ALBANY – An Albany appellate court yesterday overturned its own precedent and rejected those of the three other Appellate Division departments in abandoning a long-standing legal assumption that falsely labeling someone as lesbian, gay or bisexual is inherently defamatory.

The “prior cases categorizing statements that falsely impute homosexuality as defamatory per se are based on the flawed premise that it is shameful and disgraceful to be described as lesbian, gay or bisexual,” Justice Thomas Mercure wrote for a unanimous Third Department panel.

In Yonaty v. Mincolla, 512996, the panel turned aside decisions from all four appellate departments as well as Court of Appeals dicta holding that “falsely imputing homosexuality” is among the handful of false allegations that are per se defamatory.

The others are falsely charging someone with a serious crime, making statements that damage a person in his or her profession, suggesting that an individual has a loathsome disease or accusing a woman of unchastity.

Mercure said including allegations of homosexuality among the group of per se defamatory characterizations “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.”

The panel based its holding on a U.S. Supreme Court decision, Lawrence v. Texas, 539 US 558 (2003), that shot down laws criminalizing homosexual conduct; a New York human rights law (Executive Law §296) barring discrimination based on sexual orientation; and evolving social mores as evidenced by the fact that last year New York state recognized that same-sex couples have the right to marry.

Mercure said the language in Lawrence, which states that homosexuals “are entitled to respect for their private lives” cannot “be reconciled with the prior line of Appellate Division cases concluding that being described as lesbian, gay or bisexual is so self-evidently injurious that the law will presume that pecuniary damages have resulted.”

Yonaty arose from Broome County, where Jean Mincola spread a rumor that Mark Yonaty was gay, apparently to cause a breakup with Yonaty’s longtime girlfriend. Mincolla allegedly told Ruthanne Koffman, a close family friend of the girlfriend, that Yonaty was homosexual. Koffman shared the information with the girlfriend’s mother, who told the girlfriend.

Supreme Court Justice Phillip Rumsey (See Profile) found himself bound by appellate case law and denied a summary judgment motion on behalf of a third-party defendant (NYLJ, June 16, 2011). The Third Department dismissed the case in its entirety.

Mercure noted that the issue has not been considered in depth since 1984, when the Second Department in Matherson v. Marchello, 100 AD2d 233, said it was contraindicated “at this point in time” to hold that a statement imputing homosexuality was per se defamatory in light of the then-prevalent “social opprobrium of homosexuality.”

But Mercure said those days are gone.

“In light of the tremendous evolution in social attitudes regarding homosexuality, the elimination of the legal sanctions that troubled the Second Department in 1984 and the considerable legal protection and respect that the law of this state now accords lesbians, gays and bisexuals, 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,” Mercure wrote in an opinion shared by Justices Leslie Stein (See Profile), Elizabeth Garry (See Profile) and John Egan Jr. (See Profile).

The appeal was argued by Alan Pope of Pope & Schrader in Binghamton and Mallory Livingston of Sassani & Schenck in Liverpool for the defendants.

Livingston praised the ruling from both a legal and personal perspective. She is a male-to-female transgender who, at the time the appeal was argued in April, was still Michael Livingston.

“They erased all the history with one opinion, and did so properly,” Livingston said. “It took some courage on the part of the panel that decided the case. At the same time, I’m not sure logic could have led them any other way.”

Livingston said she became involved in the case accidentally when she filled in at a deposition for another attorney who had a scheduling conflict. Gradually, it became her case.

“I was obviously very interested in it and it fascinated me,” Livingston said.

Livingston said she first attempted a gender transition in 1990, but stopped the process after it cost her a job with a law firm she declined to identify.

“This time, I have the complete support of my firm,” Livingston said. “The world has changed.”

Philip Artz of McDonough & Artz in Binghamton represented the plaintiff. He was not immediately available for comment.

The case was closely watched by the gay community and the court accepted an amicus curiae brief filed by the Lambda Legal Defense and Education Fund and the Empire State Pride Agenda.

Thomas Ude Jr., a senior staff attorney with Lambda Legal, said the ruling appropriately rejects a “doctrine that was established in another era” and puts New York defamation law in line with other state laws that “respect the dignity of people who are lesbian, gay or bisexual.”

“The decision hopefully will put to rest an outdated set of decisions saying you can recover money if someone [falsely] describes you as gay, lesbian or bisexual,” Ude said.