Robert Davis v. James Boeheim

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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 145
Robert Davis, et al.,
Appellants,
v.
James Boeheim, et al.,
Respondents.
Mariann Meier Wang, for appellants.
Helen V. Cantwell, for respondents.
RIVERA, J.:
On this appeal from a pre-answer dismissal of
plaintiffs' defamation action, we conclude that the challenged
statements are reasonably susceptible of a defamatory
connotation, and not otherwise privileged, nonactionable "pure
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opinion." Therefore, we reverse the Appellate Division.
I.
Plaintiffs Robert Davis and his step-brother Michael
Lang sued defendants Syracuse University and James Boeheim, the
University's head basketball coach, for defamation based on
statements by Boeheim made in response to Davis and Lang's
allegations of sexual molestation by Bernie Fine, Boeheim's long-
time friend and the team's associate coach. Plaintiffs claimed
that Fine used his position and authority within the University's
basketball program to gain access to and control over Davis and
Lang for purposes of sexually molesting them.
According to plaintiffs, from the time Davis and Lang
were children in the 1980s, Fine lured them with opportunities to
attend the games and assist the team as "ball boys." For years
the sexual abuse continued, on and off campus, on team trips away
from the University, in Fine's car and in his home. Davis
alleged that in his case the abuse continued for almost two
decades, commencing when he was about 11 years old. Plaintiffs
further alleged that Boeheim had observed Davis with Fine at
practices, at games, and on trips with the team, including once
in Fine's hotel room during the 1987 NCAA Final Four.
The plaintiffs did not make their claims known or
public until they were adults, years after the abuse ended. In
2002, Davis went to the Syracuse Police Department, but the
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Department failed to investigate or take any action on his
allegations, informing him that the statute of limitations for
child sexual abuse had expired. Davis decided to go to the
media, and reported the abuse to the Syracuse Post-Standard, a
daily newspaper servicing the Syracuse area, and ESPN, a national
sports television channel. In 2003, ESPN interviewed Davis but
failed to publicize his allegations.
In September 2005, Davis reported the sexual abuse to
the University's new Chancellor. At the University's request,
Davis met with a University lawyer and provided names of
individuals who Davis claimed could corroborate his allegations
of abuse. A few months later the University informed Davis by
letter that it had concluded his allegations were unfounded and
had closed the matter.
Plaintiffs' claims became public in 2011 after
unrelated allegations by other victims of sexual abuse surfaced
against another coach at another well known university. In that
year, similar claims surfaced of sexual abuse of multiple victims
by former Penn State University assistant football coach Jerry
Sandusky. As with the plaintiffs' claims against Fine, the Penn
State sexual abuse scandal involved allegations that Sandusky had
used the University's football program in order to gain access to
underage victims. Penn State's head football coach, Joe Paterno,
was alleged to have covered up the abuse.
The Penn State scandal renewed national and local media
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interest in plaintiffs' allegations. Within two weeks of the
initial breaking news coverage of the Penn State story, and as
the media focus on the Penn State allegations continued, ESPN
issued a news report about the allegations against Fine. The
story also relayed Davis' statement that Boeheim saw Davis lying
on Fine's hotel room bed during the 1987 NCAA Final Four.
The day after the ESPN story, the University released a
statement in which it described its 2005 four-month investigation
into Davis' allegations. The University stated that it had
interviewed persons named by Davis, but was unable to corroborate
the claims. The University further stated that it would have
acted had it found any evidence or corroboration of the
allegations in 2005.
The same day the ESPN story broke, and before the
University's statement went public, Boeheim issued a one-
paragraph statement, released by the Syracuse University news
service, in which he too announced that the University had
investigated the allegations and had concluded they were
unfounded. Boeheim further declared that "Bernie [Fine] has my
full support," and that he had known Fine for over 40 years and
had "never seen or witnessed anything to suggest that [Fine]
would be involved in any of the activities alleged." Boeheim
stated that if he had "seen or suspected anything, I would have
taken action."
Boeheim made several other statements to reporters,
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which were quoted in the print and online versions of the New
York Times, on the Syracuse Post Standard's website Syracuse.com,
on SportingNews.com, and on ESPN.com. In these statements,
Boeheim reasserted his support for Fine and his denial of any
knowledge of the claimed events as described by Davis. He also
called Davis and Lang liars, and stated that their allegations
were financially motivated.
Davis and Lang commenced this action against Boeheim
and the University for defamation, claiming that several of
Boeheim's statements to ESPN, the Post-Standard, and the New York
Times, were false and defamatory, and had caused them economic,
emotional and reputational harm. The University and Boeheim filed
a motion to dismiss pursuant to CPLR 3211 (a) (7), on the grounds
that the statements were not defamatory as a matter of law
because they constituted nonactionable opinion, not facts.
Supreme Court granted the motion concluding that a reasonable
reader would conclude that Boeheim's statements were "a biased
and personal opinion on the accusations against Bernie Fine, not
fact."
The Appellate Division affirmed in a split 3-2
decision. The majority concluded that although Boeheim's
statements that Davis fabricated allegations and was motivated by
financial gain had certain factual elements, based on "the
context of the communication as a whole, as well as its tone and
apparent purpose," and "the over-all context in which the
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assertions were made," a reasonable reader would have believed
that the challenged statements were conveying opinion and not
facts (Davis v Boeheim, 110 AD3d 1431, 1433 [4th Dept 2013]).
The dissent concluded that dismissal on a pre-answer motion to
dismiss was error because Boeheim's statements that Davis was
lying about Fine to get money, and that he had done so in the
past, constituted opinion that implies a basis in facts not
disclosed to the reader or listener, and thus constituted
actionable "mixed opinion."
Davis and Lang contend that the Appellate Division
erred because the complaint sufficiently pleads a cause of action
for defamation against Boeheim and the University based on
statements that are defamatory facts or, alternatively, mixed
opinion. We agree the complaint is sufficient to survive the
motion to dismiss, and reverse the Appellate Division.
II.
This appeal comes to us on a pre-answer motion to
dismiss pursuant to CPLR 3211 (a) (7), a procedural posture which
requires that "we accept as true each and every allegation made
by plaintiff and limit our inquiry to the legal sufficiency of
plaintiff's claim" (Silsdorf v Levine, 59 NY2d 8, 12 [1983]; see
also Armstrong v Simon & Schuster, Inc., 85 NY2d 373, 379
[1995]). Unlike on a motion for summary judgment where the court
"searches the record and assesses the sufficiency of the parties'
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evidence," on a motion to dismiss the court "merely examines the
adequacy of the pleadings" (State v Barclays Bank of New York,
N.A., 151 AD2d 19, 21 [3d Dept 1989], affd 76 NY2d 533 [1990]).
In determining the sufficiency of a defamation pleading, we
consider "whether the contested statements are reasonably
susceptible of a defamatory connotation" (Armstrong, 85 NY2d at
380, citing Weiner v Doubleday & Co., 74 NY2d 586, 593 [1989]).
As we have previously stated, "[i]f, upon any reasonable view of
the stated facts, plaintiff would be entitled to recovery for
defamation, the complaint must be deemed to sufficiently state a
cause of action" (Silsdorf, 59 NY2d at 12 [1983], citing 219
Broadway Corp. v Alexander's, Inc., 46 NY2d 506, 509 [1979]). We
apply this liberal standard fully aware that permitting
litigation to proceed to discovery carries the risk of
potentially chilling free speech, but do so because, as we have
previously stated, "we recognize as well a plaintiff's right to
seek redress, and not have the courthouse doors closed at the
very inception of an action, where the pleading meets the minimal
standard necessary to resist dismissal of the complaint"
(Armstrong, 85 NY2d at 379).
In order for the challenged statements to be
susceptible of a defamatory connotation, they must come within
the well established categories of actionable communications.
Thus, a false statement "that tends to expose a person to public
contempt, hatred, ridicule, aversion or disgrace constitutes
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defamation" (Thomas H. v Paul B., 18 NY3d 580, 584 [2012]).
"Since falsity is a necessary element of a defamation cause of
action and only 'facts' are capable of being proven false, 'only
statements alleging facts can properly be the subject of a
defamation action'" (Gross v New York Times, 82 NY2d 146, 152-153
[1993], citing 600 W. 115th St. Corp. v Von Gutfeld, 80 NY2d 130,
139 [1992] and Immuno AG. v Moor-Jankowski, 74 NY2d 548, 254
[1989]).
A defamatory statement of fact is in contrast to "pure
opinion" which under our laws is not actionable because
"[e]xpressions of opinion, as opposed to assertions of fact, are
deemed privileged and, no matter how offensive, cannot be the
subject of an action for defamation" (Mann v Abel, 10 NY3d 271,
276 [2012]). For, "[h]owever pernicious an opinion may seem, we
depend for its correction not on the conscience of judges and
juries but on the competition of other ideas" (Steinhilber v
Alphonse, 68 NY2d 283, 289 [1986], citing Gertz v Robert Welch,
Inc., 418 U.S. 323, 339-340 [1974]). A pure opinion may take one
of two forms. It may be "a statement of opinion which is
accompanied by a recitation of the facts upon which it is based,"
or it may be "an opinion not accompanied by such a factual
recitation" so long as "it does not imply that it is based upon
undisclosed facts" (Steinhilber, 68 NY2d at 289, citing Ollman v
Evans, 750 F2d 970, 976 [DC Cir 1984]).
While a pure opinion cannot be the subject of a
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defamation claim, an opinion that "implies that it is based upon
facts which justify the opinion but are unknown to those reading
or hearing it, [] is a 'mixed opinion' and is actionable"
(Steinhilber, 68 NY2d at 289, citing Hotchner v Castillo-Puche,
551 F2d 910, 913 [2d Cir], cert denied sub nom. Hotchner v
Doubleday & Co., 434 U.S. 834 and Cianci v New Times Pub. Co., 639
F2d 54, 64, 65 [2d Cir]). This requirement that the facts upon
which the opinion is based are known "ensure[s] that the reader
has the opportunity to assess the basis upon which the opinion
was reached in order to draw [the reader's] own conclusions
concerning its validity" (Silsdorf, 59 NY2d at 13-14). What
differentiates an actionable mixed opinion from a privileged,
pure opinion is "the implication that the speaker knows certain
facts, unknown to [the] audience, which support [the speaker's]
opinion and are detrimental to the person" being discussed
(Steinhilber, 68 NY2d at 290, citing Rand v New York Times Co.,
75 AD2d 417, 422 and Silsdorf, 59 NY2d at 14).
Distinguishing between fact and opinion is a question
of law for the courts, to be decided based on "what the average
person hearing or reading the communication would take it to
mean" (Steinhilber, 68 NY2d at 290; Mann, 10 NY3d at 276
["[w]hether a particular statement constitutes an opinion or
objective fact is a question of law"], citing Rinaldi v Holt,
Rinehart & Winston, 42 NY2d 369, 381 [1977], cert denied 434 U.S.
969 [1977]). "The dispositive inquiry ... is 'whether a
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reasonable [reader] could have concluded that [the statements
were] conveying facts about the plaintiff" (Gross, 82 NY2d at 152
citing 600 W. 115th St. Corp., 80 NY2d at 139).
We apply three factors in determining whether a
reasonable reader would consider the statement connotes fact or
nonactionable opinion: "(1) whether the specific language in
issue has a precise meaning which is readily understood; (2)
whether the statements are capable of being proven true or false;
and (3) whether either the full context of the communication in
which the statement appears or the broader social context and
surrounding circumstances are such as to signal . . . readers or
listeners that what is being read or heard is likely to be
opinion, not fact" (Mann, 10 NY3d at 276, quoting Brian, 87 NY2d
at 51).
The third factor "lends both depth and difficulty to
the analysis" (Brian, 87 NY2d at 51), and requires that the court
consider the content of the communication as a whole, its tone
and apparent purpose (Brian, 87 NY2d at 51; Mann, 10 NY3d at 276,
quoting Brian, 87 NY2d at 51). Thus, we have adopted a holistic
approach to this inquiry. "Rather than sifting through a
communication for the purpose of isolating and identifying
assertions of fact, the court should look to the over-all context
in which the assertions were made and determine on that basis
'whether the reasonable reader would have believed that the
challenged statements were conveying facts about the []
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plaintiff'" (Brian, 87 NY2d at 51, citing Immuno AG., 74 NY2d at
254, Steinhilber, 68 NY2d at 293; Mann, 10 NY3d at 276, quoting
Brian, 87 NY2d at 51).
III.
In their complaint, Davis and Lang alleged that Boeheim
made defamatory statements that they were liars seeking money.
In support of their claim, they identified quotes from Boeheim in
which he stated:
(1) "This is alleged to have occurred ...
what? Twenty years ago? Am I in the right
neighborhood? ... So we are supposed to do
what? Stop the presses 26 years later? For a
false allegation? For what I absolutely
believe is a false allegation? I know [Davis
is] lying about me seeing him in his hotel
room. That's a lie. If he's going to tell
one lie, I'm sure there's a few more of
them."
(2) "The Penn State thing came out and the
kid behind this is trying to get money. He's
tried before. And now he's trying again ....
That's what this is about. Money."
(3) "It is a bunch of a thousand lies that
[Davis] has told .... He supplied four names
to the university that would corroborate his
story. None of them did ... there is only
one side to this story. He is lying."
Boeheim continued, "I believe they saw what
happened at Penn State, and they are using
ESPN to get money. That is what I believe."
(4) "You don't think it is a little funny
that his cousin (relative) is coming
forward?"
(5) Boeheim stated that the timing of Lang's
decision to speak out about his abuse seemed
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"a little suspicious."
Applying the aforementioned principles to this case,
the first and second factors weigh in favor of finding that
Boeheim's statements were factual assertions. With respect to
the first factor, Boeheim used specific, easily understood
language to communicate that Davis and Lang lied, their motive
was financial gain, and Davis had made prior similar statements
for the same reason. These are clear statements of the
plaintiffs' actions and the driving force for their allegations
against Fine. Consideration of the second factor similarly
weighs in favor of treating Boeheim's statements as factual
because the statements are capable of being proven true or false,
as they concern whether plaintiffs made false sexual abuse
allegations against Fine in order to get money, and whether Davis
had made false statements in the past (see McNamee v Clemens, 762
F Supp 2d 584, 601 [EDNY 2011] [distinguishing general denials of
accusations from specific statements that accuser "will be proven
a liar and has lied in front of members of congress" and holding
the latter actionable]). Moreover, they were not "rhetorical
hyperbole rather than objective fact" (Ram v Moritt, 205 AD2d
516, 517 [2d Dept 1994]; see also Ind. Living Aids v Maxi-Aids,
Inc., 981 F Supp 124, 128 [EDNY 1997] [epithet 'liar', in
context, where it reflects a mere denial of accusations, was
personal opinion and rhetorical hyperbole]). Our inquiry,
however, does not rest on these two factors because the third
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factor in the analysis "is often the key consideration in
categorizing a statement as fact or opinion" (Thomas H., 18 NY3d
at 585, citing Immuno AG., 77 NY2d at 254). It is this third
factor that the parties vigorously dispute, and which we conclude
establishes the sufficiency of plaintiffs' complaint.
Defendants contend that the context in which the
statements were made leads inexorably to the conclusion that
Boeheim's statements are nonactionable pure opinion. They argue
that a reader would consider Boeheim's statements as an obvious
and transparent effort to defend his long-time close friend and
colleague against allegations of sexual abuse, as well as an
effort to defend against suggestions that Boeheim knew about the
alleged abuse and did nothing. They further argue that he
specifically denied any special knowledge when he stated, "I know
nothing" and "I really don't have any facts."
Essentially, defendants argue that because a reader
could interpret the statement as pure opinion, the statement is
as a consequence, nonactionable and was properly dismissed under
CPLR 3211 (a) (7). However, on a motion to dismiss we consider
whether any reading of the complaint supports the defamation
claim. Thus, although "[i]t may well be that [the challenged
statements] are subject to [defendants'] interpretation [] the
motion to dismiss must be denied if the communication at issue,
taking the words in their ordinary meaning and in context, is
also susceptible to a defamatory connotation" (Sweeney v
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Prisoners' Legal Services of New York, Inc., 146 AD2d 1, 4 [3d
Dept 1989], citing Carney v Memorial Hosp. & Nursing Home, 64
NY2d 770, 772 [1985] and Silsdorf, 59 NY2d at 12-13). We find
this complaint to meet this minimum pleading requirement.
Here, Boeheim stated that Davis and Lang lied and did
so for monetary gain, and that Davis had done so in the past.
Boeheim's assertions that Davis previously made the same claims,
for the same purpose, communicated that Boeheim was relying on
undisclosed facts that would justify Boeheim's statements that
Davis and Lang were neither credible nor victims of sexual
abuse.1 That, as defendants argue, Boeheim denied knowledge of
facts, or prefaced some statements by saying "I believe", is
insufficient to transform his statements into nonactionable pure
opinion, because in context, a reasonable reader could view his
statements as supported by undisclosed facts despite these
denials (Thomas H., 18 NY3d at 586).
The context further suggests to the reader that Boeheim
spoke with authority, and that his statements were based on
facts. Boeheim was a well respected, exalted member of the
University and the Syracuse community-at-large, and as head coach
of the team appeared well placed to have information about the
charges. Boeheim's initial statement, which contained
1
Based on our conclusion that the complaint sufficiently
states a claim for defamation, we need not address whether
plaintiffs' alternative theory of mixed opinion based on
distorted facts was preserved below and properly before us.
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information about the University's investigation, was released on
the School's website, confirming his status within the
University. His statement contained information about Davis'
allegations and the University's investigation, which a reader
could understand was based on Boeheim's access to factual details
unavailable to the public, facts which supported his assertions
about Davis and his motive. That Boeheim's statement was issued
prior to the University's first public statement about the
investigation, further suggests that Boeheim had access to
otherwise confidential information. Moreover, Boeheim worked
with Fine for many years and claimed to "know" Davis from when
Davis was a child assisting the team and serving as a babysitter,
further suggesting that Boeheim had particular details upon which
he relied in asserting that the allegations were untrue.
In addition, Boeheim knowingly made these statements to reporters
during the media investigation and coverage of the plaintiffs'
allegations. Those statements were then published in news-
related articles that described the allegations, comparing them
to the Penn State victims' claims, and discussing the impact of
the sexual abuse charges on the individuals involved. Although
the placement of the articles is but one factor to be considered,
because the articles cited by plaintiffs cannot be categorized as
op eds or letters to the editor, "the common expectations that
apply to those more opinionated journalistic endeavors were
inapplicable here (see, Immuno AG. v Moor-Jankowski, supra).
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Thus, the circumstances under which these accusations were
published 'encourag[ed] the reasonable reader to be less
skeptical and more willing to conclude that [they] stat[ed] or
impl[ied] facts'" (Gross, 82 NY2d at 156, quoting 600 West 115th
Street 80 NY2d at 142).
IV.
At this early stage of the litigation, on this pre-
answer motion to dismiss and on the record before us, we cannot
state as a matter of law that the statements are pure opinion.
There is a reasonable view of the claims upon which Davis and
Lang would be entitled to recover for defamation, therefore the
complaint must be deemed to sufficiently state a cause of action
(Silsdorf, 59 NY2d at 12). Accordingly, the Appellate Division
order should be reversed, with costs, and the motion to dismiss
the complaint denied.
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Order reversed, with costs, and defendants' motion to dismiss the
complaint denied. Opinion by Judge Rivera. Chief Judge Lippman
and Judges Graffeo, Read, Smith and Abdus-Salaam concur.
Judge Pigott took no part.
Decided October 21, 2014
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