Upon the foregoing papers, it is ordered: Motion sequence numbers 001 and 002 are consolidated herein for decision. In motion sequence number 001, this special proceeding was brought pursuant to CPLR 7502(c) for an order directing the respondent college to reinstate the petitioner to his position as a tenured professor, along with all attendant rights and privileges, pending the resolution of an arbitration proceeding between the parties. The petitioner was dismissed from his position after the respondent, the New York Institute of Technology ("NYIT"), conducted an investigation into an allegation by 37 students at Pattison College, an affiliated school in Vancouver, British Columbia where petitioner temporarily taught, that he had repeatedly engaged in inappropriate conduct towards the students. Numerous students stated that he had (1) informed them that he took Viagra, (2) inquired about whether they had ever had sex with an Indian, (3) given his hotel name and room number to various female students and asked them to visit him there, (4) asked several female students out for dinner, (5) offered advice on sex, (6) asked several female students for their cell phone numbers and inquired as to whether they would have sex with him, (7) kissed three students on the hand and (8) encouraged the male students to read Playboy magazine and the female students to read Playgirl magazine. After finding the students' testimony to be credible, the respondent provided the petitioner with an opportunity to respond, which he did on March 5, 2007. By letter dated May 18, 2007, the petitioner was advised that he was dismissed and barred from NYIT's premises. He was also advised that, upon his request, he would be provided with access to his office and that he remained on the respondent's payroll pending the completion of the grievance and arbitration process provided for under the applicable collective bargaining agreement.

At or about the time that the petitioner was dismissed, the respondent received complaints from two other students about the petitioner's conduct with respect to classes which he taught in Manhattan. One of the students, Haidar Alrubaiee, claimed that, in the Spring of 2006, petitioner had (1) told a female student that his libido increased whenever she walked into class and that he then made a stroking motion from his crotch and (2) on several occasions, commented on the size of certain female students' breasts. The other student, Dan Cui, claimed that while she was a student in one of petitioner's classes during the Spring of 2007, he approached her, asked her out for dinner in his apartment and hugged and kissed her. [*2]

Following his dismissal, petitioner commenced this proceeding. After the submission of the petition to the court, the petitioner commenced an arbitration proceeding in early July, 2007 challenging the basis of his dismissal. At about this time, the petitioner retained a criminal attorney, Labe M. Richman, who, at petitioner's request, wrote a letter to Ms. Cui, dated July 2, 2007, in which he identified himself as petitioner's attorney, advised her to give the letter to her attorney if she had one, attached a copy of the penal statute regarding the crime of perjury and then proceeded to advise her that if her allegations against petitioner are untrue, she could be guilty of such a crime. He further advised her that if she changed her affidavit to rectify any untrue statements, she may have a defense to a perjury charge. He recommended that if she had lied, she might want to retract her statement sooner rather than later. Thereafter, Mr. Richman sent a letter dated July 12, 2007 to the two directors of security at the respondent's two campuses stating that he believed Ms. Cui had committed the crime of perjury on the respondent's premises. He asked that they undertake an investigation into the matter and then refer the case to "law enforcement." Under motion sequence number 002, the respondent then moved, by order to show cause, for an injunction restraining the petitioner and his agents from attempting to threaten or unduly influence any of its witnesses. The respondent also seeks an order dismissing the proceeding because of the witness tampering and awarding it the costs and attorney's fees incurred in bringing the motion.

Discussion

A. The Merits of the Petition - The petitioner's claim herein turns on the sole issue of whether the respondent, in dismissing him prior to the conclusion of the grievance and arbitration process, breached the terms of the governing collective bargaining agreement. Under the agreement, a tenured faculty member may only be dismissed for serious professional misconduct. If the respondent determines that a faculty member should be dismissed, the faculty member is entitled to challenge the determination through specified grievance and arbitration procedures. Of particular relevance to this proceeding, article XXIV of the agreement provides that except where the faculty member "poses a threat of immediate harm to himself or others," no dismissal may take effect until the completion of the grievance and arbitration process.

In this proceeding, the petitioner argues that the collective bargaining agreement was breached because he was effectively dismissed on May 21, 2007 prior to the conclusion of the grievance and arbitration process. The court disagrees. The respondent's letter to the petitioner specifically stated that, pursuant to article XXIV of the collective bargaining agreement, he was to remain on the payroll at his regular salary until a final determination had been rendered. Thus, the respondent expressly recognized that petitioner remained an employee until the conclusion of the grievance and arbitration process. Although the respondent indicated in its letter that petitioner's "dismissal" was effective three days later, he was not actually dismissed since one cannot be effectively dismissed so long as one remains on a payroll until a subsequent, final determination is rendered. Moreover, there is nothing in the collective bargaining agreement which prohibits the respondent from barring a faculty member who has been tentatively dismissed but is still on the payroll from teaching or even going on campus pending the conclusion of the grievance and arbitration process. If a school determines, after an investigation, that a professor has repeatedly engaged in offensive, shocking and disturbing conduct towards its students, it should not be, and is not, contractually obligated to permit him to continue teaching and appearing on campus during the [*3]interim, thus exposing the students to further misconduct.

Indeed, although the court need not address the issue, the abhorrent conduct which the petitioner is alleged to have engaged in, such as touching female students in an overtly sexual manner, can clearly cause psychological harm. Thus, his alleged conduct may well constitute the sort of harmful conduct which, under the collective bargaining agreement, warrants an immediate dismissal. Once the respondent concluded that the petitioner did, in fact, engage in such conduct, it was both obligated and entitled to protect its students. Under the circumstances, the court is persuaded that the respondent did not breach the terms of the collective bargaining agreement and the petition must therefore be denied.

B. The Respondent's Motion for an Injunction and Sanctions - In judicial or arbitration proceedings, it is often the case that there is a factual dispute between the parties which turns on the credibility of witnesses, at least one of whom is simply not telling the truth. In such a case, an opposing party may attempt to undermine a witness's credibility, either on papers or on cross-examination, by marshaling the facts so as to bring out inconsistencies, conflicting evidence or a motive to lie. These attempts are properly undertaken within the context of the proceeding. Here, however, the petitioner apparently lacked confidence that the veracity of one of the complaining students, Dan Cui, would be effectively refuted either in this proceeding or in the arbitration proceeding through use of the available litigation tools. Instead, he decided to threaten Ms. Cui with the specter of having to endure a criminal perjury investigation and indictment which he would initiate.

Such threats cannot be countenanced. They are an inappropriate and reprehensible attempt to influence a proceeding and obtain an outcome therein through extra-judicial means. Indeed, the threats are particularly pernicious because they carry the real possibility that even a witness who is otherwise entirely truthful will refrain from giving such testimony in order to avoid being the target of a criminal investigation. Moreover, such threats are a facile and transparently self-serving effort to proclaim, outside of court, that the person initiating the perjury charge, rather than the opposing witness, is really the one telling the truth.

One does not have to be lawyer to realize and appreciate the fact that such extra-judicial threats to an opposing witness are entirely inappropriate. Petitioner not only decided to make such threats but, in his opposing papers herein, continues even now to justify them. Such conduct is inexcusable.

Even more inexcusable is the fact that Mr. Richman, a criminal attorney retained just for that purpose, agreed to send Ms. Cui a letter raising the possibility of a perjury prosecution and then send a letter to the respondents' own security officers asking that they investigate the possibility that the crime of perjury was committed on campus. Mr. Richman should have recognized that such extra-judicial efforts to put pressure on Ms. Cui to retract her charges against petitioner in this proceeding and in the arbitration proceeding were highly improper. The court is particularly disturbed that although Mr. Richman has since expressed regret at having sent these letters, he has nevertheless retained an attorney who has argued, inter alia, that the two letters did not constitute threats to Ms. Cui. This argument is disingenuous. The only purpose of the two letters was to threaten Ms. Cui with criminal prosecution if she did not retract her claims that the petitioner engaged in offensive and inappropriate conduct. [*4]

Clearly, the respondent is entitled to the injunctive relief it seeks restraining the petitioner and his agents from threatening or attempting to unduly influence its witnesses or prospective witnesses. As to sanctions, the respondent seeks an order awarding it the costs, including reasonable attorney's fees, which it has incurred in bringing its motion for injunctive relief. Part 130 of the Rules of the Chief Administrator Rules provides, inter alia, that costs may be awarded against any party or attorney who engages in frivolous conduct, which is defined, inter alia, as conduct that is "undertaken primarily .....to harass or maliciously injure another...". 20 NYCRR §130-1.1(c)(2). Under the Rules, an order of costs may be made upon motion after a reasonable opportunity to be heard. See 20 NYCRR §130-1.1(d). Here, the petitioner and Mr. Richman have had ample opportunity to oppose the respondent's application for costs and have, in fact, submitted extensive opposition papers. Their papers, however, are unpersuasive. As the court has already stated, the two letters written by Mr . Richman at petitioner's behest were obvious attempts to threaten and intimidate Ms. Cui into retracting and changing her testimony. As such, they represented efforts to essentially harass her for the purpose of gaining advantage in this proceeding if the court were to order a factual hearing and certainly in the arbitration proceeding. Such conduct is sanctionable and the respondent is therefore entitled to recover the reasonable costs it incurred in bringing its motion.

In this respect, the respondent's counsel, Fulbright & Jaworski, L.L.P., has submitted a time sheet reflecting the services it performed in bringing the motion for injunctive relief. The firm claims to have spent almost 63 hours on the motion and seeks fees in the amount of $32,349.50. The court finds that the number of hours spent and the fees sought for a single, relatively simple motion is excessive. The court concludes that $15,000 is an appropriate and reasonable fee award. Mr. Richman will be responsible for paying $10,000 of this award and petitioner himself will be responsible for $5,000.

Accordingly, in motion sequence number 001, the petition is denied. In motion sequence number 002, the respondent's motion for injunctive relief is granted and the petitioner and his agents are hereby enjoined from threatening or attempting to influence outside of the arbitration proceeding any of the witnesses and prospective witnesses of NYIT in that proceeding. In addition, the respondent's motion for costs is granted and the respondent is hereby awarded costs against the petitioner in the amount of $5,000 and against Labe M. Richman in the amount of $10,000.

The Clerk Shall Enter Judgment Herein

Dated: 10/15/07MARYLIN G. DIAMOND, J.S.C.

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