INDEX NO.

812536/2015

FILED: ERIE COUNTY CLERK 11/26/2015 12:05 PM

NYSCEF DOC. NO. 14

RECEIVED NYSCEF: 11/26/2015

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ERIE
-----------------------------------------------------------------x
JEFFREY MALKAN,
PLAINTIFFS AFFIDAVIT
IN OPPOSITION TO MOTION
TO DISMISS

Plaintiff,
-against
JAMES A. GARDNER,

Index No: 812536/2015

Defendant.
----------------------------------------------------------------x
JEFFREY MALKAN, under penalty of perjury, declares and states:
I am the Plaintiff in this action, and I make the following affidavit, based on my
personal knowledge, in opposition to the Defendants motion to dismiss the Complaint.
The Allegations of the Complaint
1. On a motion to dismiss, the only issue before the Court is whether the
defendant can be excused from answering the complaint on the ground that the facts as
alleged in the Complaint do not support a cause of action. All of the facts as alleged in
this Complaint must be regarded as true for the purposes of this motion. It is difficult to
imagine a more classic and more outrageous case of defamation and one that is more
clearly motivated by an attempt to destroy the reputation of an innocent person.
2. The Complaint alleges that the Interim Dean of the SUNY Buffalo Law
School, James A. Gardner, or persons acting with his knowledge or on his behalf, on
October 2, 2015, filed a false incident report with the State University Police stating that I
represented an imminent danger to the Law School community. It alleges that this was
the second false report filed by Interim Dean Gardner against me in the past year.

3. The Complaint further alleges that the State University Police responded to
Interim Dean Gardners report with an on-sight arrest warrant that was disseminated
through law enforcement networks with consequences for my safety and security that are,
as yet, unknown to me.
4. Interim Dean Gardner then created his own e-mail wanted poster with two
attached digital photographs, warning the Law School faculty and staff that it should
report any sighting of me in the vicinity of the campus to law enforcement authorities so
that I may be apprehended and charged with criminal trespass. He was, in effect,
deputizing the faculty to find and apprehend me.
5. The State University Police had already investigated Interim Dean Gardners
false alarm in March of this year and found that I was no threat to anyone.
6. On this second occasion, the State University Police again investigated and
found that Interim Dean Gardners alarm, again, was false. The University
administration nevertheless approved the issuance of a persona non gratis letter banning
me from any SUNY Buffalo property.
7. The Complaint, finally, alleges that the persona non gratis letter issued by the
Office of the President of SUNY Buffalo, Satish K. Tripathi, was obtained on the basis of
a report made by Interim Dean Gardner, falsely, maliciously, in furtherance of a longstanding personal vendetta.
8. Interim Dean Gardner leveraged his own lies and slanders, which he has
repeated time and again over the past seven and a half years, into the false report of a
purported threat to public safety and then publicized his lies and slanders back to the

faculty in order to give substance to a falsehood. The fact that his lies and slanders have
now been realized in police action, however, does not make them any less false and
defamatory.
Former-Dean Makau W. Mutuas perjury and its cover-up
9. The Attorney General points to my ongoing litigation against former-Dean
Makau W. Mutua and SUNY Buffalo as if my struggle to get a fair hearing in the face of
perjury and obstruction of justice negates my credibility and vindicates Interim Dean
Gardners lies and slanders.
10. The Attorney General fails to mention that he knows that former-Dean Mutua
has subverted the judicial process with perjury by lying under oath five times since
March 31, 2015 in both state and federal courts and that eleven members of the senior
faculty have brought a petition to the Grievance Committee of the Appellate Division of
the Supreme Court asking for sanctions and disbarment based on his violations of state
and federal criminal law as well as the Rules of Professional Conduct.
11. The Attorney General knows about the perjury and yet, in defiance of both
Public Officers Law 17-19 and the New York Rules of Professional Conduct, he
continues heedlessly to defend the criminality of the former-Dean of the Law School.
12. Former-Dean Mutua has now lied (a) in two consecutive days of testimony to
a state administrative agency, (b) in sworn deposition testimony taken under the auspices
of the federal district court, (c) in a sworn declaration in federal district court on the Rule
11 motion, and (d) in a sworn statement submitted to defend himself to the Grievance
Committee. He has carried his lies and slanders forward for over five years, maintaining

his perjury in the face of unanimous testimony and contemporaneous documentary

evidence provided, again, by the most senior and respected members of the Law School
faculty. See Exhibit A.
13. The Attorney General of the State of New York nevertheless maintains that
the conclusive evidence of his clients perjury is none of his concern.
14. If the Dean of the Law School makes a false statement, under oath, on
prepared testimony, about a permanent appointment to the voting faculty, he is telling a
lie. If the Attorney General and the Interim Dean of the Law School say that they do not
have actual knowledge after handling this case for over three years that the Dean's false
testimony is false, then they are lying too.
The culpability of President Tripathi, Interim Dean Gardner, and the Attorney General
15. President Tripathi filed a false declaration to the federal district court on
December 12, 2013, stating that he could not be compelled to testify about Makau W.
Mutuas perjury because he knew nothing of my allegations, even though his Office had
received a dozen communications from me over the previous two years.
16. On September 22, 2014, he finally had to remove Makau W. Mutua from the
Deans Office in mid-year, which was reported on the front page of the Buffalo News on
September 27, 2014, but instead of investigating my evidence-backed allegations of
criminal misconduct, he rewarded former-Dean Mutua with an eighteen-month
sabbatical.
17. President Satish K. Tripathi knew that reports of the perjury were due to
appear within the next five days on the front pages of the Buffalo News and the UB

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

journalists. Every person in Buffalo who read the Sunday newspaper on September 27,
2014, now knew about the crisis in the Law School.
Former-Dean Mutuas replacement by Interim Dean Gardner
18. After the September 22 announcement that Makau W. Mutua was stepping
down from the deanship, President Tripathi still refused to investigate or even
acknowledge these evidence-backed allegations as would be mandatory at any reputable
university. Instead Makau W. Mutua remained in the Dean's Office until December 19,
2014. He spent the balance of the semester indulging in travel to foreign lands, including
Copenhagen, Denmark, Rome, Italy, Nairobi, Kenya, and Prague, Czech Republic.
19. On December 20, 2014, after keeping his deliberations secret, President
Tripathi appointed another Interim Dean of the Law School, James A. Gardner, again
without consulting the faculty. The Law School has not been allowed to appoint its own
Dean since it nominated Professor R. Nils Olsen, Jr. in 1998. James A. Gardner, for
reasons that should be obvious, is the very last person who could be entrusted with
restoring the integrity of the Dean's Office.
20. Since Makau W. Mutua left the Dean's Office, he has not returned to his
duties on the faculty, contrary to Interim Dean Gardner claim to the UB Spectrum in his
interview of April 21, 2015 that he was still teaching in the Law School,1 but rather, as
stated, has been granted an unprecedented eighteen-month "sabbatical" at his full state
salary ($300,000 per year with unspecified additional benefits provided by the University

In that same interview, Interim Dean Gardner adopted the all-purpose derogatory phrase
endorsed by Mr. Boyd that I am nothing but a disgruntled former employee.
5

and the UB Foundation). His wife, also a tenured law professor, has been awarded a
concurrent sabbatical at her annual base salary of $150,000. According to his Twitter
account, Mr. and Mrs. Mutua are festively enjoying this Thanksgiving week in Rome,
Italy. Messrs. Boyd and Sleight think that my indignation over this diversion of the Law
Schools resources from their intended educational purposes, shared by everyone I know
on the Law School faculty, is a reason to mock me and question my sanity.
21. The University still refuses to allow an internal investigation of the evidencebacked allegations of his perjury and obstruction of justice. This is contrary to the
practice of any reputable academic institution. The Attorney General's refusal to
investigate the evidence-backed allegations by the Law School faculty against formerDean Mutua has escalated into a Rule 11 cross-motion against me for "vexing and
harassing" him with my attempts to report the crime.
The Attorney Generals complicity in the defamation
22. My Rule 11 motion for perjury and obstruction of justice is currently pending
in the federal district court against former-Dean Mutua and AAG David J. Sleight. AAG
Christopher Boyd joined Mr. Sleight as co-counsel during the Rule 11 motion and, at this
point, he is equally culpable for actively and knowingly concealing former-Dean Mutuas
crimes against the judicial process from the federal district court while attempting to
obtain summary judgment on a record tainted by perjury and fraud.
23. The Attorney General is not acting in this case as an impartial representative
of a state official who is defending a civil lawsuit. He is defending his own unethical and
illegal conduct by defaming the accuser. Any professional discipline that befalls AAG
Sleight will most certainly befall AAG Boyd as well.
6

24. The Court should also be aware that Interim Dean Gardners defamation of
me, in the form of his wanted poster, was conceived in collaboration with the Office of
the Attorney General. In his Declaration of October 2, 2015, Mr. Sleight informed the
federal district court that the Attorney General had issued an office-wide warning
concerning me.
Finally, I would like to alert the Court to the fact that Plaintiff continues to send emails to my client, the entire Law School faculty and SUNY counsel. These emails range from mocking and harassing to disturbing. Particularly disturbing is
the e-mail Plaintiff sent to the entire Law School faculty, copied to me and Mr.
Boyd, and SUNY counsel, yesterday evening. In it, he references the recent mass
shooting at a community college in Oregon. This e-mail was disturbing enough to
my superiors, who viewed it as a veiled threat of violence, that they have now
issued an office-wide warning concerning Mr. Malkan. This is the second time
that Mr. Malkan has sent an e-mail to the entire Law School faculty referencing a
mass shooting at a school.
Declaration of AAG David J. Sleight, Esq., October 2, 2015, 7 (emphasis added).
25. This sworn statement reveals the origin of Interim Dean Gardners
defamation. The defamation was a legal tactic that he conceived with the advice of
Messrs. Boyd and Sleight to defend their own complicity in former-Dean Mutuas
criminal misconduct by further defaming the victim of the prior defamation who has
submitted conclusive proof of the ensuing crime and its cover-up to the federal district
court. See Ex. A. This crime and its cover-up, including this defamation, emanates from
the Attorney General of New York, the President of SUNY Buffalo, and the former- and
Interim Deans of SUNY Buffalo Law School. For me, this case is a nightmare of
defamation and perjury, but it does not concern me alone. It must also be a matter of the
gravest concern to the faculty of the SUNY Buffalo Law School and the legal community
of western New York.

The false incident report to the State University Police

26. The fact as alleged in the Complaint is that the University contrary to the
conclusion of the police officer who investigated the false incident report decided to
deem me a threat to public safety.
27. I told the police officer with whom I spoke on the phone on October 2 that I
was asking for a name-clearing and apology for the defamations that had been inflicted
upon me by Interim Dean Gardner and former-Dean Mutua. These slanders were
traumatizing me every time another mass shooting occurred on a campus in the United
States. What I told the officer, in fact, is was exactly what my October 1 e-mail to the
faculty said. The officer responded that he did not read my e-mail to the faculty as a
threat to anyone, but that he had been ordered by his supervisors to contact me anyway.
28. This decision to notify the faculty and staff of the Law School about my nonthreat did not come from the State University Police. It came from Interim Dean Gardner
on his own initiative. The persona non gratis letter, itself maliciously and fraudulently
obtained from the University by Interim Dean Gardner, then became the occasion for him
to publicize his own defamation through the vehicle of his e-mailed wanted poster.2
29. The Complaint which again is true for the purposes of this Motion alleges
that Interim Dean Gardners defamations and their publication to the faculty, followed by

The Attorney General attaches a copy of the Universitys Workplace Safety Policy to the
Affidavit of Mr. Boyd, presumably to show that the persona non gratis letter was lawful per se.
He seems to think that a policy adopted by the University exempts the University from the Penal
Law provision - cited in the Complaint - pertaining to false incident reports. The State
University Police are licensed law enforcement agents of New York State and cannot proceed
contrary to the N.Y. Penal Law to harass and defame an innocent person at the behest of
corrupt state officials on the basis of false information, absurdly citing the spurious authority
afforded by the University to itself.
8

their foreseeable publication by the campus and regional media, were made for the
purpose of gaining an advantage in a litigation that is now at a crucial stage in federal
district court.
The e-mail wanted poster
30. There is no other way of reading Interim Dean Gardners message then as a
defamation of the worst kind, done for the worst of motives. It is self-evident that no one
who was not criminally insane could possibly contemplate an attack on innocent people
in an outburst of violence, no matter how badly provoked. The very thought is sickening
to any sane and mentally competent human being. Upon being accused of contemplating
and planning such a deranged act, any reasonable person would be stricken by shock and
severe emotional distress.
31. The Attorney General argues that the express words of the defamation, quoted
in the Complaint, are not defamatory because they are true. It is absurd to say that
broadcasting ones own defamation in the form of a wanted poster is a factually
accurate restatement of the gist of the defamation and therefore entitles the defamer to a
defense of truth. The message was plainly intended as an alarm to its recipients based on
an imminent threat against the Law School community. There was no reason to
announce the fraudulently obtained persona non gratis letter to the Law School
community except to publish the defamation. There is actual malice written all over this
sequence of events.
32. The Complaint alleges and documents that this defamation was the
culmination of a history of libels and slanders that Interim Dean Gardner has been
circulating behind my back since February of 2008. Those prior libels and slanders were
9

inaccessible to me at the times they were made. In fact, as Exhibit A to the Complaint
demonstrates, then-Vice Dean Gardner signed a request that his defamatory statement of
February 25, 2008 not be released to me before being placed in my personnel file. At the
time, he was sitting in the Deans Office, together with Makau W. Mutua, with
supervisory authority over me.
33. In no reputable enterprise would a supervisor be permitted to place a
potentially defamatory statement about the mental health of an employee into his
employment record without allowing the employee to respond to it. Interim Dean
Gardner knew at the time he was perpetrating a libelous act. I only had the opportunity to
read this libel when it was disclosed to me by the University in litigation. This prior
defamation, and its repetition over and over again during the past seven and a half years,
establishes his malicious intention in the culminating defamation of October 5, 2015.
The background of former-Dean Mutuas defamations
34. I explained in my Declaration to the federal district court, dated July 22,
2015, 32-38 (provided by Mr. Boyd to this Court), the background of former-Dean
Mutuas defamations, in the context of the first false police report:
32. Mr. Sleights worst offense on this cross-motion has been to repeat his clients
slander that I am a potential mass-murderer. See Sleight Dec., 14, Document 83.
This was former-Dean Mutuas original statement of the defamation at the PERB
Hearing of March 31, 2010, which he has repeated at every opportunity since.
Q. And I would direct your attention next to the
date of March 25th, 2008. Do you remember attending
a meeting of the APPC committee on that date, where
Mr. Malkan was present?
A. I called the meeting as the chair of that
committee and I attended the meeting to perform my
duties as the chair of that committee.
10

Q. And was the discussion of the research and

writing program, or your changes to it, on the
agenda for that day?
A. No. The agenda did not include a discussion of
the research and writing program.
Q. And Mr. Malkan was in attendance at that meeting?
A. Mr. Malkan was in attendance at the meeting,
because he had been a member, he had been a member
up to that point of that committee.
Q. And did he direct any comments to you and the
other attendees regarding his removal as director?
A. You know, just as we were sitting down to the
meeting and as I was calling the meeting to order,
to read out the first item on the agenda, Mr. Jeff
Malkan, you know, exploded in an outburst in which,
you know, shaking his hand at me and essentially
just trembling. He shouted at the top of his voice
that, you know, I will not get away with this, that
he is not the kind of a person that I should mess
with and that I was going to get what was coming to
me. It was -- it was such a perplexing moment, you
know, in the history of the law school. I had never
been at a meeting in which a faculty member had
behaved like that to another faculty member, much
less to the dean of the law school. Other faculty
members at the meeting simply buried their heads in
their hands or tried to look down at the floor to
avoid direct eye contact. I think all of us were
very embarrassed. All of this time Mr. Jeff Malkan
was shaking his fingers, his hand at me and
threatening me, you know, with consequences. At that
point, I recollected myself and as calmly as I
could, I told him that I was not trying to get away
with anything and that this particular matter that
he was raising was not a part -- was not on the
agenda of the meeting, and that he should calm down
and allow us to continue with the business at hand.
He said he would not allow us to continue with the
business at hand, continued to shake his -- point
his fingers at me, and at that point I thought that
the possibility -- that the distinct possibility did
exist that he would go postal on me. He behaved as
though he was capable of doing me physical harm, and
11

I must confess that although I'm not a shrinking

violet, I was afraid for my safety.
PERB Transcript, March 31, 2010, at 205-206 (emphasis added).
33. Mr. Sleight delivered his slander in the following context. Interim Dean James A.
Gardner, President Tripathi's chosen successor to former-Dean Mutua, filed a report
with the State University police stating that I was a potential threat to public safety.
From: colton@buffalo.edu
To: jeffrey.malkan@outlook.com
Subject: Please contact me.
Date: Sun, 8 Mar 2015 15:50:46 +0000
Hello Mr. Malkan,
Id appreciate it if you could contact me at your earliest convenience. Thank
you,

Investigator Wayne Colton New York State University Police Criminal

Investigation Division University at Buffalo; Bissell Hall Buffalo, New York 142604900 Tel:(716)645-2227 Fax:(716)645-3758 email: colton@buffalo.edu

I told the police officer who contacted me at my home (now in eastern Long Island)
that this was an attempt by the Deans Office to stop me from communicating with
the faculty about the crisis in the Law School. I said he should read the articles about
my case in the UB Spectrum and the Buffalo News, which, presumably he did. He
was being manipulated by Interim Dean Gardner to harass and intimidate me. That is
why "[n]othing came of the incident," except more proof of what is wrong with
SUNY Buffalo Law School.
34. Former-Dean Mutua, testifying at his deposition in this case, repeated that it was
only a matter of time before I went postal. See Malkan Dec., July 21, 2015, at 92,
Doc. 82. His purpose, once again, was to stigmatize me with the specter of oncampus violence. Mr. Sleight knows that his client made similar slanders in this case
against other faculty members who have challenged him, saying that they trembled
with rage, threatened dire consequences, etc. This is a standard maneuver in the
Makau W. Mutua playbook, but it is unconscionable that the Attorney General of the
State of New York is carrying it forward in order to gain an advantage in this Court.
35. One of the elements of defamation is publication. The slander has already been
made public by the defamer. The person who is defamed can either keep silent in the
hope that everyone will forget about it or challenge the defamation head-on. No one
was going to forget about former-Dean Mutua's ongoing and continuous slander that
he believed I might be a public safety hazard.
I do recall in one of those scheduled meetings with
Jim Newton, him asking me -- telling me that Jeff
Malkan wanted to have a face-to-face meeting with
me, at which point, you know, I responded to him,
12

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

I could not contemplate meeting with Jeff Malkan. In
fact, I had thought of a possibility of raising the
issue of his presence in the building with the
university police, because I felt that it was a
threat to some of us in the building.
PERB Transcript, March 31, 2010, at 208.
36. On March 31 and April 1, 2010, again, he testified to this slander in his role as the
Dean of the Law School. The Hearing Officer referred to the slander in his written
opinion, which makes it accessible to anyone who puts my name into a Westlaw or
Lexis search.
37. I have had to deal with it directly and without beginning yet another lawsuit,
which is beyond my means, and which surely would be held up by the Attorney
General as yet another unreasonable multiplication of the proceedings. See
Memorandum of Law, July 23, 2015, Doc. 83-1, at 7 (citing 28 U.S.C. 1927). (The
Attorney General fails to mention that I was required by federal law to explore every
post-deprivation legal option in order to establish that I was harmed by former-Dean
Mutua's denial of my pre-deprivation due process rights.) In addition, the statute of
limitations is one-year and defamations made in court testimony are privileged.

38. In my e-mail message to the faculty, I pointed out that six weeks before
former-Dean Mutua's PERB testimony, on February 12, 2010, a mass murder
occurred in a faculty meeting at the University of Alabama in Huntsville in which
a professor opened fire on the P&T Committee. See A Loaded Gun, Patrick
Radden Keefe, New Yorker, February 13, 2013, available online at
http://www.newyorker.com/magazine/2013/02/11/a-loaded-gun (last visited
August 10, 2015). His defamation was ripped from the headlines, so to speak, and
made more credible by the fact.
Declaration of Jeffrey Malkan, July 22, 2015, 32-38.
35. No one has seen me on the SUNY Buffalo campus since May of 2009. I no
longer reside in western New York. I do not own any weapons. I have no police or
mental health records. These are the true facts, as known by all, and they are alleged in
the Complaint.
The motivation behind the defamation
36. There was no legitimate reason for the Presidents Office to ban me from a
University campus upon which I have not been seen by anyone for many years, to which
13

I have stated no intention to return, and against whose administration I have been
proceeding in court to obtain legal redress. Likewise, there was no legitimate reason for
Interim Dean Gardner to deputize the faculty to be on the lookout for me and to report
any sighting of me to enforcement.
37. No sane person who is proceeding in court with a meritorious case would
suddenly decide to take up arms as a means of obtaining redress for a grievance. My
supposed nemesis, former-Dean Mutua, has rarely been on campus since December of
2014, when his eighteen-month sabbatical began. I have proceeded according to the
letter of the law even though the Attorney General has attempted to subvert the judicial
process through perjury and destruction of subpoenaed evidence and has attempted to
destroy my credibility with the horrendous defamation that is the subject of this action.
38. The fact that Interim Dean Gardners defamation is coming from a law
professor against a law professor, in order to protect the worst crime that a lawyer as a
lawyer can commit, says that something has gone seriously wrong at the SUNY Buffalo
Law School.
39. Interim Dean Gardner concluded his October 5 e-mail with the cloying
platitude, The safety of each and every one of you is my number one priority. This is a
defamation that is not susceptible to any meaning other than the one alleged in the
Complaint. It was intended to tell the members of the faculty that their safety was truly
in jeopardy and to stigmatize me as a person with the mentality and the capacity to
become the assassin of my former colleagues. That is how the media reported it. That is
how the faculty received it. That is how anyone who reads it would receive it.

14

40. In fact, Interim Dean Gardners number one priority was to justify his own
extreme and outrageous conduct over the past seven and a half years, which has escalated
from his pursuit of an implacable personal vendetta to complicity in criminal misconduct
by his predecessor in the Deans Office. Interim Dean Gardner in his role as ViceDean for Academic Affairs placed a memorandum in my personnel file, dated February
25, 2009, stating the ominous fact that I had apparently become unbalanced, and was
harassing law school personnel. He concluded that something would have to be done
about me. He marked this memorandum confidential so that I would have no
opportunity to respond to his lies and slanders. See Exhibit A to the Complaint.
41. Seven and a half years have passed and he is now the Interim Dean of the
Law School. His lies and slanders have resulted in irreparable harm to me and serious
damage to the integrity and reputation of the Law School. He nevertheless persists in his
lies and slanders. His extreme and outrageous conduct continues unabated.
Interim Dean Gardners First Amendment rights
42. His defamation cannot possibly be a protected opinion under the First
Amendment. If that were true, there would be no law of defamation. Anyone could
publicize a slander against anyone else warning that the other person is a potential mass
murderer and then could defend his defamation by saying that the statement was merely
an opinion. This defamation is the latest in a series dating back to February of 2008. He
still is peddling his lies, and now is upping the ante by warning the faculty about the
issuance of the persona non gratis letter that he himself maliciously obtained.
43. Interim Dean Gardner, moreover, is not entitled to any form of immunity.
The only form of immunity that could possibly apply in this situation would be the
15

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

hazard to his staff. That privilege is denied, however, where the defamatory message is
motivated by malice. Malice is exactly what the Complaint alleges. Of course, the
defamation in this case is that much worse precisely because the defamer is speaking as
the Interim Dean of the SUNY Buffalo Law School. To claim that a constitutional
privilege can be conferred upon the basis of an abuse of power and authority by the
person who is entrusted with the ethical legal education of hundreds of students is an
inconceivable distortion of the law.
Additional false arguments by the Attorney General on this Motion
44. Mr. Boyd makes four statements about me in support of this motion that I
will address with the brevity they warrant.3
45. First, Mr. Boyd states that Interim Dean Gardner did not defame me because
I was defamed to a community to which I no longer belong. Mr. Boyd has absolutely no
personal knowledge upon which to say that I am not still considered by the faculty to be a
part of the Law School community. There would be no reason for me to communicate
with the faculty, and no reason for them to read my communications, if it were otherwise.
I believe the consensus of the faculty is that my unlawful dismissal was an attack on the
facultys right to academic freedom and self-governance and that my attempts to rectify
the injustice is the facultys vital concern. In any event, I am still a member of the
community of civilized human beings to which both I and the Law School faculty belong.

He makes an additional argument that is so frivolous it does not deserve to be addressed except
in a footnote. The summons and complaint were served according to this Courts rules and
procedures, and filed using NYSCEF. I served the Notice of Commencement, which conveys
the Index Number, on Interim Dean Gardner on the same day the Court issued it. See Ex. B.
16

What Interim Dean Gardner wrote about me would be considered defamatory by any
civilized person in any community, just as his willful and wanton behavior would be
considered extreme and outrageous in any civilized society.
46. Second, Mr. Boyd claims that Interim Dean Gardner had no legal duty to
report former-Dean Mutuas lies and slanders to any administrative or legal authority,
even though he has known about the perjury since November 11, 2011. In other words,
Mr. Boyds theory is that his client has no legal duties regarding former-Dean Mutuas
lies and slanders, but is nevertheless entitled to privilege in his embellishment of them.
To the contrary, all faculty members are bound by the Faculty Code of Conduct, see
http://www.buffalo.edu/content/dam/www/provost/files/FacultyAffairs/pdf_codeOfCond
uctWeb.pdf.) (last visited November 21, 2015). Any Law School faculty member who
commits perjury is subject to disbarment and revocation of tenure as a professor.
Former-Dean Mutuas ongoing fraud and criminality violate the Universitys mandatory
rules of professional conduct in the worst possible manner. Interim Dean Gardners
cover-up for his predecessor in office makes him equally culpable and equally at
jeopardy of dismissal from the faculty.
47. In addition, it is impossible for this state-sponsored and ABA-accredited
Law School to train ethical lawyers, or even to impose in-house ethical rules on its
student body, when the Interim Dean is so hypocritical and so contemptuous of the rule
of law that he has authorized himself to conceal a perjurious lie about the facultys most
vital deliberations and decisions. See Student Honor Code in Academic Policies,
available online at http://www.law.buffalo.edu/current/academicPolicies/conduct.html
(last visited November 21, 2015) (stating duty to report violations of the Honor Code).
17

48. Interim Dean Gardner knows that former-Dean Mutua committed perjury, yet
he refuses to step forward and disclose it. He knows this on personal knowledge because
he was an active participant in the events about which his predecessor in office lied. That
dishonesty compounds the original crime and is equally damaging to the integrity of the
Law School and the legal profession.
49. Mr. Boyd is now representing Interim Dean Gardner and so he is presumed to
know what his client knows. He is also co-counsel for former-Dean Mutua so he is
presumed to know what his co-counsel knows. They are all in this together and have
decided that the law does not apply to them. They have decided that the best strategy is
to double down and defame the victim.
50. Third, Mr. Boyd states that I was not damaged in my career and profession
as a matter of law because I no longer have a career or profession. It is simply
outrageous for the Attorney General to say that I am incapable, as a matter of law, of
pleading special damages.4
51. I have spent my entire career in the field of legal education, after studying for
a Ph.D. in English, passing the bar and practicing law in this state, and returning to law
school for an LL.M. I taught at three law schools the University of Georgia, ChicagoKent, and St. Johns before I came to SUNY Buffalo on the recommendation of the
Appointments Committee and the vote of the entire faculty. I was granted clinical tenure
at SUNY Buffalo on the recommendation of the Promotion and Tenure Committee and
the Dean, by letter of appointment from then-President John B. Simpson in spring of

If that were a requirement for me to state a cause of action for libel per se on these
alleged facts which it is not, as Mr. Boyd recognizes.
18

2006. Even after receiving the notice of my wrongful termination, I published the lead
article in the spring 2009 issue of the Buffalo Law Review and published another lead
article the next year in the Oregon Law Review.5 I have never renounced my vocation
and profession, although this latest defamation may make it impossible for me ever again
to receive a security clearance to teach on a university campus.
52. Fourth, Mr. Boyd states that I am libel proof because no reputation has
survived the past seven and a half years that could support a cause of action for
defamation. This statement also sinks below the level of common sense and common
human decency.
53. I have been under continuous attack by Interim Dean Gardner for the better
part of the past decade, during which time he and former-Dean Mutua have called me
unbalanced, incompetent, a no-show employee, a danger to others in the
building, and many variations on the above. They have done everything possible to
degrade and discredit me, including the shocking perjury that the faculty, on April 28,
2006, came into my P&T meeting enraged and stricken with angst at my incompetence,
and in a heated release of anger that sucked all the oxygen out of the room, voted to
recommend my dismissal from the faculty on one-years notice.
54. This was a lie and Interim Dean Gardner knows it. The fact that he has kept
his silence over the past five years proves that no one on the faculty dares to stand up and
corroborate the perjury. Yet that has not stopped him from slandering me over and over
again as what he thinks is a cunning way of turning the victim into the victimizer. He can
5

Rule-Based Expression in Copyright Law, 57 Buffalo Law Review 433-509 (2009); The
Public Performance Problem in Cartoon Network LP v. CVC Holdings, Inc., 89 Oregon
Law Review 505-555 (2010).
19

take a stab at this reprehensible tactic with no risk, argues the Attomey General, because

my reputation is sufficiently degraded that I could be branded by anyone as a

psychopathic mass murderer, and no harm, no foul.

55. This logic should prove to any reasonable person that the administration of
this University has lost all sense of proportion and common sense. That is why I have
had to seek

judicial intervention in this latest escalation ofthe unlawfirl attacks on me.

The legal community of westem New York and the University community of SUNY

Buffalo need this case to proceed to a fair hearing as much as I do. In the end, the only
way for me to regain my good name and standing in society is for the truth to be known
and the malicious misconduct of Interim Dean Gardner to be exposed.

56. I respectfully ask this Court to deny the motion to dismiss.

Dated: November 24, 2015

Saint James. New York

Jefftley lvlblkan, Plaintiff

pro

se

Valleywood Ct. W.
Saint James, New York, 11780
(63r) 862-6668
12

2A

SUPREME COURT OF TI{E STATE OF NEW YORK

COUNTY OF ERIE
JEFFREY MALKAN,

Plaintiff.

AFFIDAVIT OF SERVICE

-against

lndexNo: 81253 612015

JAMES A. GARDNER,
Defendant.

---x

ofNew York )
County of Suffolk )
State

ss:

Jeffrey Malkan, being duly swom, deposes and says that on the21thday of November,
Z0l5,I served the within Affidavit in Opposition to Motion to Dismiss, and exhibits thereto,
upon the parties to this proceeding by frling the same on the Court's NYSCEF system'

Swprn before me thrs

day of November,2016

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FRANCINECESI.AK -.

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