In New York civil law, rape, sexual assault and battery are intentional torts (or cause of action) which have one-year statute of limitations, meaning that any such lawsuits must be brought within one year from the date of the alleged violent act. (Note that there is no such thing as battery in New York criminal law – that word has only meaning in the New York civil law context). It should be noted that this statutory period is extended to 5 years, or one year from the termination of the criminal action, in civil cases arising out of various sexual criminal acts.

A guilty plea to a sexual assault case in criminal court can make it especially easy for a victim to pursue a lawsuit against the defendant. After all, a guilty plea is an admission under oath that the assault occurred which can be used against that criminal defendant in a civil lawsuit. After a guilty plea, it is effectively impossible for a criminal defendant to deny that he is liable for a sexual assault against the victim in a civil lawsuit without committing the crime of perjury. In these situations, the only issue to be determined in a civil lawsuit is the amount of money due to the victim, since liability is effectively admitted to.

Conversely, a dismissal of a criminal case does not prevent the complaining witness from pursuing a lawsuit against the defendant. You may recall that the family of Nicole Simpson Brown successfully sued OJ Simpson for a fortune in civil damages after he was acquitted of her murder in a criminal trial. This was possible because the standard of proof in a civil case is lower than it is in criminal court. In criminal court, a person is only guilty of assault if the defendant pleads guilty or if the evidence at trial proves his guilt beyond a reasonable doubt. In the civil context, a person is liable for damages if a jury concludes that the plaintiff has proven his case for assault and battery by a preponderance of the evidence. That latter standard – a preponderance of the evidence – simply means “more likely than not.” Clearly, it is easier to prove that something is “more likely than not” than it is to prove something “beyond a reasonable doubt”. Accordingly, the law does not prevent victims of sexual assault from pursuing civil claims for damages under this lower standard just because the criminal case was dismissed or did not result in a criminal conviction

Once liability is established, damages are then calculated based on the extent of the injuries suffered by the victim of the assault. Categories of typical damages include loss of earnings and wages attributable to the injuries, medical expenses, and pain and suffering (both physical and psychological).

Depending on various factors, a sexual assault lawsuit may be brought in state or federal court. Most are brought in Supreme Court in the state system, but diversity jurisdiction in some circumstances (where a victim and defendant reside in different states) can form the basis for a federal lawsuit instead.

The attorneys at The Law Office of Matthew Galluzzo have successfully defended several individuals sued for rape and sexual assault. Matthew Galluzzo is particularly qualified to handle these cases, having been a prosecutor in the famous Sex Crimes Unit at the Manhattan D.A’s Office (characterized in the television show Law & Order: SVU). He has been called upon countless times by television and news reporters to provide his expertise and insight into rape and sexual allegations, and has been recognized by the governments of the United States and South Africa as a leading expert on the subject.

If you have been arrested for rape or sexual assault, you should strongly consider retaining their services to defend you, as they can handle both the criminal and civil aspects simultaneously. There are obvious advantages to having the same attorneys for both cases, as it cuts down on the expense of having to get a second set of attorneys acclimated to the facts of the case, and also allows for the formulating of an early strategy that keeps both aspects in mind throughout. Additionally, we have worked alongside criminal defense attorneys to defend cases such as these, who appreciate having a knowledgeable civil litigator to advise them throughout the criminal defense process.

On the other hand, if you have been the victim of an rape or sexual assault crime, you may wish to pursue a claim for money damages. The attorneys at The Law Office of Matthew Galluzzo have also assisted individuals in pursuing such claims in civil court, and may be able to assist you as well. Depending upon the circumstances (i.e. the financial circumstances of the defendant and the strength of the evidence), they may be willing to pursue the case on a partial contingency basis, meaning that they accept a reduced hourly rate for their services in exchange for a portion of the recovery, or even possibly a full contingency basis. Their attorneys are uniquely qualified to represent you in these matters, as their team of lawyers consists of former prosecutors that successfully pursued countless assault cases in criminal court, and understand how to prove these types of cases at the higher “beyond a reasonable doubt” standard.

Given the ever increasing number of claims being filed for excessive force, false arrest, and/or malicious prosecution against the City and/or the New York City Police Department (‘NYPD’), the United States District Court of the Southern District of New York (‘SDNY’)(serving Manhattan, White Plains and Middletown, NY) came up with a case plan to ensure the timely hearing of such cases. This is known as the ‘§ 1983 Plan’. This Plan intends to facilitate the speedy disposition of such cases, however, it only applies to certain types of cases (those which are less complicated, and could be resolved quickly by following this Plan).

Service of the Complaint:

Under the § 1983 Plan, the complaint must be served with a signed § 160.50 release, which allows for the ‘un-sealing’ of arrest records. The plaintiff must also serve with the complaint and § 160.50 release all medical and psychological records pertaining to the injuries for which the plaintiff seeks damages. Plaintiffs with pre-existing medical conditions that reasonably appear to be connected with the condition for which damages are sought, the plaintiff must also serve medical releases for records of treatment of that pre-existing condition. Should a plaintiff fail to serve a § 160.50 release at the time of serving the complaint, counsel for the City must immediately send a letter to the plaintiff’s attorney requesting the aforementioned release, and attach a copy of the § 1983 Plan.

Time to Answer:

If the plaintiff serves the § 160.50 release at the same time as the complaint, the defendant has 80 days from the date of service to provide an answer to the complaint. Any defendant who is served subsequently will have the better of (i) 60 days or (ii) the date on which the first served defendant’s answer is due, to answer the complaint.

If the § 160.50 release was served later than the complaint, each defendant will have the larger of (i) 60 days from the date of service of the § 160.50 release on the City or (ii) 60 days after that particular defendant is served, to answer the complaint.

The Court is to stay the § 1983 Plan deadlines if any of the defendants move to dismiss the entire complaint, in lieu of filing an answer, unless the Court orders differently.

Conference and Initial Disclosures:

As per Federal Rules of Civil Procedure Rule 26(f), the parties should meet and conference within 14 days of the defendant filing their answer to the complaint. As parties of this conference, the parties should discuss whether or not to ask the court (i) to send the case to a magistrate judge for settlement purposes or (ii) to excuse the case from the § 1983 Plan. Applications of this nature must be submitted to the judge presiding over the case no more than 21 days after the first defendant files their answer. If no such application is made, the case will be automatically continue under the § 1983 Plan, and will immediately be referred to a Southern District Mediation Panel mediator, which has experience in this area.

Limited Discovery:

No more than 28 days after the first defendant files their answer, the parties must follow the following discovery process:

The City must serve on the plaintiff:

(i) Any items listed in Exhibit C (unless protected by applicable privileges)(see link at the bottom of this post) that did not make up the City’s initial disclosures; any documents received by the District Attorney’s (‘DA’s’) office; any documents acquired from the court file.

(ii) Any CCRD and IAB reports and/or records pertaining to the incident that is the foundation of the complaint. If the incident is still under investigation (including investigation by the NYPD or disciplinary proceedings), discovery will be suspended. Investigative records must be produced by the City within 30 days of the conclusion of the aforementioned investigation. Such a suspension will not include documents which are related to a concluded investigation.

(iii) CCRD complaints for each defendants which are akin to those alleged in the present complaint. If excessive force is alleged, it must be disclosed whether or not the officer has been or is under ‘force monitoring’.

(iv) Records obtained as a result of medical releases, within 7 days of having received them.

The plaintiff must serve on the City:

(i) Any document listed in Exhibit C (see the link at the bottom of this post), any document derived from either the DA’s office or from the court file.

(ii) Medical records relevant to any treatment the plaintiff is receiving pursuant to the abovementioned medical release.

All other discovery is stayed, and unless the court decides otherwise, this stay will terminate at the end of the mediation/settlement conference.

Amended Pleadings:

Further defendants may be added to the complaint without requiring leave of the court within six weeks of the first defendant filing an answer. Such an amendment does not affect the deadlines set out in this plan.

Settlement Demand and Offer:

Within six weeks of filing of the above-mentioned answer, the plaintiff must garnish a settlement demand in writing on the City, which must accordingly be responded to within 14 days. This should result in settlement negotiations taking place.

Mediation or Settlement Conference:

Unless the case has been referred by the court to a Magistrate to facilitate a settlement conference, a mediator will designate a mediator within 14 days of the first defendant filing an answer. Once assigned, the mediator shall organise with counsel for both parties a conference, to take place no more than 14 weeks after the first defendant files an answer. Unless a stipulation of dismissal is provided to the Clerk, each of the parties must take part in either a mediation session or a settlement conference.

Failure to Comply with these Requirements:

Once a party becomes aware of a breach of these regulations by the other side, they must inform the presiding judge in writing of the nature of the breach, and request that the judge grant relief.

Request for Initial Pre-Trial Conference:

Unless already held or scheduled by the court, if no settlement can be reached through mediation or settlement conference, the parties are to request the court to calendar an initial pre-trial conference.

Protective Order:

In all cases, the relevant protective order (see the link at the bottom of this post) shall be assumed to be in place.

Preservation:

These regulations do not exclude any party from their responsibility to ensure documents are preserved, and to issue instructions to this effect.

Credit: http://www.nysd.uscourts.gov/rules/1983%20Revised%20Plan%20and%20Exhibits.11.22.2013.pdf – contains the Plan itself, as well as all aforementioned exhibits.

http://www.nysd.uscourts.gov/rules/Section%201983%20Plan%20White%20Paper.pdf

(by Laura Monagle)

In 2008, the United States government began issuing U-Visas, a non-immigrant visa for victims of crime who have assisted with a criminal investigation and/or prosecution.

The intention behind the introduction of this visa was to increase the incentive for victims of crime to come forward, without fear of deportation. Congress particularly had in mind female victims of domestic abuse, who do not report the violence against them because of their undocumented status.

The US government grants a maximum of 10,000 U-Visas a year, and since its inception has received an ever increasing number of applications for such visas. Because of the sensitive nature of such applications, the government strongly advises applicants to seek legal advise before making a formal application. Matthew Galluzzo has experience in this area of the law, and could assist an applicant throughout this process.

There are four requirements for a U-Visa, set out below:

1. The immigrant suffered substantial physical or mental abuse as a result of having been a victim of certain criminal activity.
2. The immigrant (or in the case of an immigrant child under the age of 16, the parent, guardian or next friend of the child) possesses information concerning that criminal activity.
3. The immigrant (or in the case of an immigrant child under the age of 16, the parent, guardian or next friend of the child) has been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution of the criminal activity, and
4. The criminal activity violated the laws of the United States or occurred in the United States.

The applicant must have been the victim of one of the following crimes (or a substantially similar crime): rape, torture, trafficking, incest, domestic violence, sexual assault, abusive sexual contact, prostitution, sexual exploitation, female genital mutilation, being held hostage, peonage, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, false imprisonment, blackmail, extortion, manslaughter, murder, felonious assault, witness tampering, obstruction of justice, perjury, or attempt, conspiracy, or solicitation to commit any of the above. It is not necessary for a criminal conviction to be recorded.

Applicants can be either direct (suffered direct harm as a result of the crime) or indirect (the spouse or child under 21 of the direct victim; the parents and unmarried siblings under 18 of a direct victim under 21 who is deceased due to murder or manslaughter, or incompetent or incapacitated) victims of the crime.

In order to determine whether substantial harm has been suffered, the following factors will be considered:

• The nature of the injury inflicted or suffered.
• The severity of the perpetrator’s conduct.
• The severity of harm suffered.
• The duration of infliction of harm.
• The extent to which there is permanent or serious harm to appearance, health, or physical/mental soundness, including aggravation of pre-existing conditions.

In addition to the above criteria being made out, an applicant for a U-Visa is required to file a Form I-918, certifying their assistance in the criminal investigation and/or prosecution of a crime. This form must be certified by either a federal, state or local law enforcement officer, or a judge investigating or prosecuting the criminal matter. It must be kept in mind that while there is no statute of limitations regarding when the crime was committed (ie. an applicant will not be rejected because of how long ago the crime occurred), the Form I-918 must have been certified within the 6 months preceding the U-Visa application filing.

U-Visas are subject to the grounds for inadmissibility set out in §212(a) of the Immigration and Nationality Act (‘INA’). The most commonly problematic of these is the undocumented status of the applicant, however, the applicant can apply for a waiver of this ground of inadmissibility. Other grounds of inadmissibility include criminal convictions/admissions of criminal activity (including prostitution), health related grounds, and previous deportations. All of the grounds of inadmissibility listed in the INA have the potential to be waived (except for those relating to Nazi persecution, genocide, torture and extrajudicial killing). The grounds of inadmissibility make clear the sensitive nature of a U-Visa application, and thus the need for an experienced attorney to assist in making the application.

Individuals who are already involved in deportation proceedings are not excluded from applying for a U-visa.

A successful applicant for a U-Visa can receive a visa for a maximum of four year. After three years, a holder of a U-Visa is permitted to apply for a green card, the first step towards achieving citizenship (a green card holder becomes eligible for citizenship after five years of holding a green card).

There are some risks involved with applying for a U-Visa, particularly for those of undocumented status. The application process involves providing truthful information regarding the applicant’s contact information, as well as their immigration status (even if undocumented). A full background check is completed as part of the application process. This does expose the applicant to deportation proceedings, if immigration were to forward this information to the Department of Homeland Security. However, it is important to remember that undocumented persons are always at risk of having deportation proceedings instigated against them.

If you are the victim of a crime who qualifies for a U-Visa, consider contacting the offices of Matthew Galluzzo PLLC to assist you with the application process.

Credit: Pro Bono Attorney Manual on Immigration Relief for Crime Victims: U Visas

To sustain a defamation claim under New York law, a plaintiff is required to show that:

(1) A defendant made an oral or written factual and defamatory statement;
(2) Regarding the plaintiff;
(3) That was published to others by the defendants; and
(4) That there was resultant injury, unless the statement falls within a category of “per se” harm.

These are the basic “elements” of a defamation lawsuit, however, what many attorneys (shockingly) seem to overlook is another requirement which is set forth in the Civil Practice Law and Rules, and that is that in any action for libel or slander, the particular words complained of must be set forth in the complaint. This is a strict requirement and we have defeated lawsuits because opposing attorneys represented have failed to draft their documents in the proper fashion. Attorneys also seem to have difficulty with element four (resultant injury or per se harm). Because the accountability for uttering harmful statements is balanced against the constitutional right to free speech, the law requires that the false statement actually harm the plaintiff (economically, for example), unless the statement is considered “slanderous per se” (meaning the words are considered so offensive that the law will actually presume damage to reputation and business even if such damage hasn’t been shown). Examples of “per se” defamatory statements are those which impute some offensive or loathsome disease, charge a person with a crime involving moral turpitude or which subject a person to infamous punishment, or words spoken in relation to one’s business or trade and which have a natural tendency to injure a person in their business or trade.
In addition to these stringent pleading requirements, there are a slew of defenses and technical challenges to allegations of defamation which a lawyer can make in order to defeat such a lawsuit entirely (for example, an alleged defamatory statement can be challenged if it can be shown that it is an “expression of opinion” which is non-actionable). As such, when a person is sued for defamation, an adroit lawyer has many technical and procedural avenues available to successfully defend them. As such, if you or someone you know is accused of defamation, you should contact an experienced attorney immediately.