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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
CHRIS SHERIDAN,
Plaintiff,
- against -
PETER VECSEY and NYP HOLDINGS, INC.,
Defendants.
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Index No. 150196/2011

MEMORANDUM OF LAW IN SUPPORT OF
DEFENDANTS MOTION TO DISMISS THE COMPLAINT

DAVIS WRIGHT TREMAINE LLP
Laura R. Handman
Camille Calman
1633 Broadway, 27th Floor
New York, NY 10019
(212) 483-8230
Attorneys for Defendants Peter Vecsey
and NYP Holdings, Inc.
FILED: NEW YORK COUNTY CLERK 08/31/2011
INDEX NO. 150196/2011
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 08/31/2011
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TABLE OF CONTENTS

TABLE OF CONTENTS................................................................................................................. i
TABLE OF AUTHORITIES .......................................................................................................... ii
PRELIMINARY STATEMENT..................................................................................................... 1
FACTS .................................................................................................................................... 4
A. The Parties.............................................................................................................................. 4
B. The Articles............................................................................................................................ 4
1. Sheridan s December 12, 2010 Article ...................................................................... 4
2. Vecsey s December 14, 2010 Column....................................................................... 6
3. Carmelo Anthony Traded to the Knicks .................................................................... 8
4. The Complaint............................................................................................................ 8
ARGUMENT.................................................................................................................................. 9
POINT I COURTS ROUTINELY GRANT MOTIONS TO DISMISS LIBEL
CLAIMS ON GROUNDS THAT THE STATEMENTS ARE
PROTECTED OPINION........................................................................................... 9
POINT II PLAINTIFF s claim must be dismissed because vecsey s COLUMN is
non-actionable opinion............................................................................................. 11
A. Statements of Opinion Are Constitutionally Protected Under United States
and New York Law.................................................................................................. 11
B. Vecsey s Column, Considered as a Whole and in Context, Makes Clear That
The Challenged Statements Are Opinion................................................................. 14
1. The Sports Pages Are a Particularly Opinionated Environment ..................... 15
2. Columns Are More Likely Than Articles to Contain Opinionated Writing ... 16
3. The Column s Sarcastic and Hyperbolic Tone Signals That It Is Opinion..... 18
C. Vecsey s Column Is an Expression of Pure Opinion............................................... 21
D. Vecsey s Expressions of Disbelief Do Not Transform His Column Into a
Factual Statement ..................................................................................................... 23
E. NYP Holdings, Inc. Cannot Be Liable for Vecsey s Protected Opinions................ 27
CONCLUSION............................................................................................................................. 27
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TABLE OF AUTHORITIES

Page(s)
CASES
600 W. 115th St. Corp. v. Von Gutfeld,
80 N.Y.2d 130, 589 N.Y.S.2d 825 (1992) ........................................................................ 12, 26
Arthur v. Offit,
No. 01:09-cv-1398, 2010 WL 883745 (E.D. Va. Mar 10, 2010)............................................ 24
Bentkowski v. Scene Magazine,
637 F.3d 689 (6th Cir. 2011)................................................................................................... 18
Brian v. Richardson,
87 N.Y.2d 46, 637 N.Y.S.2d 347 (1995) ......................................................................... passim
Brooks v. Paige,
773 P.2d 1098 (Colo. Ct. App.1988), cert. denied, (Colo. May 30, 1989)............................. 15
CACI Premier Technology, Inc. v. Rhodes,
536 F.3d 280 (4th Cir. 2008)................................................................................................... 19
Dancer v. Bergman,
246 A.D.2d 573, 668 N.Y.S.2d 213 (2d Dep t 1998) ............................................................. 18
Fortson v. Colangelo,
434 F. Supp. 2d 1369 (S.D. Fla. 2006) ......................................................................... 4, 17, 19
Galasso v. Saltzman,
42 A.D.3d 310, 839 N.Y.S.2d 731 (1st Dep t 2007)............................................................... 14
Gardner v. Martino,
563 F.3d 981 (9th Cir. 2009)................................................................................................... 24
Gertz v. Robert Welch, Inc.,
418 U.S. 323 (1974) ................................................................................................................ 11
Goetz v. Kuntsler,
164 Misc.2d 557, 625 N.Y.S.2d 447 (Sup. Ct. N.Y. Cty. 1995)............................................. 26
Gross v. N.Y. Times,
82 N.Y.2d 146, 603 N.Y.S.2d 813 (1993) ........................................................................ 12, 23
Guerrero v Carva,
10 A.D.3d 105, 779 N.Y.S.2d 12 (1st Dep t 2004)................................................................. 13
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Henderson v. Times Mirror,
669 F. Supp. 356 (D. Colo. 1987), aff d, 876 F.2d 108 (10th Cir. 1989) ............................... 15
Hobbs v. Imus,
266 A.D.2d 36, 698 N.Y.S.2d 25 (1st Dep t 1999)................................................................. 14
Hunter v. Hartman,
545 N.W.2d 699 (Minn. Ct. App. 1996) ........................................................................... 15, 16
Immuno AG v. Moor-Jankowski,
77 N.Y.2d 235, 566 N.Y.S.2d 906 (1991) .................................................................. 12, 23, 24
Karaduman v. Newsday Inc.,
51 N.Y.2d 531, 435 N.Y.S.2d 556 (1980) ........................................................................ 10, 27
Lane v. Random House, Inc.,
985 F. Supp. 141 (D.D.C. 1995) ............................................................................................. 27
Mann v. Abel,
10 N.Y.3d 271, 856 N.Y.S.2d 31 (2008) ......................................................................... passim
Milkovich v. Lorain Journal Co.,
497 U.S. 1 (1990) ............................................................................................................. passim
Moldea v. New York Times Co.,
22 F.3d 310 (D.C. Cir. 1994) ...................................................................................... 15, 16, 26
Mr. Chow of N.Y. v. Ste. Jour Azur S.A.,
759 F.2d 219 (2d Cir.1985)..................................................................................................... 18
New York Times v. Sullivan,
376 U.S. 254 (1964) ................................................................................................................ 16
Parks v. Steinbrenner,
131 A.D.2d 60, 520 N.Y.S.2d 374 (1st Dep t 1987)................................................... 10, 14, 23
Phantom Touring v. Affiliated Publications,
953 F.2d 724 (1st Cir. 1992) ................................................................................................... 16
Rashada v. New York Post,
No. 100776/2011, slip op. at 6 (Sup. Ct. N.Y. Cty. filed Aug. 17, 2011)............................... 10
Redeye Grill, L.P. v. Restaurant Opportunities Center of New York,
13 Misc.3d 1212(A), 824 N.Y.S.2d 758 (Sup. Ct. N.Y. Cty. 2006) ....................................... 14
Riley v. Moyed,
529 A.2d 248 (Del. 1987)........................................................................................................ 16
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Rinaldi v. Holt, Rinehart & Winston, Inc.,
42 N.Y.2d 369, 397 N.Y.S.2d 943 (1977) .................................................................. 11, 12, 13
Rojas v. Debevoise & Plimpton,
167 Misc.2d 451, 634 N.Y.S.2d 358 (Sup. Ct. N.Y. Cty. 1995)............................................. 25
Salvatore v. Kumar,
45 A.D.3d 560, 845 N.Y.S.2d 384 (2d Dep t 2007) ........................................................... 9, 11
Sandals Resorts Int l Ltd. v. Google, Inc.,
86 A.D.3d 32, 925 N.Y.S.2d 407 (2011) .................................................................... 10, 13, 24
Scott v. News-Herald,
496 N.E.2d 699 (Ohio 1986)................................................................................................... 15
Sharpton v. Giuliani,
Index No. 108045/97, N.Y.L.J. Oct. 16, 1997 (Sup. Ct. N.Y. Cty. 1997) .............................. 26
Shchegol v. Rabinovich,
10 Misc.3d 1057(A), 814 N.Y.S.2d 565 (Sup. Ct. N.Y. Cty. 2005), aff d, 30 A.D.3d
311, 819 N.Y.S.2d 224 (1st Dep t 2006) ................................................................................ 24
Shiamili v. Real Estate Group of New York, Inc.,
17 N.Y. 3d 281, 2011 WL 2313818 (June 14, 2011)................................................................ 9
Standing Comm. on Discipline of U.S. Dist. Court for Cent. Dist. of Cal. v. Yagman,
55 F.3d 1430 (9th Cir.1995).................................................................................................... 19
Steinhilber v. Alphonse,
68 N.Y.2d 283, 508 N.Y.S.2d 901 (1986) ....................................................................... passim
Time, Inc. v. Johnston,
448 F.2d 378 (4th Cir. 1971)............................................................................................. 15, 21
Versaci v. Richie,
30 A.D.3d 648, 815 N.Y.S.2d 350 (3d Dep t 2006) ......................................................... 19, 20
Washington Post Co. v. Keogh,
365 F.2d 965 (D.C. Cir. 1966) ................................................................................................ 10
Washington v. Smith,
893 F. Supp. 60 (D.D.C.1995), aff d, 80 F.3d 555 (D.C. Cir. 1996) ...................................... 15
Zion v. NYP Holdings, Inc.,
18 A.D.3d 376, 795 N.Y.S.2d 238 (1st Dep t 2005)............................................................... 10
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Zion v. NYP Holdings, Inc.,
6 Misc.3d 1027(A), 800 N.Y.S.2d 359 (Sup. Ct. N.Y. Cty. 2004), aff d, 18 A.D.3d
376, 795 N.Y.S.2d 238 (1st Dep t 2005) .......................................................................... 21, 25
STATUTES
CPLR 3211(a)(7)...................................................................................................................... 1, 9
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Defendants Peter Vecsey and NYP Holdings, Inc. ( NYP Holdings ) submit this
memorandum of law in support of their motion for an order pursuant to CPLR 3211(a)(7) to
dismiss the Complaint with prejudice on the ground that the pleading fails to state a cause of
action.
PRELIMINARY STATEMENT

Carmelo Anthony, nicknamed Melo, is a successful and high-scoring professional
basketball player with the National Basketball Association (NBA). In late 2010, Anthony was
nearing the end of his contract term with the Denver Nuggets. Sportswriters and basketball fans
began speculating about whether Anthony would sign a contract extension with the Nuggets,
declare free agency, or be traded to another team. In the New York area, excited fans and
journalists conjectured that Anthony might be traded to one of the local NBA teams, such as the
New York Knicks or the New Jersey Nets.
On December 12, 2010, plaintiff Chris Sheridan, a journalist for ESPN, wrote an article
for ESPN s website at www.espn.com that cited an anonymous source as saying that Anthony
had given the Nuggets an ultimatum that he would not sign his contract extension unless he was
traded to the Knicks essentially, forcing the Nuggets to trade him to the Knicks in order to
avoid losing him to free agency. Sheridan wrote that the question of the Nuggets-Knicks trade
was now more of a when than an if and discussed particular players whom the Knicks and
Nuggets had discussed or might be interested in discussing.
This libel action arises out of a sports column that defendant Peter Vecsey, a basketball
columnist for the New York Post, wrote in response to Sheridan s December 12, 2010 article.
Vecsey, a sportswriter with 40 years of experience, writes a column called Hoop du Jour that
defendant NYP Holdings publishes three times a week in the New York Post during the
professional basketball season. Vecsey was of the opinion that the Knicks were in no position to
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trade for Anthony and that another team, such as the Nets, would acquire Anthony s contract.
Accordingly, Vecsey responded to Sheridan s story with a December 14, 2010 column titled
Knicks Don t Have Best Shot at Melo. In a sarcastic and mocking tone, laced with figurative
language and hyperbole, Vecsey responded to Sheridan s article with disbelief. He took to task
journalists who relied on rumors and unreliable sources, and criticized ESPN as a nitwork
because it took credit for one correspondent s scoop while ignoring that the majority of its
correspondents got that same story wrong. He grouped Sheridan with those scooped journalists
for relying on fountains of misinformation, sources who frequently played make-believe
with Sheridan. He wrote that Sheridan s story about Anthony s supposed ultimatum was a fairy
tale and such a fake he needs to be called out, and that the ultimatum Sheridan had described
never happened. He wrote that Sheridan s assertion that the Knicks and Nuggets had
discussed particular players was Sheer nonsense! Every last word! Vecsey did not list any
sources who had told him that Sheridan s story was wrong, but he did list the reasons that he
believed that the Nets were better positioned to trade for Anthony than the Knicks were
including the Knicks lack of financial wherewithal to acquire a first-round draft pick, and the
fact that the players that they Knicks had to offer would be unnecessary to the Nuggets, who had
those positions covered. Towards the end of the article, Vecsey wrote, Even Sheridan s
invented informants, I suspect, might be able to smell the aroma of a potential Nets deal brewing
once Wednesday rolls around and summer free-agent signees are allowed to be traded. The gist
of the article was Vecsey s opinion that journalists in general are too reliant on rumor and
uninformed sources and thus they get stories wrong, and specifically that Sheridan had done so
in this instance.
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Whether Sheridan was right or wrong about Anthony s alleged ultimatum and, indeed,
the next day it was reported that Anthony denied any such ultimatum (see Facts section B(1),
infra) Sheridan did predict what ultimately came to pass. More than two months later, on
February 22, 2011, a deal came together, literally at the eleventh hour, and the Nuggets traded
Anthony to the Knicks. Rather than use the considerable resources at his disposal as a journalist,
such as his own column or the public forum of EPSN s cable network and website, to critically
respond to Vecsey s comments, Sheridan chose to bring a libel suit.
Cherry-picking certain language from the Vecsey column, particularly the words
invented informants, Sheridan asserts that the column defames him by leading readers to
believe that Sheridan fabricated news in derogation of all known journalistic principles. In
fact, the Vecsey column gives no such impression when read as a whole and in the context of
Vecsey s sports column (with its hyperbolic language), the sports pages as a whole (traditionally
filled with loose and figurative language), and the then-ongoing, passionate debate about which
team Anthony would play for. No reasonable reader could take the column as a whole to mean
that Sheridan had fabricated his article. Vecsey s skepticism about Sheridan s account even
assuming arguendo individual statements could, in isolation, be read to state or imply particular
facts are classic examples of non-actionable opinion based on fully-revealed facts, and are
entitled to the broad protection that the State of New York and the First Amendment provide to
opinions.
Dismissing a libel claim arising out of another Vecsey Hoop du Jour

column, a federal
court observed: Vecsey invoked phrases of some vividness, used them in a figurative, not
literal, sense [and they] used a form of hyperbole typical in sports parlance. . . . To foreclose the
use of hyperbole, under threat of civil liability, would condemn [sports commentary] to an arid,
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desiccated recital of bare facts. Such a result would ill-serve the interests of the First
Amendment in assur[ing] [the] unfettered interchange of ideas among the American people.
Fortson v. Colangelo, 434 F. Supp. 2d 1369, 1385 (S.D. Fla. 2006) (citations omitted). The
irony that Sheridan should be seeking such a result only underscores that this sportswriters spat
does not belong in a court of law, and Sheridan s Complaint should be dismissed in its entirety
with prejudice for failure to state a claim as a matter of law.
FACTS

A. The Parties
Defendant NYP Holdings is the publisher of the New York Post, a newspaper that serves
the New York metropolitan area and is published seven days a week. Founded by Alexander
Hamilton in 1801, the Post is the 13th-oldest newspaper published in the United States and the
oldest continuously-published daily newspaper in the country.
Defendant Peter Vecsey is the National Basketball Association ( NBA ) columnist for
the New York Post. He has been a professional sports journalist for more than forty years.
During the NBA season, the Post publishes Hoop du Jour, a thrice-weekly column written by
Vecsey, on Tuesdays, Fridays, and Sundays. Vecsey received the Curt Gowdy Media Award
from the Naismith Memorial Basketball Hall of Fame and was inducted into the Hall of Fame in
2009.
Plaintiff Chris Sheridan is a professional sportswriter who covers the NBA for ESPN, a
television cable network providing sports coverage and programming.
B. The Articles
1. Sheridan s December 12, 2010 Article
In December 2010, Carmelo Anthony, a very talented player and prolific scorer for the
Denver Nuggets, was nearing the end of his contract term with the Nuggets. Sportswriters were
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speculating about whether Anthony would sign a contract extension, whether he would instead
opt to be a free agent, or whether the Nuggets would trade him to another NBA team. New York
basketball fans and writers were particularly excited about the prospect of Anthony playing for
one of the local NBA teams.
On December 12, 2010, Sheridan published an article on ESPN s website at
www.espn.com headlined Carmelo Extension Hinges on N.Y. Trade. Exhibit C to the
Affirmation of Laura Handman ( Handman Aff. ). Citing an anonymous source who allegedly
had been privy to trade talks, Sheridan wrote that Anthony has told the Denver Nuggets he will
not sign the nearly $65 million contract extension he has been offered unless he is traded to the
New York Knicks. Sheridan said the source had used the most definitive language possible.
According to Sheridan, who cited the same anonymous source, even if other franchises made
better offers, Anthony would not agree to sign anywhere long-term unless he is dealt to New
York. Sheridan described the question of whether Anthony would be traded to the Knicks as
more of a when than an if. The article listed several players whom the Knicks and the
Nuggets either had discussed or might be interested in trading.
The day after Sheridan s article appeared but the day before Vecsey s column, on
December 13, 2010, FanHouse, a sports website owned by AOL, published an interview by the
Nuggets beat reporter, Chris Tomasson, with Carmelo Anthony himself, headlined Carmelo
Doesn t Believe Trade Imminent, Denies Ultimatum About Knicks.
http://www.aolnews.com/2010/12/13/carmelo-anthony-knicks-trade/. In that interview, Anthony
categorically denied on the record giving any ultimatum to the Nuggets about playing for the
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Knicks. The article cited anonymous sources close to the situation who also stated that
Anthony had not made the statement to the Nuggets that Sheridan claimed he had made.
1

2. Vecsey s December 14, 2010 Column
On December 14, 2010, the New York Post published a column written by Vecsey and
headlined Knicks Don t Have Best Shot at Melo. The column, which is attached as Exhibit B
to the Handman Affirmation, began with a paragraph bemoaning the prevalence of
unsubstantiated rumors in sports journalism.
Considering how many methods of messaging there are these days,
in addition to their split-second transmission, you d think we d be
better informed. Instead, the preponderance of what s dispersed is
artificial chatter that clearly nobody is held accountable for
because the next day new unsubstantiated rumors are circulated by
hoopshype.com and other such feral sites.
2
The column went on to single out for praise two ESPN journalists who had scooped other
reporters by breaking important basketball news, and to criticize 20 or so other ESPN
journalists for relying on imaginary or spurious sources for their reporting on where LeBron
James would decide to play in 2010, and ESPN for taking credit for the scoops while failing to
acknowledge the other correspondents incorrect stories. Vecsey referred disparagingly to ESPN
as a nitwork, a word that Vecsey often uses in his columns that combines network and
nitwit.
Vecsey then criticized Sheridan s December 12, 2010 article, referring generally to his
sources as fountains of misinformation who frequently play make-believe with Sheridan.
Vecsey described Sheridan s description of Anthony s alleged ultimatum as a fairy tale and


1
Despite the report s flat contradiction of Sheridan s story, FanHouse has apparently not been
sued.
2
Hoopshype.com is a website that is not associated with any of the parties or with ESPN.
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such a fake that [Sheridan] needs to be called out. According to Vecsey, it was an
impossibility that Anthony would play for the Knicks unless he opted to become a free agent.
Vecsey wrote that the ultimatum that Sheridan described never happened and that it was not
the only part of [Sheridan s] yarn that never happened.

Vecsey then wrote that Sheridan had been claiming for months that the Nuggets and
Knicks were discussing trading specific players, and that Sheridan had recklessly throw[n] out
the names of particular players whom Vecsey enumerated in the column. Vecsey described
Sheridan s reporting on these alleged trade talks as [s]heer nonsense! Every last word!

Vecsey explained the reasons for his disbelief of Sheridan s article:

he believed that the players the Knicks might offer would be superfluous to the
Nuggets, who already had players in those positions;

he did not believe that the Knicks had the extraneous wherewithal to acquire a
#1 draft pick, which he believed the Nuggets would want as part of a trade
package because they would need to rebuild their core through the draft if they
no longer had Anthony;

he believed that a trade with the New Jersey Nets would be more likely than a
trade with the Knicks, if the Nets would improve on their initial offer and refine
the recruiting pitch that had failed to work on LeBron James.
Vecsey wrote that his own decaying instincts were alerting him that the Anthony trade
would occur sooner than the February 24th deadline, before the new year, possibly prior to
Christmas. He wrote that there was a chance that Anthony would sign the contract extension
with the Knicks, but that it was more likely that the Nuggets were waiting for a better offer from
the Nets, and that [e]ven Sheridan s invented informants, I suspect, might become aware of a
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potential Nets deal after the following Wednesday, when summer free-agent signees could be
traded. That deal could only happen, according to Vecsey, if the Nets Russian and rap
congregation could figure out how to further the fervent recruiting pitch that left LeBron
limp.

3. Carmelo Anthony Traded to the Knicks
On February 22, 2011, the Denver Nuggets ultimately traded Carmelo Anthony to the
New York Knicks

a deal that only came together late Monday, despite the stubborn
persistence of the Nets, for what the New York Times described as a staggering price, giving
up four rotation players, all of them 26 or younger, three draft picks and $6 million in cash.
Beck, Knicks Go for Greatness with Anthony, New York Times,
http://www.nytimes.com/2011/02/23/sports/basketball/23knicks.html.
4. The Complaint
On June 20, 2011, Sheridan served a verified complaint and summons on NYP Holdings,
Inc., and on July 20, 2011, Vecsey s attorneys accepted service of process on his behalf. The
complaint contains one cause of action for libel per se. Sheridan alleges that Vecsey s December
14, 2010 column contains false statements that were specifically designed to bring Sheridan ill
repute in his profession and that the column has caused damage to his personal and professional
reputation by accusing him of fabricating his story. By agreement, Defendants time to respond
was extended to and including August 31, 2011.
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ARGUMENT

POINT I
COURTS ROUTINELY GRANT MOTIONS
TO DISMISS LIBEL CLAIMS ON GROUNDS THAT
THE STATEMENTS ARE PROTECTED OPINION
On a motion to dismiss a complaint for failure to state a cause of action under CPLR
3211(a)(7), a court must determine whether . . . factual allegations are discerned which taken
together manifest any cause of action cognizable at law. Salvatore v. Kumar, 45 A.D.3d 560,
562-63, 845 N.Y.S.2d 384, 388 (2d Dep t 2007) (citation and internal quotation marks omitted)
(dismissing defamation claims under CPLR 3211(a)(7)). While allegations in the complaint are
to be accepted as true . . ., allegations consisting of bare legal conclusions as well as factual
claims flatly contradicted by documentary evidence are not entitled to any such consideration.
Id. (citations and internal quotation marks omitted).
Under this standard, courts in this state, including in the First Department, routinely
dismiss libel claims on pre-answer motions to dismiss, particularly when as here the
challenged statements are non-actionable opinion as a matter of law. E.g., Shiamili v. Real
Estate Group of New York, Inc., 17 N.Y. 3d 281, 2011 WL 2313818 (June 14, 2011) (affirming
dismissal, no reasonable reader could have concluded the reference to plaintiff as King of the
Token Jews was conveying facts about the plaintiff ) (citations omitted); Mann v. Abel, 10
N.Y.3d 271, 275, 856 N.Y.S.2d 31, 32 (2008) (reversing lower courts, dismissed defamation
claim involving statements that plaintiff was a political hatchet Mann who pulls the strings
and might be leading the Town . . . to destruction because they were opinion); Brian v.
Richardson, 87 N.Y.2d 46, 637 N.Y.S.2d 347 (1995) (affirming dismissal of defamation claim
involving statements that plaintiff was linked to a scheme involving murder, stolen software and
lucrative government contracts because they were opinion); Steinhilber v. Alphonse, 68 N.Y.2d
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283, 508 N.Y.S.2d 901 (1986) (affirming dismissal of defamation claim involving statements
that plaintiff was a scab and lacked talent, ambition and initiative because they were
opinion); Sandals Resorts Int l Ltd. v. Google, Inc., 86 A.D.3d 32, 925 N.Y.S.2d 407 (2011)
(affirming dismissal of defamation claim involving statements that plaintiff relegated Jamaicans
to menial, low-paying jobs because they were opinion); Zion v. NYP Holdings, Inc., 18 A.D.3d
376, 795 N.Y.S.2d 238 (1st Dep t 2005) (affirming dismissal of defamation claim involving
statements that plaintiff news columnist had fabricated premise of one of his columns because
they were opinion); Parks v. Steinbrenner, 131 A.D.2d 60, 65-66, 520 N.Y.S.2d 374, 377-78 (1st
Dep t 1987) (dismissing defamation claim against major league baseball team owner for issuing
press release criticizing plaintiff as not a capable umpire, who doesn t measure up and
misjudges plays because statements were opinion); Rashada v. New York Post, No.
100776/2011, slip op. at 6 (Sup. Ct. N.Y. Cty. filed Aug. 17, 2011) (dismissing defamation claim
involving column that questioned connection between former inmates accused of bombing plot
and imams at a mosque they all attended because it expressed the author s opinion).
Because frivolous libel suits threaten the robust exchange of ideas protected by the First
Amendment and the New York State Constitution, the New York Court of Appeals has
emphasized the particular importance of disposing of meritless defamation cases at an early point
in litigation, since the [t]hreat of being put to the defense of a lawsuit may be as chilling to the
exercise of First Amendment freedoms as fear of the outcome of the lawsuit itself. Karaduman
v. Newsday Inc., 51 N.Y.2d 531, 545, 435 N.Y.S.2d 556, 563 (1980) (quoting Washington Post
Co. v. Keogh, 365 F.2d 965, 968 (D.C. Cir. 1966)).
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POINT II
PLAINTIFF S CLAIM MUST BE DISMISSED BECAUSE
VECSEY S COLUMN IS NON-ACTIONABLE OPINION
A. Statements of Opinion Are Constitutionally Protected Under United States and New
York Law
For the purpose of a motion to dismiss, this court must accept the factual allegations in
plaintiff s complaint as true. Salvatore v. Kumar, 45 A.D.3d at 562-63, 845 N.Y.S.2d at 388.
Even by that standard, however, Sheridan s complaint fails to state a cause of action because, as
a matter of law, the challenged statements on their face are statements of opinion.
It is black-letter law that only false statements of fact can be defamatory; statements of
opinion are protected by the First Amendment. Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-
40 (1974) ( Under the First Amendment, there is no such thing as a false idea. However
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. ); Steinhilber, 68 N.Y.2d at 289, 508 N.Y.S.2d
at 903 ( An expression of pure opinion is not actionable. It receives the Federal constitutional
protection accorded to the expression of ideas, no matter how vituperative or unreasonable it
may be. ); Rinaldi v. Holt, Rinehart & Winston, Inc., 42 N.Y.2d 369, 380, 397 N.Y.S.2d 943,
950 (1977) ( Erroneous opinions are inevitably put forward in free debate but even the erroneous
opinion must be protected so that debate on public issues may remain robust and unfettered and
concerned individuals may have the necessary freedom to speak their conscience. ). In 1990, the
U.S. Supreme Court clarified that there is no separate privilege for opinion, but that rhetorical
hyperbole and statements that cannot reasonably be read as stating actual facts about an
individual continue to be protected as opinion. Milkovich v. Lorain Journal Co., 497 U.S. 1, 20
(1990).
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New York law provides broader protection for statements of opinion than the First
Amendment does. Immuno AG v. Moor-Jankowski, 77 N.Y.2d 235, 249, 566 N.Y.S.2d 906, 914
(1991) ( [T]he protection afforded by the guarantees of free press and speech in the New York
Constitution is often broader than the minimum required by the Federal Constitution ).
Whether a particular statement is fact or opinion under New York law is a matter of law to be
determined by the court. Mann, 10 N.Y.3d at 276, 857 N.Y.S.2d at 32 (citing Rinaldi, 42 N.Y.2d
at 381, 397 N.Y.S.2d at 950). The Court of Appeals has embraced a test for determining what
constitutes nonactionable statement of opinion that is more flexible and is decidedly more
protective [than the First Amendment] of the cherished constitutional guarantee of free
speech. Gross v. N.Y. Times, 82 N.Y.2d 146, 152, 603 N.Y.S.2d 813, 817 (1993) (citations
omitted). The reason that New York courts apply this test is to avoid the fine parsing . . . that
may now be required under Federal law after the Milkovich decision. 600 W. 115th St. Corp. v.
Von Gutfeld, 80 N.Y.2d 130, 145, 589 N.Y.S.2d 825, 833 (1992) (citing Immuno AG, 77 N.Y.2d
at 255, 566 N.Y.S.2d at 917).
The Court of Appeals articulated the standard for distinguishing opinion from fact in
Steinhilber, 68 N.Y.2d at 290, 508 N.Y.S.2d at 904: the question must be answered on the basis
of what the average person hearing or reading the communication would take it to mean. A
media defendant surely has no license to misportray facts; false statements are actionable when
they would be perceived as factual by the reasonable person. But statements must first be viewed
in their context in order for courts to determine whether a reasonable person would view them as
expressing or implying any facts. Immuno AG, 77 N.Y.2d at 254, 566 N.Y.S.2d at 917
(emphasis added). In making this inquiry, a court considers:
(1) whether the specific language in issue has a precise meaning
that is readily understood; . . . (2) whether the statements are
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capable of being true or false; and . . . (3) whether either the full
context of the communication in which the statements appear 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 facts.
Brian, 87 N.Y.2d at 51, 637 N.Y.S.2d at 350.
The fact that a statement contains factual material does not necessarily render it a factual
statement for the purposes of this inquiry. Steinhilber, 68 N.Y.2d at 294, 508 N.Y.S.2d at 907
( [E]ven apparent statements of fact may assume the character of statements of opinion, and thus
be privileged, when made in public debate, heated labor dispute, or other circumstances in which
an audience may anticipate [the use] of epithets, fiery rhetoric or hyperbole. ) (citation and
internal quotation marks omitted); Sandals Resorts Int l Ltd., 86 A.D.3d at 41, 925 N.Y.S.2d at
414 ( The question of whether a defamation claim may be maintained does not turn on whether
the writing contains assertions that may be understood to state facts. ).

[S]ifting through a
communication for the purpose of isolating and identifying assertions of fact should not be the
central inquiry. Guerrero v Carva, 10 A.D.3d 105, 779 N.Y.S.2d 12 (1st Dep t 2004) (citation
omitted). Rather, the court must consider the publication as a whole and in the context in which
it was published. Mann, 10 N.Y.3d at 276, 857 N.Y.S.2d at 32-33 (citing Rinaldi, 42 N.Y.2d at
381, 397 N.Y.S.2d at 950).
Courts in New York distinguish between two types of opinion: pure opinion and
mixed opinion. A pure opinion, which is not actionable, is a statement of opinion which is
accompanied by a recitation of the facts on which it was based or one that does not imply that it
is based on undisclosed facts. Steinhilber, 68 N.Y.2d at 289, 508 N.Y.S.2d at 903. A mixed
opinion may be actionable if it implies that it is based upon facts which justify the opinion but
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are unknown to those reading or hearing it. Id. A statement that is based on false underlying
facts is also mixed opinion. Steinbrenner, 131 A.D.2d at 62-63, 520 N.Y.S.2d at 376.
Because courts determine as a threshold matter of law whether a statement is opinion,
New York courts frequently grant defendants motions to dismiss when they find the challenged
statements to be protected opinion. See, e.g., Brian, 87 N.Y.2d at 53-54, 637 N.Y.S.2d at 351-
352 (affirming dismissal of defamation claim because allegations in op-ed column that plaintiff
was linked to a government scheme to steal software as part of a larger conspiracy to delay
release of Iranian hostages were statements of opinion); Galasso v. Saltzman, 42 A.D.3d 310,
311, 839 N.Y.S.2d 731, 732 (1st Dep t 2007) (reversing trial court s denial of motion to dismiss
defamation claim because statements that plaintiff was a criminal who had committed
crimes against defendant s property, made to neighbors familiar with dispute, were non-
actionable opinion); Hobbs v. Imus, 266 A.D.2d 36, 698 N.Y.S.2d 25 (1st Dep t 1999) (affirming
dismissal of defamation claim because in context of shock talk radio show, statements were
clearly opinion, and were pure opinion because defendants recited the facts on which their
opinions were based); Redeye Grill, L.P. v. Restaurant Opportunities Center of New York, 13
Misc.3d 1212(A), at *1, 824 N.Y.S.2d 758 (Table) (Sup. Ct. N.Y. Cty. 2006) (granting motion to
dismiss because statement that restaurant employees were filing a lawsuit to recover over
$3,000,000 in stolen tips and overtime wages and to end unfair workplace practices was an
expression of opinion rather than an allegation that employer had committed larceny).
B. Vecsey s Column, Considered as a Whole and in Context, Makes Clear That The
Challenged Statements Are Opinion
Even if individual statements in Vecsey s column could be isolated and construed as
expressing a defamatory meaning, the column, considered as a whole and in context (as it must
be under New York law), can be read only as an exercise in opinion. Three particular aspects of
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the column signal to the reasonable reader that the column is non-actionable opinion: 1) it
appeared in the sports pages; 2) it was a column rather than an article; and 3) it was written in a
sarcastic, mocking tone using loose, figurative language.
1. The Sports Pages Are a Particularly Opinionated Environment
The challenged column appeared in the sports pages, a context that courts have
traditionally viewed as a haven for cajoling, invective and hyperbole. Scott v. News-Herald,
496 N.E.2d 699, 708 (Ohio 1986); see also Washington v. Smith, 893 F. Supp. 60, 64
(D.D.C.1995) (concluding that readers of a sports preview magazine understand that a
considerable portion of the magazine s content is subjective opinion ), aff d, 80 F.3d 555
(D.C. Cir. 1996); Hunter v. Hartman, 545 N.W.2d 699, 709 (Minn. Ct. App. 1996) ( [S]ports
commentary is marked not only by spontaneity, but by the often exaggerated and uncareful
exchange of vehemently held opinions; listeners understand the atmosphere of overstatement and
take such railings with a grain of salt. ) (quoting Moldea v. New York Times Co., 22 F.3d 310,
313 (D.C. Cir. 1994)); Brooks v. Paige, 773 P.2d 1098, 1101 (Colo. Ct. App.1988) (comments
made in context of live television broadcast of a local sports talk show . . . directed to a sports-
minded audience were not deliberate or reckless falsehoods, but merely rhetorical hyperbole ),
cert. denied, (Colo. May 30, 1989). As these cases and common sense suggest, readers of the
sports pages know to expect subjective opinion, rhetorical hyperbole, figurative language, and
criticism and even invective directed towards others. Time, Inc. v. Johnston, 448 F.2d 378, 379,
384 (4th Cir. 1971) (description of plaintiff basketball player as having been psychologically
destroyed by another player was a form of hyperbole typical in sports parlance ); Henderson
v. Times Mirror, 669 F. Supp. 356, 361 (D. Colo. 1987), aff d, 876 F.2d 108 (10th Cir. 1989)
( Certainly, the sports world is an environment where the kind of robust debate endorsed by the
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Supreme Court in New York Times v. Sullivan, 376 U.S. 254 (1964) has flourished. . . . The
world of Damon Runyon was not portrayed in the idiom of the church supper. ).
The fact that Vecsey s statement appeared in the sports pages does not by itself make the
statement opinion, but it was an important contextual clue signaling to the reader that Vecsey
was expressing his opinion, not stating facts. Hunter v. Hartman, 545 N.W.2d at 706 ( The
context of a remark, if one that would lead even the most careless listener to perceive the remark
as exaggerated or imaginative commentary, may make an otherwise defamatory comment
protected hyperbole. ). Here, there are additional indicia that further indicate to readers that
Vecsey s statements were opinion.
2. Columns Are More Likely Than Articles to Contain Opinionated Writing
Courts have traditionally found newspaper columns, such as the one Vecsey writes for
the New York Post, to be a context where readers expect to find opinion, not facts. See Phantom
Touring v. Affiliated Publications, 953 F.2d 724, 729 (1st Cir. 1992) (regularly-run theater
column was a type of article generally known to contain more opinionated writing than the
typical news report, and statement that producers of a production of The Phantom of the
Opera were marketing their production dishonestly, made in context of that column, was not
reasonably interpreted as stating actual facts ); Moldea v. New York Times Co., 22 F.3d 310,
313 (D.C. Cir. 1994) ( Sports columnists frequently offer intemperate denunciations of coaches
play-calling or strategy, and readers know this and presumably take such railings with a grain of
salt . . . . ); Riley v. Moyed, 529 A.2d 248, 252 (Del. 1987) ( Readers expect that commentators
such as [the defendant, a newspaper columnist] will make strong statements, sometimes phrased
in a polemical manner that would hardly be considered balanced or fair elsewhere as a news
reporting column ); Mann, 10 N.Y.3d at 276-77, 856 N.Y.S.2d at 33 (fact that column appeared
on opinion page of newspaper, while not dispositive, contributed to the context showing the
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challenged statement to be the author s opinion); Brian v. Richardson, 87 N.Y.2d at 53, 637
N.Y.S.2d 351 ( common expectation is that Op Ed columns will represent the viewpoints of
their authors and, as such, contain considerable hyperbole, speculation, diversified forms of
expression and opinion ).
In fact, in 2006, a federal court in Florida found Vecsey s Hoop du Jour column in the
New York Post to be exactly the type of context in which readers expect to find opinion:
The context in which the Vecsey statements were published is of
critical import. Fortson would have the Post held liable for
statements in Vecsey s Hoop du Jour Column (not in an article),
which appears regularly in the newspaper s sports section. The
Column holds itself out as containing subjective content and is a
vehicle through which basketball fans can read of Vecsey s
thoughts and opinions on the NBA. Because the challenged
statements were made through a medium that fosters debate on
basketball issues and that routinely uses figurative or hyperbolic
language, a reasonable reader is more likely to regard its content as
opinion and/or rhetorical hyperbole.
Fortson v. Colangelo, 434 F. Supp. 2d 1369, 1381 (S.D. Fla. 2006). In that case, the plaintiff a
professional basketball player

challenged a column in which Vecsey called the player thugged
out, a vacant lot, and a meaningless mass, and compared a flagrant foul that the player
committed to a mugging and attempted murder. The court found each of these statements,
in the context of Vecsey s column, to be Vecsey s opinion and/or rhetorical hyperbole.
Another clue that the column at issue in this case, unlike a news story, expressed opinion
rather than fact was the fact that Vecsey neither quoted nor cited any sources or interviews. In
his Complaint, plaintiff criticizes Vecsey for making no mention whatsoever of any sources, or
attribution, backing up Mr. Vecsey s accusations against Mr. Sheridan, Complaint 36 but
fails to recognize that a column is not a straight news story but generally reflects the author s
own thoughts and opinions. Vecsey set forth the basis for his belief why, as the headline
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underscored, the Knicks Don t Have Best Shot at Melo, while acknowledging there was a
chance it could happen, and for his disbelief in Anthony s supposed ultimatum, an ultimatum
that would have arguably undermined Anthony s negotiating leverage, and, not surprisingly, was
denied by Anthony the day after Sheridan s story appeared.
3. The Column s Sarcastic and Hyperbolic Tone Signals That It Is Opinion
An examination of the tone and apparent purpose of the publication, Mann, 10 N.Y.3d
at 276, further confirms that the Vecsey column was opinion. The overall tone of Vecsey s
column is one of sarcasm and mockery, clearly indicating to readers that Vecsey s language is
intended as rhetorical hyperbole. See Bentkowski v. Scene Magazine, 637 F.3d 689, 695 (6th Cir.
2011) (article that used simile, hyperbole, and other figurative language to express ideas and
was ridden with humor and sarcasm, such as saying that plaintiff had the political IQ of
Quiznos lettuce, was protected opinion because [t]he author makes no attempt to hide his bias,
and it would be unreasonable for a reader to view his comments as impartial reporting ); Mr.
Chow of N.Y. v. Ste. Jour Azur S.A., 759 F.2d 219, 226 (2d Cir.1985) (courts must . . . look at
the language itself to determine if it is used in a precise, literal manner or in a loose, figurative or
hyperbolic sense ); Dancer v. Bergman, 246 A.D.2d 573, 574, 668 N.Y.S.2d 213, 214 (2d Dep t
1998) (tenor of article, combined with its presence on the editorial page of sports newspaper,
alerted the reader that the piece contained expressions of opinion ).
Vecsey s column is full of colorful, loose, figurative, hyperbolic, and sarcastic language.
He characterizes websites that circulate rumors about basketball as feral sites. Exhibit B to
Handman Affirmation. He calls cable network ESPN as a nitwork a combination of
network and nitwit that Vecsey regularly uses in his column. Id. He refers to his own
sportswriting abilities as my decaying instincts. Id. Signaling his pervasive skepticism, he
claims that I don t believe anything I read. How could I when I scarcely believe half of what I
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write. Id. He describes the management of the New Jersey Nets as the Nets Russian and rap
congregation. Id. In this context, Vecsey s statements that Sheridan s article was a fairy tale,
a yarn, and such a fake he needs to be called out, and his references to fountains of
misinformation and invented informants, can be read only as rhetorical hyperbole. See
Fortson, 434 F. Supp 2d at 1378-79 ( Although rhetorically hyperbolic statements may at first
blush appear to be factual[,] . . . they cannot reasonably be interpreted as stating actual facts
about their target. ) (quoting Standing Comm. on Discipline of U.S. Dist. Court for Cent. Dist.
of Cal. v. Yagman, 55 F.3d 1430, 1438 (9th Cir.1995)); CACI Premier Technology, Inc. v.
Rhodes, 536 F.3d 280, 301-02 (4th Cir. 2008) (description of military contractors as hired
killers was clearly exaggerated rhetoric intended to spark the debate about the wisdom of the
use of contractors in Iraq, not a factual statement); Versaci v. Richie, 30 A.D.3d 648, 815
N.Y.S.2d 350 (3d Dep t 2006) (no reasonable reader would understand phrase so-called
lawyer, posted in context of rambling commentary on Internet message board, to be a factual
statement about plaintiff s status as an attorney). A reasonable reader is no more likely to
believe that Sheridan actually invented his sources than to believe that Vecsey truly disbelieves
half of what he writes or thinks his own instincts are decaying.

In addition, the column s purpose is evident throughout. Vecsey began by decrying the
apparent trend of many sports reporters relying on unsubstantiated rumors to produce
artificial chatter that clearly nobody is held accountable for. Exhibit B to Handman
Affirmation. He praised one ESPN reporter who scooped everyone on a story about the NBA
buying the Hornets and another ESPN reporter who accurately reported that LeBron James
would be playing for the Miami Heat, but contrasted those scoops with 20 or so ESPN
correspondents who relied on imaginary or spurious sources and got the LeBron James story
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wrong, with no consequences to their careers. Id. In other words, Vecsey s column focused on
gullibility and lack of accountability among his competitors in the media, the fact that they
routinely receive and report misinformation, and dealt harshly with those whom he believed to
be too ready to rely on rumors.
In this context, Vecsey s statements about Sheridan s article were clearly indications of
his strong opinion that Sheridan s story could not possibly have been true and therefore must
have been based on unfounded rumor or an unreliable source. Statements such as It never
happened! and Sheer nonsense! Every last word! are simply expressions of Vecsey s
outraged opinion. They are the rhetorical equivalent of the playground taunt Liar, liar, pants on
fire

a sportswriter s version of trash talk, not an assertion of verifiable fact. Vecsey s taunts
that Sheridan relies on fountains of misinformation that frequently play make-believe with
him, suggested that his sources fooled him with bad information

not that he invented sources
who then fooled him, a meaning that no reasonable reader could derive. Indeed, the notion that
fictitious sources supplied fountains of misinformation is so nonsensical as to only reinforce
the conclusion that Vecsey s statements were meant figuratively, not literally, and not as a
factual assertion that Sheridan fabricated sources.
In the context of Vecsey s sarcastic sports column, reasonable readers would interpret
Vecsey s statements as harsh criticism of ESPN, Sheridan s colleagues, and Sheridan, and of a
larger problem involving rumors and unreliable sources but not as a factual statement that
Sheridan fabricated sources or violated any of the principles of journalism. Indeed, the comment
from an online reader that plaintiff cites in his complaint ( Wow just read the Vecsey piece in
full he literally just took a hot steaming you know what on top of Chris Sheridan s head. )
(Complaint 6) confirms that the reader recognized Vecsey s column as insulting to Sheridan
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but expressed no doubts about Sheridan s truthfulness or journalistic integrity. Harsh criticism
expressed in vivid but figurative language is exactly the sort of opinion that New York law and
the First Amendment protect. See Milkovich, 497 U.S. at 20 (protection of statements that
cannot reasonably be read as statement facts provides assurance that public debate will not
suffer for lack of imaginative expression or the rhetorical hyperbole which has traditionally
added much to the discourse of our Nation ); Time, Inc., 448 F. 2d at 384 ( To deny to the press
the right to use hyperbole, under the threat of removing the protecting mantle of New York
Times, would condemn the press to an arid, desiccated recital of bare facts. ).
C. Vecsey s Column Is an Expression of Pure Opinion
Vecsey s column is pure opinion as defined by the New York Court of Appeals in
Steinhilber. 68 N.Y.2d at 289, 508 N.Y.S.2d at 903. Vecsey expressed two opinions: 1) that
many sports journalists are too willing to depend on rumor and unreliable sources, and face no
consequences for doing so, and 2) that the New York Knicks would not be able to trade for
Carmelo Anthony and therefore Sheridan must have gotten wrong his story about Anthony
issuing an ultimatum that he must be traded to the Knicks and about an imminent trade. Vecsey
supported both opinions with stated, accurate facts, and he did not state or imply that he was in
possession of any additional, unrevealed facts. It is well settled in this State that where, as here,
a statement of opinion is accompanied by a recitation of facts on which it is based or one that
does not imply the existence of undisclosed underlying facts , the statement is readily
understood by the audience as conjecture and is not actionable. Zion v. NYP Holdings, Inc.,
6 Misc.3d 1027(A), at *2, 800 N.Y.S.2d 359 (Table) (Sup. Ct. N.Y. Cty. 2004) (dismissing libel
case involving statement that reporter fabricated a column on the ground that the statement was
pure opinion), aff d, 18 A.D.3d 376, 795 N.Y.S.2d 238 (1st Dep t 2005). By reciting the facts on
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which his opinions were based, Vecsey left it to the readers to evaluate it for themselves.
Brian, 87 N.Y.2d at 53-54, 637 N.Y.S.2d at 352.
Vecsey supported his opinion about journalists relying on unreliable sources with the fact
that 20 or so ESPN reporters predicted that LeBron James would play for Cleveland, New
York, Chicago, or New Jersey, based on speculation, rather than correctly reporting (as ESPN s
Chris Broussard did) that James would choose Miami. Exhibit B to Handman Affirmation. He
also pointed out that ESPN had taken full credit for Broussard s correct report and ignored that
its other correspondents speculations had proved untrue. Vecsey s column recited these
underlying facts truthfully, and plaintiff has not challenged them.
Vecsey supported his opinion about what the Knicks would or would not do with the
facts that the Nuggets already had players in the positions covered by the players that the Knicks
might be prepared to offer; that the Nuggets would need to rebuild their core through the draft
if they traded Anthony away for those players, that the Knicks lacked the extraneous
wherewithal to acquire a #1 draft pick to include in the package; and that the Nets would be a
more likely suitor than the Knicks for Anthony as long as they strengthened their original offer.
Plaintiff has not challenged these truthful underlying facts as recited in Vecsey s column.
Some of the conclusions that Vecsey reached based on these facts eventually were proved
incorrect. For instance, the Nuggets eventually did trade Anthony to the Knicks for a
staggering price, including a group of players that included two players that Sheridan
identified as having been discussed.
3
But even incorrect conclusions are protected opinion as


3
Sheridan appears to believe that the Anthony trade proved that his December 12, 2010 story
had been one hundred percent (100%) true. Complaint 35. But the fact that the trade
ultimately occurred does not prove that Anthony gave the Nuggets an ultimatum, as Sheridan
had reported and in fact, Anthony and the Nuggets denied that he had done so before Vecsey s
challenged column was even published. Chris Tomasson, Carmelo Doesn t Believe Trade
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long as they are based on truthfully recited facts. Steinbrenner, 131 A.D.2d at 66, 520 N.Y.S.2d
at 378 ( That one may dispute the conclusions drawn from the specified facts is not, however,
the test. So long as the opinion is accompanied by a recitation of the facts upon which it is based
it is deemed a pure opinion and is afforded complete immunity even though the facts do not
support the opinion. ). Vecsey s failure to predict the future trade accurately cannot make his
opinion retroactively false. See Immuno AG, 77 N.Y.2d at 255, 566 N.Y.S.2d at 917 (average
reader would not have read writer s presumptions and predictions as conveying actual facts
about plaintiff).
Nothing in Vecsey s column implied that he based his opinion of Sheridan s story on any
undisclosed, detrimental facts about Sheridan s journalistic practices. See Gross, 82 N.Y.2d at
154, 603 N.Y.S.2d at 818 (drawing distinction between story that implies that the speaker knows
undisclosed, detrimental facts and one that is offered after a full recitation of the facts on which
it is based ). The column made clear that Vecsey was basing his opinion of the accuracy of
Sheridan s story solely on the recited facts and the conclusions that Vecsey drew from them.
D. Vecsey s Expressions of Disbelief Do Not Transform His Column Into a Factual
Statement
Despite all of the contextual clues that Vecsey s column was pure opinion, plaintiff
would have this court read the column as a factual assertion that Sheridan fabricated news in


Imminent, Denies Ultimatum About Knicks, FanHouse, Dec. 13, 2010,
http://www.aolnews.com/2010/12/13/carmelo-anthony-knicks-trade/. It was this ultimatum
portion of Sheridan s story that triggered most of the contested language in Vecsey s column,
including fairy tale, fake, and It never happened! The fact that the deal finally came
together at the last possible moment

for a staggering price involving far more than either
Sheridan or Vecsey predicted does not mean the ultimatum was given or the trade to the
Knicks inevitable. Indeed, the staggering price supports Vecsey s hypothesis that it would
take much more than what the Knicks could or would likely give to get Anthony. See Beck,
Knicks Go for Greatness with Anthony, New York Times,
http://www.nytimes.com/2011/02/23/sports/basketball/23knicks.html.
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derogation of all known journalistic principles. Complaint 6. Only an excessively literal
reading of the challenged statements, without a consideration of the context or the language,
could lead to such a conclusion, and such an approach would not be a proper application of New
York s test. Immuno AG, 77 N.Y.2d at 243, 566 N.Y.S.2d at 909 ( The key inquiry is whether
challenged expression, however labeled by defendant, would reasonably appear to state or imply
assertions of objective fact. In making this inquiry, courts cannot stop at literalism. The literal
words of challenged statements do not entitle a media defendant to opinion immunity or a libel
plaintiff to go forward with its action. ); Shchegol v. Rabinovich, 10 Misc.3d 1057(A), at *5, 814
N.Y.S.2d 565 (Sup. Ct. N.Y. Cty. 2005) ( Although specific statements appear to be claims of
fact when taken out of context, . . . a reasonable reader would understand from the tenor of the
article as a whole that the statements are hyperbole offered as part of the writer s opinion ),
aff d, 30 A.D.3d 311, 819 N.Y.S.2d 224 (1st Dep t 2006); Sandals, 86 A.D.3d at 41, 925
N.Y.S.2d at 414 (even though assertions of objective fact about plaintiff s alleged racist
practices seem to be contained in the challenged communication, they did not establish a
meritorious defamation claim because the entire communication was an exercise in rhetoric ).
The fact that Vecsey accuses Sheridan of writing a fake story about events that never
happened does not make his column an assertion of fact. Courts have not hesitated to find
statements that plaintiffs have lied to be protected opinion. Arthur v. Offit, No. 01:09-cv-1398,
2010 WL 883745, at *3, *5 (E.D. Va. Mar 10, 2010) (statement that plaintiff made defendant
particularly nuts . . . because [s]he lies was an outpouring of exasperation and intellectual
outrage and not a literal assertion of fact); Gardner v. Martino, 563 F.3d 981, 988, 992 (9th Cir.
2009) (radio host s statements they re just lying to you, and Will they admit to us that they . .
. they went back on their word? in context of radio talk show were non-actionable opinion);
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Rojas v. Debevoise & Plimpton, 167 Misc.2d 451, 457, 634 N.Y.S.2d 358, 362 (Sup. Ct. N.Y.
Cty. 1995) (statements that plaintiff was lying and not credible were non-actionable
statements of opinion).
A comparison to Zion v. NYP Holdings, Inc., 6 Misc.3d 1029(A), 800 N.Y.S.2d 359
(Table) (Sup. Ct. N.Y. Cty. 2004), is instructive. In that case, one of the defendants, Robert
McManus, an editorial page editor of the New York Post, wrote a letter to plaintiff and to others
at the Post accusing plaintiff of fabricat[ing] the column. The plaintiff alleged that the charge
of fabrication was defamatory because it related to his professional integrity. The Supreme
Court found that the challenged statement was protected as opinion because it was accompanied
by the facts supporting McManus s opinion that Zion had fabricated the column (such as a Nexis
search that failed to support Zion s contention that there was a media outcry about whether a
prisoner deserved parole) and would therefore be readily understood by the letter s audience as
conjecture. Id. at *2. Similarly, Vecsey s statement that Sheridan relied on invented
informants, accompanied by the facts supporting Vecsey s skepticism about Sheridan s story
and placed in the context of a hyperbolic sports column, can be read only as a opinion, not as a
factual assertion that Sheridan fabricated sources.
The Supreme Court s decision in Milkovich does not dictate a contrary conclusion. In
that case, defendant wrote a newspaper column that included a specific statement that plaintiff
lied at [a] hearing after . . . having given his solemn oath to tell the truth. Milkovich v. Lorain
Journal Co., 497 U.S. at 5. Although the statement appeared in the sports pages, the Court found
that the statement was not expressed in the sort of loose, figurative or hyperbolic language
which would negate the impression that the writer was seriously maintaining petitioner
committed the crime of perjury, and the general tenor of the article also did not negate that
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impression. Id. at 21. In contrast, here, Vecsey s hyperbolic language and the general tenor of
his column convey the impression that Vecsey believed that Sheridan s only offense was getting
a story wrong through believing in rumors and unreliable sources. Moldea, 22 F.3d at 317 ( it is
highly debatable whether the statement too much sloppy journalism is sufficiently verifiable to
be actionable in defamation . . . [W]here the question of truth or falsity is a close one, a court
should err on the side of nonactionability

[citation omitted]).
Indeed, when couched in hyperbolic or conjectural language, even factually inaccurate
statements that a plaintiff has engaged in criminal behavior have been found to be non-actionable
opinion. See, e.g., See 600 W. 115th St. Corp., 80 N.Y.2d at 143, 589 N.Y.S.2d at 832
(statement at a heated public hearing that the lease and proposition . . . as fraudulent as you can
get and it smells of bribery and corruption was non-actionable opinion; Brian, 87 N.Y.2d at 51,
637 N.Y.S.2d at 350 (statements that plaintiff was linked to a scheme involving stolen software,
lucrative government contracts, delayed release of American hostages in Iran, and the murder of
a journalist was non-actionable opinion); Sharpton v. Giuliani, Index No. 108045/97, N.Y.L.J.,
Oct. 16, 1997 at 28 (Sup. Ct. N.Y. Cty. 1997) (defendant s statement that plaintiff had incited
riots [and] engaged in criminal conduct was non-actionable hyperbole in the context of a
political campaign); Goetz v. Kuntsler, 164 Misc.2d 557, 560, 625 N.Y.S.2d 447, 450 (Sup. Ct.
N.Y. Cty. 1995) (statement that plaintiff was a murderous vigilante, in context of chapter of
famous defense attorney s autobiography containing many provocative statements, would be
understood as opinion). Nothing in the article or its context suggests that Vecsey endorsed the
idea that, or intended that his audience read the column as implying that, Sheridan fabricated
news in derogation of all known journalistic principles. Rather, there are signals in the article
that Vecsey believes that Sheridan does have sources

sources who are fountains of
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misinformation who frequently play make-believe with Sheridan. The only reasonable
implication of the column as a whole is that Sheridan relies on unreliable sources, not that he
fabricates news.
E. NYP Holdings, Inc. Cannot Be Liable for Vecsey s Protected Opinions
Finally, given that Vecsey s opinions are non-actionable, there can be no vicarious
liability on the part of his employer, NYP Holdings, Inc. Karaduman, 51 N.Y.2d at 546, 435
N.Y.S.2d at 564 . ( It is manifest that there can be no vicarious liability on the part of the
employer if the employee himself is not liable except perhaps in certain unusual circumstances
not here present. ).
CONCLUSION

This is exactly the kind of heated debate that sports fans and the columnists who write for
them engage in every day of the week over the office water cooler, over a beer at the game, in
the locker room, on the couch in front of the television: will he or won t he be traded? The one
place this debate does not belong is a court of law. Books, editorials and talk shows are more
appropriate forums than courts for this type of polemic. Lane v. Random House, Inc., 985 F.
Supp. 141, 149 (D.D.C. 1995). For the reasons stated herein, defendants respectfully request that
this Court grant this motion and dismiss the Complaint in its entirety.
Dated: New York, New York
August 31, 2011
Respectfully submitted,
DAVIS WRIGHT TREMAINE LLP
By: /s/ Laura R. Handman _____________
Laura R. Handman
Camille Calman
1633 Broadway, 27th Floor
New York, New York 10019
(212) 489-8230