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Dismissal of Suit Against AVP Upheld

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Two gay men accused of rape rebuffed in effort to sue victims’ agency

While sympathetic to two gay men who were accused of rape in 1998, a state appeals court has affirmed the dismissal of the negligence lawsuit they brought against the New York City Gay and Lesbian Anti-Violence Project (AVP), the victims’ services agency that aided their accuser in bringing the rape charges.

“While the circumstances giving rise to this action are tragic and plaintiffs have suffered greatly, the motion court properly concluded that the complaint, which essentially alleges that plaintiffs were negligently prosecuted, fails to state a cognizable claim for relief,” a unanimous five-judge panel wrote in a November 6 opinion.

Paul Galatowitsch and Raul Perez, the two men, sued AVP in 2002 charging the agency was negligent when it aided the third man in bringing rape charges against them.

The case stems from a 1998 sexual encounter that Galatowitsch and Perez say was consensual. The third man says it was not. Roughly one week after the encounter, the third man went to AVP and claimed he had been raped. With AVP’s assistance, he filed a criminal complaint.

Galatowitsch voluntarily surrendered for his arrest though the charges against him were dropped in 1999. Despondent over the case, Perez attempted suicide in early 1999 but he was never charged. They sued, but a lower court dismissed the case last year.

The appeals court agreed.

“Because plaintiffs’ injuries resulted from prosecution or the threat of prosecution, plaintiffs may not recover under broad general principles of negligence; instead, their remedy, if any against defendant, was a malicious prosecution suit,” the court wrote. “Plaintiffs may not circumvent the requirements and short statute of limitations for malicious prosecution by labeling their claims as ones for negligence.”

Malicious prosecution alleges that an unsuccessful criminal proceeding was brought without probable cause and with malice. The one-year statute of limitations for such a suit passed in 1999.

Galatowitsch was not surprised by the appeals court ruling.

“Gay people are frequently excluded from obtaining justice in the legal system,” he said. “The agency’s violation of clinical social work standards, which directly harmed us, constitutes negligence. Nothing could be more plain. We believe that under the law governing negligence, AVP is, in fact, liable and we intend to ask permission to appeal.”

The Court of Appeals, the state’s highest court, requires parties in lawsuits to ask permission to appeal decisions. Lawyers for AVP also said they were not surprised by the decision.

“AVP is pleased though not surprised that all five justices agreed with the lower court and held that this case was properly dismissed,” said Joseph Evall, AVP’s lawyer, an AVP board member, and a partner at the law firm Orrick, Herrington and Sutcliffe. Barbara Moses, a partner at Morvillo, Abramowitz, Grand, Iason and Silberberg, another law firm, was co-counsel for AVP.

Galatowitsch and Perez represented themselves in court.

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Updated 5:17 pm, July 20, 2018
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