Robert Davis, et al., Appellants,v.James Boeheim, et al., Respondents.BriefN.Y.September 9, 2014To be Argued by: MARIANN MEIER WANG (Time Requested: 30 Minutes) APL-2013-00303 Onondaga County Clerk’s Index No. 2012-EF-1 Court of Appeals of the State of New York ROBERT DAVIS and MICHAEL LANG, Plaintiffs-Appellants, – against – JAMES BOEHEIM and SYRACUSE UNIVERSITY, Defendants-Respondents. BRIEF FOR PLAINTIFFS-APPELLANTS CUTI HECKER WANG LLP 305 Broadway, Suite 607 New York, New York 10007 Tel.: (212) 620-2603 Fax: (212) 620-2613 – and – ALLRED, MAROKO & GOLDBERG 6300 Wilshire Boulevard, Suite 1500 Los Angeles, California 90048 Tel.: (323) 653-6530 Fax: (323) 653-1660 Attorneys for Plaintiffs-Appellants Robert Davis and Michael Lang December 6, 2013 i TABLE OF CONTENTS PRELIMINARY STATEMENT .............................................................................. 1 QUESTION PRESENTED ....................................................................................... 4 STATEMENT OF JURISDICTION ........................................................................ 4 STATEMENT OF FACTS ....................................................................................... 5 Background .......................................................................................................... 5 Fine’s Sexual Abuse of Bobby Davis and Mike Lang ........................................ 6 Davis’s Efforts to Report Fine’s Behavior and Prevent More Abuse ................. 7 Boeheim’s Statements Were Deliberate, Factual, and Implied Undisclosed Knowledge .................................................................................... 10 The 2005 University Investigation Is Eventually Disclosed ............................. 14 Procedural History ............................................................................................. 16 ARGUMENT .......................................................................................................... 18 I. THE GOVERNING STANDARDS ........................................................... 18 A. The Standard on a Pre-Answer Motion to Dismiss ............................... 18 B. The Standard for Defamation ................................................................ 19 II. THE PLAIN TEXT ESTABLISHES THAT THE CHALLENGED STATEMENTS ARE PROVABLE STATEMENTS OF FACT ............. 21 A. Boeheim’s Factual Statements Have Defamatory Connotations .......... 25 B. A Reasonable Reader Could Conclude that Boeheim Accused Plaintiffs of Committing Crimes ........................................................... 26 ii III. BOEHEIM’S STATEMENTS ARE ACTIONABLE AS MIXED OPINION ................................................................................................. 27 A. The Statements Are Mixed Opinion Based on Undisclosed Facts ....... 29 B. The Statements Are Mixed Opinion Based on Distorted or False Facts ...................................................................................................... 33 IV. THE CONTEXT COULD HAVE LED A REASONABLE READER TO CONCLUDE THAT BOEHEIM’S STATEMENTS WERE FACTUAL ................................................................................... 37 A. The Appellate Division’s Incorrect Analysis of “Context” .................. 44 1. The Surrounding Statements ........................................................... 44 2. Unprecedented Broader Social Context .......................................... 46 CONCLUSION ....................................................................................................... 50 iii TABLE OF AUTHORITIES CASES 511 W. 232nd Owners Corp. v. Jennifer Realty Co., 98 N.Y.2d 144 (2002) ................................................................................... 18, 35 600 West 115th Street Corp. v. Von Gutfeld, 80 N.Y.2d 130 (1992) .............................................................................. 40, 43-44 Alianza Dominicana, Inc. v. Luna, 229 A.D.2d 328, 329 (1st Dep’t 1996) ................................................................ 24 Armstrong v. Simon & Schuster, Inc., 85 N.Y.2d 373 (1995) ............................................................................. 19, 20, 25 Arts4All, Ltd. v. Hancock, 5 A.D.3d 106 (1st Dep’t 2004) ............................................................................ 31 Bonanni v. Hearst Commc’ns, Inc., 58 A.D.3d 1091 (3d Dep’t 2009) ........................................................................ 48 Brach v. Congregation Yetev Lev D’Satmar, 265 A.D.2d 360 (2d Dep’t 1999) ........................................................................ 25 Brian v. Richardson, 87 N.Y.2d 46 (1995) ............................................................................... 39, 42, 46 Caffee v. Arnold, 104 A.D.2d 352 (2d Dep’t 1984) ........................................................................ 27 Cappellino v. Rite-Aid of N.Y., Inc., 152 A.D.2d 934 (4th Dep’t 1989) ....................................................................... 25 Carney v. Mem’l Hosp. & Nursing Home, 64 N.Y.2d 770 (1985) ................................................................................... 20, 49 Celle v. Filipino Reporter Enters. Inc., 209 F.3d 163 (2d Cir. 2000) ................................................................................ 25 iv Chalpin v. Amordian Press, 128 A.D.2d 81 (1st Dep’t 1987) .................................................................... 28, 36 Clark v. Schuyerville Cent. Sch. Dist., 24 A.D.3d 1162 (3d Dep’t 2005) ........................................................................ 31 Curry v. Roman, 217 A.D.2d 314 (4th Dep’t 1994) ....................................................................... 45 Gentile v. Grand St. Med. Assocs., 79 A.D.3d 1351 (3d Dep't 2010) .................................................................... 46-47 Geraci v. Probst, 15 N.Y.3d 336 (2010) ......................................................................................... 26 Gisel v. Clear Channel Commc’ns, Inc., 94 A.D.3d 1525 (4th Dep’t 2012) ....................................................................... 32 Gjonlekaj v. Sot, 308 A.D.2d 471 (2d Dep’t 2003) ........................................................................ 31 Gross v. New York Times Co., 82 N.Y.2d 146 (1993) .................................................................................. passim Guerrero v. Carva, 10 A.D.3d 105 (1st Dep’t 2004) .................................................................... 44, 46 H&R Indus., Inc. v. Kirshner, 899 F. Supp. 995 (E.D.N.Y. 1995) ...................................................................... 48 Immuno AG v. Moor-Jankowski, 77 N.Y.2d 235 (1991) ......................................................................................... 40 Kaminester v. Weintraub, 131 A.D.2d 440 (2d Dep’t 1987) ........................................................................ 25 Lawrence v. Miller, 11 N.Y.3d 588 (2008) ......................................................................................... 18 v Leon v. Martinez, 84 N.Y.2d 83 (1994) ................................................................................. 5, 18, 33 Mann v. Abel, 19 N.Y.3d 271 (2008) ................................................................................... 37, 38 Mase v. Reilly, 206 A.D. 434 (1st Dep’t 1923) ............................................................................ 25 McNamee v. Clemens, 762 F. Supp. 2d 584 (E.D.N.Y. 2011) ................................................................. 44 November v. Time, Inc., 13 N.Y.2d 175 (1963) ......................................................................................... 20 Petrus v. Smith, 91 A.D.2d 1190 (4th Dep’t 1983) ....................................................................... 25 Rinaldi v. Holt, Rinehart & Winston, 42 N.Y.2d 369 (1977) ......................................................................................... 27 Rossi v. Attanasio, 48 A.D.3d 1025 (3d Dep’t 2008) ............................................................ 27, 31, 47 Silsdorf v. Levine, 59 N.Y.2d 8 (1983) ...................................................................................... passim Steinhilber v. Alphonse, 68 N.Y.2d 283 (1986) ............................................................. 28, 40-41, 45, 47-48 Sweeney v. Prisoners’ Legal Servs. of N.Y., Inc., 146 A.D.2d 1 (3d Dep’t 1989) ............................................................................ 20 Thomas H. v. Paul B., 18 N.Y.3d 580 (2012) .................................................................................. passim Wilcox v. Newark Valley Cent. Sch. Dist., 74 A.D.3d 1558 (3d Dep’t 2010) ........................................................................ 48 vi Zulawski v. Taylor, 63 A.D.3d 1552 (4th Dep’t 2009) ....................................................................... 30 OTHER AUTHORITIES N.Y. Penal Law § 155.05(e) ................................................................................... 26 N.Y. Penal Law § 240.50 ........................................................................................ 26 Report to the Board of Trustees of Syracuse University Regarding the University’s Response to Allegations Made in 2005 by Robert Davis Against Bernie Fine at p. 34, available at http://www.syr.edu/news/statements/Final_Report.pdf, last accessed Dec. 4, 2013 ........................................................................................................ 14 RULES CPLR 3211(a)(7) .............................................................................................. 17, 18 CPLR § 5601(a) ........................................................................................................ 4 1 PRELIMINARY STATEMENT Defendant James Boeheim (“Boeheim”), the head coach of the men’s basketball team at Syracuse University, made defamatory statements about Bobby Davis and Mike Lang that were specific, factual, and provably false. When these two unknown former ball boys dared to come forward to report that associate coach Bernie Fine had sexually abused them as children, Boeheim – a revered figure in Syracuse – deliberately attacked them to shut the story down. Boeheim injected himself affirmatively into the news to provide his inside knowledge and imply possession of additional non-public facts, all to support his false assertion that Plaintiffs were liars seeking money, and that Davis had done this before. Boeheim did so by issuing his own formal statement, R. 159, and deliberately providing interviews to the New York Times, ESPN and the Syracuse Post-Standard, R. 165, R. 187. Boeheim told the world that he had known Bernie Fine for 45 years, R. 166, that he “know[s] this kid,” Bobby Davis, R. 192, R. 166, that the University had “fully investigated” and “determined that the allegations were unfounded,” R. 159, that Bobby Davis “supplied four names to the university” and “none of them” corroborated his story, R. 104 ¶ 49, that Davis is “lying about me seeing him in his hotel room,” R. 103 ¶ 47, that “[i]t is a bunch of a thousand lies that [Davis] has told,” R. 104 ¶ 49, and that “the kid behind this is 2 trying to get money. He’s tried before. And now he’s trying again. . . . That’s what this is about. Money.” R. 103-04 ¶ 48. These are statements of fact, as even the majority below found. R. 7a. By stating that Davis was lying about being sexually abused to try to get money. Boeheim accused Davis of committing the crime of extortion, as one reasonable reader concluded at the time. R. 280. But Boeheim’s statements were not just factual; they were false, as established by Plaintiffs’ Verified Complaint and sworn statements submitted to oppose Defendants’ motion to dismiss. And they fundamentally denigrated Plaintiffs. Having Jim Boeheim, who is lionized in Syracuse, R. 256-61 ¶¶ 5-19, repeatedly, definitively, and falsely state that Plaintiffs are liars, and that Davis had and was trying again to extort money, has caused Davis additional fear and shame and revived his old feelings of profound guilt and anxiety. R. 256 ¶ 5; R. 262 ¶ 21; R. 297 ¶ 13. Davis rarely left his home in Syracuse after Boeheim viciously defamed him, fearful of the backlash when he went outdoors. R. 261 ¶ 20; R. 262. That did not change, even after a recording of Fine’s wife implicitly conceding that Fine had abused Davis was released, R. 287-88, or after Boeheim’s belated, purported apology. See R. 261 ¶ 20-R. 262 ¶ 21. Indeed, experts and peer reviewed literature confirm that charging childhood sex abuse victims with “lying” 3 or manipulating often sends victims deeper into self-blame, self-hate, alienation and re-victimization. R. 300 ¶ 5; R. 302 ¶ 11. Notwithstanding the plain language of Boeheim’s factual statements; that the context in which Boeheim made his attacks included his own, formally issued statement and interviews with hand-picked reporters; that his attacks appeared in straight news stories (not, say, in an Op-Ed piece or during an in- person debate); that the record, even before discovery, indicates that the “facts” Boeheim cited were false or grossly distorted, the Appellate Division affirmed dismissal of Plaintiffs’ defamation complaint, over the dissent of two justices. The Appellate Division should be reversed. First, the majority failed to address that Boeheim’s statements of fact were provably false or implied undisclosed facts, and were therefore actionable under the “mixed opinion” doctrine, as the dissenters below explained. Second, the majority’s unprecedented analysis of the context factor effectively credits Boeheim’s subjective view instead of considering the context from a reasonable reader’s perspective. No decision of this Court ever has suggested that false, defamatory factual statements are immunized simply because the speaker feels he or a friend is on the defensive. Allowing such a development in the law would expand the opinion defense to defamation liability beyond any reasonable bounds, granting individuals who claim to be affected by a particular issue a license to attack and defame. Finally, the 4 decision below is indefensible because this appeal involves a pre-answer motion to dismiss. Any court that properly drew all reasonable inferences in Plaintiffs’ favor, and applied the correct standard at this procedural stage – i.e., whether a reasonable reader could have concluded that Boeheim was conveying facts about Plaintiffs – would have denied Defendants’ motion to dismiss. Boeheim’s statements about Plaintiffs were demonstrably false; they were defamatory; and they inflicted deep injury, diminishing Plaintiffs in a fundamental way. This Court should reverse and re-open the courthouse doors so that Plaintiffs can seek justice. QUESTION PRESENTED Affording Plaintiffs all reasonable inferences, could a reasonable reader of Boeheim’s statements consider them as statements of fact about Plaintiffs, or alternatively, as statements of mixed opinion and fact, or could the statements only be considered statements of pure opinion? The majority below dismissed Plaintiffs’ claim of defamation, holding that Boeheim’s statements were pure opinion. STATEMENT OF JURISDICTION Plaintiffs appealed to this Court as of right, pursuant to CPLR 5601(a), from an order of the Appellate Division, Fourth Department, affirming 5 the pre-answer dismissal of Plaintiffs’ Verified Complaint, over the dissent of Justices Fahey and Smith. R. 6a-10a. STATEMENT OF FACTS The following facts are drawn from Plaintiffs’ Verified Complaint and therefore must be accepted as true. Leon v. Martinez, 84 N.Y.2d 83, 87 (1994. Background Syracuse University is home to a preeminent NCAA Division I basketball program. The team plays its home games at the Carrier Dome, which seats nearly 50,000 fans. Its games are often broadcast nationally. In Syracuse, the coaches, the players, and the perennially powerhouse team enjoy an elite, star status. R. 94-95 ¶¶ 14-16; R. 255-62. Boeheim is a local hero. He has led the basketball program for more than thirty-five years and is a particularly influential figure in the Syracuse area. R. 257-62. No one disputes that his basketball program generates enormous revenue for the University and is a badly needed economic engine for the city at large. As one press report put it, the Syracuse-area “community lives and dies by the fortunes of th[e] championship-level [men’s basketball] program.” R. 168. Boeheim’s influence is evidenced by his ability to raise millions of dollars for his charities and to appear in local television commercials without ever identifying himself. R. 257-58 ¶¶ 9-10; see generally R. 257-62. 6 Fine’s Sexual Abuse of Bobby Davis and Mike Lang Starting when he was about eleven years old and continuing for almost two decades, Davis was regularly sexually abused by Fine, Boeheim’s associate head coach. R. 95-97 ¶¶ 17-23. Fine also repeatedly sexually abused Michael Lang, whom he had met when Lang began delivering newspapers to Fine’s home. R. 97 ¶ 24. Fine gained access to and control over Plaintiffs by making them ball boys for the vaunted Syracuse basketball team. R. 96-98 ¶¶ 19- 21, 24-25. Like so many others in the area, these boys idolized the team and its players and coaches. They were thrilled to be ball boys. See R. 260-61 ¶¶ 14-18. Davis became a ball boy in 1983. He was eleven. R. 96 ¶ 21; R. 295- 96 ¶ 6. Fine soon began to sexually abuse him almost every day, including by touching his penis. The abuse occurred wherever and whenever Fine could get Davis alone: in Fine’s office at the Manley Field House at Syracuse University, where the basketball team practiced; in hotel rooms paid for by the University when Davis traveled with Fine for away games; in Fine’s car, as he drove Davis to and from practices and games; in the basement, living room, bedrooms, and bathrooms of Fine’s home; and at a campus fraternity house that Fine supervised. Fine also brought Davis when the team traveled and insisted that they share a hotel room, often with only one bed. R. 96-97 ¶¶ 21-22. At least once, Boeheim saw a young Davis in a hotel room with Fine during the 1987 Final Four in New Orleans. 7 Fine’s children did not make that trip. Boeheim saw Davis on Fine’s bed, wearing only shorts. Boeheim quickly left. R. 99 ¶¶ 31-32. Davis’s Efforts to Report Fine’s Behavior and Prevent More Abuse Like many other victims of childhood sexual abuse, R. 299-303, Davis and Lang have long suffered from profound shame, guilt, and fear. They therefore did not report Fine’s abuse for years. Davis was “extremely scared, embarrassed, ashamed and fearful to tell anyone about what Fine was doing” because Fine’s “control and intimidation of” him was “extreme.” R. 295-96 ¶ 6. Fine “combined shouting and screaming at [Davis] with moments of physical restraint and holding [him] down. On the few occasions when he was not shouting at [Davis] or otherwise berating or abusing [him], he would intersperse his interactions with . . . occasional rewards, including by allowing [Davis] to become a ball boy or hanging around the Syracuse University basketball team at practices and games. Since [Davis] idolized the players and the team as a whole, this was like a dream come true.” Id. Moreover, the combination of Fine’s prestigious status in Syracuse with his explicit threats that he would “kill” or “destroy” Davis made it impossible for Davis to come forward. R. 296 ¶ 7. It was only when Davis moved away from Syracuse and Fine’s sphere of influence that he found the courage to come forward. Id. ¶¶ 8-9; see also R. 91- 92 ¶ 4. For many years, Davis was “afraid and ashamed of telling anyone about 8 the sexual abuse.” R. 297 ¶ 13. Such “delayed reporting” is common among victims of childhood sexual abuse who have been groomed and dominated by a manipulating abuser just as they are developing from children into adults. Such victims often feel enormous guilt and shame, believing that their actions caused their abuse. See generally R. 299-303. Davis was tormented by guilt that he had not done anything to stop Fine sooner. Beginning in 2002, just one year after the abuse finally ceased, Davis attempted to report Fine’s molestation to the Syracuse Police Department (the “SPD”). R. 295 ¶ 5; R. 100 ¶ 33. The SPD told Davis that there was nothing it could do because the statute of limitations for childhood sex abuse already had expired. Id. Despite the gravity of Davis’s allegations, the SPD, whose chief at the time was a former Syracuse basketball player, did nothing more to investigate (or apparently even notify) the University in order to ensure that Fine’s continued employment did not put additional children at risk. Id. In 2005, upon learning that Syracuse had hired a new chancellor and hoping that she might prove more independent than her predecessor, Davis sent an email to Chancellor Nancy Cantor informing her that a men’s basketball coach had sexually molested him when he was a child. An employee from Syracuse’s human resources department contacted Davis and asked him to meet with her in Syracuse. Davis flew at his own expense to the meeting, which lasted approximately two 9 hours and was most notable for the way in which an unidentified man skeptically posed brusque questions. R. 100-01 ¶¶ 34-37; R. 297 ¶ 11. During the interview, Davis provided more than a dozen names of individuals who could corroborate his statements. Id. A few months later, Davis received a terse letter conveying that Syracuse had concluded his allegations were unfounded and closed the matter. R. 101 ¶ 37; R. 297 ¶ 12. Although Davis requested more information, Syracuse never disclosed to him what, if anything, it had done to investigate his complaint. R. 297 ¶ 12; R. 283-85. Davis never saw the University’s 2005 report of its investigation until Syracuse – notably after the motion to dismiss was granted – finally released it in 2012. In 2002, Davis also told the Syracuse Post-Standard about Fine’s abuse. Several months later, after he saw an ESPN story about a hockey player who had suffered sexual abuse, Davis contacted ESPN. In 2003, ESPN visited Davis in Utah but did not publish the story at that time. R. 101-02 ¶¶ 39-40. On the evening of November 17, 2011, ESPN finally aired a segment in which Davis and Lang both described Fine’s repeated sexual abuse. Neither Plaintiff has ever sought any compensation in exchange for statements to the SPD, to the University, or to any media. R. 102 ¶ 41; R. 297 ¶ 13. 10 Boeheim’s Statements Were Deliberate, Factual, and Implied Undisclosed Knowledge Even before the ESPN story itself had been re-published or reported by other national news outlets, Boeheim immediately used his prestige and power in an effort to kill the story and destroy Davis and Lang’s reputations. On November 17 and 18, 2011, Boeheim told multiple news reporters, including national media outlets, that Davis and Lang were “lying.” Boeheim released his own official statement on November 17. R. 159. He confirmed that he spoke to “ESPN, the [New York] Times and [The Post Standard]. . . . I’ve released my statement.” R. 187. In a series of interviews he gave to local and national media, Boeheim – whom Plaintiffs had not accused of any wrongdoing – repeatedly stated that Plaintiffs were lying and seeking a payday. Boeheim did not confine his statements to expressions of loyal support or appreciation for Fine, his associate head coach; nor did he merely state that he personally was not aware of the sexual abuse or call for more in-depth analysis or investigation. Instead, he provided detailed, false statements of fact, relying upon his own stores of personal knowledge and implying familiarity with non-public information, to bolster his targeted and specific accusation that Davis and Lang were lying to get money. In particular, Boeheim stated: 11 • “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.” R. 103-04 ¶ 48 (emphasis added). • “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 . . . . [T]here is only one side to this story. He is lying.” R. 104 ¶ 49. • “This is alleged to have occurred . . . what? Twenty years ago? Am I in the right neighborhood? . . . So we are supposed to do what? Stop the presses 26 years later? For a false allegation? For what I absolutely believe is a false allegation? I know [Davis is] lying about me seeing him in his hotel room. That’s a lie. If he’s going to tell one lie, I’m sure there’s a few more of them.” R. 103 ¶ 47. See also id. ¶¶ 50-51. Boeheim told the news media that he knew “this kid,” Bobby Davis; that he knew unequivocally that ball boys never traveled with the team; and he knew that if Davis did travel, it was only to babysit Fine’s children. R. 99-100 ¶ 32. Specifically, Boeheim stated: “I know Bobby. He was one of 300 ball boys we’ve had. This kid ended up being a babysitter for Bernie. He babysat Bernie’s kids. That’s why he was on the trips. He’d babysit. The kid only traveled, to my knowledge, if he was babysitting Bernie’s kids. This is when he was 18 years old.” R. 187. In addition to these verbal comments, Boeheim also released a written statement invoking and vouching for the University’s 2005 investigation into 12 Davis’s allegations – an investigation which had not been released or described in the press before: 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. R. 159 (emphasis added). Boeheim also gave an insider’s view of the details of the University’s 2005 investigation of Davis’s allegations, stating: “We spoke to the people [Davis] asked the university to talk to. Not one person would corroborate his story.” R. 193. “[Davis] supplied four names to the university that would corroborate his story. None of them did . . . .” R. 104 ¶ 49. The record demonstrates that Boeheim made the statements in private interviews with journalists. R. 187. He made them deliberately, far away from any “live debate” or discussions that were part of some in-person debate or heated exchange of views. Indeed, the record suggests that Boeheim was the first, even among University officials, to speak out and invoke details of the 2005 University investigation, which had not been described or discussed before, implying that it was reliable and thorough as only an insider would know. Compare R. 159 (Nov. 17, 2011 Boeheim official statement that this was “fully investigated by the University in 2005”); R. 165 (Nov. 17, 2011 New York Times article, Boeheim 13 describing “four month investigation”); R. 104 ¶ 49 & R. 181 (Boeheim stating Davis gave them “four names”); R. 193 (ESPN reporting on Nov. 17, 2011 that Boeheim stated, “We spoke to the people (Davis) asked the university to talk to . . .”) with R. 177 (Nov. 18 statement by University describing the investigation without any mention of “four names”). In the days that followed, Boeheim stood by his statements, refusing to retract them. See R. 104 ¶ 52. Only when the University fired Fine after a recording surfaced in which Fine’s wife appears to acknowledge that Fine abused Davis, did Boeheim finally backpedal, saying that he had “misspoke[n].” R. 105 ¶ 55. But his belated and half-hearted retreat was neither specific nor detailed. It did not explain which of his factual statements about Davis and Lang were inaccurate. He did not say that he should not have called them liars. Instead, Boeheim asserted vaguely that he “regret[ted] any statements . . . that might have inhibited [a full investigation] from occurring or been insensitive to victims of abuse.” R. 206-07. Boeheim’s backtracking did not undo the damage. One of Syracuse’s most powerful people had told the world repeatedly and definitively that unknown former ball boys Bobby Davis and Mike Lang were nothing but liars who had made false reports of child sexual abuse (which is a crime in New York) in order to obtain money (also a crime, i.e., extortion). See R. 105 ¶ 55. Boeheim’s public insistence that Davis and Lang were lying was a profoundly painful form of re- 14 victimization. R. 105-06 ¶ 57; R. 297 ¶ 13 (“Having someone like Jim Boeheim, who everyone in Syracuse seems to hold up as a god, immediately come out and make false statements about what I precisely did or said to the University, and calling me a liar and stating that I tried to get money for my reports when I haven’t, has been extraordinarily painful and has brought both a new, added layer of fear and shame and revived my old feelings of profound guilt and anxiety.”); R. 302 ¶ 11 (“Indeed, as reported in the literature, the immediate response of charging victims with ‘lying’ or manipulating often sends victims deeper into self-blame, self-hate, alienation and re-victimization.”). The 2005 University Investigation Is Eventually Disclosed In late November 2011, Syracuse hired Paul, Weiss, Rifkind, Wharton & Garrison LLP, to conduct an assessment of its 2005 response to Davis’s allegations. R. 209. In July 2012 – after this lawsuit was initiated and (notably) after the trial court granted the motion to dismiss – the school issued a report, tepidly acknowledging that its 2005 response was “imperfect” and “should have been more thorough.” See Report to the Board of Trustees of Syracuse University Regarding the University’s Response to Allegations Made in 2005 by Robert Davis Against Bernie Fine at p. 34, available at http://www.syr.edu/news/statements/Final_Report.pdf, last accessed Dec. 4, 2013. 15 In fact, the 2005 investigation was far worse than “imperfect” and insufficiently “thorough.” As the Onondaga County District Attorney stated, after conducting a comprehensive investigation, including extensive interviews of witnesses, in which he found Davis and Lang credible, R. 267-68: “Simply put, [the University’s] investigation was inadequate. There was little, if any, intellectual curiosity exhibited in the report in terms of follow up, developing corroborating evidence, developing new leads or new witnesses, exploring a number of red flags.” R. 275. For example, according to the District Attorney, the firm retained to complete the investigation interviewed only half a dozen witnesses, including Boeheim, despite the fact that Davis gave the University more than a dozen names. See R. 274-75 (describing six witnesses being interviewed, including Bernie and Laurie Fine and two witnesses by phone); R. 297 ¶ 11 (stating that he provided more than a dozen names to the University in 2005). Even based on those limited interviews, the District Attorney reported that at least one member of the Syracuse University Athletic Department corroborated the fact that Davis had reported the sexual abuse to him. R. 275 (“[A] Syracuse University Athletic Department member confirmed that Bobby Davis did complain to him about sexual abuse, though that individual was unsure what, if anything, he did with that information.”). And as Davis stated repeatedly, the University’s attorneys discussed his allegations with him only briefly. 16 Boeheim nonetheless deliberately chose, despite his insider knowledge of that investigation, and before the investigation or report was public, to state to the world definitively and falsely that the investigation was thorough, and that they had spoken to everyone Davis had identified. Procedural History Davis and Lang were deeply injured by Boeheim’s statements, which effectively pitted two unknowns against one of their City’s most powerful leaders and the beloved hometown university on which so many residents depend for their livelihood. Through this action, Plaintiffs seek to ensure that “other victims understand that they should not be punished for coming forward with the truth.” R. 93 ¶ 7. On December 13, 2011, Davis and Lang filed a Verified Complaint in the Supreme Court, New York County, asserting that Boeheim defamed them. See R. 90-109. The Complaint also asserts a claim against Syracuse University, which is vicariously liable for Boeheim’s defamatory statements as his employer. Defendants moved to transfer the case to Syracuse. Plaintiffs opposed this motion, asserting that an impartial trial would be impossible in Syracuse because the University is a major source of jobs and generates tremendous revenue for local businesses, and because Boeheim is nearly universally revered and adored there. R. 255-62. Plaintiffs sought expedited discovery to address venue issues 17 but were denied. Defendants then moved to dismiss the complaint under CPLR 3211(a)(7). The lower court granted Defendants’ motion to transfer. On April 27, 2013, prior to any verified answer or discovery, the Supreme Court, Onondaga County, granted Defendants’ motion to dismiss, concluding that none of Boeheim’s statements was defamatory as a matter of law. R. 57-86. The Supreme Court did so in a lengthy opinion, which repeatedly construed Plaintiffs’ allegations narrowly and granted reasonable inferences to Defendants, rather than Plaintiffs. Plaintiffs timely appealed. R. 2-4. The Appellate Division, Fourth Department, affirmed the pre-answer dismissal of Plaintiffs’ claim, finding that although the court “agree[d] with plaintiffs that defendant’s statements that they lied and that they did so out of a financial motivation are statements of fact,” R. 7a, the context nonetheless indicated the statements were unactionable, pure opinion, R. 8a. Justices Smith and Fahey dissented, noting particularly that the appeal “concerns a preanswer motion to dismiss,” R. 9a (emphasis in original); that “the complaint sufficiently alleges false, defamatory representations of fact about plaintiffs. . . .,” id.; and that “the statements constitute mixed opinion, i.e., opinion ‘that implies a basis in facts which are not disclosed to the reader or listener,’” id. (citing Gross v. New York Times Co., 82 N.Y.2d 146, 153 (1993)). 18 ARGUMENT I. THE GOVERNING STANDARDS A. The Standard on a Pre-Answer Motion to Dismiss In deciding a motion to dismiss pursuant to CPLR 3211(a)(7), a court must afford plaintiffs’ allegations “liberal construction.” Leon, 84 N.Y.2d at 87. As this Court has stated, “[w]e accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.” Id. at 87- 88 (emphasis added) (citation omitted). “If, upon any reasonable view of the stated facts, plaintiff would be entitled to recovery for defamation, the complaint must be deemed to sufficiently state a cause of action.” Silsdorf v. Levine, 59 N.Y.2d 8, 12 (1983) (emphasis added) (citation omitted). In addition to accepting as true all facts alleged in the complaint, a court reviewing a motion to dismiss must “accept as true the facts alleged in . . . any submissions in opposition to the dismissal motion.” 511 W. 232nd Owners Corp. v. Jennifer Realty Co., 98 N.Y.2d 144, 152 (2002) (internal quotation marks and citations omitted). See also Lawrence v. Miller, 11 N.Y.3d 588, 595 (2008). In reviewing a motion to dismiss, a court must be mindful not to prematurely cut off “a plaintiff’s right to seek redress, and not have the courthouse 19 doors closed at the very inception of an action, where the pleading meets a minimal standard necessary to resist dismissal of a complaint.” Armstrong v. Simon & Schuster, Inc., 85 N.Y.2d 373, 379 (1995). B. The Standard for Defamation Under New York law, “[m]aking 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 (2012) (citations omitted). In distinguishing statements of fact from expressions of opinion, courts must consider: “(1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to signal readers or listeners that what is being read or heard is likely to be opinion, not fact.” Gross v. New York Times Co., 82 N.Y.2d 146, 153 (1993) (citations omitted); see also Thomas H., 18 N.Y.3d at 584 (same). “The dispositive inquiry . . . is whether a reasonable [reader] could have concluded that [the challenged statements were] conveying facts about the 20 plaintiff.” Gross, 82 N.Y.2d at 152 (emphasis added) (internal quotation and citation omitted). This Court has made clear that lower courts must “‘not strain’ to interpret [challenged] writings ‘in their mildest and most inoffensive sense to hold them nonlibelous.’” November v. Time, Inc., 13 N.Y.2d 175, 178 (1963) (citation omitted). “If, upon any reasonable view of the stated facts, plaintiff would be entitled to recovery for defamation, the complaint must be deemed to sufficiently state a cause of action.” Silsdorf, 59 N.Y.2d at 12. Indeed, it “may well be that [the challenged statements and context] are subject to defendants’ interpretation. However, the motion to dismiss must be denied if the communication at issue, taking the words in their ordinary meaning and in context, is also susceptible to a defamatory connotation, in which case the issue of the statement’s meaning to the average reader must go to the jury.” Sweeney v. Prisoners’ Legal Servs. of N.Y., Inc., 146 A.D.2d 1, 4 (3d Dep’t 1989) (emphasis added) (citing Carney v. Mem’l Hosp. & Nursing Home, 64 N.Y.2d 770, 772 (1985) (“[I]f the words taken in their natural and ordinary meaning are susceptible to a defamatory connotation, then it is for the jury to decide how it would be understood by the average reader”) (citations omitted)). See also Armstrong, 85 N.Y.2d at 380 (affirming denial of motion to dismiss where one paragraph in a book “is susceptible of a defamatory meaning”). 21 II. THE PLAIN TEXT ESTABLISHES THAT THE CHALLENGED STATEMENTS ARE PROVABLE STATEMENTS OF FACT Boeheim made a number of precise, provable statements of fact, as the Appellate Division found. R. 7a (“We agree with plaintiffs that defendant’s statements . . . are statements of fact. . . .”). Boeheim unquestionably stated that Plaintiffs were fabricating a story of childhood sexual abuse in exchange for money, and accused Davis of having tried to do so before. R. 103-04 ¶ 48. Boeheim’s statement that Davis engaged in the crime of extortion is exactly the fair reading that at least one contemporaneous observer reasonably made: that Boeheim had affirmatively chosen to “accuse an alleged child molestation victim of extortion.” R. 280. Boeheim made numerous factual statements that are capable of being proven true or false: • Seeking falsely to trivialize these serious allegations as a rehash of stale complaints, Boeheim falsely stated that Davis’s allegation related to something that occurred “26 years” or “twenty years ago.” R. 103 ¶ 47. In fact, Davis reported abuse that had continued until as recently as 2001. See R. 100 ¶ 33; R. 103 ¶ 47; R. 295 ¶ 5; R. 297 ¶ 10. • Boeheim stated that he “kn[e]w” Davis was “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.” R. 103 ¶ 47 (emphasis added). In fact, Davis has a clear and distinct memory of seeing Boeheim in Fine’s hotel room, as set forth in the Verified Complaint: “During the team’s visit to New Orleans for the NCAA Final Four tournament in 1987, when Mr. Davis was 15 years old, Boeheim went to Fine’s hotel 22 room to pick up a roster or other paper, and saw Bobby Davis lying on the bed in Fine’s hotel room in his shorts.” R. 99 ¶ 31. • Boeheim stated that Davis has sought to extract a financial payment in the past: “the kid behind this is trying to get money. He’s tried before. And now he’s trying again . . . .” R. 103-04 ¶ 48 (emphasis added). In fact, Davis and Lang never once sought any payment for their statements reporting the abuse, including when Davis reported the abuse in 2002, 2003, 2005, and 2011. R. 102 ¶ 42. • Boeheim stated with certainty that: “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 . . . . [T]here is only one side to this story. He is lying.” R. 104 ¶ 49 (emphasis added). In fact, Davis spent approximately two hours in a meeting with a hostile University lawyer, and in the course of that interview provided far more than four names. R. 101 ¶ 35; R. 297 ¶ 11. Because the University never provided a full report of their so-called investigation to Davis, and instead sent him only a terse, conclusory letter stating his complaint was unfounded, Davis had no way of knowing who was contacted or what was done to investigate his complaint, but he definitively knows that he provided more than four names. R. 297 ¶ 12. Boeheim’s implication that Davis told many more provable lies to the 2005 investigators is itself independently defamatory. • Boeheim stated that: “We spoke to the people [Davis] asked the university to talk to. Not one person would corroborate his story.” R. 193 (emphasis added). In fact, according to District Attorney Fitzpatrick’s press conference in December 2011, the University’s investigators spoke only to six witnesses besides Davis, including Bernie and Laurie Fine – far fewer than the total number of people Davis actually identified as potential witnesses. R. 297 ¶ 11. Moreover, based on Fitzpatrick’s description of the 2005 report he reviewed (but which defendants have never provided to Davis, even after he requested it), it appears that at least one member of the University’s Athletic Department did corroborate that Davis had reported the sexual abuse to him, but that he did not remember what, if anything, he did with that information. R. 275. In short, Boeheim 23 averred with certitude both that he and the University (“we”) actually spoke to everyone Davis suggested, and that none of the witnesses corroborated Davis. Both statements are provably false. • Boeheim told one interviewer: “I know Bobby. He was one of 300 ball boys we’ve had. This kid ended up being a babysitter for Bernie. He babysat Bernie’s kids. That’s why he was on the trips. He’d babysit. The kid only traveled, to my knowledge, if he was babysitting Bernie’s kids. This is when he was 18 years old.” R. 187; see also R. 99-100. In fact, as Boeheim himself had observed, Davis traveled repeatedly with the team as a ball boy, including on multiple occasions when Fine’s children were not brought along, such as the 1987 NCAA Final Four when he was 15. R. 99-100 ¶¶ 31-32. Each statement contains verifiable assertions of fact. Boeheim asserted that: (1) Davis’s allegations concerned events that were more than twenty years old; (2) Davis provided only four names to the University in 2005; (3) Boeheim and Syracuse spoke to everyone Davis asked them to speak to; (4) “not one” witness corroborated Davis’s report; (5) Davis had previously tried to extract money; (6) Davis traveled with the team only when babysitting Fine’s children; (7) Boeheim was never in Fine’s hotel room when Davis was; and (8) in no uncertain terms, that Davis “[was] lying” about having been abused by Fine. Each of these accusations can be proven true or false in the same ways that other facts are proven in litigation: by reviewing documents and records such as notes from the investigation and travel records, through the testimony of witnesses, and through the fact-finder’s weighing of the credibility of each witness. Cf. Thomas H., 18 N.Y.3d at 585-86 (the defendants’ statement accusing the plaintiff of sexually 24 assaulting the defendants’ daughter “can be proven true or false since plaintiff either did or did not commit the acts”). Boeheim also made the bold (and provably false) factual assertion that Davis’s 2005 complaint to Defendants was “fully investigated,” R. 159 (emphasis added) – when it was not – and that the 2005 investigation was therefore a reliable basis for establishing that Plaintiffs are liars seeking a payday – when it is not. In fact, it is provable that the 2005 investigation (which had not been released or reported publicly prior to Boeheim’s statements) was anything but thorough, and was instead, at the very least, “inadequate,” R. 275-76 (District Attorney’s criticism of the investigation). And the fact that Boeheim used rhetorical flourish or questions or prefaced his statements with “I believe,” does not transform his factual statements into protected opinion, as the dissent below noted. R. 9a-10a (citing Thomas H., 18 N.Y.3d at 585). See Alianza Dominicana, Inc. v. Luna, 229 A.D.2d 328, 329 (1st Dep’t 1996) (reinstating defamation claim where statements that plaintiff subjected someone to sexual harassment were provable statements of fact, notwithstanding accompanying caveats such as “they say” and “rumor in the streets say”). See also infra at 45. 25 A. Boeheim’s Factual Statements Have Defamatory Connotations Under the case law, Boeheim’s statements are factual, provable statements of fact, not protected opinion, including because Boeheim called Plaintiffs liars with respect to their specific assertions that they were sexually abused by Fine, thus impugning their integrity. See Armstrong, 85 N.Y.2d at 380 (single paragraph in book stating that an attorney presented a false affidavit is “reasonably susceptible of a defamatory connotation”); Gross, 82 N.Y.2d at 154- 55 (statements that plaintiff directed the creation of misleading autopsy reports are actionable); Brach v. Congregation Yetev Lev D’Satmar, Inc., 265 A.D.2d 360, 361 (2d Dep’t 1999) (statement that the plaintiff has prevailed “by lies and deceit” is actionable); Cappellino v. Rite-Aid of N.Y., Inc., 152 A.D.2d 934, 935 (4th Dep’t 1989) (public sign noting that plaintiffs’ membership was revoked imputed untrustworthiness or uncreditworthiness to plaintiffs and was therefore actionable); Kaminester v. Weintraub, 131 A.D.2d 440, 441 (2d Dep’t 1987) (statements accusing plaintiff of personal dishonesty were “not constitutionally protected expressions of opinion”); Petrus v. Smith, 91 A.D.2d 1190, 1190-91 (4th Dep’t 1983) (statement that the plaintiff was “a liar and a thief” was actionable); Mase v. Reilly, 206 A.D. 434, 436 (1st Dep’t 1923) (noting that the “charge that a man is lying . . . is such a charge as tends to hold him up to scorn, as a matter of law”); Celle v. Filipino Reporter Enters. Inc., 209 F.3d 163, 185-86 (2d Cir. 2000) 26 (newspaper’s statements that plaintiff made false implications about a non-party failing to pay her debts were per se defamatory because it “impugn[ed] plaintiff Celle’s trustworthiness”). B. A Reasonable Reader Could Conclude that Boeheim Accused Plaintiffs of Committing Crimes Boeheim’s statements did not only impugn Plaintiffs’ honor or integrity, they also accused Plaintiffs of committing crimes, including extortion, as one contemporaneous reader observed, R. 280, and filing a false report. See N.Y. Penal Law § 155.05(e) (extortion); § 240.50 (filing false report). The fact that Boeheim did not use the catch words “extortion” or “false report,” and did not cite to specific Penal Law provisions is not dispositive. This Court has repeatedly held that so long as the speaker describes a set of facts that would in turn constitute a crime, the statements are defamatory. Thomas H., 18 N.Y.3d at 585-86 (statements described defendant sneaking into girl’s room and engaging in sexual assault; “a reasonable listener would have understood that defendants intended to label plaintiff as a child rapist”); Geraci v. Probst, 15 N.Y.3d 336, 340, 344-45 (2010) (statements that the plaintiff fire commissioner had shared in a commission through the sale of a truck to his fire department is defamation per se, because those facts in turn constitute a misdemeanor in violation of General Municipal Law); Gross, 82 N.Y.2d at 154 (concluding that “charges that plaintiff engaged in cover-ups, directed the creation of ‘misleading’ autopsy reports and was guilty of 27 ‘possibly illegal’ conduct” were “not too vague to constitute concrete accusations of criminality”); Silsdorf, 59 N.Y.2d at 16 (holding that statement that “[t]here is no longer any question about the corruptness of [the plaintiff’s] administration of the affairs of the Village of Ocean Beach,” could reasonably be interpreted to accuse the plaintiff of a crime); Rinaldi v. Holt, Rinehart & Winston, 42 N.Y.2d 369, 381-82 (1977) (statement that plaintiff is “probably corrupt” is actionable because “[t]he ordinary and average reader” would likely understand this to mean plaintiff committed illegal acts); see also Rossi v. Attanasio, 48 A.D.3d 1025, 1027 (3d Dep’t 2008) (an accusation that someone has committed a crime is protected hyperbole “only when no reasonable person would believe” that the speaker was accusing the subject of criminal conduct); Caffee v. Arnold, 104 A.D.2d 352, 353 (2d Dep’t 1984) (stating that “slanderous language need not consist of the technical words of a criminal indictment,” as long as it is “reasonably susceptible to a connotation of criminality”) (citations omitted). III. BOEHEIM’S STATEMENTS ARE ACTIONABLE AS MIXED OPINION Under New York law, only statements of “pure opinion” are privileged. “[T]he immunity afforded the expression of opinion obtains only when the facts supporting the opinion are set forth.” Silsdorf, 59 N.Y.2d at 13 (citation omitted). This is because “[a] proffered hypothesis that is offered after a full 28 recitation of the facts on which it is based is readily understood by the audience as conjecture.” Gross, 82 N.Y.2d at 154 (citation omitted). New York law recognizes two types of “mixed opinion” that are actionable. First, if “the statement of opinion implies that it is based upon facts which . . . are unknown to those reading or hearing it, it . . . is actionable.” Steinhilber v. Alphonse, 68 N.Y.2d 283, 289 (1986). Such statements “are actionable not because they convey ‘false opinions’ but rather because a reasonable listener or reader would infer that the speaker or writer knows certain facts, unknown to the audience, which support the opinion and are detrimental to the person toward whom the communication is directed.” Gross, 82 N.Y.2d at 153-54 (alterations, internal quotation marks, and citation omitted). Second, a statement of opinion is also actionable where the plaintiff is able to demonstrate the falsity or gross distortion of the facts that form the basis for the opinion. Silsdorf, 82 N.Y.2d at 14; see also Chalpin v. Amordian Press, Inc., 128 A.D.2d 81, 85 (1st Dep’t 1987). Such statements are actionable as “mixed opinion” because “there is no constitutional value in false statements of fact.” Chalpin, 128 A.D.2d at 85 (emphasis added). Boeheim’s statements are actionable under either theory, and the Appellate Division erred by failing to address or find that either theory applied. 29 A. The Statements Are Mixed Opinion Based on Undisclosed Facts The plain language of Boeheim’s statements could easily have led a reasonable reader to conclude that Boeheim made “statement[s] of opinion that impl[y] a basis in facts which are not disclosed to the reader or listener.” Gross, 82 N.Y.2d at 153 (citations omitted). Boeheim did not just list all of his facts like a reporter with a full and transparent discussion of the entire basis for his conclusion. Instead, he repeatedly presented his facts in a manner as if vouching for them, and above all, as someone who had inside knowledge as a direct participant in, and witness to, the relevant events, and as a person who knew the key actors very well and for many years. In particular, Boeheim repeatedly stated that: (1) he knew Bernie Fine (e.g., “I’ve known Bernie Fine for 45 years, and there’s absolutely no way that I believe any of this could possibly have happened.” R. 166; “I have known Bernie Fine for more than 40 years.” R. 159); (2) he knew Davis (e.g., “I know Bobby. . . He was one of 300 ball boys we’ve had.” R. 187; “I know this kid.” R. 192, and he “knew Davis because he was ‘around all the time,’” R. 166); (3) he knew the true nature of Fine’s relationship with Davis (Fine “tried to help this kid” R. 195); (4) he knew about the thoroughness and completeness of the University’s investigation (“We spoke to the people (Davis) asked the university to talk to. Not one person would corroborate his story.” R. 193; “The university investigated this, the university talked to the people he said to 30 talk to.” R. 169; “This matter was fully investigated by the University in 2005.” R. 159.) A reasonable reader of all these statements, particularly in light of the context of Boeheim’s active insertion of himself into news reports to brand Plaintiffs liars seeking a payday, and the fact that the 2005 University investigation had never before been discussed, could fairly conclude that Boeheim was speaking based on knowledge that was extensive and far deeper than he revealed. It is precisely under these types of circumstances – when the speaker plainly knows and makes clear to his audience that he knows the issues or parties intimately – that courts uphold (or reinstate) defamation claims under the “mixed opinion” doctrine. There is no requirement in the case law that the speaker expressly state that he has other particular, undisclosed knowledge or allude expressly to the other knowledge. The knowledge can be implicit and assumed based solely on the speaker’s familiarity with the plaintiff or parties being discussed. For example, the Fourth Department reversed a trial court’s grant of summary judgment on a claim of slander where the defendant had commented to others in his industry that plaintiff “scam[med]” people to avoid paying his business debts. Zulawski v. Taylor, 63 A.D.3d 1552, 1553 (4th Dep’t 2009). The court found that “[a]lthough those comments were mixed statements of opinion and fact, the [audience] could reasonably infer, in light of [defendant]’s working relationship with plaintiff, that such statements were based upon certain facts 31 known to [defendant] that are undisclosed to the [audience] and are detrimental to [plaintiff].” Id. (emphasis added) (quotation omitted). In Rossi v. Attanasio, the Third Department reversed the dismissal of a defamation claim where the speaker knew the plaintiff from a prior real estate transaction: “The average person, with knowledge that [defendant] had just purchased real estate from plaintiff, would reasonably believe that the opinions expressed by her were based upon facts known by her and undisclosed during the course of the communication.” 48 A.D.3d 1025, 1027 (3d Dep’t 2008). See also Clark v. Schuyerville Cent. Sch. Dist., 24 A.D.3d 1162, 1164 (3d Dep’t 2005) (reversing dismissal of defamation claim where the plaintiff-teacher was accused of violating a policy: “considering the context in which the statement was made, a reasonable listener would be likely to believe that [defendant]’s statement was factual inasmuch as he was uniquely knowledgeable about the district’s policy”) (emphasis added); Arts4All, Ltd. v. Hancock, 5 A.D.3d 106, 109 (1st Dep’t 2004) (reversing dismissal of slander claim where statements about how an organization was poorly run by defendant, who was a former employee of the organization, implied that defendant knew undisclosed, detrimental facts); Gjonlekaj v. Sot, 308 A.D.2d 471, 474 (2d Dep’t 2003) (citation omitted) (reversing dismissal of claim where speaker emphasized that he knew plaintiff “very well” because “[s]uch 32 statements imply that [defendant] had knowledge of certain facts not known to his audience which support his opinion regarding the plaintiffs”). The Appellate Division did not substantively address this argument, even as it noted in passing that some of defendants’ statements “may be interpreted as implying that defendant knew facts that were not available to the reader,” R. 7a (emphasis added). And while the trial court did address the point, it did so by according Defendants all reasonable inferences by conclusively determining – without even analyzing all the factual misstatements – that Boeheim’s statements were co-extensive with publicly reported facts and that he “was not drawing from any unknowns or any secrets, unique only to him.” R. 79 (citing Gisel v. Clear Channel Commc’ns, Inc., 94 A.D.3d 1525 (4th Dep’t 2012)). That conclusion is baseless. First, a reasonable person reading Boeheim’s statements plainly could infer that he drew from many years of deep familiarity with the key actors and knowledge of events as a witness to, and participant in, them. Precisely for that reason, Gisel – dismissing claims based on radio talk show host Robert Lonsberry’s statements – is distinguishable. 94 A.D.3d at 1526 (Lonsberry hosting “a forum for public debate on newsworthy topics” with no implication that he had any inside knowledge or familiarity with the people or events he was discussing). Second, a careful examination of the record – particularly according Plaintiffs’ all reasonable inferences – establishes that Boeheim was not speaking 33 exclusively from public facts, but from first-hand knowledge of non-public facts. For example, Boeheim’s statement that the University’s 2005 investigation was full and thorough, and therefore reliable, was not a public fact; Boeheim’s statement that Davis supplied four names to the university was not a public fact; Boeheim’s statement on November 17 that the University investigation lasted four months was not a public fact; Boeheim’s statement that Davis had sought money was not a public fact. That Boeheim knew the precise number of witnesses mentioned in the 2005 investigation report itself, and how long the investigation lasted, supports the reasonable inference that he was personally familiar with the investigation. Boeheim’s own language further supports that reasonable inference. R. 193 (“We spoke to the people [Davis] asked the university to talk to. Not one person would corroborate his story.”) (emphasis added). B. The Statements Are Mixed Opinion Based on Distorted or False Facts Even if the Court determined that Boeheim’s statements that Plaintiffs are liars seeking a payday were opinion – and they are not – those statements are actionable as mixed opinion, because they were based on many purported statements of fact that were demonstrably false and misleading. (Pls.’ Br. at 34- 38.) In refusing to recognize this as a “cognizable legal theory,” Leon, 84 N.Y.2d at 88, the trial court chose to analyze only two of those factual misstatements, while the majority below analyzed none. Specifically, the trial court found that: 34 (1) the number of names of witnesses Davis provided (which Boeheim reported as four and which Davis’s sworn testimony contradicts as at least a dozen, R. 104 ¶ 49; R. 101 ¶ 35; R. 297 ¶ 11); and (2) the years that have passed since the sexual abuse (which Boeheim minimized as occurring 20 or 26 years ago, and which had in fact, continued just one year prior to Davis’s reports to the police, R. 103 ¶ 47; R. 100 ¶ 33; R. 295 ¶ 5; R. 297 ¶ 10), were both immaterial facts which could not affect a reader’s assessment of the final opinion. See R. 82-85. That conclusion was plainly wrong. Indeed, these two facts by themselves were not immaterial, and if correctly (instead of falsely) reported could plainly have made a difference to a reasonable reader in determining if Boeheim’s denunciation of Plaintiffs was false and defamatory. If Boeheim had accurately stated in his interviews that Davis had provided twelve names of witnesses, but that the University chose to contact only four of them, or if Boeheim had reported that Davis had contacted the police one year after the abuse ended, instead of first raising his allegation 20 or 26 years later, a reasonable reader could readily have concluded that Boeheim’s ultimate assertion that Plaintiffs were lying and seeking a payday was false. Instead, the majority opinion failed entirely to address these facts, while the Supreme Court dismissed their significance, drawing inferences for Defendants rather than Plaintiffs. Notably, with respect to the point that Boeheim 35 falsely reported Davis as giving only four names of witnesses, the Supreme Court chose to stress that Plaintiff “[f]irst and foremost, . . . did not explicitly plead” this distortion, and further that 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.” R. 83. This rigid approach to construing Plaintiffs’ pleadings and papers submitted in opposition to a motion to dismiss disregards the liberal standard required on a pre-answer motion to dismiss, where the court must not only accord Plaintiffs every reasonable inference, but also “accept as true the facts alleged in . . . any submissions in opposition to the dismissal motion[.]” 511 W. 232nd Owners Corp., 98 N.Y.2d at 152 (citations omitted). Here, Plaintiffs submitted extensive sworn statements in opposition to Defendants’ motion to dismiss (including regarding the number of witnesses, R. 297 ¶ 11), and the Court wrongly failed to construe them in Plaintiffs’ favor. Neither the Appellate Division nor the Supreme Court considered the numerous other false factual statements that a reasonable reader might consider in weighing Boeheim’s statement that Plaintiffs lied in order to obtain money, including: the fact that Davis traveled with the team only to babysit Fine’s children (which is provably false); that no witness Davis mentioned corroborated Davis (which is provably false); that Davis had sought a payment for his story multiple times (which is provably false); that the University spoke to everyone Davis 36 mentioned (which is provably false); and that Boeheim was never in Fine’s hotel room to see Davis (which is provably false). (Pls.’ Br. at 34-38.) Compare R. 233-34 with R. 82-85. If any one of these facts had instead been accurately reported, a reasonable reader could readily have concluded that Boeheim’s ultimate statement that Plaintiffs are liars seeking money was false and defamatory. Reversal is warranted on this ground alone, as this Court’s precedent shows: “Plaintiff has not, however, limited his claim to the invalidity of the conclusions drawn by defendants . . . . Rather, his affidavit in opposition to the motion to dismiss assails virtually every statement of fact contained in the letter as either a ‘gross distortion’ or ‘misrepresentation of fact.’” Silsdorf v. Levine, 59 N.Y.2d 8, 14 (1983). Applying such principles makes eminent sense, because “there is no constitutional value in false statements of fact. ‘Neither the intentional lie nor the careless error materially advances society’s interest in “uninhibited, robust, and wide-open” debate on public issues.’” Chalpin v. Amordian Press, Inc., 128 A.D.2d 81, 85 (1st Dep’t 1987) (citations omitted).1 1 Because the majority opinion did not address this theory of liability, it did not address the Supreme Court’s finding that Plaintiffs waived this argument. But the Supreme Court – which substantively addressed the argument notwithstanding its conclusion that the argument was waived – was wrong on both the facts and the law. Plaintiffs’ opposition papers submitted to the Supreme Court repeatedly and consistently stressed that Boeheim was providing only partial, distorted and/or false facts in support of his ultimate conclusion. See R. 230; R. 232; R. 248; R. 250 n.8; R. 251. The argument was presented throughout Plaintiffs’ lower court submission, and addressed with relevant citations at oral argument on the motion itself. R. 29-34. In any event, the lower court fully considered and addressed the argument in four pages of its opinion. R. 82- 86. Therefore, this Court can address it as a matter of law. 37 IV. THE CONTEXT COULD HAVE LED A REASONABLE READER TO CONCLUDE THAT BOEHEIM’S STATEMENTS WERE FACTUAL The Appellate Division concluded that the first two factors in determining whether Boeheim’s statements are defamatory support Plaintiffs’ claim. R. 7a. The court nonetheless affirmed the pre-answer dismissal of Plaintiffs’ claim by concluding that the third factor, context, supported a view of the statements as being protected opinion. R. 8a. In doing so, the Appellate Division applied an unprecedented, boundless definition of “context,” and failed to consider that even the context the court improperly invoked could still support a reasonable reader’s conclusion that Boeheim’s statements were defamatory. In particular, the Appellate Division held that the relevant context consisted of Boeheim’s “demonstrat[ion of] his support for Fine,” and the “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.” R. 8a. There is no support for the Appellate Division’s analysis of the relevant context. This Court has been consistent in its application of the meaning of both the immediate and broader context factors. The “immediate” context is the entire statement or interview in which the challenged statements appear, and the “broader context” relates to the traditions behind the forum or setting in which the statements are made. See Mann v. Abel, 10 N.Y.3d 271, 276-77 (2008). 38 Indeed, this Court has never held that a defendant’s defensive or protective posture, standing alone, is sufficient “context” to transform factual statements into protected opinion. To the contrary, this Court carefully analyzes the objective, overall context as viewed from the reasonable reader’s perspective, and considers the historical traditions and social norms associated with a particular forum in which a defendant made his statement. In Mann v. Abel, for example, the Court stressed, in affirming the granting of a defendant’s motion for summary judgment, that the statements were protected opinion because they appeared in an article written by the independent newspaper’s founder, Bernard Abel, “as part of his regularly featured column called ‘The Town Crier,’” in the midst of a heated local election for control of the Rye Town Board and pertained to the Rye Town Attorney. 10 N.Y.3d at 274. The Court further emphasized that “[t]he column is located on the opinion page of the newspaper and is identified by an editor’s note that it represents the opinion of the author. . . .” Id. Finally, the Court noted all of these contextual facts along with the columnist’s repeated use of hyperbolic phrases, including that the article was entitled “Borrelli on par with Marie Antoinette,” id., and that the author described plaintiff as a “political hatchet Mann,” who appeared to “pull[] the strings,” and engaged in actions that were “leading the Town of Rye to destruction,” id. at 276- 77. In short, the context of the statements, in which a newspaper’s founder who 39 wrote a regular opinion column decried a local government official’s actions in the midst of an election, through use of repeated satire, all support the Court’s holding that a reasonable reader would conclude those statements were opinion. In Brian v. Richardson, this Court again stressed the immediate context of the statements that appeared on the Op-Ed page of the New York Times, and then considered the traditions behind the Op-Ed as a forum. In particular, the Court emphasized that the Op-Ed page “is a forum traditionally reserved for the airing of ideas on matters of public concern. Indeed, the common expectation is that the columns and articles published on a newspaper’s Op Ed sections will represent the viewpoints of their authors and, as such, contain considerable hyperbole, speculation, [and] diversified forms of expression and opinion.” 87 N.Y.2d 46, 53 (1995). And although the Court noted that the author of the statements was an attorney for an interested party, that fact was not, in and of itself, sufficient to transform facts into opinion. Instead, the author’s references to rumor and speculation signaled to the reader that this was not a serious report, and the Court noted that the ultimate purpose of defendant’s article “was to advocate [for] an independent governmental investigation” rather than to shut down the debate. Id. The Court further stressed that “there was no suggestion in the article that there were additional undisclosed facts” on which its ultimate conclusion was based. Id. at 54 (citations omitted). 40 Other decisions from this Court are no different: they carefully analyze the particular facts and circumstances as seen from the objective, reasonable reader’s perspective, and consider the particular traditions or norms of the specific forum being used by the speaker. Gross, 82 N.Y.2d at 155-56 (“immediate” context was that the actionable statement that plaintiff was “corrupt” was “made in the course of a lengthy, copiously documented newspaper series”; the broader context was that “since the articles appeared in the news section rather than the editorial or “op ed” sections, the common expectations that apply to those more opinionated journalistic endeavors were inapplicable here[.]”) (emphasis added) (citation omitted); 600 West 115th Street Corp. v. Von Gutfeld, 80 N.Y.2d 130 (1992) (affirming dismissal on summary judgment where the statements were made during a table-pounding, off-the-cuff diatribe during a live debate at a public hearing “[w]here . . one of the most fundamental forms of citizen participation is implicated”); Immuno AG v. Moor-Jankowski, 77 N.Y.2d 235, 250, 253-55 (1991) (affirming dismissal on summary judgment, after an extensive record had been developed, where the statements were made in a letter to the editor, which has a “public forum function” that is “closely related in spirit to the ‘marketplace of ideas,’” where the statements were prefaced with a note from the editor, and where the statements were directed at a highly sophisticated group of readers who were aware of the ongoing debate); Steinhilber v. Alphonse, 68 N.Y.2d 283, 287, 294 41 (1986) (immediate context is the entire recorded telephone message in which plaintiff is referred to as scab and the entire banner that branded her as such; the broader social context is “that the message was prepared and played as part of the union’s effort to punish a former member” in the immediate aftermath of a strike); Silsdorf, 59 N.Y.2d at 16 (context examined and discussed is the entire document/letter in which challenged statements appear). Applying this Court’s consistent analysis of the “context” factor, Plaintiffs’ action should not have been dismissed pre-answer. The immediate context was not an opinion page, Op-Ed piece or letter to the editor written by Boeheim, nor was Boeheim engaged in a live debate in which a variety of people advocated different positions with each perhaps speaking hyperbolically in the heat of the moment. Instead, Boeheim’s false statements appeared in straight news reportage in the form of quotes taken from interviews Boeheim himself selected to give to at least three media outlets. See, e.g., R. 92-93 ¶¶ 5, 6; R. 102-03 ¶ 44; R. 221, 226-28, 24. There is no evidence that the statements were impromptu, or made when reporters backed Boeheim into a corner. To the contrary, the record shows that Boeheim spoke to news reporters, rather than, say, writing an Op-Ed piece. Boeheim chose to come forward; he issued a formal statement explicitly drafted to reference the fact that he 42 knew and understood (unlike the wider public) that the University had “fully investigated” Davis’s allegations in 2005; and chose to speak with three select news outlets – ESPN, the New York Times, and the Syracuse Post-Standard – to declare, based on a range of provably false statements, that Davis and Lang were lying and rehashing discredited claims as part of an effort to shake down Syracuse. His comments cannot be understood to have been part of a public debate. The mere fact that the public may have been interested in the subject about which he spoke, or even that bloggers may have commented on his statements, does not turn the context of his statements into a live debate. Boeheim’s statements did not take the form of a respectful disagreement as part of an ongoing conversation, or even an Op-Ed piece aimed at convincing readers that a full investigation was required. Cf. Brian, 87 N.Y.2d at 54. Indeed, Boeheim’s attack was designed to have precisely the opposite effect of shutting down debate – that is, to use the power of his prestige in the community to prevent the possibility of a rigorous investigation into and public conversation about Fine’s molestation of young boys. The articles in the record that reported Boeheim’s comments, which he made initially to three different reporters (including the New York Times, which had not yet run any story about Plaintiffs’ allegations), (1) noted that Boeheim had not yet been formally accused of any wrongdoing, see R. 181-82; R. 279-81; (2) characterized Boeheim as “accus[ing] an alleged child molestation victim of 43 extortion,” id.; see also R. 169 (stating that Boeheim “made accusations that Davis and Lang have ulterior motives in bringing this story to light once again”); (3) described Boeheim as “act[ing] as if he is certain beyond reasonable doubt that the accusations are patently false,” R. 200; (4) portrayed Boeheim as taking issue “with specific parts of Davis’s story,” R. 166; (5) characterized Boeheim as “go[ing] all in,” R. 170, not by opining in a hotheaded rage, but instead by carefully seeking to support his claim by presenting (false) facts about a prior investigation that was not yet public, which he claimed showed that Plaintiffs were continuing to lie about having been abused, id.; and (6) noted that Boeheim was not compelled to speak and by all accounts could have stayed quiet until the initial flurry of attention subsided, and reasoned that it was not the scandal that put Boeheim on the defensive, but his own calculated decision to speak out in defense of Fine, see R. 181-82. To be sure, the articles note Boeheim’s statements were bold, unnecessary, and unwise. But these news reports do not characterize Boeheim as flying off the handle or otherwise acting in a way that would suggest to the average reader that what he said should not be taken as factual. To the contrary, the news stories note that Boeheim went out of his way to inject himself into the story as someone who had knowledge of key facts. “Printed newspaper columns differ from a live public debate for purposes of characterizing the reasonable listener/reader . . . .” 600 West 115th 44 Street, 80 N.Y.2d at 142. An “impromptu comment[] at a heated public debate . . . [is] more likely to be the product of passionate advocacy than careful, logically developed reason.” Id. at 141. By contrast, Boeheim’s statements, “no matter how passionately delivered, were made in pre-scheduled . . . conferences and other pre- planned public appearances. This was not a debate in which emotions might lead to exaggerated statements.” McNamee v. Clemens, 762 F. Supp. 2d 584, 603 (E.D.N.Y. 2011) (citation omitted). See also Guerrero v. Carva, 10 A.D.3d 105, 114 (1st Dep’t 2004) (noting that although defendants attempt to portray themselves as being in the center of a controversy, it appears that in fact, the “intense controversy” is defendant’s perspective). A. The Appellate Division’s Incorrect Analysis of “Context” 1. The Surrounding Statements In its “context” discussion, the majority opinion quotes two sets of statements by Boeheim, one involving a series of questions and his belief, (“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?” R. 8a), and another in which Boeheim states that “[i]t is a bunch of a thousand lies that [plaintiff] has told . . . there is only one side to this story. He is lying,” id. Yet neither rhetorical flourish turns Boeheim’s factual assertions into expressions of opinion; rather, his scornful 45 rhetoric in each instance only emphasizes to the reasonable reader that Boeheim is certain that Plaintiffs were lying. Moreover, as this Court has stressed, placing “I believe” in front of a statement does not render it an opinion when the stated fact is demonstrably true or false. Thomas H., 18 N.Y.3d at 586; Gross, 82 N.Y.2d at 155. Similarly, the use of questions in this instance had little to do with asking a question and beginning a debate, and everything to do with conveying certainty that Davis was a liar. And Boeheim’s use of the expression “a bunch of a thousand lies,” is nothing like the sarcastic invective or nonsensical humor which this Court has found to convey opinion, e.g., Steinhilber, 68 N.Y.2d at 293 (statements that plaintiff is so ugly that “mice jump up on chairs” when she comes in the room and in her case, brains “aren’t everything”, “they are nothing”), and is instead consistent with defamatory statements of absolute fact, even if communicated with rhetorical flourish, e.g., Silsdorf, 59 N.Y.2d at 16 (letter setting forth false facts to support conclusion that plaintiff is corrupt, even alongside the statement “Power tends to corrupt and absolute power corrupts absolutely” is open to defamatory interpretation); Curry v. Roman, 217 A.D.2d 314, 317 (4th Dep’t 1994) (defendants’ statements that plaintiffs – an art dealer and auction house – had engaged in “absolute thievery” and “collusion” were actionable). 46 Finally, given that the plain language of Boeheim’s statements accusing Davis of committing crimes, supra at 26-27, his rhetoric further underscored his statements’ defamatory nature. Guerrero, 10 A.D.3d at 114 (citations omitted) (“the inclusion of an allegation of ‘illegal’ or criminal wrongdoing . . . cannot be treated as a mere rhetorical flourish or speculative accusation of an angry but ill-informed citizen, [and] . . . only enhances the[] defamatory nature” of a statement that reasonably could be understood as factual). 2. Unprecedented Broader Social Context The Appellate Division also stressed that Boeheim was merely “demonstrat[ing] his support for Fine,” and defending himself in the context of the Penn State scandal, and thus must be considered to be expression of an opinion. See R. 8a. But nothing in any of the cases allows the transformation of plainly factual statements into opinions just because the speaker subjectively feels he is on the defensive. Although some courts have recognized that readers may be more likely to understand allegedly defamatory statements as having been factual when made by a “disinterested observer,” rather than a speaker with a great stake in the substance of the statement, those courts do so in the context of considering all aspects of context, including, for example, the fact that the speaker’s statements are set forth in a traditionally biased setting, such as an Op-Ed piece or a paid advertisement in the midst of litigation. Cf. Brian, 87 N.Y.2d at 53; Gentile v. 47 Grand St. Med. Assocs., 79 A.D.3d 1351, 1353 (3d Dep’t 2010). In any event, such consideration makes no sense in this case, where affording Plaintiffs all reasonable inferences leads to the conclusion that Boeheim plainly was playing offense, as he had not, in fact, been accused of wrongdoing himself. R. 181-82 (“there has been no suggestion” that the “head coach failed to follow the proper protocol”); R. 280 (“Boeheim has not been accused of doing anything wrong yet.”). See Rossi v. Attanasio, 48 A.D.3d 1025, 1028 (3d Dep’t 2008) (lower court erred in using a subjective test and the perspective of someone who knew the parties well, as opposed to an objective standard). Finally, the Appellate Division’s invocation of the Penn State scandal and Boeheim’s own defensive posture as relevant context is both legally and logically incorrect. First, as a matter of logic, the fact that Boeheim may have been making every effort to distinguish himself from Joe Paterno does not turn facts into opinion. Indeed, a reasonable reader could well have concluded that Boeheim was reciting facts (including his own participation in a prior investigation that had not yet been disclosed to the public) precisely to show that Fine was innocent and therefore establish that Boeheim was not Paterno. Second, cases that do invoke controversies in the broader context analysis – even ones that find statements to be non-actionable – are careful to point out that the controversy involves the very parties at issue in the defamation claim itself. See, e.g., Steinhilber, 68 N.Y.2d at 48 294 (broader context is the conflict between the plaintiff union member and defendant union which called plaintiff a “scab”); Wilcox v. Newark Valley Cent. Sch. Dist., 74 A.D.3d 1558, 1561 (3d Dep’t 2010) (broader context of the scandal is that plaintiff, who was a teacher being suspended, was romantically involved with a male coach accused of raping a student, and finding the statements potentially defamatory); Bonanni v. Hearst Commc’ns, Inc., 58 A.D.3d 1091, 1093-94 (3d Dep’t 2009) (statements in an opinion column not defamatory considering the broader social context of years of widespread media coverage of plaintiff’s alleged misconduct); H&R Indus., Inc. v. Kirshner, 899 F. Supp. 995, 1011 (E.D.N.Y. 1995) (denying summary judgment where broader context is that a memo was handed out to others in the same industry as the parties, and the parties themselves had a “less than amicable relationship”). Neither the fact that Boeheim apparently believed himself to be as famous and important to college basketball as Joe Paterno was to college football, nor that he felt the need to ensure that the public did not find him as culpable as Paterno regarding an allegation of childhood sex abuse by an assistant coach can insulate his provably false statements from defamation liability. What matters is how the reasonable reader could view his detailed public attack on Plaintiffs, including that he unequivocally “act[ed] as if he is certain beyond reasonable doubt that the accusations are patently false” and took issue “with specific parts of 49 Davis’s story,” R. 200; R. 166, including, inter alia, the false assertions that Davis provided only four names to the University in 2005, that Boeheim and Syracuse spoke to everyone Davis asked them to speak to, that “not one” witness corroborated Davis’s report, that Davis tried to extract money on prior occasions, that Davis traveled with the team only when babysitting for Fine’s children, that Boeheim was never in Fine’s hotel room when Davis was, and, of course, that in no uncertain terms Plaintiffs were “lying” about having been abused by Fine. The Appellate Division’s invocation of alternative, subjectively perceived contexts – including Boeheim’s subjectively defensive posture in light of a controversy like Penn State, which did not involve the parties at all – is unprecedented. A reasonable reader could readily have concluded that Boeheim was decisively injecting himself into the news to tar and diminish Plaintiffs, setting forth facts and implying knowledge of more, undisclosed facts to convey to the world that Plaintiffs fabricated claims of sexual abuse to shake down Syracuse University. “[I]f the words taken in their natural and ordinary meaning are susceptible to a defamatory connotation, then it is for the jury to decide how it would be understood by the average reader.” Carney v. Mem’l Hosp. & Nursing Home, 64 N.Y.2d 770, 772 (1985) (citations omitted); see also Silsdorf, 59 N.Y.2d at 12-13. CONCLUSION For the foregoing reasons, Plaintiffs respectfully submit that this Court should reverse the decision of the Appellate Division, Fourth Department, and should reinstate Plaintiffs' Verified Complaint in its entirety. Dated: December 6, 2013 New York, New York CUTI HECKER WANG LLP By:11ACUA·~tu~ Mariann Meier Wang () - 305 Broadway, Suite 607 New York, New York 10007 (212) 620-2603 ALLRED, MAROKO & GOLDBERG Gloria Allred 6300 Wilshire Boulevard, Suite 1500 Los Angeles, California 90048 (323) 653-6530 Attorneys for Plaintiffs-Appellants Robert Davis and Michael Lang 50