Davis v Boeheim
Annotate this CaseDecided on February 10, 2012
Supreme Court, New York County
Robert Davis and Michael Lang, Plaintiffs,
against
James Boeheim and Syracuse University, Defendants.
113967/2011
DEBEVOISE & PLIMPTON LLP
Mary Jo White
Mary Beth Hogan
Helen V. Cantwell
Andrew M. Levine
Attorneys for Syracuse University
CUTI HECKER WANG LLP
Mariann Meier Wang
Julie B. Ehrlich
Alexander Goldenberg
ALLRED, MAROKO & GOLDBERG
Gloria Allred
Nathan Goldberg
Attorneys for plaintiffs Robert Davis and Michael Lang
DINSMORE & SHOHL LLP
C. James Zeszutek
HANCOCK ESTABROOK, LLP
Timothy P. Murphy
Attorneys for defendant James Boeheim
Anil C. Singh, J.
Plaintiffs commenced this defamation action against defendants James Boeheim and Syracuse University by filing a summons and verified complaint on December 13, 2011. Defendants have moved in Onondaga County for a change of venue on the grounds that venue is misplaced in New York County. This motion is to be heard on February 21, 2012. Defendants have also filed a motion before this Court, returnable March 14, 2012, to dismiss the action pursuant to CPLR 3211(a)(7), on the grounds that the alleged defamatory language was a non-actionable expression of defendant's opinion.
Plaintiffs move by order to show cause for an order lifting the automatic stay pursuant to CPLR 3214(b) and allowing them to conduct "limited" discovery in aid of their response to defendants' motion to transfer venue from this Court to the Onondaga County Supreme Court pursuant to CPLR 510 and 511. Defendants oppose the application.
BACKGROUND
Plaintiffs Robert Davis and Michael Lang allege that they suffered years of sexual molestation at the hands of Bernie Fine, an associate head basketball coach at Syracuse University. Plaintiffs made a public announcement that defendant James Boeheim, head coach of the basketball team for thirty-five years, knew or should have known that Fine engaged in improper sexual conduct with young boys, and that Boeheim did little or nothing to stop Fine's conduct.
The complaint alleges that when Boeheim spoke with the press, he did so in furtherance of his employment duties, and in his official capacity as the head coach of Syracuse's basketball team; that Boeheim's statements to ESPN, the Syracuse Post-Standard newspaper, and the New York Times contained false statements about plaintiffs, including that plaintiffs' accusations against Fine were lies and that plaintiffs were motivated by money; and that Boeheim made the statements knowing they were false or recklessly disregarding their truth or falsity.
Although plaintiff Robert Davis resides in Onondaga County, and plaintiff Michael Lang resides in Oswego County, venue is placed in New York County.
On December 30, 2011, defendants served plaintiffs with a demand for change of venue as of right to Onondaga County pursuant to CPLR 511(a) and (b), on the grounds that no party resides in New York County. In response, plaintiffs asserted that New York County is the proper venue for this matter because it would be impossible for them to get an impartial trial in Onondaga County.
DISCUSSION
In support of their motion to lift the stay, plaintiff Robert Davis executed a sworn affidavit alleging that, for years, Bernie Fine's wife, Laurie Fine, had sexual relationships with basketball team players; that Bernie Fine — Boeheim's associate head coach and the man in charge of recruiting players — knew that Laurie Fine was having inappropriate sexual relations with players and he never appeared to object to it; and that it is difficult, if not impossible, to [*2]imagine that Boeheim did not hear or learn from the players themselves or others that Laurie Fine had such repeated inappropriate sexual relations. Davis maintains that he has "reason to believe that at least one player and perhaps more of them currently lives in New York City" (Davis Aff., para. 16).
Plaintiffs are seeking permission from this Court to conduct discovery in the form of interrogatories tailored to identify and locate key non-party witnesses, a fact the plaintiffs contend is relevant to the issue of venue. Specifically, plaintiffs seek responses to the following interrogatories:
the name, address and telephone number of every individual who ever had — or may have had — contact of a sexual nature with Bernie and/or Laurie Fine;
the name, address and telephone number of every individual who ever complained, suggested or stated that Bernie and/or Laurie Fine had contact of a sexual nature with boys, teenagers or young men, including ball-boys and/or basketball players, as well as the name of the person who had such a relationship;
the name, address and telephone number of any individual who ever complained, suggested or stated that the wife of a basketball coach, staff member, or assistant coach had sexual contact with boys, teenagers or young men, including players; and
the names, addresses and telephone numbers of the players on the Syracuse University men's basketball team from 1992 through 1997.
(Affirmation of Mariann Meier Wang, exhibit 9).
CPLR 3101(a) provides that there shall be "full disclosure of all matters material and necessary in the prosecution or defense of an action...." The terms "material and necessary" are to be
interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason.
(Allen v. Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]).
Here, discovery is not warranted because the disclosure is neither material nor necessary to the motion to change venue. Defendants seek to transfer venue as of right on the ground that venue is not proper in New York County because no party resides here. Where non-party witnesses reside has no bearing on this issue.
At oral argument, plaintiffs stated that the discovery is necessary in support of a cross-motion they intend to make seeking a discretionary change of venue. Plaintiffs have not shown a [*3]need for discovery for a change of venue pursuant to CPLR 510(3) based on the convenience of non-party material witnesses. Plaintiffs' sweeping discovery request appears to be based on pure speculation. Plaintiffs have not stated any basis whatsoever why they believe non-party witnesses may reside in New York County. Rather, plaintiffs appear to be casting a wide net in the hope of finding a witness in New York County no matter how tenuous the connection is with this matter. In short, plaintiffs do not have a good faith basis for the discovery request relating to the issue of venue.
Plaintiffs request for discovery pertaining to Laurie Fine's alleged inappropriate sexual relations with multiple players is denied. The allegations are not raised in the complaint, and appear for the first time in Davis's affidavit submitted in support of the motion. Plaintiffs argue that Boeheim chose to ignore Laurie Fine's alleged behavior with Syracuse basketball players. What Boeheim knew, or may have known, about the personal life of the assistant coach's wife has no bearing on whether Boeheim's public remarks in defense of the assistant coach were libelous. This discovery is not material or necessary to the issue of a change of venue for the convenience of non-party material witnesses.
For the above reasons, plaintiffs' motion to lift the stay and conduct discovery is hereby denied.
The foregoing constitutes the decision and order of the court.
Date: February 10, 2012______________________________
New York, New YorkAnil C. Singh
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