| Davis v Boeheim |
| 2013 NY Slip Op 06446 [110 AD3d 1431] |
| October 4, 2013 |
| Appellate Division, Fourth Department |
| Robert Davis et al., Appellants, v James Boeheim et al.,Respondents. |
—[*1] Debevoise & Plimpton LLP, New York City (Helen V. Cantwell of counsel),Hancock Estabrook, LLP, Syracuse and Dinsmore & Shohl LLP, Pittsburgh,Pennsylvania, for defendants-respondents.
Appeal from an order of the Supreme Court, Onondaga County (Brian F. DeJoseph,J.), entered May 30, 2012. The order granted the motion of defendants to dismiss thecomplaint.
It is hereby ordered that the order so appealed from is affirmed without costs.
Memorandum: Plaintiffs commenced this defamation action seeking damages forstatements made by James Boeheim (defendant), the head basketball coach for defendantSyracuse University (University), in the wake of allegations by plaintiffs that they weresexually abused by associate head coach Bernie Fine. Contrary to plaintiffs'contention, Supreme Court properly granted defendants' motion to dismiss the complaintpursuant to CPLR 3211 (a) (7) for failure to state a cause of action.
It is undisputed that Fine and defendant were long-time friends and that Fine coachedwith defendant for approximately 35 years. It is also undisputed that Robert Davis(plaintiff) had reported the alleged abuse to the Syracuse Police Department in 2002 andto the University in 2005. No criminal charges were brought against Fine, and theUniversity advised plaintiff that it had determined following an internal investigationconducted by a law firm that the allegations were not substantiated and that theinvestigation was closed. Defendant made the alleged defamatory statements onNovember 17 and 18, 2011 during interviews that appeared at ESPN.com, andsyracuse.com, i.e., the online version of the Syracuse Post-Standard, and in the NewYork Times. Several news articles were thereafter published based on those interviews.Those articles included the statements of defendant that plaintiff lied when he stated inan interview with ESPN that defendant saw plaintiff lying on the bed in Fine's hotelroom in New Orleans in 1987; that plaintiffs were lying with respect to the allegationsabout Fine; that plaintiff had provided the University with the names of four people whocould corroborate his allegations, [*2]but that theallegations were not in fact corroborated; and that, in the wake of the scandal at PennState University involving Jerry Sandusky, a former assistant football coach at thatuniversity, plaintiffs were financially motivated in making the allegations against Fine.
"Making a false statement that tends to expose a person to public contempt, hatred,ridicule, aversion or disgrace constitutes defamation . . . Generally, onlystatements of fact can be defamatory because statements of pure opinion cannot beproven untrue" (Thomas H. vPaul B., 18 NY3d 580, 584 [2012]). "The issue at this early, preanswer stage ofthe litigation is whether plaintiff[s'] [complaint] sufficiently allege[s] false, defamatorystatements of fact rather than mere nonactionable statements of opinion"(Gross v New York Times Co., 82 NY2d 146, 149 [1993]). "Expressions ofopinion, as opposed to assertions of fact, are deemed privileged and, no matter howoffensive, cannot be the subject of an action for defamation" (Mann v Abel, 10 NY3d271, 276 [2008], cert denied 555 US 1170 [2009]; see Weiner vDoubleday & Co., 74 NY2d 586, 593 [1989], cert denied 495 US 930[1990]; Steinhilber v Alphonse, 68 NY2d 283, 289 [1986]). Although the Courtof Appeals has acknowledged that "[d]istinguishing between opinion and fact has'proved a difficult task' " (Mann, 10 NY3d at 276), it has provided three factorsfor courts to consider in determining whether the alleged defamatory statements areactionable statements of fact or nonactionable statements of opinion (see id.).
We agree with plaintiffs that defendant's statements that they lied and that they did soout of a financial motivation are statements of fact when viewed in light of the first twofactors set forth in Mann, i.e., those statements use specific language that "has aprecise meaning which is readily understood" and are "capable of being proven true orfalse" (id.). We note in particular that, when defendant was asked during thesyracuse.com interview what plaintiff's "possible motivation would be to tell hisdisturbing story at this time," he responded that plaintiff was "trying to get money. He'stried before. And now he's trying again." Although that statement may be interpreted asimplying that defendant knew facts that were not available to the reader (seeGross, 82 NY2d at 153; Steinhilber, 68 NY2d at 289), we are neverthelessmindful that we "must consider the content of the communication as a whole, as well asits tone and apparent purpose and in particular should look to the over-all context inwhich the assertions were made and determine on that basis whether the reasonablereader would have believed that the challenged statements were conveying facts about. . . plaintiff" (Mann, 10 NY3d at 276 [internal quotation marksomitted]). Furthermore, we must "avoid[ ] the 'hypertechnical parsing' of written andspoken words for the purpose of identifying 'possible "fact[s]" ' that might form the basisof a sustainable libel action" (Gross, 82 NY2d at 156).
Defendant's statements also must be viewed in light of the third factor set forth inMann, i.e., "whether either the full context of the communication in which thestatement[s] appear[ ] or the broader social context and surrounding circumstances aresuch as to signal . . . readers or listeners that what is being read or heard islikely to be opinion, not fact" (id. at 276). Defendant additionally stated in theinterview with syracuse.com: "So, we are supposed to do what? Stop the presses 26 yearslater? For a false allegation? For what I absolutely believe is a false allegation? I know[plaintiff is] lying about me seeing him in his hotel room. That's a lie. If he's going to tellone lie, I'm sure there's a few more of them . . . I have never been in BernieFine's hotel room in my life . . . Now, could I have once . . .one time? I have a pretty good recollection of things, but I don't ever recollect everwalking into Bernie Fine's hotel room. Ever." In his interview with ESPN, defendantstated: "I know this kid, but I never saw him in any rooms or anything . . . Itis a bunch of a thousand lies that [plaintiff] has told. You don't think it is a little funnythat his cousin . . . is coming forward? . . . He supplied fournames to the university that would corroborate his story. None of them did. . . [T]here is only one side to this story. He is lying."[*3]
We conclude that defendant's statementsdemonstrate his support for Fine, his long-time friend and colleague, and also constitutehis reaction to plaintiff's implied allegation, made days after Penn State University firedits long-term football coach, that defendant knew or should have known of Fine's allegedimproprieties. We therefore conclude that the content of the statements, together with thesurrounding circumstances, " 'are such as to signal . . . readers or listenersthat what is being read or heard is likely to be opinion, not fact' " (Mann, 10NY3d at 276). Based upon "the content of the communication[s] as a whole, as well as[their] tone and apparent purpose[, together with] the over-all context in which theassertions were made" (id.), we thus conclude that the court properly determinedthat defendant's statements constitute opinion, not fact.
We have reviewed plaintiffs' remaining contentions and conclude that they arewithout merit.
All concur except Smith and Fahey, JJ., who dissent and vote to reverse inaccordance with the following memorandum.
Smith and Fahey, JJ. (dissenting). We respectfully dissent because we cannot agreewith the majority's conclusion that Supreme Court properly granted defendants' motion todismiss the complaint pursuant to CPLR 3211 (a) (7), for failure to state a cause ofaction. In our view, the statements of James Boeheim (defendant) of which plaintiffscomplain constitute "mixed opinion," i.e., "statement[s] of opinion that impl[y] a basis infacts which are not disclosed to the reader or listener" (Gross v New York TimesCo., 82 NY2d 146, 153 [1993]), and we would thus reverse the order, deny themotion and reinstate the complaint.
We agree with the majority that "[t]he issue at this early, preanswer stage of thelitigation is whether [the complaint] sufficiently allege[s] false, defamatory statements offact rather than mere nonactionable statements of opinion" (id. at149). We further agree with the majority that our analysis is guided by the factors fordistinguishing between expressions of opinion and assertions of fact, to wit: " '(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) whethereither the full context of the communication in which the statement appears or thebroader social context and surrounding circumstances are such to signal . . .readers or listeners that what is being read or heard is likely to be opinion, not fact' " (Mann v Abel, 10 NY3d271, 276 [2008], cert denied 555 US 1170 [2009]; see Thomas H. v Paul B., 18NY3d 580, 584 [2012]). In view of the majority's determination with respect to thefirst two factors, our analysis focuses on the third factor, and with respect to that factorwe note the rule requiring us to "look to the over-all context in which the assertions weremade and determine on that basis 'whether the reasonable reader [or listener] would havebelieved that the challenged statements were conveying facts about the . . .plaintiff[s]' " (Brian v Richardson, 87 NY2d 46, 51 [1995], quoting ImmunoAG. v Moor-Jankowski, 77 NY2d 235, 254 [1991], cert denied 500 US 954[1991]; see Mann, 10 NY3d at 276).
Applying that rule here, and noting the principles set forth in Leon vMartinez (84 NY2d 83, 87-88 [1994]) in light of the important point that this appealconcerns a preanswer motion to dismiss, we cannot agree with the majority thatthe complaint does not sufficiently allege false, defamatory statements of fact (seeGross, 82 NY2d at 153-154). We note that the complaint alleges, inter alia, that inone interview with the Syracuse Post-Standard defendant stated, "The Penn State thingcame out and the kid behind this is trying to get money. He's tried before. And now he'strying again . . . That's what this is about. Money." The complaint furtheralleges that defendant "made similar statements to ESPN, telling the national sports newsnetwork: 'It is a bunch of a thousand lies that [plaintiff Robert Davis] has told. . . He supplied four names to the university that would corroborate hisstory. None of them did . . . there is only one side to this story. He is lying.'" According to the complaint, defendant added, "I believe they saw what [*4]happened at Penn State, and they are using ESPN to getmoney. That is what I believe."
Although we are mindful of the timing of the disputed statements, we conclude thatthrough the statements noted above the complaint sufficiently alleges false, defamatoryrepresentations of fact about plaintiffs, i.e., that Davis was lying about Bernie Fine, thatDavis had previously tried to obtain money through similar allegations, and that Davisand plaintiff Michael Lang, who the complaint alleges is a relative of Davis, were doingso again through the instant allegations (see Thomas H., 18 NY3d at 584;Gross, 82 NY2d at 156; cf. Mann, 10 NY3d at 276-277). We thus agreewith plaintiffs that the statements constitute mixed opinion, i.e., opinion that "implies abasis in facts which are not disclosed to the reader or listener" (Gross, 82 NY2dat 153). We also conclude that "the defamatory nature of the statement[s] [at issue here]cannot be immunized by pairing [them] with [the words,] 'I believe' " (ThomasH., 18 NY3d at 585). Present—Scudder, P.J., Smith, Centra, Fahey andPeradotto, JJ.