While the New York Legislature appeared poised to pass a law legalizing same-sex marriage, a Broome County judge has allowed a man to proceed with a libel suit against a woman who alleged he was gay, finding that under appellate case law, the imputation of homosexuality was defamation per se.

Mark Yonaty brought the defamation action against Jean Mincolla, who claimed she was "advised" that Mr. Yonaty was gay or bisexual. She in turn sued Ruthanne Koffman, who repeated the allegation to the mother of Mr. Yonaty's girlfriend. Mr. Yonaty claims that once his girlfriend heard the story about his purported sexual orientation, she broke off the relationship. Mr. Yonaty denies he is gay.

In Yonaty v. Mincolla, 1003-2009, Broome County Supreme Court Justice Phillip R. Rumsey (See Profile) rejected the defendants' summary judgment motion, and held that the assertion of homosexuality constituted defamation.

"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," Justice Rumsey wrote, citing 2007 Appellate Division, Second Department, decision Klepetko v. Reisman, 41 AD3d 551, which cites a 1984 case, Matherson v. Marchello, 100 AD2d 233. The judge also noted the 1986 case, Dally v. Orange County Publications, 117 AD2d 577, which refers to a 1964 decision, Nowark v. Maguire, 22 AD2d 901.

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