Tort Law - Defamation - New York Appellate Division Holds That the Imputation of Homosexuality Is No Longer Defamation per Se

Harvard Law Review, January 2013 | Go to article overview

Tort Law - Defamation - New York Appellate Division Holds That the Imputation of Homosexuality Is No Longer Defamation per Se


TORT LAW--DEFAMATION--NEW YORK APPELLATE DIVISION HOLDS THAT THE IMPUTATION OF HOMOSEXUALITY IS NO LONGER DEFAMATION PER SE.--Yonaty v. Mincolla, 945 N.Y.S.2d 774 (App. Div. 2012).

Like most American jurisdictions, (1) New York requires plaintiffs to assert pecuniary damages in defamation suits unless the allegedly defamatory statements fall into a narrow category of assertions so patently damaging that they are considered defamation per se. (2) The New York Court of Appeals recognizes four categories of statements as rising to the level of defamation per se: "statements (i) charging plaintiff with a serious crime; (ii) that tend to injure another in his or her trade, business or profession; (iii) that plaintiff has a loathsome disease; or (iv) imputing unchastity to a woman." (3) Until 2012, appellate courts in New York had uniformly held that statements imputing homosexuality also belonged on this list. (4) Recently, in Yonaty v. Mincolla, (5) the Appellate Division of the New York Supreme Court, Third Department, overruled this precedent within its jurisdiction, holding that "statements falsely describing a person as lesbian, gay or bisexual ... are not defamatory per se." (6) In doing so, the Third Department joined courts across the country that have repudiated similar precedents of their own. (7) By simultaneously reflecting and shaping social attitudes about sexual orientation in New York, Yonaty exemplifies defamation law's fusion of descriptive and normative dimensions.

Mark Yonaty and Kara Geller were in a dating relationship when Jean Mincolla, an acquaintance of theirs, heard a rumor that Yonaty was sexually attracted to men and that he was "actively engaging in homosexual conduct." (8) Mincolla "became concerned" on Geller's behalf. (9) Wishing to apprise Geller of the "danger" that Yonaty posed to her, Mincolla passed the information along to Ruthanne Koffman, a friend of the Geller family, with instructions to tell Kara's mother, Marilyn Geller. (10) Koffman, moved by "concern for Kara's physical and emotional health," passed the rumor along to Marilyn Geller, who repeated it to her daughter. (11) After hearing the rumor, Kara Geller ended her relationship with Yonaty. (12)

Yonaty filed a tort suit against Mincolla in the Supreme Court of Broome County, New York, in 2009. (13) He asserted that Mincolla's statements to Koffman constituted defamation, intentional infliction of emotional distress, and prima facie tort (14) under New York law. (15) Mincolla, in turn, filed a third-party action for indemnification against Koffman for repeating the rumor, and moved for summary judgment, asking the court to dismiss all three of Yonaty's tort claims. (16)

In an unpublished trial court opinion, Justice Rumsey granted Mincolla's motion for summary judgment with respect to the actions for prima facie tort and intentional infliction of emotional distress but denied the motion with respect to the defamation action. (17) Justice Rumsey rejected the claim for intentional infliction of emotional distress on the ground that Mincolla's statements to Koffman were not as "outrageous in character or extreme in degree" as that cause of action requires. (18) He rejected the prima facie tort claim on two grounds: first, Yonaty had alleged no special damages, a required element of a prima facie tort claim; (19) second, the prima facie tort claim was a "recast" version of Yonaty's defamation claim, and a prima facie tort action is available only where a remedy would otherwise be unavailable under traditional tort concepts. (20) Justice Rumsey did not, however, dismiss Yonaty's defamation claim. Although Yonaty alleged no special damages arising from Mincolla's statements about him, and the defamation he alleged did not fall under the four established exceptions to the special damages requirement, Justice Rumsey followed the precedent established in numerous New York Appellate Division decisions and held that statements imputing homosexuality to a heterosexual person constitute defamation per se. …

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