## Facts

- A nonparty allegedly told Jean Mincolla that Mark Yonaty “was gay or bisexual.”
- Mincolla repeated that statement to Ruthanne Koffman, a friend connected to Yonaty’s long-time girlfriend, intending that the girlfriend learn of it.
- Yonaty alleged the statement was false and that its republication caused deterioration and termination of his relationship with his girlfriend.
- Yonaty sued Mincolla for slander, intentional infliction of emotional distress, and prima facie tort.
- Mincolla brought a third-party indemnification claim against Koffman related to republication and potential liability.

## Issues

1. Whether a false statement describing a person as lesbian, gay, or bisexual constitutes slander per se under New York law, excusing the need to plead special damages.
2. If not slander per se, whether allegations of relational and emotional harm satisfy the special-damages requirement for slander.
3. Whether dismissal of the slander claim requires dismissal of a third-party indemnification claim premised on that alleged defamation.
4. Whether the allegations supported claims for intentional infliction of emotional distress or prima facie tort.

## Decision

- The Appellate Division modified the order and dismissed the slander claim.
- The court overruled prior departmental precedent and held that false statements imputing lesbian, gay, or bisexual status are not defamatory per se.
- Because Yonaty did not plead special damages of a pecuniary nature, the slander claim failed as a matter of law.
- The court dismissed the third-party indemnification claim because it depended on potential liability for the defamation claim that was dismissed.
- The court left undisturbed summary judgment dismissing the intentional infliction of emotional distress and prima facie tort claims.
- Leave to appeal was denied.

## Legal Principles

- Whether challenged words are susceptible of a defamatory meaning is a question of law for the court.
- Slander generally requires pleading and proving special damages, meaning loss of something with economic or pecuniary value, unless a recognized slander-per-se category applies.
- New York recognizes four traditional slander-per-se categories: serious crime, injury to trade/business/profession, loathsome disease, and unchastity of a woman.
- False imputation of lesbian, gay, or bisexual status does not fall within the recognized slander-per-se categories and is not actionable without special damages.
- A third-party indemnification claim premised on exposure to defamation liability fails when the underlying defamation claim is dismissed.
- Intentional infliction of emotional distress requires extreme and outrageous conduct; prima facie tort requires, among other elements, special damages.

## Conclusion

The court held that falsely describing someone as lesbian, gay, or bisexual is not slander per se in New York, rejecting prior authority that treated such statements as automatically defamatory. Absent pleaded special damages of a pecuniary nature, the slander claim was dismissed, and the dependent third-party indemnification claim was dismissed as well, while dismissal of the remaining tort claims was affirmed.


Yonaty v. Mincolla, 97 A.D.3d 141, 945 N.Y.S.2d 774 (N.Y. App. Div. 3d Dep't 2012), leave denied, 20 N.Y.3d 855 (2013)