Davis v. Boeheim
| Decision Date | 21 October 2014 |
| Parties | Robert DAVIS et al., Appellants, v. James BOEHEIM et al., Respondents. |
| Court | New York Court of Appeals Court of Appeals |
24 N.Y.3d 262
22 N.E.3d 999
998 N.Y.S.2d 131
2014 N.Y. Slip Op. 07083
Robert DAVIS et al., Appellants
v.
James BOEHEIM et al., Respondents.
Court of Appeals of New York.
Oct. 21, 2014.
Cuti Hecker Wang LLP, New York City (Mariann Meier Wang of counsel), and Allred, Maroko & Goldberg, Los Angeles, CA, (Gloria Allred of counsel), for appellants.
Debevoise & Plimpton LLP, New York City (Helen V. Cantwell, Mary Beth Hogan, Andrew M. Levine and Miranda H. Turner of counsel), Dinsmore & Shohl LLP, Pittsburgh, PA, (C. James Zeszutek of counsel), and Hancock Estabrook, LLP, Syracuse (Janet D. Callahan and Timothy P. Murphy of counsel), for respondents.
OPINION OF THE COURT
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 opinion.” Therefore, we reverse the Appellate Division.
I.
Plaintiffs Robert Davis and his stepbrother 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 longtime friend and the team's associate head 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 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 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, 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 content of the communication as a whole, as well as its tone and apparent purpose,” and “the over-all context in which the assertions were made,” a reasonable reader would have believed that the challenged statements were conveying opinion and not facts (Davis v. Boeheim, 110 A.D.3d 1431, 1432, 1433, 972 N.Y.S.2d 385 [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 N.Y.2d 8, 12, 462 N.Y.S.2d 822, 449 N.E.2d 716 [1983] ; see also Armstrong v. Simon & Schuster, 85 N.Y.2d 373, 379, 625 N.Y.S.2d 477, 649 N.E.2d 825 [1995] ). Unlike on a motion for summary judgment where the court “searches the record and assesses the sufficiency of the parties' evidence,” on a motion to dismiss the court “merely examines the adequacy of the pleadings” (State of New York v. Barclays Bank of N.Y., 151 A.D.2d 19, 21, 546 N.Y.S.2d 479 [3d Dept.1989], aff'd. 76 N.Y.2d 533, 561 N.Y.S.2d 697, 563 N.E.2d 11 [1990] ). In determining the sufficiency of a defamation pleading, we consider “whether the contested statements are reasonably susceptible of a defamatory connotation” (Armstrong, 85 N.Y.2d at 380, 625 N.Y.S.2d 477, 649 N.E.2d 825, citing Weiner v. Doubleday & Co., 74 N.Y.2d 586, 592, 550 N.Y.S.2d 251, 549 N.E.2d 453...
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