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A jury’s $932,000 award to a man who claimed to have been beaten and subjected to anti-gay slurs by employees of a Manhattan nightclub has been overturned by the Appellate Division, First Department. The unanimous, four-judge panel exercised its discretion to rule on an unpreserved issue of law, holding in Rosso v. Beer Garden, 2842, that the trial court improperly relied on the New York City Human Rights Law, which was enacted more than a year after the alleged assault took place. For the full-text of the decision, http://nycourts.law.com/CourtDocumentViewer.asp?view=Document&docID=53328 . The incident occurred on the night of June 17, 1990, while the plaintiff, Garry Rosso, was at the Roxy, a Chelsea club that hosts both gay and straight nights. Mr. Rosso was “intentionally and severely assaulted and beaten” by Roxy employees, according to his complaint. The attack was allegedly “accompanied by vicious and malicious anti-gay epithets directed at plaintiff by the Roxy staff.” Mr. Rosso claimed to have sustained “severe and serious personal injuries, a severe shock to his system, and grave internal injuries, and was caused to suffer severe physical and mental anguish as a result.” In an interview, defense attorney Emanuel R. Gold denied the staff’s use of anti-gay slurs and contended that Mr. Rosso initiated the incident by “barging into the DJ booth.” Mr. Rosso filed claims against the Roxy’s corporate owner, the Beer Garden, and its sole shareholder, Eugene Dinino, alleging battery by the Beer Garden and, separately, Mr. Dinino. Pursuant to the Human Rights Law, it alleged discrimination based on Mr. Rosso’s actual or perceived sexual orientation. The jury awarded compensatory and punitive damages, costs and interest, totalling approximately $1.1 million. Justice Richard B. Lowe III, presided over the trial, entering the verdict in December 2002. On Thursday, the appeals court reversed the discrimination cause and reversed and remanded the battery cause, finding three bases for the reversals. First, the trial court erred in submitting the Human Rights Law violation to the jury, the appellate court ruled. “As we have previously noted, that law ‘does not provide a private cause of action for aggrieved individuals before its effective date of September 16, 1991,” the panel wrote, quoting Batchelor v. NYNEX Telesector Resources Group, 213 AD 2d 189. The attack took place 15 months before the law’s inception. The appellate court noted that the defendants failed to preserve the issue, either at trial or by motion to set aside the verdict. Nonetheless, it deemed the error “to be sufficiently fundamental to warrant exercise of [the court's] power to review an unpreserved issue of justice.” The trial judge also erroneously submitted to the jury Mr. Rosso’s battery claim against Mr. Dinino, which had already been dismissed pursuant to a summary judgment ruling, the appellate court ruled. That decision, the panel held, “was the law of the case, and the court should have adhered to it at trial.” Finally, the panel held that the admission of hearsay evidence regarding prior alleged incidents at or near the club constituted reversible error. Mr. Gold said that the jury verdict had gone against the weight of logic, arguing that a gay club would not discriminate against gays. “Their Saturday night is the biggest club gay night in the world. In order to do that, you have to have real credibility in that world,” said Mr. Gold, a former state senator. “It’s been 15 years now that they have this [positive] reputation in the gay community.” The attorney for Mr. Rosso, solo practitioner Steven A. Rosen, declined to comment, except to say that he disagrees with the ruling. – Mark Fass can be reached at [email protected].

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