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N.Y. Assembly Speaker Sheldon Silver’s continued legal association with a sexual assault perpetrated by his former top lawyer apparently will turn on whether an off-site encounter between two legislative staffers can be construed as a work-related incident. Assistant Solicitor General Edward Lindner argued before the Appellate Division, 3rd Department, Tuesday that neither Silver, D-Manhattan, nor the state can be held vicariously liable for an after-hours matter involving J. Michael Boxley and a legislative aide. Lindner insisted — assuming all the allegations in the civil suit are true — that there is simply no cause of action in which the victim can impose legal liability on the state or Silver because the alleged incident had nothing to do with the victim’s employment. The justices, however, appeared somewhat skeptical of that assertion, noting that the workplace of a legislative staffer is not necessarily confined to the corridors of the Capitol, and observing that alliance-building is part of the life and perhaps part of the job of an Assembly employee. Jane Doe v. Assembly/Silver and Boxley, 98201, is rooted in an incident that ended Boxley’s Assembly career and created political and institutional difficulties for Silver. The plaintiff in this case alleges that Boxley, a top aide to the Assembly speaker, exploited his power and prestige to take advantage of young women, and that Silver neglected to intercede. In her particular case, “Jane Doe” claims she was pressured by Boxley to join him and a group of lobbyists at an Albany nightclub. She told police she felt oddly disoriented, later suspecting that Boxley had perhaps slipped a date-rape drug into her drink. The woman said she remembers nothing until waking up in her apartment, with Boxley on top of her performing non-consensual intercourse. She said he raped her twice before leaving. Jane Doe reported the incident to police, resulting in an indictment charging Boxley with rape. However, due to her inability to recall much of what had occurred, no evidence of a date-rape drug and other problems with the case, Boxley was permitted to plead guilty to a misdemeanor in exchange for six years’ probation, a $1,000 fine and placement on the state registry of sex offenders. The victim responded with a civil suit against Boxley, Silver, the Assembly and the state. At the heart of her civil case is not only the alleged rape but another incident involving another woman, and Silver’s response to that incident. Court records show that in 2001 another legislative staffer lodged accusations against Boxley that were similar to those alleged by Jane Doe. At that time, Silver immediately declared his support for Boxley and predicted his confidant would be “completely exonerated.” The woman, who worked in the Legislature at the time, agreed to pursue the matter through an internal process rather than through a criminal complaint. Apparently, there were no repercussions to Boxley, who had denied any wrongdoing. Jane Doe contends that by 2003, when she was molested by Boxley, the speaker was well aware of Boxley’s “propensity” to exploit his position to gain an advantage with women in the Legislature. She claims Boxley repeatedly stressed the need to build relationships outside of the Capitol and, on one occasion, pressured both her and her boss — Assemblywoman Susan John, D-Rochester, N.Y. — to abandon prior plans and join him and lobbyists at a social function. AFTER-HOURS CONDUCT Lindner did not dispute any of the victim’s allegations, arguing instead that while her encounter with Boxley may have been necessary to enhance her own political career, it was not related to the job she was hired to perform for the state as a member of Assemblywoman John’s legislative staff. He insisted that neither Silver nor the state can be held liable for off-premises, after-hours, unsanctioned conduct which the speaker did not condone and had no power to prevent. He also noted that the victim was under no state compulsion to join Boxley at the nightclub, and apparently had rejected his advances on prior occasions without consequence. But the plaintiff’s attorney, Hillary Richard of Brune & Richard in Manhattan, said Silver implicitly “condoned, ratified, acquiesced and encouraged” Boxley’s behavior by refusing to take any action after the prior complaint. She said the “rape” of Jane Doe was entirely predictable, and preventable, and urged the 3rd Department to affirm acting Supreme Court Justice Thomas McNamara of Albany and permit the matter to proceed. Also appearing for the plaintiff was Paul DerOhannesian II of DerOhannesian & DerOhannesian in Albany. Presiding Justice Anthony V. Cardona and Justices Edward O. Spain, D. Bruce Crew III, John A. Lahtinen and Carl J. Mugglin were also on the panel.

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