SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ERIE

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

JEFFREY MALKAN, : Index No.

Plaintiff, :

v. : SUMMONS

:

JAMES A. GARDNER, :

Defendant. :

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

To the above named Defendant:

YOU ARE HEREBY SUMMONED to answer the complaint in this action and to

serve a copy of your answer, or, if the complaint is not served with this summons, to serve

a notice of appearance, on the Plaintiff's attorney within 20 days after the service of this

summons, exclusive of the day of service (or within 30 days after the service is complete if

this summons is not personally delivered to you within the State of New York); and in case

of your failure to appear or answer, judgment will be taken against you by default for the

relief demanded in the complaint.

The basis for venue is the residence of the Defendant which is supported by his

home and business addresses.

Dated: Saint James, New York

October 21, 2015

By: _______________________

Jeffrey Malkan

Jeffrey Malkan

Plaintiff pro se

12 Valleywood Ct. W

Saint James, New York 11780

(631) 862-6668

1

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ERIE

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

JEFFREY MALKAN, : Index No. ________________

Plaintiff, :

v. : COMPLAINT

: JURY TRIAL DEMAND

JAMES A. GARDNER, :

Defendant. :

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

Jeffrey Malkan (“Plaintiff”), as and for his Complaint in this action against James A.

Gardner (“Defendant”), hereby alleges the following.

CLAIMS

1. This action is for monetary damages to redress acts of defamation and libel per se and

for intentional infliction of emotional distress.

2. Defendant’s unlawful conduct was knowing, malicious, willful and wanton, as well as

extreme and outrageous, and showed a reckless disregard for Plaintiff’s rights, which has caused,

and continues to cause, disgrace, humiliation, and shame, permanent harm to Plaintiff’s

professional and personal reputation, loss of his vocation and livelihood, and severe emotional

distress.

3. For the past seven and a half years the Plaintiff has been subjected to a campaign of

workplace harassment that has escalated from bullying, grandstanding, and retaliation, to fraud

against the Law School’s accrediting agency, breach of contract, violation of in-house and state

court due process rights, tortious interference with employment relations, perjury in both state

and federal courts, obstruction of justice, and finally, a false police report publicized by the

Defendant to the Law School community declaring the Plaintiff persona non gratis and subject

2

to arrest on-sight for criminal trespass on the SUNY Buffalo campus or any other SUNY

Buffalo-owned property.

4. The Plaintiff’s safety and security have been compromised by the false police report

and its publication in addition to all of the damage the Defendant’s slanders and libels have

caused to his reputation, career, and peace of mind since February 25, 2008. The defamation that

is the subject of this action, attached as Ex. B, has received extensive media coverage throughout

western New York, including the Buffalo News and the UB Spectrum.

5. Defendant has publicly asserted that the Plaintiff is capable of committing mass

murder. He has intentionally and maliciously exploited the tragedies of on-campus violence in

the United States over the past decade in order to give credence to his defamations and leverage

those defamations for his own career advantage.

6. His defamations reached their crescendo in an e-mail message to the Law School

faculty and staff on October 9, 2015, that took the form of a warning notice with two digital

photographs alerting the faculty that Plaintiff was wanted by the State University Police and that

any sighting of him should be promptly reported as a public safety emergency so that the

Plaintiff could be apprehended and arrested.

JURISDICTION AND VENUE

7. This Court has jurisdiction over Defendant James A. Gardner pursuant to Civil

Practice Law and Rules (CPLR) § 301 in that he currently lives and works in the State of New

York. Pursuant to CPLR § 503, venue is proper in Erie County because Defendant resides in this

County and the events occurred here.

3

PARTIES

8. Defendant James A. Gardner is, and was at all relevant times, employed a Professor of

Law at the SUNY Buffalo School of Law. Since December 20, 2014, he has been serving the

Law School as Interim Dean.

9. Plaintiff Jeffrey Malkan was employed as a Clinical Professor of Law at SUNY

Buffalo School of Law from August of 2000 until August of 2009, serving the Law School as

Director of the Legal Research and Writing Program until March 15, 2008. He currently resides

in Suffolk County, State of New York.

FACTS

10. On April 28, 2006, the Promotion and Tenure Committee of the SUNY Buffalo

School of Law met to make a recommendation on Plaintiff’s application for reappointment and

promotion to the University title and rank of full Clinical Professor.

11. Defendant opposed Plaintiff’s promotion and circulated a memorandum to the

faculty falsely alleging, among other things, that Plaintiff had disrespected him by refusing to

respond to his invitation to meet and discuss the Legal Research and Writing (LRW) Program,

for which he had administrative responsibility since he had joined the faculty in fall of 2000.

12. On the April 28, 2006, the P&T Committee passed a resolution that recommended

the Plaintiff’s promotion to a 405(c)-protected clinical professorship, known as “clinical tenure,”

which is mandated for the protection of academic freedom by the ABA accreditation standard for

clinical faculty. The recommendation was endorsed by then-Dean R. Nils Olsen, Jr., upon which

a letter of appointment to the title/rank of Clinical Professor was signed and conveyed to the

Plaintiff by then-President John B. Simpson.

4

13. In January of 2008, upon the resignation of then-Dean Olsen, Makau W. Mutua was

appointed Interim Dean of the Law School. Interim Dean Mutua selected Defendant to serve as

Vice-Dean for Academic Affairs of the Law School.

14. On February 25, 2008, Defendant wrote the following statement about the Plaintiff in

a memorandum to Interim Dean Mutua. “[E]vidence has recently come to light of unbalanced

and possibly abusive behavior toward at least one of the instructors he supervises…. I believe in

consequence that the law school and university should examine closely whatever options might

be available for dealing with what is, to me, an unacceptable situation that significantly impairs

the achievement of the law school’s instructional goals.” See Ex. A.

15. This statement was false. It was marked confidential by the Defendant, who signed a

request that it be withheld from the Plaintiff and was placed in the Plaintiff’s personnel file in the

Dean’s Office.

16. On March 15, 2008, the Wednesday in the middle of spring break, Interim Dean

Mutua announced to the faculty, via e-mail, that he was removing the Defendant from the

Directorship of the LRW program, effective immediately. This measure was widely perceived

by the faculty to be a response to an emergency situation.

17. On March 25, 2008, in the first post-spring break meeting of the Academic Policy

and Planning Committee (APPC), Plaintiff requested that Interim Dean Mutua, in view of the

evident urgency of the matter, put the LRW program on the agenda for discussion. He refused.

Plaintiff subsequently, in writing, asked his permission to resign from the APPC, since he no

longer represented the LRW program, and Interim Dean Mutua, in writing, accepted.

5

18. Defendant was a member of the APPC on that date and has claimed that he was

present at that meeting.

19. In sworn testimony before the Public Employment Relations Board (PERB) on

March 31, 2010, then-Dean Mutua falsely testified that the Plaintiff had assaulted him at that

APPC meeting two years earlier, stating that even though he was “no shrinking violet,” he had

braced himself for an imminent physical attack. He further testified that he and the Defendant

had concluded after the meeting that Plaintiff “might be a danger to some of us in the building.”

Dean Mutua also testified that he feared the Plaintiff could “go postal” at any time, which is a

colloquialism for a mass shooting. He repeated this defamation, predicting that it was only a

matter of time before the Plaintiff “went postal,” at a deposition held under the auspices of the

federal district court on December 19, 2013. Defendant has been aware of these defamations at

all times relevant to this complaint.

20. In that same testimony, on March 31 and April 1, 2010, Dean Mutua perjured

himself by falsely swearing that the P&T Committee, on April 28, 2006, had failed to take a vote

on the Plaintiff’s reappointment and promotion, but instead had passed a resolution

recommending his termination on one-year’s notice. He further testified that no one on the

faculty knew what the Plaintiff was “still doing in the building” after the terminal year of his

appointment had expired, until he became Interim Dean and gained access to the Dean’s Office

personnel files. Defendant has been aware of this perjury at all times relevant to this complaint.

21. On August 29, 2008, Plaintiff received a certified letter from then-Dean Mutua

informing him that he intended to terminate his employment on one year’s notice and that his last

day of employment at the Law School would be May 15, 2009.

6

22. On November 19, 2008, the United University Professions of the New York State

United Teachers (UUP/NYSUT) filed an improper practice charge against SUNY at the Public

Employment Relations Board, alleging that Plaintiff’s termination was in retaliation for, among

other things, the UUP/NYSUT’s attempt to obtain a name-clearing e-mail to the faculty to dispel

the stigma of the defamatory rumors spread by then-Dean Mutua and the Defendant.

23. At a PERB pre-hearing conference held in Albany in February of 2009, the

UUP/NYSUT unsuccessfully attempted to persuade SUNY (represented by the Governor's

Office of Employee Relations) to disavow this defamation and replace it with a name-clearing

message so that Plaintiff would be at liberty to pursue his career elsewhere without the stigma of

the defamation.

24. On March 23, 2012, Plaintiff filed suit against Makau W. Mutua in the United States

Court for the Western District of New York, seeking relief for violation of his Fourteenth

Amendment right to due process, under 42 U.S.C. § 1983.

25. At the mediation held under the mandatory ADR plan of the Western District on

March 1, 2013, Plaintiff once again asked for the name-clearing message in partial settlement of

his claims. Plaintiff has never received a retraction, name-clearing, employment reference, or

apology in any form from anyone in the Law School administration, including the Defendant.

26. On September 22, 2014, four days before the allegations of then-Dean Mutua’s

perjury were published on the front page of the Buffalo News, the University announced that he

was “stepping down” from the Dean’s Office. He was replaced, as of December 20, 2014, by the

Defendant as Interim Dean.

7

27. On March 5, 2015, Plaintiff sent an e-mail message to the faculty reminding it (a)

that former-Dean Mutua, in his PERB testimony, on March 31, 2010, had fabricated a crippling

defamation by embellishing a news story about an on-campus shooting in a faculty meeting, six

weeks earlier, at the University of Alabama in Huntsville, and (b) that Plaintiff was suffering

from severe emotional distress because of the recent wave of on-campus violence in the country

and was once again asking for a name-clearing message. Defendant, or someone acting with his

knowledge and on his behalf, reported this e-mail to the State University Police as an imminent

and ongoing threat to public safety. The State University Police responded on March 8, 2015 by

contacting the Plaintiff at home, 450 miles away in Saint James, New York. The investigating

officer reported back to the Police Department that there was no ongoing or imminent threat

presented by the e-mail message and no further action was taken.

28. On October 1, 2015, the day of the Umpqua Community College tragedy, Plaintiff

sent another message to the faculty stating how devastating it was to have his name associated

with such heinous crimes against humanity and asking for the faculty’s sympathy and support.

29. The Defendant or an agent of the Dean’s Office acting with his knowledge and on his

behalf responded by filing yet another police report that had no basis in any remotely possible

incident. On October 2, 2015, a State University Police officer again interviewed the Plaintiff by

telephone, on a Friday evening after 7:00 PM, and determined that the report from the Dean’s

Office was once again false.

30. The State University Police Department, as a result of interviewing the Plaintiff on

these two occasions, has records in its possession that reflect the following facts:

(a) Plaintiff has resided, since May 20, 2009, at the extreme eastern end of New York

State, which is 450 miles away, and has not been on-campus since that date;

8

(b) he does not have any police or mental health record;

(c) the underlying dispute is the subject of an ongoing litigation in federal district court;

(d) the Plaintiff does not own a registered firearm;

(e) a similar false report from the same source had been investigated in March, and;

(f) no police response was warranted then or now.

31. On October 4, 2015, the Plaintiff sent a message through the State University Police

website asking Police Chief Gerald Schoenle to investigate the allegations and clear his name,

from the public safety perspective, of the stigma caused by the false report and the underlying

seven and a half year old defamation. Chief Schoenle did not respond.

32. On October 9, 2015 Interim Dean Gardner sent the following message to the Law

School faculty (see Ex. B) with two attached digital photographs.

“Earlier this week, pursuant to the State Education Law, the University at Buffalo issued

an order declaring Jeffrey Malkan persona non grata and barring him from campus.

Following this order, any appearance by Mr. Malkan on any UB property will subject

him to immediate arrest and possible prosecution for criminal trespass…. Mr. Malkan [in

his October 1 e-mail message] referred to mass shootings on other university campuses

including, most recently, the tragedy earlier this month at Umpqua Community College

in Oregon…. [A]n Investigator from the University Police Department (UPD) has

telephoned Mr. Malkan at his home downstate to assess whether he poses a threat to

anyone on this campus…. [T]he Investigator has concluded that Mr. Malkan does not at

present pose an immediate and active threat. Nevertheless, with the safety of its

employees its paramount concern, and to address the considerable stress and anxiety that

9

these e-mail communications have caused to their recipients, the University has deemed

it prudent to take the precaution of barring Mr. Malkan from campus. Accordingly, if

you should see Mr. Malkan on any UB campus at any time, you are requested

immediately to notify UPD (645-2222) or call 911. For those of you who did not know

him, a photo of Mr. Malkan is attached for your reference. Please do not hesitate to

contact me or Dean LaDelfa if you have any questions or concerns. The safety of each

and every one of you is my number one priority.”

This message stated directly and by innuendo that Plaintiff presented an imminent threat to the

campus and warranted an order subjecting him to immediate arrest and possible prosecution.

33. Plaintiff’s messages, to this day, are conveyed through the campus e-mail system to

the addressees on the faculty, even though the e-mail system is not a public forum, because (a)

faculty members in the Law School have a First Amendment right to receive and consider them,

(b) they do not represent a legally cognizable threat to the public safety or to the personal

security of any individual, and (c) they are read or deleted at the discretion of their recipients.

34. The next morning, October 10, 2015, the Plaintiff received notice by certified letter

from Barbara Ricotta, Associate Vice President for Student Affairs, copied to Police Chief

Schoenle, that he had been declared persona non gratis and would be arrested on-sight if seen on

campus. See Ex. B.

35. Reports of this police action, based on the Defendant’s false and defamatory

allegations against the Plaintiff, were subsequently published in the print and online media.

(a) The report was published in the UB Spectrum on October 15, 2015.

(b) The report was published in the Buffalo News on October 18, 2015.

10

(c) The report was published on the legal news website Above the Law on October 19,

2015.

36. Defendant is aware that his own slanders and libels, dating from February 25, 2008,

and published to the faculty and staff on October 9, 2015, are the basis of this stigmatizing action

by the State University Police and the ensuing media coverage of it, and are the only cause of

any “stress and anxiety” that anyone may be suffering.

37. Defendant knows that his defamation of October 9, 2015, occurred in the context of a

pending Rule 11 motion against former-Dean Mutua for perjury and obstruction of justice,

together with a Grievance Committee petition, seeking sanctions and disbarment, filed by eleven

members of the faculty and pending before disciplinary authorities in the Appellate Division.

38. The defamation was published by the Defendant for the purpose of discrediting the

Plaintiff and enhancing the Defendant’s tenuous hold on the Dean’s Office.

AS AND FOR A FIRST CAUSE OF ACTION

(Defamation and Libel Per Se)

39. The Plaintiff hereby repeats and alleges each and every allegation in paragraphs 1

through 38, inclusive, as if fully set forth herein.

40. The Defendant either published, or caused to be published, defamatory statements

about the Plaintiff. These defamatory statements included the following:

(a) a false assertion that the Plaintiff had threatened mass violence upon members of the

faculty and administration of the Law School;

(b) a false assertion that the Plaintiff was mentally unbalanced, armed, dangerous, and

capable of mass violence;

11

(c) a false assertion that the safety and security of the University’s employees and

students were endangered by the Plaintiff;

(d) a false assertion that the Defendant was obliged to take “prudent” measures to protect

the safety and security of the Law School’s employees and students, and;

(e) a provocative and inflammatory request, with mug shots in the form of digital photos

provided for identification, for members of the Law School community, regardless of

whether they had ever before seen the Plaintiff, to contact the State University Police

immediately upon any sighting of him in the vicinity of the campus.

41. Defendant published this defamation in an e-mail message sent to the Law School

faculty, staff, and administration on October 9, 2015, which was the most recent of a series of

slanders and libels repeated by the Defendant since February 25, 2008.

42. Defendant made these defamatory statements in an attempt to leverage the

nationwide vigilance on college campuses about tragedies that have occurred throughout the

United States over the past decade to his own career advantage as Interim Dean, and, further, in

pure malice, to satisfy his own grudge against the Plaintiff, which dates back to April of 2006,

when he failed in his attempt to block the Plaintiff’s promotion and tenure.

43. These false statements were motivated by malice, intended to destroy Plaintiff’s

reputation and credibility, and had no basis in Plaintiff’s employment records at the University,

except those fabricated by Defendant himself, or in any state-accessible police or court records.

44. The only source for the public alarm rung by the Defendant on October 9, 2015, was

the pattern of defamations maliciously spread by the Defendant himself over the past seven and a

half years.

12

45. The Defendant’s false statements were made in violation of a criminal statute, N.Y.

Penal Law § 240.50, which provides that “[a] person is guilty of falsely reporting an incident in

the third degree when, knowing the information reported, conveyed or circulated to be false or

baseless, he [i]nitiates or circulates a false report or warning of an alleged occurrence or

impending occurrence of a crime, catastrophe or emergency under circumstances in which it is

not unlikely that public alarm or inconvenience will result.” The statute sets the standard of care

to which the Defendant must be held accountable.

46. The Defendant knew that his provocative and inflammatory message to the faculty

and staff, on October 9, 2015, was likely to result in public alarm in the form of “considerable

stress and anxiety… to [its] recipients” and itself represented a public alarm.

47. (a) By falsely confirming the veracity of the defamations made by former-Dean

Makau W. Mutua, (b) by failing to correct them when he had a duty to do so, and (c) by

repeating and further publicizing these defamations up to and including October 9, 2015, the

Defendant further defamed the Plaintiff.

(i) Defendant knew from his own personal knowledge that the defamations were false.

(ii) Defendant knew that the defamations had been falsely sworn in court proceedings.

(iii) Defendant knew that the defamations violated the New York Rules of Professional

Conduct and the University’s Faculty Code of Conduct.

(d) Defendant knew that the defamations were intended to inflict substantial material

hardship, loss of dignity and social standing, and emotional distress on the Plaintiff.

48. The defamations alleged in this Complaint were libelous per se because they impugn

the Plaintiff’s professional fitness and moral character by charging him with intent to engage in

13

criminal acts of violence against his faculty colleagues. They have indelibly stained his

reputation and effectively prevent him from ever again being permitted to teach on a campus.

49. As a result of the Defendant’s defamations, the Plaintiff has suffered from loss of

standing in the community, loss of his vocation and livelihood, loss of his dignity, public

disgrace, and severe emotional distress.

AS AND FOR A SECOND CAUSE OF ACTION

(Intentional Infliction of Emotional Distress)

50. The Plaintiff hereby repeats and alleges each and every allegation in paragraphs 1

through 49, inclusive, as if fully set forth herein.

51. The Defendant engaged in conduct that is so extreme and outrageous that it would

exceed the bounds of decency in any civilized society.

52. The defamations alleged in this Complaint were intended to cause the Plaintiff to

suffer severe and lasting emotional distress.

53. As a direct and proximate cause of the Defendant’s conduct, the Plaintiff has

suffered, and continues to suffer, severe emotional distress for which he is entitled to an award of

damages.

54. The Defendant’s extreme and outrageous conduct was intentional, premeditated,

calculated, willful, and wanton, entitling the Plaintiff to an award of punitive damages.

WHEREFORE the Plaintiff demands judgment against the Defendant awarding the

following relief:

A. An award of damages to be determined at trial plus prejudgment interest, to

compensate the Plaintiff for his monetary and economic harm;

14

B. An award of damages to be determined at trial to compensate the Plaintiff for

irreparable harm to his reputation, good name, and social standing, and for the loss of his

profession, vocation, and career;

C. An award of damages to be determined at trial to compensate the Plaintiff for his

severe emotional distress, hardship, and mental anguish;

D. An award of punitive damages;

E. An award of the costs incurred by the Plaintiff in this litigation as well as his

reasonable attorneys’ fees to the fullest extent permitted by the law;

F. Such other and further relief as the Court deems just and proper.

JURY TRIAL

Plaintiff demands a trial by jury on all issues of fact and damages stated herein.

Dated: Saint James, New York

October 21, 2015

Respectfully submitted,

By: _______________________

Jeffrey Malkan

Jeffrey Malkan

Plaintiff pro se

12 Valleywood Ct. W

Saint James, New York 11780

(631) 862-6668

EXHIBIT A

MEMORANDUM OF JAMES A. GARDNER, FEBRUARY 25, 2008

EXHIBIT B

1. MESSAGE OF JAMES A. GARDNER, OCTOBER 9, 2015

2. LETTER OF ASSOCIATE VICE-PRESIDENT BARBARA RICOTTA,

OCTOBER 6, 2015

From: Jim Gardner <jgard@BUFFALO.EDU>

Reply-To: Jim Gardner <jgard@BUFFALO.EDU>

Date: Fri, 9 Oct 2015 21:44:25 +0000

To: <LAW-LIST@LISTSERV.BUFFALO.EDU>

Subject: Jeffrey Malkan

Dear Colleagues:

Earlier this week, pursuant to the State Education Law, the University at Buffalo issued an order

declaring Jeffrey Malkan persona non grata and barring him from campus. Following this order, any

appearance by Mr. Malkan on any UB property will subject him to immediate arrest and possible

prosecution for criminal trespass.

As you may know, Mr. Malkan over the last several years has been the source of a steady stream of e-

mail messages directed to members of this faculty, Law School administrators, University administrators,

University counsel, and the Office of the New York Attorney General (which has represented the Law

School in a series of lawsuits brought by Mr. Malkan). In these messages – nearly 200 over the last

twelve months alone – Mr. Malkan has rehearsed a variety of grievances against the Law School, the

University, and lawyers in the Attorney General’s Office.

In at least two of these e-mail messages, Mr. Malkan referred to mass shootings on other university

campuses including, most recently, the tragedy earlier this month at Umpqua Community College in

Oregon. Following each of these references, an Investigator from the University Police Department

(UPD) has telephoned Mr. Malkan at his home downstate to assess whether he poses a threat to anyone

on this campus. In each case, the Investigator has concluded that Mr. Malkan does not at present pose an

immediate and active threat.

Nevertheless, with the safety of its employees its paramount concern, and to address the considerable

stress and anxiety that these e-mail communications have caused to their recipients, the University has

deemed it prudent to take the precaution of barring Mr. Malkan from campus. Accordingly, if you should

see Mr. Malkan on any UB campus at any time, you are requested immediately to notify UPD (645-2222)

or call 911. For those of you who did not know him, a photo of Mr. Malkan is attached for your reference.

Please do not hesitate to contact me or Dean LaDelfa if you have any questions or concerns. The safety

of each and every one of you is my number one priority.

James A. Gardner

Interim Dean

Bridget and Thomas Black SUNY Distinguished Professor

SUNY Buffalo Law School

The State University of New York

Room 319, O'Brian Hall

Buffalo, NY 14260-1100

University at Buf,'falo': lli' liritr' l':l,r',';-.;ii: iri .\'r'ir 11i'i,

Vi(e Piesident {or University Life and Services

October 6,2015

Jeffrey Malkan12 Valleywood Court WestSaint James, NY 1 1780-10'15

Dear Mr. Malkan:

Pursuant to the authority vested by State Education Law, as designee of the ChiefAdministrative Officer of the University at Buffalo, I hereby revoke your privileges as a visitor tothe campuses of the University. This action is based, in part, on emails you sent on March 5,2015, and subsequently on October 1 and 5,2015, to members of the faculty of the Universityat Buffalo Law School, the University president, provost and others, comparing thecircumstances surrounding the termination of your employment at the University to two massshooting incidents on college campuses and one at an elementary school. These messageshave caused disruption and created a fear of harm among individuals at the University.

Consequently, you are barred from participating in any University activity or entering onto or beingin any property owned or operated by the University at Buffalo. This revocation of visitor privilegeswill remain in effect until and unless it is modified, in writing, by the University at a future time. lfyou are found in violation of these conditions, you stand liable to being charged with CriminalTrespass under the Penal Law of the State of New York.

Should you have any questions regarding this letter, or have information which you feel I shouldhave at this time related to this matter, please communicate with me in writing.

You may petition a review of this decision one year from the date of this letter by writing to theOffice of Judicial Affairs, 252 Capen Hall, Buffalo, New York 1 4260.

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Barbara J. RicottaAssociate Vice President

Student Affairs

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cc: Mr. Gerald Schoenle, Chief of PoliceUniversity at Buffalo