Complaint Stated a “Mixed Opinion” Defamation Cause of Action—A “Mixed Opinion” Statement Implies It Is Based Upon Facts Unknown to the Reader—Pre-Answer Motion to Dismiss Should Not Have Been Granted

The Court of Appeals, in a full-fledged opinion by Judge Rivera, reversed the 4th Department and reinstated a defamation complaint against Syracuse University and James Boeheim, the head coach of the Syracuse University men’s basketball team. The complaint had been dismissed pursuant to CPLR 3211(a)(7) on the ground that the statements were pure opinion and were therefore not actionable as a matter of law. The Court of Appeals determined that the allegations in the complaint (accepted as true for purposes of the pre-answer motion to dismiss) included statements by Coach Boehein which implied the existence of facts within his knowledge but unknown to the reader.  Such statements are actionable as “mixed opinion.”  The plaintiffs alleged that the team’s associate coach had sexually molested them more than twenty years before.  Coach Boeheim described the plaintiffs as liars who were making the allegations for financial gain.  The court explained its role in determining a pre-answer motion to dismiss and the relevant law of defamation:

This appeal comes to us on a pre-answer motion to dismiss pursuant to CPLR 3211 (a) (7), a procedural posture which requires that “we accept as true each and every allegation made by plaintiff and limit our inquiry to the legal sufficiency of plaintiff’s claim” … . Unlike on a motion for summary judgment where the court “searches the record and assesses the sufficiency of the parties’ evidence,” on a motion to dismiss the court “merely examines the adequacy of the pleadings” … . In determining the sufficiency of a defamation pleading, we consider “whether the contested statements are reasonably susceptible of a defamatory connotation” … . As we have previously stated, “[i]f, 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” … . We apply this liberal standard fully aware that permitting litigation to proceed to discovery carries the risk of potentially chilling free speech, but do so because, as we have previously stated, “we recognize as well a plaintiff’s right to seek redress, and not have the courthouse doors closed at the very inception of an action, where the pleading meets the minimal standard necessary to resist dismissal of the complaint” … . * * *

In order for the challenged statements to be susceptible of a defamatory connotation, they must come within the well established categories of actionable communications. Thus, a false statement “that tends to expose a person to public contempt, hatred, ridicule, aversion or disgrace constitutes defamation” … . “Since falsity is a necessary element of a defamation cause of action and only ‘facts’ are capable of being proven false, ‘only statements alleging facts can properly be the subject of a defamation action'” … .

A defamatory statement of fact is in contrast to “pure opinion” which under our laws is not actionable because “[e]xpressions of opinion, as opposed to assertions of fact, are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation” …. For, “[h]owever pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas” … . A pure opinion may take one of two forms. It may be “a statement of opinion which is accompanied by a recitation of the facts upon which it is based,” or it may be “an opinion not accompanied by such a factual recitation” so long as “it does not imply that it is based upon undisclosed facts” … .

While a pure opinion cannot be the subject of a defamation claim, an opinion that “implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it, [] is a ‘mixed opinion’ and is actionable” … . This requirement that the facts upon which the opinion is based are known “ensure[s] that the reader has the opportunity to assess the basis upon which the opinion was reached in order to draw [the reader’s] own conclusions concerning its validity” … . What differentiates an actionable mixed opinion from a privileged, pure opinion is “the implication that the speaker knows certain facts, unknown to [the] audience, which support [the speaker’s] opinion and are detrimental to the person” being discussed ,,, .

Distinguishing between fact and opinion is a question of law for the courts, to be decided based on “what the average person hearing or reading the communication would take it to mean” … . “The dispositive inquiry … is ‘whether a reasonable [reader] could have concluded that [the statements were] conveying facts about the plaintiff” … . Davis v Boeheim, 2014 NY Slip Op 07083, CtApp 10-21-14