By Daniel Wiessner
ALBANY, N.Y., Jan 8 (Reuters) - New York state's top court
on Tuesday refused to hear an appeal of a ruling that held it
was not slander per se to falsely call someone gay.
Without explanation, the court denied an appeal from Mark
Yonaty, who claimed in a 2009 defamation lawsuit that a former
friend spread a false rumor that he was gay and ruined his
relationship with his girlfriend.
The Appellate Division, Third Department, in May dismissed
the case, holding that falsely labeling a person as a homosexual
did not constitute slander per se, which is a form of
Justice Thomas Mercure wrote that a statement is defamatory
when it exposes a person "to public hatred, shame ... contempt,
ridicule ... degradation or disgrace." Because homosexuality no
longer carries that stigma in New York, he said, calling someone
gay cannot constitute defamation per se.
Courts in New York recognize four forms of defamation per
se, including false statements that allege serious crimes,
injure a person's business or career, claim someone has a
loathsome disease or impute unchastity to a woman.
The Third Department decision overturned appellate decisions
from the 1980s that held that falsely calling someone a
homosexual was a fifth form of slander per se.
Mercure wrote for the Third Department that shifting
attitudes toward gays and lesbians, including the 2011
legalization of gay marriage in New York, rendered those earlier
"It cannot be said that current public opinion supports a
rule that would equate statements imputing homosexuality with
accusations of serious criminal conduct or insinuations that an
individual has a loathsome disease," the judge wrote.
The ruling placed New York in a small minority of states,
including Florida, Illinois and North Carolina, whose courts
have changed the per se defamation standard to reflect evolving
public opinion on LGBT issues.
Yonaty in 2009 sued Jean Mincolla, a former friend whom he
claimed had told mutual friends that Yonaty was gay or bisexual.
Mincolla in turn named her friend, Ruthanne Koffman, who had
allegedly repeated the claim to the mother of Yonaty's
girlfriend, as a third-party defendant in the case. Yonaty, who
says he is straight, claimed he and his girlfriend ultimately
broke up over the rumor.
State Supreme Court Justice Phillip Rumsey of Broome County
in 2011 denied the defendants' motion to dismiss the claims,
citing previous Appellate Division rulings that held that
falsely calling someone gay was defamatory per se.
The Third Department in May reversed.
Mincolla's attorney, Alan Pope, said that because the Court
of Appeals declined to hear the case, New York's three other
appellate courts will be bound by the Third Department decision.
Yonaty's attorney, Philip Artz, did not return a call
The case is Mark Yonaty v. Jean Mincolla, New York State
Supreme Court, Appellate Division, Third Department, No. 512996.
For Yonaty: Philip Artz of McDonough & Artz.
For Mincolla: Alan Pope of Pope & Schrader.
For Koffman: Michael Livingston of Sassani & Schenck.
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