Leeds Brown Memorandum of Objections to R&R 12-15-2015

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK ------------------------------------------------------X JEFFREY MALKAN,

Plaintiff,

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

MAKAU W. MUTUA,

Defendant.

-----------------------------------------------------X

LEEDS BROWN LAW, P.C.’s MEMORANDUM OF LAW IN SUPPORT OF THE FIRM’S OBJECTIONS TO THE MAGISTRATE’S REPORT,

RECOMMENDATION AND ORDER REGARDING SANCTIONS Rick Ostrove, Esq.

LEEDS BROWN LAW, P.C. One Old Country Road, Suite 347 Carle Place, New York 11514 (516) 873-9550

Case 1:12-cv-00236-RJA-HKS Document 98-1 Filed 12/15/15 of 30

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TABLE OF CONTENTS

Page BACKGROUND .............................................................................................................................1 ARGUMENT

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

II. IT WAS NOT FRIVOLOUS FOR THE FIRM TO ARGUE THAT MUTUA COMMITTED PERJURY .............................................................................................2

III. IT WAS NOT FRIVOLOUS FOR PLAINTIFF TO ARGUE SLEIGHT “KNEW”

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

IV. DEFENDANTS DID NOT PROVIDE SAFE HABOR PURSUAN TO RULE 11 AND THEREFORE RULE 11 SANCTIONS CANNOT BE IMPOSED...................22

V. THER IS NO EVIDENCE OF BAD FAITH, THUS THE FIRM SHOULD NOT BE

SANTIONED UNDER THE COURT’S INHERENT POWER OR 28 U.S.C. §1927............................................................................................................................23


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BACKGROUND

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 (“Counter-

Motion”) against Plaintiff, as well as Plaintiff’s attorney, Fredric (Rick) Ostrove, and Ostrove’s

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 Malkan’s financial circumstances, and declined to dismiss

Malkan’s case on procedural grounds. On the same date the R&R was filed, Judge Schroeder

recommended dismissal of Malkan’s case on the merits. (Dkt. 96).

This brief is submitted in opposition to the R&R’s finding that the Firm should be

sanctioned. To the extent this Court has any doubt that Judge Schroeder’s recommendation that

the Firm be sanctioned was erroneous, the Firm respectfully requests an opportunity to attend oral

argument.


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ARGUMENT

I. STANDARD ON OBJECTIONS

When objections to a Magistrate Judge’s 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 magistrate’s order is clearly erroneous or contrary to

law.” 28 U.S.C. § 636(b)(1)(A).

II. IT WAS NOT FRIVOLOUS FOR THE FIRM TO ARGUE THAT MUTUA COMMITTED PERJURY AND THAT SLEIGHT KNOW ABOUT IT 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 Court’s inherent sanctioning power. The gravamen

of the Firm’s 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&R’s 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


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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 Webster’s 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 purpose…In pleading: Manifestly insufficient or futile.”

Eastway Constr. Corp. v. New York, 637 F. Supp. 558, 565 (E.D.N.Y. 1986).

A. It was not frivolous to argue that Mutua committed perjury.

The R&R’s conclusion that it was frivolous for Plaintiff to argue Mutua committed perjury

was erroneous because (1) the R&R mischaracterized Plaintiff’s argument; (2) even accepting the

mischaracterization, Plaintiff’s argument still was not frivolous; and (3) nine other lawyers have

also independently concluded Mutua perjured himself, thus evidencing Plaintiff’s argument was

reasonable and non-frivolous.

1. The R&R mischaracterized Plaintiff’s argument that Mutua lied, and when Plaintiff’s argument is properly cast it is not frivolous. The R&R found that the Firm’s argument was frivolous by first mischaracterizing

Plaintiff’s argument. Magistrate Schroeder characterized Plaintiff’s 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 Mutua’s 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 Plaintiff’s argument. Contradictory witness testimony

was only one among many pieces of evidence supporting Plaintiff’s argument. In addition to the

fact that eight unbiased witnesses contradicted Mutua’s testimony, the conclusion that Mutua lied


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is further supported by the fact that (a) Mutua’s testimony evidences that he did not

“misremember” what occurred; (b) Mutua’s version of events is supported by nobody, despite 19

people being in attendance at the meeting; (c) Mutua’s 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 Schroeder’s R&R is clearly

erroneous in concluding that there is “no basis for the accusation of perjury.”

a. Mutua’s 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, Mutua’s 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.


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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 Malkan’s

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 Mutua’s 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

1 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 Malkan’s promotion. (Ex. 1, p. 30). Mutua, Lucinda Finley, James Gardner, and others felt Malkan’s “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.


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testified falsely…” (Dkt. 84, ¶ 3). Indeed, even after being shown the mountain of evidence that

contradicts Mutua’s 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.

b. Mutua’s 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 non-

party witnesses all consistently testified in detail about the vote2; and (b) not one of the eleven

other witness to the event support Mutua’s 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.

Witness Testimony

Susan Mangold

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).

Dianne Avery

We then had a vote on [Malkan’s] 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).

Robert Steinfeld

There was a vote in favor of Professor Malkan’s promotion to clinical professor. (Ex. 4, p. 9).

Rebecca French-Redwood

The topic of his tenure as a clinical professor was brought up and we voted on it…It 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).

Shubha Ghosh

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

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


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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).

Alfred Konefsky

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).

Lynn Mather

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 seminar…As soon as my class was over (in 406 O’Brian), 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. Jim’s 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).

Isabel Marcus

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. Mutua’s

version is directly contrary. Given this contradiction and Mutua’s insistence that his version is

correct, it was not frivolous to argue that the reason that Mutua’s testimony was vastly different

was because he lied.


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c. Mutua’s version of events is contradicted by contemporaneously taken notes of the CCPR Meeting. Avery and Mangold took notes at the CCPR meeting. Avery’s 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). Mangold’s 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 Plaintiff’s 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 Plaintiff’s argument that Mutua perjured himself.

d. Mutua inconsistently testified regarding the significance of the vote. While Mutua has always maintained that the vote never occurred, Mutua’s 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

dean’s 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

Olsen’s 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.


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2. Even accepting the R&R’s mischaracterization of Plaintiff’s argument, that argument still is not frivolous. Even if the R&R’s mischaracterization of Plaintiff’s argument is accepted as true (that is,

the evidence of Mutua’s lie is confined to the fact Mutua’s 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:

If: Eight witnesses say “X” John says “Y”

Then: 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.


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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 Mutua’s testimony that he had “not been in

many faculty meetings where emotions ran so high.” (R&R, p. 5). The R&R’s 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 Firm’s conduct to be frivolous is a flawed syllogism that is clearly erroneous. Thus, it

was not frivolous to argue that Mutua lied.

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

On August 8, 2014, Mutua’s 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 Mutua’s 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 Mutua’s bad acts to Ewing.” (Dkt. 59-2, p. 9). Oppenheimer criticized

Sleight’s 56.1 Statement, saying:

Only Mutua and no one else subscribes to his narrative. By stipulating this “sharp disagreement,” Mutua’s counsel attempts to finesse the obvious and uncomfortable truth that not only is there a conflict in the testimony, but that Mutua’s version of events is uncorroborated by either other witnesses or documents. Indeed, the notion


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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). Oppenheimer’s 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 Mutua’s “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 Mutua’s bad acts to Ewing.” The bad acts to which Oppenheimer refers are Mutua’s 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 Mutua’s 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

Mutua’s 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 Plaintiff’s allegation that Mutua perjured

himself was non-frivolous. The people closest to the situation believe that Mutua’s testimony was

an intentional falsehood. The fact that these eight professors believed it was a lie means that at


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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.

B. It was not frivolous to argue that Mutua’s 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 Mutua’s 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 plaintiff’s claim would be strengthened if Professor Mutua’s 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 Mutua’s differing recollection compromises plaintiff’s 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 true…is 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


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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, Mutua’s testimony that no vote was held regarding Malkan’s 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, Mutua’s 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

Malkan’s 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 Court’s 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.

3 Judge Schroeder’s 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). 4 It is easy to envision defense counsel’s 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 he’s 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).


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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 fact-

finder, as Mutua’s credibility on all other matters might be called into question.

Fourth, it is material to the issue Mutua’s likeability and punitive damages. This Court

already held:

…allegations of defendant Mututa’s stonewalling of the plaintiff’s 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 plaintiff’s 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 Mutua’s 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 Malkan’s

credibility in that proceeding), that is highly relevant to the issue of punitive damages, as well as

Mutua’s 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 jury’s

determination on punitive damages, or any other issue in the case that relies on Mutua’s testimony.

It could also affect Mutua’s likeability generally, which can have an influence on the outcome.

Fifth, Magistrate Schroeder recommended dismissal of Malkan’s 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 Schroeder’s finding that the Regulation was dispositive is what allowed him

to conclude the vote was immaterial. However, when this Court ruled on Defendant’s motion to


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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 Malkan’s employment contract. The state law reading of the contract’s duration will obviously be a critical factor in assessing the extent of the plaintiff’s property interest in continued employment with the State — an essential predicate for this action — but it will not be dispositive. When considering whether plaintiff Malkan’s 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 member’s

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

5 Magistrate Schroeder’s recommendation to dismiss this case solely based on the Regulation appears to directly contradict this Court’s 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.


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a jury would impute Mutua’s lies to him. The fact Ewing (via Oppenheimer) filed this motion

further evidences that the vote, and Mutua’s 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). Malkan’s

attorney objected to Sleight’s questions regarding Malkan’s speculation, and Sleight argued at

length over the objections and resumed questioning. (Ex. 12, pp. 67-70). During former Dean

Olsen’s 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, Sleight’s 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.

III. IT WAS NOT FRIVOLOUS FOR PLAINTIFF TO ARGUE SLEIGHT “KNEW” THAT MUTUA COMMITTED PERJURY The R&R held that Plaintiff’s argument that Sleight knowingly submitted Mutua’s perjured

testimony was frivolous, based on its predicate finding that Plaintiff’s underlying allegation that

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


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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 Malkan’s 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 Mutua’s perjury.

A. Sleight’s “knowledge” is assessed using an objective test.

Under the Rules of Professional Conduct (“RPC”), a lawyer’s duty to correct a client’s

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 court’s use of the term “reasonably knows” applied an

objective test to whether a lawyer has actual knowledge.7 The objective portion of the

7 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


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“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 Patsy’s 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 Patsy’s 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 lawyer’s 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 firm’s

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. 8 Sleight’s moving papers criticized the Firm for relying on Patsy’s 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).


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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 client’s 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

B. Applying the objectively reasonable standard, it was not frivolous to argue that Sleight “knew” about Mutua’s 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 Sleight’s shoes would find Mutua’s testimony to be an intentional falsehood.

Again, eight tenured professors believe it was a lie and filed a grievance about same. Oppenheimer

9 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 Plaintiff’s argument was frivolous. Hooda v. W.C.A. Serv. Corp., 2013 U.S. Dist. LEXIS 71809, *29 (W.D.N.Y. 2013) (plaintiff’s 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”).


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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 Mutua’s 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, Sleight’s “denial of knowledge or

information sufficient to form a belief” may further evidence that he did not believe Mutua’s 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 Mutua’s testimony about the vote. (Ex. 14). Rather than

10 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, ¶ 6-7). The Firm did not previously raise this point before the Magistrate as we did not think to look at the Answer regarding this issue. 11 The R&R found that Sleight’s 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&R’s 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).


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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 Sleight’s 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 Mutua’s 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 Mutua’s

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

12 In response to Interrogatory #1, Mutua identified 14 individuals who possessed knowledge of Plaintiff’s 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 Mutua’s version. Sleight’s 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.


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for Plaintiff to argue Sleight knew about Mutua’s lie under the objectively reasonable standard of

knowledge.

IV. DEFENDANTS DID NOT PROVIDE SAFE HARBOR PURSUANT TO RULE 11 AND THEREFORE RULE 11 SANCTIONS CANNOT BE IMPOSED The R&R erroneously held that Defendants complied with Rule 11’s 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 Mutua’s perjury. However, we did not have notice of the vast

majority of the other arguments that Sleight advanced in his motion. Sleight’s June 19, 2015, safe

harbor letter, stated:

Enclosed please find Defendant’s 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 Plaintiff’s 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


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“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 Sleight’s letters, but neither of the letters,

nor any prior communication identified many of the issues Defendant raised in the Counter-

Motion. (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 Mutua’s

perjury and Sleight’s knowledge thereof. That said, it appears that the R&R is based exclusively

on those grounds, but the Court used Sleight’s other arguments to support its findings of bad faith,

which it should not have done given the lack of notice.

V. THERE IS NO EVIDENCE OF BAD FAITH, THUS THE FIRM SHOULD NOT BE SANCTIONED UNDER THE COURT’S INHERENT POWER OR 28 U.S.C. §1927.

“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

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


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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 plaintiff’s 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 Ostrove’s 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 Firm’s 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 Sleight’s 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.


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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&R’s 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&R’s discusses many of Malkan’s 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 Plaintiff’s

conduct.” (Dkt 84, ¶ 55).15 While not specifically saying so, the tenor of the R&R appears to

attribute some of Malkan’s conduct to the Firm. We request that the Court evaluate the Firm’s

conduct independently. In sum, even if the Court disagrees with some of the Firm’s arguments, it

was not frivolous to advance same. Indeed, there was more than a “scintilla of evidence” to support

our arguments.

15 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 Firm’s wishes.” (Dkt 90, ¶¶ 49-51).


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Dated: Carle Place, New York December 15, 2015

LEEDS BROWN LAW, P.C. One Old Country Road, Suite 347 Carle Place, New York 11514 (516) 873-9550 _____________/S/_______________ RICK OSTROVE


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LOCAL R. 72(c) CERTIFICATION

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.




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CERTIFICATE OF SERVICE

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.




Leeds Brown Memorandum of Objections to R&R 12-15-2015

Documents

Transcript of Leeds Brown Memorandum of Objections to R&R 12-15-2015