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 US 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 US 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 US

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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