UPDATED: Oct. 5, 2013 at 1:49 p.m.

An intermediate state appellate court on Friday affirmed the dismissal of two former Syracuse ball boys’  lawsuit against the university and Jim Boeheim.

Mike Lang and Bobby Davis accused Bernie Fine, former associate head men’s basketball coach, of sexually abusing them during the 1980s and 90s. They claimed Boeheim’s statements that the two were liars and trying to get money were false and defamatory. Boeheim later apologized.  In May 2012, a state supreme court justice dismissed the lawsuit, ruling Boeheim’s statements were opinions protected under free speech.

The university fired Fine on Nov. 27, 2011. He has denied all wrongdoing and wasn’t charged after an almost yearlong federal investigation.

The decision to affirm the dismissal was a 3-2 vote. Lang and Davis’ attorney, Mariann Wang, said in an email they plan on appealing to New York state’s highest court.

The majority decision states Boeheim’s words demonstrate his support for a longtime friend, and make up his reaction to Lang and Davis’ allegations. The “content” and “surrounding circumstances” indicate the reader is likely hearing an opinion, not facts, according to the decision.

“We thus conclude that the court properly determined that defendant’s statements constitute opinion, not fact,” the majority wrote.

But the two dissenting judges wrote they cannot agree the state supreme court properly dismissed the lawsuit, and said the decision should be reversed.

Boeheim’s statements, in their view, were of mixed opinion. That means they were “statement[s] of opinion that impl[y] a basis in facts which are not disclosed to the reader or listener.”

“Although we are mindful of the timing of the disputed statements, we conclude that through the statements noted above the complaint sufficiently alleges false, defamatory representations of fact about plaintiffs,” the dissenting judges wrote.

Kevin Quinn, senior vice president for public affairs at SU, declined to comment.

Timothy Murphy and Helen Cantwell, the lawyers for Boeheim and SU, respectively,  did not immediately return a phone call and email.

Published on October 4, 2013 at 6:20 pm

Contact Dylan: dmsegelb@syr.edu | @dylan_segelbaum