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Docket. No.: 12-CV-0236(A)




Rick Ostrove, Esq.

One Old Country Road, Suite 347
Carle Place, New York 11514
(516) 873-9550


BACKGROUND .............................................................................................................................1


STANDARD ON OBJECTIONS ..................................................................................2



COMMITTED PERJURY .............................................................................................2



THAT MUTUA COMMITTED PERJURY................................................................16







On April 14, 2015, Plaintiff Jeffrey Malkan (Malkan) filed a motion for sanctions
(Sanctions Motion) against Defendant Makau Mutua (Mutua) and his counsel, David Sleight
(collectively referred to as Defendants) (Dkt. 70). The gravamen of the Sanctions Motion was
that Mutua perjured himself by denying that the Committee on Clinical Promotion and Renewal
(CCPR) voted to grant Malkan tenure during its April 28, 2006 meeting, and Sleight refused to
address the perjury.
In response to the Sanctions Motion, the Defendants filed a motion for sanctions (CounterMotion) against Plaintiff, as well as Plaintiffs attorney, Fredric (Rick) Ostrove, and Ostroves
firm, Leeds Brown Law, P.C. (collectively referred to as Firm). The Counter-Motion alleges
that the Sanctions Motion was itself frivolous, and that Plaintiff, acting by himself individually,
engaged in other sanctionable conduct. (Dkt. 75).
On December 1, 2015, without oral argument, Magistrate Judge Kenneth Schroeder, Jr.
issued a Report and Recommendation (R&R), denying the Sanctions Motion in its entirety, and
partially granting the Counter-Motion. (Dkt. 97). Judge Schroeder recommended that the Firm
be sanctioned in the amount of $10,000. Judge Schroeder declined to recommend a monetary
sanction against Malkan based on Malkans financial circumstances, and declined to dismiss
Malkans case on procedural grounds. On the same date the R&R was filed, Judge Schroeder
recommended dismissal of Malkans case on the merits. (Dkt. 96).
This brief is submitted in opposition to the R&Rs finding that the Firm should be
sanctioned. To the extent this Court has any doubt that Judge Schroeders recommendation that
the Firm be sanctioned was erroneous, the Firm respectfully requests an opportunity to attend oral


When objections to a Magistrate Judges recommendations are filed, the District Court

must review the matter de novo. Fed. R. Civ. P. 72(b). The District Court may accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate judge. 28
U.S.C. 636(b)(1)(C). Further, the District Court may reconsider any pretrial matter under this
[section] where it has been shown that the magistrates order is clearly erroneous or contrary to
law. 28 U.S.C. 636(b)(1)(A).


As relates to the Firm, the primary issue is whether the Firm engaged in sanctionable

conduct, under Rule 11, 28 U.S.C. 1927, or the Courts inherent sanctioning power. The gravamen
of the Firms alleged sanctionable conduct was its advancement of the argument that Mutua
engaged in perjury and Sleight failed to correct same. The R&R found that it was frivolous for
the Firm to advance those arguments. The R&Rs central finding in this regard was:
As there is no evidence before the court to suggest anything other than differing
recollections of a meeting of tenured faculty on April 28, 2006, there is no basis for the
accusation of perjury against Dean Mutua. Concomitantly, there is no evidence to suggest
that AAG Sleight possesses actual knowledge that Professor Mutua is lying about his
recollection of that meeting.
(Dkt. 97, p. 25). Thus, the Court found that the Firm advanced a frivolous argument, purportedly
because there was no factual or legal basis for the accusations of perjury. (Dkt. 97, p. 34).
An argument is frivolous when: (1) the factual contentions are clearly baseless, or (2) the
claim is based on an indisputably meritless legal theory. McCracken v. R.E. Ginna Nuclear Power
Plant, LLC, 2010 U.S. Dist. LEXIS 31319, *7 (W.D.N.Y. 2010); United States ex. rel. Mikes v.
Straus, 274 F.3d 687 (2d Cir. 2001) (a claim is frivolous when, viewed objectively, it may be said

to have no reasonable chance of success, and present no valid argument to modify present law).
The term frivolous has been defined according to its dictionary definition:
Frivolous is of the same order of magnitude as less than a scintilla. It
is defined in Websters Third New International Dictionary (1967) as of
little weight or importance: having no basis in law or fact: light, slight,
sham, irrelevant, superficial. The Oxford English Dictionary (1971)
defines it as of little or no weight, value or importance; paltry; trumpery;
not worthy of serious attention; having no reasonable ground or
purposeIn pleading: Manifestly insufficient or futile.
Eastway Constr. Corp. v. New York, 637 F. Supp. 558, 565 (E.D.N.Y. 1986).

It was not frivolous to argue that Mutua committed perjury.

The R&Rs conclusion that it was frivolous for Plaintiff to argue Mutua committed perjury
was erroneous because (1) the R&R mischaracterized Plaintiffs argument; (2) even accepting the
mischaracterization, Plaintiffs argument still was not frivolous; and (3) nine other lawyers have
also independently concluded Mutua perjured himself, thus evidencing Plaintiffs argument was
reasonable and non-frivolous.

The R&R mischaracterized Plaintiffs argument that Mutua lied, and

when Plaintiffs argument is properly cast it is not frivolous.

The R&R found that the Firms argument was frivolous by first mischaracterizing
Plaintiffs argument. Magistrate Schroeder characterized Plaintiffs argument as follows:
Essentially, plaintiff argues that because eight non-party witnesses testified
that a vote was held to grant plaintiff a full clinical professorship, Dean
Mutuas testimony before PERB and at his deposition that no such vote was
taken must have been a lie.
(Dkt. 97, pp. 24).
This is a gross oversimplification of Plaintiffs argument. Contradictory witness testimony
was only one among many pieces of evidence supporting Plaintiffs argument. In addition to the
fact that eight unbiased witnesses contradicted Mutuas testimony, the conclusion that Mutua lied

is further supported by the fact that (a) Mutuas testimony evidences that he did not
misremember what occurred; (b) Mutuas version of events is supported by nobody, despite 19
people being in attendance at the meeting; (c) Mutuas version is contradicted by contemporaneous
notes; and (d) Mutua inconsistently testified regarding the significance of the vote. Additionally,
the manner in which Sleight answered the complaint and the interrogatories (discussed below),
further evidences that Mutua intentionally lied.
Whereas there is a theoretical possibility that Mutua misremembered, given the totality of
the circumstances, it is obvious that he intentionally lied. Any reasonable person reading the
Background Facts set forth in our original memorandum of law would be left with the impression
that the lie was intentional. In any event, there is certainly more than a scintilla of evidence that
he lied and it was not frivolous to advance the argument. Magistrate Schroeders R&R is clearly
erroneous in concluding that there is no basis for the accusation of perjury.

Mutuas testimony strongly implies he did not misremember

what occurred at the CCPR meeting and it was therefore not
frivolous to argue it was a lie.

The R&R states there was no evidence that Mutua did not simply misremember what
occurred at the CCPR meeting. However, Mutuas own testimony evidences that Mutua did not
misremember. Mutua repeatedly denies what occurred and swears that he remembers [the vote]
very clearly. (Ex. 1, p. 43). Mutua insists that his version is correct, even in the face of a mountain
of contradictory evidence. His failure to acknowledge the possibility that he is misremembering
strongly indicates that he is lying.
Additionally, as noted by the Magistrate, Mutua testified as follows, I can say that I have
not been in many faculty meetings where emotions ran so high. (R&R, p. 5). A fact is less likely
to be misremembered when the situation is unusual.

Further, Mutua described the vote in such exacting detail that it would be highly unlikely
to be a product of misremembering. (R&R, p. 3-6). Mutua claimed the meeting was very heated
and emotional from its inception, and that faculty members questioned whether a vote to promote
Malkan from Associate Clinical Professor to full Clinical Professor was appropriate, allegedly
because Malkan did not teach in clinics. (Dkt. 72, 5). Mutua testified that after these concerns
were raised, the promotion issue was tabled, and no vote was ever held. (Dkt. 72, 5; R&R, p.
5). Mutua testified that the meeting then focused on whether Malkan was the appropriate person
to lead the program. (Dkt. 72, 5; R&R, p. 5). Mutua testified that he was against Malkans
leadership of the program, and argued that Malkan should be terminated immediately, but that the
faculty voted to recommend Malkan for a one year terminal contract so that Malkan would have
time to look for a job elsewhere and a suitable replacement could be found. (Dkt. 72, 5; R&R,
p. 5). Mutua testified that the faculty then voted to recommend that a committee be formed to
study the program Malkan led, and reconstruct the program from the ground up. (Dkt. 72, 5). 1
Thus, the detail and self-assuredness of Mutuas testimony belies any inference that he may
have misremembered whether a tenure vote occurred, especially since this was a unique situation.
His testimony strongly supports the inference that he invented a story and is sticking to it, likely
because Malkan has been broadcasting to the world his belief that Defendant Mutua intentionally

The above cited facts were part of the record before the Magistrate. Further details to which
Mutua testified include: The meeting was chaired by Sue Mangold because former Dean Olsen
was away, and Mangold opened the meeting by noting they were there to consider Malkans
promotion. (Ex. 1, p. 30). Mutua, Lucinda Finley, James Gardner, and others felt Malkans
initial appointment to the line of Associate Clinical Professor was in error and [it would be a
mistake] to compound that error [by promoting Malkan]. (Ex. 1, p. 31-32). The consensus was
that that Malkan was terrible for the job, and a full scale discussion of the bad shape of the
program was held. (Ex. 1, p. 33-35). After the votes were counted, it was so close that someone
at the meeting questioned whether abstentions should be counted as negative votes. (Ex. 1, p.
39). These details were not previously provided to the Magistrate, but are merely amplifications
of facts that were before the Magistrate.

testified falsely (Dkt. 84, 3). Indeed, even after being shown the mountain of evidence that
contradicts Mutuas version of events, Mutua will not even say there is a possibility that he
misremembered. He still insists he is correct. (Dkt. 74, 3). Accordingly, based on this testimony,
combined with the evidence discussed below, it was not frivolous for Plaintiff to argue that Mutua
committed perjury.

Mutuas version of events is contradicted by eight non-party

witnesses, and supported by nobody.

It was not frivolous for Plaintiff to argue Mutua perjured himself because (a) eight nonparty witnesses all consistently testified in detail about the vote 2; and (b) not one of the eleven
other witness to the event support Mutuas version of events, despite the fact that presumably most
(if not all) of the professors worked under Mutua when his veracity was called into question.
Witness testimony is summarized below.




The outcome [of the vote to promote Malkan] was that he was appointed and, you
know, to the reappointed recommendation for reappointment to full clinical
professor. (Ex. 2, pp. 17, 68).


We then had a vote on [Malkans] candidacy for clinical full professor for an
appointment to promotion to the position of a clinical full professor from his
position as clinical associate professor. That vote I can see I remember at the
time the vote passed by a majority vote and I can see from my contemporaneous
notes that the vote was nine yes, seven no and three abstentions. (Ex. 3, p. 28).


There was a vote in favor of Professor Malkans promotion to clinical professor.

(Ex. 4, p. 9).


The topic of his tenure as a clinical professor was brought up and we voted on
itIt was not unanimous, as I recall, but it was a majority or a significant
percentage was pro, granting Professor Malkan [full clinical professor status].
(Ex. 5, p. 6).


On April 28, 2006, I attended a meeting of the Committee on Clinical Promotion

and Renewal at the Law School. At that meeting, the Committee discussed the
promotion of Jeffrey Malkan from Clinical Associate Professor to Clinical

Lynn Mather was not present for the vote, but testified extensively about post-vote discussions.

Professor. Following the discussion, the Committee voted by secret ballot at that
meeting to recommend that Jeffrey Malkan be promoted to clinical professor.
(Ex. 6 Ghosh Declaration).

On April 28, 2006, I attended a meeting of the Committee on Clinical Promotion

and Renewal at the Law School. At that meeting, the Committee discussed the
promotion of Jeffrey Malkan from Clinical Associate Professor to Clinical
Professor. Following the discussion, the Committee voted by secret ballot at that
meeting to recommend that Jeffrey Malkan be promoted to clinical professor.
(Ex. 6 Konefsky Declaration).


On April 28, 2006, I was unable to attend a meeting of the Committee on Clinical
Promotion and Renewal at the Law School regarding the promotion of Jeff
Malkan to Clinical Full Professor because that day was the last session of my
seminarAs soon as my class was over (in 406 OBrian), I stopped at my office
and then went up the back stairs to see if the faculty meeting was still in progress
on the 5th floor. In the stairwell I ran into my colleague Professor Jim Gardner as
he was coming down the stairs at the conclusion of the meeting. I clearly recall
my conversation with Jim about the meeting. Jim had been against the promotion
of Malkan and had circulated a detailed and forceful letter of opposition just a
day or two before the meeting. Jims letter had surprised me since I thought that
everyone was in favor of Jeff. In the stairwell when I asked Jim what had
happened at the meeting, he was upset. He told me that the Committee had voted
to promote Jeff. He reported that he and Professor Lucinda Finley thought this
was a mistake but they were outvoted. The majority of the faculty supported Jeff
Malkan and voted for his promotion at the meeting. (Ex. 6 Mather Declaration).


On April 28, 2006, I attended a meeting of the Committee on Clinical Promotion

and Renewal at the Law School. At that meeting, the Committee discussed the
promotion of Jeffrey Malkan from Clinical Associate Professor to Clinical
Professor. Following the discussion, the Committee voted by secret ballot at that
meeting to recommend that Jeffrey Malkan be promoted to clinical professor.
(Ex. 6 Marcus Declaration).

This testimony is overwhelmingly consistent. It is supported by other evidence and is not

controverted by anybody, except Mutua (who vividly recalls that these witness version of events
is false). The above testimony unequivocally establishes what happened at the meeting. Mutuas
version is directly contrary. Given this contradiction and Mutuas insistence that his version is
correct, it was not frivolous to argue that the reason that Mutuas testimony was vastly different
was because he lied.


Mutuas version of events is contradicted by contemporaneously

taken notes of the CCPR Meeting.

Avery and Mangold took notes at the CCPR meeting. Averys notes indicate that a vote
on whether to grant Malkan tenure was held, and that the vote was nine yes, seven no, and three
abstentions. (Ex. 3, p.28; Ex. 7). Mangolds notes reflect the same vote count. (Ex. 2, p.18; Ex.8).
Thus, these notes, which were taken contemporaneously with the vote by two different people, and
which are consistent with one another, further evidence that Plaintiffs allegation that Mutua
perjured himself was non-frivolous. Again, Mutua has since seen these notes (and the testimony
about the notes), yet he still maintains his certainty. This constitutes more than a scintilla of
evidence to support Plaintiffs argument that Mutua perjured himself.

Mutua inconsistently testified regarding the significance of the


While Mutua has always maintained that the vote never occurred, Mutuas testimony
regarding the significance of such a vote has been inconsistent. During his deposition, Mutua
claimed the CCPR could submit a recommendation to the dean, but that it was not binding on the
deans decision, and the dean did not need to seek a recommendation before making his decision.
(Ex. 1, p. 95-97). However, Mutua testified at PERB that after the meeting, he believed Malkan
was not going to be given tenure, since the CCPR would have been required to vote on the matter,
and he claimed a vote was not held. (Ex. 9, Vol. 3, p. 291). Thus, Mutua was implying that Dean
Olsens grant of tenure to Malkan was illegitimate because the CCRP did not vote on it. That
Mutua has changed his story about the significance of the vote further bolsters his lack of
truthfulness with respect to the vote, and therefore it was not frivolous for Plaintiff to argue same.


Even accepting the R&Rs mischaracterization of Plaintiffs argument,

that argument still is not frivolous.

Even if the R&Rs mischaracterization of Plaintiffs argument is accepted as true (that is,
the evidence of Mutuas lie is confined to the fact Mutuas testimony directly conflicts with eight
witnesses, whom all testified consistently), it still would not have been frivolous to argue Mutua
committed perjury. The R&R illogically concluded the existence of such a voluminous amount of
contradictory testimony constitutes no evidence before the Court to suggest anything other than
differing recollections. (Dkt. 97, p. 25). This holding is based on the below false syllogism:

Eight witnesses say X

John says Y
John must be misremembering
and it is frivolous to argue that
John intentionally lied.

This logic is clearly erroneous. The R&R found as a matter of law that Y must be a product of
faulty memory and no one can reasonably argue otherwise.
Even if Magistrate Schroeder believes that the falsehood may be due to faulty memory, it
was clearly erroneous to find that it was frivolous to argue otherwise. One of the most common
reasons for a factual dispute is because someone is intentionally lying. That someone has
intentionally lied becomes even more likely when their version of events is contradicted by a
consistent version of events from many other witnesses, in addition to conflicting documentary
evidence. The lie becomes more apparent when the witness refuses to relent in his position, will
not acknowledge that he may be wrong, staunchly maintains his stance after being shown ample
evidence to contradict it and no one else supports his position despite a total of 19 witnesses to the
event. It was not frivolous to argue that the testimony was intentionally false. The R&R viewed
the evidence in a vacuum and failed to consider any context whatsoever.

The R&R should have considered the context, as Magistrate Schroeder understood that this
was not a run-of-the-mill vote. The Magistrate cited Mutuas testimony that he had not been in
many faculty meetings where emotions ran so high. (R&R, p. 5). The R&Rs description of the
events reveals that the Magistrate understood that this was an unusual meeting, which was
described by attendees, including Mutua as long and contentious, heated and rancorous, and
unique. (R&R, 2-6, 11). Whereas it may be more likely that a typical vote could be forgotten,
given the circumstances, it is unlikely that Mutua would have misremembered. While the
Magistrate recounted the unique and heated details of the meeting, the Magistrate then analyzed
the situation in a complete vacuum, ignoring all context.
Nonetheless, even without any context, the basic logical premise upon which the R&R
found the Firms conduct to be frivolous is a flawed syllogism that is clearly erroneous. Thus, it
was not frivolous to argue that Mutua lied.

At least nine other lawyers believe that Mutua lied, evidencing that such
argument is not frivolous.

On August 8, 2014, Mutuas co-defendant, former Vice Dean Charles Ewing (via his
counsel, Randolph Oppenheimer of Damon Morey LLP), filed a motion for a separate trial. (Dkt.
59). Oppenheimer noted that Mutuas version of events was contradicted by documentary
evidence and the testimony of every witness in this case, and argued if this case is tried against
both defendants, the strength of the evidence against Mutua will indelibly stain Ewing because the
jury will improperly impute Mutuas bad acts to Ewing. (Dkt. 59-2, p. 9). Oppenheimer criticized
Sleights 56.1 Statement, saying:
Only Mutua and no one else subscribes to his narrative. By stipulating this sharp
disagreement, Mutuas counsel attempts to finesse the obvious and uncomfortable
truth that not only is there a conflict in the testimony, but that Mutuas version of
events is uncorroborated by either other witnesses or documents. Indeed, the notion


of a sharp disagreement is a conceit since Mutua is the only person with a

different version of events.
(Dkt. 59-2, p. 6) (emphasis added). Oppenheimers brief concludes by noting that a jury will
readily conclude that Mutua ... has twice offered false testimony under oath (Dkt. 59-2, pp.
13-14). If Oppenheimer believed that Mutuas false testimony was due to a faulty memory, he
would not fear an indelible stain on Ewing, nor would he be worried that the jury will [readily]
impute Mutuas bad acts to Ewing. The bad acts to which Oppenheimer refers are Mutuas lies
about the vote. That Oppenheimer came to this conclusion evidences that he believed that Mutua
perjured himself, and that perjury will be readily obvious to a jury. In making this motion,
Oppenheimer thoroughly investigated the falsity of Mutuas testimony, and compiled 99 pages of
documents supporting his belief Mutua lied about the vote. Oppenheimer reviewed discovery and
deposition testimony, and obtained affidavits from eight witnesses that supported his belief that
Mutuas testimony was false and that Mutua had thereby committed bad acts. (Dkt. 59-4). It
was reasonable for Oppenheimer to conclude Mutua intentionally lied, and that such bad acts may
stain Ewing. It was not a frivolous argument when Oppenheimer made it, and was not frivolous
when the Firm made the same argument.
Additionally, on August 19, 2014, eight faculty members filed a complaint against Mutua
with the Fourth Department Attorney Grievance Committee, alleging that Mutua testified falsely
in the PERB hearing and deposition of this case. (Dkt. 74, 11). All eight law professors that
signed the grievance did not believe their grievance was frivolous (i.e. not supported by any
reasonable argument). This further evidences that Plaintiffs allegation that Mutua perjured
himself was non-frivolous. The people closest to the situation believe that Mutuas testimony was
an intentional falsehood. The fact that these eight professors believed it was a lie means that at


least eight other professionals also believed Mutua perjured himself, thus rendering it highly
unlikely for it to be frivolous for this Firm and Oppenheimer to advance that same argument.

It was not frivolous to argue that Mutuas perjury was material.

The R&R held that Plaintiff advanced his argument that Mutua perjured himself regarding
the tenure vote solely for vexatious purposes, stating:
[G]iven that there was never any dispute that Mr. Malkan was promoted to
the position of Clinical Professor, the Court can fathom no reason to fixate
on Professor Mutuas recollection of this meeting other than to harass
Professor Mutua, needlessly increase the costs of this litigation and unduly
burden the court. Neither plaintiff nor his attorney has ever articulated how
plaintiffs claim would be strengthened if Professor Mutuas recollection
aligned with the recollection of the other faculty members present at the
CCPR meeting on April 28, 2006 nor have they articulated how Professor
Mutuas differing recollection compromises plaintiffs claim.
(Dkt. 97, p. 34). As noted by the R&R, in determining what constitutes perjury, courts rely upon
the definition that has gained general acceptance and common understanding under the federal
criminal perjury statute, 18 U.S.C. 1621. (Dkt. 97, citing United States v. Dunnigan, 507 U.S.
87, 94 (1993)). In relevant part, this statute is as follows:
Whoever, in any declaration, certificate, verification, or statement
willfully subscribes as true any material matter which he does not
believe to be trueis guilty of perjury
18 U.S.C. 1621(2). For testimony to be material, it must be capable of influencing the tribunal
on the issue before it.the actual effect of the false testimony is not the determining factor, but
rather its capacity to affect or influence the trial judge in his judicial action on the issue before
him. United States v. Masters, 484 F.2d 1251, 1254 (10th Cir. 1973); see also United States v.
Slutzky, 79 F.2d 504, 506 (3d Cir. 1935). The evidence need not be material to the main issue
and it need not be directed to the primary subject of the investigation. It is material if it is relevant


to any subsidiary issue then under consideration. U.S. v. Percell, 526 F.2d 189, 190 (9th Cir.
1975). There is ample proof that this issue could have affected the outcome of the proceeding.
First, Mutuas testimony that no vote was held regarding Malkans tenure is material,
because it impliedly raises the possibility that Malkan did not acquire a property interest in his
position as a tenured professor, and thus no due process claim could exist. This Court explicitly
held that the policies and practices applicable to the faculty appointment are relevant. Malkan v.
Mutua, 2012 U.S. Dist. LEXIS 143311, *10-12 (W.D.N.Y. 2012). 3
Second, Mutuas motion for summary judgment argued that Malkan was not deprived of
due process because Malkan had available to him multiple avenues to challenge his non-renewal,
including the PERB charge. (Dkt. 57, pp. 5-6). At trial, Mutua would attempt to undercut
Malkans credibility by noting that PERB found against Malkan. 4 Malkan will likely respond by
arguing that the main witness at PERB was Mutua, who lied during the proceeding.
Third, at a bare minimum, the issue is relevant background information that would have
been elicited at trial. This Court thought the information was significant enough to include it in
the Courts decision on the motion to dismiss, which stated:
On April 28, 2006, plaintiff Malkan was promoted by the dean at the time,
R. Nils Olsen, upon the recommendation of the faculty Promotion and
Tenure Committee, to the position of Clinical Professor.

Judge Schroeders summary judgment R&R holds that 8 NYCRR 335.10 (the Regulation)
was dispositive, thus rendering the vote (and every other fact) immaterial. Even if the R&R is
correct, which it is not, this finding was not made until after the Sanctions Motion was filed.
Materiality must be assessed based on the facts known when we made our motion. See United
States v. Percell, 526 F.2d 189 (9th Cir. 1975).

It is easy to envision defense counsels closing statement including words to the effect of:
Malkan filed a grievance and lost, then he went to PERB and lost, then he went to the court of
claims and lost twice, and now hes trying to take another bite at the apple. (See details
described in R&R, p.7, FN 1; see also Dkt. 72, p. 8, FN 5).

Malkan at *3 (emphasis added). This Court would not have included this fact if it was irrelevant,
even if only as background information. At trial, this could have a strong influence on the factfinder, as Mutuas credibility on all other matters might be called into question.
Fourth, it is material to the issue Mutuas likeability and punitive damages. This Court
already held:
allegations of defendant Mututas stonewalling of the plaintiffs various
attempts to seek redress, together [with allegations of broken promises]
support a reasonable inference that defendant Mutua was determined to
resist mandatory Law School faculty consultation and review of plaintiffs
termination in order to dismiss the plaintiff from the faculty no matter what

Malkan at*26. Whether Mutua lied about the vote at PERB and during his deposition speaks
directly to Mutuas determination to see Malkan terminated no matter what. If a jury determined
that Mutua was lying to affect the outcome of the PERB proceeding (and/or undercut Malkans
credibility in that proceeding), that is highly relevant to the issue of punitive damages, as well as
Mutuas credibility generally. Even if the issue did not affect the PERB proceeding, or affect this
proceeding, if the jury felt Mutua lied in an effort to affect the outcome, that could affect the jurys
determination on punitive damages, or any other issue in the case that relies on Mutuas testimony.
It could also affect Mutuas likeability generally, which can have an influence on the outcome.
Fifth, Magistrate Schroeder recommended dismissal of Malkans due process claim based
on his finding that the five year term appointment did not confer a property interest because the
state limits term appointments to three years, which Magistrate Schroeder found dispositive. (Dkt.
96, pp. 7-10). Judge Schroeders finding that the Regulation was dispositive is what allowed him
to conclude the vote was immaterial. However, when this Court ruled on Defendants motion to


dismiss, it explicitly held that the Regulation was not dispositive, and that further discovery was
warranted. 5 This Court stated:
Key issues in both the federal civil rights action and state breach of contract
action will depend upon the construction of plaintiff Malkans employment
contract. The state law reading of the contracts duration will obviously
be a critical factor in assessing the extent of the plaintiffs property interest
in continued employment with the State an essential predicate for this
action but it will not be dispositive.
When considering whether plaintiff Malkans employment contract gave
him a property interest in continuing employment with the State sufficient to
merit due process protection, this Court will look both to the express terms
of the contract, and to the underlying policies and unwritten common
law applicable to the faculty appointment. The Court will assess
evidence of the relevant employment policies and practices of the Law
School and SUNY, including, among other evidence, the plaintiff's
November 16, 2006 contract
There will be witnesses and documentary evidence relevant to the
property interest
Malkan v. Mutua, 2012 U.S. Dist. LEXIS 143311, *10-12 (W.D.N.Y. 2012) (emphasis added;
internal citations omitted). As the underlying policies and unwritten common law applicable to
faculty appointment require that the CCRB vote on whether to recommend a faculty members
appointment, and also require that recommendation to be submitted to the dean (Ex. 1, pp. 95-98;
Ex. 10, pp. 36-37; Ex. 3, pp. 18-19; Ex. 11), whether this occurred (and, by implication, whether
Mutua was lying about it) is material.
Sixth, as discussed above, Ewing and Oppenheimer, felt it was material as evidenced by
their motion for a separate trial. (Dkt. 59). Ewing feared he could not receive a fair trial because

Magistrate Schroeders recommendation to dismiss this case solely based on the Regulation
appears to directly contradict this Courts prior Order. Accordingly, this Court should carefully
scrutinize the R&R for dismissal. Moreover, as there is significant overlap between the Sanctions
Motion and the motion for summary judgment, a heightened level of scrutiny is warranted with
respect to both R&Rs.

a jury would impute Mutuas lies to him. The fact Ewing (via Oppenheimer) filed this motion
further evidences that the vote, and Mutuas lies regarding same, were material.
Finally, Sleight viewed the vote as material, as demonstrated by his fixation on this topic.
When Sleight deposed Malkan, he devoted over 17% 6 of his time to questioning Malkan about the
CCPR meeting. Sleight inquired about where Malkan was during the meeting, what happened at
the meeting, how Malkan learned of the outcome, discussions Malkan had with others regarding
the meeting, and whom Malkan speculated voted for/against him. (Ex. 12, pp. 60-80). Malkans
attorney objected to Sleights questions regarding Malkans speculation, and Sleight argued at
length over the objections and resumed questioning. (Ex. 12, pp. 67-70). During former Dean
Olsens deposition, Sleight asked questions directed at establishing that Olsen did not have
knowledge of the vote because Olsen was not present during the meeting. (Ex. 10, pp. 36-37).
Sleight also questioned Avery and Mangold about the vote. (Ex. 3, pp. 74-8; Ex. 2, pp. 89-96).
Finally, Sleights Rule 56.1 Statement of Undisputed Material Facts mentions the vote. (Dkt. 56,
29). The discovery Sleight took and his identification of this as a disputed material issue shows
that Sleight felt it was material.
In sum, there is ample evidence that the vote was material. More to the point, it was not
frivolous for Plaintiff to argue it was material, as the issue would likely be explored at trial and
could have an influence on the fact finder.


The R&R held that Plaintiffs argument that Sleight knowingly submitted Mutuas perjured

testimony was frivolous, based on its predicate finding that Plaintiffs underlying allegation that

Malkans deposition transcript is 170 pages. 116 pages relate to questions posed by Sleight. 20
pages of the transcript relate to Sleights vote related questions, amounting to 17.24% (Ex. 12).

Mutua perjured himself was frivolous. (Dkt. 97, pp. 25-26, 28) (there is no evidence before
the court to suggest that Dean Mutua testified falsely as to his recollection of events on April 28,
2006, let alone that AAG Sleight possesses actual knowledge that Dean Mutua testified falsely).
As discussed above, a plethora of evidence supports Malkans argument that Mutua perjured
himself, and thus it was not frivolous for Malkan to make this argument. Additionally, it was not
frivolous for Plaintiff to argue that Sleight knew about Mutuas perjury.

Sleights knowledge is assessed using an objective test.

Under the Rules of Professional Conduct (RPC), a lawyers duty to correct a clients
false testimony attaches once the lawyer knows of its falsity. RPC 1.0(k) defines knowledge as
actual knowledge of the fact in question, which may be inferred from the circumstances.
While there is no known precedent interpreting the standard of knowledge set forth in the RPC,
some guidance is provided by authorities decided under the prior rules. In In re Doe, 847 F.2d 57
(2d Cir. 1988), the court articulated the standard of knowledge under former DR 7-102:
[T]he drafters intended disclosure of only that information which the
attorney reasonably knows to be a fact and which, when combined with
other facts in his knowledge, would clearly establish the existence of a fraud
on the tribunal.
[An attorney need not] wait until he has proof beyond a moral certainty that
fraud has been committed. Rather, we simply conclude that he must clearly
know, rather than suspect, that a fraud on the court has been committed
before he brings this knowledge to the court's attention.
Id. at 63 (emphasis added). Thus, the courts use of the term reasonably knows applied an
objective test to whether a lawyer has actual knowledge. 7

The objective portion of the

The R&R notes that in Doe the attorney was found to not have had actual knowledge and that
the Doe court indicated that lawyers cannot be obligated to report when they strongly suspect a
witness lied. Although Doe contains that language, it also propounded the objective test, as does
RPC 3.3 n.8 and Pennie, both of which were ignored by the R&R. Even if the Firm was wrong

knowledge rule is necessary, otherwise everyone would just say they believe their client,
regardless of how unreasonable that belief may be. See RPC 3.3 n.8 (stating although a lawyer
should resolve doubts about the veracity of testimony or other evidence in favor of his client, the
lawyer cannot ignore an obvious falsehood). Likewise, in Patsys Brand, Inc. v. I.O.B. Realty,
Inc., 2002 U.S. Dist. LEXIS 491 (S.D.N.Y. 2002), the court stated:
Rule 11 sanctions are appropriate where the attorney has negligently or
recklessly failed to perform his responsibilities as an officer of the court.
Few responsibilities of an attorney, as an officer of the court, are more
important than the duty to insure that his client does not commit perjury or
obstruct justice. It is, therefore, appropriate to apply an objectively
reasonable standard to determine whether counsel has been negligent or
reckless in this regard.
Id. at 14-14 (internal quotations and citations omitted). While Patsys was vacated in In re Pennie
& Edmonds LLP, 323 F.3d 86 (2d Cir. 2003) 8, in a Rule 11 finding initiated by motion (like the
present case), the objectively reasonable standard remains good law -- Pennie holds:
The mental state applicable to liability for Rule 11 sanctions initiated by
motion is objective unreasonableness, i.e., liability may be imposed if the
lawyers claim to have evidentiary support is not objectively reasonable
That standard is appropriate in circumstances where the lawyer whose
submission is challenged by motion has the opportunity, afforded by the
safe harbor provision, to correct or withdraw the challenged submission.
323 F.3d at 90 (emphasis added). The reason Rule 11 sanctions were vacated in Pennie was
because the sanctions were not initiated by motion, but rather by the court, sua sponte:
We conclude that where, as here, a sua sponte Rule 11 sanction denies a
lawyer the opportunity to withdraw the challenged document pursuant to the
safe harbor provision of Rule 11(c)(1)(A), the appropriate standard is
subjective bad faith. In this case, the District Court accepted the firms
about the objective test or incorrect in its assessment that applying the objective test evidences that
Sleight knew of the perjury, it was not frivolous to advance the argument.

Sleights moving papers criticized the Firm for relying on Patsys without mentioning that it
was partially overturned in Pennie. (Dkt. 75, p. 14). Ironically, the R&R did the same thing.
(R&R, p. 28).

assertion that it acted in subjective good faith. We therefore vacate the

sanction ruling.
Id. at 87. Thus, for purposes of motion-based Rule 11 sanctions, Pennie applied the objective
reasonableness standard.
Further, in NYCLA Committee on Professional Ethics Formal Opinion No. 741 (March 1,
2010) (Ex. 13), the Committee held that when a lawyer learns after the fact that his client lied
about a material issue in a deposition, he is obligated to correct the false testimony or withdraw
the false statement. This opinion cites In re Doe for the actual knowledge standard which
triggers the reporting obligation, noting that actual knowledge may be inferred
circumstantially, and a lawyer cannot rely on his clients statements if it is unreasonable to do so.
Thus, this opinion confirms the objectively reasonable standard.

Accordingly, objectively

reasonable is the standard. At least, it was not frivolous to argue this is the proper standard. 9

Applying the objectively reasonable standard, it was not frivolous to argue

that Sleight knew about Mutuas lies.

Under the objectively reasonable standard, it was not frivolous for Plaintiff to argue Sleight
knew that Mutua lied. Given the overwhelming evidence, it is not frivolous to argue that a
reasonable person in Sleights shoes would find Mutuas testimony to be an intentional falsehood.
Again, eight tenured professors believe it was a lie and filed a grievance about same. Oppenheimer

The Counter-Motion states there is very little case law that discusses the concept of
knowledge in the context of Rule 11 and/or RPC 3.3. (Dkt. 75, p. 4). This lack of case law
precludes a finding that Plaintiffs argument was frivolous. Hooda v. W.C.A. Serv. Corp., 2013
U.S. Dist. LEXIS 71809, *29 (W.D.N.Y. 2013) (plaintiffs claims were not frivolous and his
litigation conduct was not unreasonable because there was very little case law interpreting the
statute); International Bhd. of Teamsters, Local 631 v. Silver State Disposal Serv., 109 F.3d
1409, 1412 (9th Cir. 1997) (an appeal is less likely to be considered frivolous when there is
very little case law directly apposite); C.W. v. Capistrano Unified Sch. Dist., 784 F.3d 1237,
1245 (9th Cir. 2015) (noting when there is very little case law on point and a claim raises a
novel question, the claim is much less likely to be considered frivolous).

believed the same. It is not frivolous to argue that it is objectively reasonable to believe that this
was an intentional lie.
Further, there is evidence to suggest that Sleight actually knew this to be a lie at the time
he originally filed his Answer. The Complaint was filed on March 23, 2012, and the Answer was
not filed until October 23, 2012; thus, Sleight had seven months to investigate. (Dkt. 1; Dkt. 24).
During that time, Sleight read Mutuas PERB testimony. (Dkt. 72. 21). Thus, when Sleight
answered the complaint, he should have denied the allegation. Instead, Sleight denied knowledge
or information sufficient to form a belief. (Dkt. 1, 11; Dkt. 24, 11). Sleight explains this by
asserting that certain words in the allegation were vague and he did not know all the information.
This would not have precluded him from, denying that there was any vote, and responding
otherwise to the remaining allegations. 10

Regardless, Sleights denial of knowledge or

information sufficient to form a belief may further evidence that he did not believe Mutuas PERB
testimony about the vote. On this basis alone, it was not frivolous to believe that Sleight knew it
to be false. 11
Further, during discovery, in response to Interrogatory #22, Counsel was asked for the
names of witnesses who can corroborate Mutuas testimony about the vote. (Ex. 14). Rather than


Sleight is well aware of his ability to deny part of an allegation, while denying knowledge or
information as to the remaining allegations in a given paragraph. (See, e.g., Answer, Dkt 24, 67). The Firm did not previously raise this point before the Magistrate as we did not think to look
at the Answer regarding this issue.

The R&R found that Sleights failure to amend was not sanctionable under Rule 11. Even if it
is not sanctionable under Rule 11, it was not frivolous for the Firm to advance that argument, and
such sanctions are available elsewhere (See argument detailed in, Dkt. 89, pp. 12-14). It is
unclear whether the R&Rs sanctions against the firm is based on this issue, but to the extent the
Court considers this issue, we explained our position and incorporate said arguments by
reference. (Id).

respond, Counsel asserted numerous frivolous objections, including a claim that this information
was irrelevant, and not reasonably calculated to lead to the discovery of admissible evidence.
(Id.). If Sleight contacted other professors and they refused to support Mutua on this point, or
worse, confirmed that Mutua lied, 12 that would have added further reason for Sleight not to believe
Mutua (not that additional evidence is needed). The fact that Sleight avoided addressing this issue
in both the Answer and the Interrogatory Responses bolsters the belief that he thought Mutua lied,
that Mutua did lie, and that a reasonable person in Sleights situation would objectively believe it
was a lie. At a minimum, those facts constitute a scintilla of evidence that Sleight had
knowledge, and it was not frivolous for the Firm to argue that he knew based on these facts, as
well as the fact it is not frivolous to believe a reasonable person fairly assessing the entirety of the
circumstances would believe that the testimony was intentionally false.
Given the staggering amount of evidence disputing the veracity of Mutuas statements, and
the fact that Mutua knows of this evidence and unwaveringly insists that he remembers very
clearly, it is not frivolous to argue that a reasonable person would conclude that Mutuas
statements were an intentionally false. See RPC 3.3 n.8 (stating although a lawyer should resolve
doubts about the veracity of testimony or other evidence in favor of his client, the lawyer cannot
ignore an obvious falsehood).

Sleight argues that Mutua misremembered.

But, it is not

objectively reasonable for him to so believe. More to the point, it is not frivolous for the Firm to
argue so, thereby presenting the issue to the judgment of the Court. In sum, it was not frivolous


In response to Interrogatory #1, Mutua identified 14 individuals who possessed knowledge of

Plaintiffs allegations as described in the Complaint. (Id.). It must be assumed Sleight
questioned these witnesses and likely others, and was aware that they did not support Mutuas
version. Sleights declarations did not indicate whether he spoke to these witnesses (Dkt. 72;
Dkt. 84), but it is impossible to believe that as a zealous advocate, he (or his client) did not speak
to some, if not all, of the witnesses.

for Plaintiff to argue Sleight knew about Mutuas lie under the objectively reasonable standard of


The R&R erroneously held that Defendants complied with Rule 11s safe harbor

requirement, stating as follows:

Mr. Ostrove argues that defendant failed to follow the appropriate
procedure for filing a Rule 11 motion because he failed to provide him or
plaintiff with a copy of his memorandum of law or declaration in support of
the motion before filing it and the motion did not describe the specific
conduct that allegedly violated Rule11.[However], [t]he law is clear that
Rule 11(c)(2) requires only the service of a motion; it does not require the
service of a memorandum of law or affidavits. Star Mark Mgmt. v. Koon
Chun Hing Kee Soy & Sauce, 682 F.3d 170,176 (2d. Cir. 2012). So long
as the party subject to the sanctions motion receives notice of the specific
conduct that allegedly violated Rule 11(b), the requirements of Rule 11(c)
are satisfied.
(Dkt. 97, pp. 31-32). That is an exceptionally narrow view of the argument we advanced to the
Magistrate. We agree that we had notice that Sleight intended to move for sanctions regarding our
argument that Sleight knew of Mutuas perjury. However, we did not have notice of the vast
majority of the other arguments that Sleight advanced in his motion. Sleights June 19, 2015, safe
harbor letter, stated:
Enclosed please find Defendants Motion for Sanctions against Fredric D.
Ostrove, Leeds Brown Law, P.C. and Jeffrey D. Malkan. The Motion will
be filed after the expiration of the safe harbor provision provided under Rule
11(C)(2) of the Federal Rules of Civil Procedure, unless you withdraw
Plaintiffs Motion for Sanctions. The basis for the portion of the Motion
seeking sanctions pursuant to Rule 11 is described in prior
correspondence sent to you on March 12, 2015 and June 3, 2015 by
Assistant Attorney General David Sleight. For your convenience, a copy
of this correspondence is enclosed.
(Ex. 15; Dkt. 90, 21). While the letter indicated that the Motion for Sanctions was enclosed,
only the Notice of Motion was enclosed. (Dkt. 90, 19-21). The Notice of Motion did not

describe the specific conduct that allegedly violates Rule 11(b). (Ex. 15). Instead, the safe harbor
letter said that the basis for the motion was set forth in Sleights letters, but neither of the letters,
nor any prior communication identified many of the issues Defendant raised in the CounterMotion. (Dkt. 90, 5-21, 56-60). Thus, Defendant did not provide proper notice of most of the
arguments in the Counter-Motion. (Id.). 13 The R&R relies on Star Mark to establish that the notice
need not include a formal fully supported motion. However, Star Mark rejected that argument
because in Star Mark, the notice of motion gave [counsel] notice of the alleged sanctionable
conduct, and [counsel] thus had the opportunity to determine whether there was a non-frivolous
basis for the pleading. Id. at 176-77. Thus, in Star Mark, the court held that the plaintiff complied
with the safe harbor requirement because the notice of motion provided notice of the specific
conduct that allegedly violated Rule 11(b). Here, this is not the case, except with regard to Mutuas
perjury and Sleights knowledge thereof. That said, it appears that the R&R is based exclusively
on those grounds, but the Court used Sleights other arguments to support its findings of bad faith,
which it should not have done given the lack of notice.


Bad faith means more than mere negligence; it involves a dishonest purpose. Exantus v.

Metro. Prop. & Cas. Ins. Co, 582 F. Supp. 2d 239 (D. Conn. 2008); see also Turner v. Temptu Inc.,
2013 U.S. Dist. LEXIS 114298 (S.D.N.Y. 2013)(negligence or recklessness insufficient). 14


The R&R did not address Defendants argument that they provided notice in their opposition to
the Sanctions Motion. However, the Firm had no notice that the arguments raised therein since
the safe harbor letter specifically said that the motion was based on the arguments in Sleights
March 12 and June 3 letters. (Ex. 15). Moreover, the Firm had no reason to read the opposition
papers until after the Counter-Motion was filed. (Dkt. 90, 8-34).

Metro and Turner were not cited in the Firms prior memoranda. As noted in the
accompanying declaration, at the time we drafted our opposition, we focused on the arguments
addressed in Sleights papers. (Ostrove Dec., 7, 12, 14, 16). Thus, the case law regarding bad

Without identifying the legal standard the R&R applied, it found bad faith for two reasons.
First, the R&R states, the same factors which establish the frivolousness of the plaintiffs motion
for sanctions also demonstrate bad faith. (R&R, p. 35). For the reasons set forth above and in our
opposition papers, the motion was not frivolous. Moreover, a finding of bad faith requires more
than frivolousness, otherwise there is no meaning to the additional requirement of bad faith.
Regardless, our arguments were not brought in bad faith. As explained in the Ostrove declaration,
referencing Ostroves emails and other communications with Sleight, the Firm never took this
lightly and multiple attorneys in the office were consulted before the final decision to proceed was
made. (Dkt. 90, 4-17). The Firm provided Sleight with multiple non-hostile, well-reasoned
and researched warnings, advising Sleight that we preferred not to move for sanctions and wanted
to resolve the matter informally. (See, e.g., R&R, pp. 13-15; Dkt. 90, 4-10). The firm held a
genuine belief that it was not frivolous to argue that Mutua intentionally lied and that it is
objectively unreasonable for Sleight to think otherwise.
Second, the only other support the R&R found for its finding that the Firm acted in bad
faith was various citing errors. (Dkt. 97, p. 35). Each of the citing errors, were explained in great
detail in the Ostrove Declaration (Dkt. 90, pp. 5-6, FN 4-6) and our prior memorandum of law,
which we incorporate herein by reference (Dkt. 89, pp. 20-24). But, the errors contained in the
Sanctions Motion were inadvertent, and the Firm would have corrected them had they been
brought to the Firms attention during the safe harbor period or before. (Dkt. 90, pp. 5-6). While
safe harbor applies only to sanctions under Rule 11, the fact the Firm did not have prior notice
precludes a finding that the Firm made the errors in bad faith, especially given that when the Firm

faith that was previously cited tracked Sleights arguments. Metro and Turner are similar to
those cases, but are more relevant to the issue of bad faith as set forth in the R&R.

realized the errors, it acknowledged same in a forthright and genuine manner. (Dkt. 90, pp. 5-6,
FN 4-6; Dkt. 89, p. 21).
Third, it would have been appropriate for Magistrate Schroeder to provide the Firm an
opportunity to address some of the R&Rs concerns in person at oral argument, if he was inclined
to find bad faith and/or issue sanctions. The genuineness of an action is often hard to ascertain
based exclusively on papers and we request that if this Court is inclined to issue sanctions, that the
Firm be given an opportunity to stand before the Court so that the demeanor of counsel can be
judged by the Court and so that counsel has an opportunity to address any issues that may have
been overlooked.
Finally, the Firm notes that the R&Rs discusses many of Malkans communications. No
one contends that the Firm endorsed any such communications, nor has anyone identified any legal
authority to indicate that the Firm had a duty to stop same, nor is there any power that the Firm
had to stop same if the Firm was inclined to do so. Indeed, Sleight affirmed, that it has been clear
to me for some time now that Mr. Ostrove and Mr. Arbeit had little control over Plaintiffs
conduct. (Dkt 84, 55). 15 While not specifically saying so, the tenor of the R&R appears to
attribute some of Malkans conduct to the Firm. We request that the Court evaluate the Firms
conduct independently. In sum, even if the Court disagrees with some of the Firms arguments, it
was not frivolous to advance same. Indeed, there was more than a scintilla of evidence to support
our arguments.


Sleight also raised in that paragraph the $25,000 payment (and the R&R cited same at p. 14,
FN 4), but that was incorrect and the Firm offered the Magistrate the opportunity to inspect all
bills in camera. (Dkt 90, 38-48). The Firm also squarely addressed the statement that the
motion was against the Firms wishes. (Dkt 90, 49-51).

Dated: Carle Place, New York

December 15, 2015
One Old Country Road, Suite 347
Carle Place, New York 11514
(516) 873-9550




Pursuant to W.D.N.Y. Local R. 72(c), I certify that the objections contained herein do not
raise new legal/factual arguments, except as noted herein and in the Declaration of Rick Ostrove,
dated December 15, 2015. In each such instance, we have explained why the issue was not
presented to the Magistrate Judge.

Dated: Carle Place, New York

December 15, 2015
One Old Country Road, Suite 347
Carle Place, New York 11514
(516) 873-9550



I certify that on December 15, 2015, I electronically filed the foregoing with the Clerk of the
District Court using its CM/ECF system. Additionally, on December 15, 2015, I caused to be
emailed a copy of the foregoing to the following non-CM/ECF participants: Jeffrey Malkan.

Dated: Carle Place, New York

December 15, 2015
One Old Country Road, Suite 347
Carle Place, New York 11514
(516) 873-9550