Professional Documents
Culture Documents
of Law in Support of Motion, (2) Order of the Appellate Division (with Notice of
Entry), (3) Record in the Appellate Division, (4) Briefs in the Appellate Division,
and (5) Affidavit in Support of Motion, Appellant, Jeffrey Malkan, proceeding pro
se, will move this Court at the Court of Appeals Hall, Albany, New York on
March 20, 2017, for an order, pursuant to Rules 500.21 and 500.22 of the Court of
Appeals Rules of Practice, granting him permission to appeal from the order of the
1
PLEASE TAKE FURTHER NOTICE THAT answering papers, if any,
must be served and filed in the Court of Appeals with proof of service on or
/s/________________________
Jeffrey Malkan,
Plaintiff-Appellant pro se
12 Valleywood Ct. W
Saint James, New York 11780
(631) 862-6668
To:
Clerk of the Court of Appeals
Court of Appeals Hall
20 Eagle Street
Albany, New York 12207
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COURT OF APPEALS
STATE OF NEW YORK
__________________________________________x
Jeffrey Malkan, : Court of Claims
: Motion No.: M-85598
Appellant, :
:
-against- : Affidavit in Support
: of Motion for Permission
: to Appeal
State of New York, :
:
Respondent. :
_________________________________________ x
The Memorandum of Law, submitted with this Notice of Motion, states the
question presented and explains why this motion addresses issues that are
appropriate for this Courts review.
/s/_____________________
Jeffrey Malkan
Plaintiff-Appellant pro se
12 Valleywood Ct. W.
Saint James, NY 11780
(631) 662-6668
3
COURT OF APPEALS
STATE OF NEW YORK
__________________________________________x
Jeffrey Malkan, : Court of Claims
: Motion No.: M-85598
Appellant, :
: Memorandum of Law
-against- : in Support of Motion
: or Permission to Appeal
:
State of New York, :
:
Respondent. :
_________________________________________ x
appeal.
PRELIMINARY STATEMENT
The sole issue proposed for review on this motion for permission to appeal is
whether it is lawful for the State University of New York at Buffalo, under the
presumptively renewable term contracts with due process rights and a good cause
standard of review.
The Court of Claims ruled, and the Appellate Division affirmed, that any
term contract for any SUNY faculty member that provides an expectation of
4
renewal beyond a single three-year term is in violation of the SUNY Trustees
Did the Court of Claims commit an error of law by ruling that an ABA-
Buffalo, is prohibited by state law, the Policies of the SUNY Board of Trustees,
If granted permission by this Court, the Appellant will argue (i) that the
with the plain meaning of the regulation, and (ii) that the evidence the Court of
Claims preemptively excluded from the record would have proven that the
STANDARD OF REVIEW
The Policies of the SUNY Board of Trustees are promulgated under the
authority of N.Y. Education Law, Art. 8, 350, et seq., and serve as the
1
See State University of New York, Policies of the Board of Trustees (June 2014), available
on-line at https://www.suny.edu/media/suny/content-assets/documents/boardoftrustees/SUNY-
BOT-Policies-June2014.pdf (last visited February 2, 2017).
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matter was an interpretation of enacted law that is entitled to no deference by the
Court of Appeals.
The admission of attorneys to the practice of law in the State of New York
lies within this Courts exclusive jurisdiction. This Court defines an approved
law school as one that (i) is approved by the American Bar Association at all
times during the period of the applicant's attendance; and (ii) is located in the
United States or its territories. Rules of the Court of Appeals for the Admission of
Attorneys and Counselors at Law, Part 520, 520(3)(b). The Law School of the
register for the bar examination because it is an approved that is, an ABA-
There are two reasons for finding that the decision below, if allowed to
stand, will have adverse and wide-ranging consequences for professional education
throughout the State of New York. First, the ruling of the Court of Claims, under
the accreditation standards of the ABA Section on Legal Education, would make it
impossible for the SUNY Buffalo Law School to continue operating as an ABA-
accredited law school under the sponsorship of the State University of New York.
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Second, the Court of Claims interpretation of the SUNY Trustees Policies
would apply across the entire SUNY system, and disrupt the clinical faculties upon
which many of those institutions rely for quality and continuity in professional
training. There is no reason to believe that the SUNY Board of Trustees intended
to undermine its professional schools in this way. These clinical faculties should
not be disrupted on a record that contains no textual scrutiny of the regulation upon
which the ruling was based, and no policy rationale for the Court of Claims
interpretation.
(a) The SUNY Buffalo Law School. The mission of the SUNY Buffalo
Law School is to prepare its graduates with the skills they will need to engage in
the practice of law in New York State and other jurisdictions. It is the only state-
sponsored law school in New York and the only law school in its western region,
which encompasses the cities of Buffalo and Rochester, and includes the principal
courthouses of the United States District Court for the Western District of New
York and the Fourth Department of the Appellate Division of the Supreme Court.
In the 125-years since its charter was granted, its graduates have served many
judicial and public service functions, including distinguished service on this Court
and other state and federal courts throughout the United States.2
2
See Our History, UB Law Website, available at http://www.buffalo.edu/law125th.html (last
visited February 2, 2017).
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It has been an ABA-accredited law school since 1937. Its accreditation is
reviewed every seven years by its accrediting agency, the Section on Legal
Education of the American Bar Association. As part of that review, the Law
School must certify its compliance with ABA Standard 405(c), which is the
to tenure for clinical professors for the purpose of safeguarding their academic
freedom from political pressures in the workplace. It did so in April of 2009, after
the first notice of claim in this case had been filed, and did so again in April of
2016, while this motion was pending in the Appellate Division. The only inference
that can be drawn from the irreconcilable contradiction between the ABAs finding
that the Law School is in compliance with Standard 405(c) (see Addendum, p. 20,
infra) and the Court of Claims finding that this claim has no possible merit is that
the University presented one interpretation of the SUNY Trustees Policies to the
ABA for the purpose of renewing its accreditation, and the opposite interpretation
faculty requires professional schools to offer employment contracts that will allow
their institutions and communities. The SUNY system includes the Downstate
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Buffalo, and SUNY Stony Brook.3 The SUNY system also includes two dental
schools, SUNY Buffalo and SUNY Stony Brook, and a school of veterinary
The effect of the Court of Claims decision in this matter would be to turn all
employees-at-will who are in jeopardy of dismissal without any faculty review and
with no good cause at the end of every three-year contract term. This Court should
take into account the impact that annulling the contractual protections of their
clinical faculties would have on medical schools and hospitals throughout the state.
Again, this consequence cannot have been intended by the SUNY Board of
Trustees.
There are two reasons why this Court should find that the decision of the
First, the Court of Claims failed to quote the text of the regulation that it was
interpreting. Any judge who is construing enacted law in a manner that will
deprive state residents of their preexisting contractual and constitutional rights has
3
See SUNY Press Release, at https://www.suny.edu/suny-news/press-releases/march-2013/3-5-
13-suny-medical-schools-are-leading-providers-/3-5-13-suny-medical-schools-are-leading-
providers-of-new-yorks-doctors.html (last visited Feb. 2, 2017).
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an obligation to consider the language in which the enactment was framed before
deciding how to apply it. In the present case, the Court of Claims changed the
Proposed Argument, infra.) Because the Court of Claims failed to quote the
language it was interpreting, the Appellate Division failed to account for the
meaning of a clause, of itself, that modified the sentence that conveyed the
prohibition.
Second, the Court of Claims treated this case as if the University was writing
on a blank slate, but it was not. The SUNY Buffalo Law School has long-standing
promotion and tenure rules for clinical professors. These rules are still in effect to
the present day and represent the agencys (SUNYs) interpretation of its authority
to take action under its enabling regulations (the Policies of the Board of Trustees).
See Bylaws of the Faculty, SUNY Buffalo Law School, available on-line at
25, 2016) (last visited February 2, 2017). The provisions in the Bylaws regarding
mandatory faculty review for clinical renewals are exactly the same, word for
word, as they were during the 2008-2009 academic year. Id. There has been no
opportunity to find out how that mandatory faculty review can be reconciled with
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Universitys position that no expectation of anything beyond a single contract term
testimony are missing from the record of this case because some (but not all) of
that evidence has already been obtained by the Plaintiff-Appellant in the U.S.
District Court of the Western District of New York.4 If the Court of Claims had
not foreclosed discovery before ruling that the claim could not be filed, it would
not have been in the position of speculating about the merits of the claim in a
PROCEDURAL BACKGROUND
Decisions Below
117676 (N.Y. Ct. of Claims, September 6, 2013), the claimant filed a Notice of
Claim for breach of contract on January 28, 2009 (R. 35), which was within six
months after the service of the notice of non-renewal. He filed a second Notice of
Claim on November 13, 2009 (R. 37), which was within six months after the date
the contract expired. The second claim was filed because the Attorney General
4
The record in the federal district court, where depositions were completed on December 20,
2013, does not include evidence of the Law Schools representations to the ABA in its April
2016 Self Study Report, nor does it indicate what contractual promises the Law School made to
the three-newly hired clinical professors in August 2016. See Meet our New Clinical Faculty,
Law Links Newsletter, August 2016, available on-line at http://web2.law.buffalo.edu/links/08-
2016/default.html (last visited February 2, 2017).
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had challenged the first on the grounds that an anticipatory breach of contract
could not be the subject of a Notice of Claim. (See R. at 51) (letter from UUP-
The Court of Claims, Hon. Jeremiah J. Moriarty, III, dismissed the claim on
August 26, 2013, with the following rulings: (i) the January 28, 2009 Notice of
Claim had failed to state damages in the form of an exact dollar amount, and (ii)
the November 6, 2009 Notice of Claim missed the statute of limitations, which the
court deemed to have begun to run with service of the notice of non-renewal rather
than on the date the contract expired. (R. 55-60.) He refused to allow the caption
of the first claim to be amended with four words to Notice of Intent to File a
Claim, which would have extended the statute of limitations from six months to
two years. The dismissal of the claim was affirmed by the Appellate Division,
The claimant, while still awaiting this final ruling, filed a motion for
permission to file a late claim, dated August 27, 2014 (R. 28), which was denied by
Judge Michael E. Hudson on March 23, 2015 (entered on June 29, 2015) based on
his determination that the claim did not have a reasonable likelihood of success on
5
The Appellate Division cited three factors weighing in Appellants favor and three factors
weighing against. The dispositive factor, and the subject of this motion, is whether he has a
reasonable likelihood of success on the merits.
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memorandum dated December 23, 2016, affirmed the Court of Claims, holding
that the claimant failed to demonstrate an adequate excuse for the delay, that the
proposed claim lacks merit, and that claimant had and/or has alternative remedies.
Malkan v. State of New York, No. CA-16-00-538 (N.Y. App. Div., 4th Dept,
against SUNY Buffalo, under the Taylor Law, N.Y. Civ. Serv. Law, 200-214, at
v. State of New York, No. U-288236 (N.Y. Pub. Emp. Rel. Bd., November 20,
The charging party was the UUP/NYSUT, not Professor Malkan, and the
purpose of the charge was to vindicate the unions right to advocate for its
members without fear of retaliation. The remedy at PERB would have been
harassment. The Hearing Officer ruled, and the Board affirmed (i) that former-
Dean Mutua could not have been motivated by anti-union animus because he did
not know about the UUPs involvement in this matter, and (ii) that he had
legitimate business reasons for his punitive actions. (R. 320, 343.) Both of these
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holdings were based on former-Dean Mutuas credibility as Dean of the Law
School.
The unrefuted evidence taken from eleven tenured and emeritus professors
in the federal district court is that he was lying under oath for the purpose of
subverting the judicial process. His perjury and obstruction of justice repeated in
the federal district court on December 19, 2013, and June 26, 2015 was the
subject of a Rule 11 motion against the Attorney General of New York in the
are currently under review before the U.S. Court of Appeals for the Second Circuit.
March 23, 2012), was commenced pursuant to 42 U.S.C. 1983, against then-
capacities, for violation of the Fourteenth Amendment right to due process. (R.
364.) The federal case is a cause of action for violation of the Fourteenth
That case seeks relief that is not available in the Court of Claims. The
damages claimed are emotional distress damages, punitive damages, and civil
in his personal capacity. The State of New York is not a party, although former-
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Dean Mutua has been defended by the Office of the Attorney General pursuant to
motion for a stay pending a final decision in the Court of Claims litigation, was
filed by the Attorney General. These motions were denied by Hon. Richard J.
Arcara, dated October 3, 2012. Judge Arcara ruled that the allegations of the
complaint stated a cause of action under 1983 and that the federal issues and the
state issues in these two cases were too dissimilar to warrant the issuance of a stay.
(R. 65, 74-76.) The Attorney General moved for summary judgment on Dean
On August 13, 2014, Vice-Dean Ewing filed a motion for separate trials,
faculty member whose testimony has been heard, that Dean Mutua had lied about
April 1, 2010. See Deep Rift Exposed as UB Laws Dean Resigns, Buffalo
School Dean to Step Down Amid Charges of Perjury, Artvoice, September 27,
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2014, available on-line at http://blogs.artvoice.com/avdaily/2014/09/22/ub-law-
http://www.ubspectrum.com/article/2014/09/law-school-dean-makau-mutua-
visited February 2, 2017); Law Dean Perjury, Above the Law, September 25,
Professor Malkans employment contract did not give him a state property right
upon which a federal due process right could be based and recommended that
Professor Malkan and his attorney for accusing former-Dean Mutua of perjury,
and (ii) that Professor Malkan should be cited for contempt of court for disclosing
to the student newspaper, the UB Spectrum, that former-Dean Mutua did not
16
Judge Arcara received written objections to the Magistrates Report and
Rochester, New York. On December 19, 2016, Judge Telesca accepted the
Magistrates R&R. Notices of Appeal were filed in the U.S. Court of Appeals for
the Second Circuit on January 3 and January 13, 2017. The appeal is pending.
proposed appeal would ask this Court to determine the meaning of the clause of
itself in the "Renewal of Term" provision of the Policies of the SUNY Board of
Trustees. That clause is a condition that modifies the meaning of the rest of the
sentence.
Id., Article IX, Title D (emphasis added). (R. 155, 195.) The Court of Claims
ruled that the words "of itself" are mere surplusage and that the meaning of this
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sentence would be exactly the same with or without these surplus words. That
Professor Malkan has never argued that a letter of appointment issued by the
President of the University of itself provides any expectation that a term contract
Policies, however, does not prohibit the Dean from providing additional terms and
ABA Standards for the Accreditation of Law Schools, Standard 405(c) (emphasis
tenure, is the source of the tenure-like protection provided by the contract that
6
See Peter A. Joy and Robert R. Kuehn, The Evolution of ABA Standards for Clinical Faculty,
75 Tenn. L. Rev. 183, 210-223 (2008).
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is the subject of this claim. In 2005, the ABA added Interpretation 405(6) to
members at the rank of clinical professor must take the form of presumptively
renewable contracts.
The Law Schools accreditation cycle requires that every seven years it
certify its compliance with all accreditation standards, including Standard 405(c).
It most recently did so in April 2016, and previously did so in April 2009. The
evidence of what the Law School told the ABA in the April 2009 Self-Study
Report, and that the ABA affirmed in its January 2010 Findings of Fact, is in the
record of the federal litigation. See page 21, infra. That evidence in the Court of
Claims would have proven that the Universitys true position, at least since 1995,
is precisely the opposite of what it is arguing here. It is not only relevant and
material to the present case, but would likely have been dispositive of the issue
CONCLUSION
The facts and circumstances of this case have been widely publicized in the
in the print and on-line media and the effect has been to undermine the legal
communitys trust in the integrity of the SUNY Buffalo Law School. Honesty and
fidelity to the law by legal educators in the accredited law schools of this state
should be a matter of highest concern to the state judiciary and an additional cause
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for this Court to review the intentional misrepresentations of fact that the Attorney
General placed before the Court of Claims on the Universitys behalf. For this
reason, together with those stated in this Memorandum, and in the interests of
justice, the Plaintiff-Appellant respectfully asks this Court to grant his motion for
permission to appeal.
/s/_____________________
Jeffrey Malkan
Plaintiff-Appellant pro se
12 Valleywood Ct. W.
Saint James, NY 11780
(631) 862-6662
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APPENDIX
21
ORDER OF THE APPELLATE DIVISION WITH NOTICE OF ENTRY
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