Mark Yonaty, Respondent-Appellant, v Jean Mincolla, Defendant and Third-Party Plaintiff-Appellant-Respondent. Ruthanne Koffman, Third-Party Defendant-Respondent-Appellant.
Supreme Court, Appellate Division, Third Department, New York
May 31, 2012
94 A.D.3d 141 | 945 N.Y.S.2d 774
Pope & Schrader, L.L.P., Binghamton (Alan J. Pope of counsel), for defendant and third-party plaintiff-appellant-respondent.
Sassani & Schenck, P.C., Liverpool (Michael N. Livingston of counsel), for third-party defendant-respondent-appellant.
McDonough & Artz, P.C., Binghamton (Philip J. Artz of counsel), for respondent-appellant.
Thomas W. Ude Jr., Lambda Legal Defense and Education Fund, Inc., New York City, for Lambda Legal Defense and Education Fund, Inc. and another, amici curiae.
OPINION OF THE COURT
Mercure, J.P.
This appeal presents the issue of whether statements falsely describing a person as lesbian, gay or bisexual constitute slander per se. Given this state’s well-defined public policy of protection and respect for the civil rights of people who are lesbian, gay or bisexual, we now overrule our prior case to the contrary and hold that such statements are not defamatory per se.
After a nonparty allegedly told defendant that plaintiff was gay or bisexual, defendant relayed that information to third-party defendant, a close family friend of plaintiff’s long-time girlfriend, with the hope that the girlfriend would be told. Plaintiff maintains that defendant’s actions caused the deterioration and ultimate termination of his relationship with his girlfriend. He commenced this action against defendant, alleging slander, intentional infliction of emotional distress and prima facie tort. Defendant then commenced the third-party action, seeking indemnification based upon the republication of the statements.
Supreme Court subsequently denied third-party defendant’s motion for summary judgment dismissing the third-party
Whether particular statements are susceptible of a defamatory meaning—and therefore actionable—presents a question of law (see Golub v Enquirer/Star Group, 89 NY2d 1074, 1076 [1997]; Aronson v Wiersma, 65 NY2d 592, 593 [1985]). Only “[i]f the contested statements are reasonably susceptible of a defamatory connotation [does] it become[ ] the jury’s function to say whether that was the sense in which the words were likely to be understood by the ordinary and average [person]” (James v Gannett Co., 40 NY2d 415, 419 [1976] [internal quotation marks and citation omitted]). A statement has defamatory connotations if it tends to expose a person to “public hatred, shame, obloquy, contumely, odium, contempt, ridicule, aversion, ostracism, degradation or disgrace, or to induce an evil opinion of [a person] in the minds of right-thinking persons” (Kimmerle v New York Evening Journal, Inc., 262 NY 99, 102 [1933]; accord Bytner v Capital Newspaper, Div. of Hearst Corp., 112 AD2d 666, 667 [1985], affd 67 NY2d 914 [1986]; see Golub v Enquirer/Star Group, 89 NY2d at 1076). Because the defamatory tendency of a statement depends “upon the temper of the times [and] the current of contemporary public opinion,” a statement that is “harmless in one age . . . may be highly damaging to reputation at another time” (Mencher v Chesley, 297 NY 94, 100 [1947]).
Generally, a plaintiff asserting a cause of action sounding in slander must allege special damages contemplating “the loss of something having economic or pecuniary value” (Liberman v Gelstein, 80 NY2d 429, 434-435 [1992] [internal quotation marks and citation omitted]; accord Wadsworth v Beaudet, 267 AD2d 727, 728 [1999]). Plaintiff has not done so and, thus, he cannot maintain his slander claim unless the challenged statements constitute “slander per se”—those categories of statements that are commonly recognized as injurious by their
We agree with defendant and amici* that these Appellate Division decisions are inconsistent with current public policy and should no longer be followed. Defamation “necessarily . . . involves the idea of disgrace” (Bytner v Capital Newspaper, Div. of Hearst Corp., 112 AD2d at 667). Defendant and amici argue—correctly, in our view—that the prior cases categorizing statements that falsely impute homosexuality as defamatory per se are based upon the flawed premise that it is shameful and disgraceful to be described as lesbian, gay or bisexual. In fact, such a rule necessarily equates individuals who are lesbian, gay or bisexual with those who have committed a “serious crime”—one of the four established per se categories (see Liberman v Gelstein, 80 NY2d at 435).
That premise is inconsistent with the reasoning underlying the decision of the Supreme Court of the United States in Lawrence v Texas (539 US 558 [2003]), in which the Court held that laws criminalizing homosexual conduct violate the Due Process Clause of the Fourteenth Amendment of the United States Constitution (id. at 578). The Court stated that people who are homosexual “are entitled to respect for their private lives” (id. [emphasis added]), but “[w]hen homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres” (id. at 575). These statements of the Supreme Court simply cannot be reconciled
In regard to New York in particular, we locate “the public policy of [this] state in the law as expressed in statute and judicial decision and also [by] consider[ing] the prevailing attitudes of the community” (Debra H. v Janice R., 14 NY3d 576, 600 [2010], cert denied 562 US —, 131 S Ct 908 [2011] [internal quotation marks and citations omitted]; see Dickerson v Thompson, 73 AD3d 52, 54 [2010]). Rather than countenancing the view that homosexuality is disgraceful, the Human Rights Law, since 2002, has expressly prohibited discrimination based on sexual orientation in employment, public accommodations, credit, education and housing (
We note that the most recent Appellate Division decision considering the issue in depth was decided nearly 30 years ago (Matherson v Marchello, 100 AD2d 233, 241-242 [2d Dept 1984], supra). In that case, the Second Department concluded that it was “constrained . . . at this point in time” to hold that a statement imputing homosexuality was defamatory per se in light of the then-existing “social opprobrium of homosexuality” and
In short, the disputed statements in this case are not slanderous per se and, thus, plaintiff’s failure to allege special damages requires that the remaining cause of action for slander be dismissed. Inasmuch as the complaint did not adequately allege extreme and outrageous conduct sufficient to support plaintiff’s claim of intentional infliction of emotional distress or special damages to support a prima facie tort claim (see Howell v New York Post Co., 81 NY2d 115, 121-122 [1993], mod 82 NY2d 690 [1993]; Freihofer v Hearst Corp., 65 NY2d 135, 142-143 [1985]), Supreme Court properly dismissed those causes of action. Accordingly, the complaint and third-party complaint should be dismissed in their entirety.
Ordered that the order is modified, on the law, without costs, by reversing so much thereof as partially denied defendant’s motion for summary judgment dismissing the complaint and denied third-party defendant’s motion for summary judgment dismissing the third-party complaint; motions granted in their entirety and complaint and third-party complaint dismissed; and, as so modified, affirmed.