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Slander Suit Dismissal Upheld on Appeal

Gloria Allred Loses Again

This past Friday, the Appellate Division, Fourth Department, issued its Memorandum and Order deciding the appeal in the lawsuit filed by Bobby Davis & Mike Lang against Jim Boeheim & Syracuse University. As you will recall, the Supreme Court of Onondaga County granted a motion to dismiss -- pretty early on in the proceedings -- on that basis that the lawsuit did not allege a cause of action upon which the court could grant relief. Essentially, that dismissal stated that even if the allegations in the suit were assumed to be true, that they didn't amount to the level of proof required for defamation. The Davis & Lang legal team, led by publicity-hungry Gloria Allred, appealed that decision. Recently, lawyers filed their appellate briefs and appeared before the Court for oral arguments, and the Court recessed to deliberate and issue its ruling.

That ruling, which you can read on the Court's website here, upholds the Supreme Court's dismissal of the suit.

What it means
The lawsuit is dead. This could very well be the end of the road for these defamation claims. The appeals court, ruling 3-2, believed that Supreme Court justice Brian DeJoseph was legally correct when he granted the defense motion to dismiss the lawsuit. The appellate court cited to a number of cases mainly asserting that in determining whether the statements in question made by Boeheim were fact or opinion, the court must consider a number of factors, particularly the context in which the statements were made and what exactly was said. In concluding its decision, the Court writes:
The content of the statements, together with the surrounding circumstances, “ ‘are such as to signal . . . readers or listeners that what is being read or heard is likely to be opinion, not fact’ ” (Mann, 10 NY3d at 276). Based upon “the content of the communication[s] as a whole, as well as [their] tone and apparent purpose[, together with] the over-all context in which the assertions were made” (id.), we thus conclude that the court properly determined that defendant’s statements constitute opinion, not fact.
However, there was also a dissenting opinion. Two justices voted to reinstate the lawsuit, asserting that the statements were mixed fact and opinion, and as such, should at least survive a motion to dismiss at this stage of the proceedings and move forward with discovery and other pretrial matters. However, since a minority of the five-justice panel voted to reinstate the lawsuit, the dismissal was upheld.

What happens now
Like I said, at the moment this lawsuit is dead. The only thing that can resurrect it is a reversal by the Court of Appeals -- New York's highest court. But getting the case there usually isn't easy. The Court is much more selective in the cases it hears, and therefore its docket is controlled by the Court itself -- or by permission from justices from the lower appeals court. In this case, two appellate division justices dissented, which means that an appeal to the Court of Appeals can be taken "as of right" -- in other words, the law gives them that automatic right, and no permission is required to get the case to the Court of Appeals.

If (and when) the Allred team appeals as of right to the Court of Appeals, there will be another round of appellate briefs being filed, and oral arguments before that Court, before a decision is rendered. At that point, the Court will either affirm the rulings below to dismiss the lawsuit -- ending the case once and for all -- or reversing the dismissal and reinstating the lawsuit. That wouldn't mean Davis & Lang win, it would just send the case back to Onondaga Supreme Court for the lawsuit to pick up where it was ended.

And no, an appeal to the Supreme Court of the United States (or, one of my favorite acronyms, SCOTUS), would be unlikely, if not impossible. An appeal to SCOTUS would have to involve a question of federal law or a federal/constitutional right, and really the only one I can think of here would be the right to free speech, which would be asserted by Jim Boeheim himself. But he would only appeal if there was a judgment/verdict against him, which wouldn't be until further proceedings in Onondaga Supreme Court.

So my official prediction is that we likely haven't seen the end of this case, because of course. This case is like the fembot in Austin Powers: The Spy Who Shagged Me -- Robin Swallows -- who was stabbed, shot multiple times, bazookaed out a window, fell several stories to the ground, and still wouldn't die.

And with that, I think I'm all done here.

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