Malkan's Objections to Magistrate's R&R 12-11-2015

27
7/21/2019 Malkan's Objections to Magistrate's R&R 12-11-2015 http://slidepdf.com/reader/full/malkans-objections-to-magistrates-rr-12-11-2015 1/27  UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK ---------------------------------------------------------------x JEFFREY MALKAN, ) ) Plaintiff, ) ) -against- ) ) ) Docket No: 12-CV-0236 (RJA-HKS) MAKAU W. MUTUA, in his individual ) capacity, ) ) Defendant. ) ---------------------------------------------------------------x PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF OBJECTIONS TO MAGISTRATE’S REPORT AND RECOMMENDATIONS Jeffrey Malkan Plaintiff  pro se 12 Valleywood Ct. W Saint James, New York 11780 (631) 862-6668

description

My objections to the Magistrate's decisions on Rule 11 sanctions and summary judgment.

Transcript of Malkan's Objections to Magistrate's R&R 12-11-2015

Page 1: Malkan's Objections to Magistrate's R&R 12-11-2015

7/21/2019 Malkan's Objections to Magistrate's R&R 12-11-2015

http://slidepdf.com/reader/full/malkans-objections-to-magistrates-rr-12-11-2015 1/27

 

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NEW YORK

---------------------------------------------------------------x

JEFFREY MALKAN, ))Plaintiff, )

)-against-  ) 

) ) Docket No: 12-CV-0236 (RJA-HKS)

MAKAU W. MUTUA, in his individual )capacity, )

)Defendant. )

---------------------------------------------------------------x

PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF

OBJECTIONS TO MAGISTRATE’S REPORT AND RECOMMENDATIONS 

Jeffrey Malkan

Plaintiff  pro se 12 Valleywood Ct. WSaint James, New York 11780(631) 862-6668

Page 2: Malkan's Objections to Magistrate's R&R 12-11-2015

7/21/2019 Malkan's Objections to Magistrate's R&R 12-11-2015

http://slidepdf.com/reader/full/malkans-objections-to-magistrates-rr-12-11-2015 2/27

2

PRELIMINARY STATEMENT

This Memorandum is submitted in support of Plaintiff’s objections to the Report and

Recommendations of Magistrate H. Kenneth Schroeder, Dkt. # 96, 97, submitted for this

Court’s approval on December 1, 2015.1  All of the objections contend that the facts found in

the Magistrate’s report and the recommendations based on them were clearly erroneous. 

The Magistrate’s recommendations are (1) that the complaint be dismissed without any

consideration or its merits, and (2) that the Plaintiff’s former-attorney, Rick Ostrove, Esq., be

sanctioned in the amount of $10,000 as a penalty for bringing the Rule 11 motion on my behalf,

and (3) that the Court hold the Plaintiff in contempt for disclosing that former-Dean Mutua

defied this Court’s mandatory ADR plan by failing to appear for the mediation held at the

offices of Hodgson Russ on March 1, 2013, and then refusing to mediate in good faith, or at all.

ARGUMENT

 Rule 11 Sanctions

Rule 11 provides that an attorney, “[b]y presenting to the court a pleading, written

motion, or other paper  — whether by signing, filing, submitting, or later advocating it,” certifies

that “to the best of the person's knowledge, information, and belief, formed after an inquiry

reasonable under the circumstances” that the position he or she is advocating is not “ being

 presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly

increase the cost of litigation.” He or she must also certify that “the denials of factual 

contentions are warranted on the evidence or, if specifically so identified, are reasonably based

on belief or a lack of information.”  Id. at 11(b), (b)(1), and (b)(4), emphasis added.

1 This Memorandum is submitted by Plaintiff, proceeding pro se. In accord with legal writing

convention, the Plaintiff will refer to himself throughout in the third person.  

Page 3: Malkan's Objections to Magistrate's R&R 12-11-2015

7/21/2019 Malkan's Objections to Magistrate's R&R 12-11-2015

http://slidepdf.com/reader/full/malkans-objections-to-magistrates-rr-12-11-2015 3/27

3

(1) The recommendation to impose the Rule 11 sanctions on the Plaintiff’s former -

attorney. The Magistrate’s recommendation for the imposition of sanctions on Professor

Malkan’s former -attorney, Rick Ostrove, Esq., is based on his conclusion that this Rule 11

motion was brought solely to “harass, cause unnecessary delay, or needlessly increase the cost

of litigation.”  The Court should reject this finding and the recommendation that it supports.

The purpose of the Rule 11 motion was to establish, prior to this Court’s decision on

former-Dean Mutua’s motion for summary judgment, that the record presented by AAG Sleight

was tainted by perjury and fraud. Former-Dean Mutua falsely testified that Professor Malkan

did not have a valid faculty appointment because of former-Dean R. Nils Olsen ’s failure to

obtain a recommendation from the Promotion and Tenure (P&T) Committee. This is a material

and, perhaps, dispositive fact in this case, both for the immediate reason that a fraudulently

obtained appointment might negate Professor Malkan’s property interest in state employment,

and for the broader reason that if former-Dean Mutua was lying under oath about this fact, then

his credibility about every other aspect of his defense would have to be discounted to zero.

It makes no sense, moreover, to speculate that this Rule 11 motion was filed by an

impecunious plaintiff attempting to delay and increase the cost of his own case. The exact

opposite is true. Professor Malkan has done everything within his power to keep this case on

track and resolve it with minimal expense. It was essential to that end for him to establish that

the validity of his faculty appointment was not a disputed fact.

2. The recommendation to deny the Plaintiff’s motion for sanctions on the Attorney

General and the former-Dean. The Magistrate’s recommendation to deny Rule 11 sanctions on

AAG David J. Sleight, Esq., and former-Dean Makau W. Mutua is based on a faulty application

of the facts to the law.

Page 4: Malkan's Objections to Magistrate's R&R 12-11-2015

7/21/2019 Malkan's Objections to Magistrate's R&R 12-11-2015

http://slidepdf.com/reader/full/malkans-objections-to-magistrates-rr-12-11-2015 4/27

4

The statute is clear about the standard that all attorneys must meet when they are

advocating pleadings and motions to this Court. They must certify that their affirmative

statements are true and their denials of alleged facts are based on knowledge, information, and

 belief, “ formed after an inquiry reasonable under the circumstances.” 

The issue on this Rule 11 motion is whether AAG Sleight’s denial –  or denial of

knowledge and information –  that his client, former-Dean Mutua, was lying under oath in his

deposition of December 19, 2013, and his Declaration of June 26, 2015, Dkt. # 74, was based a

 belief formed after an inquiry reasonable under the circumstances.

In order to answer this question, the Court must determine what was reasonable under

the circumstances. The circumstances here are (1) that Professor Malkan first raised the issue of

former-Dean Mutua’s perjury on November 11, 2011 in a letter to GOERS attorney Lynn

Vance, Esq. (copied to President Satish K. Tripathi), and (2) that his allegations are backed by

the sworn testimony of eleven members of the tenured faculty and the documentary evidence

 preserved for these many years by Professors Mangold and Avery in their personal office

records. See Malkan Declaration in Support of Objections, December 11, 2015, at Ex. B.

This Court should find that the Magistrate was in error when he held that AAG Sleight’s

denial or “DKI” of the allegation was made after an inquiry reasonable under the

circumstances. Mr. Sleight made no inquiry at all, or at least none that he admits, and instead

refused to ask anyone but his own client whether his client’s testimony was true, even though all

of the witnesses with personal knowledge of the facts are employed by the University and

would have had to answer him promptly and truthfully.

The Attorney General, moreover, has refused over the past three and a half years to

accede to Professor Malkan’s request that he disclose the names of the witnesses whom he

Page 5: Malkan's Objections to Magistrate's R&R 12-11-2015

7/21/2019 Malkan's Objections to Magistrate's R&R 12-11-2015

http://slidepdf.com/reader/full/malkans-objections-to-magistrates-rr-12-11-2015 5/27

5

intends to call to corroborate former-Dean Mutua’s testimony about the circumstances of the

 promotion and tenure vote.

Professor Malkan had a right to this information as well as a need for it, both to discover

former-Dean Mutua’s defense in order and to oppose the summary judgment motion.  In both

contexts, the answer to the question of whether he had a legitimate faculty appointment –  

granted after a recommendation from the P&T Committee –  was a material and perhaps a

dispositive fact. The only conclusion that the Court can draw from his refusal is that he has no

witnesses and has no evidence. He knows that admitting this would confirm that former-Dean

Mutua lied under oath and obstructed justice.

The motion for summary judgment

The standard for summary judgment requires the movant to show that “that there

is no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” It further requires that “[a] party asserting that a fact cannot be or is

genuinely disputed must support the assertion by showing … that an adverse party

cannot produce admissible evidence to support the fact.” Finally, in applying this

standard, “[i]f a nonmovant shows by affidavit or declaration that, for specified reasons,

it cannot present facts essential to justify its opposition, the court may:

(1) defer considering the motion or deny it;

(2) allow time to obtain affidavits or declarations or to take discovery; or

(3) issue any other appropriate order.” 

The application of Rule 56 (a)-(c) to the present case justifies this Court’s rejection of the

Magistrate’s recommendation and strongly supports Professor Malkan’s request that the Court

grant summary judgment to him, sua sponte, on the issue of liability.

Page 6: Malkan's Objections to Magistrate's R&R 12-11-2015

7/21/2019 Malkan's Objections to Magistrate's R&R 12-11-2015

http://slidepdf.com/reader/full/malkans-objections-to-magistrates-rr-12-11-2015 6/27

6

Professor Malkan has established by compelling and likely conclusive evidence, at this

 point, that the P&T Committee, on April 28, 2008, recommended that Dean R. Nils Olsen, Jr.,

approve his application for 405(c)-protected status, also known as clinical tenure.

That material  fact –  which the Attorney General refuses to concede –  leaves no

undisputed facts in the record and warrants a grant of summary judgment to Professor Malkan,

 pursuant to Rule 56(f), for all of the reasons already stated to this Court in his Memorandum of

Law, August 30, 2015, Doc. # 61.

This conclusion is further supported by the inference that inevitably follows from this

circumstance –  that former-Dean Mutua lied under oath, which reduces the probative and

 persuasive value of the rest of his testimony and argumentation to less than zero.

If there is any basis for disputing the legitimacy of Professor Malkan’s promotion, the

evidence lies in the testimony of the witnesses who can corroborate former-Dean Mutua. The

names of those witnesses, however, are in the Attorney General’s sole possession. It was

therefore necessary for the Magistrate, under Rule 56(d), to issue an order requiring the

Attorney General to disclose those names before granting summary judgment to former-Dean

Mutua.

Attorney General at this late date should also have been required to accompany those

names with affidavits or declarations attesting under oath to the truth of their recollections.

Only then would the Court be dealing with a disputed issue of material fact. Without those

names Professor Malkan has been deprived of facts essential to justify his opposition to the

Magistrate’s recommended grant of summary judgment to former-Dean Mutua.

Page 7: Malkan's Objections to Magistrate's R&R 12-11-2015

7/21/2019 Malkan's Objections to Magistrate's R&R 12-11-2015

http://slidepdf.com/reader/full/malkans-objections-to-magistrates-rr-12-11-2015 7/27

7

OBJECTIONS

Objections to the denial of Rule 11 sanctions against AAG Sleight and former-Dean Mutua

Objection #1: “As there is no evidence before the Court to suggest anything other thandiffering recollections of a meeting of tenured faculty on April 28, 2006, there is nobasis for the accusation of perjury against Dean Mutua.” Slip Op., at 25. “[T]here is

no evidence before the Court to suggest that Dean Mutua testified falsely as to his

recollection of events on April 28, 2006….” Slip Op., at 28. “While the fact that Mr. Mutua’s recollection differs from that of every other individual in the room may very

well suggest that his recollection is faulty… plaintiff has proffered no evidence that his

testimony was intentionally false. In other words, plaintiff had no legal or factual basis

 for the accusations of perjury set forth in his Rule 11 motion against Dean Mutua and AAG Sleight.” Slip. Op. at 34. 

The evidence that the Magistrate found was missing is, in fact, before this Court is in the

record in the form of the Motion to Sever Trials, submitted by Professor Charles P. Ewing, Dkt.

#59, and the accompanying declarations and documentary evidence provided by eleven

members of the tenured faculty of SUNY Buffalo Law School. The contemporaneous

handwritten tally sheets of the vote count are attached, for the Court’s convenience, to the

accompanying Declaration of Jeffrey Malkan, December 11, 2015, as Exhibit B.

Objection #2: “[T]here is no evidence to suggest that AAG Sleight possesses actual

knowledge that Professor Mutua is lying about his recollection of that meeting. AAG

Sleight should not be maligned for accurately depicting witnesses’ differingrecollections of the meeting in his Statement of Undisputed Facts….  In any event, as

there is no disagreement over the fact that plaintiff was promoted to the position of

Clinical Professor, the events of April 28, 2006 are immaterial.” Slip Op., at 25-26.

This is untrue as a matter of both fact and law. The knowledge standard must be applied

only after  the attorney has made the requisite inquiry into the facts, as reasonable under the

circumstances, that is mandated by Rule 11. The facts before this Court demonstrate that AAG

Sleight failed to make the requisite inquiry, but instead has been trying to preserve a pretense of

 plausible deniability. That pretense is contrary to the express language of the statute.

Page 8: Malkan's Objections to Magistrate's R&R 12-11-2015

7/21/2019 Malkan's Objections to Magistrate's R&R 12-11-2015

http://slidepdf.com/reader/full/malkans-objections-to-magistrates-rr-12-11-2015 8/27

8

In addition, the standard that must be applied in this situation is the standard of objective

reasonableness.

It must be noted that there is considerable confusion in the Magistrate’s reading of the

Attorney General’s position on the issue of the knowledge standard. The Attorney General

advocated for a subjective standard  in the application of Rule 11. AAG Sleight wrote:

Doe does not support the proposition that a lawyer’s “actual

knowledge of a witness’s false testimony is judged by an objectivestandard.  In fact to the contrary, it supports the proposition that is

is judged by a subjective standard, that is, “actual knowledge.” The Second Circuit in Doe approved the definition used in Virginiafor when “actual knowledge” is clearly established. Id. at 62. “Information is clearly established when the client acknowledges

to the attorney that he has perpetrated a fraud on the court. Id.(emphasis in original). That is not an objective standard .

Slip Op. at 16 (emphasis supplied).

The Magistrate, however, found that the objective standard  must be applied to an

attorney’s knowledge on a Rule 11 motion. In effect, he found that AAG Sleight’s position was

wrong . He cited the following authority in support of this conclusion.

“A pleading, motion or paper violates Rule 11 if it is frivolous,legally unreasonable, or factually without foundation , even though

not signed in subjective bad faith.”  Wechsler v. Hunt Health

Systems, Ltd. 216 F. Supp.2d 347, 356 (S.D.N.Y. 2002). Theappropriate standard is “an ob jective standard of reasonable

inquiry.”  Business Guides, 498 U.S. at 554; see Fed. R. Civ. Pro.11 advisory committee. “Rule 11 is violated when it is clear under

existing precedents that a pleading has no chance of success andthere is no reasonable argument to extend, modify, or reverse the

law as it stands.” Corroon v. Reeve, 258 F.3d 86, 92 (2d Cir.2001); see Oliveri v. Thompson, 803 F.2d 1265, 1275 (2d Cir.1986) (sanctions are appropriate “when it appears that a competentattorney could not form the requisite reasonable belief  as to thevalidity of what is asserted in the paper.”). cert. denied sub. nom

Suffolk County v. Grascek , 480 U.S. 918 (1987).

Page 9: Malkan's Objections to Magistrate's R&R 12-11-2015

7/21/2019 Malkan's Objections to Magistrate's R&R 12-11-2015

http://slidepdf.com/reader/full/malkans-objections-to-magistrates-rr-12-11-2015 9/27

9

 Id., (emphasis supplied).

Therefore, the Magistrate should have found that AAG Sleight’s reliance on the “don’t

ask, don’t tell” defense is misplaced. Even if Mr. Sleight had advised his client (as criminal

defense attorneys sometimes do) that he should not confess anything incriminating, the attorney

in a civil action is not protected by his willful blindness to the obvious facts. What matters is

what a reasonable attorney under the circumstances would be presumed to know about his

client’s perjury. A reasonable attorney in this case, in light of the irrefutable documentary

evidence annexed as Exhibit B to the Malkan Declaration (concurrently submitted on December

11, 2015), could not avoid knowing that the only ethical course of conduct , under the

circumstances, would be to ask the remaining professors, who had not yet spoken, what had

happened at the proceedings on Professor Malkan’s tenure application. 

The knowledge standard, as it applies to the rules and principles of professional ethics,

was explained in further detail in the Plaintiff’s Memorandum of Law in Opposition to

Defendant’s Cross-Motion for Rule 11 Sanctions, August 24, 2015, Dkt. # 88 –  

The knowledge standard has two sources –  Rule 11 of the FederalRules of Civil Procedure, and the New York Rules of ProfessionalConduct. These two standards are consistent and must, in this case, beapplied together.

The Attorney General has taken the position that he does not have“actual knowledge” of former -Dean Mutua’s perjury because his client

hasn’t confessed to him and has been consistent in his mendacity over the

 past five years. This motion requires him now to honor his duty of candorto this Court and drop that pretense. Rule 11 is based on the premise that

an attorney must verify the facts in his signed submissions to the Court ina manner that is “reasonable under the circumstances.” The circumstances

here include allegations that are so well-documented that they have beenreported on the front page of the Buffalo News and have resulted in MakauW. Mutua’s hasty removal from the Dean’s Office three weeks into the

fall semester of 2014.

Page 10: Malkan's Objections to Magistrate's R&R 12-11-2015

7/21/2019 Malkan's Objections to Magistrate's R&R 12-11-2015

http://slidepdf.com/reader/full/malkans-objections-to-magistrates-rr-12-11-2015 10/27

10

(b) Representations to the Court. By presenting to the courta pleading, written motion, or other paper  — whether bysigning, filing, submitting, or later advocating it — anattorney or unrepresented party certifies that to the best ofthe person's knowledge, information, and belief, formed

after an inquiry reasonable under the circumstances:(1) it is not being presented for any improper purpose,

such as to harass, cause unnecessary delay, or needlesslyincrease the cost of litigation;

(2) the claims, defenses, and other legal contentions arewarranted by existing law or by a nonfrivolous argumentfor extending, modifying, or reversing existing law or forestablishing new law;

(3) the factual contentions have evidentiary support or, ifspecifically so identified, will likely have evidentiary

support after a reasonable opportunity for furtherinvestigation or discovery; and

(4) the denials of factual contentions are warranted onthe evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

Fed. R. Civ. Pro. Rule 11(b) (emphasis added).

Only after  the Attorney General has followed the mandate of Rule11 may he conclude that he does not have actual knowledge and that he isnot in jeopardy of deceiving the Court with false evidence and perjured

testimony.

Mr. Sleight’s approach has been to skip the reasonable inquiry

stage and jump straight to actual knowledge. At this point, a reasonableattorney might agree with Mr. Sleight that there is nothing to investigate.The same attorney, however, would conclude that no investigation iswarranted because the evidence is already conclusive. It is impossible forMr. Sleight to deny actual knowledge of the fact that former-Dean Mutualied under oath and thereby committed a crime against the judicial process.

The Rules of Professional Conduct provide the followingdefinitions of “knowledge” in Rule 1.0, “Terminology”: 

(k) “Knowingly,” “known,” “know,” or “knows”

denotes actual knowledge of the fact in question. A person’s knowledge may be inferred from circumstances. 

(q) “Reasonable” or “reasonably,” when used in relationto conduct by a lawyer denotes the conduct of a reasonably

Page 11: Malkan's Objections to Magistrate's R&R 12-11-2015

7/21/2019 Malkan's Objections to Magistrate's R&R 12-11-2015

http://slidepdf.com/reader/full/malkans-objections-to-magistrates-rr-12-11-2015 11/27

11

 prudent and competent lawyer. When used in the context ofconflict of interest determinations, “reasonable lawyer”

denotes a lawyer acting from the perspective of areasonably prudent and competent lawyer who is personally disinterested in commencing or continuing the

representation.

(r) “Reasonable belief” or “reasonably believes,” whenused in reference to a lawyer, denotes that the lawyer believes the matter in question and that the circumstancesare such that the belief is reasonable.

(s) “Reasonably should know,” when used in reference toa lawyer, denotes that a lawyer of reasonable prudence andcompetence would ascertain the matter in question.

The Attorney General knows that former-Dean Mutua lied underoath. It is hardly worth belaboring the point. The pretense that he hassomehow avoided knowing what everyone else knows is unworthy of hisOffice. It is impossible for a lawyer of reasonable prudence andcompetence to have failed to ascertain the truth of the matter in question.“A person’s knowledge may be inferred from circumstances.” R.P.C.

1(k). The circumstances to which this proviso refers are the samecircumstances that, under Rule 11(b)(4), mandate a reasona ble “inquiry”into the evidence- backed factual allegations of his client’s perjury –  theinquiry that Mr. Sleight claims that he has no duty to make, although it isdifficult to believe that he has not already done so and simply refuses, inan excess of misguided zeal, to admit it.

Rule 1.13 of the Rules of Professional Conduct is clear about therange of conduct that is considered reasonable for a lawyer who isassessing a conflict of interest between an organization and a rogueemployee. “Under Rule 1.0(k), a lawyer’s knowledge can be inferredfrom circumstances, and a lawyer cannot ignore the obvious.” See id., Comment [3] (emphasis added). The Attorney General has been trying toignore the obvious, but his denials of “actual knowledge” do not lie withinthe range of “reasonable belief.”

Objection #3: “As it is clear that Rule 11 imposes no obligation upon his attorney to

amend his pleading, plaintiff has no grounds to move to sanction AAG Sleight regardingthe answer. Moreover, AAG Sleight articulated sufficient grounds for his denial of

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

allegation contained in paragraph 11 at the time the Answer was filed.” Slip Op., at 31. 

Page 12: Malkan's Objections to Magistrate's R&R 12-11-2015

7/21/2019 Malkan's Objections to Magistrate's R&R 12-11-2015

http://slidepdf.com/reader/full/malkans-objections-to-magistrates-rr-12-11-2015 12/27

12

The issue before this Court is the fundamental issue of whether AAG Sleight had an

obligation, under Rule 11 and the New York Rules of Professional Conduct, to inform the Court

that he had discovered that his client was attempting to perpetrate on a fraud on the Court, rather

than, more narrowly, whether he had an obligation to amend the Answer.

The two issues are facets of the same duty –  the ethical duty of candor to the court –  

 because ethical duty of candor entails the procedural duty to plead truthfully. AAG Sleight

knew that his client had already testified at PERB. He knew the substance of that testimony and

that his client was bound by it. That was why AAG Sleight agreed in his discussions with Mr.

Ostrove’s associate to amend the Answer.

AAG Sleight, moreover, admits that “Deny” accurately described his position at the time

the Answer was filed . That was why he was willing to amend the Answer in the first place. He

knew the substance of his client’s PERB testimony and acknowledged that the Answer he was

filing on his behalf could not contradict that testimony.

He has, moreover, stated that, if he were to amend the Answer, he would deny the

allegations. Dkt. #75, p. 10. See Slip Op. at 30. That has been his position throughout this

matter. The Magistrate is therefore wrong in his report that “AAG Sleight articulated sufficient

grounds for his denial of knowledge and information sufficient to form a belief as to the truth or

falsity of the allegation contained in paragraph 11 at the time the Answer was filed.” 

Objection #4: The Magistrate failed to address the Attorney General’s violation of

 professional responsibility when he failed to recognize or remediate the conflict ofinterest between his client, the State University of New York (which is an agency of New

York State), and the defendant in this case, Makau W. Mutua.

The Attorney General should have been sanctioned under this Court’s inherent powers

 because he violated his statutory obligations under the New York Public Officers’ Law §§ 17-

Page 13: Malkan's Objections to Magistrate's R&R 12-11-2015

7/21/2019 Malkan's Objections to Magistrate's R&R 12-11-2015

http://slidepdf.com/reader/full/malkans-objections-to-magistrates-rr-12-11-2015 13/27

13

19, and his ethical obligations under the New York Rules of Professional Conduct, R. 1.13, in

these three respects.

1. The Public Officers Law does not allow the Attorney General to defend a lawsuit

against a rogue employee. The New York Court of Appeals held in Lancaster v. Village of

 Freeport, 22, N.Y. 3d 30, 38-41, 978 N.Y.S.2d 101 (2013) that the Attorney General may be

obliged to withdraw if the state official whom he is defending obstructs the settlement process,

or fails to cooperate in his own defense. In the present case, former-Dean Mutua refused to

mediate in good faith and refused to appear at the mandatory mediation. That was a sufficient

 basis for the Attorney General to withdraw. In addition, former-Dean Mutua evidently lied to

the Attorney General by falsely describing the facts and circumstances surrounding the P&T

Committee meeting of April 28, 2006. This perjury put the Attorney General in jeopardy of

violating federal criminal law as well as the New York Rules of Professional Conduct.

2. In addition, the Public Officers Law does not allow the Attorney General to act as a

criminal defense lawyer for a state official. If a state official is accused of a crime, he or she

must retain private counsel, subject to the provision that he or she is entitled to reimbursement

for the costs of defense if and when the state official is exonerated. That is the effect of Public

Officers Law § 19, which provides for compensation to private counsel after an acquittal. In the

 present case, the Attorney General knows, or reasonably should know, that he has undertaken

the role of a criminal defense lawyer by defending former-Dean Mutua’s perjury. He knows,

therefore, that the only proper course of action under the statute was to withdraw and require his

“client” to obtain and pay for private counsel. 

Page 14: Malkan's Objections to Magistrate's R&R 12-11-2015

7/21/2019 Malkan's Objections to Magistrate's R&R 12-11-2015

http://slidepdf.com/reader/full/malkans-objections-to-magistrates-rr-12-11-2015 14/27

14

3. When an attorney for an organization, including the State, is assigned to represent an

employee or agent of the organization, the attorneys’ allegiance still belongs to the organization.

See New York Rules of Professional Conduct (“RPC”) R. 1.13. When it becomes clear, as it

has in the case of former-Dean Mutua, that the employee has “gone rogue” and is behaving in a

manner that is detrimental to the interests of the organization, as well as its principles and

values, the attorney must withdraw and inform the court of his or her reasons for doing so.

The Court is referred to the arguments presented in Plaintiff’s Memorandum of Law in

Opposition to Cross-Motion for Rule 11 Sanctions, August 24, 2015, Dkt. # 88.

Objections to the grant of Rule 11 sanctions against Mr. Ostrove and Professor M alkan

Objection # 5: “[T]he Court can fathom no reason to fixate on Professor Mutua’s

recollection of this meeting other than to harass Professor Mutua, needlessly increasethe costs of this litigation and unduly burden the Court. Neither plaintiff nor his

attorney has ever articulated how plaintiff’s claim would be strengthened if Professor

 Mutua’s recollection aligned with the recollection of the other faculty members present

at the [P&T Committee] meeting on April 28, 2006 nor have they articulated how Professor Mutua’s differing recollection compromises plaintiff’s claim.” Slip Op. at 34.

The reason why the Rule 11 motion was necessary at this point in the litigation was that

the Attorney General was moving for summary judgment based on a record tainted by perjury

and fraud. Professor Malkan, in his Declaration of July 22, 2015, Dkt. # 82, explained exactly

what effect the perjury would have on the disposition of this summary judgment motion.

65. There are four case-specific reasons why this Rule 11 motion had to befiled before this Court decided the summary judgment motion that is also

 pending before it.

66. First, a summary judgment motion is a dispositive motion that must bedecided on a record of undisputed facts. If Makau W. Mutua's perjury is leftopen as a disputed question of fact, summary judgment could be granted bythis Court without the evidence of his perjury ever being addressed. Thatwould be unlawful and unjust, and yet another deliberately induced

Page 15: Malkan's Objections to Magistrate's R&R 12-11-2015

7/21/2019 Malkan's Objections to Magistrate's R&R 12-11-2015

http://slidepdf.com/reader/full/malkans-objections-to-magistrates-rr-12-11-2015 15/27

15

miscarriage of justice for me. Mr. Sleight is trying to slip a dispositive pretrial motion between the cracks in a case that he knows can never go totrial. If it did go to trial, his client would be called to testify and would haveto perjure himself yet again, unless he invoked his Fifth Amendment right toavoid self-incrimination, which would end the civil aspect of this matter

then and there.

67. Second, former-Dean Mutua's perjury pertains to a material fact. Mr.Sleight's client has testified and still maintains the position that the P&TCommittee's failure to make an up or down recommendation on my promotion resulted in an "ultra vires" recommendation by then-Dean R. NilsOlsen, Jr., which, in turn, nullified my faculty appointment. His client's position, in other words, is that the perjured fact is not just a material fact, but the dispositive fact. Mr. Sleight cannot disown his client's long -held and still -held position.

68. Mr. Sleight tries to sidestep the perjury by claiming that he has not

expressly based any of his legal arguments on it. He is well aware,however, that regardless of whatever arguments he does or does not make,his client's lie is fair game for whatever the Court deems appropriate to dowith it. 

69. Third, the perjury goes to an issue that pervades every aspect of thiscase, former-Dean Mutua's credibility. He has leveraged the credibility ofhis office into a miscarriage of justice in state court, and is trying to do thesame here. He has maintained a devastating lie about a faculty appointmentover a period of more than five years. Nothing he says about anything  canever be believed. Every fact and every legal pretext he has offered in this

case is irrevocably tainted by his crime against the judicial process. Theonly barrier that stands between former-Dean Mutua and a federal prosecutor is Mr. Sleight's protection of his perjury.

70. Finally, fourth, Mr. Sleight's alternative grounds for summary judgmentmust fall along with his client's credibility. No court could ever find that thevictim of perjury received adequate post-deprivation due process through alegal process tainted by perjury. No court could ever find that a stateofficial is entitled to qualified immunity based an objectively reasonable belief in the legality of his actions in a matter where the state official has perjured himself. Even to explain this reasoning, much less attempt to

 justify it, is to give voice to propositions that are simply absurd. 

Objection #6 : “Plaintiff’s disclosure of his mediation statement on the internet [sic]

and discussion of the mediation proceedings with SUNY Buffalo Spectrum is

contemptuous.” Slip. Op. at 37.

Page 16: Malkan's Objections to Magistrate's R&R 12-11-2015

7/21/2019 Malkan's Objections to Magistrate's R&R 12-11-2015

http://slidepdf.com/reader/full/malkans-objections-to-magistrates-rr-12-11-2015 16/27

16

Both parties asked this Court’s permission to opt out of the mandatory mediation, but the

Court denied permission.

TEXT ORDER: the joint motion 22 to opt out of ADR is denied. The excuse of

plaintiff for filing the motion late does not excuse the failure timely to file the joint motion by defendants. Moreover, the Court has carefully reviewed the

grounds offered in support of the motion and finds no good cause to opt out of

ADR. The individual request of plaintiff that the Court order non-parties to

attend the mediation is also denied. Because the Court did not decide the joint

opt out motion sooner, an extension of time to confer and select a Mediator,

confirm availability of the Mediator, ensure the Mediator does not have a

conflict with any parties, identify a date and time for the initial mediation

session, and to file the stipulation confirming the selection of the Mediator, is

granted nunc pro tunc to January 18, 2013. The action remains committed to

Magistrate Judge Schroeder pursuant to the Courts October 5, 2012 Text Order

22. Issued by Hon. Richard J. Arcara on December 12, 2012. (WJG) (Entered:

12/12/2012)

See Text Order, Dkt. # 28.

Professor Malkan, therefore, proceeded in good faith to the mediation. Former-Dean

Mutua, in contrast, decided to defy this Court’s order . Professor Malkan was left to mediate

with an empty chair.

Professor Malkan did not disclose anything about what former-Dean Mutua said at the

mediation. He could not have done so because former-Dean Mutua obviously did not say

anything. The only information about the mediation publicly revealed by Professor Malkan was

his own legal position, which he has before and since disclosed in many different forms, and the

unprotected fact that former-Dean Mutua did not show up.2 

Professor Malkan was harmed by former-Dean Mutua’s refusal to comply with this

Court’s mandatory ADR rules because he had no notice that mediation was not going to occur

and was burdened with the expense of traveling, with counsel, 450 miles to Buffalo. This was

2 Professor (former Vice-Dean) Charles P. Ewing did  show up. He and Professor Malkan had asuccessful mediation that resulted in a settlement of their differences. Professor Malkan hasdisclosed nothing about this mediation.

Page 17: Malkan's Objections to Magistrate's R&R 12-11-2015

7/21/2019 Malkan's Objections to Magistrate's R&R 12-11-2015

http://slidepdf.com/reader/full/malkans-objections-to-magistrates-rr-12-11-2015 17/27

17

money subtracted from Professor Malkan’s total budget for litigating this case while still

maintaining his basic life necessities. Professor Malkan was further harmed because he was

denied the benefit of a mediation that might have ended this case two and a half years ago.

The Magistrate concurred with AAG Sleight’s concession that “a financial sanction

would be inappropriate in light of plaintiff’s current circumstances.”  He stated that “it is

important to the parties and to the integrity of the judicial system that plaintiff’s allegations be

resolved on the merits” and therefore “declined to recommend dismissal of this action even

though Mr. Malkan’s conduct during the course of this litigation would easily warrant even such

a severe sanction.”  Slip Op. at 37 (emphasis added).

The “plaintiff’s current circumstances” are that he was, in effect, barred from his

 profession and therefore has been living with both hardship and disgrace for the past seven and

a half years, which is how long this protracted legal struggle has been going on. This dire

circumstance has come to pass entirely because of former-Dean Mutua’s criminal misconduct

and the Attorney General’s complicity in his subversion of the judicial process.

“[T]he integrity of the judicial system,” to which the Magistrate refers in his

recommendation, has been undermined by perjury and destruction of subpoenaed evidence3 by

the Dean of SUNY Buffalo Law School. The Magistrate, nevertheless, recommended no

 penalty for him and his counsel, but instead bestowed this Court’s protection on the perjurer.

Finally, the Magistrate stated that he has “declined to recommend dismissal of this

action” as a penalty for Professor Malkan’s indiscretion (Dkt. # 97). This, however, is a paltry

3 Dean Mutua testified at his December 19, 2013 deposition that he could not produce Professor

Malkan’s P&T file, including his dossier, because someone had vandalized the Dean’s Office personnel records and it had “disappeared into thin air.” See Mutua Dep., at 72. 

Page 18: Malkan's Objections to Magistrate's R&R 12-11-2015

7/21/2019 Malkan's Objections to Magistrate's R&R 12-11-2015

http://slidepdf.com/reader/full/malkans-objections-to-magistrates-rr-12-11-2015 18/27

18

consolation in light of his concurrent opinion (Dkt. #96) in which he recommended that former-

Dean Mutua’s motion for summary judgment be granted.

While the Magistrate said that he was not dismissing the action as a penalty, in his

concurrent opinion did exactly that. The Magistrate did what he had just said he would not do

and what he recognized would be detrimental to the integrity of the judicial system.

Objection to the grant of summary judgment to former-Dean Mutua

Objection #7: “[W]hatever  the intent of the agreement between Dean Olsen and Mr.

 Malkan, the Court cannot permit the parties to circumvent the rules and regulationsapplicable to term appointments in an attempt to afford plaintiff the protected interest of

a continuing appointment under the label of a term appointment. In other words, plaintiff can have no protected property interest in continued employment beyond thatwhich is provided for term appointments by New York’s Code, Rules, and Regulations….

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

recommended that defendant’s motion for summary judgment be granted.”  Slip. Op. at10.

The Magistrate erred by recommending the dismissal of Professor Malkan’s due

 process claim for failing to establish the threshold element of a protected property interest.

To be specific, he incorrectly reported that all term contracts are revocable at the

Dean’s discretion every time they come up for renewal –  in this case, every three years –  even

though the Law School could not qualify for ABA accreditation if it disclosed that it does not

 provide any job security to clinical professors or junior (i.e., assistant or associate) professors,

who are all initially hired on consecutive term contracts.

1. Dean Olsen did not exceed the scope of th is authori ty by appointing

Professor M alkan to the state ti tle and academic rank of Cl in ical Professor. 

Professor Malkan does not contend that former-Dean Olsen appointed him to the title

and rank of Clinical Professor. Dean Olsen received a favorable recommendation from the

Page 19: Malkan's Objections to Magistrate's R&R 12-11-2015

7/21/2019 Malkan's Objections to Magistrate's R&R 12-11-2015

http://slidepdf.com/reader/full/malkans-objections-to-magistrates-rr-12-11-2015 19/27

19

P&T Committee, endorsed that recommendation, and sent it to the Provost, who in turn

endorsed it and sent it to the President. The President, accepting these recommendations,

issued a Letter of Appointment to Professor Malkan. The President’s signature was the act of

appointment. Former-Dean Mutua and Professor Malkan are in agreement that this has always

 been the University’s practice and procedure. 

2. The Contract was in accord with the Law School’s institutional guidelines

and procedures  , including the SUNY Trustees’ Policies. 

(a) The SUNY Trustees’ Policies.  The Magistrate found that the Policies of the SUNY

Board of Trustees4 unconditionally forbid presumptively-renewable term contracts for Clinical

Professors. See SUNY Trustees’ Policies Art. X, §3(b).

Professor Malkan does not dispute that SUNY term contracts automatically expire

unless they are renewed (id., Art. XI, Title D, §1), that they are subject to a twelve-month

notice requirement to keep them from “rolling over” for an additional one-year term, (id., Art.

XI, Title D, §5), and that these notices may be served prior to whatever in-house “consultation”

is deemed by the institution to be appropriate (id., Art. XI, Title A, §1).5 

The rest of the Magistrate’s findings, however, are wrong. The SUNY Trustees’

Policies do not  forbid presumptively-renewable term contracts. This is the key provision:

§4.  Renewal of term. Except as provided in this Article, termappointments may be renewed by the chief administrative officerof the college for successive periods of not more than three yearseach; such renewals shall be reported to the Chancellor. No termappointment, of itself, shall be deemed to create any manner of

4  Policies of the SUNY Board of Trustees, at http://www.suny.edu/media/suny/content-

assets/documents/boardoftrustees/SUNY-BOT-Policies-June2014.pdf  (codified at 8 N.Y.Comp. Codes R. & Regs., tit. 8, § 325, et seq.) (last visited, December 9, 2015).

5 The usual practice, however, is for the Dean to provide the twelve-month notice after  any in-

house reviews have been completed. 

Page 20: Malkan's Objections to Magistrate's R&R 12-11-2015

7/21/2019 Malkan's Objections to Magistrate's R&R 12-11-2015

http://slidepdf.com/reader/full/malkans-objections-to-magistrates-rr-12-11-2015 20/27

20

legal right, interest or expectancy in any other appointment orrenewal.

 Id., Art. XI, Title D, §4 (emphasis added).

The Magistrate interprets this language to mean that presumptively-renewable term

contracts are categorically forbidden. He neglects, however, to explain the qualification “of

itself.” An accurate paraphrase would have to provide a reference for that qualification. “No

term contract, of itself , creates a legal right, interest or expectancy of renewal, but conditions

may be added to provide that legal right, interest or expectancy of renewal .”

The “renewal of term” provision, in other words, rules out a breach of contract claim

 based on an implied  expectation of renewal, but not one based on an express expectation of

renewal.

Dean Olsen provided an express expectation of renewal in Professor Malkan’s

Contract. Subsequent to the P&T Committee’s recommendation that Professor Malkan be

granted an ABA Standard 405(c)-protected contract, Dean Olsen extended an expectation that

the Contract would be renewed by providing a presumption of renewal, a good cause standard

of review, and due process rights before a committee comprised of the entire tenured faculty at

his rank or higher (the Committee on Clinical Promotions and Renewals or “CCPR”) as

specified in the Faculty Bylaws. Bylaws and Standing Orders of the Faculty of SUNY Buffalo

Law School, III.E.4, available on-line at

http://www.law.buffalo.edu/infoStaff/facultyBylaws.html. 

These provisions were intended to create “tenure-like” protection through a burden-

shifting process. They were perfectly legal and, indeed, necessary. A legal presumption –  in

this case a rebuttable presumption –  mandates that, after a prima case for continued

Page 21: Malkan's Objections to Magistrate's R&R 12-11-2015

7/21/2019 Malkan's Objections to Magistrate's R&R 12-11-2015

http://slidepdf.com/reader/full/malkans-objections-to-magistrates-rr-12-11-2015 21/27

21

employment is presented, a decision will be made in favor of the presumption-holder unless

evidence is proffered to rebut the presumption.

This means that –  upon a showing that the professor has continued to perform his or her

duties as expected –  the contract will be renewed unless evidence is provided, and accepted as

 persuasive, that good cause has been stated for not renewing it. The burden of persuasion will

then shift, requiring the professor to present reasons, with the assistance of an advocate, for

why his or her failure of performance or personal misconduct should be overlooked and a

renewal term granted. 

(b) The ABA Standards.  This presumption of renewal is legal for the additional reason

that the Policies of the SUNY Board of Trustees confer discretion upon the Dean to approve

 policies and procedures in matters of appointment, evaluation, and promotion as required by

“the operating requirements of the college.” See SUNY Trustees’ Policies, Art. XI, Title A,

§1; id., Art. XII, Title A, §2; id., Art. XX, Title B, §1. The “operating requirements of the

college,” in this context, are the ABA accreditation standards with which the Law School must

comply in order to certify its students for the bar examinations of New York and other states.

The applicable provision of the ABA Standards for Accreditation Law Schools is

Standard 405(c) –  the clinical faculty standard –  which provides as follows: “A law school

shall afford to full-time clinical faculty members a form of security of position reasonably

 similar to tenure, and non-compensatory perquisites reasonably similar to those provided other

full-time faculty members. A law school may require these faculty members to meet standards

and obligations reasonably similar to those required of other full-time faculty members.” See 

Page 22: Malkan's Objections to Magistrate's R&R 12-11-2015

7/21/2019 Malkan's Objections to Magistrate's R&R 12-11-2015

http://slidepdf.com/reader/full/malkans-objections-to-magistrates-rr-12-11-2015 22/27

22

http://www.americanbar.org/content/dam/aba/publications/misc/legal_education/Standards/201

3_2014_standards_chapter4.authcheckdam.pdf   (last visited December 9, 2015). The phrase

emphasized in italics, “a form of security of position reasonably similar to tenure,” is the

source of the “tenure-like” protection that all parties agree the Contract provides. 

(c) The Faculty Bylaws and Clinical Faculty Appointments Policy.  It is mandatory for

“the faculty of each college” to prepare and adopt bylaws, and for these bylaws to be

“consistent with and subject to the Policies of the Board of Trustees of the State University of

 New York, the laws of the State of New York, and the provisions of agreements between the

State of New York, and the certified employee organization established pursuant to Article 14

of the Civil Service Law.” SUNY Trustees’ Policies, Art. X, § 5 (a) and (b). The

administrative officer at SUNY Buffalo who is responsible for monitoring the consistency of

the Faculty Bylaws with the SUNY Trustees’ Policies is none other than the state official to

whom Dean Mutua reports, the former-Provost/now President Satish K. Tripathi. See id., Art.

IX, Title A, §3.

The Faculty Bylaws and the Clinical Faculty Appointments Policy –  both of which

were in place in their present form in spring 2009, the last semester of Professor Malkan’s

employment –  provide that Clinical Professors in the Law School must be granted

 presumptively-renewable term contracts and in-house due process protections sufficient to

 protect their academic freedom in accord with ABA Standard 405(c). The Faculty Bylaws

require that before a Clinical Professor may be dismissed, the faculty shall deliberate and make

a recommendation to the Dean in the Committee on Clinical Promotion and Renewal

(“CCPR”).  Id., III.E.4, (emphasis added).

Page 23: Malkan's Objections to Magistrate's R&R 12-11-2015

7/21/2019 Malkan's Objections to Magistrate's R&R 12-11-2015

http://slidepdf.com/reader/full/malkans-objections-to-magistrates-rr-12-11-2015 23/27

23

The Clinical Faculty Appointments Policy specifies the process that implements the

structure of faculty self-governance adopted in the Faculty Bylaws. See id., I.(e)-(g). It

includes –  

(i) a presumption of renewal –  “it is expected that, absent unusual circumstances, the

three-year term contracts for Clinical Professors will be renewed,” 

(ii) a “good cause” standard of review –  “[i]n cases where the issue is the performance

of the Clinical Professor, the Dean shall base a decision not to renew on clear evidence of a

failure to maintain the demonstrated ability established in the prior reviews and

recommendations in the promotion and renewal process,” 

(iii) an in-house appeal from a negative decision by the Dean, and

(iv) a recognition that the ABA five year term will become the standard  contract term

for Clinical Professors if and when the SUNY Trustees’ Policies are amended to grant

 permission.

Former-Dean Mutua did not allow the faculty to recommend Professor Malkan’s term

contract renewal or hear his grievance about the denial of his right to due process under the

Bylaws, either in the Committee on Clinical Promotion and Renewal (CCPR) or in any other

in-house forum, including the Grievance Committee. The effect was a complete denial of due

 process –  overriding the rules and regulations implemented by the faculty for the protection of

its integrity and academic freedom –  in which former-Dean Mutua took the unprecedented step

of firing a member of the voting faculty at the rank of Clinical Professor with a full-time,

indefinitely renewable appointment, without consulting or even informing the faculty.

Page 24: Malkan's Objections to Magistrate's R&R 12-11-2015

7/21/2019 Malkan's Objections to Magistrate's R&R 12-11-2015

http://slidepdf.com/reader/full/malkans-objections-to-magistrates-rr-12-11-2015 24/27

24

(d) The University’s personnel policies and procedures. 

In his August 28, 2008 letter to Professor Malkan, former-Dean Mutua failed to

mention that before the decision became final, he have to would receive in-house due process,

and that after  the decision was final, he would have to receive a written notice informing him

of his right to appeal to the Provost. See “ Notice of Nonrenewal,” in Faculty-Staff Handbook,

II.B.2.c, at http://www.business.buffalo.edu/UbbContent/Hrs/facultyhandbook/III.htm#A. 

What is particularly unsettling is that former-Dean Mutua argues that his predecessor,

Dean R. Nils Olsen, Jr., abused his authority by granting an “ultra vires” employment contract

to a Clinical Professor while neglecting to mention that all parties agree that he was doing

exactly the same thing himself –   providing “tenure-like” protection to Clinical Professors. 

The other two Clinical Professors, George Hezel and Suzanne Tomkins, whose

contr acts expired on the exact same date as Professor Malkan’s, August 31, 2009, and were

due to be renewed at the same time, were brought before the faculty by former - Dean Mutua on

 April 22, 2009, at which time they received favorable decisions on their reappointments.

Former-Dean Mutua reported the faculty’s April 22, 2009 vote to then-Provost Tripathi

and asked for the Provost’s endorsement of these two renewals. In this request, former-Dean

Mutua wrote identical memoranda for both Clinical Professors stating that their

“reappointment[s] to the title of Clinical Professor [are] pursuant to our Law School Standards

for Clinical Appointments, approved by the faculty on March 20, 2009. These Standards

identify a renewable contract alternative to tenure-track appointments and a “regularized

 process” for appointment and retention decisions at a qualified rank.”

Provost Tripathi, when he received these memoranda from former-Dean Mutua, was

already f ully aware of the Law School’s “regularized process” to provide security of

Page 25: Malkan's Objections to Magistrate's R&R 12-11-2015

7/21/2019 Malkan's Objections to Magistrate's R&R 12-11-2015

http://slidepdf.com/reader/full/malkans-objections-to-magistrates-rr-12-11-2015 25/27

25

employment to Clinical Professors “reasonably similar to tenure,” as required by ABA

Standard 405(c), the Faculty-Staff Handbook, and the Faculty Bylaws.

It was entirely logical for former-Dean Mutua, in his memoranda to then-Provost

Tripathi, to refer to a “regularized process” because they both knew that the SUNY Trustees’

Policies do not  forbid presumptively renewable contracts with pre-deprivation due process

rights. They also must have known that then-Provost Tripathi was responsible for the

“regularized process” for reviewing and granting final approval of term contract renewals. See 

Faculty-Staff Handbook, at II.B.1.

To repeat, this was exactly the process that was due Professor Malkan before the end of

his contract term and the process that former-Dean Mutua prevented him from receiving.

 In addition, then-Provost Tripathi and former-Dean Mutua certified to the ABA Section

on Legal Education –  on the occasion of the ABA Site Visit on April 8-11, 2009 –  that the Law

School had never terminated a Clinical Professor and was in full compliance with Standard

405(c).

This certification took the form of the Self-Study Report, approved by the faculty on

January 21, 2009 and revised on March 2, 2009. On October 17, 2011, the ABA Consultant on

Legal Education, Hulett H. Askew, Esq., by letter, informed then-President John B. Simpson

and former-Dean Makau W. Mutua that the Law School’s reaccreditation was approved and 

enclosed the final Findings of Fact of the Site Evaluation Team. The ABA’s Findings of Fact

regarding Standard 405(c) were based entirely on the Self-Study Report and information

 provided by the Law School while it was on-campus, and included the following:

(48) The Law School recently adopted a new Clinical FacultyAppointment Policy. The policy provides for the initialappointment of non-tenure-track clinical faculty who are eligible

Page 26: Malkan's Objections to Magistrate's R&R 12-11-2015

7/21/2019 Malkan's Objections to Magistrate's R&R 12-11-2015

http://slidepdf.com/reader/full/malkans-objections-to-magistrates-rr-12-11-2015 26/27

26

for “long term” renewable appointments, as well as for the

 promotion to the ranks of associate and full clinical professor andfor a presumption of renewability once a person achieves the

rank of full clinical professor …. 

(50) The Policy expressly provides that: “[i]n cases where

the issue is the performance of the Clinical Professor, the Deanshall base a decision not to renew on clear evidence of a failureto maintain the demonstrated ability established in the priorreviews and recommendations in the promotion and renewal process.” 

ABA Site Visit Team Findings of Fact, Oct. 17, 2011, at 9 (emphasis added).

These Findings of Fact prove that then-Provost Satish K. Tripathi was aware that the

Law School was required to provide “tenure-like” protection to Clinical Professors and was

doing so, unless he wants to admit that he and former-Dean Mutua were attempting to

 perpetrate a fraud on the ABA.

CONCLUSION

For the foregoing reasons, Professor Malkan respectfully requests this Court, (1) to grant

his objections and reject the Magistrate’s report and recommendations, (2) to grant summary

 judgment to him on the issue of liability, on the Court’s own motion and in the absence of any

disputed facts in the record, and to schedule for trial the issue of damages, and (3) to decide the

motions that are presently before it in a manner that is consistent with the interests of

 professional ethics, legality, and substantive justice.

Dated: December 11, 2015Saint James, New York

/s/_____________________________________

Jeffrey Malkan, pro se plaintiff12 Valleywood Ct. WSaint James, New York 11780(631) 862-6668

Page 27: Malkan's Objections to Magistrate's R&R 12-11-2015

7/21/2019 Malkan's Objections to Magistrate's R&R 12-11-2015

http://slidepdf.com/reader/full/malkans-objections-to-magistrates-rr-12-11-2015 27/27

27

CERTIFICATION PURSUANT TO RULE 72 (c)

I certify that the objections raised in the Memorandum do not raise new legal/factual

arguments. My concurrent request for this Court, in accord with these objections, to grant

summary judgment to the Plaintiff, sua sponte, does not state any facts or arguments that were

not raised to the Magistrate Judge prior to his report and recommendations.

Dated: December 11, 2015Saint James, New York

/s/_____________________________________Jeffrey Malkan, pro se plaintiff12 Valleywood Ct. W

Saint James, New York 11780(631) 862-6668