Malkan v. Gardner - opposition to Motion to Dismiss

7/23/2019 Malkan v. Gardner - opposition to Motion to Dismiss

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SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF ERIE-----------------------------------------------------------------xJEFFREY MALKAN,

Plaintiff,PLAINTIFFS AFFIDAVIT

-against IN OPPOSITION TO MOTION

TO DISMISSJAMES A. GARDNER,

Index No: 812536/2015Defendant.

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

JEFFREY MALKAN, under penalty of perjury, declares and states:

I am the Plaintiff in this action, and I make the following affidavit, based on my

personal knowledge, in opposition to the Defendants motion to dismiss the Complaint.

The Allegations of the Complaint

1. On a motion to dismiss, the only issue before the Court is whether the

defendant can be excused from answering the complaint on the ground that the facts as

alleged in the Complaint do not support a cause of action. All of the facts as alleged in

this Complaint must be regarded as true for the purposes of this motion. It is difficult to

imagine a more classic and more outrageous case of defamation and one that is more

clearly motivated by an attempt to destroy the reputation of an innocent person.

2. The Complaint alleges that the Interim Dean of the SUNY Buffalo Law

School, James A. Gardner, or persons acting with his knowledge or on his behalf, on

October 2, 2015, filed a false incident report with the State University Police stating that I

represented an imminent danger to the Law School community. It alleges that this was

the second false report filed by Interim Dean Gardner against me in the past year.

ILED: ERIE COUNTY CLERK 11/26/2015 12:05 PM INDEX NO. 812536/

YSCEF DOC. NO. 14 RECEIVED NYSCEF: 11/26/


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3. The Complaint further alleges that the State University Police responded to

Interim Dean Gardners report with an on-sight arrest warrant that was disseminated

through law enforcement networks with consequences for my safety and security that are,

as yet, unknown to me.

4. Interim Dean Gardner then created his own e-mail wanted poster with two

attached digital photographs, warning the Law School faculty and staff that it should

report any sighting of me in the vicinity of the campus to law enforcement authorities so

that I may be apprehended and charged with criminal trespass. He was, in effect,

deputizing the faculty to find and apprehend me.

5. The State University Police had already investigated Interim Dean Gardners

false alarm in March of this year and found that I was no threat to anyone.

6. On this second occasion, the State University Police again investigated and

found that Interim Dean Gardnersalarm, again, was false. The University

administration nevertheless approved the issuance of apersona non gratisletter banning

me from any SUNY Buffalo property.

7. The Complaint, finally, alleges that thepersona non gratisletter issued by the

Office of the President of SUNY Buffalo, Satish K. Tripathi, was obtained on the basis of

a report made by Interim Dean Gardner, falsely, maliciously, in furtherance of a long-

standing personal vendetta.

8. Interim Dean Gardner leveraged his own lies and slanders, which he has

repeated time and again over the past seven and a half years, into the false report of a

purported threat to public safety and then publicized his lies and slanders back to the


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faculty in order to give substance to a falsehood. The fact that his lies and slanders have

now been realized in police action, however, does not make them any less false and

defamatory.

Former-Dean Makau W. Mutuas perjury and its cover-up

9. The Attorney General points to my ongoing litigation against former-Dean

Makau W. Mutua and SUNY Buffalo as if my struggle to get a fair hearing in the face of

perjury and obstruction of justice negates my credibility and vindicates Interim Dean

Gardners lies and slanders.

10. The Attorney General fails to mention that he knowsthat former-Dean Mutua

has subverted the judicial process with perjury by lying under oath five times since

March 31, 2015 in both state and federal courts and that eleven members of the senior

faculty have brought a petition to the Grievance Committee of the Appellate Division of

the Supreme Court asking for sanctions and disbarment based on his violations of state

and federal criminal law as well as the Rules of Professional Conduct.

11. The Attorney General knowsabout the perjury and yet, in defiance of both

Public Officers Law 17-19 and the New York Rules of Professional Conduct, he

continues heedlessly to defend the criminality of the former-Dean of the Law School.

12. Former-Dean Mutua has now lied (a) in two consecutive days of testimony to

a state administrative agency, (b) in sworn deposition testimony taken under the auspices

of the federal district court, (c) in a sworn declaration in federal district court on the Rule

11 motion, and (d) in a sworn statement submitted to defend himself to the Grievance

Committee. He has carried his lies and slanders forward for over five years, maintaining


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his perjury in the face of unanimous testimony and contemporaneous documentary

evidence provided, again, by the most senior and respected members of the Law School

faculty. SeeExhibit A.

13. The Attorney General of the State of New York nevertheless maintains that

the conclusive evidence of his clients perjuryis none of his concern.

14. If the Dean of the Law School makes a false statement, under oath, on

prepared testimony, about a permanent appointment to the voting faculty, he is telling a

lie. If the Attorney General and the Interim Dean of the Law School say that they do not

have actual knowledge after handling this case for over three years that the Dean's false

testimony isfalse, then they are lying too.

The culpability of President Tripathi, Interim Dean Gardner, and the Attorney General

15. President Tripathi filed a false declaration to the federal district court on

December 12, 2013, stating that he could not be compelled to testify about Makau W.

Mutuas perjury because he knew nothing of my allegations, even though his Office had

received a dozen communications from me over the previous two years.

16. On September 22, 2014, he finally had to remove Makau W. Mutua from the

Deans Office in mid-year, which was reported on the front page of theBuffalo Newson

September 27, 2014, but instead of investigating my evidence-backed allegations of

criminal misconduct, he rewarded former-Dean Mutua with an eighteen-month

sabbatical.

17. President Satish K. Tripathi knew that reports of the perjury were due to

appear within the next five days on the front pages of theBuffalo Newsand the UB


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Spectrum. These reports were based on evidence-backed investigations by credible

journalists. Every person in Buffalo who read the Sunday newspaper on September 27,

2014, now knew about the crisis in the Law School.

Former-Dean Mutuas replacement by Interim DeanGardner

18. After the September 22 announcement that Makau W. Mutua was stepping

down from the deanship, President Tripathistillrefused to investigate or even

acknowledge these evidence-backed allegations as would be mandatory at any reputable

university. Instead Makau W. Mutua remained in the Dean's Office until December 19,

2014. He spent the balance of the semester indulging in travel to foreign lands, including

Copenhagen, Denmark, Rome, Italy, Nairobi, Kenya, and Prague, Czech Republic.

19. On December 20, 2014, after keeping his deliberations secret, President

Tripathi appointed anotherInterim Dean of the Law School, James A. Gardner, again

without consulting the faculty. The Law School has not been allowed to appoint its own

Dean since it nominated Professor R. Nils Olsen, Jr. in 1998. James A. Gardner, for

reasons that should be obvious, is the very last person who could be entrusted with

restoring the integrity of the Dean's Office.

20. Since Makau W. Mutua left the Dean's Office, he has not returned to his

duties on the faculty, contrary to Interim Dean Gardner claim to the UB Spectrumin his

interview of April 21, 2015 that he was still teaching in the Law School,1but rather, as

stated, has been granted an unprecedented eighteen-month "sabbatical" at his full state

salary ($300,000 per year with unspecified additional benefits provided by the University

1In that same interview, Interim Dean Gardner adopted the all-purpose derogatory phrase

endorsed by Mr. Boydthat I am nothing but a disgruntled former employee.


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and the UB Foundation). His wife, also a tenured law professor, has been awarded a

concurrent sabbatical at her annual base salary of $150,000. According to his Twitter

account, Mr. and Mrs. Mutua are festively enjoying this Thanksgiving week in Rome,

Italy. Messrs. Boyd and Sleight think that my indignation over this diversion of the Law

Schools resources from their intended educational purposes, shared by everyone I know

on the Law School faculty, is a reason to mock me and question my sanity.

21. The University still refuses to allow an internal investigation of the evidence-

backed allegations of his perjury and obstruction of justice. This is contrary to the

practice of any reputable academic institution. The Attorney General's refusal to

investigate the evidence-backed allegations by the Law School faculty against former-

Dean Mutua has escalated into a Rule 11 cross-motion against mefor "vexing and

harassing" him with my attempts to report the crime.

The Attorney Generals complicity in the defamation

22. My Rule 11 motion for perjury and obstruction of justice is currently pending

in the federal district court against former-Dean Mutua and AAG David J. Sleight. AAG

Christopher Boyd joined Mr. Sleight as co-counsel during the Rule 11 motion and, at this

point, he is equally culpable for actively and knowingly concealing former-Dean Mutuas

crimes against the judicial process from the federal district court while attempting to

obtain summary judgment on a record tainted by perjury and fraud.

23. The Attorney General is not acting in this case as an impartial representative

of a state official who is defending a civil lawsuit. He is defending his own unethical and

illegal conduct by defaming the accuser. Any professional discipline that befalls AAG

Sleight will most certainly befall AAG Boyd as well.


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24. The Court should alsobe aware that Interim Dean Gardners defamation of

me, in the form of his wanted poster, was conceived in collaboration with the Office of

the Attorney General. In his Declaration of October 2, 2015, Mr. Sleight informed the

federal district court that the Attorney General had issued an office-wide warning

concerning me.

Finally, I would like to alert the Court to the fact that Plaintiff continues to send e-

mails to my client, the entire Law School faculty and SUNY counsel. These e-

mails range from mocking and harassing to disturbing. Particularly disturbing is

the e-mail Plaintiff sent to the entire Law School faculty, copied to me and Mr.

Boyd, and SUNY counsel, yesterday evening. In it, he references the recent mass

shooting at a community college in Oregon. This e-mail was disturbing enough tomy superiors, who viewed it as a veiled threat of violence, that they have now

issued an office-wide warning concerning Mr. Malkan. This is the second time

that Mr. Malkan has sent an e-mail to the entire Law School faculty referencing a

mass shooting at a school.

Declaration of AAG David J. Sleight, Esq., October 2, 2015, 7 (emphasis added).

25. This sworn statement reveals the origin of Interim Dean Gardners

defamation. The defamation was a legal tactic that he conceived with the advice of

Messrs. Boyd and Sleight to defend their own complicity in former-Dean Mutuas

criminal misconduct by further defaming the victim of the prior defamation who has

submitted conclusive proof of the ensuing crime and its cover-up to the federal district

court. SeeEx. A. This crime and its cover-up, including this defamation, emanates from

the Attorney General of New York, the President of SUNY Buffalo, and the former- and

Interim Deans of SUNY Buffalo Law School. For me, this case is a nightmare of

defamation and perjury, but it does not concern me alone. It must also be a matter of the

gravest concern to the faculty of the SUNY Buffalo Law School and the legal community

of western New York.


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The false incident report to the State University Police

26. The fact as alleged in the Complaint is that the Universitycontrary to the

conclusion of the police officer who investigated the false incident reportdecided to

deem me a threat to public safety.

27. I told the police officer with whom I spoke on the phone on October 2 that I

was asking for a name-clearing and apology for the defamations that had been inflicted

upon me by Interim Dean Gardner and former-Dean Mutua. These slanders were

traumatizing me every time another mass shooting occurred on a campus in the United

States. What I told the officer, in fact, is was exactly what my October 1 e-mail to the

faculty said. The officer responded that he did not read my e-mail to the faculty as a

threat to anyone, but that he had been ordered by his supervisors to contact me anyway.

28. This decision to notify the faculty and staff of the Law School about my non-

threatdid not come from the State University Police. It came from Interim Dean Gardner

on his own initiative. Thepersona non gratisletter, itself maliciously and fraudulently

obtained from the University by Interim Dean Gardner, then became the occasion for him

to publicize his own defamation through the vehicle of his e-mailed wanted poster.2

29. The Complaintwhich again is true for the purposes of this Motionalleges

that Interim Dean Gardnersdefamations and their publication to the faculty, followed by

2The Attorney General attaches a copy of the Universitys Workplace Safety Policy to theAffidavit of Mr. Boyd, presumably to show that thepersona non gratisletter was lawfulper se.He seems to think that a policy adopted by the University exempts the University from the PenalLaw provision - cited in the Complaint - pertaining to false incident reports. The StateUniversity Police are licensed law enforcement agents of New York State and cannot proceedcontrary to the N.Y. Penal Law to harass and defame an innocent personat the behest ofcorrupt state officialson the basis of false information, absurdly citing the spurious authorityafforded by the University to itself.


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their foreseeable publication by the campus and regional media, were made for the

purpose of gaining an advantage in a litigation that is now at a crucial stage in federal

district court.

The e-mail wanted poster

30. There is no other way of reading Interim Dean Gardnersmessage then as a

defamation of the worst kind, done for the worst of motives. It is self-evident that no one

who was notcriminally insane could possibly contemplate an attack on innocent people

in an outburst of violence, no matter how badly provoked. The very thought is sickening

to any sane and mentally competent human being. Upon being accused of contemplating

and planning such a deranged act, any reasonable person would be stricken by shock and

severe emotional distress.

31. The Attorney General argues that the express words of the defamation, quoted

in the Complaint, are not defamatory because they are true. It is absurd to say that

broadcasting ones own defamation in the form of a wanted poster is a factually

accurate restatement of the gist of the defamation and therefore entitles the defamer to a

defense of truth. The message was plainly intended as an alarm to its recipients based on

an imminent threat against the Law School community. There was no reason to

announce the fraudulently obtainedpersona non gratisletter to the Law School

community except to publish the defamation. There is actual malice written all over this

sequence of events.

32. The Complaint alleges and documents that this defamation was the

culmination of a history of libels and slanders that Interim Dean Gardner has been

circulating behind my back since February of 2008. Those prior libels and slanders were


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inaccessible to me at the times they were made. In fact, as Exhibit A to the Complaint

demonstrates, then-Vice Dean Gardner signed a request that his defamatory statement of

February 25, 2008 not be released to me before being placed in my personnel file. At the

time, he was sitting in the Deans Office, together with Makau W. Mutua, with

supervisory authority over me.

33. In no reputable enterprise would a supervisor be permitted to place a

potentially defamatory statement about the mental health of an employee into his

employment record without allowing the employee to respond to it. Interim Dean

Gardner knew at the time he was perpetrating a libelous act. I only had the opportunity to

read this libel when it was disclosed to me by the University in litigation. This prior

defamation, and its repetition over and over again during the past seven and a half years,

establishes his malicious intention in the culminating defamation of October 5, 2015.

The background of former-Dean Mutuas defamations

34. I explained in my Declaration to the federal district court, dated July 22,

2015, 32-38 (provided by Mr. Boyd to this Court), the background of former-Dean

Mutuas defamations, in the context of thefirstfalse police report:

32. Mr. Sleights worst offense on this cross-motion has been to repeat his clientsslander that I am a potential mass-murderer. See Sleight Dec., 14, Document 83.This was former-Dean Mutuasoriginal statement of the defamation at the PERBHearing of March 31, 2010, which he has repeated at every opportunity since.

Q. And I would direct your attention next to thedate of March 25th, 2008. Do you remember attending

a meeting of the APPC committee on that date, where

Mr. Malkan was present?

A. I called the meeting as the chair of that

committee and I attended the meeting to perform my

duties as the chair of that committee.


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Q. And was the discussion of the research and

writing program, or your changes to it, on the

agenda for that day?

A. No. The agenda did not include a discussion of

the research and writing program.

Q. And Mr. Malkan was in attendance at that meeting?

A. Mr. Malkan was in attendance at the meeting,

because he had been a member, he had been a member

up to that point of that committee.

Q. And did he direct any comments to you and the

other attendees regarding his removal as director?

A. You know, just as we were sitting down to the

meeting and as I was calling the meeting to order,

to read out the first item on the agenda, Mr. Jeff

Malkan, you know, exploded in an outburst in which,

you know, shaking his hand at me and essentially

just trembling. He shouted at the top of his voice

that, you know, I will not get away with this, that

he is not the kind of a person that I should mess

with and that I was going to get what was coming to

me. It was -- it was such a perplexing moment, you

know, in the history of the law school. I had never

been at a meeting in which a faculty member had

behaved like that to another faculty member, muchless to the dean of the law school. Other faculty

members at the meeting simply buried their heads in

their hands or tried to look down at the floor to

avoid direct eye contact. I think all of us were

very embarrassed. All of this time Mr. Jeff Malkan

was shaking his fingers, his hand at me and

threatening me, you know, with consequences. At that

point, I recollected myself and as calmly as I

could, I told him that I was not trying to get away

with anything and that this particular matter that

he was raising was not a part -- was not on the

agenda of the meeting, and that he should calm downand allow us to continue with the business at hand.

He said he would not allow us to continue with the

business at hand, continued to shake his -- point

his fingers at me, and at that point I thought that

the possibility -- that the distinct possibility did

exist that he would go postal on me. He behaved as

though he was capable of doing me physical harm, and


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I must confess that although I'm not a shrinking

violet, I was afraid for my safety.

PERB Transcript, March 31, 2010, at 205-206 (emphasis added).

33. Mr. Sleight delivered hisslander in the following context. Interim Dean James A.Gardner, President Tripathi's chosen successor to former-Dean Mutua, filed a reportwith the State University police stating that I was a potential threat to public safety.

From: [email protected]

To:[email protected]

Subject: Please contact me.

Date: Sun, 8 Mar 2015 15:50:46 +0000

Hello Mr. Malkan,

Id appreciate it if you could contact me at your earliest convenience. Thank

you,

Investigator Wayne Colton New York State University Police CriminalInvestigation Division University at Buffalo; Bissell Hall Buffalo, New York 14260-4900 Tel:(716)645-2227 Fax:(716)645-3758 email: [email protected]

I told the police officer who contacted me at my home (now in eastern Long Island)that this was an attempt by the Deans Office to stop me from communicating with

the faculty about the crisis in the Law School. I said he should read the articles aboutmy case in the UB Spectrum and theBuffalo News, which, presumably he did. Hewas being manipulated by Interim Dean Gardner to harass and intimidate me. That iswhy "[n]othing came of the incident," except more proof of what is wrong withSUNY Buffalo Law School.

34. Former-Dean Mutua, testifying at his deposition in this case, repeated that it wasonly a matter of time before I went postal. See Malkan Dec., July 21, 2015, at 92,

Doc. 82. His purpose, once again, was to stigmatize me with the specter of on-campus violence. Mr. Sleight knows that his client made similar slanders in this caseagainst other faculty members who have challenged him, saying that they trembledwith rage, threatened dire consequences, etc. This is a standard maneuver in the

Makau W. Mutua playbook, but it is unconscionable that the Attorney General of theState of New York is carrying it forward in order to gain an advantage in this Court.

35. One of the elements of defamation is publication. The slander has already been

made public by the defamer. The person who is defamed can either keep silent in thehope that everyone will forget about it or challenge the defamation head-on. No onewas going to forget about former-Dean Mutua's ongoing and continuous slander thathe believed I might be a public safety hazard.

I do recall in one of those scheduled meetings with

Jim Newton, him asking me -- telling me that Jeff

Malkan wanted to have a face-to-face meeting with

me, at which point, you know, I responded to him,
mailto:[email protected]:[email protected]:[email protected]:[email protected]


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are you crazy, absolutely not, and I -- in own mind,

I could not contemplate meeting with Jeff Malkan. In

fact, I had thought of a possibility of raising the

issue of his presence in the building with the

university police, because I felt that it was a

threat to some of us in the building.

PERB Transcript, March 31, 2010, at 208.

36. On March 31 and April 1, 2010, again, he testified to this slander in his role as theDean of the Law School. The Hearing Officer referred to the slander in his writtenopinion, which makes it accessible to anyone who puts my name into a Westlaw orLexis search.

37. I have had to deal with it directly and without beginning yet another lawsuit,which is beyond my means, and which surely would be held up by the AttorneyGeneral as yet another unreasonable multiplication of the proceedings. See

Memorandum of Law, July 23, 2015, Doc. 83-1, at 7 (citing 28 U.S.C. 1927). (TheAttorney General fails to mention that I was required by federal law to explore everypost-deprivation legal option in order to establish that I was harmed by former-DeanMutua's denial of my pre-deprivation due process rights.) In addition, the statute oflimitations is one-year and defamations made in court testimony are privileged.

38. In my e-mail message to the faculty, I pointed out that six weeks beforeformer-Dean Mutua's PERB testimony, on February 12, 2010, a mass murderoccurred in a faculty meeting at the University of Alabama in Huntsville in whicha professor opened fire on the P&T Committee. See A Loaded Gun, PatrickRadden Keefe, New Yorker, February 13, 2013, available online athttp://www.newyorker.com/magazine/2013/02/11/a-loaded-gun (last visitedAugust 10, 2015). His defamation was ripped from the headlines, so to speak, andmade more credible by the fact.

Declaration of Jeffrey Malkan, July 22, 2015, 32-38.

35. No one has seen me on the SUNY Buffalo campus since May of 2009. I no

longer reside in western New York. I do not own any weapons. I have no police or

mental health records. These are the true facts, as known by all, and they are alleged in

the Complaint.

The motivation behind the defamation

36. There was no legitimate reason for the Presidents Officeto ban me from a

University campus upon which I have not been seen by anyone for many years, to which


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I have stated no intention to return, and against whose administration I have been

proceeding in court to obtain legal redress. Likewise, there was no legitimate reason for

Interim Dean Gardner to deputize the faculty to be on the lookout for me and to report

any sighting of me to enforcement.

37. No sane person who is proceeding in court with a meritorious case would

suddenly decide to take up arms as a means of obtaining redress for a grievance. My

supposed nemesis, former-Dean Mutua, has rarely been on campus since December of

2014, when his eighteen-month sabbatical began. I have proceeded according to the

letter of the law even though the Attorney General has attempted to subvert the judicial

process through perjury and destruction of subpoenaed evidence and has attempted to

destroy my credibility with the horrendous defamation that is the subject of this action.

38. The fact that Interim Dean Gardners defamation is coming from a law

professor against a law professor, in order to protect the worst crime that a lawyeras a

lawyercan commit, says that something has gone seriously wrong at the SUNY Buffalo

Law School.

39. Interim Dean Gardner concluded his October 5 e-mail with the cloying

platitude, The safety of each and every one of you is my number one priority. This is a

defamation that is not susceptible to any meaning other than the one alleged in the

Complaint. It was intended to tell the members of the faculty that their safety was truly

in jeopardy and to stigmatize me as a person with the mentality and the capacity to

become the assassin of my former colleagues. That is how the media reported it. That is

how the faculty received it. That is how anyone who reads it would receive it.


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40. In fact, Interim Dean Gardners number one priority wasto justify his own

extreme and outrageous conduct over the past seven and a half years, which has escalated

from his pursuit of an implacable personal vendetta to complicity in criminal misconduct

by his predecessor in the Deans Office. Interim Dean Gardnerin his role as Vice-

Dean for Academic Affairsplaced a memorandum in my personnel file, dated February

25, 2009, stating the ominous fact that I had apparently become unbalanced, and was

harassing law school personnel. He concluded thatsomethingwould have to be done

about me. He marked this memorandum confidential so that I would have no

opportunity to respond to his lies and slanders. SeeExhibit A to the Complaint.

41. Seven and a half years have passed and he is now the Interim Dean of the

Law School. His lies and slanders have resulted in irreparable harm to me and serious

damage to the integrity and reputation of the Law School. He nevertheless persists in his

lies and slanders. His extreme and outrageous conduct continues unabated.

Interim Dean Gardners First Amendment rights

42. His defamation cannot possibly be a protected opinion under the First

Amendment. If that were true, there would be no law of defamation. Anyone could

publicize a slander against anyone else warning that the other person is a potential mass

murderer and then could defend his defamation by saying that the statement was merely

an opinion. This defamation is the latest in a series dating back to February of 2008. He

still is peddling his lies, and now is upping the ante by warning the faculty about the

issuance of thepersona non gratisletter that he himself maliciously obtained.

43. Interim Dean Gardner, moreover, is not entitled to any form of immunity.

The only form of immunity that could possibly apply in this situation would be the


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qualified privilege that might be accorded to a supervisor communicating a work-related

hazard to his staff. That privilege is denied, however, where the defamatory message is

motivated by malice. Malice is exactly what the Complaint alleges. Of course, the

defamation in this case is that much worse precisely because the defamer is speaking as

the Interim Dean of the SUNY Buffalo Law School. To claim that a constitutional

privilege can be conferred upon the basis of an abuse of power and authority by the

person who is entrusted with the ethical legal education of hundreds of students is an

inconceivable distortion of the law.

Additional false arguments by the Attorney General on this Motion

44. Mr. Boyd makes four statements about me in support of this motion that I

will address with the brevity they warrant.3

45. First, Mr. Boyd states that Interim Dean Gardner did not defame me because

I was defamed to a community to which I no longer belong. Mr. Boyd has absolutely no

personal knowledge upon which to say that I am not still considered by the faculty to be a

part of the Law School community. There would be no reason for me to communicate

with the faculty, and no reason for them to read my communications, if it were otherwise.

I believe the consensus of the faculty is that my unlawful dismissal was an attack on the

facultysright to academic freedom and self-governance and that my attempts to rectify

the injustice is the facultys vital concern. In any event, I am still a member of the

community of civilized human beings to which both I and the Law School faculty belong.

3He makes an additional argument that is so frivolous it does not deserve to be addressed exceptin a footnote. The summons and complaint were served according to this Courts rulesandprocedures, and filed using NYSCEF. I served the Notice of Commencement, which conveysthe Index Number, on Interim Dean Gardner on the same day the Court issued it. SeeEx. B.


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What Interim Dean Gardner wrote about me would be considered defamatory by any

civilized person in any community, just as his willful and wanton behavior would be

considered extreme and outrageous in any civilized society.

46. Second, Mr. Boyd claims that Interim Dean Gardner had no legal duty to

report former-Dean Mutuas lies and slandersto any administrative or legal authority,

even though he has known about the perjury since November 11, 2011. In other words,

Mr. Boyds theory is thathis client has no legal duties regarding former-Dean Mutuas

lies and slanders, but is nevertheless entitled to privilege in his embellishment of them.

To the contrary, all faculty members are bound by the Faculty Code of Conduct, see

http://www.buffalo.edu/content/dam/www/provost/files/FacultyAffairs/pdf_codeOfCond

uctWeb.pdf.) (last visited November 21, 2015). Any Law School faculty member who

commits perjury is subject to disbarment and revocation of tenure as a professor.

Former-Dean Mutuas ongoing fraud and criminality violate the Universitys mandatory

rules of professional conduct in the worst possible manner. Interim Dean Gardners

cover-up for his predecessor in office makes him equally culpable and equally at

jeopardy of dismissal from the faculty.

47. In addition, it is impossible for this state-sponsored and ABA-accredited

Law School to train ethical lawyers, or even to impose in-house ethical rules on its

student body, when the Interim Dean is so hypocritical and so contemptuous of the rule

of law that he has authorized himself to conceal a perjurious lie about the facultys most

vital deliberations and decisions. SeeStudent Honor Code in Academic Policies,

available online at http://www.law.buffalo.edu/current/academicPolicies/conduct.html

(last visited November 21, 2015) (stating duty to report violations of the Honor Code).


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48. Interim Dean Gardner knows that former-Dean Mutua committed perjury, yet

he refuses to step forward and disclose it. He knows this onpersonal knowledgebecause

he was an active participant in the events about which his predecessor in office lied. That

dishonesty compounds the original crime and is equally damaging to the integrity of the

Law School and the legal profession.

49. Mr. Boyd is now representing Interim Dean Gardner and so he is presumed to

know what his client knows. He is also co-counsel for former-Dean Mutua so he is

presumed to know what his co-counsel knows. They are all in this together and have

decided that the law does not apply to them. They have decided that the best strategy is

to double down and defame the victim.

50. Third, Mr. Boyd states that I was not damaged in my career and profession

as a matter of lawbecause I no longer have a career or profession. It is simply

outrageous for the Attorney General to say that I am incapable, as a matter of law, of

pleading special damages.4

51. I have spent my entire career in the field of legal education, after studying for

a Ph.D. in English, passing the bar and practicing law in this state, and returning to law

school for an LL.M. I taught at three law schoolsthe University of Georgia, Chicago-

Kent, and St. Johns before I came to SUNY Buffalo on the recommendation of the

Appointments Committee and the vote of the entire faculty. I was granted clinical tenure

at SUNY Buffalo on the recommendation of the Promotion and Tenure Committee and

the Dean, by letter of appointment from then-President John B. Simpson in spring of

4Ifthat were a requirement for me to state a cause of action for libel per se on thesealleged factswhich it is not, as Mr. Boyd recognizes.


19/21

19

2006. Even after receiving the notice of my wrongful termination, I published the lead

article in the spring 2009 issue of theBuffalo Law Reviewand published another lead

article the next year in the Oregon Law Review.5 I have never renounced my vocation

and profession, although this latest defamation may make it impossible for me ever again

to receive a security clearance to teach on a university campus.

52. Fourth, Mr. Boyd states that I am libel proof because no reputationhas

survived the past seven and a half years that could support a cause of action for

defamation. This statement also sinks below the level of common sense and common

human decency.

53. I have been under continuous attack by Interim Dean Gardner for the better

part of the past decade, during which time he and former-Dean Mutua have called me

unbalanced, incompetent, a no-show employee, a danger to others in the

building, and many variations on the above. They have done everything possible to

degrade and discredit me, including the shocking perjury that the faculty, on April 28,

2006, came into my P&T meeting enraged and stricken with angst at my incompetence,

and in a heated release of anger that sucked all the oxygen out of the room, voted to

recommend my dismissal from the faculty on one-years notice.

54. This was a lie and Interim Dean Gardner knows it. The fact that he has kept

his silence over the past five years proves that no oneon the faculty dares to stand up and

corroborate the perjury. Yet that has not stopped him from slandering me over and over

again as what he thinks is a cunning way of turning the victim into the victimizer. He can

5Rule-Based Expression in Copyright Law, 57 Buffalo Law Review 433-509 (2009); ThePublic Performance Problem in Cartoon Network LP v. CVC Holdings, Inc., 89 OregonLaw Review 505-555 (2010).


20/21

take a stab

at this

reprehensible

tactic

with

no

risk,

argues

the

Attomey

General,

because

my

reputation

is

sufficiently

degraded

that

I

could

be

branded

by

anyone

as

a

psychopathic mass

murderer,

and

no

harm,

no foul.

55.

This

logic

should

prove

to

any

reasonable

person

that

the

administration

of

this University

has

lost

all

sense

of

proportion

and

common

sense.

That

is

why

I

have

had

to

seek

judicial

intervention

in this

latest

escalation

ofthe

unlawfirl

attacks

on

me.

The

legal community

of

westem

New

York and

the University

community

of

SUNY

Buffalo

need

this

case

to

proceed

to

a

fair

hearing

as

much as

I

do.

In

the end,

the only

way

for

me

to

regain

my

good

name and

standing

in

society is

for

the

truth to

be

known

and

the

malicious

misconduct

of

Interim

Dean

Gardner

to

be exposed.

56.

I

respectfully

ask

this

Court

to deny

the

motion

to dismiss.

Dated:

November

24,

2015

Saint

James.

New

York

Saint James,

New

York,

11780

(63r)

862-6668

Jefftley

lvlblkan,

Plaintiff

pro

se

12

Valleywood

Ct. W.

2A


21/21

SUPREME

COURT

OF

TI{E

STATE

OF

NEW

YORK

COUNTY

OF ERIE

JEFFREY

MALKAN,

-against

JAMES

A.

GARDNER,

Plaintiff.

Defendant.

---x

AFFIDAVIT

OF

SERVICE

lndexNo:

81253

612015

State

ofNew

York

)

ss:

County

of

Suffolk

)

Jeffrey

Malkan,

being

duly

swom,

deposes

and

says

that on

the21thday

of

November,

Z0l5,I

served

the

within

Affidavit

in

Opposition

to

Motion

to

Dismiss,

and

exhibits

thereto,

upon

the

parties to this

proceeding by

frling

the

same

on

the

Court's

NYSCEF

system'

Swprn

before

me

thrs

2Lf

day

of

November,2016

FRANCINECESI.AK

-.

wormVPueuf.

ab

d

l{'*Yo|k

No.0lCl'5{Ffr5

-

t'^

ouoiii'ri

Surid

oa.ntt

)

g

1

[

Connrisslon

ExCtE3

e

.' sfi*riq-

Notarv

Public

Malkan v. Gardner - opposition to Motion to Dismiss

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Transcript of Malkan v. Gardner - opposition to Motion to Dismiss