Robert Davis, et al., Appellants,v.James Boeheim, et al., Respondents.

Brief

N.Y.September 9, 2014

To 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. REPLY BRIEF FOR PLAINTIFFS-APPELLANTS MARIANN MEIER WANG 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 February 6, 2014 i TABLE OF CONTENTS PRELIMINARY STATEMENT .................................................................................................... 1 REPLY ARGUMENT .................................................................................................................... 5 I. THE STANDARD ON A PRE-ANSWER MOTION TO DISMISS ................................. 5 II. THE STATEMENTS ARE MIXED OPINION BASED ON UNDISCLOSED FACTS .................................................................................................. 8 III. THE STATEMENTS ARE MIXED OPINION BASED ON DISTORTED FACTS ...................................................................................................... 18 IV. THE CONTEXT COULD HAVE LED A REASONABLE READER TO CONCLUDE THAT BOEHEIM’S STATEMENTS WERE FACTUAL ....................... 24 V. THE PLAIN TEXT ESTABLISHES THAT THE CHALLENGED STATEMENTS ARE PROVABLE STATEMENTS OF FACT .................................... 36 CONCLUSION ............................................................................................................................. 41 ii TABLE OF AUTHORITIES CASES 600 West 115th St. Corp. v. Von Gutfield, 80 N.Y.2d 137 (1992) ............................................................................................................... 31 Armstrong v. Simon & Schuster, Inc., 85 N.Y.2d 373 (1995) ................................................................................................................. 4 Arrow Commc’ns Labs., Inc. v. Pico Prods., Inc., 199 A.D.2d 1055 (4th Dep’t 1993) ............................................................................................. 5 Arts4All, Ltd. v. Hancock, 5 A.D.3d 106 (1st Dep’t 2004) ................................................................................................. 17 Biro v. Conde Nast, 883 F. Supp. 2d 441 (S.D.N.Y. 2012) ........................................................................................ 6 Breen v. Leonard, 198 A.D.2d 392 (2d Dep’t 1993) .............................................................................................. 40 Brian v. Richardson, 87 N.Y.2d 46 (1995) ................................................................................................................. 32 Buck v. Zwelling, 272 A.D.2d 895 (4th Dep't 2000) ............................................................................................. 40 Carney v. Mem’l Hosp. & Nursing Home, 64 N.Y.2d 770 (1985) ................................................................................................................. 6 Chalpin v. Amordian Press, Inc., 128 A.D.2d 81 (1st Dep't 1987) ....................................................................................... 3, 22-23 City of Syracuse v. Comerford, 13 A.D.3d 1109 (4th Dep’t 2004) ........................................................................................... 7, 8 Clark v. Schuyerville Cent. Sch. Dist., 24 A.D.3d 1162 (3d Dep’t 2005) ........................................................................................ 14, 17 Couloute v. Ryncarz, No. 11 CV 5986, 2012 WL 541089 (S.D.N.Y. Feb. 17, 2012) ................................................ 31 Curry v. Roman, 217 A.D.2d 314 (4th Dep’t 1995) ............................................................................................. 38 iii Farber v. Jeffreys, 33 Misc. 3d 1218(A) 941 N.Y.S.2d 537 (Sup. Ct. N.Y. Cnty. Nov. 2, 2011) .......................... 34 Gardner v. Martino, 563 F.3d 981 (9th Cir. 2009) .................................................................................................... 35 Gentile v. Grand Street Medical Associates, 79 A.D. 3d 1351 (3d Dep’t 2010) ................................................................................. 26, 27, 33 Geraci v. Probst, 15 N.Y.3d 336, 340 (2010) ....................................................................................................... 37 Gjonlekaj v. Sot, 308 A.D.2d 471 (2d Dep’t 2003) ........................................................................................ 11, 17 Goetz v. Kunstler, 164 Misc. 2d 557 (Sup. Ct. N.Y. Cnty. 1995) .......................................................................... 28 Gross v. N.Y. Times Co., 82 N.Y.2d 146 (1993) ............................................................................................................... 33 H&R Indus., Inc. v. Kirshner, 899 F. Supp. 995 (E.D.N.Y. 1995) ..................................................................................... 19, 20 Huggins v. Povich, No. 131164/94, 1996 WL 515498 (Sup. Ct. N.Y. Cnty. Apr. 19, 1996) .................................. 29 Immuno A.G. v. Moor-Jankowski, 77 N.Y.2d 235 (1991) ......................................................................................................... 32, 33 Independent Living AIDS, Inc. v. Maxi-AIDS, Inc., 981 F. Supp. 124 (E.D.N.Y. 1997) ........................................................................................... 27 Jewell v. NYP Holdings, Inc., 23 F. Supp. 2d 348 (S.D.N.Y. 1998) ........................................................................................ 24 Lapine v. Seinfeld, 31 Misc. 3d 736 (Sup. Ct. N.Y. Cnty. 2011) ............................................................................ 35 Leon v. Martinez, 84 N.Y.2d 83 (1994) ................................................................................................................. 18 Liere v. Paini, 93 AD.3d 825 (2d Dep’t 2012) ................................................................................................... 5 iv Mann v. Abel, 10 N.Y.3d 271 (2008) ......................................................................................................... 33, 36 McGill v. Parker, 179 A.D.2d 98 (1st Dep’t 1992) ......................................................................................... 23, 24 McNamee v. Clemens, 762 F. Supp. 2d 584 (E.D.N.Y. 2011) ................................................................................ 30, 38 November v. Time, Inc., 13 N.Y.2d 175 (1963) ................................................................................................................. 5 OFSI Fund II, LLC v. Canadian Imperial Bank of Commerce, 82 A.D.3d 537 (1st Dep’t 2011) ............................................................................................... 24 Petrus v. Smith, 91 A.D.2d 1190 (4th Dep’t 1983) ............................................................................................. 38 Ram v. Morritt, 205 A.D.2d 516 (2d Dep’t 1994) .............................................................................................. 39 Rossi v. Attanasio, 48 A.D.3d 1025 (3d Dep’t 2008) .............................................................................................. 17 Sabratek Corp. v. Keyser, No. 99 Civ. 8589(HB), 2000 WL 423529 (S.D.N.Y. Apr. 19, 2000) ....................................... 39 Silsdorf v. Levine, 59 N.Y.2d 8 (1983) ......................................................................................................... 6, 19, 22 Steinhilber v. Alphonse, 68 N.Y.2d 283 (1986) .......................................................................................... 9, 31-32, 33, 34 Stroup v. Nazzaro, 91 A.D.3d 1367 (4th Dep’t 2012) ............................................................................................. 39 Suarez v. Angelet, 90 A.D.3d 906 (2d Dep’t 2011) .................................................................................................. 8 Sweeney v. Prisoners’ Legal Servs. of N.Y., Inc., 146 A.D.2d 1 (3d Dep’t 1989) .................................................................................................... 5 Thomas H. v. Paul B., 18 N.Y.3d 580 (2012) ................................................................................................. 2, 8, 25, 37 v Trustco Bank of New York v. Capital Newspaper Div. of Hearst Corp., 213 A.D.2d 940 (3d Dep’t 1995) .............................................................................................. 39 Varrenti v. Gannett Co., Inc., 33 Misc. 3d 405 (Sup. Ct. Monroe Cnty. 2011) ....................................................................... 39 Zulawski v. Taylor, 63 A.D.3d 1552 (4th Dep’t 2009) ............................................................................................. 17 OTHER AUTHORITIES Sack on Defamation: Libel, Slander, and Related Problems § 2.4.7 ............................................ 38 1 PRELIMINARY STATEMENT Boeheim’s statements about Plaintiffs were specific, precise, and provably false, as even the majority below found. R. 7a. Boeheim indisputably declared that Plaintiffs were “lying,” and “using ESPN to get money” in exchange for a fabricated allegation of childhood sexual abuse. R. 104 ¶¶ 49-51. That alone was defamatory. But Boeheim did not stop there. He also set forth a series of facts as only an insider could, and implied to any reasonable reader that he knew more, undisclosed facts, as someone who knew “Bobby,” “this kid,” who was “around all the time,” R. 187, 192, 166, that Davis had “tried before” to get money for this lie, R-104, that Davis’s complaint had already been “fully investigated” years before, R. 159, that Davis had supplied “four names to the university” and “none of them” corroborated his story, R. 104 ¶ 49, and that Davis was lying about when and how he traveled with Bernie Fine, R. 187. These facts were not only partial, implying Boeheim’s knowledge of more facts – he did not explain, for example, how Davis had tried to get money before, or how the claims had been “fully investigated” – but they were also provably false. Davis never sought money; provided more than a dozen names to the University, one of whom corroborated him; and repeatedly traveled with Fine, including as a 15 year old, staying in Fine’s hotel room, in Fine’s bed, on the team trips. (Pls.’ Br. at 21-24.) Boeheim’s statements were therefore also defamatory as “mixed opinion.” 2 That Boeheim felt defensive or emotional – facts that are not in evidence, because he has not submitted any sworn pleading or affidavit in this pre- answer posture – is of no moment. This Court has never held that if a speaker feels defensive or upset, he has free reign to wield false facts and denigrate others in a fundamental way. To the contrary, this Court recently reinstated a defamation claim in the most emotional and defensive of contexts – during an in-person confrontation between the parents of a victim and the wife of a man they believed had sexually assaulted their daughter. Thomas H. v. Paul B., 18 N.Y.3d 580, 585- 86 (2012). Defendants do not cite to any cases that meaningfully support their position that being defensive, emotional or blunt provides a free pass for defaming others, because there are none. The fact that the Penn State scandal was in the background and Boeheim sought factually to distinguish himself from Joe Paterno, including by saying he “know[s] nothing” compared to Joe Paterno, does not change the legal framework. R. 189-90. Infra. at 31-35. At every opportunity, defendants obfuscate Boeheim’s words to dissipate their impact and meaning. Throughout their brief, rather than quote Boeheim as he actively branded Plaintiffs as opportunistic liars – even as Plaintiffs had the courage to come forward to describe deeply painful childhood sexual abuse – defendants demur that Boeheim merely “expressed doubt” about Plaintiffs’ sex abuse and “questioned their motives” in coming forward. (Defs.’ Br. at 1; see also 3 id. at 2, 6, 7, 30, 33, 34 (Boeheim “disbelieved” or expressed “disbelief”).) But that is not what Boeheim said. In fact, Boeheim could have said any number of supportive things to defend his friend, Bernie Fine, and could easily have expressed his opinion basing them on accurate or fully disclosed facts. Boeheim chose not to. Instead he chose – evidently deliberately and defiantly1 – to go much farther, well over the line that protects opinion. Thus, he told national and local reporters again and again, so that his story would be reported in the news, that Plaintiffs were “lying” and “using ESPN to get money,” and provided a distorted, insider’s perspective of false facts to support that conclusion. R. 104 ¶¶ 49-51. This Court has expressly reinstated defamation claims for statements such as those at issue here, on a motion to dismiss, where false underlying facts are set forth. Silsdorf v. Levine, 59 N.Y.2d 8 (1983). That is because “there is no constitutional value in false statements of fact.” Chalpin v. Amordian Press, Inc., 128 A.D.2d 81, 85 (1st Dep’t 1987). In any event, Boeheim is no gadfly, no citizen protestor, no writer of incendiary opinion columns, Op-Eds or letters to the editor. He is a man who wields enormous power in Syracuse and even nationally, on the stage of college basketball. See R. 256-61 ¶¶ 5-19. On November 17 and 18, he wielded that power effectively: his statements were published in various national and local news reports branding Plaintiffs as liars seeking money, in some outlets 1 R. 193 (Boeheim stated: “You want to put that on the air? Put that on the air,” immediately after saying Plaintiffs sought money for their lies). 4 even before Plaintiffs’ initial report of the sexual abuse was publicized. E.g., R. 165. Boeheim has never “apologized publicly to Plaintiffs,” (Defs.’ Br. at 1), but instead conveyed vaguely worded regrets to unnamed “victims,” R. 206-07. Boeheim’s statements cannot be undone. Plaintiffs must reckon with the injury of being branded liars, a wound that exacerbates their own decades-long struggle with deep guilt and shame as childhood sex abuse victims. See R. 297 ¶ 13; R. 302 ¶ 11. But Plaintiffs can stand up for themselves now, and make clear to the world that they need not be ashamed, that they will contest and prove that they are not liars fabricating their story for money, and that when false, denigrating, defamatory statements are made about them, they will fight back. Plaintiffs can seek to vindicate their honor and preserve their dignity – as New York law has long permitted – as much for them, as to ensure that “other victims understand that they should not be punished for coming forward with the truth.” R. 93 ¶ 7. This Court should reverse and reinstate Plaintiffs’ claim so that it does not prematurely cut off “[P]laintiff[s’] right to seek redress, and not have the courthouse 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). 5 REPLY ARGUMENT I. THE STANDARD ON A PRE-ANSWER MOTION TO DISMISS By pervasively focusing on Boeheim’s subjective perspective and his perception of the relevant context, Defendants’ brief highlights the failure by the courts below genuinely to accord Plaintiffs’ allegations deference on this pre- answer motion to dismiss. The law instead requires consideration of the context objectively so as to determine whether “a reasonable reader could have concluded that [the statements at issue were] conveying facts about the plaintiff,” Arrow Commc’ns Labs., Inc. v. Pico Prods., Inc., 199 A.D.2d 1055, 1056 (4th Dep’t 1993) (emphasis added) (brackets, citations, and internal quotation marks omitted); see also Liere v. Paini, 93 AD.3d 825, 826 (2d Dep’t 2012). As this Court has held, “[t]he courts ‘will 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). 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) 6 (emphasis added) (citing Carney v. Mem’l Hosp. & Nursing Home, 64 N.Y.2d 770, 772 (1985); Silsdorf v. Levine, 59 N.Y.2d 8, 12-13 (1983)). Boeheim urges this Court to affirm dismissal in order not to “‘chill the exercise of constitutionally protected freedoms.’” (Defs.’ Br. at 10 (citing Biro v. Conde Nast, 883 F. Supp. 2d 441, 457 (S.D.N.Y. 2012)).) Yet elsewhere they argue that there appears little that will “chill” Boeheim’s expression, given his alleged reputation for bluntness. (Defs.’ Br. at 28.) In any event, the case upon which Defendants rely denies defendants’ motion to dismiss several defamation claims, including where plaintiff alleged that certain “key facts underlying” an opinion were false. Biro, 883 F. Supp. 2d at 476 (“Of course, a false statement that Jackson Pollock never used acrylic paint would not, in itself, be defamatory. But when that false statement is part of a series of statements (some alleged to be false) that convey a distinct implication, then those statements are not, as a matter of law, protected. Giving [Plaintiff] all reasonable inferences, the Court cannot dismiss this claim.”). As Plaintiffs’ opening brief (and their briefing below) shows, it is precisely such facts – including more than eight specific, provably false statements – which in themselves might not be defamatory, but which, together with Boeheim’s statements, that Plaintiffs are liars seeking a payday, provide ample basis for denying Defendants’ motion to dismiss. 7 Defendants also argue that the lower courts accorded sufficient deference to Plaintiffs on a motion to dismiss when it refused to infer that Boeheim affirmatively sought out press based solely on the allegation in the complaint that Boeheim “made public statements.” (Defs.’ Br. at 11 (citing R. 102-03 ¶ 44).) Yet the narrow reading of that allegation – couched as it is in pages of allegations that Boeheim made public statements knowing they were false – and the trial court’s failure to credit the record evidence supporting the reasonable inference that Boeheim affirmatively sought out press is precisely the point. The record plainly permits such an inference in Plaintiffs’ favor. Indeed, there is no dispute that: Boeheim affirmatively issued his own crafted statement on November 17, 2011, R. 159; Boeheim gave a telephone interview to the New York Times late Thursday, November 17, 2011, R. 165; Boeheim admitted in a November 18 interview that he had “talked to ESPN, the (New York) Times and [Syracuse Post-Standard],” R. 187; and at least one reporter reasonably viewed Boeheim’s statements as showing that Boeheim “chose to actively support Fine,” even though “there has been no suggestion,” that the “head coach failed to follow the proper protocol.” R. 181-82 (emphasis added). Given that courts must accord the non-moving parties “the benefit of every possible favorable inference,” City of Syracuse v. Comerford 13 A.D.3d 1109, 1111 (4th Dep’t 2004), and must “accept as true the facts alleged in the 8 complaint and in the submissions in opposition to the motion,” id., it was error for the courts below to refuse to make such a (reasonable) inference. Without any opportunity for discovery or any sworn statement from Boeheim, neither the court nor Plaintiffs could possibly have any additional information about the precise circumstances regarding Boeheim’s statements and interviews. But based on this record, a reasonable inference, crediting all of Plaintiffs’ allegations, is that Boeheim affirmatively made the calculated decision promptly to make widely broadcast denunciations of Plaintiffs in order to protect Syracuse’s valuable basketball franchise. Moreover, to the extent there is any open question about the circumstances surrounding Boeheim’s statements, the lower court still should have permitted the case to move forward. See Thomas H. v. Paul B., 18 N.Y.3d 580, 585-86 (2012) (reversing summary judgment where it is impossible to determine the precise context in which the statements are made); Suarez v. Angelet, 90 A.D.3d 906, 908 (2d Dep’t 2011) (reversing dismissal of defamation claim where the full circumstances and context of how the defendant made the challenged statements had not been explored). II. THE STATEMENTS ARE MIXED OPINION BASED ON UNDISCLOSED FACTS As set forth in Plaintiffs’ opening brief, and as Justices Smith and Fahey expressed in their dissent below, R. 8a-10a, Boeheim’s statements are actionable as mixed opinion, because to the extent any reasonable reader thought 9 Boeheim was expressing an opinion that Plaintiffs are liars seeking payment for their fabrications, Boeheim’s “statement of opinion implies that it is based upon facts which . . . are unknown to those reading or hearing it. . . .” Steinhilber v. Alphonse, 68 N.Y.2d 283, 289 (1986) (citations omitted). (Pls.’ Br. at 28; 29-33; R. 9a.) Throughout Boeheim’s statements, he presents himself repeatedly as someone who was a witness to key events with inside, non-public, factual information upon which he relies for his definitive declaration that Plaintiffs are liars seeking money. He stresses that he knows the key actors, since he’s “known Bernie Fine for 45 years,” R. 166, and since he knows “Bobby,” R. 187 (derisively also noting that he “know[s] this kid,” R. 192, even though Mr. Davis was nearly forty years old in 2011). He states with certainty that Davis had tried to extract money on prior occasions, R. 104 ¶ 48, and that Davis travelled with the team only when babysitting Fine’s children, R. 187. Critically, Boeheim also presents himself as someone in a position to vouch for the completeness of the University’s 2005 investigation which indisputably was not yet public, including by invoking details that only those familiar with the investigation would know, and by choosing words that any reasonable reader or listener could easily conclude meant that Boeheim was familiar with the investigation in a way that the public was not. (Pls.’ Br. at 29-30.) Above all, Boeheim did not disclose all of his information – 10 for example, he did not explain the full details of the investigation or provide details of how Davis sought money in the past. Significantly, both the majority and the dissent in the Appellate Division acknowledged that a fair reading of Boeheim’s statements unquestionably imply a basis in facts unknown to the public. R. 7a (majority noting that Boeheim’s statement that plaintiff was “’trying to get money. He’s tried before. And now he’s trying again[,]’ . . . “may be interpreted as implying that defendant knew facts that were not available to the reader. . . ”); R. 9-a (dissent explaining its view that the cause of action should be reinstated because the statements constitute mixed opinion “impl[ying] a basis in facts which are not disclosed to the reader or listener”). Because a fair reading of Boeheim’s statements implies undisclosed facts, Plaintiffs’ claim should be reinstated. Defendants’ opposition fails to address analogous cases supporting Plaintiffs’ mixed opinion claim, and parses Boeheim’s words, even as they falsely accuse Plaintiffs for doing so, all in order to convince this Court that Boeheim never implied that he had more knowledge about Plaintiffs and their claims of sexual abuse than was publicly available. (Defs.’ Br. at 30-32.) Yet Defendants do so by distorting the record. Defendants argue, for example, that Boeheim’s repeated emphasis of how long and well he has known Bernie Fine only highlights the defensive or 11 biased context, which in their view gave him a blanket license to defame Plaintiffs. (Defs.’ Br. at 30.) The cases do not provide such immunity. In any event, Boeheim did not only emphasize that he knew Fine: he also repeatedly stressed that he knew Bobby Davis (e.g., “I know Bobby;” R. 187; “I know this kid;” R. 192; he knew Davis because he was “around all the time,” R. 166), implying to any reasonable reader or listener that Boeheim knew Davis and thus what kind of “kid” Bobby Davis is, given that he also allegedly sought money before. Reversal is warranted on this ground alone. Gjonlekaj v. Sot, 308 A.D.2d 471, 474 (2d Dep’t 2003) (reversing dismissal of claim where speaker emphasized that he knew plaintiff “very well” because “[s]uch statements imply that [defendant] had knowledge of certain facts not known to his audience which support his opinion regarding the plaintiffs”) (citation omitted). Moreover, there is no dispute that the University’s 2005 investigation had not been publicly disclosed or described by anyone prior to November 17, 2011, when Boeheim went on his offensive. E.g., R. 165. Indeed, it was never released to the public until after the trial court dismissed this case below. Defendants stress first that other University officials also made statements about the investigation on the same day or the day after Boeheim, and note that the fact of Davis’s 2005 complaint to the University and the result of the University investigation were already public. (Defs.’ Br. at 31.) Notably defendants cite only 12 to the trial court decision for the latter two points, rather than anything in the record itself. Id. (citing R. 81). Regardless, Defendants miss the point: it is irrelevant that others at the University also had non-public knowledge about the investigation and issued non-defamatory statements about it, just as it is irrelevant that the fact that an investigation occurred in 2005 may have been known. Boeheim was not simply noting (or repeating) that an investigation had occurred or that it concluded Davis’s complaint was unfounded. Boeheim’s statements instead plainly imply that he – unlike the public – was involved in the University’s investigation, or at a minimum reviewed its findings and that because that investigation was thorough, Boeheim relied on it to buttress his ultimate (defamatory) point that Plaintiffs are liars seeking money. 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. “We spoke to the people [Davis] asked the university to talk to. Not one person would corroborate his story.” R. 193. “This matter was fully investigated by the University in 2005 and it was determined hat the allegations were unfounded.” R.159 (emphasis added). Significantly, Boeheim told the world that the investigation was thorough in part because Defendants spoke to “four” individuals – purportedly everyone Davis asked the University to talk to – and none would corroborate Davis. First, no one 13 besides Boeheim – including other University officials issuing a statement at around the same time, R. 177 – provided this level of detail regarding the University investigation, i.e., how many witnesses the University interviewed, or the number of names Davis provided. These statements alone, particularly read together with the plain language of all of Boeheim’s other comments, more than sufficed to allow a reasonable reader to conclude that Boeheim participated in, was familiar with, and/or had seen non-public details about the University investigation, and was thus relying on non-public information when he defamed Plaintiffs as liars seeking a payday in exchange for false allegations that Bernie Fine had molested them. Second, Defendants contend that Boeheim spoke about the number of witnesses interviewed by the University without any first-hand knowledge. (Defs.’ Br. at 32 (“Plaintiffs essentially concede Boeheim’s lack of first hand knowledge.”) (emphasis in original).) That argument is meritless. On this motion to dismiss, the notion that the only conclusion a reasonable reader could reach was that Boeheim randomly speculated about such details as the number of witnesses identified or interviewed, without in fact having any personal knowledge of these matters, is irrational. Certainly, Boeheim has not come forward to state that in any sworn pleading. Moreover, even without discovery, the record appears to confirm that Defendants did choose to speak only to four potential witnesses – far fewer 14 than the more than one dozen names Davis provided. See R. 274-75 (District Attorney describing the investigation as inadequate, and noting the university interviewed four witnesses besides Davis and the Fines); R. 297 ¶ 11 (Davis provided more than a dozen names). As such, Boeheim’s reference to “four” names appears to be an accurate description of a key detail of the investigation – a detail unknown by the public – even though his statements that no witness corroborated Davis and that Defendants spoke to everyone Davis named were false. See infra at 18. In any event, Plaintiffs are in no position to know precisely what Boeheim knew or didn’t know given the pre-answer posture. The point is that Boeheim’s announcement that the University “fully investigated” Davis’s complaint, R. 159; that “[w]e spoke to the people [Davis] asked the university to talk to. Not one person would corroborate his story,” R. 193; and that Defendants spoke to “four” people, are all non-public details implying to a reasonable reader that Boeheim had a basis in facts not known to the public upon which he based his definitive denunciation of Plaintiffs as opportunistic liars seeking money. See Clark v. Schuyerville Cent. Sch. Dist., 24 A.D.3d 1162, 1164 (3d Dep’t 2005) (reversing dismissal where plaintiff-teacher was accused of violating a policy by the defendant-principal: “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”). 15 Defendants also argue that to the extent that Boeheim stated that the University’s investigation was thorough, that “is plainly not a factual statement . . . and cannot be proven true or false.” (Defs.’ Br. at 32.) Defendants cite no case and offer no reasoning to support this point. That is because a statement that an investigation was thorough is provably true or false. Indeed, the University’s investigation was demonstrably not thorough, as the District Attorney who examined the investigation much later found: 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 that were raised in Bernie Fine’s statement, not personally interviewing perhaps a very important corroborating witness of Bobby Davis’s story, among other things. R. 275. An “inadequate” investigation is a fortiori not thorough. At a minimum, Plaintiffs should be given the opportunity to prove their allegation that it was not thorough, and that Boeheim’s false characterization of the investigation could have affected a reasonable reader’s assessment of his ultimate denunciation of Plaintiffs. Moreover, Defendants’ argument that Boeheim never implied that he possessed undisclosed knowledge relies on inaccurate parsing of Boeheim’s statements. (Defs.’ Br. at 31 (citing R. 189-90 & R. 199 (quoting Boeheim as stating, “I know nothing,” and “I really don’t have any facts.”)).) Defendants’ isolated quotations distort what Boeheim was conveying. The record is clear that when Boeheim said he “kn[ew] nothing” he was drawing a factual distinction 16 between himself and Joe Paterno: “I’m not Joe Paterno. Somebody didn’t come and tell me Bernie Fine did something and I’m hiding it. I know nothing. If I saw some reason not to support Bernie, I would not support him.” R. 189-90. Boeheim never claimed he knew nothing; to the contrary, as shown above, he made numerous statements of non-public facts intended to show that he knew plenty. Instead, he made this statement to contrast himself with Joe Paterno and to emphasize again that Plaintiffs were lying. Defendants’ second quote, that Boeheim “really do[esn’t] have any facts” is from an interview some days after Boeheim’s initial flurry of defamatory statements in which he also said he was “done talking about ‘that situation’” R. 199, but still repeatedly emphasized that he stood by his initial statements on November 17 and 18. R. 200-01 (“he absolutely would not change the text” of his earlier statements; and he thought “it was the right statement”). Finally, Defendants cite no case that supports dismissal of a defamation claim where the speaker implies detailed, first-hand knowledge of the underlying facts and all key actors (including Plaintiff) as the basis for his ultimate conclusion. Defendants instead only echo the trial court’s improper reliance on the inapposite Gisel v. Clear Channel Communications, Inc., which involved a radio- show host providing a live forum for public debate on newsworthy topics and discussing publicly known facts about a particular case. (Compare Pls.’ Br. at 32- 17 33 with Defs.’ Br. at 31-32.) Nor do Defendants meaningfully address or distinguish any of the many cases reversing the dismissal of defamation claims where the speaker opined from a position of unique familiarity with the parties or facts. (Compare Pls.’ Br. at 30-32 with Defs.’ Br. at 32.) It is precisely under these types of circumstances – in which 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. Zulawski v. Taylor, 63 A.D.3d 1552, 1553 (4th Dep’t 2009); Rossi v. Attanasio, 48 A.D.3d 1025, 1028 (3d Dep’t 2008); Clark, 24 A.D.3d at 1164; Arts4All, Ltd. v. Hancock, 5 A.D.3d 106, 109 (1st Dep’t 2004); Gjonlekaj v. Sot, 308 A.D.2d 471, 474 (2d Dep’t 2003). (See also Pls.’ Br. at 30-32.) A careful examination of the record establishes that Boeheim was not speaking exclusively from publicized facts, but from his own store of first-hand knowledge. (See Pls.’ Br. at 29-30.) The plain language of Boeheim’s statements forcefully imply that he knew facts the reader did not and that those non-public facts supported his statement that Plaintiffs are liars seeking money. All reasonable inferences should have been drawn for Plaintiffs, and their claims should not have been dismissed. 18 III. THE STATEMENTS ARE MIXED OPINION BASED ON DISTORTED FACTS Boeheim’s statements are also actionable because he set forth more than eight facts that are false and misleading to support his repeated declaration that Plaintiffs were money-seeking liars. As such, Plaintiffs’ claim should also be reinstated under this mixed opinion theory of defamation. (Pls.’ Br. at 28, 33-36.) On a motion to dismiss, where a claim should be upheld as long as the “facts as alleged fit within any cognizable theory,” Leon v. Martinez, 84 N.Y.2d 83, 87-88 (1994) (emphasis added), this theory alone requires reversal. In particular, as set forth more fully in Plaintiffs’ opening brief with record citations (Pls.’ Br. at 21-23), Boeheim relied on the following facts in support of his denunciation of Plaintiffs as liars seeking to profit from false allegations of sexual abuse: (1) Davis’s allegations concerned events that were more than twenty years old (when in fact, the allegations were raised shortly after the abuse ended); (2) Davis provided only four names of witnesses to the University in 2005 (when in fact he provided more than a dozen); (3) defendants spoke to everyone Davis asked them to speak to (when in fact they did not); (4) “not one” witness corroborated Davis’s report (when in fact one did); (5) Davis had previously tried to get paid in exchange for his allegations (when in fact Plaintiffs never sought payment); (6) Davis traveled with the team only when babysitting Fine’s children (when in fact Davis routinely travelled with the team 19 when Fine’s children were not present); (7) Boeheim was never in Fine’s hotel room when Davis was (when in fact Davis saw him there); (8) Defendants “fully investigated” Davis’s complaint in 2005, R. 159 (when in fact the investigation was inadequate, R. 275); and (9) Davis “[was] lying” about having been abused by Fine, (when in fact Plaintiffs were abused). If Boeheim had instead accurately reported any one of these facts – and certainly if he stated all of them accurately – a reasonable reader could easily have concluded that Boeheim’s ultimate statement that Plaintiffs are liars seeking money was false and defamatory. See Silsdorf v. Levine, 59 N.Y.2d 8, 15 (1983) (“the validity of the opinions expressed in the letter, as viewed by the average reader, could be affected by whether the facts as stated by defendants or those now alleged by plaintiff were before the reader”); H&R Indus., Inc. v. Kirshner, 899 F. Supp. 995, 1011 (E.D.N.Y. 1995) (“In light of this factual dispute we are unable to say that the disparity would not affect the conclusions drawn by the average reader . . . . These disparities also raise material issues of fact which the Court may not ignore. . . .”). Defendants argue that the falsehoods upon which Plaintiffs rely are “trivial differences” and merely “imprecise statements at the periphery” of Boeheim’s fundamental claim that Plaintiffs are liars. (Defs.’ Br. at 33, 35.) Rather than carefully address the differences, however, Defendants provide a 20 distorted summary of the inaccuracies (without record citations or actual quotes) to try to minimize them. (Compare Defs.’ Br. at 35 with Pls.’ Br. at 33-36.) Defendants first argue that whether Boeheim accurately reported the details of the investigation is immaterial to the reasonable reader, because it remains true that an investigation was conducted. (Defs.’ Br. at 34.) But Boeheim chose to go beyond that known fact. Thus, he emphasized to the world that the investigation (of which he apparently could speak authoritatively) was thorough and reliable (“fully investigated,” R. 159), and specifically that Davis provided only “four” names, that defendants spoke to all four, and that “[n]ot one person would corroborate his story.” (Pls.’ Br. at 22-23.) If, instead of these falsehoods, Boeheim had accurately stated that defendants spoke to only four witnesses, although Davis had named more than a dozen; that one of those witnesses actually corroborated Davis; and that as a result, Davis’s complaint was never “fully investigated,” R. 159, but was instead subjected to an “inadequate” investigation, R. 275, a reasonable reader could easily have disagreed with Boeheim’s statement that Plaintiffs are liars seeking money. In any event, even where a court is not sure whether the false facts would or would not affect a reasonable reader, a jury should decide the claim. See H&R Indus., 899 F. Supp. at 1011. Defendants also contend that Boeheim was not conveying material facts when he described his specific memories of Davis because he used “loose and 21 rhetorical language.” (Defs.’ Br. at 34.) But there was nothing loose, rhetorical or imprecise about the words Boeheim used: “I know [Davis is] lying about me seeing him in his hotel room. That’s a lie.” R. 103 ¶ 47; “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; R. 99-100. These statements are demonstrably true or false in the same way that any other fact at issue is provable: through the testimony of witnesses, through travel records and receipts, and based on a factfinder’s weighing of the credibility of each witness. And if indeed Boeheim had accurately instead reported that he had seen Bobby Davis accompany Fine on multiple trips, even when Fine’s children were not present, when Davis was 15 instead of 18, and that he had seen Davis in Fine’s hotel room under those circumstances, a reasonable reader could have concluded that Boeheim’s statement that Plaintiffs were liars seeking money was false and defamatory. Defendants claim that Boeheim’s statements about Plaintiffs seeking money were simply his opinion that Plaintiffs were trying “to win a civil suit verdict.” (Defs.’ Br. at 34.) That is not what Boeheim actually said. He said: “[T]he kid behind this is trying to get money. He’s tried before. And now he’s trying again.” R. 104 ¶ 48. 22 “I believe they are looking for money. I believe they saw what happened at Penn State, and they are using ESPN to get money. That’s what I believe.” R. 166 (emphasis added). No reasonable reader of these statements could conclude that Boeheim was merely prognosticating that Plaintiffs intended to file a civil suit for damages. Indeed, Boeheim’s reference to Davis’s trying to get money before, in exchange for prior reports of the abuse in past years, refutes any such reading. And the record shows that Boeheim well knew that he was accusing Plaintiffs of seeking payment for a false allegation of child sex abuse (i.e., extortion): “they are using ESPN to get money. That is what I believe. You want to put that on the air? Put that on the air.” R. 193. Finally, Defendants’ cursory effort to distinguish the relevant cases fails. Both Silsdorf and Chalpin are precisely on point. As in Silsdorf, “Plaintiff has not . . . 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 [defendants’ statement] as either a ‘gross distortion’ or ‘misrepresentation of fact.’” 59 N.Y.2d at 14. As in Silsdorf, this Court should reverse dismissal and reinstate Plaintiffs’ defamation claim. In Chalpin, the First Department held that the statement that the plaintiff was “an unbelievably unscrupulous character” was actionable as mixed opinion because of the defendant’s mischaracterization of a contract term. 128 23 A.D.2d 81, 86 (1st Dep’t 1987). Defendant had stated that the contract provided Jimi Hendrix only $1.00 in compensation, when the contract actually awarded Hendrix $1.00 plus a potentially sizable royalty. Id. The court analyzed the factual record, including documents not annexed to the complaint, and concluded that this single misrepresentation – essentially a partial description of one of the contract’s terms – was a “substantial and material misrepresentation of fact,” id., since it could affect a reasonable listener’s view of the ultimate statement that plaintiff was “an unbelievably unscrupulous character.” The Appellate Division reversed the trial court’s grant of summary judgment and reinstated the claim. Defendants’ citation to McGill v. Parker does not help them. In McGill, Plaintiffs were New York City carriage horse owners suing over numerous statements concerning mistreatment of their carriage horses. On a summary judgment motion, the court carefully noted that Plaintiffs had failed to prove the falsity of nearly all of the factual statements at issue, including the size and temperature of the stalls, the presence of urine puddles, the worn flooring, identified health problems, and the fact that the horses were scarred and did not have access to water. 179 A.D.2d 98, 108-09 (1st Dep’t 1992). The court noted that “except for a de minimus dispute over the adequacy of the stall dimensions,” id. at 108, all of the other many listed facts had not been disputed. Accordingly, because “plaintiffs have failed to raise any triable issue as to the falsity of the 24 factual statements,” the claims were dismissed, id. at 109. In contrast, on this motion to dismiss, Plaintiffs have set forth more than eight significant statements of fact that are provably false – each of them individually (and certainly in the aggregate) sufficiently material to support or defeat the conclusion that Plaintiffs are liars seeking money. See Jewell v. NYP Holdings, Inc., 23 F. Supp. 2d 348, 382 (S.D.N.Y. 1998) (disputed facts were sufficiently material simply because they were offered to support the ultimate opinion).2 IV. THE CONTEXT COULD HAVE LED A REASONABLE READER TO CONCLUDE THAT BOEHEIM’S STATEMENTS WERE FACTUAL As shown in Plaintiffs’ opening brief, the immediate context of Boeheim’s statements are his complete statements or interviews and the articles in which his defamatory statements appear, while the broader context is the particular forum for the articles, i.e., that they were straight news reports, as opposed to letters to the editor, op-ed pieces or a live debate or governmental hearing. (Pls.’ Br. 37-49.) Defendants reiterate the arguments they made below and which the lower court adopted, insisting that the immediate context of the challenged 2 Defendants tentatively imply that Plaintiffs may have waived the argument that mixed opinion based on false facts applies. (Defs.’ Br. at 35-36.) The argument was never waived. (Pls.’ Br. at 36 n. 1.) Defendants do not meaningfully contest that. In any event the case cited by Defendants is inapposite. OFSI Fund II, LLC v. Canadian Imperial Bank of Commerce, 82 A.D.3d 537, 538 (1st Dep’t 2011) (finding without analysis that waiver occurred where argument is never once mentioned until oral argument on a motion to renew and reargue). 25 statements includes that Boeheim allegedly was in a “defensive posture,” that Boeheim had a “long-time relationship” of friendship with Bernie Fine, and that Boeheim merely was reacting in an “emotional state of mind.” (Defs.’ Br. at 19- 23.) Defendants then argue that the “broader social context and surrounding circumstances” are: the Penn State scandal; ongoing, vigorous debate; and Boeheim’s reputation for bluntness. (Defs.’ Br. at 23-28.) But that is not what this Court’s precedent allows. There is no case, and Defendants cite none, that holds that a person who subjectively feels attacked or on the defense has carte blanche to make defamatory factual statements about another person, and holds that a defamation claim can be dismissed pre-answer. To the contrary, this Court recently reinstated a defamation claim where the defendant was indisputably defensive and emotional. Thomas H. v. Paul B., 18 N.Y.3d 580, 585-86 (2012) (speaker accusing plaintiff of sexually assaulting his daughter). Defendants otherwise fail entirely to discuss or distinguish the leading cases from this Court. (Compare Pls.’ Br. at 38-41 with Defs.’ Br. at 19-28.) Defendants do not ever address the fact that this Court’s leading cases emphasize – including when allowing context to be a basis for dismissal (often in the summary judgment context) – that dismissal is warranted because statements appear in an Op-Ed, letter to the editor, or opinion piece, each expressly prefaced by specific 26 warnings to the reader that what is expressed are opinions, or that the statement occurs in a live government hearing involving spirited civic debate. (Pls.’ Br. at 38-41.) None of this Court’s cases creates a defensive posture immunity. Instead, Defendants ask this Court to contort the “context” factor into something it has never been, allowing it effectively to swallow the tort of defamation: Defensive Posture (Defs.’ Br. at 19-20): That Boeheim subjectively felt that he was being attacked or the real focus of the story is his perspective. A fair reading of the record as it stood on November 17 and 18 when the statements at issues were made – and drawing all reasonable inferences in favor of Plaintiffs as required on a motion to dismiss – is that while Fine was being accused of sexually abusing Plaintiffs, almost nothing had been said about Boeheim. Indeed, the only fact that implicated Boeheim in any way was that he had seen Davis in Fine’s hotel room, as Defendants themselves concede. (Defs.’ Br. at 20.) A reasonable reader could conclude that the focus of these initial reports was on Fine’s sexual abuse of Plaintiffs, not that Boeheim was being attacked. Defendants cite to two cases for the proposition that a defensive posture allows the speaker to defame. (Defs.’ Br. at 20). Neither case supports them. In Gentile v. Grand Street Medical Associates, 79 A.D. 3d 1351 (3d Dep’t 2010), defendants had taken out a paid advertisement in the context of civil lawsuits. The Third Department dismissed the claim, focusing particularly on the 27 fact that the parties were plainly engaged in a contentious civil lawsuit as would have been obvious to the reader from the full text; that the entire statement was “conspicuously labeled as a ‘paid advertisement’” (akin to an op-ed or opinion piece); and that Plaintiff had failed to plead special damages. Id. at 1353-54. None of those factors is present here, where a reasonable reader could just as easily conclude that Boeheim himself was not under attack the way Fine was, but that he instead chose to attack Plaintiffs through news reports because of his inside knowledge of the key facts and parties. Independent Living is likewise inapposite. In that case, a federal court granted summary judgment on a slander claim to defendants where the entire article reported that when defendant was confronted about allegations concerning his improper business practices, defendant said that the people making the allegations were liars. 981 F. Supp. 124, 127-28 (E.D.N.Y. 1997). No other word or statement is reported – defendant did not provide any details or facts (whether false or implying more knowledge) to buttress his statement; he simply and solely responded when confronted with a direct allegation about him using that single word, “liars.” By contrast, Boeheim branded Plaintiffs as liars seeking money repeatedly, based on a litany of (false) supporting facts, in a manner which would allow a reasonable reader to conclude that he was implying that he knew even more. 28 Long-Time Relationship (Defs.’ Br. at 21-22): Again, the mere fact that Boeheim apparently valued his friendship with Fine does not make that fact relevant for purposes of analyzing the “immediate context,” nor does it allow him to defame Plaintiffs. The immediate context remains Boeheim’s injection of himself into the public sphere to state to news reporters at the New York Times, ESPN, and the Syracuse Post-Standard that Plaintiffs were lying to seek money, a conclusion he sought to buttress by referring to non-public facts and by implying he knew more. The two trial court cases cited by Defendants do not support them. In a decision on summary judgment, the court in Goetz v. Kunstler, 164 Misc. 2d 557 (Sup. Ct. N.Y. Cnty. 1995), noted that several underlying facts at issue had a basis in truth or were accurate statements, id. at 564, and separately stressed that the “context of the work is an autobiography by . . . a self-described ‘radical lawyer[,]’” id. at 562. The challenged statements describe the incident in which Bernhard Goetz shot several Black youths – one of whom Kunstler later represented in a civil suit. Id. The court noted that the statements at issue were just four paragraphs in an entire autobiography. Id. at 558. In short, in Goetz, the defendant had been in a formal, adversarial proceeding against the plaintiff – who was famous for publicly discussing issues of racism – and the challenged statements were only a miniscule portion of the entire autobiography. Likewise, the trial court in Huggins v. Povich stressed that the context there was a television 29 talk show “generally focus[ing] upon current controversial topics[.]” No. 131164/94, 1996 WL 515498, at *7 (Sup. Ct. N.Y. Cnty. Apr. 19, 1996). The court noted that Povich – the talk show host whom defendant sued (instead of defendant’s ex-wife who was a guest on the show making the statements) – repeatedly stressed throughout the show that his guest was presenting only one side of the picture and that plaintiff had expressly denied her allegations. Id. at *3, 7. Emotional State of Mind and Ongoing Vigorous Debate (Defs.’ Br. at 22-23, 27-28): That Boeheim attempts now – through his lawyers, without any sworn submissions or pleading – to characterize himself as upset or emotional when he made any challenged statement cannot constitute the relevant context. As set forth fully in the articles themselves and in Plaintiffs’ opening brief, reporters remarked how calculated and determined Boeheim was in affirmatively choosing to speak out and contradict Davis’s factual allegations. (Pls.’ Br. at 42-43.) Indeed, Boeheim knew perfectly well that he was crossing the line and engaging in inappropriate behavior, but did not care. R. 193 (“Put that on the air”). That he was deliberate and bold does not automatically mean that he was irrational and emotional; he could just as easily have been vindictively engaging in a manipulative effort to protect his lucrative basketball program. On a motion to dismiss, it is impermissible to favor or credit Defendants’ characterization when there is sufficient support for Plaintiffs’ reasonable inferences. 30 And regardless of how many times Defendants repeat it, the claim that Boeheim was somehow engaged in a “debate” with others does not make it true. (Defs.’ Br. at 27.) Defendants themselves point out in their fact section that the debate only “ensued” after Boeheim himself affirmatively issued statements. (Defs.’ Br. at 5.) In any event, the fact that different bloggers or talking heads were engaged in speculation does not mean that Boeheim was participating in any debate. He was not on a talk or radio show arguing with someone; he was not at a public hearing countering the points of other speakers and trying to convince a government body to take action. To the contrary, he was actively determined to set forth the “facts” that would paint Plaintiffs as liars seeking a payday to ensure that the first story reported would not be that Plaintiffs had been sexually abused, but instead that Boeheim made clear they were liars seeking a payday. Yet again, Defendants’ cases are inapposite. Indeed, they support a finding that the context of Boeheim’s statements could reasonably lead the reader to conclude Boeheim was asserting statements of provable fact in a calculated manner, rather than in the midst of a live, public debate. McNamee v. Clemens, 762 F. Supp. 2d 584, 603 (E.D.N.Y. 2011) (“While [Defendant] would like to characterize these statements as being made in ‘the [] midst of a heated public debate,’ a review . . . presents a more calculated picture. . . . [Defendant]’s statements, no matter how passionately delivered, were made in pre-scheduled 31 press conferences and other pre-planned public appearances. This was not a debate in which emotions might lead to exaggerated statements.”) (emphasis added) (citation omitted); 600 West 115th St. Corp. v. Von Gutfield, 80 N.Y.2d 137 (1992) (live debate among individuals at a public government hearing, involving table thumping, all support a view that the statements are protected opinion); Couloute v. Ryncarz, No. 11 CV 5986(HB), 2012 WL 541089, at *5-6 (S.D.N.Y. Feb. 17, 2012) (statements such as Plaintiff “lied and cheated all through his 40 years of life” posted anonymously to an online message board, liarscheatersrus.com, dedicated expressly to air grievances about dishonest romantic partners are not actionable). Penn State (Defs.’ Br. at 24-27): Defendants repeatedly insist that the Penn State scandal is unquestionably relevant to the underlying story and reports of sexual abuse, because reporters were making comparisons between Plaintiffs’ allegations and those which had surfaced at Penn State. Id. But the fact that reporters drew comparisons to the Penn State scandal does not magically transform it into the “broader social context” as the case law defines that limited term. As set forth in Plaintiffs’ opening papers, the “broader social context” requires consideration of the “existence of any applicable customs or conventions” which govern the statements or communications at issue, and which might signal to the reader that opinion is being expressed. Steinhilber v. 32 Alphonse, 68 N.Y.2d 283, 292 (1986). (See also Pls.’ Br. at 38-41.) That is precisely what this Court has consistently done. In Steinhilber, the tradition and customs being examined – the appropriate “broader social context” – were the history and tradition of labor disputes, and the fact that insults are “commonplace in labor disputes.” 68 N.Y.2d at 294 (quotation and citation omitted). Precisely because of that deep-rooted historical tradition, the Court pointed out that where plaintiff was “concededly . . . a ‘scab,’” “it is not surprising that union officials would speak of plaintiff to the membership in highly unflattering terms.” Id. In Brian v. Richardson, this Court emphasized the broader social context that the Op-Ed page “is a forum traditionally reserved for the airing of ideas on matters of public concern.” 87 N.Y.2d 46, 53 (1995). Again, because of the specific tradition and customs regarding an Op-Ed page, this Court concluded that “the common expectation” is that statements appearing on such a page would represent opinion and speculation. Id. Likewise, in Immuno-AG v. Moor-Jankowski, the broader social context examined was the history and customs behind letters to the editor, which “for many members of the public . . . may be the only available opportunity to air concerns about issues affecting them.” 77 N.Y.2d 235, 253 (1991). Accordingly, with that tradition as backdrop, this Court concluded that “[t]he common expectation of a letter to the editor is . . . the expression of individual opinion.” Id. 33 (quotation and citation omitted). And although Mann v. Abel does not contain extensive analysis, it notes that the column at issue “was on the ‘opinion’ page of the newspaper and accompanied by an editor’s note that the article was an expression of opinion by the author.” 10 N.Y.3d 271, 276-77 (2008). See also Gentile v. Grand St. Med. Assocs., 79 A.D.3d 1351, 1353-54 (3d Dep’t 2010) (court stresses that statements appear in a “conspicuously labeled as a ‘paid advertisement’”); Gross v. N.Y. Times Co., 82 N.Y.2d 146, 155-56 (1993) (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). Defendants cannot cite a single case that applies the “broader social context” to mean a scandal involving entirely different parties in a different location at a different time. Indeed, the cases Defendants attempt to distinguish precisely involve, in each instance, a consideration of the history or specific prior interaction/communication with the plaintiff or with both parties. See e.g., Steinhilber, 68 N.Y.2d at 294 (court considers the tradition of labor disputes and the fact that the statements are part of the “union’s effort to punish [the plaintiff]”). (See also Pls.’ Br. at 47-48.) 34 Penn State does not provide the “broader social context” that this Court has repeatedly defined. It does not provide any historical traditions, customs or conventions “which might signal to readers or listeners that what is being read or heard is likely to be opinion, not fact.” Steinhilber, 68 N.Y.2d at 292 (quotation and citations omitted). Defendants’ citation to Farber v. Jeffreys only proves the point: the court expressly considered that the statements at issue were “typical examples of the accusations” which dissenters and the traditional HIV/AIDS community had historically traded back and forth in the debate regarding the disease, as well as the specific history of communications between the parties themselves. 33 Misc. 3d 1218(A) at *15, 941 N.Y.S.2d 537 (Sup. Ct. N.Y. Cnty. Nov. 2, 2011). Finally, to the extent Penn State has any relevance at all (and it does not, under the case law), its relevance would support Plaintiffs. As set forth in Plaintiffs’ opening brief (Pls.’ Br. at 47) – and notably not addressed anywhere in Defendants’ opposition – a reasonable reader could well have concluded that the background of Penn State only supports a view that Boeheim was listing facts, precisely because he wanted to show that Fine was innocent and that he, Boeheim, was “not Joe Paterno.” R. 189. During oral argument before the trial court, defense counsel stressed precisely that point – that “Paterno . . . had a very different set of facts than Coach Boeheim was facing.” R. 19. A reasonable reader 35 could easily have considered that Boeheim was setting forth how he was different from Paterno by laying out all the (false) facts to establish that Plaintiffs are liars seeking a payday, and alluding to other information in his possession. Reputation for Bluntness (Defs.’ Br. at 28): Neither the trial court nor the Appellate Division relied on this argument, as was proper. Yet Defendants continue to press it here. That a speaker may have a reputation for offending or being obnoxious does not provide a free pass for defamatory statements. Boeheim is not a professional comedian or an opinionated talk show host, both of whom make a living off of outrageous statements. (Defs.’ Br. at 28 (citing Lapine v. Seinfeld, 31 Misc. 3d 736 (Sup. Ct. N.Y. Cnty. 2011) (comedian); Gardner v. Martino, 563 F.3d 981 (9th Cir. 2009) (talk show host)). In any event, even if Defendants could establish that Boeheim sometimes expresses views on issues that affect basketball, that does not mean he was not also intentionally expressing demonstrably false, specific statements that defamed Plaintiffs when he said they fabricated their experiences of childhood sexual abuse for money. The relevant contexts do not transform Boeheim’s words into opinion, particularly where he laid out false facts and implied he knew more to support the statement that Plaintiffs are liars seeking money. The claim should be reinstated. 36 V. THE PLAIN TEXT ESTABLISHES THAT THE CHALLENGED STATEMENTS ARE PROVABLE STATEMENTS OF FACT Boeheim made a number of precise, provable statements of fact that defamed Plaintiffs. (Pls.’ Br. at 21-24.) The majority below agreed: 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.). R. 7a. Notwithstanding this finding, Defendants repeat arguments they made below to try to establish that Boeheim’s specific language conveyed opinion, even as they have distanced themselves significantly from their initial rhetoric to the trial court that “Boeheim asserted no objective facts about Plaintiffs.” R. 121. Defendants repeatedly accuse Plaintiffs of impermissible “hyper- technical” parsing. (E.g., Defs.’ Br. at 12-13.) That claim is surprising given Defendants’ own approach. For example, rather than quote Boeheim directly, Defendants characterize Boeheim as merely “speculating about Plaintiffs’ possible motivation for making their allegations,” (Defs.’ Br. at 16 (emphasis added)), and “[s]uggesting Plaintiffs [w]ere [f]inancially [m]otivated,” (id.). But they are able to make the argument only by ignoring Boeheim’s actual words. Boeheim did not merely “suggest” or “speculate,” as even the majority found: “the kid behind this is trying to get money. He’s tried before. And now he’s trying again. . . .” R. 104 ¶ 48; see R. 7a. Plaintiffs can definitively prove that they never sought payment 37 for their reports of being abused, and that in fact, Bobby Davis made multiple efforts to report Fine not to enrich himself, but instead to ensure that Fine did not abuse other children, R. 100-02 ¶ 33-42. By mischaracterizing (and not quoting) Boeheim’s words, Defendants contend that Boeheim was not accusing Plaintiffs of fabricating a story of childhood sexual abuse in exchange for money, or accusing Davis of having tried to do so before. But that is precisely what a reasonable reader of Boeheim’s interview could conclude, and it is exactly the fair reading that at least one contemporaneous observer reasonably inferred. R. 280 (Boeheim accusing Plaintiffs of extortion). And by calling him a liar, Boeheim accused Davis of filing a false report. Contrary to their citations, there is no requirement in the cases that require the speaker to “ma[ke] reference to the law prohibiting the filing of false police reports. . . .” (Defs.’ Br. at 18.) Instead, as long as the facts being described constitute a crime, the statement is defamatory. Geraci v. Probst, 15 N.Y.3d 336, 340, 344-45 (2010) (statements that a 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); see also Thomas H. v. Paul B., 18 N.Y.3d 580, 585-86 (2012). 38 Boeheim also did not merely “express[] skepticism regarding Plaintiffs’ allegations” (Defs.’ Br. at 18) – he unambiguously said Plaintiffs were “lying.” R. 104 ¶ 49. Notwithstanding Defendants’ argument to the contrary, New York courts are particularly likely to conclude that a statement that someone has told “lies” or is a “liar” is actionable when the defendant asserts that the plaintiff lied in a specific instance or set of circumstances, or about a specific issue. See Curry v. Roman, 217 A.D.2d 314 (4th Dep’t 1995) (statements by owner of art gallery and its agent that auctioneer and his business were “crooks,” “liars,” “swindlers,” and that there was “some sort of collusion somewhere along the line” were defamatory as a matter of law); Petrus v. Smith, 91 A.D.2d 1190, 1190 ((4th Dep’t 1983) (statement that plaintiff was “a liar and a thief” was actionable); McNamee v. Clemens, 762 F. Supp.2d 584 (E.D.N.Y. 2011) (Roger Clemens’s statements that his formal personal trainer “is constantly lying,” and that McNamee’s statements “are absolutely false and the very definition of defamatory” are actionable). As one noted defamation expert has explained: The terms “lie” and “liar” are frequently used to characterize statements with which the speaker vehemently disagrees. If in context the word means that the defendant disapproves, it is a protected epithet. If it literally implies that the plaintiff made a specific assertion or series of assertions knowing them to be false, it may be actionable. Robert D. Sack, Sack on Defamation: Libel, Slander, and Related Problems § 2.4.7 at 2-48-2-49. 39 Defendants’ cases do not support them. See Varrenti v. Gannett Co., Inc., 33 Misc. 3d 405 (Sup. Ct. Monroe Cnty. 2011) (finding statement that “he smells as foul as the venom he dispenses” is protected on a pre-action discovery motion, where the context is an anonymous web posting calling for a full investigation); Stroup v. Nazzaro, 91 A.D.3d 1367, 1368 (4th Dep’t 2012) (shouting out “abuser” in the context of a brief physical scuffle on a school bus is “a type of epithet not to be taken literally and not deemed injurious to reputation”); Ram v. Moritt, 205 A.D.2d 516, 517 (2d Dep’t 1994) (statements that plaintiff was a “liar,” “cheat,” and “debtor” were non-actionable when made in the midst of confrontational moment in waiting room while defendant was repossessing medical equipment); Sabratek Corp. v. Keyser, No. 99 Civ. 8589(HB), 2000 WL 423529, at *7 (S.D.N.Y. Apr. 19, 2000) (statement that plaintiff is a pathological liar is analyzed in context of the entire newsletter which includes an express preface that the statements are “expressions of opinion” and that “such information is presented as is without warranty as to accuracy. . . ”) (quotation marks omitted); Trustco Bank of New York v. Capital Newspaper Div. of Hearst Corp., 213 A.D.2d 940 (3d Dep’t 1995) (statement that defendant engaged in extortion found non- actionable when accompanied by a series of factual statements which are not contested as false). 40 As set forth fully in the Plaintiffs’ opening brief, the relevant cases support a finding that Boeheim’s statements are factual, provable statements of fact, not protected opinion, including because Boeheim called Plaintiffs liars with respect to their assertions that they were sexually abused by Fine, as well as (separately) because a reasonable reader could conclude that he was accusing Plaintiffs of committing crimes. Breen v. Leonard, 198 A.D.2d 392, 393 (2d Dep’t 1993) (reversing grant of summary judgment where the “statements are definite, unambiguous and capable of being objectively characterized as true or false”) (citations omitted). Defendants’ arguments to the contrary are without merit, and the lower court should be reversed, with the claim reinstated as against both Boeheim and Syracuse University. See, e.g., Buck v. Zwelling, 272 A.D.2d 895, 896 (4th Dep’t 2000) (respondeat superior claim survives motion to dismiss where claim against employee survives). 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: February 6, 2014 New York, New York CUTI HECKER WANG LLP 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 41