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COURT OF APPEALS

STATE OF NEW YORK


__________________________________________x
Jeffrey Malkan, : Court of Claims
: Motion No.: M-85598
Appellant, :
: Appellate Division
-against- : Fourth Department No.
: CA 16-00538
:
State of New York, :
:
Respondent. :
_________________________________________ x

NOTICE OF MOTION FOR PERMISSION TO APPEAL


TO THE COURT OF APPEALS

PLEASE TAKE NOTICE that, upon the accompanying, (1) Memorandum

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

Appellate Division, Fourth Department, dated December 23, 2016.

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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

before the return date of the motion.

Dated: Saint James, New York


February 14, 2017

/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

Office of the Attorney General


The Capitol
Albany, New York 12224

Attn: Wendy M. Sheridan, Esq.

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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

AFFIDAVIT IN SUPPORT OF MOTION

On January 9, 2017, the Solicitor General served my former-attorney, UUP-


NYSUT Associate Counsel Anthony J. Brock, Esq., by U.S. Postal Service
(postmarked January 6, regular mail), with the order and judgment from which I
am seeking permission to appeal, dated December 23, 2017, with notice of entry,
dated January 6, 2017. I did not move for permission to appeal to this Court at the
Appellate Division.

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.

Dated: February 14, 2017


Saint James, New York
Respectfully submitted,

/s/_____________________
Jeffrey Malkan
Plaintiff-Appellant pro se
12 Valleywood Ct. W.
Saint James, NY 11780
(631) 662-6668
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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

Pursuant to CPLR 5516 and N.Y.C.C.R. 500.22, Appellant Jeffrey Malkan

respectfully submits this memorandum in support of his motion for permission to

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

Policies of the SUNY Board of Trustees, to grant security of employment

reasonably similar to tenure to its clinical professors of law in the form of

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

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renewal beyond a single three-year term is in violation of the SUNY Trustees

Policies and is therefore ultra vires and unenforceable.

QUESTION PROPOSED FOR REVIEW

Did the Court of Claims commit an error of law by ruling that an ABA-

accredited, state-sponsored law school, the State University of New York at

Buffalo, is prohibited by state law, the Policies of the SUNY Board of Trustees,

from complying with a mandatory accreditation standard, ABA Standard 405(c)?

POINTS OF PROPOSED ARGUMENT

If granted permission by this Court, the Appellant will argue (i) that the

Court of Claims reading of the SUNY Trustees Policies cannot be reconciled

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

Universitys position in this litigation on the renewal of term provision of the

SUNY Trustees Policies is not its true interpretation.

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

Universitys enabling regulations.1 The decision of the Court of Claims in this

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.

ARGUMENT FOR GRANTING REVIEW

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

State University of New York at Buffalo is authorized to certify its graduates to

register for the bar examination because it is an approved that is, an ABA-

accredited law school.

1. The decision below involves a matter of state-wide significance.

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

clinical faculty standard that mandates security of employment reasonably similar

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

to the Court of Claims for the purpose of prevailing in this litigation.

(b) The SUNY Health Sciences Centers. The recruitment of a clinical

faculty requires professional schools to offer employment contracts that will allow

expert practitioners in their fields to make full-time and long-term commitments to

their institutions and communities. The SUNY system includes the Downstate

Medical Center (Brooklyn), the Upstate Medical University (Syracuse), SUNY

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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

medicine at Cornell University.

The effect of the Court of Claims decision in this matter would be to turn all

clinical professors at every professional school in the SUNY system into

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.

2. The claim is worthy of review on its potential merits.

There are two reasons why this Court should find that the decision of the

Court of Claims, as affirmed by the Appellate Division, meets the threshold of

legal merit that warrants the grant of a discretionary appeal.

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

regulations conditional prohibition on long-term contracts into an unconditional

prohibition without any recognition of what it had done. (See Summary of

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

http://www.law.buffalo.edu/infoStaff/facultyBylaws.html (last amended on March

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

is legally permissible under the SUNY Trustees Policies. (See R. 125-129.)

It is not necessary to speculate about what additional documents and

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

factual vacuum. (See Appendix, page 21, infra.)

PROCEDURAL BACKGROUND

Decisions Below

In Malkan v. State University of New York (SUNY Buffalo), Nos. 116355,

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-

NYSUT counsel, Marilyn Raskin-Ortiz, Esq., November 9, 2009).

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,

Fourth Department, on February 13, 2015. (See R. 421.)

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

the merits.5 (See R. 16.) The Appellate Division, Fourth Department, in a

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,

December 23, 2016).

Related State Court Litigation

In December of 2008, the UUP/NYSUT filed an improper practice charge

against SUNY Buffalo, under the Taylor Law, N.Y. Civ. Serv. Law, 200-214, at

the Public Employment Relations Board (PERB), alleging retaliation based on

anti-union animus. United University Professions/New York State United Teachers

v. State of New York, No. U-288236 (N.Y. Pub. Emp. Rel. Bd., November 20,

2012). (R. 320.)

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

retroactive reinstatement for Professor Malkan and protection from further

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

federal district court. The evidence-backed allegations against former-Dean Mutua

are currently under review before the U.S. Court of Appeals for the Second Circuit.

Related Federal Court Litigation

The complaint in Malkan v. Mutua, No. 1-12-cv-0236 (W.D.N.Y, filed

March 23, 2012), was commenced pursuant to 42 U.S.C. 1983, against then-

Dean Makau W. Mutua and then-Vice-Dean Charles P. Ewing, in their personal

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

Amendment right to due process.

That case seeks relief that is not available in the Court of Claims. The

damages claimed are emotional distress damages, punitive damages, and civil

rights attorneys fees. The remaining defendant is former-Dean Makau W. Mutua

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

Public Officers Law 17-19.

A motion to dismiss in lieu of an answer, on May 8, 2012, together with a

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

Mutuas behalf on June 6, 2014.

On August 13, 2014, Vice-Dean Ewing filed a motion for separate trials,

alleging that he would be tainted by the allegations, in the form of sworn

testimony and contemporaneous, handwritten documentary evidence from every

faculty member whose testimony has been heard, that Dean Mutua had lied about

Professor Malkans promotion and reappointment in his testimony before the

Public Employment Relations Board in Albany, New York, on March 31 and

April 1, 2010. See Deep Rift Exposed as UB Laws Dean Resigns, Buffalo

News, September 27, 2014, at http://buffalonews.com/2014/09/27/deep-rift-

exposed-as-ub-laws-dean-resigns/ (last visited February 2, 2017); UB Law

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-

school-dean-to-step-down-amid-charges-of-perjury/; Law School Dean Makau

Mutua Resigns, UB Spectrum, September 24, 2014, available on-line at

http://www.ubspectrum.com/article/2014/09/law-school-dean-makau-mutua-

resigns; Mutuas Unsettling Tenure, UB Spectrum, September 26, 2014,

available on-line at http://www.ubspectrum.com/article/2014/09/mutua (last

visited February 2, 2017); Law Dean Perjury, Above the Law, September 25,

2014, available on-line at http://abovethelaw.com/2014/09/i-wish-for-a-more-

expansive-definition-of-law-dean-perjury/ (last visited February 2, 2017).

On December 2, 2015, Magistrate H. Kenneth Schroeder, Jr. reported that

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

summary judgment be granted to former-Dean Mutua. (see R. 40) He also

recommended (i) that Rule 11 cross-motion sanctions should be imposed on

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

appear, as ordered by Judge Arcara, at the mandatory mediation held on March 1,

2013 at the offices of Hodgson Russ in Buffalo, New York.

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Judge Arcara received written objections to the Magistrates Report and

Recommendations in January and February of 2016. After eleven months, on

November 11, 2016, he transferred the case to Hon. Michael A. Telesca in

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.

SUMMARY OF PROPOSED ARGUMENT

1. Textual interpretation of the Renewal of Term provision. The

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.

4. Renewal of Term. Except as provided in this


Article, term appointments may be renewed by the chief
administrative officer of the college for successive
periods of not more than three years each; such renewals
shall be reported to the Chancellor. No term
appointment, of itself, shall be deemed to create any
manner of legal right, interest or expectancy in any other
appointment or renewal.

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

interpretation is not only incorrect, but impossible.

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

will be renewed. The "Renewal of Term" provision in the SUNY Trustees

Policies, however, does not prohibit the Dean from providing additional terms and

conditions of employment in a faculty contract, including due process rights and a

good cause standard of review.

2. Factual evidence of compliance with Standard 405(c). The clinical

faculty standard, ABA Standard 405(c), 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.

ABA Standards for the Accreditation of Law Schools, Standard 405(c) (emphasis

added). (R. 113-116.). The ABA enacted Standard 405(c) in 1995.6 It is an

academic freedom standard and a core accreditation requirement. The phrase

emphasized in italics, a form of security of position reasonably similar to

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

Standard 405(c), which mandates that security of employment for faculty

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

that is presently before this Court.

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.

Dated: February 14, 2017


Saint James, New York
Respectfully submitted,

/s/_____________________
Jeffrey Malkan
Plaintiff-Appellant pro se
12 Valleywood Ct. W.
Saint James, NY 11780
(631) 862-6662

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APPENDIX

DOCUMENTS FROM RECORD ON APPEAL IN MALKAN V. MUTUA

a. The Law Schools representations to the ABA regarding its

compliance with Standard 405 (c),

b. The Law Schools internal documents demonstrating its policy

and practice of complying with Standard 405(c).

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ORDER OF THE APPELLATE DIVISION WITH NOTICE OF ENTRY

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