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Cuti Hecker Wang LLP, New York City (Mariann Meier Wang of Counsel), and Allred, Maroko & Goldberg, Los Angeles, CA, for Plaintiffs–Appellants. Debevoise & Plimpton LLP, New York City (Helen V. Cantwell of Counsel), Hancock Estabrook, LLP, Syracuse, and Dinsmore & Shohl LLP, Pittsburgh, PA, for Defendants–Respondents.

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Docket: Robert Davis & Michael Lang v. James Boeheim & Syracuse University — Appellate Division, Fourth Department (2013)

Factual and Procedural Background

Plaintiffs Robert Davis and Michael Lang commenced a defamation action against James Boeheim (head basketball coach) and Syracuse University arising from statements Boeheim made following plaintiffs' public allegations that they were sexually abused by associate head coach Bernie Fine. It is undisputed in the opinion that Fine and Boeheim were long-time friends and colleagues, and that Davis had earlier reported the alleged abuse to the Syracuse Police Department in 2002 and to Syracuse University in 2005. No criminal charges were filed; the University's internal investigation (conducted by a law firm) concluded the allegations were not substantiated and was closed.

The alleged defamatory statements were made by Boeheim during interviews on November 17 and 18, 2011 that appeared on ESPN.com, syracuse.com (the Syracuse Post‑Standard online), and in the New York Times; subsequent news articles quoted those interviews. The statements attributed to Boeheim included characterizations that plaintiffs were lying about events involving Fine, that Davis had provided names of purported corroborators that did not corroborate his story, and that plaintiffs were motivated by financial gain — in part by reference to the contemporaneous Penn State/Jerry Sandusky scandal.

Defendants moved to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action. Supreme Court granted the motion. The Appellate Division (Fourth Department) affirmed that dismissal (the order was affirmed without costs), but two judges (SMITH and FAHEY, JJ.) dissented and would have reversed and reinstated the complaint.

Legal Issues Presented

Whether, at the preanswer stage, the complaint sufficiently alleges false, defamatory statements of fact (actionable) as opposed to nonactionable statements of opinion.
Whether the specific statements made by defendant — e.g., that plaintiffs were "lying" and motivated by a desire for money — are statements of fact, mixed opinion, or protected opinion under New York defamation law and the tests articulated by controlling precedent.

Arguments of the Parties

Plaintiffs' Arguments

Plaintiffs asserted that Boeheim's statements accusing them of lying and of seeking money were defamatory statements of fact that injured their reputations and therefore state a cause of action for defamation.
The complaint quoted specific, allegedly defamatory language attributed to Boeheim, including assertions that plaintiffs were "lying," had previously tried to obtain money, and were using current media exposure to seek money again.

Defendants' Arguments

Defendants moved to dismiss under CPLR 3211(a)(7), contending the challenged statements are nonactionable opinion rather than verifiable statements of fact and therefore cannot support a defamation claim at the preanswer stage.
The majority opinion treated the statements in context and concluded they signaled opinion and were privileged under governing law concerning expressions of opinion.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Thomas H. v. Paul B., 18 N.Y.3d 580	General definition of defamation and the proposition that only statements of fact (not pure opinion) can be defamatory; also cited for the proposition that phrasing statements as "I believe" does not necessarily immunize them from being defamatory.	The majority invoked Thomas H. to state the baseline that false statements exposing a person to public contempt constitute defamation and to frame the fact/opinion distinction. The dissent cited Thomas H. to support that "I believe" cannot immunize a defamatory statement.
Gross v. New York Times Co., 82 N.Y.2d 146	Guidance on the preanswer inquiry: whether the complaint sufficiently alleges false, defamatory statements of fact rather than nonactionable opinion; caution against hypertechnical parsing and the need to consider the communication as a whole.	Both majority and dissent relied on Gross for the standard governing preanswer review and for the admonition to consider tone, context and to avoid hypertechnical parsing. The opinion cites Gross in framing the early-stage inquiry and in discussing mixed opinion.
Mann v. Abel, 10 N.Y.3d 271	Articulates the three-factor test for distinguishing fact from opinion: (1) whether the language has a precise, readily understood meaning; (2) whether the statements are capable of being proven true or false; (3) whether context or broader circumstances signal opinion rather than fact.	The court applied Mann's three factors to the challenged statements. The majority agreed the statements satisfied the first two factors but concluded (under the third factor) that the full context signaled opinion. The dissent focused on the third factor as well, concluding the statements constituted mixed opinion.
Weiner v. Doubleday & Co., 74 N.Y.2d 586	Authority for the principle that expressions of opinion are privileged and nonactionable.	Referenced by the majority as part of the doctrinal background supporting the proposition that pure opinion is not actionable in defamation law.
Steinhilber v. Alphonse, 68 N.Y.2d 283	Additional authority reinforcing that expressions of opinion are privileged and that distinguishing fact from opinion can be difficult.	Used by the majority as supporting authority in explaining the opinion/fact distinction and in applying the Mann factors.
Brian v. Richardson, 87 N.Y.2d 46	Explains that courts must examine the overall context to determine whether a reasonable reader would have believed the challenged statements conveyed facts about the plaintiff.	The dissent relied on Brian (and its quoted authority) to emphasize context-based analysis under the third Mann factor and to argue that a reasonable reader could perceive Boeheim's statements as conveying factual assertions about plaintiffs.
Immuno AG. v. Moor–Jankowski, 77 N.Y.2d 235	Quoted authority regarding the contextual inquiry into whether statements convey facts or opinions to a reasonable reader or listener.	Invoked (via Brian) by the dissent to support the proposition that the surrounding circumstances and overall context must be considered in determining whether the statements assert facts.
Leon v. Martinez, 84 N.Y.2d 83	Procedural principles relevant to the preanswer motion to dismiss standard (as noted by the dissent).	The dissent cited Leon to underscore the procedural point that this appeal concerns a preanswer CPLR 3211(a)(7) motion and to argue that the complaint should not have been dismissed at that stage.

Court's Reasoning and Analysis

The Appellate Division majority and the dissent applied the established New York framework for distinguishing statements of fact from nonactionable opinion, primarily relying on Mann's three-factor test and Gross's guidance for preanswer review.

Majority analysis (affirming dismissal):

The majority acknowledged that certain isolated phrases — for example, statements that plaintiffs "lied" or were "trying to get money" — have a precise meaning and are capable of being proven true or false (the first two Mann factors).
However, the majority placed controlling weight on the third Mann factor (context): it evaluated the "content of the communication as a whole, as well as its tone and apparent purpose," and considered the broader circumstances, including Boeheim's known relationship with Fine and the contemporaneous Penn State scandal. The majority concluded that, in that full context, the challenged statements were the speaker's expressions of support for Fine and reactions to the allegations, and thus signaled opinion rather than fact to a reasonable reader or listener.
The majority emphasized that courts must avoid "hypertechnical parsing" and should determine whether, given the communication's overall context, the reasonable reader would understand the challenged statements to be conveying fact. Applying that standard, the majority concluded the statements were nonactionable opinion and therefore that dismissal under CPLR 3211(a)(7) was proper.

Dissenting analysis (would reverse and reinstate):

The dissent agreed on the legal framework but reached a different conclusion under the third Mann factor. It characterized Boeheim's statements as "mixed opinion" — expressions of opinion that imply undisclosed factual bases — citing Gross's description of mixed opinion and arguing that the complaint sufficiently alleged actionable factual assertions (e.g., that Davis was lying, had previously tried to obtain money through similar allegations, and was doing so again).
The dissent highlighted the specific allegations quoted in the complaint and concluded, given the preanswer posture (and the standards governing dismissal), these allegations were sufficient to survive a CPLR 3211(a)(7) motion. The dissent also relied on Thomas H. for the proposition that prefacing a statement with "I believe" does not necessarily shield a defamatory factual assertion.

Both sides of the court's analysis relied on established precedent to frame the early-stage inquiry: determine whether the pleaded statements are capable of being proven true or false, and whether contextual factors would lead a reasonable reader to treat them as assertions of fact or as opinion.

Holding and Implications

Holding:

THE APPELLATE DIVISION AFFIRMED the order granting defendants' CPLR 3211(a)(7) motion and dismissing the complaint. The order was affirmed without costs. Two judges (SMITH and FAHEY, JJ.) dissented and would have reversed and reinstated the complaint.

Implications:

Direct effect: The majority's decision leaves intact dismissal of the plaintiffs' defamation complaint at the preanswer stage; plaintiffs do not, under the majority's view, have a viable defamation claim based on the quoted statements as pleaded.
Doctrinal implication: The decision applies and illustrates the Mann three-factor test and Gross caution against hypertechnical parsing; the majority's ruling emphasizes contextual and tonal analysis under the third Mann factor, treating the statements at issue as nonactionable opinion in context. The dissent signals an alternative application of the same authorities, finding the statements to be mixed opinion that may be actionable.
No new broad precedent was announced by the majority beyond applying existing New York authority; the split decision reflects differing applications of established fact/opinion tests to disputed statements at the preanswer stage.

All content in this summary is drawn exclusively from the provided opinion text. No facts, arguments, or holdings beyond those expressed in that opinion have been added or inferred.

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Robert DAVIS and Michael Lang, Plaintiffs–Appellants, v. James BOEHEIM and Syracuse Uni

Cuti Hecker Wang LLP, New York City (Mariann Meier Wang of Counsel), and Allred, Maroko & Goldberg, Los Angeles, CA, for Plaintiffs–Appellants. Debevoise & Plimpton LLP, New York City (Helen V. Cantwell of Counsel), Hancock Estabrook, LLP, Syracuse, and Dinsmore & Shohl LLP, Pittsburgh, PA, for Defendants–Respondents.
PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.

MEMORANDUM:

Plaintiffs commenced this defamation action seeking damages for statements made by James Boeheim (defendant), the head basketball coach for defendant Syracuse University (University), in the wake of allegations by plaintiffs that they were sexually abused by associate head coach Bernie Fine. Contrary to plaintiffs' contention, Supreme Court properly granted defendants' motion to dismiss the complaint pursuant 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 coached with 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 and to the University in 2005. No criminal charges were brought against Fine, and the University advised plaintiff that it had determined following an internal investigation conducted by a law firm that the allegations were not substantiated and that the investigation was closed. Defendant made the alleged defamatory statements on November 17 and 18, 2011 during interviews that appeared at ESPN.com, and syracuse.com, i.e., the online version of the Syracuse Post–Standard, and in the New York Times. Several news articles were thereafter published based on those interviews. Those articles included the statements of defendant that plaintiff lied when he stated in an interview with ESPN that defendant saw plaintiff lying on the bed in Fine's hotel room in New Orleans in 1987; that plaintiffs were lying with respect to the allegations about Fine; that plaintiff had provided the University with the names of four people who could corroborate his allegations, but that the allegations were not in fact corroborated; and that, in the wake of the scandal at Penn State University involving Jerry Sandusky, a former assistant football coach at that university, 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, only statements of fact can be defamatory because statements of pure opinion cannot be proven untrue” ( Thomas H. v. Paul B., 18 N.Y.3d 580, 584, 942 N.Y.S.2d 437, 965 N.E.2d 939). “The issue at this early, preanswer stage of the litigation is whether plaintiff[s'] [complaint] sufficiently allege[s] false, defamatory statements of fact rather than mere nonactionable statements of opinion ” ( Gross v. New York Times Co., 82 N.Y.2d 146, 149, 603 N.Y.S.2d 813, 623 N.E.2d 1163). “Expressions 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 N.Y.3d 271, 276, 856 N.Y.S.2d 31, 885 N.E.2d 884,cert. denied555 U.S. 1170, 129 S.Ct. 1315, 173 L.Ed.2d 584;see Weiner v. Doubleday & Co., 74 N.Y.2d 586, 593, 550 N.Y.S.2d 251, 549 N.E.2d 453,cert. denied495 U.S. 930, 110 S.Ct. 2168, 109 L.Ed.2d 498;Steinhilber v. Alphonse, 68 N.Y.2d 283, 289, 508 N.Y.S.2d 901, 501 N.E.2d 550). Although the Court of Appeals has acknowledged that “[d]istinguishing between opinion and fact has ‘proved a difficult’ task” ( Mann, 10 N.Y.3d at 276, 856 N.Y.S.2d 31, 885 N.E.2d 884), it has provided three factors for courts to consider in determining whether the alleged defamatory statements are actionable 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 so out of a financial motivation are statements of fact when viewed in light of the first two factors set forth in Mann, i.e., those statements use specific language that “has a precise meaning which is readily understood” and are “capable of being proven true or false” ( id.). We note in particular that, when defendant was asked during the syracuse.com interview what plaintiff's “possible motivation would be to tell his disturbing story at this time,” he responded that plaintiff was “trying to get money. He's tried before. And now he's trying again.” Although that statement may be interpreted as implying that defendant knew facts that were not available to the reader ( see Gross, 82 N.Y.2d at 153, 603 N.Y.S.2d 813, 623 N.E.2d 1163;Steinhilber, 68 N.Y.2d at 289, 508 N.Y.S.2d 901, 501 N.E.2d 550), we are nevertheless mindful that we “must consider the content of the communication as a whole, as well as its tone and apparent purpose and in particular 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 ... plaintiff” ( Mann, 10 N.Y.3d at 276, 856 N.Y.S.2d 31, 885 N.E.2d 884 [internal quotation marks omitted] ). Furthermore, we must “avoid[ ] the ‘hypertechnical parsing’ of written and spoken words for the purpose of identifying ‘possible fact[s]’ that might form the basis of a sustainable libel action” ( Gross, 82 N.Y.2d at 156, 603 N.Y.S.2d 813, 623 N.E.2d 1163).

Defendant's statements also must be viewed in light of the third factor set forth in Mann, i.e., “whether either the full context of the communication in which the statement[s] appear[ ] 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” ( id. at 276, 856 N.Y.S.2d 31, 885 N.E.2d 884). Defendant additionally stated in the interview with syracuse.com: “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 [plaintiff 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 ... I have never been in Bernie Fine'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 ever walking into Bernie Fine's hotel room. Ever.” In his interview with ESPN, defendant stated: “I know this kid, but I never saw him in any rooms or anything ... It is a bunch of a thousand lies that [plaintiff] has told. You don't think it is a little funny that his cousin ... is coming forward? ... He supplied four names to the university that would corroborate his story. None of them did ... [T]here is only one side to this story. He is lying.”

We conclude that defendant's statements demonstrate his support for Fine, his long-time friend and colleague, and also constitute his reaction to plaintiff's implied allegation, made days after Penn State University fired its long-term football coach, that defendant knew or should have known of Fine's alleged improprieties. We therefore conclude that the content of the statements, together with the 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 N.Y.3d at 276, 856 N.Y.S.2d 31, 885 N.E.2d 884). 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 the assertions were made” ( id.), we thus conclude that the court properly determined that defendant's statements constitute opinion, not fact.

We have reviewed plaintiffs' remaining contentions and conclude that they are without merit.

It is hereby ORDERED that the order so appealed from is affirmed without costs. All concur except SMITH and FAHEY, JJ., who dissent and vote to reverse in accordance with the following Memorandum:

We respectfully dissent because we cannot agree with the majority's conclusion that Supreme Court properly granted defendants' motion to dismiss the complaint pursuant to CPLR 3211(a)(7), for failure to state a cause of action. In our view, the statements of James Boeheim (defendant) of which plaintiffs complain constitute “mixed opinion,” i.e., “statement[s] of opinion that impl[y] a basis in facts which are not disclosed to the reader or listener” ( Gross v. New York Times Co., 82 N.Y.2d 146, 153, 603 N.Y.S.2d 813, 623 N.E.2d 1163), and we would thus reverse the order, deny the motion and reinstate the complaint.

We agree with the majority that “[t]he issue at this early, preanswer stage of the litigation is whether [the complaint] sufficiently allege[s] false, defamatory statements of fact rather than mere nonactionable statements of opinion ” ( id. at 149, 603 N.Y.S.2d 813, 623 N.E.2d 1163). We further agree with the majority that our analysis is guided by the factors for distinguishing 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) whether either the full context of the communication in which the statement appears or the broader 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 N.Y.3d 271, 276, 856 N.Y.S.2d 31, 885 N.E.2d 884,cert. denied555 U.S. 1170, 129 S.Ct. 1315, 173 L.Ed.2d 584;see Thomas H. v. Paul B., 18 N.Y.3d 580, 584, 942 N.Y.S.2d 437, 965 N.E.2d 939). In view of the majority's determination with respect to the first two factors, our analysis focuses on the third factor, and with respect to that factor we note the rule requiring us to “look to the over-all context in which the assertions were made and determine on that basis ‘whether the reasonable reader [or listener] would have believed that the challenged statements were conveying facts about the ... plaintiff[s]’ ” ( Brian v. Richardson, 87 N.Y.2d 46, 51, 637 N.Y.S.2d 347, 660 N.E.2d 1126, quoting Immuno AG. v. Moor–Jankowski, 77 N.Y.2d 235, 254, 566 N.Y.S.2d 906, 567 N.E.2d 1270,cert. denied500 U.S. 954, 111 S.Ct. 2261, 114 L.Ed.2d 713;see Mann, 10 N.Y.3d at 276, 856 N.Y.S.2d 31, 885 N.E.2d 884).

Applying that rule here, and noting the principles set forth in Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 in light of the important point that this appeal concerns a preanswer motion to dismiss, we cannot agree with the majority that the complaint does not sufficiently allege false, defamatory statements of fact ( see Gross, 82 N.Y.2d at 153–154, 603 N.Y.S.2d 813, 623 N.E.2d 1163). We note that the complaint alleges, inter alia, that in one interview with the Syracuse Post–Standard defendant stated, “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.” The complaint further alleges that defendant “made similar statements to ESPN, telling the national sports news network: ‘It is a bunch of a thousand lies that [plaintiff Robert 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.’ ” According to the complaint, defendant added, “I believe they saw what happened at Penn State, and they are using ESPN to get money. That is what I believe.”

Although we are mindful of the timing of the disputed statements, we conclude that through the statements noted above the complaint sufficiently alleges false, defamatory representations of fact about plaintiffs, i.e., that Davis was lying about Bernie Fine, that Davis had previously tried to obtain money through similar allegations, and that Davis and plaintiff Michael Lang, who the complaint alleges is a relative of Davis, were doing so again through the instant allegations ( see Thomas H., 18 N.Y.3d at 584, 942 N.Y.S.2d 437, 965 N.E.2d 939;Gross, 82 N.Y.2d at 156, 603 N.Y.S.2d 813, 623 N.E.2d 1163;cf. Mann, 10 N.Y.3d at 276–277, 856 N.Y.S.2d 31, 885 N.E.2d 884). We thus agree with plaintiffs that the statements constitute mixed opinion, i.e., opinion that “implies a basis in facts which are not disclosed to the reader or listener” ( Gross, 82 N.Y.2d at 153, 603 N.Y.S.2d 813, 623 N.E.2d 1163). 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’ ” ( Thomas H., 18 N.Y.3d at 585, 942 N.Y.S.2d 437, 965 N.E.2d 939).

Davis v. Boeheim