INDEX NO. 153826/2017 FILED: NEW YORK COUNTY CLERK 12/15/2017 03:48 PM NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 12/15/2017 Motion SUPREME COURT COUNTY OF OF THE STATE OF Sequence NEW YORK NEW YORK ------------------------------------------------------------------------X In the Matter AHMAD and of, SOFIA AWAD, JULIE SAPPHIRA DADAP, LURIE, Index No. 153826/2017 Hon. Nancy NORRIS, Petitioners, -against- FORDHAM M. Bannon UNIVERSITY, Respondent, For a Judgment Civil Practice to Article Pursuant Law and 78 of the Rules. ----------------------------------------------------------------------X MEMORANDUM OF LAW PRELIMINARY IN TO PETITIONERS' OPPOSITION INJUNCTION AND EXPEDITED MOTION FOR A DISCOVERY CULLENandDYKMANLLP 100 Quentin Garden (516) 1 of 31 City, 357-3700 Roosevelt New York Boulevard 11530 #3 INDEX NO. 153826/2017 FILED: NEW YORK COUNTY CLERK 12/15/2017 03:48 PM NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 12/15/2017 TABLEOFCONTENTS STATEMENT PRELIMINARY STATEMENT OF FACTS .................................................................................................... 1 ............................................................................................................. 4 ARGUMENT.................................................................................................................................. 7 POINT 7 I .......................................................................................................................................... ARE PETITIONERS POINT ULTIMATE RELIEF II......................................................................................................................................... ARE PETITIONERS 1. NOT Petitioners a. b. Fail Petitioners' Private POINT THE SEEKING TO A PRELIMINARY ENTITLED to Show Irreparable Constitutional Claims Harm are ............................................... 7 . . . ...... 8 .. ........................... INJUNCTION............... ............................................................ Misplaced Since Fordham University.................................................................................................... Petitioners 2. Petitioners 3. The Cite Cannot Balancing Certain Show of the Fordham a Likelihood Equities Plainly Policies of Tips That Success in Favor Are on the Facially ARE NOT ENTITLED I 2 of 31 is a . .................. 12 Irrelevant... 14 16 of Fordham.................... .................... 20 TO DISCOVERY................................................. CONCLUSION............................................................................................................................. 9 Merits..................... ..................... III...................................................................................................................................... PETITIONERS 8 .. 21 21 26 INDEX NO. 153826/2017 FILED: NEW YORK COUNTY CLERK 12/15/2017 03:48 PM NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 12/15/2017 TABLE Abinanti v. 41 Pascale, Al-Khadra v. Syracuse — Al-Khadra v. Allawi Bellis Dept. 2007) ...................................... 865, 866, 737 N.Y.S.2d 491 Univ., 291 A.D.2d 865, 866, 737 N.Y.S.2d 491 of New Medical v. Albany (2d A.D.2d Suffolk Ct. 740 291 University (Sup. N.Y.S.2d 837 395, Univ., Syracuse v. State 31748836 A.D.3d OF AUTHORITIES York Nov. Cnty. of College at Stony 15, Union Index Brook, Dept. 2002)............ Dept. 2002)......... ......... (4th 136 A.D.2d 19 N.Y.S.2d 525 42, 932 (3d Dept. 1988).......................................................................................................................................... ~ ~~ ~~ ~~~~~~~ ~ ~~~~~~~~~~~e~ ~~~~~~~~~~ ~ ~~ ~~~~ ~~~~~~~ ....... ~~~~~~~ Bramble New v. York Dept. City of 125 Educ., A.D.3d 856, 4 N.Y.S.3d 857-58, 238 (2d New l Vl ~1'I fT York, affd 1962), 12 N.Y.2d N.A. Citibank, ' Commodari Cir. F.2d '. Univ., Island 834 N.Y.S.2d 275 273, 632, VJV) 21, 231 l N.Y.S.2d VJ Jl ~ J VA 634, f) kJ (1962)............................................................. (2d 89 F.Supp.2d Cir. 353 17 1985)..................................................... snnm (E.D.N.Y. caw affd, 2000), L.L.C. Index, v. RiskWise 282 Int'1, A.D.2d 246, 722 247, 62 10 F. App'x ~ sores 13 N.Y.S.2d 862 (1st Dept. 2001) ................................................................................................................................................... Inc. Earthweb, v. Case Schlack, No. WL 2000 99-cv-9302, 20 at *2 1093320, (2d Cir. 18, May 2000).......................................................................................................................................... Ebert v. Yeshiva Elrod v. Ct. Estee Lauder Fernandez Cty. Cty. U.S. Inc. Vision, Nassau Nassau 427 Burns, Emerging 28 University, 2006), 347, 373 v. Main on A.D.3d 315, 315, 813 10 N.Y.S.2d 408, 409 (1st Dept. 2006)............ ...... cal Inc., 10 Misc.3d 11 Misc.3d reconsideration, 1071(A), 815 1057(A), 814 560 N.Y.S.2d N.Y.S.2d 494 (Sup. Ct. v. Columbia Inc. v. Batra, University, F.Supp.2d 430 16 A.D.3d 227, 158, 228, 790 176 9 (S.D.N.Y. N.Y.S.2d 2006)................ ................ 603, 603 (1st Dept. ................................................................................................................................................... Galiani (Sup. 2006)....................................................................................................................... ........................................ Companies v. Hofstra Univ., 118 A.D.2d 572, 499 N.Y.S.2d .. ii11 3 of 31 182 (2d 19 12 (1976).................................................................................... . .................................................................................... Place 26 (2d uVyl Dept. f JV) 414 TJ f (khk 410, .................................................................................................................................. 2003) Credit 756 v. Citytrust, . v v. Long 235 802, 17 A.D.2d I I 4 4V&lk 13 Dept. 2015).................................................................................................................................... Carr St. JQQl John's a7 University, Ql ~ v. ~ U4 Vill 1VI a)ll 19 WL 2002 15830/2002, 3 ................................................................... 2002) Univ., No. (4th 9 10, 11 2005) 19 Dept. 1986)............................ 17 INDEX NO. 153826/2017 FILED: NEW YORK COUNTY CLERK 12/15/2017 03:48 PM NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 12/15/2017 v. Hofstra Galiani University, Products Gerber (Sup. Ct. v. Steam Hanlon v. New Hyman v. Cornell v. New Katz State York Athletic dismissed Matter 182 (2d Misc.3d 47 Health, 375 A.D.3d 1265, 1266, 1986).................... Dept. 249, 3 N.Y.S.3d 253, 267 688 A.D.2d Section v. N.Y.S.2d 528 of New 679 N.Y.S.2d U.S. 660 (2d (2d High Public Dept. denied 851 1117(A), N.Y.S.2d 816, of Merill Lynch v. Ct. Orchard Pena Ct. N.Y. Cty. People 195 Doar, 37 v. Raab, Putter v. City Bd. Real of Prop. . Servs., 253 A.D.2d Burr, A.D.3d 434, 435, Health Ctr. 737 141 N,Y.S.2d 140 A.D.2d 542, 544, 589, 394 8 Misc.3d 927, 1993)......................... ......................... Dept. 857 (1st 33 30, (2d Dept. Dept. 11 1988) 2015)......... ......... v. Konstantinidis, 40 Misc.3d 617, 800 930, 967 619-20, Misc. 163 407 Miles, of 3d Misc.2d F.2d New 73, York, 960 1201(A), 382, 79-81 27 621 (2d A.D.3d N.Y.S.2d 440 N.Y.S.2d Cir. 250, 51 (Sup. (Dist. Ct. Ct., 811 111 4 of 31 N.Y.S.2d 13 N.Y.S.2d 277 9 (Sup. N.Y.S.2d 823, 824-25 (Sup. 9 Cty. N.Y. Nassau 29, Ct. 9 2012)......................... ...................,..... Cnty. 1994)................. ................. 1968)....................................................................... 253, 16 2002).................................... Dept. (2d 21 N.Y.S.2d 12 N.Y.S.3d N.Y.S.2d v. Blasco, 528 (2d 25 8, 15, 2013)..................................................................................................................... Cty. v. State 600 447, v. 129 A.D.2d York 24, 2005)...................................................................................................................... LLC Powe A.D.2d Inc. Univ., New V. 2007) 21, 1999)............................................................................................. Dept. Community Mamt., v. Val. Assoc., York 291 Cty. N.Y. (2d Realty Lacey, Monroe Pleasant College, v. New Mitchell OTG 74 v. Union Melvin Oak of N.Y.S.2d 685 Neos Town 697 22 ....................................................................................................................................... Matter 16 appeal 1998), (Sup. 3 School 93 N.Y.2d 64 26 2003).... .... 9 Dept. 2012)................... ................... Dept. State 2015). Dept. 2011)............. ...,......... Dept. 678 25 10 ........................................................................ 1155 17 Misc.3d (3d (1st York to appeal leave 493, 226 518 (4th 386 N.Y.S.2d N.Y.S.2d VIH 320, 320, denied 943 547, 19 N.Y.S.3d 760 319, 318, 23, 1995).............................. Dept. (2d 17 21, N.Y.S.2d 918 1310-11, 547, A.D.2d v. Doherty, N.Y.S.2d 306 A.D.3d 847, certiorari Nespoli of 628 1309, School 255 Inc., 564, of 95 High 93 N.Y.2d N.Y.S.2d Dept. 133 82 A.D.3d Univ., Assoc., N.Y.S.2d 499 572, 440, v. Balabanow, Memorial Kellenberg State Police, Univ., LLC Constr., York A.D.2d 216 Heat, York A.D.2d 2014).......................................................................................... Cty. Albany Golden JDOC v. New Co. 118 31 (1st Dept. 8 13 13 2006)............. ............. 8 INDEX NO. 153826/2017 FILED: NEW YORK COUNTY CLERK 12/15/2017 03:48 PM NYSCEF DOC. NO. 94 v. New Quercia Roberts Reed, Rosa Hair (2d v. v. Fire Stapleton Corp., ., 218 538 N.Y.S.2d 303, 794, 793, (1st 386 307-08, A.D.2d 66 N.Y.2d Mall, 97 A.D.3d Inc. Dept. 2007).............. .............. N.Y.S.2d 631 677 N.Y.S.2d 951, 949, v. Chepenuk, 948 N.Y.S.2d 498 496, N.Y.S.2d (1976)...... ...... 16 Misc.3d 1121(A), 12, 847 Marine 574 573, Ins. (1st LLC Studios, v. York Co. Claims Service, 308 Inc., 168-169 167, (1985)........................ ........................ (3d Dept. 2012)............... .......,....... 905 N.Y.S.2d (Sup. v. Cornell Corp. Suit-Kote Ulster Home Uniformed of New v. City . v. Rivera, Inc. 734 Capital A.D.2d 137 York, Assn. 1361, 255 of 510 816, A.D.3d v. Vacco, Firefighters United Cty. 126 Univ., Care N.Y.S.2d 10 A.D.2d 765 349, 347, 7 A.D.3d 273, 274-75, 776 8, 11 N.Y.S.2d 46 (1st A.D.2d Greater N.Y.S.2d 75 (3d Dept. v. City of New 73, N.Y. (3d 313 Dept. 642 26 N.Y.S.3d 1365, (3d Dept. LLC v. Benisvy, 48 Misc.3d v. Mount St. Mary 137 Coll., A.D.3d 79 N.Y.2d 14 236, 581 ...9 18 N.Y.S.3d 1203(A), 1293, 21 2016).............. .............. 1999)......................................... York, 582 (Sup. 1295, Ct. ...... 28 N.Y.S.3d 433 (2d Dept. Zartoshti v. Elmira Coll., v. Columbia 59 A.D.3d University, 909, 79 910, A.D.3d 873 470, 381 N.Y.S.2d 471, 911 . . . ... 9 2016) . lv 5 of 31 16 (3d N.Y.S.2d ................................................................................................................................................... 9 Nassau ................................................................................................................................................... Warner 22 13 1987)............................. . (1992)................................................................................................................... Source, Dept. 21, 2015).................................................................................................................................... VanHouten 16 Ct. 2004).................................................................................................................................... Stone 13 2003)...................................................................................... .. Dept. 9 8, 12 99 457 456, 16 2007)..................................................................................................................... and N.Y.S.2d 383 296, 40 N.Y.2d Food Haven College, Cty. Paul 295, v. Strauman, v. Jaber Smith Dimensions, Albany Inc. A.D.3d ..................................................................................................................... 1995) Union 41 Univ., Inc. Stylists, Alliance Spinal St. York Assocs., Dept. SHAD Shah RECEIVED NYSCEF: 12/15/2017 Dept. 623, 2009)......................... 623 (1st Dept. 3 2010) 19 INDEX NO. 153826/2017 FILED: NEW YORK COUNTY CLERK 12/15/2017 03:48 PM NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 12/15/2017 Sequence Motion STATEMENT PRELIMINARY this Affirmation" Affirmation"), petitioner and known as campus; Justice Keith in the As student club 78 seeking and official On June failure ' A copy as SJP, review the 5, 2017, to state a Dismiss" Dismiss") of the Petition A copy of the eCourts of action was to fully is attached CPLR pursuant CPLR to the Ryan (last visited on July "Petition" "Petition") 14, 2017) 1 6 of 31 to its decision to for Eldredge" Eldredge"), in CPLR motion argument a forming CPLR to a defense oral Students deposition employee to University's and on Lincoln pursuant 2017 formed named pursuant and be interested Fordham's (1) Gray" Gray"). ("SVP support, order: organization (" ("Dean campus (the Dadap") an available students The as Exhibit Affirmation December make 2017 to a club forming 3211(a)(7) 17, club relating at Fordham on 3211(a)(1).2 § 3211(a)(1). submitted a student to Petition § of financial deny the for Center (the (SJP) dismiss to in Petitioners, club "Petitioners" "Petitioners"), documents Affairs to student of 15, (" ("Petitioner Dadap a student Lincoln petition decision permit University 2017, verified moved pursuant Docket the a proposed University cause evidence to to the December a decision interested Student 26, University's the recognition filed students for April on to copies directing President aware, with at Fordham's Students Vice (collectively, produce (3) Sofia submits respectfully dated Ryan, petitioner interfering of "University" "University") the G. ("USG") to and of is known to documentary "Motion Court from a group ("SJP"); Senior Gray, Jeffrey to of motion Government status James Norris" Norris") University Dean of the University the the Eldredge, and 2 Student Palestine to (" ("Petitioner United club affirmation the opposition the University deny and Norris directing or University enjoining the (2) law in Julie preliminarily for of memorandum "Ryan ("Fordham" Fordham Respondent 03 Article assistance Center campus.1 for § 7804(f), founded to upon dismiss was (the originally "A". is attached to the Ryan Affirmation as Exhibit "B". INDEX NO. 153826/2017 FILED: NEW YORK COUNTY CLERK 12/15/2017 03:48 PM NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 12/15/2017 for scheduled rescheduled March for has to has nothing earlier date) Dadap and the relief. changed for was filed show cause with semblance of the same by injunctive relief As 3 in this when absent A copy of the Interim of Sofia oral 2017, argument Cause" Cause") and the in Petitioners relief. is not else) student Order At club is attached sworn 2017.4 2017. not, attached in and 2018 This for an attempt was (hereinafter the 2017 Petition. argument (to relief an Petitioner when impatience Court to that to the via order there Show did to is some Cause and Brief' Brief") ultimate Petitioners this with "Petitioners' as (i.e. Notably, motion, information. Order referred same very instant injunction this so as respectively, 2019, a preliminary to persuade 2017 Petition, apparent Petitioners' support the new is not Petitioners' of oral to surprisingly, 26, was do 26, requests April Petition graduate Petitioners' of rescheduled affidavits motion in Not law the in July submitted fully indeed, to instant as relief) not for move filed. Petitioners' anyone a proposed See Affidavit the injunctive (or the motion is nor can they, the health, below, First, 26, foundation and as a result 2017, of in April was very in forth on case. arguments detailed Petitioners concerns Show Petitioners warranted. harm to the scheduled filed Dismiss scheduled set Court memorandum requested not "Order urgency accompanying contains As the Petitioners (the Court in November calendar, October dated to as to were Norris Nevertheless, Court's this 2018. January Motion the Similarly, since Petitioner Petition since changed injunctive warrant Order Interim By 2018.3 3, 2018. January Nothing 2018. 14, bottom, at issue and the to the Ryan in this without Affirmation to on April that safety, employment The Court afforded as Exhibit 7 of 31 they must pursuant will injunction suffer and/or remember to is irreparable of livelihood that applicable this case university "C". 19, 2017, at ¶ 1 ("I am a junior Dadap, of Julie Norris, Affidavit sworn to on April 2017 at ¶ 1 ("I am a sophomore 19, urban studies and minoring in computer sciences.") 2 a preliminary and demonstrate case. privilege merit at Fordham at Fordham University."); University see also majoring in INDEX NO. 153826/2017 FILED: NEW YORK COUNTY CLERK 12/15/2017 03:48 PM NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 12/15/2017 guidelines such by organize to a club the is a privilege University, they Israeli-Palestinian in and at In recognition this involving Where the the students is not be v. Cornell Warner v. Elmira dismissal 260 of A.D.2d. A.D.2d 865, A.D.2d at 993-94)). 866, by Coll., 59 see 993, 737 A.D.3d also 689 N.Y.S.2d its N.Y.S.2d 491 Soc. 292 (4th supervision ultimate the (3d Dept. of as set forth below the continues to afforded universities will and reaches not be 918 N.Y.S.2d Engineers Dept. 1999); 2002) (quoting 3 8 of 31 381 a high v. 226 (3d its Al-Khadra level Rensselaer of deference. its decision, of (3d Dept. 2011) and 2009), Polytechnic v. Syracuse Soc. alter determinations a court Rensselaer to Petitioners by Dept. club procedures. request, a rational N.Y.S.2d official university disturbed institution seeking ignore this University the deny actually in and of to to college the control are herein, contained of preclude and University errors of status discussion and decided relief direct 873 to University 1310-11, 909, Rensselaer the and 1309, 909, of duty procedures capricious fact, encouraged, Petitioners scrutiny with In club topic. permit factual judicial limited, A.D.3d to and follows 82 Univ., the Court that and its after seeking reality arbitrary to year this extremely petition); 992, one substantially deemed Hyman attendant procedural legal to inequitable therefrom. University important and form to ability official denied awareness arising The club. were promoting the this financed Petitioners issues Dismiss, about asking many ignore a university will to almost are complex wholly Petitioners, and Notwithstanding the it deems regard, SJP, quo to be from precluded and/or would policies to status continue not conversation it enforcing the were and while Moreover, Motion continued large. a right. University's Second, a Fordham-sanctioned not conflict the encourage, from form and of action he law. (citing affirming Institute, Univ., Engineers, 291 260 INDEX NO. 153826/2017 FILED: NEW YORK COUNTY CLERK 12/15/2017 03:48 PM NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 12/15/2017 as more Lastly, because denied granted this Petitioners relief to an Article in the meet forth in the campus of exhibits) Affidavit (without of of the Students matter application Director ("Dr. for provides guidance Wenzel"). and Ryan is attached to have students court's to the the on Student June Lincoln at See support Lincoln the Wenzel to student Center by Fordham, leaders ¶ central looking 6. the and on June Wenzel of a copy Center Keith 5, 2017 Affidavit the Eldredge through Dean of Eldredge, club. campus at and to Dr. Affirmation.5 Affirmation. Ryan is the Affidavit "D" to the student Involvement of a copy as Exhibit denial the sworn set of Lincoln Affidavit" Affidavit") "Wenzel facts affidavits at the campus, reference, "E" as Exhibit (the Center of ease Involvement 2017 5, a Fordham-sanctioned Student be to be required relevant moving accompanying Affirmation concerns simply Office undergraduate the bar the summarizes briefly for Office to high and must discovery OF FACTS and at Fordham's For exhibits) Fordham's 5 Director is attached this Again, clubs. Dismiss Affidavit" Affidavit"). (without for to sworn mandate statutory University Motion University, Dean "Eldredge Petitioners' the Fordham the convenience, Wenzel, the Eldredge, Court's University's A. Dorothy (the the expedited 78 proceeding. STATEMENT For for request below, failed have extraordinary Petitioners' set forth fully hub and The to Dr. Office build, for all Dorothy for develop student A. Student and club activities Wenzel is its Involvement maintain their II For a complete the Court review to the fully of the facts submitted Motion of this the University refers repetition, case, and to avoid wholly unnecessary to Dismiss and all of the affidavits and exhibits attached thereto. In addition to the moving a copy of the Wenzel in Further Support of the University's Motion to Dismiss, Affidavit affidavits, "F" Affidavit" Affirmation sworn to on July 17, 2017, ("Wenzel is as Exhibit to the Ryan and a attached Reply Affidavit") of sworn 2017 the Eldredge Affidavit in Further of the University's Motion to to on Support 17, Dismiss, copy July "G" (" Affidavit" ("Eldredge is attached as Exhibit to the Ryan Affirmation. Reply Affidavit") 4 9 of 31 INDEX NO. 153826/2017 FILED: NEW YORK COUNTY CLERK 12/15/2017 03:48 PM NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 12/15/2017 When the students University's Club copy of instruct students who wish process to and place followed.6 followed. be since April to the when Then, Senate of USG, who has he was application Wenzel Eldredge's Unless the (Dean final the approval 17, same date, informed of USG's As Affidavit. assessment noted, in to fully research all references proposed club's the paperwork as the had and submit in Student Operations to edits (Dr. USG is submitted it Thus, is the I_d. full the satisfied, the Wenzel) if necessary. application M. has USG The are 5, specific United Involvement Committee pg. at at ¶ 8. recommendations determination. Senate approve with set into to Exhibit to the the forth voted "O" Exhibit wrote accordance more and h Eldredge decision status USG the campus. Dean the to recommended Student additional Operations final the for Fordham Affidavit. provides a to the Dean, not the at the authority. 2016, Center On the club for Director makes USG the and "A" that known Wenzel the a club, Guidelines, as appropriate organization the and the out constitution Thereafter, Eldredge) fill Club Exhibit Affidavit form to campus process Wenzel See The as Center approval 5 to at pg. Affidavit Lincoln student a Thereafter, club. club must club's and the leaders constitution Director the want campus at ¶ 7. Wenzel on campus. of Affidavit the Center "A" M. proposed Lincoln otherwise club proposed November for Lincoln club. the Students On University's on contain Exhibit club's proposed votes Dean 6 the both a club also the to attached Committee the proposing the form See reviews students to prospective ("USG"). Committee reviews on Operations Government is They 2015 Specifically, same which Center Lincoln S_ee Wenzel control. Guidelines correct true University's at the enrolled Petitioners SJP club the proposed this "A" represent 5 10 of 31 and Wenzel and chapter "A" at pg. 5. SJP club saying review would Exhibit of a students Motion University's Exhibit other h as Affidavit. he now that Guidelines. local SJP approve 2 to the the Club in at pg. to "P" to took at pg. SJP's 1 to the Dismiss, many that hours Dean over INDEX NO. 153826/2017 FILED: NEW YORK COUNTY CLERK 12/15/2017 03:48 PM NYSCEF DOC. NO. 94 several RECEIVED NYSCEF: 12/15/2017 weeks. In representatives hand. See conducted his at On Eldredge to the Eldredge own Eldredge In some of his in debate on advocating when these goals of the University. There is Specifically, a statement and disagree submitted the the their in Palestine continued conversation conflict of the Eldredge Dean "A" at pg. 1 Dean representatives, a club to ways to of that toward of United Israel I however, national Students this. I welcome provide promote Student academic open, campus; the it from surround purpose Sanctions for with way and conflict, club, on affiliated alternative that the rigor values understanding. and need country, and points and is purpose The dialogue. the to and specific mission constitution approve best encouraged sole a the to own my as Students conversation whose learning to are against Divestment is the issues students than club mutual and Israeli-Palestinian rather intellectual form about the issues materials, known encourage contrary than vote organization and the thereto. students a club and acknowledged promotion to run Boycott, and we group, proposed for Center proposal important (emphasis 2017. that Justice the form organization and topic dialogue Lincoln an polarization call announcing at discussion Id. to open a barrier in view, with to the with Dean S_ee Exhibit club matter with other campus. While and specific a complex stated as and and to University. of conflict leads familiar attached proposed staff request support of more often organization Government for no the deny cannot clearly that polarization. presents I the faculty, points goals is perhaps a topic to at Fordham topics, political with numerous decided "J" Center the discussions, application Lincoln discuss as follows: concerns political all at the to these Exhibit the correspondence Palestine diverse promote status with I have Justice In club to and reviewing time professors addition at ¶ 20 BL, took as multiple In 15-19. after 2016, Eldredge as well research. official deliberation, the at ¶¶ consultation for it Affidavit, Affidavit. explained After parties 22, SJP Dean decision, concerned independent December denied Eldredge all from his to coming of awareness multiple this perspectives. added). As noted See Exhibit on Petitioners above, July "A" 17, to the 2017. the commenced Ryan See Affirmation. Exhibit instant The "B" to 6 11 of 31 Article University's the Ryan 78 Motion Affirmation. proceeding to Dismiss Oral on April was argument 26, fully is INDEX NO. 153826/2017 FILED: NEW YORK COUNTY CLERK 12/15/2017 03:48 PM NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 12/15/2017 for scheduled h 3, 2018. January Petitioners filed a motion discovery. The University order by now "C" Exhibit to files show cause Petitioners' to On November Affirmation. a preliminary seeking opposition its Ryan to the Order 2, 2017, injunction and Show Cause. to expedited ARGUMENT POINT ARE PETITIONERS In the (1) Respondent Directing Students (2) for the (3) rights of RELIEF pursuant judgment CPLR to § such Granting "A" Exhibit other in Palestine." at decision Reinstatement Fordham to members of granted, USG. absent pgs. and of reverse afford the other clubs form SJP club a club named recognition official at Fordham; procedures and deems with to to 1-2. just to for in USG's overruling proper. and seek would pg. to injunction. where 7 12 of 31 the "A status order "preliminarily Fordham's United of named a club Petitioners believe by Fordham's unlawful injunction h ht, affirmative abide an 1. a preliminary reinstated. and a mandatory of caused involve decision issue recognition at harm decision USG's decision Cause, Petitioners Court the official the remedy circumstances, that the Show decision Eldredge's amounts extraordinary requested application to have USG's Dean This to all policies Court interfering is necessary Brief, final as the Eleee Order Petitioners' Eldredge's by its Petitioners from injunction preliminary to Affirmation. approving Justice enjoyed violated Petitioners' Government University privileges relief 2, 2017, Respondent enjoining Petitioners (SJP); Fordham Ryan to the to permit and SJP; On November be seek University Fordham and that Declaring (4) Fordham Respondent same approval See ULTIMATE Petitioners 2017, 26, in Palestine Justice Directing with for THE SEEKING as follows: 7806, h on April filed Petition, I by the at pg. Students that "[a] action." ignore Dean 2. conduct on the part decision of the student mandatory quo to Student would injunction be disturbed should and of not the INDEX NO. 153826/2017 FILED: NEW YORK COUNTY CLERK 12/15/2017 03:48 PM NYSCEF DOC. NO. 94 plaintiff Co. RECEIVED NYSCEF: 12/15/2017 receive would York v. Claims Rosa (citing 168-169 'the 51 Ct. N.Y. 29, 31 (Sup. N.Y.S.2d SJP as an 19. Reinstatement for has been an status at pg. 349, actually As As 12. recognized obtain such, a mandatory club alters at 574 relief Rosa (citing status sought St. Hair in Paul Stylists, 631 27 A.D.3d Ryan relief in on that Such of of now that the and Marine Ins. to Inc., 218 A.D.2d at 794, to the SJP 631 to change without A.D.2d 308 a Petition, causes seeks Co., of "A" impermissible Fire SJP. guise Exhibit effectively is of at pg. the 47 h 811 253, Affirmation, paragraph Petition of establishment under a request 167, N.Y.S.2d 960 establishment campus. 2003) N.Y.S.2d 250, is the the to Ins. as a means York, ultimate the Dept. 1201(A), the quo. (1st 3d acknowledge the 574 injunction permitting injunction Marine Misc. "A" club and 794, Petitioners by the recognized "extraordinary N.Y.S.2d obtain Petitioners ultimate the sought to as an officially New of equivalent to 793, 37 Doar, Exhibit seeking A.D.2d Fire 573, a preliminary See club. is v. City relief circumstances[.]" of 765 and v. Ultimate injunction. officially quo showing are seek Pena Putter decision USG's not Paul St. N.Y.S.2d 765 349, Corp., ., 218 action.'" recognized established Affirmation, Food (citing University 347, "should 2006)). a preliminary not become the Dept. of Jaber in their 2012) Petitioners request Ryan (1st official, Therefore, SJP relief Cty. v. lite." pendente sought, A.D.2d Petitioners 1995)). ultimate obtaining 308 Inc. Stylists, Dept. relief Inc., Service, Hair (2d ultimate the N.Y.S.2d a at at 168-9). POINT ARE PETITIONERS "It granted established is absent well settled a pursuant that showing to NOT the by the law and TO A PRELIMINARY ENTITLED a Preliminary Injunction of movant upon II the a clear undisputed 8 13 of 31 is right facts a drastic of INJUNCTION remedy which entitlement as adduced will thereto, in the record." not which United be is INDEX NO. 153826/2017 FILED: NEW YORK COUNTY CLERK 12/15/2017 03:48 PM NYSCEF DOC. NO. 94 Capital RECEIVED NYSCEF: 12/15/2017 2015) Nassau Cty. Cty. N.Y.S.2d (2d 678 LLC Mgmt., Cty. Dept. v. 2013); N.Y.S.2d 277 (Sup. injunction is granted;" 8:" 619, 967 this N.Y.S.2d Petitioners "The single demonstration decision that on the to if merits it can be issued cautiously" cautiously") 79 N.Y.2d 236, be OTG 581 N.Y. that Cty. the LLC 2013). N.Y.S.2d 306 A.D.2d the strong be issued v. judicial 319, 760 belief that (Sup. Ct. 386 307-08, 927, 800 930, a preliminary Uniformed Firefighters 734 (1992)). demonstrates: unless .. Lacey, to satisfy sought (1) "a the injunction 291 A.D.2d 434, Misc.3d 617, 40 Konstantinidis, junction Ct. that rule movant failure (Sup. OTG 824-25 303, also (Sup. cautiously." N.Y.2d v. 560 318, 8 Misc.3d Neos Cty. see 494 823, harm Nassau N.Y.S.2d 815 40 the The preliminary 814 N.Y.S.2d favor." ." Mgmt., 2007)); general s or her his Dept. (citing irreparable in (2d Blasco, a also of one any is prong of be denied. Harm for prerequisite rendered." is "danger Irreparable granted v. (2) Ct. law Ctr. when 2002); is not Health Ct. N.Y.S.2d Strauman, only Dept. of v. granted equities Show Inc. be of the (Sup. 967 619-20, ("[i]t York, of should that 2005) merits;" important most Balabanow, is a product 617, should can as a matter Fail threshold (Sup. 1071(A), 1057(A), v. Assocs., Cty. of New 823,824-25 requires LLC 582 740 N.Y.S.2d Mise.3d Community and the (2d 11 high Orchard balance 394 N.Y.S.2d 10 Misc.3d Roberts Reed, injunction "a Inc., Misc.3d Monroe on Optical, Constr., 40 v. City success 8(3)" and (3) analysis 1. N.Y. 837 remed[ies]" remedy preliminary of 737 Ct. 395, "extraordinary Oak a drastic Greater likelihood 435, e.g., A.D.3d This 2003)). are see, (1976); A JDOC Konstantinidis, 677 of Place 18 N.Y.S.3d 1203(A), reconsideration, (citing N.Y.S.2d Assn. on injunctions preliminary N.Y. Main Misc.3d 41 Pascale, v. 2006), 2006) 48 Benisvy, v. Inc. Vision, Nassau v. Abinanti (citing Emerging Ct. LLC Source, [Plaintiffs are] Estee Lauder the 9 14 of 31 issuance likely to Companies of a preliminary irreparable suffer Inc. v. Batra, injunction harm 430 before F.Supp.2d is a a INDEX NO. 153826/2017 FILED: NEW YORK COUNTY CLERK 12/15/2017 03:48 PM NYSCEF DOC. NO. 94 174 158, RECEIVED NYSCEF: 12/15/2017 (S.D.N.Y. 2006) (emphasis added). more just than Spinal To a mere Cty. Albany 1995)). 2007) The (citing Estee Case Schlack, Court and may on the not benefit relief in threshold to sanctioned not will suffer remote *2 at N.Y.S.2d nor speculative, at 174 (citing (2d Cir. May F.Supp.2d 1093320, N.Y.S.2d 628 440, an 1985)) is injury relief." 905 (Sup. 375 (2d but Ct. Dept. actual and v. Inc. Earthweb, 18, 2000)) (internal the Motion Petition will longer at pg. 2. that both Court, Petitioners a club] which both is In a junior. further will this action proceeds and Fordham not rise is denied, a favorable Petitioner Dadap, in Norris suffer to will be acknowledge to the that a college in delay harm." irreparable denied by is a senior, who fashion conclusory decision longer the event, any continue contend and Dadap they benefit not "[i]f because, Dismiss Petitioners Petitioners this to surely who Norris, harm irreparable "[w]ithout experience one." be an important Id., 15. These afforded WL Fordham's the rights, from if Petitioner Brief, [participation do of Petitioners' at pg. 430 Inc., A.D.2d is neither that 2000 they even merits their vindicating prompt 216 Cir. injunctive absent 847 (2d such that imminent 12, 275 273, demonstrate 1121(A), Heat, injury ... and likely Misc.3d Steam Companies that allege course, ordinary this See an 99-cv-9302, Petitioners its show must F.2d 756 omitted). quotations in v. is fact, 16 Golden Lauder No. in and, Chepenuk, "must movant imminent." v. v. Citytrust, "Plaintiffs threshold, possibility Inc. Dimensions, this meet N.A. Citibank, (quoting reasons prove and have an irreparable financed a privilege do unequivocally and unqualified injury. club are is a privilege, simply or As unhappy unfettered to the the noted, not of to ability a contractual with Dean to right level have 10 15 of 31 Eldredge's their detriment organize right. required form and Here, were Students, clubs or meet the a University Petitioners decision. proposed to however, organizations not INDEX NO. 153826/2017 FILED: NEW YORK COUNTY CLERK 12/15/2017 03:48 PM NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 12/15/2017 recognized by the Moreover, as seen Motion SJP to the by in the Instead, University. Specifically, employee resources to with that privilege. The bare allegations F.Supp.2d Dept. rely to support 1993) two privilege is injury "is any served noted and change the a showing 765 before status of assertion not a decision the actual was devote its imminent." of its without not the supported financial constraints as, contrary. support club that harm and the to in requisite irreparable a the outcome this to of status and associated without more, such Estee Lauder, 430 the lawsuit. quo (i.e., are decides and obtain the 574 (citing the ultimate the preliminary matter relief on that Paul Stylists, 11 16 of 31 financed the Petitioners Fire Inc., and 218 Melvin, college seek Marine A.D.2d was a request that is impermissible Co., 794, in the status currently seeks to without 308 631 at 448. Id. none at the injunction where at A.D.2d enforcing to alter Ins. be a student classes). injunction Such cannot the a preliminary SJP, (2d pending 195 from attending club, merits. harm Melvin, of continued St. Hair the student seeking In 15. dishonesty. issuance The and this Rosa at pg. suffer to 141 N.Y.S.2d experience [college] enjoining IL 600 447, continue academic injunction circumstances[.]" at of a University-sanctioned Court that will Petitioners a finding Petitioners of Brief, "extraordinary N.Y.S.2d denial Petitioners' preliminary the case, this quo and See due "the A.D.2d 195 College, that litigation." the create actually exists, in Union v. compensation to preserve above, to the sought pending Melvin Melvin semesters student suspension 349, that on of for The quo, show this law University University without choosing of the or a pro-Palestinian SJP, have Petitioners' of denial with remedied determination 447. to Petitioners suspended As fail a club have with to wanted the by to affiliated facts supporting submitted alternatives being they no at 174. adequately final on insist papers other have they provide Petitioners detailed very Petitioners Dismiss, moniker. and University A.D.2d N.Y.S.2d at at INDEX NO. 153826/2017 FILED: NEW YORK COUNTY CLERK 12/15/2017 03:48 PM NYSCEF DOC. NO. 94 168-9). RECEIVED NYSCEF: 12/15/2017 2017 it Finally, in form the and encourages also bears with the Petitioners proposed to Israeli-Palestinian the facilitate and the discourse that manner other the Dean by it the sought While an affiliated the are moniker Claims ways method Petitioners by which to ability simply cannot of their choosing. are Misplaced do divisive can about invoke to have so is not with the to dialogue debate and in impacted the A issue. vehicle any financial Fordham Since University preferred so status conversation one do club the seek, and to continue in University official to pursue is encouraged Their to than at ¶ 3. denied complex very club only Petitioners Constitutional continue different mandate. the now this the Affidavit, were off worse any from graduated Petitioners discuss are they _S_ee See Wenzel and many Petitioners decision. under of not issues University and SJP is certainly Eldredge's Petitioners' a. they debate whom of motion. although is one Today, both that, club Israeli-Palestinian of the support topic. to that demonstrate as to this silent continue to Lurie, repeating conflict. on effort affiliation conversation, discussion are sanctioned University no Sapphira and of whom both and make Awad Ahmad Petitioners May Petitioners Further, is a and Private University Petitioners an alleged cite deprivation hold generally that pg. 15.7 15. Here, actions are misplaced. at Elrod of no v. Burns, a constitutional further Fordham 7 is or sponsored of a private Party. They by the Democratic and Fourteenth Amendments. complaint court denied their injury, the district for failure to state a claim upon which with instructions to enter appropriate preliminary such irreparable injury is institution and, thus, of Cook with for (1976), is involved, or threatened the First 373 347, employees inter alia, irreparable U.S. right showing In Elrod, plaintiffs were non-civil service complaint alleged that they were discharged with 427 the as the proposition S_ee "[w]hen speech, courts Petitioners' Brief, constitutional Illinois, County, discharge solely sought to free right necessary." that challenges a governmental employer. to its Their because they were not affiliated and other relief for violations of, to make an adequate showing of declaratory, injunctive, that the parties failed Finding motion their for a preliminary injunction and ultimately dismissed relief could be granted. The appellate court reversed and remanded injunctive relief. 12 17 of 31 The U.S. Supreme Court affirmed, holding that INDEX NO. 153826/2017 FILED: NEW YORK COUNTY CLERK 12/15/2017 03:48 PM NYSCEF DOC. NO. 94 To State 498 in occurred the speech." 99 Nassau of v. 599 2000), "[w]hile 1988), the State citations 313 (3d Dept. due process another F.2d see F. 79-81 73, 28 (2d Union University, students at public universities invoke 1987) (asserting provision constitute a sufficient policies) "[a] is a showing would a private also see otherwise degree (internal of in Stone that be A.D.2d are meet they what would deemed in involvement quotations omitted). "the loss of First Amendment for even minimal freedoms, injury." citations omitted). Elrod, 427 U.S. at 373 (internal to periods 13 18 of 31 are 30, appeal 89 the court 525 A.D.2d 816, fashion activity", allow from an of time, (1st Dept. and at the of State, intrusion unquestionably that into v. Dept. private showing activity." 510 N.Y.S.2d constitutional itself finding 385 Beilis (3d private involved 2015) 353, 932 818, free N.Y.3d in State's the to 26 requirement 126 some 33 students deemed invoking right N.Y.S.2d threshold to the found process, actors' of F.Supp.2d a 443 440, 'state denied, be assistance state due Univ., has N.Y.S.2d ..626440, otherwise private financial to the requirement State 44, N.Y.2d 621 Univ., As 42, entitled v. Cornell the (same). 2003) to Island 66 Mall, violation leave Long by Haven 12 N.Y.S.3d 1968)), v. 136 threshold received university, Cir. Cir. unless itself involved omitted); setting, rights such (2d interference employees alleging 544, 542, Commodari also App'x claims 386, their interference, from Smith Misc.2d .26182, 382, nor Amendment governmental freedoms v. First the Dismiss, from All. universities A.D.3d 129 Univ., of defendant, disciplinary 62 somehow (internal York 163 including College cannot universities claims, freedoms SHAD See private to individual protect not v. . Raab, People (2015); aff-d, individual University. "Neither 407 Miles, Medical the (1985); v. New Mitchell (E.D.N.Y. Albany Motion University's do they constitutional 18 N.Y.S.3d 908, as 1994). Cty. purpose Powe (citing the protect Elrod; such N.Y.S.2d Ct. (Dist. in as noted Constitution organization 496, that and end, York as what private for this Y880««66186616' New such RECEIVED NYSCEF: 12/15/2017 in that alone the in what, although does not university's constitutes irreparable INDEX NO. 153826/2017 FILED: NEW YORK COUNTY CLERK 12/15/2017 03:48 PM NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 12/15/2017 Petitioners' constitutional Consequently, a private Fordham is generally extend b. to private ditch a last "Fordham's that and Petitioners short, relief and students and Related Incidents of citation relief injunctive that it was prosecution involves students cannot resulting policy" Home at pgs. 15-16. irreparable Elrod, protections do not inflicts harm do not have that is which no the First serious. less In preliminary constitutional to See freedoms together meld Mission policy. to warranted Demonstration the contend 16. attempt as Fordham's expression" of comparable broader same concerning as well Policy, is at pg. Petitioners exists, injury Petitioners enjoy, none as that the Irrelevant Facially expression Brief, Fordham "freedom Are Petitioners' S_ee of in unlike because, Amendment where free to same may various the Policy, in Statement Petitioners' Brief, Bias an effort at pgs. 9- reasons. cherry pick bits and amalgamation of thought at Fordham to and of pieces be "rules" of there dialogue, Petitioners' despite different is attempt institutional the institution. no "free speech to cobble one policies and While the policy" or together. Care inc. v. Vacco, 255 A.D.2d misplaced. 73, 75 (3d Dept. 1999) is similarly In Ulster, the operator of a licensed home care agency sought declaratory and enforcement of a public charge regulation General the New York on the by Attorney vague unconstitutionally and the constitutionality in forming are not implicated, interested rights many to Ulster Brief, to prevent criminal constitutional for rights commitment they Crime expression expression Petitioners' that That injury that Care." omnibus the encourages 8 Petitioners' ground fails deem "freedom See of Hate Petitioners University the policies and/or argument unilaterally of First and Policies students' institutions public type First, to Home inapplicable some This an irreparable recognizing at distinct 10. to suffered Ulster Apparently, to create Fordham create fails Fordham.8 as Fordham. such violation the have in Elrod that effort actor a state Certain commitment Amendment's, not institutions Cite Petitioners In and university challenge and ambiguous. of the public a University as Fordham the operator was faced Notably, charge was implicated. Contrastingly, sanctioned is a private club. There institution. 14 19 of 31 is no threat of criminal with the threat the instant prosecution of matter and INDEX NO. 153826/2017 FILED: NEW YORK COUNTY CLERK 12/15/2017 03:48 PM NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 12/15/2017 there Second, none been has alleged. Petitioners' Petitioners' citations Petitioners' seeks to other life receive than create use the of views with of In this to SJP. They the simply do resources sum, remains despite a simple to have the clubs at to do and so and have so. Thus, Policy inquiry required of to the right (see to have make University policy 15 20 of 31 the a Establishing oversight which of grant Petitioners still to and implicated the more in not is University that merely staffing their this views, the physical, otherwise. complicated case the support financial, state S_ee under privilege promote not appear would administrator otherwise provide does Statement acknowledge. this free ways which club by and Mission Petitioners Fordham matter cultures or of expression... choosing, member a faculty Statement this the by habits life-long articulate of their individuals Mission to and club are like-minded Fordham's only not students in involves all property, its 3. Nowhere enjoy. Petitioners attempt The of also all for student any chose company Petitioners' case. at pg. Fordham University not Court. Crimes of reverence and supervision and Nonetheless, enjoy (see the did they Hate and Policy mislead that freedom reflection understanding Brief, financing demanded. and an in moral a viewpoint-it 2. The allege the foster Petitioners' express at pg. Petitioners or employee is, student to creativity, students space University Brief, associate for to solely and/or "guarantees truth....seeks students See a right Incidents Statement for Demonstration designed they matter this misplaced. thinking, its meeting Petitioners' terms quest Fordham's do in at issue gathering and nor claim bias public to Bias-Related 3, 9) is also own." a student a file Fordham's in recognized "allowing" irrelevant the their funding, officially is wholly Mission develop Fordham does 3, 9-10) critical observation, (and) and and thinking careful citation Fordham's Finally, rigorous Petitioners not to at pgs. Brief, such, did Petitioners Similarly, or protest demonstration, As at pgs. Brief, of is no and than before it this INDEX NO. 153826/2017 FILED: NEW YORK COUNTY CLERK 12/15/2017 03:48 PM NYSCEF DOC. NO. 94 is Court RECEIVED NYSCEF: 12/15/2017 the process at Fordham. Motion to in Lynch entitled Realty to judicial and Coll., academic rules interpretation New the institution Dept. omitted); Shah (internal citations As more v. capricious." the University's Petition be should 547, such 547, 97 College, A.D.3d own York to whether it: the they "It (i) 41 also neither A.D.3d are 949, 948 N.Y.S.2d Dept. that matters and v. 838 Mount St. of to "a its rational Katz (internal citations 457 (3d Dept. an own capricious. 2012) 456, 296, review on is guidelines 295, based nor arbitrary (1st established adhered "substantially 518 is not Judicial 2016). N.Y.S.2d 951, rules Merrill status VanHouten determinations are club well is a that 1988). nonacademic Univ., Dept. Dept. official published see (2d that 943 its 433 whether (ii) to omitted); N.Y.S.3d is limited evidence" A.D.3d Union citations 7. stated facts." the (2d 857 involving New v. from SJP at pg. determination adhered is plain deny been it has N.Y.S.2d to Brief, 28 and 528 592, Merits success), right decision Quercia 1295, the Petitioners' (internal guidelines"; relevant 589, substantially 1293, 95 Univ., A.D.2d S_ee determination and unless institution's 2007) A.D.3d of the York University educational institution's published registration in the and as such, the of likelihood Fordham's scrutiny." and (1st 137 140 on Success (i.e. injunction, v. Burr, an of requirement claim, arbitrary 538 first Petitioners' whether N.Y.S.2d Mary Inc. of not below and, policy approval club described As that with a Likelihood a preliminary judicial "close to was to to review limited Show to the Assoc., Contrary subject 7-8. at ¶¶ complied University Cannot respect is not Affidavit official the contains entirety. its "With which Guidelines, Wenzel the Petitioners 2. party h Dismiss, dismissed Club University v. 2012) omitted). fully complied set forth with its in the policies University's and Motion procedures, 16 21 of 31 to Dismiss, acted in the it is beyond exercise of debate honest that discretion the INDEX NO. 153826/2017 FILED: NEW YORK COUNTY CLERK 12/15/2017 03:48 PM NYSCEF DOC. NO. 94 and In RECEIVED NYSCEF: 12/15/2017 neither was on short, Club decision, via Eldredge wrote and decision to review of the Dept. 1986) review of the expelling facts." Dept. 1962), a student, St. See 2016. 22, has it the was Galiani a SJP Eldredge that in the at Fordham. same he this Dean date, was of informed the in request Affidavit. of discussion research, chapter students' forth set review hours status. communicated Wenzel many have could request to form on a SJP at ¶ 21 Affidavit University, N.Y.2d its remaining upon Hofstra neither exercise the upon the 235 York, and the club Exhibit 17 A.D.2d arbitrarily 17 22 of 31 834 499 572, (1962) but in its whether the N.Y.S.2d 634, to 231 (" ("When the exercise a full after discretion as so 632, followed discretion honest capricious is Court of honest exercise N.Y.S.2d not jurisdiction, of University the A.D.2d nor arbitrary the for inquiry Univ.,118 New 802, that demonstrated based student, John's within only v. was 12 been "based facts, aff-d acts December the to club a club that stating of denied as 1. On needed after existence Eldredge SJP 1 to the at pg. and process at pg. now he official VP of Operations students "P" the approval & that process, that Dean once status club to suspend v. USG Exhibit approval practices, operative Carr intervention); (2d and (decision The SJP deny Affidavit. that operative and and to approved voted interested club effect on Eldredge SJP other the thereafter. shortly See club with Affidavit. SJP campus, settled deny the campus policies Senate and potential Center well USG Guidelines. the Center accordance decision its rendering in Eldredge in the link on is established 414 last 1 to the It Club in Wenzel approve the Lincoln at pg. the Petitioners the to the Lincoln at the "A" to deliberation Fordham 2016, Dean to email, with As 17, 2 to the at pg. decision accordance capricious Guidelines, "O" Exhibit USG's nor November University's See arbitrary 182 after warrant (2d a full judicial N.Y.S.2d 410, in a university, of an honest INDEX NO. 153826/2017 FILED: NEW YORK COUNTY CLERK 12/15/2017 03:48 PM NYSCEF DOC. NO. 94 discretion not RECEIVED NYSCEF: 12/15/2017 based on the exercise more fully set the issue, review As examination of comments from assessment weeks. conducted email lengthy supporters, after receiving the some this the position Fordham sanctioned SJP chapter of In addition at ¶ 20 E, their and were based due to polarization fact mere chapter after that Dean does simply not many these the "J" to the including equate did to Eldredge not his viewpoints 2016 22, in with Petitioners, that he reviewed Dean own, safety and support the a supposition Eldredge Affidavit. contrasting materials on several Dean discussions some Eldredge's over On December voluminous Eldredge hours the to the of the obtaining Dean discussions, vetted. totality issues, took addition equally and decision. of consideration and his Exhibit in on the or parties and of SJP to supporters, application to the interested The local community, opposed from basis 15-19. of position his rational research. Fordham the the may thorough Eldredge's review a lengthy a court discretion, Dean Dismiss, in proposed ¶¶ to of exercise engagement supports at application community.9 community. his the justify Motion University's issue, independent those Fordham the Affidavit, of Petitioners' denied in into describing their discretion"). of and members its that knowledge through research position other its forth sides own his within of Eldredge Petitioners' of all and See facts Eldredge of security creation that the a the of decision a is irrational.10 irrational. In club followed process 9 ¹° although sum, recognition its that to policy, took place Petitioners SJP, this are governing Court at the should University displeased law not with dictates that second-guess or substitute the decision University's because the its judgment the club for to deny University approval that official substantially and of University deliberation officials. See Eldredge at ¶ 17. Reply Affidavit Petitioners' Petitioner cites to Healy v. James, 408 U.S. 169 (1972) (see is misplaced, as the dispute involved "a denial by a state college of official " ... Fordham is not a state college, but rather, a private institution. To the extent citation students 18 23 of 31 Brief at pg. 13), again, this to a group of recognition INDEX NO. 153826/2017 FILED: NEW YORK COUNTY CLERK 12/15/2017 03:48 PM NYSCEF DOC. NO. 94 There is should indication with (3d Dept. that respondent 2006) and Dept. 737 866, 492 (4th Judicial the reasons stated Consequently, the motion New at Stony Nov. 15, outlined For of all York Suffolk Cty. where petitioner terminate in and its procedures his submitted residence Columbia rules 491, in the a preliminary Brook, Index no at the sanction Dept. with A.D.3d where literal 227, 228, (respondent accordance v. Columbia two-year guidelines and compliance" 790 603, "substantially 291 Univ., substantially with N.Y.S.2d university Syracuse (1st 409 (upholding from v. in own "no supported 408, Zartoshti its private — Al-Khadra 2002) N.Y.S.2d 2010) deviation 16 Univ., adhered A.D.2d to the Handbook). sections above, injunction No. preliminary evidence which was Petitioner must 15830/2002, (denying university the regulations); System for 2002) complied from resulting Dept. was is amply procedures); (1st 623 N.Y.S.2d there proceeded university and where 813 Petition 918 1310, determination 315, where policies 623, its 315, decision disciplinary governing A.D.3d 1309, decision and substantially v. (upholding N.Y.S.2d 28 N.Y.S.2d A.D.3d the and decision, disciplinary disciplinary prejudice 82 Univ., procedures, Univ., its Fernandez own its university no 2005) its by from University's the university's 911 private Cornell expulsion 471, 470, disturb to v. Yeshiva observed procedures); abided" 865, v. demonstrated (1st Hyman university's where handbook e.g. (upholding Ebert A.D.3d "petitioner Court deviated substantially suspension the 2011) (affirming 79 Univ., 603 See evidence"); Dept. for basis dismissed. 228 the no simply be 226, by RECEIVED NYSCEF: 12/15/2017 be denied. arbitrary 19 24 of 31 establish succeed on the Allawi v. State See WL 31748836, motion in 2002 injunction would cannot that or capricious). Article respondents' at *2 78 merits. Univ. (Sup. Ct. proceeding determination to INDEX NO. 153826/2017 FILED: NEW YORK COUNTY CLERK 12/15/2017 03:48 PM NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 12/15/2017 The 3. record burdensome to imposition of 722 247, no affords debate and student has been part chapter of campus due and safety injunction suffer absent motion. his be the For be best all relative granted, the to to aforementioned [they v. of has will the given the the and current polarizing speculative equities restrict clubs Petitioners' reasons, be denied. 20 25 of 31 for weighs is favor motion and Dean for and years that Lincoln and a local Center commensurate were Petitioners the might Petitioners' denying a preliminary a Eldredge, (11) trumps to undermine to Fordham of free at large any harm 246, University would determined and overarching are a eleven prejudice potential in than Fordham's the Petitioners institution over effects and and case, years, and hardship injury, the for (20) resulting potential of twenty of more A.D.2d than however, be through harm other Fordham's position inappropriate plainly balance In was University, no control and over for greater "since will 282 L.L.C., methods institution. his Int'l Fordham, favor University] suffered using their sustain to [the sustain in lie likely to have supervision held equities RiskWise against the Fordham are] caused be conflict who regulate the Petitioners operate the injunction, that issued. to to show Fordham regarding Here, of 2001). duty the Favor L.L.C. administration by in injury injunction its how issues. right an Index, Dept. fulfill to concerns Fordham's privilege. must to that likely preliminary sanctioned security to A Fordham's SJP, they, harm professional, of can Israeli-Palestinian on experienced senior, (1st club. discretion its the Credit the ability nor believe injunction discuss University's to than 862 a preliminary impede reason Tips Plainly not, injunction." an should the have [them] N.Y.S.2d sanctioned Equities the Petitioners Finally, the of Balancing Petitioners' injunction INDEX NO. 153826/2017 FILED: NEW YORK COUNTY CLERK 12/15/2017 03:48 PM NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 12/15/2017 POINT ARE PETITIONERS In an "[b]ecause 78 a special need for 253, 3 N.Y.S.3d 267 New York Bd. State (emphasis added); (Sup. N.Y. Ct. discretion in For that: the (1) such v. New Failure York leave requested unduly (2) be not Dept. Dept. of proceeding for in A.D.3d inappropriate leave City to serve the 78 856, where Department a late 21 26 of 31 Val. 1117(A), 851 N.Y.S.2d Supreme Court proceeding, the party V. 1999)) has in discovery v. the Corp. of 857-58, 64 broad Article 78 New of City . v. 2007 Education claim was arising and (3) 238 from Dept. to necessary at *2 S_ee Bramble (2d failed 1361, 3084870, discovery. 4 N.Y.S.3d teacher of A.D.3d 137 WL show defense information; Rivera, for must or prosecution necessary leave petitioner of the 1117(A), denial of notice Pleasant LLC to obtain 17 Misc.3d the 74 249, 2004). Suit-Kote in of is a Misc.3d Studios, necessary to there Dept. permitted Article nature, Nespoli, 125 York an lee result have Dept. tailored must Educ., New (1st in delay. 2016); burden disclosure from undue while summary (2d 17 Misc.3d Thus, the 47 Town and, that Health, N.Y.S.2d S_ee Stapleton discovery is carefully create this for to of 685 15, Doherty, courts 46 is material request to meet City N.Y.S.2d of Matter 8, with it is demonstrated Dept. right" of as discovery inconsistent State (quoting § 408. circumstances. entitled (3d v. to where A.D.2d Nespoli limited discovery the 253 disclosure, 776 642 discovery delay to 2014) denying 274-75, does 26 N.Y.S.3d (same). very York Cty. entitled therefore v. New CPLR (same); is only Prop. . Servs., of and is granted Co. Albany Matter also proposed discovery 1365, Real or 273, proceeding; Ct. 2007) in a party the of Cty. only Products (Sup. see 7 A.D.3d York, Gerber granting proceedings discovery not is a case, prolong proceeding, relief." such to TO DISCOVERY ENTITLED petitioner "a proceeding, tends discovery of nature Article NOT III 2015) demonstrate and extensive would not personal INDEX NO. 153826/2017 FILED: NEW YORK COUNTY CLERK 12/15/2017 03:48 PM NYSCEF DOC. NO. 94 injuries In the SVP present Gray. Fordham's motivation disclosure, Petitioners when discovery Stapleton Dismiss for Studios, and, Dept. 816, entitled to 697 conduct request it entitled denied. of the dismissed N.Y.S.2d discovery for 93 564, with membership for at 275. As discussed is clear that respect in not where Eldredge disclosure dispute "need" See is concerning for to pursue issue." to relating Dean alleged 688 847, denied this limited Levine at Aff., particular for section 22 27 of 31 detail relief in on U.S. v. 320, their 1155 judicial of Section leave review state public of leave of New York appeal 660 (2d denied 93 schools administrative high their for high (nonpublic of to motion N.Y.S.2d to e.g., Motion merits VIII 679 320, 493, the where See sought. Fordham's succeed School N.Y.S.2d petition the be granted not Consequently, A.D.2d 528 to cannot seek. 255 should great High Inc., to entitled in they Memorial certiorari factual is at at 275. such opportunity discovery Petitioners relief N.Y.2d the R both that their justify "grants leave is Assoc., the decision party to the on granted law. stated, Kellenberg Athletic law a challenged moving supra, not School appeal N.Y.2d their are High 1998), II, be the 7 A.D.3d Section must Public that York To of argue be documents depositions focus only status. New that as previously LLC, therefore, disclosure State of in club underlying matter, Petitioners as to is a misapprehension establish and claim motivation 18. so the not all Stapleton students); sought. of disclosure (ii) tailored relief to the and other should discovery SJP, p. claim the (i) at SJP for of group by entitled Brief, denying simply an initial pleadings narrowly in however, As the and the to Petitioners' S_ee limited seek status club deny is not party Petitioners assault leave Moreover, moving action, to sufficiently the that decision Fordham's ¶ 8. This, at 274-75. establish from a student shielding 7 A.D.3d LLC, pleadings and when sustained Studios, the RECEIVED NYSCEF: 12/15/2017 school not denial athletic INDEX NO. 153826/2017 FILED: NEW YORK COUNTY CLERK 12/15/2017 03:48 PM NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 12/15/2017 was as proceeding association, in nature summary Petitioners' Regardless, Petitioners many have failed reasons he depositions These cases In Gerber (Sup. 408 to was for ripe Co. v. basis that discovery motion, an affidavit that while this at address in the to than in engage cite to two cases and questions, Petitioners' See a and/or documents however, action." applied (1) issue could this deficiency the be sought the at pg. Brief, to the basis the submissions failed compared, record, and to contain the (2) the it court 23 28 of 31 received any information found that Respondents for the court to which against data discovery sought was found explain R petitioner. criterion and The it failed from discovery determination at 252-53. determination, indicate to R issue. § the specifically, respondents' II CPLR to failed a need for basis thereto. for at demonstrate the as attachments to the failed More respondents determination the explained the the 3 N.Y.S.3d 249, pursuant discovery decisions. because rendering of for leave Misc.3d 47 Health, challenged necessary respondents affidavit in of Dep't petitioner the some provided because Consequently, was documentation relevant respondents criteria by State respondents' for that arguing affidavit for other anything a petitioner when challenged petitioner upon relied submitted the be permitted need because denied cannot Petitioners, granted be was requisite regard. be the York the factual the for New the was this will motive uncover data the must distinguishable. Prods. specific differential improper easily contended in "discovery 2014), provided would are that Cty. and cost matter that motivation Petitioners affidavit. facts disclosure Eldredge's demonstrate no Albany opposed since offer Ct. petitioner what an sworn his Dean that must They assertion denies, 267 in rather but their respondent 17. stated requested. support demonstrate to for request however, expedition fishing to contended schools disposition). summary the and by warranted. at the the 253. price petitioner R at INDEX NO. 153826/2017 FILED: NEW YORK COUNTY CLERK 12/15/2017 03:48 PM NYSCEF DOC. NO. 94 253-54. RECEIVED NYSCEF: 12/15/2017 N.Y. Cty. in considered reasons have Motion to not bare were in the SJP at process, (1) deposing Both Fordham's individual ¶¶ his letter of is no him would all need create to took Dismiss. in their cited therein undue Dr. These respective request at issue; 22, 2016, to email to delay Center and SVP not Gray, SVP Gray after Dean Constitutional SVP decision. in organization. the it Petition, involvement in involved improper the Gray As is clear themselves Petitioners Gray's Petitioners' University's for that and the involved with to Petitioners was SVP Eldredge's them support herein. are See decision-making motivation claim and proceeding. filed affidavits Dean the decision the motivations in became discussed Gray in the Wenzel only when illustrating SVP him he court conversations by and depose to correspondence and documents to depose and exhibits is known because explained fully to the and and correspondence relevant Therefore, Eldredge Motion this materials Eldredge-his — objection in engaged involvement Gray's of their been the claims. Dean December stating and where it evident question process on their Ct. (Sup. discovery making to support Petitioners' to position, have for leave 3084870 to need affidavit for reviewed decision its his order in documents is no status club recipients there of looking and 40-46. Dean the via letter SVP of here; sought decision-making a possession Petition, each in this extent data for WL 2007 1117(A), motion support to the Moreover, Fordham Petitioners (2) laid denied to statistical there Misc.3d petitioner's the rendering been responded already case Thus, Dismiss. sent the the Eldredge. involved Eldredge Rights not Fordham's Dean maker, was is access 17 Doherty, granted limited needed Same v. court offered only petitioners that that the 2007), respondent Nespoli in Similarly, lengthy each decision-making 24 29 of 31 and outlined exhaustive in processes great affidavits detail and each attached in support of and every step as exhibits all INDEX NO. 153826/2017 FILED: NEW YORK COUNTY CLERK 12/15/2017 03:48 PM NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 12/15/2017 documents relevant respectively attached Specifically, Petitioners' (2) Copies (3) Relevant (4) SJP's (5) Materials (6) Articles reviewed (2) Correspondence matter fail Petitioners need for disclosure. was only granted 3084870, As or can be Dr. Wenzel's possess fully and and (Sup. Ct. have failed provided already adequately Dean SVP to Gray's "T"); "S", and "V"); "D" (Exhibits whom with and Dean to in (1) and by Gerber to "E"); Eldredge some narrowly tailor show the from these the discussed detailed involvement, 25 30 of 31 and motion so as to justify leave for for 2007 documents identify as their contained materials leave by at 253-54. disclosure, with disclosure 1117(A), Misc.3d documents a provided documents so as to additional along their 47 request for "J"). 17 Misc.3d Co., accounts respectively, the Nespoli, their a need where that Prods. (Exhibit affidavits Nespoli and manner. Gerber (2) research demonstrate 2007); affidavits, limited independent excluded able Cty. analyzed Eldredge's JSO and contrast lacking N.Y. "G"); "W"). by was were and insufficient "Q", and individuals anything, stark in "U" persons petitioners because not illustrating is (Exhibit and "I"); if what, This Petitioners - "P", (Exhibit various decision. ultimate "K"); submitted interested from at *2-3 information are: "F" specify were respondents affidavit materials (Exhibits to Wenzel the "F"); constitution and (Exhibits JSO Dr. with Submissions (3) WL and "N" - of rendering (Exhibit (Exhibit by by Eldredge's with "H" the proposed and constitution submitted Emails constitution (Exhibits updated (1) are: application SJP's emails to Dean Attached affidavit club proposed of in Wenzel's to Dr. (1) considered that for they discovery claim in both already must INDEX NO. 153826/2017 FILED: NEW YORK COUNTY CLERK 12/15/2017 03:48 PM NYSCEF DOC. NO. 94 be denied. (2d Dept. (4th RECEIVED NYSCEF: 12/15/2017 See Hanlon 20215); Dept. v. New Bramble v. York New Dept. City State York of 125 Educ., A.D.3d 133 Police, A.D.3d 1265, 4 N.Y.S.3d 238 19 N.Y.S.3d 386 857, 856, 1266, 2015). CONCLUSION For Court the reasons, foregoing Petitioners' motion deny Respondent for a Fordham University injunction preliminary requests respectfully and expedited discovery entirety. Dated: December Garden 2017 15, City, New York submitted, Respectfully ND CULLEN James G. or Respondent Fordha Garden Fax: Email: Of Counsel: James Hayley G. B. Ryan, Dryer, Esq. Esq. 26 31 of 31 University Quéntin Phone: LLP , Esq. Attorneys 100 YKMAN Roosevelt City, New (516) 357 (516) 357 - Blvd York - 11530 3750 3792 iryan(f4cullenanddykman.com that in the its