(CN) – A New York judicial candidate was not defamed when the opposition dredged up a past allegation of sexual abuse, a New York appellate division ruled.
Steven Nekos was convicted of third-degree sexual abuse and other charges in 1999. Those convictions were reversed on appeal, and all charges were dismissed except the sexual abuse claim. Nekos satisfied the abuse charge by pleading guilty to disorderly conduct.
However, the incident came to the fore years later when Nekos ran for town justice. Dean Kraus distributed a flyer opposing Nekos’ candidacy. His flyer described the past incident, stating that the reversal of the convictions on appeal, “solely on technicalities, doesn’t mean the underlying facts aren’t true.”
Nekos sued Kraus for defamation, stating that the flyer implied that he was guilty of the original charges against him.
Kraus countered that the facts in the flyers were true. The trial court ruled in his favor.
On appeal, Judge Rose noted that Kraus’ submission of a 1999 newspaper article detailing the incident, along with earlier trial documents, had shifted the burden of truth to Nekos to prove that the allegations against him were false.
“Plaintiff did not assert that the flyer’s additional allegations (specifically that the victim of the sexual assault was male and that plaintiff ‘was out partying’ with a state trooper) had never been made against him in the course of the underlying criminal investigation.
“Thus, plaintiff failed to meet his burden of raising a substantial factual question as to the falsity of the statements in the flyer,” Rose concluded.