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Finding an attorney relied on inflammatory language to incite a jury, an appellate court Thursday threw out a $20 million discrimination verdict won by a gay worker at the Supper Club in Manhattan. The unanimous ruling from the New York Appellate Division, 1st Department, vacated what one attorney said was the largest discrimination verdict ever won by an individual in the United States. “While the issue of this case was sexual orientation discrimination,” the court wrote in Minichiello v. Supper Club, 1231, “plaintiff’s counsel presented to the jury inappropriate matters involving African-Americans, Latinos and Jews that went far beyond any permissible boundaries and served no other purpose than to incite the jury’s passions.” The 1st Department also faulted Supreme Court Justice Emily Jane Goodman for several trial errors and demeaning comments she made toward the Supper Club’s attorney. The court ordered a new trial before a new supreme court judge. Steven Minichiello, a former manager at the Supper Club, a dining and dancing club on West 47th Street, won the verdict last May after a six-week trial. Minichiello, who began working at the club in 1992 and was fired in 1995, claimed that employees repeatedly humiliated him and called him discriminatory epithets like “faggot” because of his sexual orientation. He also said that two weeks before being fired, he was held down by a consultant to the club while the club’s general manager, Andre Cortez, threatened to cut off Minichiello’s ponytail with a pair of scissors. The Supper Club denied all the charges, claiming that Minichiello refused to cut his hair in order to be eligible for a promotion after several of his regular duties at the club were eliminated. The jury found that Cortez had committed assault and battery, and that Minichiello was fired because of his sexual orientation. The club and its owner, Martin Theising, were found liable for $10.2 million in compensatory damages and $10 million in punitive damages. But Thursday, the 1st Department found that the tactics of Minichiello’s trial attorney, Alan J. Rich, “prevented a fair and dispassionate consideration of the evidence.” The court said that Rich made “forced analogies” between Theising, who is a German national with an accent, to Nazi Germany and the Holocaust. Rich also elicited “highly prejudicial” testimony “with little or no probative value” about Cortez’s alleged drinking and his alleged assault on an employee who was dying of AIDS, the court said. “We find that the aggregate effect of such comments and conduct of plaintiff’s counsel, which cannot be characterized as inadvertent or harmless, inflamed the jury’s passion and sympathy to such an extent as to render the resulting judgment meaningless.” Rich said in an interview Thursday that he was disappointed with the ruling and felt his client would again prevail at a new trial. “I certainly never called anybody a Nazi and I would not,” Rich said. “This is a case about discrimination.” Former New York State Supreme Court Justice Edward J. Greenfield, who represented the Supper Club on appeal, said he had been confident that the 1st Department would not affirm what he said was the largest discrimination verdict he had ever seen. “[The judges] indicated that they are not going to tolerate the wholesale introduction of irrelevant and prejudicial material,” Greenfield said. “I spent 30 years on the bench, and I don’t recall ever seeing or hearing about a case that was so badly handled.” JUDGE FAULTED In addition to faulting the work of Rich, the 1st Department said Justice Goodman should have let the Supper Club introduce evidence that it did not treat its other employees abusively. Such evidence is allowed under � 8-107 (13)(d)(2) of New York City’s Administrative Code, the court said. “Further, the trial court made a number of demeaning comments in the presence of the jury demonstrating a marked antipathy toward defense counsel which, in light of the totality of circumstances at trial, warrant a new trial,” the appellate court wrote. Greenfield said the comments questioned the trial attorney’s abilities as a lawyer. The court also said Goodman should not have denied a missing witness charge against Minichiello for his failure to produce his therapist and a treating physician. And the court added that even if there had been no need for a new trial, it would have reversed the $20 million verdict. “The jury’s grossly excessive compensatory and punitive damages awards … have no rational basis,” the court said. Nehemiah S. Glanc and Mark W. Moody also represented the Supper Club. The panel included Justices John T. Buckley, Ernst H. Rosenberger, Alfred D. Lerner, Israel Rubin and George D. Marlow.

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