The attorneys representing the founder of the #WalkAway movement and two of his colleagues in a discrimination and defamation lawsuit against the Lesbian, Gay, Bisexual & Transgender Community Center, two staffers there, and two individuals who objected to #WalkAway holding a town hall meeting at The Center appear to be advancing a legal theory that refusing to rent space to LGBTQ people because they are not embracing left-leaning political beliefs is the same as refusing to rent to them because they are LGBTQ.
“Mr. Straka and #WalkAway promote alternative expressions of LGBT identity by embracing the true meaning of civil libertarianism,” the attorneys wrote in their amended complaint that was filed in State Supreme Court in New York County, referring to Brandon Straka, the #WalkAway founder. “The LGBT Center… violates their own mission in addition to engaging in unlawful discriminatory practices by specifically targeting particular members of the LGBT Community whose expression of LGBT identity do not conform to the subjectively homogenous community for which they advocate.”
Straka, who is gay, founded the movement in 2018. It is intended to convince Democrats to abandon the Democratic Party and join conservatives in support of Donald Trump. Earlier this year, Straka and three LGBTQ colleagues — Blaire White, Mike Harlow, and Rob Smith — proposed to hold a town hall meeting at The Center to promote #WalkAway. Straka signed a contract with The Center and paid a $650 rental fee. Following a community outcry, The Center canceled the event and returned the fee to Straka. He sued in state court in June alleging that he, Harlow, and White had been defamed and discriminated against. Smith is not involved in the lawsuit.
The lawsuit names Glennda Testone, The Center’s executive director, Gabriel Farofaldane, a Center staffer, and The Center as plaintiffs. They are represented by Kevin Loftus, a partner at O’Connor, McGuinness, Conte, Doyle, Oleson, Watson & Loftus.
Jason Rosenberg and Gordon Beeferman, who were among the early supporters of the effort to bar the group, are also named as defendants. They are represented by J. Remy Green, a partner at Cohen&Green.
Trial courts are generally not receptive to novel legal theories like the one being advanced in this case. Gay City News wrote to a half dozen law professors who teach civil procedure at New York law schools. One declined to comment and the rest did not respond.
As important, the plaintiffs are facing motions to dismiss that could end the lawsuit.
Plaintiffs in civil suits are required to state the legal and factual basis for a lawsuit in their complaint, which is the document first filed in a case that initiates the lawsuit. Courts generally find it insufficient for plaintiffs to simply allege that they have been harmed. Clearly believing that Straka and his fellow plaintiffs had done little more than that, the defendants moved to dismiss the case.
Straka’s lawyers, Manny Alicandro and Richard Zarco, filed responses to the motions to dismiss that largely reiterated the material that was included in the complaint. Loftus and Green pounced.
“In response to this cancellation, plaintiffs have brought a lawsuit based upon nothing but conclusory allegations of discrimination and defamation, which are not based on any objective facts,” Loftus wrote. “As such, the plaintiffs’ six causes of action against The LGBT Community Center defendants must be dismissed in their entirety, as plaintiffs have failed to state any viable claims.”
Green, who uses the pronouns they, them and their, was more pointed.
“In sum, rather than respond to the individual defendants’ motion or engage in any legal analysis at all, plaintiffs simply shout (or, more precisely, copy and paste) their complaint louder and several times over,” they wrote. Citing an earlier court decision, Green wrote, “This kind of table pounding represents a near explicit acknowledgment by plaintiffs and their counsel that ‘law is against [them]’ and ‘the facts are against [them].’”
Alicandro and Zarco, who did not respond to emails seeking comment, appear to have limited litigation experience. Together, they are currently handling seven cases in the New York state courts, including the Straka lawsuit. In one 2017 lawsuit, Alicandro sued his dentist and was initially represented by Zarco. He was removed this year and Alicandro is now representing himself in that case.
Alicandro had a long career in the compliance functions at a number of Wall Street firms. He has also been active in Republican Party politics in New York. Zarco was admitted to the bar in New York in 2011.
Kathryn Freed, the judge in the Straka lawsuit, will hear oral arguments on the motions to dismiss and the plaintiffs’ responses on January 14.
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