IFILED: ONONDAGA

NYSCE OC. NO. 30

COUNTY CLERK 05/11/20121
RECEIVED

INDEX NO. 2012EF1 NYSCEF: 05/ 1/2012

STATE OF NEW YORK SUPREME COURT

COUNTY OF ONONDAGA

ROBERT DAVIS and MICHAEL LANG, Plaintiffs, vs.

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DECISION

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JAMES BOEHEIM and SYRACUSE UNIVERSITY, Defendants.

RJI 33-12-0163 INDEX NO. 2012-EF-1

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Decision on motion before the Hon. Brian F. Dejoseph, Justice of the Supreme Court, on the 27th day of April, 2012.
Appearances: For the Plaintiffs:

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CUTI HECKER WANG LLP 305 Broadway, Suite 607 New York, New York 10007 BY: MARIANN MEIER WANG, ESQ. Of Counsel. ALLRED, MAROKO & GOLDBERG 6300 Wilshire Boulevard, Suite 1500 Los Angeles, California 90048 BY: GLORIA ALLRED, ESQ. NATHAN GOLDBERG, ESQ. Of Counsel.

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For the Defendant-Boeheim:

HANCOCK ESTABROOK, LLP 1500 AXA Tower I 100 Madison Street Syracuse, New York 13202 BY: TIMOTHY P. MURPHY, ESQ. Of Counsel.

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DINSMORE & SHOHL LLP 301 Grant Street, Suite 2800 Pittsburgh, Pennsylvania 15219 BY: C. JAMES ZESZUTEK, ESQ. MARK A. VANDERLAAN, ESQ. Of Counsel.
For the Defendant-Syracuse University

DEBEVOISE & PLIMPTON LLP 919 Third Avenue New York, New York 10022 BY: HELEN CANTWELL, ESQ. ANDREW M. LEVINE, ESQ. Of Counsel.

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This is a defamation case, rooted in allegations of sexual abuse. Defendants, James Boeheim ("Boeheim") and Syracuse University ("University"), bring this pre-answer
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motion to dismiss pursuant to CPLR §3211(a)(7) for failure to state a claim upon which relief may be granted. The Decision hereinafter set forth addresses defamation only. BACKGROUND On November 17,2011, in the wake of the revelation that former Penn State assistant football coach Jerry Sandusky had allegedly sexually abused several young boys,

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the Entertainment and Sports Programming Network (ESPN) reported that Plaintiffs, Robert Davis ("Davis") and his step-brother, Michael Lang ("Lang"), had accused Bernie Fine ("Fine") of sexual abuse. At the time of this report, Bernie Fine was the associate head basketball coach at Syracuse University. For approximately 35 years (1976-2011), Bernie Fine had worked alongside head coach James Boeheim at Syracuse University. To this
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point, it is undisputed in the record that Bernie Fine and James Boeheim were longtime friends and colleagues at the time the ESPN report was released. The ESPN report provided a background of Plaintiff Robert Davis' prior attempts and claims to report that Bernie Fine had abused him. More specifically, in 2002, Davis contacted the Syracuse Police Department, but was apparently told that his claims would

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not be investigated because the "statute oflimitations

had run." In 2002 and 2003, Davis

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contacted the Syracuse Post Standard and ESPN with his accusations and contentions, but neither entity published the claims. In 2005, Davis contacted Syracuse University, which thereafter conducted an investigation. While the investigative report is not before the Court, it is undisputed that the University concluded that there was no corroborating evidence to take any affirmative action against Bernie Fine.

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On the day that ESPN aired their report, Syracuse University Chancellor, Nancy Cantor, released a statement which encouraged the community to "avoid an unfair rush to judgment." At this time, Syracuse University placed Bernie Fine on administrative leave. Boeheim also released a statement on November 17, 2011, which provided the following: "This matter was fully investigated by the University in 2005 and it was determined that the allegations were unfounded. I have known Bernie Fine for more than 40 years. I have never seen or witnessed anything to suggest that he would be involved in any of the activities alleged. Had I seen or suspected anything, I would have taken action. Bernie has my full support."

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Levine Affirmation, Exhibit E.

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In the days after the ESPN story was released, several national and local media outlets reported on the story. Several of the subsequent publications included statements from Boeheim. On November 27,2011, ten days after the initial ESPN story was aired, new information was released regarding Bernie Fine, including a taped phone conversation between Bernie Fine's wife and Robert Davis. As a result of this development, Bernie Fine was terminated from his employment with Syracuse University. Soon thereafter, Boeheim issued another statement, reciting the following: "The allegations that have come forth today are disturbing and deeply troubling. I am personally very shocked because I have never witnessed any of the activities that have been alleged. I believe the university took the appropriate step tonight. What is most important is that this matter be fully investigated and that anyone with information be supported to come forward so that the truth can be found. I deeply regret any statements that I made that might have inhibited that from occurring or been insensitive to victims of abuse."

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Levine Affirmation, Exhibit R. On December 13, 2011, Plaintiffs Robert Davis and Michael Lang brought this defamation action against Defendants James Boeheim and Syracuse University.
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In their Complaint, Plaintiffs have identified the allegedly defamatory statements, which were contained in articles published on November 17 and 18,2011 in the Syracuse Post Standard, Sporting News and The New York Times. These publications/articles are

part of the record before the Court. The following is a summary of the alleged defamatory statements contained within those publications:

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In the Syracuse Post Standard, Boeheim was quoted as stating: "This is alleged to have occurred ... what? Twenty years ago? Am I in the right neighborhood? ... So are we 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. Ifhe's going to tell one lie, I'm sure there's a few more ofthem."

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"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."

Levine Affirmation, Exhibit L; Plaintiffs' Complaint ~~ 47-48.

In Sporting News, Boeheim was quoted as stating:

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"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."

"I believe they saw what happened at Penn State, and they are using ESPN to get money. That is what I believe."

Levine Affirmation, Exhibit J; Plaintiffs' Complaint ~ 49.
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While speaking to ESPN, Boeheim was further quoted as stating:

"You don't think it is a little funny that his cousin (relative) is coming forward?"

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Boeheim was quoted in The New York Times as stating that the timing of Michael Lang's decision to speak out was: "A little suspicious." Levine Affirmation, Exhibit G; Plaintiffs' Complaint ~ 51.

CONTENTIONS

As a result of these remarks, Plaintiffs commenced this action against the Defendants seeking damages for, among other things, their diminished career opportunities in the Central New York region, damage to their reputations, along with "lasting emotional
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harm" associated with the continued reminder of the sexual abuse allegedly caused by Bernie Fine. Defendants move herein to dismiss Plaintiffs' Complaint on the ground that the statements complained of, taken as a whole, are constitutionally protected expressions of opimon.

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DISCUSSION On a motion to dismiss for failure to state a cause of action, the Court is obligated to accept the material allegations as true and the Complaint is deemed to allege whatever can be fairly and reasonably implied. If upon reasonable view of the stated facts, Plaintiff
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would be entitled to recover for defamation, the cause of action must be upheld. Leon v. Martinez, 84 N.Y.2d 83 (1994); Silsdorfv. Levine, 59 N.Y.2d 8 (1983); see also Frank v. Daimler Chrysler Corp., 292 A.D.2d 118 (1st Dep't 2002) (The Court's role in a motion to dismiss is limited to determining whether a cause of action is stated within the four comers of the Complaint, and not whether there is evidentiary support for the Complaint.) Beginning in 1964, in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the United States Supreme Court profoundly affected the common law rules governing the law of defamation by holding that the First Amendment places constitutional limits on a state's ability to impose liability for defamatory speech. Since Sullivan, the United States Supreme Court and the New York State Court of Appeals have continued to define the constitutional limitations on the type of speech that may be actionable. For example, speech that may be characterized as rhetorical hyperbole or imaginative expression is not actionable and statements that cannot reasonably be interpreted as stating actual facts are protected. See Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990); Gross v. New York Times Co., 82 N.Y.2d 146 (1993). The rationale for this immunity is that "[u]nder the First Amendment there is no such thing as a false idea. However 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." Gertz v. Robert Welch, Inc., 418 U.S. 323,339-340 (1974).

Nevertheless, it is the New York State Constitution that affords more protection for statements of opinion than federal law requires. Immuno AG v. Moor-Jankowski, 77 N.Y.2d 235 (1991). Under both state and federal law, however, it is for the Court to decide

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whether the statement complained of is one of opinion or fact. Mann v. Abel, 10 N S.3d 271 (2008). In making this determination the Court must determine whether the reasonable reader could have believed that the challenged statements were conveying facts about the plaintiff. Id. The primary difference between the state standard (Immuno A G standard) and the federal standard (Milkovich standard), is that New York's approach requires an analysis of the full context of the challenged speech whereas the federal approach requires a determination as to whether the precise words express or imply a provably false fact. Brian

v. Richardson, 87 N.Y.2d 46 (1995); Sandals Resorts v. Google, 86 A.D.3d 32 (1 st Dep't
2011). Based on the foregoing, in all defamation cases, the threshold issue which must be determined, as a matter of law, is whether the alleged defamatory statements constitute
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expressions of opinion which are not actionable or assertions of fact which may form the basis of a viable claim. On this issue, "the dispositive inquiry ... is whether a reasonable [reader] could have concluded that [the statements were] conveying facts about the plaintiff." Gross, 82 N.Y.2d at 152 (1993) (emphasis added). In evaluating the impact of the statement on the reasonable reader, the alleged defamatory statement must be reviewed

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in context. As set forth by the Court of Appeals, the Court must analyze the following factors: (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 -8-

(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. Brian, supra; Gross, supra.

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There are, however, certain types of opinion, known as "mixed opinion," which may form the basis for a valid defamation action. When a defamatory statement of opinion implies that it is based upon undisclosed facts which justify the opinion but are unknown to the reader or listener, it is a "mixed opinion" and actionable. That is, when the author or speaker implies in his statement that he knows certain facts, unknown to his audience, which support his statement/opinion, it is a mixed actionable opinion. See e.g., People v. Grasso, 21 A.D.3d 851 (1 st Dep't 2005) (Statements expressing opinion that NYSE had potential litigation claims based on former chairman's receipt of allegedly excessive compensation was actionable because of implication that opinions were based on detrimental facts not disclosed to the public/audience.) N.Y.2d 235 (1991); Gross, supra. Immuno AG v. Moor-Jankowski, 77

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Also actionable as a "mixed opinion" is an opinion which is accompanied by a recitation of facts upon which the opinion is based, but those underlying facts are either falsely misrepresented or grossly distorted. Silsdorf v. Levine, 59 N .Y.2d 8 (1983) (Statement of opinion, contained in a letter, was held sufficient to form the basis for a defamation claim in light of allegations by plaintiff that facts set forth in such letter were
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"gross distortions" and "misrepresentations AD.2d 81 (lst Dep't 1987).

of fact"); Chalpin v. Amoridian Press, 128

The Court of Appeals has continued to emphasize the importance of context in determining whether certain alleged defamatory statements are factual. "In all cases, whether the challenged remark concerns criminality or some other defamatory category, the courts are obliged to consider the communication as a whole, as well as its immediate and broader social contexts to determine whether the reasonable listener or reader is likely to understand the remark as an assertion of provable fact." Gross, 82 N.Y.2d at 155; Thomas H. v. Paul B., 18 N.Y.3d 580 (2012) (Context is often the key consideration in categorizing a statement as fact or opinion). "Isolating challenged speech and first extracting its express and implied factual statements, without knowing the full context in which they were uttered, indeed may result in identifying many more implied factual assertions than would a reasonable person encountering that expression in context."
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Immuno AG, 77 N.Y.2d at 255; see also Gross, 82 N.Y.2d at 156 ("We stress once again our commitment to avoiding the 'hypertechnical parsing' of written and spoken words for the purposes of identifying 'possible [facts] ...."')(quoting Immuno AG, 77 N.Y.2d at 256); Brian, 87 N.Y.2d at 51 ("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 libel plaintiff.")

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CONTEXT In the present case, the broader social context, the immediate context and the actual plain language of Defendant Boeheim's statements, all demonstrate that Boeheim's remarks were merely his opinion. First, there can be little dispute that Boeheim' s remarks were made in the midst of another highly publicized sexual abuse scandal at Penn State University. The broader context of the Penn State scandal is highly relevant here as Defendant Boeheim was naturally placed in a defensive posture, attempting to defend himself and co-defendant Syracuse University from being compared to the allegations waged against Penn State, then Penn State head football coach Joe Paterno, and former Penn State assistant football coach Jerry Sandusky. On this point, Boeheim defended his program, a program he had been the
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head coach of for approximately 35 years, by stating "I'm not Joe Paterno. Somebody didn't come and tell me Bernie Fine did something and I'm hiding it. I know nothing." Levine Affirmation, Exhibit M. Plaintiffs contend that Boeheim was not implicated by ESPN's initial reporting of the Plaintiffs' accusations against Bernie Fine. Plaintiffs attempt to categorize Boeheim as

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a "disinterested observer" to the allegations and sexual abuse claims against Fine. The broader context, however, signals a much different conclusion. First and foremost, Plaintiff Davis specifically reported to ESPN that Boeheim had seen him in Bernie Fine's hotel room, laying on Bernie Fine's bed, during the 1987 NCAA Final Four. Certainly this statement implies that Boeheim had some knowledge of Bernie Fine's relationship with
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Davis, and also implies that Boeheim could have and should have acted upon this observation. The above statements indicate, on their face, and taken as a whole within the articles in which they were published, that Boeheim was passively implicated. In response, he defended himself. Moreover, it is undisputed that Bernie Fine and Boeheim have been acquainted for

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more than 40 years and Fine had been an assistant ofBoeheim's

on the Syracuse University

staff for approximately 35 seasons. Boeheim's remarks, taken in the context of this long relationship, clearly establish he was coming to the defense of his friend and colleague. Considering the backdrop of the Penn State scandal, Boeheim's personal and professional relationship with Bernie Fine, and Davis' assertion, Boeheim's statements appear to be a "product of passionate advocacy" as opposed to "careful, logically

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developed reason." 600 W JJ5th St Corp. v. Von Gutfield, 80 N.Y.2d 130, 141 (1992); Brian, supra; Goetz v. Kunstler, 164 Misc. 2d 557 (1995). The reasonable reader, therefore, would conclude that Boeheim was providing a biased and personal opinion on the accusations against Bernie Fine, not fact.

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Second, the immediate context of Boeheim's statements also point to its nature as opinion. In order to assess the full immediate context, the Court is required to read the full text of the articles in which Boeheim's remarks were published. The predominant tone of these articles clearly puts the reasonable reader on notice that Boeheim is boldly asserting his loyalty to a longtime colleague, and is frustrated by what he believes to be yet another -12-

opportunity for the Plaintiffs to accuse Bernie Fine of sexual abuse. The articles themselves set forth the personal and professional relationship between Boeheim and Fine. By way of example, The New York Times article referenced in Plaintiffs' Complaint is titled: "Syracuse's Boeheim Stands By Assistant Accused of Abuse." In this article, Boeheim is quoted as stating: "I've known Bernie Fine for 45 years, and there's absolutely no way that I believe any of this could possibly have happened ... [t]hat's the bottom line." Levine Affirmation, Exhibit G. This title, along with the full text of the article, as opposed to the individual statements and quotes extracted by the Plaintiffs, explicitly informs the reader that Boeheim was responding to accusations made against his longtime friend, and the implication that Boeheim knew or should have known of the alleged sexual abuse. Statements made by or on behalf of the alleged wrongdoer should alert the average reader
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that the speaker is reacting and speaking out of loyalty. Brian, supra. The New York Times article further noted that "[t]he Post Standard reported on its Web site Thursday night that it interviewed a handful of other men Davis suggested might have been molested by Fine. The newspaper added, [a]ll ofthese men, including a close relative of Davis, denied Fine had sexual contact with them." Levine Affirmation, Exhibit

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G. (Internal quotations omitted.) This statement cannot be ignored, as the Plaintiffs have done. The statement informs the reader that the basis of Boeheim's statements was not unique to him, but rather the Syracuse Post Standard had in fact looked into Davis' claims and decided not to publish. In other words, the reader/listener should know, based upon a full read of the article, that Boeheim was not asserting just a passionate, baseless, opinion, -13-

but instead Boeheim was referencing other known entities (ESPN, Syracuse Post Standard, etc.) who had looked into the claims and decided not to publish or investigate further. Taken all together, Boeheim stated his opinion and also recited certain known facts to support same. In this article, the reader is not obtaining those facts solely from Boeheim; the author is also providing those facts. Above all, it is well established that a particular communication accompanied by a recitation of the facts on which it is based is readily understood by the audience as conjecture and is not actionable. Brian, supra; see also Bruno v. New York Daily News Co., 89 A.D.2d 260 (3d Dep't 1982); Lapine v. Seinfeld, 31 Misc.3d 736 (2011). The article in the Syracuse Post Standard is titled: "Syracuse coach Jim Boeheim defends Bernie Fine, says accuser Bobby Davis is lying." In this article, Boeheim is also
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quoted as stating: "Bernie helped a lot of kids, a lot of kids. The Post Standard and the university talked to those other kids (in 2003). None of them corroborated the story, at all. I know some of those kids. They've told me, Hey, Coach. Bernie helped me. He cared about me. He knew I needed help and he helped me." Levine Affirmation, Exhibit L. Again, Plaintiffs have ignored the complete text of the article and the entirety of

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Boeheim's statements. In this article, Boeheim is yet again advocating his position to the audience, attempting to show how shocking these allegations are to him. Boeheim's bias shines through in these statements. Simply put, he is attempting to persuade the reader, based on Fine's history of helping children, that there is no possible way that these

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allegations could be true. This quote, along with the full article, adds greater immediate context to the question of how the reasonable reader would view Boeheim's statements. As a final example the article in the Sporting News, is titled: "Syracuse basketball coach Jim Boeheim risks everything to defend his friend Bernie Fine." Levine Affirmation, Exhibit J. The author of this article, Mike DeCourcy, notes that "Boeheim has invested deeply in the trust he has for his friend." This is a telling quote from the author that is relevant to the issue of immediate context. The article, analogous to the others, establishes the close friendship between Boeheim and Fine. However, this article goes beyond the others in the sense that it informs the reader that Boeheim is so close to Fine, and so loyal and trusting of Fine, that he is willing to risk his own reputation to defend him. To this point, there can be no clearer example of the utility of immediate context. This context, based on the full text of the article, delivers Boeheim's complete thought, which coupled with the analysis of the author, clearly signals to the reasonable reader that the speaker is not speaking objectively, but rather is expressing "pure opinion" on the accusations against his friend, Bernie Fine. Goetz v. Kunstler, 164 Misc.2d 557 (1995). All in all, the full text of these articles sufficiently outline Boeheim's expressions of opinion and signal to the reasonable reader that he was not simply a disinterested observer. Gisel v. Clear Channel Communications, Inc., 94 A.D.3d 1525 (4thDep't 2012); Gentile v. Grand Street Medical Associates, 79 A.D.3d 1351 (3d Dep't 2010); 600 W 115111 St Corp., supra; Brian, supra.

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Even if these articles, and specifically some of the independent quotes cited by the Plaintiffs, could be viewed, in part, as factual, that is not enough to disqualify them from protection as non-actionable opinion. Courts have warned against parsing a possible fact from the plain context of opinion and have found statements as a whole to constitute opinions even if they include some arguably factual assertions. Immuno AG, supra; Brian,

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supra; see also Stroup v. Nazzaro, 91 A.D.3d 1367 (4thDep't 2012). For example, Boeheim's statement that - "1 know [Davis is] lying about me seeing him in his hotel room" - is a statement capable of being proven true or false. The statement by itself may be factual, but the full quote, along with the full context of the article establishes that the statement was one of opinion. Mann v. Abel, 10 N.y'3d 271 (2008); See e.g., Couloute v. Ryncarz, 2012 WL 541089.

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"LIAR" AS ACTIONABLE AND "LIAR" AS NON-ACTIONABLE Both parties have provided thorough and comprehensive papers in support of their respective positions. In addition, both parties have cited a number of cases on the general issue of distinguishing statements of defamatory fact and non-actionable opinion. Interestingly, however, there are a number of cases involving a speaker who accuses another of being a "liar." Depending on the context and the circumstances of these cases, the Courts have, at times, found the statement to be actionable and in other cases the Courts have found the statement to be non-actionable. -16-

During oral argument, counsel for the Defendants provided her version of the distinction between the "liar" cases. Counsel contends that in order to be actionable, the accusatory statement of calling another a "liar" must be accompanied by "something extra." That something extra, according to counsel, is the "liar" statement coupled with a specific allegation of criminal conduct. Thus, it is Defendants' position that a "liar" statement, without more, is not actionable. While the Court does not entirely agree with this distinction as context is still vital to the determination (Gross, supra), Defendants have provided a valid line of reasoning as to why the cases provided by Plaintiffs may not be applicable to the present case. In opposition, Plaintiffs do not expressly disagree with the distinction provided by Defendants, but they contend that the statement - "liar" - is actionable when the Defendant
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asserts that the Plaintiff lied in a specific instance, or specific set of circumstances, or about a specific issue. Interestingly, in support of this argument, Plaintiffs cite to the same line of cases cited by Defendants in support oftheir "liar" plus "something extra" theory. See e.g., Thomas H v. Paul B., 18 N.y'3d 580 (2012); Curry v. Roman, 217 A.D.2d 314 (4th Dep't 1995). Thus, despite the fact that the two theories are supported by the same case law, the Court must now determine whether Boeheim's statements include the allegation of criminal conduct and/or include a level of specificity which would then define Boeheim's remarks as actionable statements of fact.

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Plaintiffs, in paragraph 62 of their Complaint, state the following: Boeheim's statements imputed to plaintiffs the commission of a crime - to wit, falsely reporting child abuse to a person with a mandatory obligation to report abuse to the State, and falsely reporting the commission of a crime.

In support of this allegation, Plaintiffs cite to New York Penal Law §240.50. In addition, Plaintiffs also claim that Boeheim's statements include accusations of criminal conduct by citing Boeheim's remark that this (Davis' report on ESPN) is "about money." Plaintiffs' argument, and the cases cited to support same, is without merit and distinguishable from the case at bar. The cases relied upon by Plaintiffs involved the use of the phrase "liar" with the added accusation of specific criminal conduct. See Thomas H. v. Paul B., 18 N.y'3d 580 (2012) (rape); Curry v. Roman, 217 A.D.2d 314 (4thDep't 1995) (Defendants accused
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plaintiffs of being "liars" engaged in "absolute thievery" and "collusion.") Despite Plaintiffs' arguments to the contrary, the statements made by Boeheim do not include any specific allegations of criminal conduct against the Plaintiffs. Plaintiffs' false reporting allegation assumes that the reasonable reader/listener was aware of the Penal Law provision and fully understood that Boeheim's statement would be
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interpreted as an accusation of false reporting against the Plaintiffs. Boeheim's statements and the immediate and broader context in which they were made do not provide any support for this theory as Boeheim never once mentioned or implied that Plaintiffs' actions and reports were somehow criminal.

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Plaintiffs' allegation of extortion is also a stretch, and is one that completely ignores context. First and foremost, Boeheim never uttered the words "extortion" or "blackmail," or any other specific criminal act, but instead he stated, in pertinent part the following:

"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." Levine Affirmation, Exhibit L. Contrary to the factual circumstances in Thomas H., it is quite easy to decipher what Boeheim said and the precise context in which he made his statements. Thomas H., 18 N .y'3d at 585 (Based on the conflicting recollections in this case, it is impossible to decipher exactly what was said by whom and the precise context in which the statements
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were made.) As previously discussed, Boeheim was reacting to comparisons to Joe Paterno and the Penn State sex abuse scandal, accusations against his personal friend and longtime professional colleague, and Davis' accusations that he (Boeheim) had knowledge of Fine's inappropriate behavior. Boeheim reacted quickly, passionately, and in defense of
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himself, his program, and his friend. Boeheim did accuse the Plaintiffs of lying, but he did not accuse the Plaintiffs of any specific crime, as was the case in Thomas H. and Curry. Overall, Boeheim's statements lacked specificity and the criminal connotation readily apparent in those cases. Instead, Boeheim's remarks clearly conveyed to the reasonable

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reader that "something other than an objective fact [was] being asserted." Gross, 82 N.Y. 2d at 155; see also Goetz v. Kunstler, 164 Misc.2d 557 (1995). The Court agrees with Defendants that Boeheim's comments regarding whether the Plaintiffs' reports to ESPN and others were financially motivated is similar to the Third Department case of Gentile v. Grand Street Medical Associates. In Gentile, in response to a sexual harassment suit, an employer accused some of its employees of wanting to "make easy money" and the Court deemed same to be opinion, not capable of being true or false. 79 A.D.3d 1351 (3d Dep't 2010). Boeheim did not state that Plaintiffs affirmatively sought payment for their accusations of abuse against Fine. A full and thorough review of the statements made by Boeheim and the articles in which they were published clearly show that Boeheim never claimed knowledge of any demand for money, but, again, Boeheim
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simply surmised, with the use of generalized speculation and suspicion that Plaintiffs' claims were possibly financially motivated. Levine Affirmation, Exhibit G (Boeheim commented that it seemed "a little suspicious" that Davis' relative decided to speak in the wake of the Penn State allegations). This Court's review of the statements establishes that they could not be construed

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as defamatory, but rather constituted personal opinion and rhetorical hyperbole rather than objective fact. Therefore, they are constitutionally protected. Ram v. Moritt, 205 A.D.2d 516 (2d Dep't 1994) (Plaintiff called a "liar," "cheat," and a "debtor" in the presence of patients in the doctor's waiting room constituted personal opinion; not actionable); Sabartek Corp. v. Keyser, 2000 WL 423529 (Plaintiff called a "pathological liar" and a -20-

"dirty liar" constituted rhetorical hyperbole; not actionable); Independent Living Aids, Inc. v. Maxi-Aids, Inc., 981 F. Supp. 124 (E.D.N.Y 1997) (Plaintiff called a "liar"; not actionable).

MIXED ACTIONABLE OPINION

As this Court has already discussed at length, an expression of pure opinion is not actionable because of the constitutional protection accorded to the expression of ideas, no matter how unreasonable. Steinhilber v. Alphonse, 68 N.Y.2d 283 (1986). As an alternative argument, however, Plaintiffs contend that if this Court interprets Boeheim's statements as expressions of opinion (which it has above), the comments nonetheless remain actionable
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as "mixed actionable opinion." There are two separate and distinct categories of mixed actionable opinion. The first is a statement of opinion which implies that it is based upon certain undisclosed facts which justify the opinion, but are completely unknown to the reader/listener. Gross, supra; People v. Grasso, 21 A.D .3d 851 (1 st Dep't 2005); Brach v.

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Congregation Yetev Lev D 'Satmar, Inc., 265 A.D.2d 360 (2d Dep't 1999). The second is a statement of opinion that sets forth the facts upon which it is based, but those underlying facts are either falsely misrepresented or grossly distorted. Silsdorf v. Levine, 59 N.Y.2d 8 (1983); Chalpin v. Amoridian Press, 128 A.D.2d 81 (1st Dep't 1981).

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Undisclosed Facts It is well established that a "proffered hypothesis that is offered after a full

recitation of the facts on which it is based is readily understood by the audience as conjecture" and not actionable. Gross, N.Y.2d at 154. A statement of opinion, however, that "implies a basis in facts which are not disclosed to the reader or listener" can in fact be the subject of a defamation action and therefore actionable. [d. at 153. Plaintiffs contend that Boeheim had an undisclosed basis for his statements - his unique access to the 2005 Syracuse University internal investigation report. First and foremost, Plaintiffs failed to plead andlor set forth any specific support for the idea that Boeheim had unique, personal knowledge of the 2005 investigation prior to making his comments to the media. The ESPN report provided the factual background regarding Plaintiff Davis' prior accusations of sexual abuse against Bernie Fine. More specifically, the November 17, 2011 ESPN story reported that in 2002, Plaintiff Davis brought his allegations of sexual abuse to the attention ofthe Syracuse Police Department and Davis was apparently told that the applicable statute of limitations had run and therefore his claim was time barred. In 2002 and 2003, Davis met with representatives of the Syracuse Post Standard and ESPN respectively, and told his story. Both media outlets declined to publish his story at that time. In 2005, Davis sent an e-mail to Nancy Cantor, Chancellor of Syracuse University, and informed her that Bernie Fine had sexually molested him as a child. The e-mail was followed up with an apparent meeting between Davis and a representative of Syracuse -22-

University. In addition, an investigation by Syracuse University into the claims began. Subsequently, Davis received a letter from the University notifying him that the matter would be closed as the investigation had revealed that his claims were not supported. All of these facts are verified in Plaintiffs' Complaint. The ESPN story is relevant on this issue because it shows that Boeheim was

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speaking on an even playing field with his audience. The public was made aware of Davis' prior attempts to get his story published and his claims investigated. When Boeheim commented on those facts, and used those facts to form the basis for his opinion, he was

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not drawing from any unknowns or any secrets, unique only to him. Gisel v. Clear Channel Communications, Inc., 94 A.D.3d 1525 (4thDep't 2012); 2012 WL 145049 at *1 ("Because Lonsberry's statements were based on facts that were widely reported by Western New York media outlets and were known to his listeners, it cannot be said that his statements were based on undisclosed facts"). Boeheim never explicitly or implicitly suggested in any of his comments that he was personally involved in conducting an investigation of Davis' claims. As a matter of fact, many of Boeheim's comments make clear that he did not conduct the investigation. Levine Affirmation, Exhibit G ("The university investigated this, the university talked to the people he said to talk to; none of them corroborated it.") Plaintiffs point to a statement from Boeheim which appeared on ESPN .com on November 17 and 18,2011, which quoted Boeheim as stating: "We spoke to the people (Davis) asked the university to talk to ... not one person would corroborate his story." -23-

Levine Affirmation, Exhibit N (emphasis added). This Court has now exhausted the principle of context and the vital importance it has to New York defamation law. Of course, this statement, by itself, plucked out of this article and without acknowledging any of the other comments made by Boeheim, may support the idea that Boeheim, the head basketball coach at Syracuse University, conducted the investigation. This type of

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"hypertechnical parsing" has been explicitly condemned by the Court of Appeals. See Gross, supra; Brian, supra. The reasonable reader of this comment, along with the entire article in which it was written could only conclude that the University's investigation determined Davis' allegations as unfounded, nothing more. Plaintiffs also assert that Boeheim's statements are mixed actionable opinion because he failed to reveal certain facts, including what law finn Syracuse University hired

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to conduct the investigation, and the details and procedures used in investigating Davis' claims in 2005. This argument misses the point. The idea and policy behind this form of mixed actionable opinion is to allow a statement of opinion to constitute an actionable statement because the speaker knows something that the audience or public does not. A statement of opinion does not become actionable because the speaker failed to address a

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topic as fully as the public or the audience would have wanted. Plaintiffs may have wanted Boeheim to provide what Syracuse law firm worked on the investigation and how the investigation was conducted. The Plaintiffs seem to ignore that Boeheim is the head coach of the Syracuse University basketball team. He is not the District Attorney, not a private investigator, and not a police officer. Furthermore, Plaintiffs assume that Boeheim even -24-

knows what law finn was used or how the investigation was conducted. Maybe Boeheim does know and maybe he does not, but the point is that he did not comment on those issues and his failure to comment on those issues does not transform his opinion to a mixed actionable opinion. The comments and statements at issue here are distinguishable from the position of

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the speaker and the associated statements in People v. Grasso and Pepler v. Rugged Land. In Grasso, the speaker's alleged defamatory statements were based on facts contained in a New York Stock Exchange report that was not released to the public, but the speaker had reviewed. The speaker-defendant in Grasso stated that "there is information in that report that would support a potential legal action" against plaintiff. 21 A.D.3d 851, 851-852 (1st Dep't 2005). The speaker-defendant in Grasso was clearly making a statement with a basis

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in facts that were not known to the public as the speaker-defendant explicitly provided that his basis was a report that he had reviewed, but had not been disclosed to the public. Id. In the present case, Boeheim never indicated he reviewed the report. He simply commented that the University, based on an investigation it conducted, had concluded that Davis' claims were unfounded. This is no different from what Davis told ESPN. In other words,

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the results of the investigation had already been revealed to ESPN via Davis and therefore Boeheim was in no position to add anything unique or personal to the issue in his comments to the media. In Pepler, the speaker-defendant, after terminating plaintiff's employment was quoted as stating that plaintiff "has a lousy work ethic" and "was the highest paid person in

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the company who did the least amount of work." 12 Misc.3d 1187 (A) (2006). The nature of these statements, coupled with the fact that the defendant was the plaintiff's employer, implies a factual basis not known to the reader (i.e. plaintiff's productivity and salary). Boeheim's statements are dissimilar in that they imply no unique access or knowledge to the 2005 report, other than what had already been revealed by Davis on ESPN.

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In the end, based on a thorough review of the alleged defamatory statements and the context in which they were made, this Court does not find that the comments constitute mixed actionable opinion based upon undisclosed facts.

B.

Distorted Facts

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On this type of "mixed actionable opinion," it should be noted that Plaintiffs did not initially raise this argument in their opposition papers. Plaintiffs did raise the first type of mixed opinion (above) in their papers, but failed to address the second until oral argument. This is somewhat surprising as the Defendants originally filed their motion to dismiss on or about January 20,2012 in New York County and then re-filed the motion in

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Onondaga County on March 13,2012. Soon thereafter the Court discussed the motion with the parties and set certain filing deadlines for opposition and reply papers. The deadlines recommended by the Court and agreed upon by the parties allotted the parties significantly more time than would be allowed by CPLR §2214. In light of this, the Court views Plaintiffs' arguments on this point as an impermissible sur-reply and must disregard same, -26-

as opposing counsel never had the opportunity to brief and/or squarely address the Plaintiffs' arguments and the cases referenced during motion term. See CPLR §2214; Garced v. Clinton Arms Assoc., 58 AD.3d 506 (1stDep't 2009); Boockvor v. Fischer, 56 AD.3d 405 (2d Dep't 2008); Graffeo v. Paciello, 46 AD.3d 613 (2d Dep't 2007). Even assuming the Court could allow for Plaintiffs' sur-reply, the result remains unchanged.

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In sum, Plaintiffs' contend that Boeheim' s basis for his opinion was based on "grossly distorted" and/or misrepresented facts. In support ofthis theory, Plaintiffs reference Boeheim's remark that Davis gave the University four names while, in Davis' Affidavit submitted in opposition to Defendants' motion, Davis stated that he recalled giving the University "more than a dozen names." Davis further indicated that he was

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"absolutely sure" he gave the University more than four names. Davis Affidavit ~ 11. First and foremost, Plaintiffs did not explicitly plead this alleged distortion of the facts in their Complaint. It was not until Plaintiffs filed their opposition papers to this motion that it was revealed that Davis took issue with the number of names/witnesses given to the University in 2005. Regardless, the argument is without merit. It is undisputed that the result of the University's investigation in 2005 was that Davis' claims against Bernie Fine were unfounded. See e.g., Park v. Capital Cities Communication, 181 AD.2d 192 (4thDep't 1992). While it maybe possible that Davis did in fact provide more than four names to the University, Boeheim's comments do not rise to the level of a

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misrepresentation of facts as Boeheim did not distort the fact that the University found no corroborating evidence. It is once again important to review the entire context of Boeheim's statements and the basis for his opinion. The general tone and purpose of Boeheim's statements is clearthe Syracuse Post Standard, Syracuse Police Department, Syracuse University, and ESPN

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were all notified of Davis' accusations and claims between 2001 and 2005 and none of them published the story, and/or took any affirmative action, and/or determined there was any supporting proof to move ahead. These are all undisputed facts, which formed the basis

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for Boeheim's opinion and statement that it was "a little suspicious" referring to the timing of Michael Lang's decision to speak out in the wake of the Penn State scandal. Simply put, Boeheim offered his own personal view regarding the credibility of the claims against

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Bernie Fine and, in support of his views, he also set forth the basis for that personal opinion, leaving it to the readers to evaluate for themselves. Thus, there is no suggestion in the alleged defamatory statements or the articles in which they were published that Boeheim's statements improperly relied on a distorted and/or misrepresented factual predicate. Brian, supra. The other statement that Plaintiffs contend is a misrepresentation is the following statement from Boeheim: "This is alleged to have occurred ... what? Twenty years ago? Am I in the right neighborhood? ... So are we supposed to do what? Stop the presses 26 years later? For a false allegation?" Levine Affirmation, Exhibit L. -28-

It is Plaintiffs' contention that the alleged sexual abuse continued up and until 2001 and therefore Boeheim's remarks that this was alleged to occur 20-26 years ago is a misrepresentation of the underlying facts. Plaintiffs are again parsing out Boeheim's comments from their immediate context. The full quote and article establishes that Boeheim was defending himself against the claim that Davis saw Boeheim in Fine's room

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during the 1987 Final Four. "This is alleged to have occurred ... what? Twenty years ago? Am I in the right neighborhood? ... So are we supposed to do what? Stop the presses 26 years later? For a false allegation? For what I 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." Levine Affirmation, Exhibit L (emphasis added). While Boeheim's calculation of when he was allegedly seen in Fine's hotel room

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may not have been precise, it cannot, in any way, be considered a misrepresentation or a gross distortion of fact. The Court has reviewed the cases cited by Plaintiffs which were not brought to the Court's attention until oral argument. The common thread in these cases is a material fact or material set of facts were misrepresented or grossly distorted by the speaker. See e.g., Silsdorfv. Levine, 59 N.Y.2d 8 (1983). It is clear to this Court that Boeheim provided a factual basis for his opinion. In doing so, he provided the audience/readers with a "reasonably accurate version of those facts." Chalpin v. Amoridian Press, 128 A.D.2d 81, 87 (1st Dep't 1981). Thus, based on a full review of the alleged defamatory statements and their immediate and broader social context, Plaintiffs have failed to identify any gross -29-

distortion of material facts in the statements of Boeheim. Park v. Capital Cities Communication, 181 A.D.2d 192 (4th Oep't 1992). CONCLUSION The content, tone, and purpose of Boeheim' s statements would clearly signal to the reasonable reader, that what was being read in the articles published in the days after the initial ESPN report were likely to be an opinion - a biased, passionate, and defensive point of view of a basketball coach - rather than objective fact. Thus, Plaintiffs' defamation claim against Boeheim fails as a matter of law.
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In view of the foregoing, and because Plaintiffs' claim against the University is predicated on the same alleged defamatory statements, Plaintiffs have also failed to state a cause of action against the University. Karaduman v. Newsday, Inc., 51 N.Y.2d 531
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(1980). Defendants' pre-answer motion to dismiss is GRANTED and the Plaintiffs' Complaint is hereby DISMISSED. Defendants are hereby directed to submit an Order, on notice, in accordance with this Decision.
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Dated:

Syracuse, New York May 11, 2012 E N T E R: Ron. Brian F.

rjseph,

J.S.c.

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