By Andrew Keshner (New York Law Journal)
August 30, 2012
The statute of limitations will not halt a lawsuit, at least for the time being, against the elite Poly Prep Country Day School in Brooklyn brought by former students who charge they were sexually abused by a prominent football coach at least 25 years ago.
Ten alumni of the Brooklyn school and two former summer camp participants allege Poly Prep officials knew that Philip Foglietta, who coached football at the school from 1966 to 1991, had abused students but had covered up his conduct.
"Central to plaintiffs' claims in the present case are their allegations that Poly Prep engaged in an affirmative course of conduct during the period of limitations to deceive the plaintiffs into believing that they had no claim against Poly Prep because the school had no knowledge of Foglietta's wrongdoing," Eastern District Judge Frederic Block (See Profile) said Aug. 28 in Zimmerman v. Poly Prep Country Day School, 09-cv-4586.
The judge dismissed claims under the Racketeer Influenced and Corrupt Organizations Act against the school, but allowed racketeering claims brought by two plaintiffs against school administrators and officials to go forward. Block said that the two had contributed money to the school, whose football coach had been portrayed as "reputable and esteemed."
The judge also said 11 of 12 plaintiffs can proceed with state law negligence claims. He allowed claims of violations of the Title IX prohibition on sexual abuse to go forward.
The judge scheduled a Sept. 14 court appearance to set a date for a hearing into whether the defendants can be equitably estopped due to their alleged fraud from using the state's three-year statute of limitations to scuttle the lawsuit. In New York, minors who are victims of sexual abuse have only until age 21 to file suit.
The statute of limitations has been a formidable obstacle to other sexual abuse actions such as those brought against the Catholic Church, and Block's ruling will be closely watched.
Plaintiffs, who include Philip Culhane, a partner with Simpson Thacher & Bartlett in Hong Kong, filed the action in October 2009, claiming school's administrators, faculty and board members "fell woefully short of Poly Prep's own high 'character' mandate by engaging in a conspiracy to conceal and cover up the prolonged and horrific sexual abuse of many of its sons."
Foglietta died in 1998.
The abuse allegedly stretched from 1966 to 1986. One plaintiff who recounted being abused in 1966 said school officials at the time said the accusations were "not credible," after conducting a "sham" investigation and warned the plaintiff he could face expulsion for continued threats.
During the 1970s, Poly Prep's former headmaster, William Williams, received anonymous letters and calls alleging Foglietta's abuse. When confronted, Foglietta allegedly denied the accusation and threatened to sue the school for defamation.
In 1991, a former student, David Hiltbrand, wrote Williams claiming he had been sexually abused; when they met, Williams allegedly said Hiltbrand was the first person to identify himself as an accuser.
Hiltbrand demanded Foglietta be fired, but Williams allegedly told him, "You don't want him punished. [H]e's a bitter sick old man, [H]e's a shell of himself."
When Foglietta retired in 1991, the school threw a party in his honor and later established a memorial fund in his name.
In 2002, Hiltbrand's attorney wrote the current headmaster, David Harman, to restate abuse claims his client raised in 1991 and demanded an investigation.
The school then sent a letter to alumni saying it was investigating "credible accusations" of abuse; but the complaint said the investigation by an attorney the school hired was cut short.
The school's general counsel later said the investigation showed no one knew of the complaints against Foglietta before 1991.
One alumnus who sued the school had his state case dismissed in 2006 on the ground that the statute of limitations had passed.
Responding to the current suit brought by more alumni, the school and its officials argued that the lawsuit should be dismissed because it did not state proper claims of action and, was any case, time-barred.
In 2010, a magistrate judge allowed the plaintiffs to depose the school's current and former headmaster, and required the school's production of personnel and investigative records (NYLJ, May 28, 2010).
Judge Sets Out 'Hurdles'
The former students acknowledged the three-year statute of limitations had long since run out, but they said the school should be estopped from invoking the statute of limitations to bypass adjudication on the merits.
Laying out the "hurdles" the plaintiffs would have to clear to prevail, Block said they would have to demonstrate defendants knowingly made false statements about Foglietta's "lily-white reputation."
"All plaintiffs must further show that they justifiably relied on the misrepresentations and deceitful conduct in not bringing suit during the limitations periods, and that they acted with due diligence in bringing their suit within a reasonable period of time after they learned of the defendants' misconduct. For now, however, the Court holds only that the plaintiffs have alleged sufficient facts to warrant the denial of the defendants' motions to dismiss on statute of limitations grounds."
Block cited the 2006 state Court of Appeals ruling Zumpano v. Quinn, 6 N.Y.3d 666. The Zumpano court deemed the former parishioners' actions against clergy time-barred because the abuse years ago triggered the statute of limitations (NYLJ, Feb. 22, 2006).
But the judge pointed out that the Zumpano court had said, "[a] defendant/wrongdoer cannot take affirmative steps to prevent a plaintiff from bringing a claim and then assert the statute of limitations as a defense."
Unlike the Zumpano plaintiffs, Block observed the Poly Prep plaintiffs were arguing the school "affirmatively misrepresented at school events they attended and in school publications they received, that Foglietta 'remained in good standing' and 'was held in high regard.'"
Block later said, "While that deceitful conduct could not have plausibly altered plaintiffs' knowledge to the contrary, it might plausibly have led them to falsely believe that Poly Prep was unaware of Foglietta's misconduct and could not be liable for negligent retention or supervision."
Kevin Mulhearn of Orangeburg who represents the plaintiffs and who was himself a Poly Prep alumnus who played football under Foglietta, praised the decision. "Plaintiffs think the evidentiary hearing ordered by Judge Block will illuminate the pervasive and pernicious nature of Poly Prep's fraudulent concealment."
Pillsbury Winthrop Shaw Pittman came on as pro bono counsel for the plaintiffs earlier this year.
In an interview, Edward Flanders, a partner at Pillsbury Winthrop, said he was "very pleased with the decision" and added this was the first time he knew of where a civil RICO claim survived a dismissal motion in a sex abuse case.
Flanders said the decision "gives new hope to sexual abuse victims who, to this point pretty much had the door shut in getting past the statute of limitations defense. If you're a sexual abuse victim and you can show the school or diocese or employer, rather than simply not coming forward, makes affirmative misstatements to hide facts from you, then you very well may have a viable claim."
In a statement, the school said, "The Court dismissed nearly all of the RICO claims and ordered an evidentiary hearing, describing the hurdles the plaintiffs must overcome to avoid dismissal of their Title IX and state law claims. While Poly Prep believes the claims will ultimately be dismissed following a hearing, the school has continued to pursue a settlement of the case in numerous meetings over the last several months with plaintiffs' counsel and insurers, and as recently as Monday in a settlement conference. We are still hopeful that the case may be settled."
The school, its current and former headmaster, along with several board members, are represented by Jeffrey Kohn, Howard Heiss, Shiva Eftekhari and James Miller of O'Melveny & Myers.
Robert Herrman, the general counsel for Poly Prep, is represented by Philip Touitou and Concepcion Montoya of Hinshaw & Culbertson.
Michael Novello, a former school administrator, was represented by David Trachtenberg and Stephen Arena of Trachtenberg Rodes & Friedberg.
Harry Petchesky, a former board chairman, who is an attorney at Scheichet & Davis, represented himself.