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State of New York Supreme Court, Appellate Division Third Judicial Department
Decided and Entered: May 31, 2012512996________________________________MARK YONATY,Respondent- Appellant,vJEAN MINCOLLA,Defendantand Third-PartyOPINION AND ORDERPlaintiff- Appellant-Respondent;RUTHANNE KOFFMAN,Third-PartyDefendant-Respondent- Appellant.________________________________Calendar Date: April 23, 2012Before: Mercure, J.P., Stein, Garry and Egan Jr., JJ.__________Pope & Schrader, L.L.P., Binghamton (Alan J. Pope ofcounsel), for defendant and third-party plaintiff-appellant-respondent.Sassani & Schenck, P.C., Liverpool (Michael N. Livingstonof counsel), for third-party defendant-respondent-appellant.McDonough & Artz, P.C., Binghamton (Philip J. Artz ofcounsel), for respondent-appellant.
 
-2-512996Thomas 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.__________Mercure, J.P.Cross appeals from an order of the Supreme Court (Rumsey,J.), entered June 10, 2011 in Broome County, which, among otherthings, denied third-party defendant's motion for summaryjudgment dismissing the third-party complaint.This appeal presents the issue of whether statementsfalsely describing a person as lesbian, gay or bisexualconstitute slander per se. Given this state's well-definedpublic policy of protection and respect for the civil rights ofpeople who are lesbian, gay or bisexual, we now overrule ourprior case to the contrary and hold that such statements are notdefamatory per se. After a nonparty allegedly told defendant that plaintiffwas gay or bisexual, defendant relayed that information to third-party defendant, a close family friend of plaintiff's long-timegirlfriend, with the hope that the girlfriend would be told.Plaintiff maintains that defendant's actions caused thedeterioration and ultimate termination of his relationship withhis girlfriend. He commenced this action against defendant,alleging slander, intentional infliction of emotional distressand prima facie tort. Defendant then commenced the third-partyaction, seeking indemnification based upon the republication ofthe statements.Supreme Court subsequently denied third-party defendant'smotion for summary judgment dismissing the third-party complaint,and partially granted defendant's motion for summary judgment bydismissing plaintiff's claims of intentional infliction ofemotional distress and prima facie tort. The court denieddefendant's motion insofar as she sought dismissal of plaintiff'sslander claim. As relevant here, the court concluded that it was
 
-3-512996bound to follow prior appellate case law holding that statementsfalsely imputing homosexuality constitute defamation per se and,thus, plaintiff's slander claim need not be dismissed despite hisfailure to allege special damages. The parties cross-appeal, andwe now modify by dismissing the complaint and third-partycomplaint in their entirety. Whether particular statements are susceptible of adefamatory meaning – and therefore actionable – presents aquestion 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 adefamatory connotation [does] it become[] the jury's function tosay whether that was the sense in which the words were likely tobe understood by the ordinary and average [person]" (James vGannett Co., 40 NY2d 415, 419 [1976] [internal quotation marksand citation omitted]). A statement has defamatory connotationsif 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 [aperson] in the minds of right-thinking persons" (Kimmerle v NewYork Evening Journal, Inc., 262 NY 99, 102 [1933]; accord Bytnerv Capital Newspaper, Div. of Hearst Corp., 112 AD2d 666, 667[1985], affd 67 NY2d 914 [1985]; see Golub v Enquirer/Star Group,89 NY2d at 1076). Because the defamatory tendency of a statementdepends "upon the temper of the times [and] the current ofcontemporary public opinion," a statement that is "harmless inone age . . . may be highly damaging to reputation at anothertime" (Mencher v Chesley, 297 NY 94, 100 [1947]).Generally, a plaintiff asserting a cause of action soundingin slander must allege special damages contemplating "the loss ofsomething having economic or pecuniary value" (Liberman vGelstein, 80 NY2d 429, 434-435 [2003] [internal quotation marksand citation omitted]; accord Wadsworth v Beaudet, 267 AD2d 727,728 [1999]). Plaintiff has not done so and, thus, he cannotmaintain his slander claim unless the challenged statementsconstitute "slander per se" – those categories of statements thatare commonly recognized as injurious by their nature, and sonoxious that the law presumes that pecuniary damages will result(see Liberman v Gelstein, 80 NY2d at 435). The four established
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