Plaintiff-Appellant, pro se
12 Valleywood Ct. W,
St. James, N.Y. 11780
(631) 862-6668
Case 17-38, Document 30, 02/17/2017, 1975447, Page2 of 158
INDEX TO APPENDIX
Special Appendix
4. Decision and Order of Hon. Richard A. Arcara on motion to dismiss and motion for stay, filed
10/3/2012 ...................................................................................................... 94
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
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 30, 02/17/2017, 1975447, Page3 of 158
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
Volume 11
Correspondence between Frederic Ostrove, Esq. and David Sleight, Esq. (October 2014 to March
2015) .......................................................................................................... 354
1. Malkan contract with ABA Standard 405(c), Oct. 19, 2006 ............................. 375
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 ............... .414
Complaint in Malkan v. Gardner, Erie County Supreme Court, Oct. 21, 2015 ................... .438
Motion for Separate Trials, Charles P. Ewing, Aug. 13, 2014 ......................................... .176
J\,1e1norandum.............................. . ....................................................................... 181
Deciaration of Randolph C. Oppenheimer, Esq ......................................................... 195
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, l\1akau W. Mutua, Charles P. Ewing ..................... 197
JEFFREY MALKAN,
Plaintiff,
v. NOTICE OF MOTION
Defendants.
000017'7
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487
s/Randolph C. Oppenheimer
Randoiph C. Oppenheimer, Esq.
Abigail D, Flynn-Kozara, Esq.
0000178
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0000175.l
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487
CERTIFICATE OF SERVICE
[ hereby certify t.h.at on August 2014, I filed the foregoing Notice of Motion, Declaration of
Motion for Separate Trials, and Appendix to Memorandum with exhibits Tab A - Tab 0, with
the Clerk of the United States District Cou.."t for the Western District of New York using the
CMJECF system, which would then elect.ronicaHy notify the following CM/ECF participants in
this case:
s/Randolph C. Oppenheimer
Randolph C. Oppenheimer
Doc #1950.G/,l.
0000180
Case 17-38, Document 30, 02/17/2017, 1975447, Page9 of 158
JEFFREY MALKAN,
MEMORANDUM OF LAW
Plaintiff, IN SUPPORT OF
CHARLES P. EWING'S
v. MOTION FOR SEPARATE
TRIALS
MAKAU W. MUTUA and
CHARLES P. EWING
in their individual capacities, 12-CV-0236(A)
Defendants.
PRELIMINARY STAIEMENT
This Memorandum is submitted in support of Defendant Charles P. Ewing's ("Ewing")
Motion for Separate Trials. Plaintiff Jeffrey Malkan's ("'Malkan'') claims against Dean Makau
Mutua ("Mutua") should be tried separately to avoid foreseeable "spill-over effect" and indelible
prejm:lice to Ewing, who truly is an innocent bystande; to ti.e events t.'1at led to .Malkan's 1983
employment claim. Ewing played no role in Mutua's decision to non-renew Malkan's tenn
appointment as Clinical Professor. Ewing entered the picture later, as part of a good faith
process within the Law School to try to resolve in a collegial fashion differences among faculty
members. Instead of getting a reward for bis selfless service and professionalism, his good deed
has been punished. Lest the punishment become even worse, he asks for a separate trial.
Malkan is a former Clinical Professor at the State University of New York at Buffalo Law
School (the "Law School"). Mu.tua is the Dean of the Law School. Malkan was hired as Clinical
Associate Professor in 2000. (Exhibit A: Malkan Dep. 35; ExhibitB: Defendant's Ex. 6). On
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April 28. 2006, the Committee on Clinical Promotion and Renewal ("CCPR") 1 held a meeting to
discuss Malkan's promotion to Clinical Professor. (Exhibit C: Avery Dep. 22-23). Mutua
(who was not then Dean of the Law School) attended the meeting as a tenured faculty member.
Also in attendance were Professors Susan Mangold, Dianne 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, and Guyora Binder. (Exhibit C: Avery Dep. 74-76; Exhibit D: Plaintiff's Exs. l
& 17). Though she arrived late, Professor Isabel Marcus also attended 1he meeting. (Exhibit C:
Avery Dep. 76). Avery artd Mangold took notes of the meeting. (Exhibit C: Avery Dep. 23;
Exhibit D: Plaintiff's Ex. 17; Exhibit E: Mangold Dep. 17-18; Exhibit D: Plaintiff's Ex. 1).
We then had a vote on [Ma1kan's] candidacy for clinical full professor for an
appointment to - promotion to the position of a clinical full professor from his
position as clinical associate professor.
That vote I can see - I remember at the time the vote passed by a majority vote
and I can see from my contemporaneous notes that the vote was nine yes, seven
no and three abstentions.
Mangold, who was then Vice Dean for Academic Affairs and chaired the meeting in the
Dean's absence, testified: "The outcome [of the vote to promote Malkan] was that he was
appointed and, you know, to the - reappointed recommendation for reappointment to full clinical
1 Under the Faculty Bylaws, the Law School's Committee on Clinical Promotion and Renewal ("CCPR") has
"jurisdiction over and the power to make recommendations with respect to promotions, including the granting of an
indefinitely renewable long-term contract, renewal, dismissal, or termination of the appointment of a Faculty
Member who is on an indefinitely renewable long-term contract or on track fur [one]." (Exhibit D: Plaintiff's Ex.
8, p. 8). The CCPR is comprised of"all Faculty Members who are tenured or on an indefinitely renewable long-
tenn contract"; it is chaired by the Dean. (Exhibit E: Mangold Dep. l l4-ll5; Exhibit D: Plaintiff's Bx. 8, p. 8).
0000182
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professor.' 1 (Exhibit E: Mangold Dep. 17 & 68). Mangold's contemporaneous notes reflect the
same vote count as Avery's. {Exhibit E: Mangold Dep. 18; Exhibit D: Plaintiff's Ex. I).
Steinfeld testified that ''there was a vote in favor of Professor Malk:an's promotion to
clinical professor." (Exhibit F: Steinfeld Dep. 9). And FrenchRedwood testified: "[t]he topic
of his tenure as a clinical professor was brought up and we voted on it. . . . It was not
l.ll1animous, as I recall, but it was a majority or a significant percent.age was pro, granting
Professor Malkan [full clinical professor status]." (Exhibit G: French~Redwood Dep. 6).
To date, Mangold, Avery, Steinfeld and French - as well as three others who attended the
April 28, 2006 CCPR meeting (Shubha Ghosh, Alfred Konefsk.y, Lynn Mather and Isaber
Marcus) - have also attested under penalty of perjury that the CCPR voted by secret ballot at that
Declarations of Dianne Avery, Rebecca French, Shubha Ghosh, Alfred Konefsk.y, Susan
Mutua testified at his deposition in this matter that the CCPR did mil vote on whether
Malk:an should be promoted to Clinical Professor; rather he testified that the CCPR voted to keep
Malk:an as Director of the Research and Writing Program for an additional year. (Exhibit I:
Mutua Dep. 36). Mutua swore that the CCPR voted to have Malkan stay on "as a caretaker of
the program while we also look for another Director and he look for another job elsewhere."
Mutua also t-estified that the vote he contends was taken to retain Malkan as Director of
Research and Writing for one more year was so close that someone at the meeting questioned
whether abstentions should be counted as negative votes, (Exhibit l! Mutua Dep. 39). Then
Mutua testified that former State University of New York at Buffalo President William Greiner,
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who was a member of the Law School faculty, spoke at the meeting and advised the CCPR on
the question of how abstentions should be counted. (Exhibit I: Mutua Dep. 39-40). Contrary to
Mutua's testimony about Greiner's statement is the uncontroverted fact that it would have been
impossible for Greiner to speak at the meeting because, as is abundantly clear, Greiner was ,rull in
attendance at this CCPR meeting. (Exhibit D: Plaintiff's Exs. 1 & 17; Exhibit H: Avery Deel.,
Prior to his testimony in this action, Mutua testified under oath at the administrative
proceeding relating to Malkan's nonrenewal before the Public Employment Relations Board
('"PERB"), ''There was no vote on [the promotion] issue." (Exhibit J: PERB Transcript, Vol. 3,
p. 291). According to Mutua. Malkan was not going to be promoted following that meeting
because the CCPR never voted on his promotion at the meeting. (Id.) Mutua testified that there
was no subsequent meeting to vote on Malkan's promotion. (Id.) So, accottling to Mutua - and
only Mutua - Malkan was promoted to Clinical Professor without a recommendation from tlie
CCPR. Mutua contended, therefore, that then-Dean Nils Olsen had no authority to recommend
Malkan be promoted to Clinical Professor because he acted absent a recommendation from the
CCPR. 2 (Id.)
Mutua continues to insist that his recollection of the April 28, 2006, meeting is correct,
even after four faculty members in their depositions in this litigation have c.ontradicted his
version of events. On December 19, 2013, he categorically maintained under oath that there was
no vote on Malkan's promotion to Clinical Professor and that the only vote that took place was
on whether Malkan should be allowed to continue for an additional year as Director of Research
and Writing. Mutua testified: "I remember this very clearly." (Exhibit I: Mutua Dep. 43). To
4 This seems to contradict Mutua's theory in this litigation that he has the right, ab8ent recommendation from the
CCPR, to non-renew Malken's appointment.
0000184.
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487
Ca~~4:Ilt:~6~1i~ ~'M::2 ~j~~~!l!4 ~1~'.kff 1J! 122
date, no one else who was present at the meeting remembers what Mutua claims to remember
For instance, shortly after the cor.clusion of the CCPR meeting on April 28, 2006,
Professor James Gardner ("Gardner") complained to Professor Lynn Mather ("Mather") that the
CCPR had voted to recommend that Malkan be promoted to Clinical Professor. His
conversation with Mather took place in an incidental encounter with her in a stairwell in the Law
School building. Mather recalls that Gardner (who had opposed Malkan's promotion to Clinical
Professor), indicated his unhappiness with the result of the meeting of the CCPR, and that he was
"upset" at the vote to "promote" Malkan to Clinical Professor, deeming it a "mistake," but that
he had been "outvoted." (Exhibit H: Mather Deel., 1'fl 4~5). After the meeting, Gardner also
talked to Vice Dean Mangold, who chaired the CCPR meeting, about the outcome of the vote.
He questioned whether there had been sufficient votes for a positive recommendation, by a
majority of those voting, that Malkan be promoted to the rank of Clinical Professor. Mangold
recalls that "[f]ollowing the April 2&, 2006 meeting," Gardner "approached me and questioned
the way abstentions. should be counted," but that "[a]fter some discussion, Professor Gardner
accepted that the vote to renew and promote Professor Malkan was valid." (Exhibit H:
Mangold Deel.,, 6). That, of course, is more evidence that the vote actually took place.
The only rational explanation for Gardner's concern about the result of the vote \.Vas that
he had failed in his attempt to block the promotion of Malkan; that is, in fact there had been a
vote and Malkan had obtained a majority of the votes nec.essary for promotion to
Professor. Moreover, a few months ago, Gardner voiced his "surprise" when he was
informed that Mutua had testified under oath that no vote on Malkan's and
5
Case 17-38, Document 30, 02/17/2017, 1975447, Page14 of 158
Deel.,~ 20). "That's not what happened," observed Gardner. He then stated his recollection that
a vote had oc-eu.rred, that the vote was valid, and that Malkan had been promoted to Clinical
Mutua, therefore, has testified twice under oath-at the PERB hearing and in his
deposition in this litigationc---as to his unique version of events at the CCPR meeting on April
2006. He has not produced a single witness--from the eighteen other tenured faculty members
who attended the CCPR meeting--to support his account, though he has had ample opportunity
to do so before, during, and after bis testimony under oath in two separate legal proceedings.
Respectfully, we believe the reason he has been unable to provide evidence of his version of
events is that none exists, that is, no witness can or will corne forward with an even vagueiy
similar story. 3
In March 2008, shortly after Mutua became Interim Dean of the Law School, he fired
Malkan from his position as Director of the Research and Writing PrograrrL Subsequently, on
August 28, 2008, Mutua, then Dean of the Law School, gave Malkan a one-year notice that his
appointment as Clinical Professor would not be renewed. FoHovving Malkan's notice of non-
1In the Statement of Undisputed Facts submitted in support ofMutua's Motion for Summary Judgment (f.29, p. 9-
10, filed June 7, 2014), Mutua's attorney concedes the discrepaooy in testimony, and thereby highlights the fact that
his client maintains a version of events sharply in contrast with all other testimony on the subject:
There is 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 fuat the vote was in his favor. Defendant Mama [sic], on the other [hand?], recalls
t.l:tat 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
should l'(X;ommend that the Dean offer Malkan a terminal one year appointment, and that vote came
out in Malkan' s favor.
Only Mutua and no one else subscribes !!) his na.rratlve. By stipulating this "sharp disagreement; Mutua's co11nsel
attempt,~to finesse the obvious and unoomfortable truth that not only is there a conflict in the testimony, but that
Mutua's version of events is uncorroborated by either other witnesses or docmnents. Indeed, the notion of a "'sharp
disagreement" is a conceit since Mutua is the only person with a different version of the events.
0000186
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renewal, Ewing recommended to Malkan that he invoke the faculty grievance process, provided
under the Faculty Bylaws, as "a way to try to amicably resolve the lack of communication"
between Malkan and Mutua." (Exhibit L: Ewing Dep. 23). On January 7, 2009, Malkan
submitted a grievance against Mutua to the Grievance Committee. (Exhibit A: Malkan Dep.
105, 117; Exhibit B: Defendants' Ex. 30). Whereas Malkan's claim against Mutua is based on
Mutua's decision to non-renew his term appointment without a recommendation from the CCPR
and Mutua's failure to bring the issue before the CCPR at all, Malkan's claim against Ewing
arises out of Malkan's subsequent invocation of the Law School faculty grievance process,
administered by the Grievance Committee. Ewing is a defendant in this action solely because a
faculty committee bad designated him as Chair of the Grievance Committee. After receiving his
non-renewal notice, Malkan also began pursuing various remedies though his union via PERB
administrative proceedings and in the Court of Claims. The Grievance Committee, through
Ewing, promptly began investigating the grievance in accorda.'lce with the Law School's Faculty
Bylaws. (Exhibit L: Ewing Dep. 23). Ewing had already spoken to Malkan. (Id.) Thus, his
next step was to speak to Mutua. (Id.) Bringing the faculty grievance process to a halt, Mutua
refused to speak with Ewing because of the other pending proceedings. Mutua told Ewing that
he could not discuss the grievance "because there is current litigation and threatened litigation by
Professor Malk.an against the university, the law school, maybe even the dean." (Exilibit L:
Ewing Dep. 23~24). The Grievance Committee's unanimous recommendation, therefore, was
that there was nothing the Grievance Committee could do until Malkan's other claims had been
adjudicated and Mutua was free to speak to the Grievance Committee. (Exhibit K: Ewing Deel.
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Governors' Office of Employee Relations. (Exhibit M). Vance had represented the State
University of New York at Malkan's PERB hearing. In this letter, Malkan alleged: "Makau
Mutua gave false testimony under oath pertaining to a material fact in the case, specifically, the
his allegations, Malkan included excerpts of Mutua's PERB testimony as well as emails he
received from funner Law School professor Markus Dubber, who attended the CCPR meeting,
and former Law School Dean Nils Olsen ("Olsen"), who did not. Professor Dubber advised
Malkan that the majority of the faculty members attending the CCPR meeting voted 'io grant
[MalkanJ tenure as a clinical professor: (Exhibit M). Olsen, who was Dean of the Law School
in April 2006, informed Malkan that, although he had not attended the CCPR meeting, Professor
Mangold called hhn shortly after the meeting ended a.'ld told him that the CCPR voted to
approve Malkan's promotion to Clinical Professor. Olsen also advised Malkan that he had "at
least one conversation . . . about the meeting and vote with a colleague that was entirely
Malkan then sent Vance and several SUNY employees, including Ewing, an email on
November 27, 2013, reiterating his evidence that Mutua testified falsely under oath. (Exhibit
N). In that email, Mallcan contended that Mutua lied under oath at the PERB proceeding when
he testified that there was no vote on Mallcan's promotion to full Clinical Professor. Malkan
stated: "This lie, of course, calls into question Dean Mutua's credibility on every other point of
0000188
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On April 20, 2014, Malkan conta{:ted State University of New York at Buffalo President
Satish Tripathi his concerns regarding Mutua' s faise testimony both before PERB and
during his deposition in this matter. (Exhibit 0). In that email, Malkan applied MuttJa's
conduct to the elements of 18 U.S.C. 1621, which is the federal perjury statute, and New York
On April 22, 2014, Malkan sent another email on this same topic to Liest Zwicklbauer
and copied Vance and several SUNY employees. (Exhibit P). Malkan focused on Zwicldbauer
based on her role as co-counsel with Vance in his PERB matter. (Exhibit P). Malkan stated in
that email that Mutua lied under oath, his lies were premeditated and caused a miscarriage of
Throughout this litigation, in blogs posted on the Internet, in letters addressed to various
University officials, and in articles published by the media, Malk:an has accused Mutua of lying
under oath. At the trial, l'.'litlkan wiH put on a parade of tenured Law School professors who will
testify to facts that support Malkan's contention that Mutua has lied under oath, twice.
If this case is tried against both Defendants, the strength of the evidence against Mutua
will indelibly stain Ewing because the jury will improperly impute Mutua's bad acts to Ewing.
'TI1is foreseeable and prejudicial taint cannot be prevented by an instruction. Accordingly, Ewing
requests that Malkan's claims against Muma be tried separately from lVialkan's ctaims against
him.
Federal Rule of Civil Procedure 42(b) states: "SEPARATE TRLALS. For convenience, to
avoid prejudice, or to expedite and economize; the court may order a separate trial of one or
more senarate
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42(b) (emphasis added). Tbe decision to bifurcate a trial rests within the sound discretion of the
trial court e. g., Simpson v. Pittsburgh Coming Corp., 901 F.2d 277, 283 (2d Cir. 1990).
There is no bright-line test Rather, courts analyze the application of Ru1e 42(b) on a case~by
case basis. See, e.g., Monaghan v. SZS 33 Assocs., L.P., &27 F. Supp. 233, 245 (S.D.N.Y. 1993).
Courts consider whether separate trials will (1) promote convenience; (2) expedite the
proceedings; or (3) avoid unfair prejudice. Fed. R. Civ. P. 42(b). Only Qne of the issues mm;t be
met to justify bifurcation. Daniels v. Loizzo, 178 F.R.D. 46, 47 (S.D.N.Y. 1998).
Rule 21 provides that the "court may also sever any claim against a party.'' Fed. R. Civ.
P. 21. Courts and parties frequently blur Rules 21 and 42 "without maintaining the proper
distinction between the two." Keister v. Dow Chemical Co., 723 F. Supp. 117, 119 (E.D. Ark.
l.989). Trial courts have broad discretion to employ either of these rules, which are determined
using the same standard. New York v. Hendrickson Bros., Inc., 840 F.2d 1065, 1082 {2d Cir,),
cert denied, 488 U.S. 848 (1988) (citations omitted). "The distinction between these two rules is
that separate trials usually win result in one judgment, but severed claims become entirely
independent actions to be tried, and judgment entered thereon, independently." Gonzalez v. City
of Schenectady, No. OO-CV-0824, 2001 U.S. Dist. LEXIS 14406, at *29-30 (N.D.N.Y. Sept. 17,
Rule 20(b) provides: "Protective Measures. The court may issue orders--including an
order for separate trials-to protect a party against embarrassment, delay, expense, or other
prejudice that arises from including a person against whom the party asserts no claim and who
asserts no claim against the party." Fed. R. Civ. P. 20(b); see also Third Degree Films v. Does
Document
"Prejudice can be shown 'where evidence as to the specific injuries suffered by plaintiffs
might influence the jury's consideration of other issues.'" Corrigan v. Methodist Hosp., 160
F.R.D. 55, 57 (E.D. Pa. 1995) (citing Keisler, 723 F. Supp. at 121). Thus, "[t]he potential that
the jury might consider damaging evidence against one party as evidence against a co-party is
grounds for separate trials." Moore's Federal Practice - Civil. 20.09 (citing Keister, 723 F.
Malkim plans to make his case by showing that Mutua is a liar. Ewing wm be associated
with Mutua. Ewing and Mutua are not only co--defenda.nts, but are both long-term employees of
the Law School and both have held roles in the Law School's administration. Mutua, as Dean of
the Law School, in fact appointed Ewing to two of his adrninistrative positions~ Vice Dean for
Legal Skills in 2009 and Vice Dean for Academic Affairs in 2012. ff the jurors believe that
Mutua was dishonest (and it is foreseeable that they will based on the unwavering testimony of
every other witness), the jurors' distrust will likely "spill-over" im<l rub off on Ewing. See, e.g.,
Deskovic v. City of Peekskill, 673 F. Supp. 2d 154, 171 (S.D.N.Y. 2009) (''there is a risk that
trying all of Plaintiff's claims in a single trial could lead to guilt by association and spillover
The risk of spill-over prejudice is particularly acute where, as here, the co-defendants
have different levels of culpability, In re Blech Sec. Litig. 94 Civ. 7696 (RWS), 2003 U.S. Dist.
LEXIS 4650, at *39) (S.D.N.Y. Mar. 27, 2003) ("Wben many defendants ... have significantly
different levels of culpability, the risk of prejudice is heightened.") (1nternal quotation marks
omitted). Here, Mutua - and Mutua alone - made the decision not to renew Ma!kan's
~--~A"'"""'a~ as Clinical Professor.~ This was done absent any reoon1n1endation fium, the C(~P.R_.
Mutua contends his Statement of Undisputed p. 7) that the Dean was "not
0000191
Case 17-38, Document 30, 02/17/2017, 1975447, Page20 of 158
to seek the faculty's recommendation to non-renew Clinical Faculty appointments," because "the
Dean had the discretion to either accept them or re,ject them." Mutua may or may not have been
free to ignore the faculty's recommendation, but whether he was free to avoid ascertaining that
recommendation in the first instance (as part of gathering and considering the totality of the
factors that might infonn his decision to tenninate Malkan's appointment as a Clinical Professor)
is at issue in Malkan's claims against Mutua. Malkan argues these are not mere paper rights to
Ewing had nothing to do with any of Mutua's acts. Rather, Ewing has been swept up in
Malkan's lawsuit simply because he happened to be Chair of the Grievance Committee. It was
Mutua's refusal to cooperate with the Grievance Committee that prevented it from
Malkan's claims against Mutua and Ewing are distinct. Malkan claims Mutua violated
his rig.I-its by not having the CCPR weigh in on Mutua's non-renewal decision. Ewing was not
part of Mutua's non-renewal decision and, in fact, Ewing played no role in any employment
decision relating to Malkan. Thus, Ewing would not even be a witness regarding Malkan's
Malkan claims Ewing did not properly process his grievance. Ewing's alleged
wrongdoing occurred well after Mutua's decision not to renew Malkan's term appointment. The
other members of the Grievance Committee, Profe~ors Janet Lindgren and Isabel Marcus,
would be likely witnesses. Ewing does not need to call Mutua to prove that Mutua's refusal to
cooperate with the Grievance Committee is what caused the Grievance Committee to
recommend that it suspend Malkan's grievance pending the conclusion of his other litigation.
12
Case 17-38, Document 30, 02/17/2017, 1975447, Page21 of 158
Document 487
The distinction between Ma!kan's claims against Mutua and Ewing and the lack of
substantiai overlap in witnesses establishes 1hat separate trials would not waste judicial
resources,
CONCLUSION
Just two months ago, writing for a unanimous Supreme Court, Justice Sotomayor
observed:
***
"Unlike speech in other contexts, testimony under oath has the formality and
gravity necessary to remind the witness that his or her statements will be the basis
for official governmental action, action that often affects the rights and liberties of
others. United States v. Alvarez, 567 U. S. _ , -- (2012) (slip op., at 8~9)
(pl",." l1'ty ""':n1'on1j "
W..LMJ: Vf"J:A
Lane v. Franks, 134 S. Ct 2369, 2379-2380, 573 U.S._ (June 19, 2014).
One would think that Justice Sotomayor's admonition applies with particular force when
the public employee is the Dean of the only state law school in New York False testimony
stains the legal process and the judicial system. It strips legal institutions of their integrity and
testimony by one co-defendant unnecessarily bears the potential to prejudice his co-defendant
and deprive him of the opportunity to fairly and truthfully offer his own defense. Defendant
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Case 17-38, Document 30, 02/17/2017, 1975447, Page22 of 158
Ewing should not be compelled to assume the risk that a reasonable jury will: (1) readily
conclude that Mutua, his co-defendant and the Dean of a Law School, has twice offered false
testimony under oath against the interests of the plaintiff in the current action; and (2) thereafter
give Ewing's defense less weight than it deserves because of his previous close working
Therefore, for the reasons set forth above, Charles P. Ewing respectfully requests that ihis
Court grant his Motion for Separate Trials and order that Malkan's claims against Mutua be tried
separately.
14
0000194.
Case 17-38, Document 30, 02/17/2017, 1975447, Page23 of 158
487
JEFFREY MAL.KAN,
DECLARATION Oit
Plaintiff, RANDOLPH C. OPPENHEIMER
v. IN SUPPORT OF CHARLES
EWING'S MOTION FOR
MAK.AU W. MUTUA and SEPAR.ATE TRIALS
CHARLES P. EWlNG in their individual
capacities,
12~CV ~0'236(A)
Defendants.
L tam an attorney duly licensed to practice in the State of New York and before this
Court I am a partner with the law finn of Damon Morey LLP, attorneys for Defendant, Charles
P. Ewing ("Ewing'').
2. I am fully familiar with the facts upon which this affidavit is based. I make this
3. Ail of the evidence to which reference must be made to decide Ewing's motion is
Separate Trials. Defendant's Appendix includes: (1) Excerpts from the Deposition of Plaintiff
Jeffrey Malkan; (2) Cited Defendants' Deposition Exhibits; (3) Excerpts from the Deposition of
Dianne Avecy; (4) Cited Plaintiff's Deposition Exhibits; (5) Excerpts from the Deposition of
Susan V. Mangold; (5) Excerpts from the Deposition of Robert J. Steinfeld; (6) Excerpts from the
Robert
. !.
0000195
Case 17-38, Document 30, 02/17/2017, 1975447, Page24 of 158
Public Employment Relations Board Hearing relating to Plaintiff's non-renewal~ (10) Declaration
of Charles P. Ewing; (11) Excerpts from the Deposition of Charles P. Ewing; (12) Malkan
correspondence dated November 11, 2011; (B) Malkan Email dated November 27, 2013; (14)
Malkan Email dated April 20, 2014; and (15) Malkan Email dated April 22, 2014.
I declare under penalty of perjury that the foregoing is true and correct.
- 2 ..
0000196
Case 17-38, Document 30, 02/17/2017, 1975447, Page25 of 158
JEFFREY MALKAN,
APPENDIX TO MEMORANDUM
Plaintiff, OF LAW IN SUPPORT OF
v. CHARJ...ES P. EWING'S MOTION
FOR SEPARATE TRIALS
MAKAU W. MUTUA, and
CHARLES P. EWINGt
in their individual capacities, 12-CV-0236(A)
Defendants.
of:
6' I\ f\ l\ I Cl ''1
Case 17-38, Document 30, 02/17/2017, 1975447, Page26 of 158
-2-
0000198
Case 17-38, Document 30, 02/17/2017, 1975447, Page27 of 158
487
Exhibit
A
Case 17-38, Document 30, 02/17/2017, 1975447, Page28 of 158
11 -----------------~-------------------------------
r- 12 Examination before trial of d...,IUIS am.t.131.N, held
,
13 before Kelly S. Hairston1 Not~ry Public, at DNIOJI' MDltBT,
14 Avant Building, 200 Delaware Avenue, Suite 1200, Buffalo,
15 New York; on Wed."lesday, Dece.'l!ber 18th, 2013 at 10:00 a .m.,
16 pursuant to notice.
17 LBl:DS BBOlfH IM, p. c. I
I BY: UD1f AltBn, BSQ, ,
18 One Old country Road, Suite 347,
carle Place, New Yo~k 11514,
il.9 Ph. (716) 873-9550,
Attorney for the Plaintiff.
20
DA1llCll'I ' MD1ill!:1' , p c . ,
21 BY: IAllDOloft C. OltJ?11111Bl11XNl!Dit, ESQ.,
Avant Building,
22 200 Delaware Avenue, Suite 1200,
Buffalo, New York 14202-2150,
23 Eh .. (716) 856-5500,
Attorney for the Defendant,
L. 24 Charles p. Ewing,
25
....cc:'.~-...c::-,.-
..... --===~=~-,.,....-- . . . . --------- )
0000200
Case 17-38, Document 30, 02/17/2017, 1975447, Page29 of 158
L ..
1 the south. It was -- I. felt like I was a little bit of
it ... 2 an outsider and I thought I could get a better job.
r
r
3 Q, So you left of your own accord?
'
(.' 4 A. Yes.
("'
j
5 Q. And how about the job ln Illinois, did you also leave
''- 6 there o~ your own accord?
7 A. No, because that was a capped contract. It wasn't a
'' ..
8 reqular tenure track line and ao tjley had a maximum
r
i 9 amount Of time and so I ran out Of time,
t..
10 Q. And then -- I'm sorry, but I can't remember --
11 A. St. John's.
12 Q. So you were there two years and then you went to
13 where?
14 A. Chicago-Kent four years, then two years at
15 St. John'$.
16 Q, .Aii.d what were you teachinq at St. John's?
17 A. Legal writing.
18 Q, Any doctrinal courses?
19 A. No.
("
! __
\,,
20 Q, And was your next position at the University of Buffalo
21 Lf:iW School?
22 A. Yes.
23 Q. How did you hear about that position?
24 A. My -- I talked to my advisor at Stanford. His name is
25 Professor Robert Weisberq, w-e-i-s-b-e-r-q, and he is a
,...
'!
t '
0000201
Case 17-38, Document 30, 02/17/2017, 1975447, Page30 of 158
Document
DtaPAOLO-CROSB!' DOit~X:BG
170 Fr<?.nklin Street, Suite '601,
716-853-5544
___ ...... _
..... ...
~_ ~-
0000202
Case 17-38, Document 30, 02/17/2017, 1975447, Page31 of 158
151
16 Q. And your claim, as I understand it, ia as expressed in
17 your complaint in Paragraphs 24 through Paragraphs 26
lB and your complaint is Exhibit 4 and I 1 m putting that
19 one in front of you now;
20 A, :tes.
21 Q, So looking at your '?omplaint, you in Paragraph 24, you
22 indicate that you filed what you referred to as a
23 protest with the grievance committee headed by
24 Professor Ewing about Dean Mutua not having convened
the CC!?R ccn-mnittee to vote on your reappointment;
i'
170 Franklin Streetr Suite 601, Buffalo, New York: 14202
116~!!53-5544
0000(!03
Case 17-38, Document 30, 02/17/2017, 1975447, Page32 of 158
Exhibit
B
0000204
Case 17-38, Document 30, 02/17/2017, 1975447, Page33 of 158
(.;("'/
U.nlver;ltJ at BffI
St1trd t'tdvi:r1ir,v nJ Nell' l'ork
5dtoilll of .._.
oir1mit ll'lt oun
l ~Crelt~ 'f
luly 25, 2000
. <!~.
DeaiJeff
. .
This letter will confinn our recent' telephone COll.Wnlation conccining our .otlilr to you of
a lllcu.lty appoirlUtumt .at tho Um:wnity at Bu&1o Uw School commencin!f with the 2000-2001
academic year. ~ otall, tb.o\1lh. ret me reemphatize that OUf ficu)ty is very eii:husiasdc at f.hfi
prospect ot~c:omf.ng to .Buffilo.
As we~ your initW aa1ary will bet S&,000, with acbeduled raises of at least
three per cent fix dlo second and tbild yaar of y6ur employment. In additi011t you will receive
tfle generous New Yark Slate benefits pacJmae. which includes retiremeat eontributiom and .
health and dental insurance p'ls.ns. We will also pro\'idct $3,000 tbr summer support an.cl mist in
paying your moving expenm at tho outset of your PPOintment
Your initial app~ will be u an Clinioal Aaaocillle h>feuor arsd Director of
Rc:aearch an4 Writin'g fora rluee-year &ma. with ~11Mmt fbr ancond ttu..year during
your second l'Uf. In )'IJ1lr fifth year. tbe t=:ltyWill make~ fbr a ti:llld. tluee.-ycar
tenn. Thia pn'lCeR oftmeo-jear bllm ~the~ ble&itGiy.
Teaching raspoMibilidm at tho outset call fur your partici;ation in our~ and
Writing program, with two sections aadl 11111ester. ft iranticip_ab:d that. in fulure years. your
teaching ~ties ,in~ arid Writing' will bonducecl ta one clus per semester, and
that you could broade7l yourteaCblng to in.chide other counres or seminars kt aabstmtiveareu of
intensst' to you. ' :. ' .
. . To acCepC this ~t, pleue siga a copy ofthis lettor and rotuin it to me~ aoon a.s
possible. Please si'Ve me a call if'yuu have any qW!IStiom, or would liko to dlscuss.aQyt;billg
abQ~ this offer or the Law School
vr,1w-- . ., .
;.{Mltt r..:/
R. Nits Olsen,
Oeaa. and PlV&ssorof Law
0000205
Case 17-38, Document 30, 02/17/2017, 1975447, Page34 of 158
Case 17-38, Document 22, 02/01/2017, 1961823, Page205 of 487
..
'"
1-.V 1, .2009'
PJvtbasorelmak.BwDg. a-it
Pmftiaor Janet Undsrin
P1l:la.or Illlbel Marena
SONY at Bd8llo lohaaloft.-
Re: Oiievlme 11Pimt 1411kaa:M'lltu
O.Colllllllpear.
EWING 000122
0000206
Case 17-38, Document 30, 02/17/2017, 1975447, Page35 of 158
h(V' grillVllUl6 a.
hntthe~ fiiGt of'MelamMlliua'r:d.blal. to gimt amaada!orytll'o
ywOldlllsimlof'ftl,f Ollmltt :lve)'lllr 0Clltal.otfhatl'U111tollt ~ fll) 20la.tl.
mc1te ~cm the tblklwingrelali!cl ambll or ClllliSalmls:
It"
based
~-1d.~t~~~~a:=-
d11111111fp by llfmoattllo ,_.. liMleolUiaWfq of"iood oaue'b18114 on tho
. . . . . .olt!lo~ lllld 'wdtia&PRIS'llll" OOl!.lda't bolllOIO d1lblou8, pm that
Iepl wrilfa,gt.anAJU.reqairldlmJ'llllll'-... lllldtflatldudmi~aabtllqaa
tomydlsmiaaJ.~l!r~tolOlcilLhtyw ........ lllld'Wridq."
2. My miron! b lho !aoaJl.y came m I had SC111eJ1t 111.d rocemd t1ti ilWOllllllion of
the UUP, whidl, \1lmaP. 'NYSUT, ~ tomproseatme. The UOP bi allep:l. Iii a
. . lleilwidltbol'BD,MMlltlalM\'daa~my~inoidto
l'llla1ial!t._mo bbmllfillg 6o mdotloamy behdlt lil. this ad~ lnpeat the
llllogtilOll Qf'~lllinlte. .
I
I
EWING 000123
Il
... J.! .
F
000020'7
Case 17-38, Document 30, 02/17/2017, 1975447, Page36 of 158
'"
ii~.,
llI[
- . . . . . . ur in . J'i~
11f llfi
,,
t-9
,1
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flJ !l~li fltf 1-~1
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111Jti i;1J, ir#f~l~I- 'I'
~ff ffl!tp-
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f
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11 1'.frfi
t~I f !e .g1:1:f fri~ !i[~
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Case 17-38, Document 30, 02/17/2017, 1975447, Page37 of 158
Exhibit
c
fl IHHl? t\ ).(
Case 17-38, Document 30, 02/17/2017, 1975447, Page38 of 158
[ 1
[
1 UNITED STATE DISTRICT' COURT
[ 2 WESTERN DISTRICT OF NEW OF NEW YORK
c 3
4 J~l'Jl'PY MALD.M,
[ 5 Plaintiff,
6 -against- 12-CV-0236
0 7
B
MA.lU.U w. MU~UA
individual capacities,
nd Chatlee P. BWIRG in thair
[ 9
Defendants ..
----------~---------------~------------------
10 Examination Before Trial of DI.Am.fa
[ 11
AVBR!, held before Heather Marcolini, Notary
Public, at The Avant Bui1ding~ 200 Delaware
Avenue, Bu'ffalo, New York, on November 21,
l 1~
13.1
2013 at 9:00 AM, pursuant to notice.
APPEARANCES: LXBDS BROWJil._LAW, J?.C.,
BJ:: 81\YAH AllBB IT, ZSQ. , .
[ 14 One Old Country Road, Suite 347
Carle Placer New York 11514
15 (516) 873-9550
Attorneys for th~ Plaintiff
[ 16.
f STATB OF HBW YORK Ol'J'ICZ OF ~Bl
~7 ATTORBBY QBWBRAL
[ is
BRIC ~. SCBWIIDBaHAlll,
BY: DAVXD J. SLBIGIT, BSQ.,
ASSISfAR'T ATTORKBY GZKRAL
i9 Main Place Tower
[ 20
350 Main Street, Suite 300A
Buffalo, New York 14202
c 21
22
(716} 852-6274
Attorneys for the Defendant,
Makau W. Mutua .
I
L 23
24 APPEARANCES CONTINUED ..
I
[ 25
[
[ '------DEPAOLO-CR.OSBY REPORTING SERVICES, INC. _ _ _ ____,
170 Franklin Street, Suite 601, auffalo, New York 14202
716-853-5544..,
[
000020~
Case 17-38, Document 30, 02/17/2017, 1975447, Page39 of 158
487
r
l. 22
I
!'
!
t~--~-DEPAOLO.ot.OSBY REPORTING SERVICESi INC.---~----,-'
170 Franklin Street, Suite 601, ~Jew York 14202
7HH~53-5544
00002.LO
Case 17-38, Document 30, 02/17/2017, 1975447, Page40 of 158
487
Case 1:12-cv-00236-MAT-HKS Document 63-5 Filed 08/30/14 Page 36 of 122
Case 1:12-cv-00236-RJA-HKS Document 59-4 Filed 08/13/14 Page 13 of 99
23
[
1
2 Q, r 1 m going to ask you if you recognize
3 Plaintiff's Exhibit 17r bate stamped 2362?
4 A. Yes, I do.
r 5 Q, And what is this?
L 6 A. This is a photocopy of my contemporaneous
7 notes that I made at the meeting of the ?&T
a committee on April 26, 2006: Although I
[ 9 notice that I wrote at the top 4/27 so the
.10 date --
[ 11 Q. The date should be 4/28?
12 A. It should have been 4/28.
13 Q. And then just up on the top there, these
141 initials are the people that were in
15 attendance?
r 16 A. Yes, it is.
r 17
18
Q. And of those names,
now Dean Mutua?
the MM, would that be the
19 A. Yes, it is.
20 Q. Could you tell me what happened at the meet
21 regarding Professor Nalkan?
22 A. Yea.
r
L
170 Franklin Street, Suite New York 14202
716-1153-5544
0000211
Case 17-38, Document 30, 02/17/2017, 1975447, Page41 of 158
[ 28
r 12
13
to the position of a clinical full professor
from his position as clinical associate
[ 14:
'1
professor.
15 That vote I can see -- I remember at the
[ 16 time the vote.passed by a majority vote and I
17 can see from my contemporaneous notes that the
[ 18 vote .was nine yes, seven no and three
19 abstentions . We then turned and we began to
[ 20 have a conversation that did not last terribly
[ I
F"'
L '-------nJCPAOLO-Ot08BY1llCPORTING SJ:RVICIS,INC.
170 Franklin Street, Suite 601, Buffalo, New York 14202
~
716"-853-5544
[
0000212
Case 17-38, Document 30, 02/17/2017, 1975447, Page42 of 158
[ 74
c 21
22
Q.
A.
GK?
George Kannar.
[ 23 Q. TS?
24 A. Tanya Segal.
ru 25 Q, RB.
[
I
L l__JJEPAOLO~CROSBYREPORTING SER"VICES,
170 Franklin Streat, Suite Buffalo, New York 14202
'716-053-5544
0000213
Case 17-38, Document 30, 02/17/2017, 1975447, Page43 of 158
487
75
1 A. Rob Steinfeld.
[ 2 Q. RF?
3 A. Rebecca French.
[ 4 Q, SG? If you can't remember we can go on.
r 12
13
A,
Q.
Janet Lindgren.
SM?
r
L
14
f
A. sue Mangold"
15 Q. MD?
[ 16 A. Marcus Dubber.
17 Q. s !?? ' '
[ 18 A. Stephanie Phillips.
19 Q, BB?
20 A. Bob Berger.
21 Q. JG?
22 A. Jim Gardner.
23 Q. And GB'f
r 24! A. Oh, BB would be -- sorry, BB would be Barry
L 25! Boyer and let's see Jim Ga am
I
r
L
L--~---~-][)EJ~ A<:>Lf)~C:RC)S]nl REPORTING SER,7ICES, INC. ___ .,_,_~
170 Franklin Street, Suite 601, New York 14202
iHH.l53-55H
0000214
Case 17-38, Document 30, 02/17/2017, 1975447, Page44 of 158
487
76
r
L
10 Q. So does that indicate that she came to the
11 meeting late'?
12 A. Yes, it does.
13 Q. Do you know even though -- well, was she there
24 \ A. Yes,
L 251 .Q, Can you tell me if you recall any of the other
I . \
L_-DEl'AOLO-CROSllYllE!ORTING SERVICES, INC. _ _ _ _ _
170 l?ranklin Street, Suite 60 Buffalo, New York 14202
J
r
L
i11!Hl53-55U
00002.L::l
Case 17-38, Document 30, 02/17/2017, 1975447, Page45 of 158
Exhibit
D
I
................ j ....
I
0000210
Case 17-38, Document 30, 02/17/2017, 1975447, Page46 of 158
!
I
.I
. /:: ~-y ,. I
7/J
-3;4b.
-~~T
'.
i
'
JM002800
0000211
Case 17-38, Document 30, 02/17/2017, 1975447, Page47 of 158
487
:3q7c ~
' '
t:JfJf ~~l~r--
~ IJ7-- (1 h\__~ (j-
vfL . /2 r-
- wl
00002li3
Case 17-38, Document 30, 02/17/2017, 1975447, Page48 of 158
y I
(J).: rf-1.J.. JI I I f!ij I/
''
. I/! @
\
\
\
Case 17-38, Document 30, 02/17/2017, 1975447, Page49 of 158
BYLAWS~ STANDINGORDBRS OF
'llmFACULTYOF
I. BYLAWS
The Byla\W oomtiiute the~ :fur the Jmer.naI go~ of the Faculty
University at 81610 Law School, the State University of New York (the "Law
. af the
School"). u ~ Qn Aprll 22. 2008,
ll, OFFICERS
A. ~:Owm.
d, ~tbcBudgetm4Program~~
1
JM002522
00002lU
Case 17-38, Document 30, 02/17/2017, 1975447, Page50 of 158
487
4. Commit.!i;tmiClinigjPmmsmm!imdR.o~.
Document 487
---
____ ,
Case 17-38, Document 30, 02/17/2017, 1975447, Page52 of 158
487
Exhibit
E
oooozt::,3
Case 17-38, Document 30, 02/17/2017, 1975447, Page53 of 158
Plaintiff,
-vs- Index No. 12-CV-0236
MAKAU W. HV~UA and C!ARLBS P. EWING, in thei~
individual capaoitiea,
---------------------~~!~~~~~~~:_____________ I
Examination Before Trial of SUSAN VIVIAN
MAUGOLD, held before Lindsay N. Truman, Notary
Public, at DAMON NOaE?, Avant Building, 200
Delaware Avenue, Suite 1200, Buffalo, New
Yark, on November 20th, 2013 at 1:05 p.m.,
pursuant to notice.
00 0 Uc
()'1)
.. 1...f
Case 17-38, Document 30, 02/17/2017, 1975447, Page54 of 158
[ 17
r
l'. r
r:
[:j
6 Research and Writing Program, but basically
7 what we were discussing was the -- was the
appointment and promotion of Jeff.
E 8
9 Q. Okay. And was there a vote at the meeting
[ 10 about Jeff's promotion?
! .
11 1L Yes.
r
L
13
141 A.
the outcome of that vote was?
The <n.:itco:me was that he was appointed you
15 know, to the -- reappointed recommendation for
[
16 reappointment to full clinical professor,
[' 17
18 The following was marked far identification:
r
L 19 Exhibit 1 Bates stamp JM2800-2802
20
[ 21 BY MR. ARSEIT:
r.
~;:} Q. If you just flip through the three pages.
I
.I
i
L
r
L,
14202
r--
L,
Case 17-38, Document 30, 02/17/2017, 1975447, Page55 of 158
[ 18
c 8
9
file that I had kept, and this was in the
file. And I believe it's my -- my own
r 12
13
list of names on the left-hand aide, can you
tell me what that list means, if you know?
f"
.__ 14 A. 'This? Yeah. So, again, if -- what I would
15 have usually done -- I don't remember making
[
16 this list, but what I usually do is write down
[ 17 who's present at a meeting:. So I assume that
Document
68
i
I
L 17
18 Q.
was promoted to full professor.
Okay. And you were Vice-Dean of Academics
[ 19 from 1 04 ta '07. And then after that you
20 returned to your position as full-tenured
[ 21 professor?
22 A. Yeah. As I was trying to ezplain~ I was
[ I always a full-tenured professor. And then for
::1
251
those three years, I waa additional
487
[
114
[ 1
, , . . . _ - - - - - iwlltm V. Msmgold - By- M:f:, Sl<aiqht- ll/20/13
r
L
Q. Okay. Page 2800, I think it was your
testimony that this ~~ these are your notes of
f' the meeting on 4/28/06; is that right?
L 16 A. As best r can tell, that's what -- that's what
[ 17
l
you know, again~ I don't have independent
18 recollection of having these documents. They
[ 19 were in this file and that's what -- that's
20 how I marked it.
[ 21 Q. Okay. And the number or the people listed
22 there are the attendees?
[
24 Q. Okay. Now, how many people on the -- or how
25 many peo e could attend thiar Hho could
L REPORTING
170 Franklin Street, Suite 601, Buffalo, New York 14202
7 :t 6-S53-554 4
nono)')'
vi v t;.,;:,,<l
Case 17-38, Document 30, 02/17/2017, 1975447, Page58 of 158
[
115
[ .--------au....... V. Mlulg'old - Sy MJ:o, Sle.i.pt- 11/20/13
11 about quorum?
L. 12 A. Subsequent.
Q. Afterwards?
r
L ..
13
14 A. That's the best of my recollection.
15 Did you say that was in the context of some
[ Q,
16 objections that Jim Gardner had raised?
[ 17 A. That's the best of my recollection, yes.
18 Q. And can you remember what those objections
c 19 were, what specifically
the quorum, the issue of quorum?
h~ was objecting about
c
20
21 ~. He was questioning, to best of my
22 recollection, he was questioninq about the
[
23 quorum, whether there was a quorum.
r 24
25
Q. Do you recall there ever being a resolution of
that issue?
[
L '------DBPAOLO-CROSBY .REPORTING SERVICl!:S, !NO.
170 Franklin Street, Suite 601, Buffalo, New York
__J
14202
[ 116-853-5544
00002t;.J
Case 17-38, Document 30, 02/17/2017, 1975447, Page59 of 158
Exhibit
F
0000232
r
Case 17-38, Document 30, 02/17/2017, 1975447, Page60 of 158
r~
b 1
5 J?laintiff,
6 -against- 12-CV--0236
r
b 7 MA.ltAO W. MU!UA.and Cha~la I. mfl~G in tbei~
individual eapaciti,
a
c 9
Deferidi:'l.nts.
--------------------------------------~------
Examination Before Trial of ROBER~ J.
[ 10
S'!ZIHftL, held before Heather Marcolini,
11 Notary Public, at The Avant Building, 200
Delaware Avenue, Buffalo 1 New York, on
f' 12
13
November 211 2013 at 2~05 PM, pursuant to
notice.
APPEARANCES: ~RBDS BR01nlf.LAW, P,C. 1
141 Bx: aa'iu un:w:~, IHQ. ,
one Old Country Road Suite 347
15 Carle Place, New York 11514
[ 16
(516) 873":"9550.
Attorneys fortha Plaintiff
17 S'l'A~m 0'1' HD YO.RI: Ol!'FICm Oli' !SB
[ 18
A!'.l!OlU.t'E!' GBH'lUlAL
lll't:l:C !r. SC:BWJ::tl)BlUQ'H,
.JS'f: DAV:tD J. SLZ:tli'll'f, :ISQ. ,
[ 19 G&RERAL
ASl?SfAJl~A~~OrulBY
Main l?lace Tower
20 350 Main Street, Suite 300A
Buffalo, New York 14202
D 21 (7lt5) 852-6274
Attorneys for the Defendant,
22 Makau 'ilL Mutua,
r
L 231
24 APPEARANCES CONTINUED.,.
[ 25
[
....~/
'-----~DEPAOI.0.cROSBY :REPORTING o:> .,,,.,,,.,....Nlll'., INC,-----
170 Franklin Street, Stlite 601, 14202
716-853-5544
[
0000233
Case 17-38, Document 30, 02/17/2017, 1975447, Page61 of 158
[ 9
r- 1
2
3
that meeting for'his promotion to full
professor?
A. Sure. I remember that it was a long
[ 4 contentious meeting, there .were s~rong
[
.r=
L- ------DEPAOLO.CROSBY REPORTING SERVICES, INC.---.,.---
170 Franklin Street, Suite 601, Buffalo, New York 14202
c 71!5-853-5544
0000234.
Case 17-38, Document 30, 02/17/2017, 1975447, Page62 of 158
Exhibit
G
Case 17-38, Document 30, 02/17/2017, 1975447, Page63 of 158
r
c
l
r. 1
2
UJUTED STATES DISTR~CT
r~ 3
---------------------------------------------
r 4 JlH'l'UY BLltA'll1 , .
L 5 Plain\;iff,
r
'-
13
1(
200 Delaware Avenue, Suite 1200, auffalo, New
York, onNovember 20th, 2013 at 4~55 p.m.,
[ 15 pursuant to notice.
16
APPEARANCES; X.BllDS BllOD LAW, P. C. r
[ 17 Bl': Bll"!Alt ARBBl~, ESQ.,
One Old Country Road, Suite 347
18 Carle.Place, New York 11514
[ 19
(516.) 873-9550
~ttorneys for the J?laint.iff.
: 20 l>AH011f HOUY
0 21-
BY; ABZQAIL KOZA.RA,
Avant Building, .
200 Delaware Avenue, Suite 1200
so.,
c 22
23
Buffalo, New York 14202
( 71'6) 856-5500
Attorneys for the Defendant,
Charles P. Ewing.
[ 24
25
[
[ ----DEPAOLOOROSBY REPORTING SERVICES, INC.---"--'
no. Franklin Street, Suite 601, Buffalo, New York 14202
[ 716-853-5544
Case 17-38, Document 30, 02/17/2017, 1975447, Page64 of 158
Document 487
[
6
[ l lkan?
2 s.
[ 3 Q. What do you :remember of that meeting?
4 A. rt was on a Friday, late in ApriL ! t was on
[ 5 a ~riday afternoon and we met in the
6 courtroom, which was unusual; I do remember
7 that, The topic of hia tenure as a clinical
8 professor was br6ught up and we voted on it.
9 Q, Okay. Do you remember what the outcome of
10 . that vote was?
11 A. Yes. It was not unanimous, as r recall, but
L 12 it was a majority or a significant percentage
r
"-
13
Q.
was pro, granting Professor Malkan tenure.
Do you remember if any other topics were ~-
c 20
21
there were such things for le
writing, you know, if Jeff or anyone else
.research and
00002.3/
Case 17-38, Document 30, 02/17/2017, 1975447, Page65 of 158
Exhibit
H
00002Jd
Case 17-38, Document 30, 02/17/2017, 1975447, Page66 of 158
v.
12-CV-0236(A)
MAKAU W. MUTUA and
CHARLES P. EWING in their
iodividual capacities,
Defendants.
DIANNE AVERY, pursuant to-28 U.S.C 1746 and under penalty of perjury,
1. On April 28, 2006, I was a tenured professor of le;w at the University at Buffalo
and Renewal.
4. At that meeting, the Committee discussed the promotion of Jeffi:ey Mallcan from
S. Following the discussion, the Committee voted by secret ballot at that meeting to
6. I took cont~poraneous notes at the April 28, 20-06, meetinQ of the Committee on
OOOOlJ~;
Case 17-38, Document 30, 02/17/2017, 1975447, Page67 of 158
7. I recall, and my contemporaneous notes reflect, that Professor William Greiner, was
~
VERY DIANNE A
OOOOli.!V
Case 17-38, Document 30, 02/17/2017, 1975447, Page68 of 158
v.
. ,. ,. . . ,,
2, Al!. such. I was a member of the Law School'~ Committee on Clinical Promotion
and Renewal.
".
3. On April 28, 2006, I attended a meeting of the Committee on Clinicsl Proml.ltion
an~'~Wal ~~:~School: ;;c''' . . . .
4. At that meeting, the Committee di!lCussed the promotion of Jeffrey Ma1katl from
. 5. Following the discussion. the Committee voted by secret ballot at that meeting to
\ ".J
0000241
Case 17-38, Document 30, 02/17/2017, 1975447, Page69 of 158
0000242i
Case 17-38, Document 30, 02/17/2017, 1975447, Page70 of 158
DECLARATION OF
SRUBBA GH~H
. Plaintiff,
v.
MAKAU W. MUTUA anti
CllAllLES P. EWING in their
individual capadtles,
SHUBHA GHOSlI. pursuant t.o 28 U.S.C 1746 and under penalty of perjury. declares
1. On April 28, 2006, I was a tenured professor of Jaw at the University at Buffitlo Law
and Renewal.
3. On April 28, 2006, I.~ a meeting of the Committee on Clinical Promotion and
4. At that meeting. the Committee discussed the promotion Qf Jeffrey M.aibn from Clinical
0000243
Case 17-38, Document 30, 02/17/2017, 1975447, Page71 of 158
Cas.e 1:12-cv-0000
236-MAJTA-HHKS Document 63-5 F.;_i!E!.d 08/30/14 Page 6of7 of 122
.f
case 1:12-cv- 2~36-R - !KS Document 59-4 Fhcu 08/13f14 Page 44 99
5. Following the discussion, the Committee voted by secret ballot at that meeting to
SHUBB'.A GHOsH
Dated: Dallas, Texas
July 27. 2014
OOOQ244
Case 17-38, Document 30, 02/17/2017, 1975447, Page72 of 158
..
v.
12-CV~0236(A)
t...fAKAU W. MUTUA and
CHARLES P. EWING In their
im:Hvldual capacities1
1, On April 28, 2006, I was a tenured professor of law at the University at Buffalo
and Renewal:
4. At that meeting, the Committee discussed the promotion of Jeffrey Malkan from
S. Following the discurui!on, the Committee voted by seci:et ballot at that meeting to
487
.~~/~_&.
ALFRED KONE,SK.Y ) - -
0000240
Case 17-38, Document 30, 02/17/2017, 1975447, Page74 of 158
DECLARATION OF
SUSAN MANGOLD
Plaintiff,
v.
MAKAUW. MUTUA and
CHARLES P. EWING in their
mdividual eapaeitles,
SUSAN MANGOLDt pursuant to 28 U.S.C 1746 and under penalty of perjury, declares
and states:
and Renewal.
3. pn April 28, 2006, I attended a meeting of the Committiee on Clinical Promotion and
Ren~ at the U\w School. As Vice Dean for Academic Affairs, I clliliied the meeting in the
Dean's absence.
4. At that meeting. the Connnutee discussed the promotion of Jeffrey Malbn from Clinical
5. Following the discussion, the Committee voted by seem ballot at that meeting to
00002.4(
Case 17-38, Document 30, 02/17/2017, 1975447, Page75 of 158
6. Follov..::illg the April 28, 2006 meeting in which the Committee voted, to recommend that
questioned the way in which abstentions should be counted with regard to the vote to renew~
promote Professor Malklm. After some ~on, Professor Gardner accepted that the vote to
0000 ()
Case 17-38, Document 30, 02/17/2017, 1975447, Page76 of 158
DFCLARATION OF
ISABEL MARCUS
v.
12-CV.023(i(A)
MAK.AU W. MUfUA and
CHARLES P. EWlNG mtheir
mdividmll capacities,
ISABEL MARCUS, pUJ:S'U8l'.it to 28 U.S.C 1746 ll.lld under penalty of perjury, declares
and states:
I. On April 28, 2006, I WM a ten.tired professor of law l1il the University at Buffalo Law
3. On April 28, 2006, l attended a meeting of the Committee on Clinical Promotion and
4. At that meeting. the Committee discussed the promotion of Jeffrey Malkan from Clinical
5. Following the disoossio:n, the Commi.ttee voted by secret ba!l(Jt at that meeting to
OOOOZ4J
Case 17-38, Document 30, 02/17/2017, 1975447, Page77 of 158
2
Case 17-38, Document 30, 02/17/2017, 1975447, Page78 of 158
Defendants.
LYNN MATHER. pursuant to 28 U.S.C 1746 and under penalty of perjury, declares
and states:
and Renewal.
3. On April 28, 2006, l was unable to attend a meeting of the Committee on Clinical
Interdisciplinai:y Research on L11w and Legal Institutions" in which studenis were presenting
their draft research papers to the class for comment and feedback.
4. As soon as my clas.s was over (in 406 0.'.~rian).. I stopped at my offic.e ~then went up the
back stairs to see if the faculty meeting was still in progress on the .5th floor. In the stairwell I ran
0000251
Case 17-38, Document 30, 02/17/2017, 1975447, Page79 of 158
into my colleague Professor Jim Gardner as he was coming dov.'n the stairs at the conclusion of
the meeting. I clearly re.call my conversation with Jim a.bout the meeting.
5. Jim had been against the promotion of Malkm and had circulated a detailed and forceflli
letter of opposition just a day or two before the meeting. Jim's letter had surprised me since I
thought that everyone was in favor of Jeff. In the stairwell when I asked Jim v.ihat had happened
at the meeting, he was upset. He told me that the Committee had voted to promote Jeff. He
reported that he and ~ofessor Lucinda Finley thought this was a mistilre b1:).t they were outvoted.
majority of the faculty sUpported Jeff Malkan and voted for his promotion at the meeting.
Dated: Newbiuy, MA
July 28, 2014
2
Case 17-38, Document 30, 02/17/2017, 1975447, Page80 of 158
v.
MAKAU W. MUTUA and
CHARLES P. E\\IJNG in theh;-
imiividtull capacities,
1. On April 28, 2006, I was a tenured professor of law a.t the University at Buffalo
2. .As such, I was a member of the Law School's Committee on Clinical Promotion
and Renewal.
5. FclfovJing t11e discussion, the Commit<.ee voted secret ballot at that meeting to
0000254
Case 17-38, Document 30, 02/17/2017, 1975447, Page82 of 158
Document 487
Exhibit
I
0000255
Case 17-38, Document 30, 02/17/2017, 1975447, Page83 of 158
Document
1
I
i. I.
l UNITED STATES DISTRICT COURT
2 WESTERN DISTRICT OF NEW YORK
3
------~--------------------~---------------------
l. 4
5
6 Plaintiff,
7 -vs- FILE NO. 12-CV-0236
a }fi_ill{AO w. MOTOA and CHARLES. ,p. mwn1G' in their
individual capacities,
t,,
Defend.ants.
r
I
14 Avant Building, 200 Delaware Avenue, Suite 1200, Buffalo,
l
151
16 pursuant to notice.
17 LilJWS D.<l\IR u.if / p C I
BY: muA'Jit ADlltI~, ESQ. ,
18 One Old Country Road, Suite 347,
Carle l?lace, New York 11514,
19 eh. (716) 873-9550, .
Attorney for the Plaintiff.
20
~ & HOU!', P.C.,
21 BY: ~H C, Oi'~IM'JilR, B~. ,
iI Avant Build:lnq,
~~ c
22 200 Delaware Avenue, Suite 1200,
Buffalo, New York 14202-2150,
23 Ph. (?Hi) 856-5500,
Attorney for the Defendant,
I
24 Charles P. Ewing.
25
)'
\,
M. MOTTJ'A -- BY MR. ARBEIT -- 12/19/2013 36
r-
L
1 Q. Let me ask, was there anything positive?
[ 2 A. No.
,-. 3 Q. Nor
I
j ... 4 A. No, there really wasn it ..
:,._.._
;
5 Q. By anybody?
'\, ~
6 A. No, there really wasn't. It was a very heated :meeting,
,-
I.
I
7 but I think people, you know, I should say that you
\.
a know, people were concerned that the proqram was not
;-
i<.. .. 9 doing what it should have done for our students, that
10 was the overwhelming concern of the faculty members. I
r 11 think that, you know -- and people felt th~t Jeff
L
r-L,_ 12 should be removed from that position so that we could
\
I 13 ;find someone who could, you know, lead a goOd program
,.. 14 for our students.
l 15 Q, So then I guess What happe..ned at the meeting after, r.
16 guess, this heated discussion?
\'
17 A. So the discussion contined and at some point, I think
r- 18 people began to feel that although we felt that Jeff
L.
19 should be removed, that we should not simply throw him
,,. ...
I out onto the street inmediately, that we should give
20
L..
21 him a year, a terminal year and then instruct o~ ask
[: 22 the Dean to form a faculty committee to study the
,. 23 proqram and come back with J:ecommendations of how the
I
l, ... 24 proqram could be recreated.
r 25 Q. Let me ask, I mean, the committee couldn't throw him
I
\
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f' ~
l
L. ~
DePAOLO-OO$BY u~xm BERVl'CZS, me.
170 Franklin Street, Suite 601, Buffalo, New York 14202
'''' \
?16~853-5544
000025'7
Case 17-38, Document 30, 02/17/2017, 1975447, Page85 of 158
.r'"
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''
M. Mti'l'UA -- BY MR. ARBEIT -- 12/19/2013 37
('"
{
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1 out in the stJ:eet, I think, even if they wanted to,
l ..
\
2 could they~
\
3 A. You mean the faculty meeting?
l
\' 4 Q. The faculty meeting.
r 5 A. 'l'he fa'culty was going to recomll\encl to the Dean that he
l 6 give Mr. Malkan a terminal one year appointment and .
,.--
i 7 then establish a committee to study the program and
L
8 make recommendations.for change.
,.....
i' 9 Q. But I'm a .little confused because I thought that the
l. ..
10 appointment -- you said that the appointment fo~ a
-- 11 Director position was at-will for the Dean?
'
12 A. Yes. This does not mean that the faculty cannot
f"
l. 13 e~ress their view to the Dean andW~ eXJ;>ressed our
r 14 view.to the Dean very strongly on this one.
I 15 Q. so your view was to have him stay on for a .full year?
(""
l
16 A. Yes, as -- baaically as a caretaker of the program
\ ..
17 while we also look for another Director and he look for
( ...
~ ; 18 another job elsewhere.
l...
19 Q. And was -- this was voted on?
r ..
{
I
20 A. It was voted on.
21 Q, Okay. Was this communicated to the Dean?
c-
L. 22 A. I don't know.
23 Q. Okay.
'j 24 A. We asked the current Dean, then Sue Mangold, to
I .. 25 communicate our resolution to the Dean.
'-
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Deno:r.oCBOSB!' DPOR'!DG SDVICBS, l:HC.
170 Franklin Street, Suite 601, Buffalo, New York 14202
716-853-5544
000025$
Case 17-38, Document 30, 02/17/2017, 1975447, Page86 of 158
Document 487
ri
10 A. Yeah.
487
i
for another year?
l. A. Yes.
Q, Because people were so dissatisfied about how
8 A, Yes, yes1 and then Mr. Greiner say -- Professo:r Greiner
r~ ...
l 9 say that yes, it's an affirmative vote. I think there
L
10 was a desire by people to keep him for a year, let me
l .
11 put it that way.
12 Q. And do you remember if this person that was contesting
13 or challenging the voter was that Professor Gardner?
r
'
A. I think many people would challenge the vote. r think
I 15
\,,
many people said is thi~ an affirmative vote? I think
16 it was not just -- I can't recall who it was, but I
17 remE.mlber it was a ch-0rus of objections as to whether
16 this was an affir:mativ~ vote.
19 Q, And this happened at the meeting itself?
20 A. Yes, yes.
21 Q, Okay.
22 A. Immediately after the vote was announced, people --
23 there was a chorus of whether this was a yes or a no
24 vote.
Q, Do you rem.ember what, I queaa, the person presiding
OlHl021i0
Case 17-38, Document 30, 02/17/2017, 1975447, Page88 of 158
Document 487
'..
1 aoout.
\_ 2 Q, Okay.
3 A. Yeah. There was only one vote, which was to extend him
4 for another year as Director of the program.
5 Q. And you remember this clearly?
~ ..
6 A. I remember this very clearly.
7 Q. H~ve you had a chance to discuss this meeting with
L
8 anybody?
i
i
j_
9 A. I mean, I d~soussed the meeting with my lawyers before
10 the Labor Court in Albany when ~ testified there.
11 Q. Okay. What about anybody at the law school?
12 MR, OPPENHEIMER: B'o:nn.
13
14 BY MR. AR.BUT:
L..
15 Q. Did you discuss the meeting and what occurred at the
,-
! 16 meeting after with anybody at the law school?
L ..
17 A, Probably.; I mean, you know, it waa .such a contentious
18 meeting, iprobably people talked about it for daysi I
19 can 1 t imagine that peopie didn 1 t,
!
1
\ <
20 Q. And let me ask you, did you diaou&a with them the vote
21 or the outcome?
22 A. No, because I think, I think that we felt that we had
23 done the humane thing which was to give Mr. Malkan an
24 additional year. So that issue was settled. And I
think people felt, you know, that was the appropriate
r
i
t,
DePADLO-CROSBY u~::ntG snv:tas, me.
170 Frankl.i.ri, Street, 601, Buffalo~ New York 14202
716-953-!!SU
0000261
Case 17-38, Document 30, 02/17/2017, 1975447, Page89 of 158
487
Exhibit
J
0000Zb2
Case 17-38, Document 30, 02/17/2017, 1975447, Page90 of 158
VOLUME 3.
STAT! or NEW YOrti
PUBLIC EMPLOYMENf RELATIOWS BOARD
.t
* * * * * * ** *** * ** * * * *
I In the Matte~ of: **
**
I
~
UNITED UNIVE!tSI~Y Jnl.O.FESSIOKS 1 NEW
YORK STAT~ U~fED rEACHERS, APT,
LOCAL 2190, APt-CIO,
*
*.
Charqj.nq Party, "' .Case No
.. U-28926
-and-
*
snn or NH tQU Estate
*t
tJ.nJ.ver;sity of New York at "'
Bll.f'falo) r *
Respo.ndent. *"
"******"'*****"ti""****
Pu.bli9 Employmant l'lelations Board
!fain Rearing Room
&'it.th Jlp6J:
BO wolf Road
.A.lbany, liew '!tork 12205
~pdl l, 2010
fMutua, CrolUi)
l A As far u I was concerned, Jeff never hatt a
2 clinical appqintment,
3 Q ~nd is it yo'.Q.z: te.stJ.mo:ny that there was no vot.e
I
4 held on hie promotion at that me~ti~q?
I
5 A Promotion for what~
v:otad on it?
l
15
16
17
A
Q
That' 9 coz;re-ct.
And it had t4 be voted on by the 00111111ittee? I
1..8 A ! t had to be voted on by the Coli.mi tt.ee.
19 Q And did the collUllittee hold a dLtfer&~t meetinq
zo where they held t~~t vote1
21 A Repeat the queet~on.
JM 00285l
I
Case 17-38, Document 30, 02/17/2017, 1975447, Page92 of 158
487
Exhibit
K
OOOOZ6fi
Case 17-38, Document 30, 02/17/2017, 1975447, Page93 of 158
JEFFREY MALKAN,
DECLARATION OF
CHARLES P. EWING
v.
12CV-0236(A)
MAKAU W. MUTUA and
CHARLES P. EWING in their
individual capaelties,
Defendants.
SUNY Buffalo Law School. I have been a member of the faculty at the Law School for 31
years.
2. From June I, 2009 to June 1, 20~4 (in addition to teaching duties), I served as a
Vice Dean of the Law School. My service as Vice Dean began after the conduct took place
that Plaintiff Jeffrey Malkan ("Malkan") alleges violated his civil rights.
3. I was not involved in any manner in any decisions made regarding the Law
4. Makau Muma ("Muwa"), the Doon of the Law School, made (without my input)
the decision to fire Malkan from his position as Director of Legal Research and Writing and not
000026ti
Case 17-38, Document 30, 02/17/2017, 1975447, Page94 of 158
5. After Mutua made his decision, and I learned about it, I spoke with Malkan as a
colleague and encouraged him to file a grievance with the Law School Grievance Committee,
6. According to Law School faculty bylaws, the Law School Grievance Committee
Malkan's complaint, I shared it with and discussed it with the Grievance Committee.
9. Mutua refused to discuss the grievance with me. a$serting he was doing so 011
the advice of counsel, because Malbn bad initiated litigation and was contemplating additional
litigation.
10. Because Mutua would not cooperate with the Committee's investigation and
talk with me, and because Mallcan had already initiated litigation outside the University, and
nothing further to "endeavor to adjust [the grievance] amicably'' under our bylaws. We
00002Bi
Case 17-38, Document 30, 02/17/2017, 1975447, Page95 of 158
487
recommendation was unanimous. We further decided to ten Malkan what had transpired. I
11. While my good faith efforts described above constitute the totality of my
Malkan has alleged with no basis that I "worked in conspiracy with Mutua to block iV!alkan's
access to a mandatory faculty grievance process, thus allowing [me] to become director of the
LRW soon after Malkan was fired" ari..d that I was subsequently "awarded" Malkan's former
12. r never conspired with Mutua to deprive M.alkan of any rights. My only activity
regarding Malkan's employment was consistent with my role as Chair of the Cnievance
Committee. In that role I accepted Mallam's grievance complaint against Mutua. discussed it
with my fellow Committee members. tried to investigate it with Mutua, tried to amicably adjust
it, and discussed what the Committee's recommendation should be and what course of action it
B. I was never "awarded" or in any way given Malkan's former position at the Law
School. On June 1, 2009, I was appointed by Mutua as Vice Dean. for Legal SklUs, an
curriculum. including inter alia all skills courses, moot courts, law review and other journals,
trial advocacy, externships, academic support services, and the legal analysis, writing and
research courses. Each of the areas I supervised as Vice f'JOO.n, including the legal analysis,
charged with the day-to-.day management of those programs. With regard to the legal analysis,
3
Case 17-38, Document 30, 02/17/2017, 1975447, Page96 of 158
writing and research program. that day-to-day management function was the responsibility of
14. After overseeing a three-year ovethaul of the legal skills programs at the Law
School, I was appointed Vice Dean for Academic Affairs in 2012. Mutua testified at his
deposition that: "[T]he previous Vice Dean for Academics, Proressor Gardner. went on
sabbatical and you cannot run a law school without a Vice Dean for Academics. So I had to
find someone and in my own estimation, there was no one in the law school that was better
15. My relationship with Mutua has always been limited to that of professional
colleagues. Any social events we attended together were Law School related. I have often been
openly and strongly critical of Mutua and his management of the Law School and have not
hesitated to share my criticism with him bluntly and personally. For example, several years
ago, when the faculty was about to vote "no confiderwe*' in Mutua as Dean of the Law School,
I spent many hours meeting with Mutua and urged him to resign for the good of the Law
School.
at the Law School or the manner in which Mutuahasconducted himself in relation to Malkan's
lawsuit, including Mutua's unsupported claims about what occurred at the April 28, 2006
17. I did not attend that meeting but I have communicated with many colleagues who
did. Some of these colleagues have already testified and/or provided declamtions under penalty
of perjury. To a person, every one of the colleagues with whom I have communicated
4
Case 17-38, Document 30, 02/17/2017, 1975447, Page97 of 158
regarding that meeting has directly contradicted Mutua' s claim (made twice under oath) that
the Committee did not recommend that Malkan be renewed and promoted to Clinical Professor.
18. One of those who attended the meeting and contradicted Mutua's sworn
testimony was Professor James Gardner, my predecessor as Vice Dean for Academic Affairs.
On or about March 31, 2014, I spoke with Gardner in the Law School building. I explained to
Gardner that Mutua had testified under oath before the Public Employment Relations Board in
2010 and in his federal court deposition in December 2013 that on April 28, 2006. the CCPR
did not vote to recommend that Malkan be renewed and promoted to Clinical Professor but
voted to give him only a one year appointment as Director of Research and Writing. Gardner
appeared surprised to hear this and responded by saying u'fbats not what happened." Gardner
then recalled that over his opposition the CCPR did vote to recommend Malkan's renewal and
promotion to Clinical Professor. Gardner added that he accepted the vote as valid.
2i. Mutua's credibf!ity is certain to be attacked at trial, and that attack will be built
on the credible testimony and not.es of many distinguished law professors who attended the
April 28, 2006 meeting of the Committee on Clinical Promotion and Renewal. Fairness
dictates that I not be required to be tried alongside a co-defendant whose credibility has already
been and will continue to be severely undermined by his own sworn testimony. I therefore
Charles P. Ewing
5
Case 17-38, Document 30, 02/17/2017, 1975447, Page98 of 158
Exhibit
L
"' ..... ~
0000211
Case 17-38, Document 30, 02/17/2017, 1975447, Page99 of 158
'L 1
,.
,..,. ~ .
1 UNITED STAT$S DISTRICT COURT
I .. . l ~ .
"
. .'ft'Ii.S~lilRN I'>IS'l'RIC'I'
.
2 .OP .NEW YORK
3
.
. !
. .
------------:-~------r~-----~--------------~~-
~ -" :~ t ~ f
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. :
.J'.~~l'RBY KA.LUK'".
5 , Plaintiff,
t
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\
'. 9 ; Defendants.
---~::~::::::-~:~::~-~~:;~~:~-~~~:-~~-~---
10
l . 11
r 12 BW%NG. held before Jeasioa
I
s. Sheldo~, Notary
13 P~b1ic; at: uu:o 11oil~Y, :Avat?-t Building,
,..
i 14 ~oo Del!lwax-e iv~nue, ls~.ite 1200, Buffalo,
' . . I
N_ew' York, ~~ Dece...-ibe~ aoth, .~o:i,3 at.. I .
. . I
16. 10t16 a~ m~ ' pursuant ~~o notige.
17
!
l. 18 APP~AllANCES: ~BBDS 8ROWJI' LAW, P,C.,
,..
I
19
BY: . BRYAH .1.RBJ&:C'r, BSQ
One Old Country aoad, Suite 347
5 ,
oooottz
Case 17-38, Document 30, 02/17/2017, 1975447, Page100 of 158
487
' . 23
C, EWING BY MR. A:RBEIT -- '12/20/13
'
r - " 1~
!
l be about?
;ii
.~
I;
l
' . 2 A. Well, it had tq, do wi&h his contract, the
3 termination of his c'1ftract, his removal from
the faculty, and the ;f.anner in which he .. had
been treated, by the dran. I think those are
4
the three areaa. !
f1 I
Q. Okay._ Did you begin f:i.v~stigating that
".
2Jrievanoe? :i:
i
l . 9 A. Yes.
10 Q. Okay. And can. you ter!ll me how you went a.bout
:l '.
11 inv~stigating that g~~evanoe?
12 A. Well, ! had talked tq!Jeff, so I had some
13 further background i~~o~m.ation oth,e:r than.
("'"
I
'
14 what 1 s included here.ii I~ fact, I m the one
1
.i
who suggested that. tliie grievance prooell!s might
i
i,.'
16 be a w~y to try to amiicably resolve the lack
17 of communiaation here:. I think I felt that
18 his primary concern, rlat:
!
fl
least as far as the
J.9 committee want, was tihat he wasn 1 t able to
!
20 oom.mun;t.oate with the :;dean. $~ I had that in
'
21 mind. i
22 I then aon~acted~akau Mutuaand.presented
23 the gist of this ta ~im, and he indicated to
24 me that he couid not 'speak to me on advice of
aounsel, b~a&use the~e is aurrent litigation
0000273
Case 17-38, Document 30, 02/17/2017, 1975447, Page101 of 158
Document
r
' .. ,,
i . i 24
! !.
i'
00002'14
Case 17-38, Document 30, 02/17/2017, 1975447, Page102 of 158
!
\,.
I - .. ~
.-DEPAOLOOROSBY BJmiioRTING SERVICES, me.--
170 Franklin Stree~; Suite 661, Buffalo, mew York 14202
'!16-l>Sl'-5544
0000275
Case 17-38, Document 30, 02/17/2017, 1975447, Page103 of 158
7 Document
! 26
C. EWING -- BY itm AR.BEIT -- 12/20/13
i
revi~wing the Jaeulty ,handbook?
2 MR. OPPENBEIME~t Form.
3 A. That 1
4 Q, Sorey,
I .
Was it a :facru!,lt:y handbook or --
5 MR. OPPENH!IMB~: Stan.ding order,
Q. standing order?
A. Standing order of th~' faculty senate. That
6 well, Dean Mutua had lsai~ t~ me essentially
9 that he oould not codperate because of the
I .
lO pending litigation. \And h~ --.after I read 1
ll the fao_ul.ty. handbook \and the .standing c;irde:rs,
i
12 . it became -- two thi1gs became clear tome:
13 one is. that he 'was a9tin9' within ~~ not only
( . within his own right~, but actually he was
I
I
~itigation with me. J t
! . . . .
(, .. , t..----~-DBPAOIDOROSBY DPoRTlNG SERVICES, INO.~...,..---........
'
j
c"
170 Franklin Street, suite 501, Buffalo, New York 14202
oooo:tio
Case 17-38, Document 30, 02/17/2017, 1975447, Page104 of 158
Exhibit
M
0000
Case 17-38, Document 30, 02/17/2017, 1975447, Page105 of 158
I believe it Is necessary for me to Inform you that your client, Makau Mutua, dean of the SUNY at Buffalo
Law School, committed perjury in the first degree on March 31 and April 1, 2010.
In an attemptto justify his abuse of power, Mabu Mutua gave false testimony under oath pertaining to
a material fact in the case; specif1talfy, the faculty's approval of my reappointment to a presumptively
renewable, multi-year term contract at the rank of full cllnlcal professor, With 405(c)-protected status.
His false testimony was premeditated, plain, and unequivocal and he repeated it twice, on both direct
and cross-examinations. This, by statutory definition, is perjury in the first degree.
The enclosed document provides my lnlt.lal evidence of his perjury. If you haw any questions about the
circumstances it describes, I suggest you speak to Professors Nils Olsen, SUe Mangold, Dianne Avery, and
Guyora Binder. Nils Olsen, as you know, Is former dean of the law school. Sue, as vice-.dean, presided
over the meeting in question of the P&T committee on Aprll 28, 2006. Dianne, who served as vice-dean
and my immediate supervisor from 20002003, was present at the P&T committee meeting.
Guyora, who recruited me to Join the law school faculty In spring of 2000, Is a Distinguished SUNY
Professor ln the field of criminal law and has personal knowledse of all the facts in this case, including
my initial appointment to the nmk of clinlcal associate professor and my subsequent promotion to the
rank of full clinical professor.
In addition, Professor Markus"Dubber, now on the faculty of the University of Toronto, and Professor
Shubha Ghosh, now at the Univetsity of WISCOOsin, were both present at tiie P&T committee meeting
on April 28 and have confirmed to me that Dean Mutua's sworn testimony was utterly false. These two
indiViduals, who have subsequently severed their ties With SUNV at Buffalo, told me that they are
prepared to fully cooperate with any inquiry Into this matter. You may also wish to speak with any of
the professors who have been copied on this letter, all of whom were present to vote on my promotion.
The union is not representing me in this aspect of the case, which, of course, was not contemplated
when it agreed to help me fight my wrongful termination. At the cost of delaylng my own cause, I would
Case 17-38, Document 30, 02/17/2017, 1975447, Page106 of 158
have preferfed to return to Albany and call further witnesses to expose Makau Mutua ln the forum
where his perjuiy was committed, but the union was satisfied with the reeord we had established to
that point on the Taylor Law issues. Hence I am in the position of having to wait until Judge catlson
completes his deliberations, when I anticipate he will issue a finding that Makau Mutua is guilty of anti-
union animus, which in and of itself will be an unprecedented disgraceforthe law school and an
appalling scandal for President Trlpathi's administration.
At that time, I intend to file this information with the state's regulatory and law enforcement
authorities, induding the District Attorney of Albany County, the Office of the Attorney General (Public
Integrity Bureau), and the Committee on Character and Fitness of the Appellate Division d the Supreme
Court. I also Intend to share this information with the entire law school faailty, as many as twenty of
whom have direct Pers<>nal knowledge of the underlying facts.
I want to be clear that my sole purpose In writing to you Is to give the university a fair opportunity to
investigate my allegation of-criminal misconduct andtake appropriate action in response to the facts
that are now In yoor possession.
When any attorney or state Offtdal attempts to 5Ub\/ert tM judfelal process It Is a matter of gravest
concern to society. Makau Mutua is both. He Is al&c> responsible, as dean of the state university law
school, for the ethical legal education of hundreds of students. I hope the university cooperates with
me in getting to the truth about Makau Mutua before he does any more harm to me or damage to the
institution.
Jeffrey Malkan
12 Valleywood Ct. W
Saint James, NY 11780
Q. Who Is that?
0000280
Case 17-38, Document 30, 02/17/2017, 1975447, Page108 of 158
0000281
Case 17-38, Document 30, 02/17/2017, 1975447, Page109 of 158
0000282.
Case 17-38, Document 30, 02/17/2017, 1975447, Page110 of 158
A. Yes.
A. That's correct.
0000283
Case 17-38, Document 30, 02/17/2017, 1975447, Page111 of 158
---Original Message--
From: markus.dubber@utoronto.ca
Sent: Wednesday, Jwie 02, 2010 10:43 AM
To: Jeffrey Malkan
Subject: Re: question about my contract renewal
Hi Jeff:
I don't have super detailed memories of the meeting. but to the best
of my recollection, as they say, here goes:
There was discus8ion about the LRW program and there was discussion
about you. People talked about thedircctionofthe program and made
mare or less vague ooises about reimagfuing the program, perhaps by
integrating appellate advocacy in some form or another (I associate
Lucinda and Jim Gardner with this SQrt of talk). Some people wondered
whether you were the right person to lead this reimagination effort;.
others thought you were; yet others weren't all that excited about tlte
need to do much reimagining, since the program was doing just fine as
it is, though of course it's always nice to keep improving things.
0000284
Case 17-38, Document 30, 02/17/2017, 1975447, Page112 of 158
Best,
Markus
Markus Dubber
Professor of Law
University of Toronto
www.iaw.toronto.ca/facull;y/dybbet
e-mail from Professor Niis Olsen, former dean of SUNY at Buffalo Law School
Hi Jeff L.et me assure you that I have never lied to you. You may recall that I
was unable to attend your promotion meeting because my father was seriously m
at the time and I was with him in Madison. As a resuit, Sue Mangold presided.
Shortly after the meeting concluded, Sue called and we had an extensive
conversation. both a.bout the result - she informed me that the faculty voted to
approve your reappointment - and about her presentation to the faculty concerning
the terms of the reappointment -- that it was subject to the ABA standards on
clinical appointments and was, accordingly a multi-year appointment with
termination only for cause. As you know, to save time and to ensure that the
oontmct conformed to the terms presented at the meeting. Sue prepared the draft
that you and I eventually signed. As I am sure you are aware, Sue is a person of
the highest integrity and honesty. She would never lie about the results ofthe
meeting and I have .absolute confidence in her report about the proceeding.
MOreover, there is simply no reason that either of us would have to misrepresent
the faculty vote in such a manner. For what it's worth, I also had at least one
conversation after my return about the meeting and vote with a colleague that was
entirely consistent with reappointment. l hope that this reassures you and
contributes to at least a relative peace of mind oonceming this matter.
Nils
0000285
Case 17-38, Document 30, 02/17/2017, 1975447, Page113 of 158
Exhibit
N
0000286
Case 17-38, Document 30, 02/17/2017, 1975447, Page114 of 158
On March 31, 2010, you presented swom testimony from your dlent, Makau W. Mutua, in which he
stated, based on his personal knowledge, that I did not have a valid faculty appointment or a valid
employment contract because the law sdlool's Promotion and Tenure (P&T) Committee, on April 28,
2006, failed to vote on my reappointment and promotion.
He testified that the P&T Committee instead passed a resolution to recommend that I be granted a
one-year terminal administrative appointment and then dismissed, with the consequence that then~
Dean R. Nils Olsen had no legal authority to take any personnel action on my behalf. He also testified
that if no one knew what Jeff was still doing In the building" after that terminal year elapsed in May
2007. This testimony was entirely false. He repeated exactly the same lie on cross-examination the
next
This was an intricate and premeditated lie about a material and potentially disposit!ve fact in this
proceeding and related litigation. You and Dean Mutua had four months to prepare his direct
and he has since had three years to recant. I could not respond in the courtroom
ti>ITm!'l .... rw
time because, of course, I had oot been present at my own P&T meeting so! could not claim to have
personal knowledge of what happened at these proceedings.
we received the transcripts and I v.>as able to make inquiries, I provided evidence to you
,.,....1-1fi~M'I
mail on November 2010 (see attachment) that a fraud had been on a state
000028'7
Case 17-38, Document 30, 02/17/2017, 1975447, Page115 of 158
administrative tribunal by the dean of the state university law school. You decided, however, that my
allegations dld not warrant a response. (See e-mail exchange below.} My evidence at the time
consisted of e-ma~ messages to me from former Dean R. Nils Olsen and Professor Markus Dubber
(now Professor of law at the University ofToronto}, This was certainly credible evidence from
credible sources that would obligate any responsible attorney to check the veracity of his or her
client's testimony, and which you could very easily have done by telephone or e-mait
This lie, of course, calls into question Dean Mutua's credibility on every other point of h Is testimony,
in duding his defamatory attacks on my competence and character as well as his claim that he never
met with Vice--President for Human Resources Scott Nostaja to discuss the UUP's intervention on my
behalf.
I suggest that you contact David J. Sleight, Esq. at the Buffalo AG's office, If he has not already
contacted you, He has unequivocal evidence of Dean Mutua's perjury, Including sworn testimony
from former Vice--Dean Susan V.Mangold (who chaired the P&T Committee meeting and counted the
votes on a tally sheet which. has been marked as evidence}, former Vic&-Oean Dianne Avery {who kept
her own tally sheet of the vote, also marked as evidence), Professor Robert Steinfeld (who introduced
the resolution recommending my reappointment}, and Professor Rebecca French (who also voted on
my reappointment) ..
There are many more tenured faculty members, including Professors Fred Konefsky, George Kannar,
Isabel Marcus, Errol Meidinger, Guyora Binder, James Gardner, Betty Mensch (retired), and Shubha
Ghosh (now at the University of Wisconsin} who were present on Aprll 28, 2006 and can confirm the
same ugly fact - that Dean Mutua attempted to justify his retaliation and abuse of power by !ying
under oath about my faculty appointment.
At the very least, you need to begin by reporting this situation to Chairman Jerome Lefkowitz, Director
Monte Klefn, and AU Kenneth s. Carlson at PERB, Chancellor Nancy Zimpher at SUNV Central, and the
Public lntegr1ty Bureau of the Office of the Attorney General. I sincerely hope that you will take the
Initiative and do the right thing, that is, whatever Is necessary to correct the injustice that resulted
from your client's criminal misconduct.
Yours truly,
Jeffrey Malkan
Case 17-38, Document 30, 02/17/2017, 1975447, Page116 of 158
7
I'
Exhibit
0
0000288
Case 17-38, Document 30, 02/17/2017, 1975447, Page117 of 158
Document 481
This message ls part of the record I am compiling to document your refusal to respond to my repeated
attempts since November 11, 2010 to report a crime by one of your senior administrators.
! should perhaps explain Dean Mutua's culpability to you !n legal terms, as I understand the relevant
~"''*'''~"'<: of the penal statutes.
1. His testimony was false. At this point, seven tenured professors have confirmed that Dean Mutua
lied aboutthe vote of the Promotion and Tenure (P&Tj Committee on April 2006 that
recommended my reappointment and promotion to full dlnical professor. Five were under oath
(Professors Olsen, Avery, French, Steinfeld, Avery} ;;nd two responded by e"mall {Professors Dubber
00'00290
Case 17-38, Document 30, 02/17/2017, 1975447, Page118 of 158
and Ghosh). Their testimonies were based on personal knowledge and supported by
contemporaneous documentary evidence, specifli::aHy, handwritten tally sheets of the vote count.
(See links below.) Not a single professor has come forward to corroborate Oean Mutua's Iles. In
addition, Dean Mutua himself admitted that crucial subpoenaed documents regardfng my faculty
appointment had been destroyed by the Dean's Office, although he attempted to blame former~Dean
R. Nils Olsen, Jr. and former-Vice Dean Susan V. Mangold for vandalizing these files. Such a
bizarre libel by a law school dean against his colleagues Is aberrant and unprecedented.
2. His false testimony was Intentional. Dean Mutua lied under oath at the hearing of the PubUc
Employment Relations Board (PERS) on March Sl-Aprll 1, 2010. In that proceeding he !led under
direct examination and, on the following day, repeated the same Iles under cross~xamlnatlon. His
false testimony was premeditated- prepared on rour month's advance notice - and was intended to
cause a miscarriage of justice, which he succeeded in doing. His motivation was to justify his malicious
misconduct and abuse of pawer, which includes breach of contract, violation of state labor laws,
defamation, tortious interference with employment relations, misrepresentations of fact to the
American Sar Association (ASA} Section on Legal Education, refusal to comply with mandatory law
school personnel and grievance procedures, and denia Iof federal due process acting under color of
state law.
3. His false testimony was repeated in federal court. After an foterval of three years, during which
he failed to correct or recant his false testimony, he repeat'ed and embellished the same lies at a
deposition taken on December 19, 2013 under the auspices of the federal court of the Western
District of New York. This was a second attempt to leverage the aedlbility and trust conferred by his
state office Into a miscarriage of Justice. Just as he knew that his sworn testimony would likely
be treated deferentially by any judge before whqm he appears, he can expect that he will be held to
the highest standards of diligence and honesty when his perjury iS examined by state and federal
prosecutors.
4. His false t~mony was material to the proceedlnp In which it was made. Dean Mutua falsely
claimed that that the P&T Committee never considered a resolution 11:0 vote on my faculty
appointment, but instead voted only to recommend that I be granted a one-year terminal
appointment to an administrative post. On this basis, he claimed that all subsequent employment
actions taken on my behalf by former-Dean Olsen, Including the issuance of my contract and the
renewal of my faculty appointment, were "ultra vires" and voidable at his discretion. If true, this
testimony might be construed to negate essential elements of my legal claims In state and federal
courts.
s. You may be culpable for protecting Dean Mutua and obstructing justice. You must recall that, on
December 5, 2013, you signed a sworn legal instrument In which you claimed that appointments and
promotions for law school clinical faculty do not pass across the Provost's desk. You further claimed
that you were unaware of my allegations against Dean Mutua because SUNY Counsel intercepts your
mail without briefing you on legal matters and you do not read the UB Spectrum, even articles in
which you are accused of wrongdoing. I don't think It will be difficult for faw enforcement agencies
to determine that these careless fabrications were materially and knowingly false.
Your motivation was to protect a high-ranking member of your administration from the investigation
0000291
Case 17-38, Document 30, 02/17/2017, 1975447, Page119 of 158
Document 487
of a crime. Over four months have passed since you signed that affidavit and Makau W, Mutua is still
occupying the Dean's Office under your protection. I have copied the relevant federal and state
perjury statutes below. You may want to retain outside counsel to review the University's as well as
your own iiabllity since, on review ofthe evidence, i believe that most experts in criminal law would
find you complicit in this subversion of the judicial process. In addition, the three tenured SUN\I
Buffalo professors who specialize in criminal law- Charles P. Ewing, Guyora Binder, and Luis E. Chiesa -
- will no doubt give you the benefit of their scholarly expertise, if you ask them.
Sincerely,
Jeffrey Malkan
Jeffrey has flies to share with you on OneOrivl!I. ro view them, click the links below.
(1) having taken an oath before a competent tribunai, officer, or person, in any case in which a law of the United States
authorizes an oath to be administered, that he wm testify, declare. depose, or certify truly, or that any written
testimony, declaration, deposition, or certificate by him subscribed, ls true, willfully and contrary to such ooJh states or
subscribes any material matter which he does not believe to be true; or
(2) in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section lZli of
title~ United States Code, willfully subscribes as true ai-iy material matter which he does not believe to be true;
is guilty of perjury and shall, eiroept as otherwise expressly provided by law, be fined under this title or Imprisoned not
more than five years, or both. This section is applicable whether the statement or subscription is made within or
without the United States.
Exhibit
p
000029J
Case 17-38, Document 30, 02/17/2017, 1975447, Page121 of 158
487
Ms. Zwlcklbauer,
This is the type of information you cannot refuse to accept because it pertains to your legal obligations.
You were co-counsel in a trial in which a verdict was obtained by the use of false testimony. You and
Ms. Vance had evidence that Dean Makau W. Mutua was lying under oath long before the AU issued
his decision. The evldeoce I provided to you and Ms. Vance was credible and consisted of e-mails from
former-Dean It Nils Olsen and Professor Markus Dubber (now at the University of Toronto}.
It would have been simple enough for you to assign someone In your office to make a few phone ca!ls
or send a few e-mails to ensure that your client was not lying to vou, but you refused, which was a
violation of your duty as an officer ofthe court in a civil matter. Now it is dear beyond a reasonable
. doubt that your dient was lying to you and that his lies were premeditated and material, Hls false
testimony was intenck!d to cause a miscarriage of justice, and It dld.
I am making a record ofthese facts that I intend to take the Committee on Character and Fitness as a
result of which ! believe that you and Ms. Vance may be disciplined or disbarred. As attomeys for the
state who dishonest means to deny a fair hearing to a member ofthe public, I beUeve you
will be held to the highest standard of diligence and honesty.
If you don't understand your obligations, I suggest you confer with Mr. Ruggieri, There is stm time for
SUNY Counsel to take ameliorative action by informing the Public Employment Relations Board
Case 17-38, Document 30, 02/17/2017, 1975447, Page122 of 158
that a fraud had been perpetrated on the court and that the tainted decision must be vacated and
remanded. I am copying the relevant provisions of the Rules of Professional Conduct below. The
evidence you had in 2011 warranted an Investigation, but now you don't even have to investigate
because the evidence available in the federal record. You only need to contact AG David Sleight In the
Buffalo office.
Jeffrey Malkan
I. File a suit. assert a position, conduct a defense, delay a trial, or take other action on behalf of the
client when the lawyer knows or when it is obvious that such action would serve merely to harass or
maliciously injure another.
2. Knowingly advance a claim or defense that is unwarranted wider existing law, except that the hj.wyer
may advance such chtim or defense if it can be supported by good faith argument fOr an extensio~
modification, or reversal of existing Jaw.
3. Conceal or knowingly fail to disclose that which the lawyer is required by law to reveaL
4. Knowingly use perjured testimony or false evidence.
5. Knowingly make a false statement of law or met.
6. Participate in the creation or preservation of evidence when the lawyer knows or it is obvious that the
evidence is false.
7. Counsel or assist the client in conduct that the lawyer knows to be illegal or fraudulent.
8. Knowingly engage in other illegal conduct or conduct contrary to a Disciplinary Rule.
1. The client has, in the course of the representation, perpetrated a fraud upoa a person or
tribunal shall promptly Call upon the client to rectify the same, ud if tile client refuses or is
unable to do so, the lawyer shalJ reveal the fraud to the affected person or tribunal, except when
the information Is protected u a confidence or secret.
2. A person other than the client has perpetrated a fraud upon a tribunal shall reveal the fraud to the
tribunal.
provided that It does not include conduct that, although characterized as fraudulent by
statute or administrative rule, lades an element of sci enter, deceit, intent to mislead, or
knowing failure to correct misrepresentations that can be reasonably expected to induce
detrin1ental reliance by another.
(2} fall to dlsdose to the tribunal controU!ng legal authority known to the
lawyer to be directly adverse to the position of the client and not disclosed by
opposing counsel; or
(3) offer or use evidence that the lawyer knows to be false. If a lawyer,
the lawyers dien.t, or a witness called by the lawyer has offered material evidence
and the lawyer comes to know of its falsity, the lawyer shall take reasonable
remedial measures, induding, if necessary, disclosure to the tribunal. A lawyer may
refuse to offer evid~mce, other than the t~-tlmony of a defendant lo a criminal
ls
matter, that the lawyer reasonably believes false.
[1J This Rule governs the conduct of a lawyer who is representing a client In the
proceedings of a tribunal. See Rule 1.0(w) for the definition of "tribunal." It also applies when
the lawyer is representing a client in an ancmary proceeding conducted pursuant to the tribunars
adjudicative authority, such as a deposition. Thus, for example, paragraph {a)(3) requires a
lm,vyer to take reasonable remedial measures if the !awyer comes to know that a client has
offered false evidence In a deposition.
has engaged in aiminal or fraudulent conduct related to the proceeding. Such conduct Includes,
among other things, bribing, intimidating or otherwise unlawfully communicating with a witness,
juror, court official or other participant In the proceed ins; unlawfully destroying or concealing
documents or other evidence related to the proceeding; and falling to disclose information to the
tribunal when required by law to do so. For example, under some circumstances a person's
omission of a material fact may constitute a crime or fraud on the tribunal.
From: Uesl.Zwicklbauer@sun'(.'51u
To: jeffrey.malkan@outlook.com
Subject: RE: Dean Malcau W. Mutua's perjury~ legaf analysis
Date: Tue, 22 Apr 2014 12:58:22 +oooo
This message is part of the record I am compiling to document your refusal to respond ro my repeated
attempts since November 111 2010 to report a crime by one of your senior administrators.
I should perhaps explain Dean Mutua's culpability to you In legal terms, as I understand the relevant
provisions ofthe penal statutes.
1. His testimony was false. At this point, seven tenured professors have confirmed that Dean Mutua
lied about the vote of the Promotion and Tenure (P&T~ Committee on Aprll 28, 2006 that
recommended my reappointment and promotion to full clinical professor. Flve were under oath
(Professors Olsen, Avery, French, Steinfeld, Avery) and two responded by e-mail (Professors Dubber
and Ghosh}. Their testimonies were ba5ed on personal knowledp and supported by
contemporaneous documentary evidence, speclflcally, handwritten tally sheets of the vote count. (See
links below.) Not a single professor has come forward to corroborate Dean Mutua's lies. In addition,
Dean Mutua himself admitted that crucial subpoenaed documents regarding my faculty appointment
had been destroyed by the Dean's Office, although he attempted to blame former-Dean R. Nils Olsen1
Jr. and former-Vice Dean Susan V. Mangold for vandalizing these files. Such a bizarre libel by a law
school dean against hi$ colleagues Is aberrant and unprecedented.
2. His false testfmony was Intentional. Dean Mutua lied under oath at the hearing of the Public
Employment Relations Board (PERB) on March 31-Aprll 1, 2010. In that proceeding he lied under direct
examination and, on the following day, repeated the same lies under cross-examination. lf1s false
00002tr1
Case 17-38, Document 30, 02/17/2017, 1975447, Page125 of 158
testimony was premeditated- prepared on four month's advance notice -- and was intended to cause
a miscarriage of justice, which he succeeded in doing. His motivation was to justify his malicious
misconduct and abuse of power, which includes breach of contract, violation of state labor laws,
defamation, tortious Interference with emplovment relations, misrepresentations of fact to the
American Bar Association (ABA} Section on Legal Education, refusal to comply with mandatory law
school personnel and grievance procedures, and denial of federal due process acting under color of
state law.
3. His false testimony was repelilted in federal court. After an Interval of three years, during which he
failed to correct or recant his false testimony, he repeated and embellished the same Iles at a
deposition taken on December 19, 20131.mderthe auspices of the federal court of the Western District
of New Yori<. This was a second attempt to leverage the credlbllity and trust conferred by his state
office Into a miscarriage of justice. Just as he knew that his sworn testimony would likely be treated
deferentially by any judge before whom he appears, he can expect: that he will be held to the highest
standards of diligence and honesty when his perjury is examined by state and federal prosecutors.
4. His raise testimony was material to the ~11115 in which it was made. Dean Mutua falsely
claimed that that the P&T Committee never considered a resolution to vote on my faculty
appointment, but instead voted only to recommend that I be granted a one--ye;;ir terminal appointment
to an administrative post. On this basis, he claimed that al! subsequent employment actions taken on
my behalf by former-Dean Olsen, including the Issuance of my contract and the renewal of my faculty
appointment, were "ultra vires" and voidable at his discretion. If true, this testimony might be
construed to negate essential elements of my legal claims in state and federal courts.
5, You may be C"..!lpab!e fer protect!ns Dean Mutua and ob5f:meting justice. You must recaii that, on
December 5, 2013, you signed a sworn legal Instrument In which you ciaimed that appointments and
promotions for law school clinical faculty do not pass across the Provost's desk. You further dalmed
that you were unaware of my allegations against Dean Mutua because SUNY Counsel intercepts yom
mail without briefing you on legal matters and you do not read the US Spectrum, even articles in which
you are accused of wrongdoing. I don't think it will be difficult for law enforcement agencies to
determine that these careless fabrications were materially and knowingly false.
Your motivation was to protect a high~ranking member of your administration from the investigation of
a crime. Over four months have passed since you signed that affidavit and Makau W. Mutua is still
occupying the Oeain1s Office under your protection. I have copied the relevant federal and state
perjury statutes below. You may want to retain outside counsel to review the University's as well as
your own liablllty since, on review of the evidence, I believe that most experts in criminal law would
find you complicit In this subversion of the judicial process. In addition, the three tenured SUNY
Bumio professors who specialize in criminal law- Charles P. Ewing, Guyora Binder, and lu!s E. Chiesa
~ will no doubt give you the beneflt of their scholarly expertise, if you ask them.
Jeffrey Maikan
000028t!
Case 17-38, Document 30, 02/17/2017, 1975447, Page126 of 158
Jeffrey has flies to share with you on OneOrlVe. To view them, cffck the links below.
Ii
(1) having taken an oath befOre a competent tribunal, officer, or person, In any case in which a law of
the United States authorizes an oath to be administered, that he wlft testify, declare, depose, or certify
truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, Is true,
willfully and contrary to such oath states or subscribes any material matter which he does not believe
to be true; or
(2) in any declaration, certificate, verification, or statement under penalty of perjury as pennltted
under section 1746 of title~ United States Code, willfully subscribes as true any material matter
which he does not believe to be true;
Is guilty of perjury and shall, except as othef'Nlse expressly provided by law, be fined under this title or
Imprisoned not more than five years, or both. This section Is applicable whether the statement or
subscription is made within or without the United States.
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487
OOOO~HI
Case 17-38, Document 30, 02/17/2017, 1975447, Page128 of 158
3 -------------------------------------------------
4 JEFFREY MALKANI
5
6 Plaintiff,
10 Defendants.
11 --------------------------------------------------
12 Examination before trial of MAKAU W. MUTUA, held
13 before Kelly S. Hairston, Notary Public, at DAMON MOREY,
14 Avant Building, 200 Delaware Avenue, Suite 1200, Buffalo,
15 New York, on Thursday, December 19th, 2013 at 10:00 a.m.,
16 pursuant to notice.
17 APPEARANCES LEEDS BROWN LAW, P. C. ,
BY: BRYAN ARBEIT I ESQ. ,
18 One Old Country Road, Suite 347,
Carle Place, New York 11514,
19 Ph. (716) 873-9550,
Attorney for the Plaintiff.
20
DAMON & MOREY, P.C.,
21 BY: RANDOLPH C. OPPENHEIMER, ESQ.,
Avant Building,
22 200 Delaware Avenue, Suite 1200,
Buffalo, New York 14202-2150,
23 Ph. (716) 856-5500,
Attorney for the Defendant,
24 Charles P. Ewing.
25
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Case 1:12-cv-00236-MAT-HKS Document 63-1 Filed 08/30/14 Page 71of346
ERIC T. SCHNEIDERMAN,
NEW YORK STATE ATTORl~EY GE~"'ERAL,
BY: DAVID J. SLEIGHT, ESQ. 1
Assistant County Attorney,
95 Franklin Street, Suite 1634,
Buffalo, New York 14202
4 Ph . ( 716 ) 8 5 8 - 2 2 4 3
Attorney for the State of New
5 York and the Defendant, Makau Mutua.
6
10
11
12
13
17
18
19
20
21
22
23
24
2 .:Jr::
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Case 17-38, Document 30, 02/17/2017, 1975447, Page130 of 158
12 BY MR. ARBEIT:
13 Q. Do you remember it being mentioned at all?
14 A. I can't recall.
15 Q. Could you tell me what else was discussed at the
16 meeting?
17 A. So the meeting, you know, was chaired by Sue Mangold
18 who then was the Vice Dean for Academics because the
19 Dean, Dean Olsen was away on a trip. And Professor
20 Mangold gave us -- opened the meeting and said that we
21 were there to discuss -- to consider this question
22 before us.
23 Q. Can you specify what the question she said?
24 A. The question was whether the faculty would consider
25 would discuss the question of Mr. Malkan's promotion
487
Case 1:12-cv-00236-MAT-HKS Document 63-1 Filed 08/30/14 Page 78 of 346
5 Q. Including yourself?
19 that'?
20 and --
21 Q. I just want to make sure, about whether or not he
22 should be promoted to Clinical Professor because he
23 wasn't in the clinic?
24 A. Exactly.
25 Q. Okay.
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Case 17-38, Document 30, 02/17/2017, 1975447, Page133 of 158
that the program was a damn shame and that the -=l:-1
should seize the program and recreate it without him.
4 consensus
5 A. Yes.
~I
Q. -- can you tell me who didn't share in that view?
A. I can't remember, but I just recall there was this
22 A. Exactly.
23 Q. Okay.
24 A. Exactly.
25 Q. And did you raise that as an issue even at the
716-8~,3-5544
0000301
Case 17-38, Document 30, 02/17/2017, 1975447, Page135 of 158
Document 487
that was known throughout the law school and which had
been the subject of discussion faculty members both
in the corridors of the law school and in faculty
16 meetings.
17 Q. And did anything was there any discussion between
0000300
Case 17-38, Document 30, 02/17/2017, 1975447, Page136 of 158
3 Q. No?
4 A. No, there really wasn't.
5 Q. By anybody?
6 A. No, there really wasn't. It was a very heated meeting,
7 but I think people, you know, I should say that you
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16 A. You know, so the vote that -- the vote was very close.
17 You know, I think it was
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~~1
A. Yeah.
ll Q~ All right, and do you rernember the outcorrte of that
vote?
21
.~I
? Ll l who answered the question was the former President Bill
Greiner who said yes, it's an affirmative vote. But no
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487
20 A. Ycc.cs, yes.
21 Q. Okay.
241 vote.
2sl Q. Do you remember what, I guess, the person
r
716-853-5544
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Case 17-38, Document 30, 02/17/2017, 1975447, Page141 of 158
1 over the meeting said, she said that -- did she make a
2 ruling on it?
20 Q. Was there any other -- when you say walked away, what
21 did you do after that meeting?
22 A. The meeting broke up.
nnnn:~ 1a
Case 17-38, Document 30, 02/17/2017, 1975447, Page142 of 158
1 meeting?
2 A. No, there was not.
11 A. No.
12 Q. -- appointment?
25 one thing, there was only one vote, the vote I talked
487
l about.
2 Q. Okay.
3 A. Yeah. There was only one vote, which was to extend him
13
14 BY MR. ARBEIT:
151 Q. uid you discuss the meeting and what occurred at the
20 Q. And let me ask you, did you discuss with them the vote
21 or the outcome?
22 A. No, because I think, I think that we felt that we had
4 Q. Okay. Do you know who else voted to deny him the one
5 year extension?
21 September.
22 Q. '06 to '07?
23 A. Yeah, or that August, yeah.
24 Q. So let me ask in '07 to '08, what was your
25 understanding of Professor Malkan's position at the law
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Case 1:12-cv-00236-MAT-HKS Document 63-1 Flied 08/30/14 Page 92 of 346
1 school?
11 '07.
12 Q. Okay.
13 A. Yeah.
16 A. Exactly, correct.
17 Q. What was your understanding of the Legal Research and
18 Writing program during that year?
19 A. My understanding was that the Dean was going to do as
A. Yes.
00003.lo
Case 17-38, Document 30, 02/17/2017, 1975447, Page146 of 158
11 improved?
A. No.
program?
A. Nothing.
IL Yes.
13 2008?
14 A. You know, you must understand that I was not
15 very
19 terms of my consciousness.
21 status?
24 busJ_nes.s,,
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Case 17-38, Document 30, 02/17/2017, 1975447, Page147 of 158
A. Yes.
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Case 17-38, Document 30, 02/17/2017, 1975447, Page148 of 158
2 BY MR. ARBEIT:
3 Q. Document request Number 20.
4 A. 20.
17 of the copies save for those few ones that the Dean
18 keeps in his office.
19 Q. So is it correct that the Dean does keep some copies of
20 the dossiers that are prepared?
21 A. It's an essential personnel record, yeah.
22 Q. Do you know whether or not any dossiers that were
23 prepared for the Promotion and Tenure Committee meeting
24 for Professor Malkan exist?
25 A. They apparently disappeared into thin air .
. . .. D.e!?.AO.LO::CROSSX'.RE.lF.QR1'I.NG.....SERV'.ICBS., . . . .INC. . .
170 Franklin Street, Suite 601, Buffalo, New York 14202
716-853-5544
00003~1
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487
4 I didn't see his dossier and his dossier was not the
5 one that was missing. The dossiers of Sarah
9 clinicians.
15 1 Q. Okay.
archives.
,
170 Franklin Street, Suite 601, Buffalo, New York 14202
716-853-5544.
Case 17-38, Document 30, 02/17/2017, 1975447, Page150 of 158
487
1 Professor status?
141 But that's what they did. So when I became Dean, the
I
170 Franklin Street, Suite 601, Buffalo, New York 4202
716-8 35544
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21 been taken.
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Case 17-38, Document 30, 02/17/2017, 1975447, Page152 of 158
25 Smith?
1 A. Yes ..
481
10 BY MR. ARBEIT:
21 that --
24 identification.)
716 853-5544
0000321
Case 17-38, Document 30, 02/17/2017, 1975447, Page155 of 158
1 BY MR. ARBEIT:
2 Q. Showing you Plaintiff's Exhibit 40.
3 A. Um-hnmt.
1 A. Um-hmm.
9 knowing.
10
11 BY MR. ARBEIT:
12 Q. Well, let me ask, if Professor Malkan was a Clinical
13 Professor, is it not correct that he was deni.ed
14 reappointment?
18 an appointment.
I
191
20 BY MR. ARBEIT:
21 Q. But within the university, you will agree he had the
22 position of Clinical Professor?
23 A. He didn't.
25 n. He did not.
DePAOLO-CROSBY REPORTING,_
.... -- ' ............
487
4 but I can tell you that, you know, just like I said
10 was an imposter.
11
12 BY MR. ARBEIT:
13 Q. Let me just get this correct, did the -- under his pay
14 and title with the University of Buffalo, it has him as
Professor.
Q. You understand he was still getting paid by the
20 university?
716-853-~i544
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0000331