Antiquated New York Precedent Still Governs Gay Defamation Lawsuit

A New York State trial judge, finding himself bound by intermediate appellate precedent in the absence of a ruling on the question by the state's highest court, has refused to dismiss a defamation lawsuit brought by a man who claims he was falsely alleged to be gay or bisexual and to be actively engaging in homosexual activity.  Yonaty v. Mincolla, 2011 N.Y. Slip Op 51037(U) (Supreme Court, Broome County, June 8, 2011).  According to Justice Phillip R. Rumsey of Broome County Supreme Court, New York law still regards a "false imputation of homosexuality" as being defamatory per se, so the plaintiff can maintain his lawsuit without having to allege that he has actually suffered any pecuniary damages as a result of the statement made about him.

Mark Yonaty, the plaintiff, was dating Kara Geller.  Defendant Jean Mincolla, who knew Geller and that Yonaty was dating her, heard that Yonaty was gay or bisexual and was "actively engaging in homosexual conduct," according to Justice Rumsey's opinion.  Mincolla claims she became concerned that Yonaty's conduct "posed a danger" to Geller, and she thought Geller should be made aware of it, but she felt that she did not have a close enough relationship to the Geller family to broach the subject directly.  However, she did know somebody — identified in Rumsey's opinion only as Ms. Koffman — who was close to Geller's mother, so she met with Koffman and asked her to tell Geller's mother, who could then warn Geller.  "Koffman relayed those allegations to Marilyn Geller, who, in turn, told Kara, who then terminated her relationship with plaintiff," relates Rumsey.

Yonaty sued Mincolla, alleging defamation, intentional infliction of emotional distress, and prima facie tort, based on Mincolla's statements to Koffman.  Mincolla then started a third-party action against Koffman, seeking indemnification based on Koffman's republication of the "allegedly slanderous statements" to Mrs. Geller.  Yonaty denies that he is gay or bisexual or has engaged in homosexual conduct.  Koffman and Mincolla each moved for summary judgment dismissing the complaint.

Koffman's motion is premised on "common interest qualified privilege."  Koffman claimed that due to her closeness with the Geller family, she had a privilege to share this information with them, which would only be lost if it was shown that she acted with malice or reckless disregard for the truth.  Justice Rumsey found that this privilege does not extend beyond actual family members, citing an ancient New York Court of Appeals ruling that held, as Rumsey characterized it, "that the need to protect against the evils of gossip and defamation outweighed the competing consideration of affording protection to those who volunteer information to people to whom they are not related."  [Byam v. Collins, 111 N.Y. 143 (1888).]  Clearly, Yonaty can't sue Mrs. Geller for passing the information to her daughter, since the privilege applies, but he can sue Ms. Koffman.

Mincolla's motion to dismiss was based on Yonaty's failure to allege "special damages."  Under the law of defamation for spoken falsehoods, the plaintiff must usually allege an actual injury, characterized in New York case law as "the loss of something having economic or pecuniary value," in order to maintain a slander action.  Yonaty did not claim any financial or pecuniary loss in this case, his injury being that Ms. Geller broke off their dating relationship.  Thus, his claim depends upon the court deciding that the statement that he was gay or bisexual and was actively engaging in homosexual conduct would constitute per se defamation, that is a statement that is presumed to cause significant harm to his reputation without any need to show pecuniary loss, a recognized exception to the general requirement of pleading special damages. 

Under the traditional English common law, a "false imputation of homosexuality" was deemed to be per se defamatory, mainly because homosexual conduct was a felony under the criminal law.  The common law generally recognized four categories of per se defamation, one of which was imputing commission of a serious crime.  (The others involved statements tending to harm plaintiff in his business, alleging that plaintiff had a "loathsome disease", or impugning the chastity of a woman.)  As sodomy was a felony at common law and by statute throughout the United States from colonial times until relatively recently, state courts that have addressed the issue, including many trial and intermediate appellate courts in New York, have traditionally treated the false imputation of homosexuality as per se defamation.

The New York Court of Appeals, surprisingly, has never directly ruled on this question.  The intermediate appellate courts have, however, and have persisted in applying the traditional common law view despite changed circumstances.  When New York adopted its version of the Model Penal Code in 1967, the legislature lowered the classification of consensual sodomy from a felony to a misdemeanor, so it was no longer such a "serious crime."  Then, in a series of cases beginning in the 1970s, the Court of Appeals has undermined the notion that imputing homosexuality should be presumed to harm a person's reputation by ruling affirmatively on a variety of gay rights claims.  It ruled that an openly gay man could be admitted to practice law in New York (and that his past sodomy conviction in another state did not mean that he lacked the "good moral character" necessary to obtain a license to practice in New York), that a public interest law firm (Lambda Legal) organized to advance gay rights sufficiently served the public interest to be incorporated as a charitable non-profit corporation, that the remaining misdemeanor sodomy law was unconstitutional as applied to private, consensual adult non-commercial sexual conduct, that the law outlawing loitering for the purpose of soliciting "deviate sexual intercourse" was unconstitutional as applied to a man soliciting another man in a public place to go to a private place for the purpose of having sex, that the adoption law should be construed to allow an adult to adopt his or her same-sex partner's child as a 'second parent' adoption, and that the Human Rights Law should be construed to prevent a medical school from excluding a student's same-sex partner from living with her in married student housing. 

On top of this, the legislature has reformed the sodomy and solicitation laws since the turn of the century in belated response to the Court of Appeals' decisions and has affirmatively banned discrimination in employment, housing and public accommodations on the basis of sexual orientation by amending the Human Rights Law to add "sexual orientation" as a prohibited ground of discrimination.  Sexual orientation discrimination has been outlawed by executive order in N.Y. state government agencies for almost thirty years.  Openly gay politicians have been elected to both houses of the state legislature and many local legislative bodies, now serve as judges in the state's courts, and have served by appointment in various high exective branch positions.  Many public and private sector employers in the state now provide employee benefits to the same-sex partners and/or spouses of their employees, and over the past few years various agencies of the state government and the courts have recognized same-sex marriages contracted out of state for benefits eligibility purposes, while public opinion polls now show that a significant majority of the state's population supports allowing same-sex couples to marry.  Openly gay people are now prominent in the professions and arts in this state, even receiving honorary degrees from our public universities.  (Tony Kushner, anyone?)

In light of what one federal judge described as a "sea change" in public attitudes towards gay people, is it still credible for the New York courts to maintain a doctrine under which falsely calling somebody gay is presumed to damage their reputation sufficiently to allow them to sue for damages without any evidence of having suffered pecuniary loss as a result of the statement? 

The federal judge referred to above, by the way, was then-U.S. District Judge Denny Chin, ruling in 2009 in Stern v. Cosby, 645 F.Supp.2d 258 (S.D.N.Y.), a case cited but not discussed by Justice Rumsey in his opinion.  This was the case in which Howard K. Stern, lawyer and former boyfriend of Anna Nicole Smith, sued the author of a biography of Smith over statements in the book that Stern engaged in gay sex.  Judge Chin had to decide whether Stern would need to show pecuniary loss in order to maintain his defamation action.  As a federal judge sitting in a case governed by New York state common law, Chin had to determine what the law of New York was on this question.  Federal judges rely on decisions of the highest court of a state in such circumstances, but because there is no New York Court of Appeals decision on this issue, Judge Chin had to predict what the NY Court of Appeals would do if faced with the question.  After reviewing the social changes that have occurred in societal attitudes towards gay people, Judge Chin concluded that the Court of Appeals would not treat the false imputation of homosexuality as being per se defamation.  (In this, he was disagreeing with a decision by a different federal trial judge issued the previous year.)

However, so far the intermediate appellate courts of the state have not deemed the social and legal changes concerning gay people in New York sufficient to merit abandoning the old rule.  Broome County is in the 3rd Appellate Department, which has not ruled directly on this question, but there are relatively recent rulings in the 1st and 2nd Departments which cling to the old doctrine. 

Having lost the rationale of criminality (especially since 2003, when the U.S. Supreme Court found that private consensual adult gay sex is sheltered from criminal prosecution by the Due Process Clause of the 14th Amendment in Lawrence v. Texas), they rely on the remaining anti-gay sentiment in some segments of society as justifying the courts in treating the false imputation of homosexuality as presumptively damaging to a person's reputation.  The most recent cases are Klepetko v. Reisman, 41 AD3d 551 (2nd Dept. 2007) and Nacinovich v. Tullet & Tokyo Forex, 257 AD2d 523 (1st Dept. 1999).  Under prevailing New York practice, in the absence of any split of authority among the appellate departments, a trial judge anywhere in the state is bound by such precedents.

"While the law may, at some point, change in response to evolving social attitudes regarding homosexuality, the existing law in New York, as expressed by the Appellate Divisions — which this court is bound to follow — is that imputation of homosexuality constitutes defamation per se.  Accordingly, plaintiff's cause of action for defamation may not be dismissed for failure to state a claim based on the fact that he did not allege any special damages," concluded Justice Rumsey on this point.  The judge was doing his duty as a trial judge to apply existing appellate precedent, and no criticism of his ruling is intended by my comments.  My criticism is reserved for the Appellate Divisions, which have clung to the old reasoning without adequate analysis.  Since the Court of Appeals has not ruled on the question, the intermediate appellate courts are free to modify doctrine in the light of changed circumstances, as courts have done in many other jurisdictions on this point.

Judge Rumsey found, however, that Yonaty's factual allegations were not sufficient under New York law to state a claim for intentional infliction of emotional distress.  Bad as spreading harmful gossip may be, wrote Rumsey, "it is not so outrageous in character or extreme in degree as to be 'regarded as atrocious, and utterly intolerable in a civilized community,'" quoting the New York Court of Appeals' most recent formulation of the standard in Howell v. New York Post Co., 81 N.Y.2d 115 (1993).  Justice Rumsey also pointed out that the failure to allege special damages is "fatal to a prima facie tort claim."

The bottom line for the case is that Yonaty can proceed with his defamation claims against Koffman and Mincolla.  To defend, they would have to show that the statements they made about him are true.  Perhaps at this very moment their lawyers may be retaining private investigators to build a dossier about Mr. Yonaty's sexual activities.  Should the law be encouraging this?

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