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Attorney?s letter to witnesses in a grievance proceeding held an attempt to threaten or influence a witness

Attorney?s letter to witnesses in a grievance proceeding held an attempt to threaten or influence a witness
Kalyanaram v New York Institute of Technology, 2009 NY Slip Op 04349, decided on June 4, 2009, Appellate Division, First Department

After investigating complaints from 37 students alleging that Gurumurthy Kalyanaram, a member the New York Institute of Technology?s faculty had engaged in inappropriate conduct during class, the Institute sent a letter to Kalyanaram notifying him that, pursuant to the collective bargaining agreement (CBA) governing faculty employed by New York Institute of Technology, "you are hereby dismissed, effective as of May 21, 2007, for engaging in serious professional misconduct."

The letter asserted that Kalyanaram denigrated students' intelligence and ethnicity, made sexually explicit remarks, demeaned other faculty members at an affiliated college and made sexual advances toward female students.

The CBA provides that in the event respondent decides to "suspend or dismiss a faculty member," he or she may file a grievance, in which case the parties will utilize the CBA's grievance and arbitration procedures. The CBA also provides that the faculty member "shall be paid until the review procedures set forth herein are exhausted and a final determination rendered,? and the Instituted continued to pay Kalyanaram his regular salary pending resolution of the grievance proceeding.

After filed his grievance on June 4, 2007, Kalyanaram filed a special proceeding pursuant to CPLR 7502(c), seeking to ?compel arbitration.? Supreme Court dismissed Kalyanaram petition as he had already triggered the grievance/arbitration procedure but granted the Institute?s motion enjoining ?[Kalyanaram] and his agents from threatening, or attempting to influence any of the witnesses or prospective witnesses in the arbitration proceeding. In addition, Supreme Court awarded the Institute costs pursuant to 22 NYCRR 130-1.1(c)(2) totaling $5,142.50 as against Kalyanaram and $10,142.50 as against his attorney, Labe M. Richman, Esq.

In his dissent, Judge Tom described the attempt to influence witnesses as follows:

?[Kalyanaram], already represented by an attorney on his claim of wrongful termination of employment, retained a criminal lawyer whose sole contribution was to send a letter to [the Institute?s] witness stating that her testimony against [Kalyanaram} could constitute perjury, followed by a letter to the respective director of security at each of [Institute?s] New York campuses asserting that "an investigation by your office will lead you to the conclusion that [the witness] committed perjury in violation of New York Penal Law Sections 210.05; 210.10."

The Appellate Division, including Judge Tom, affirmed the lower court?s decision with respect to granting the Institute?s motion prohibiting Kalyanaram and his agents from threatening, or attempting to influence any of the witnesses or prospective witnesses in the arbitration proceeding, but vacated Supreme Court?s awarding of costs.

Judge Tom, in his dissent, agreed that Supreme Court?s granting that portion of the Institute?s motion barring attempts to influence witnesses was a proper exercise of the court?s discretion. He, however, would have also awarded the Institute costs, ?concluding that the imposition of costs and the award of attorneys' fees against Kalyanaram and his additional counsel ?was a provident exercise of Supreme Court's discretion.?

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_04349.htm

Full post as published by New York Public Personnel Law on June 08, 2009 (boomark / email).