By Michael O'Keeffe (NY Daily News)
December 26, 2012
Poly Prep Country Day School, one of New York's most prestigious private schools, has agreed to settle a landmark lawsuit claiming its longtime football coach sexually abused hundreds of boys over a 25-year period and that officials covered up the assaults for decades.
The settlement ends a three-year legal and public relations battle that divided parents and alumni and turned the elite Brooklyn school into a symbol of institutional indifference to sexual abuse in youth sports. The explosive suit, filed in 2009, claimed officials at the Dyker Heights prep school knew that coach Phil Foglietta was a sexual predator, but ignored repeated complaints during his 25 years at the school because they didn't want to jeopardize the institution's athletic reputation and fund-raising efforts.
Poly Prep officials declined to reveal the details of the settlement in a statement issued on Wednesday.
"We hope that the settlement brings a measure of closure to those members of the Poly community who were abused by Philip Foglietta," headmaster David Harman said in the statement. "Poly Prep has established itself as a model for the prevention of abuse to those within our care and we will do everything in our power to insure that nothing like this ever happens again."
"This is the end of a long and difficult journey for these twelve plaintiffs who were victimized many years ago," said Kevin Mulhearn, the lawyer who represented 10 former students and two day campers who say they were abused by Foglietta. "Both the litigation and the settlement process were quite contentious but in the end both sides were able to achieve a measure of peace and healing through compromise."
The suit drew comparisons to the Penn State sex-abuse scandal: One plaintiff says former Poly Prep athletic director Harlow Parker saw Foglietta abusing him in a shower and simply walked away without stopping the assault, just as a grand jury report describes Nittany Lions receivers coach Mike McQueary failing to act when he witnessed the now-convicted Jerry Sandusky allegedly raping a boy in the showers of a Penn State locker room.
Other plaintiffs say Foglietta abused them hundreds of times. One alleged Foglietta victim said he developed sores on his genitals after the coach assaulted him on almost a daily basis, beginning when he was 10 years old.
The lawsuit, which sought $20 million for each plaintiff, turned Poly Prep into a symbol of institutional indifference to sexual abuse in youth sports. The case, chronicled extensively in the Daily News in December 2011 and throughout 2012, roiled the Dyker Heights campus.
It also literally pitted brother against brother. One of the men who claimed Foglietta abused him, Philip Smith, is the brother of hedge-fund executive Scott Smith, the chairman of the board of directors that waged a long and expensive legal and public relations campaign against the suit.
Poly Prep attorneys argued that the suit, filed in Brooklyn federal court, should have been dismissed because it was filed long after the statute of limitations had expired. But U.S. District Court Judge Frederic Block, in what may be a watershed moment for sexual abuse survivors ruled in August that portions of suit could proceed because administrators may have lied about when they said they did not become aware of the abuse allegations until 1991.
Block urged attorneys for both sides to reach a settlement, and Mulhearn and Harman praised U.S. Magistrate Judge Cheryl Pollak for her assistance in reaching a resolution. "The magistrate judge worked tirelessly to get it done with fair terms for both sides," Mulhearn said.
The suit said Poly Prep officials had covered up the abuse since 1966, the same year they hired Foglietta, a dynamic coach who turned the college preparatory school into a New York City football power. Mulhearn has said that Foglietta used the positive press and alumni donations his football success generated to cement his authority at the school. Like iconic coach Joe Paterno at Penn State, Foglietta was the most powerful person on campus.
A few months after Foglietta arrived at the school, the suit says, a student named William Jackson complained that the coach had sexually abused him. Parker and then-headmaster J. Folwell Scull, according to the suit, told Jackson's parents that he made up the allegations and threatened to expel him he raised them again. That was the beginning of a cover-up, Mulhearn has argued, that not only allowed Foglietta to rape and assault students for more than 20 years, but also prevented his clients from pursuing litigation against the school in a timely fashion.
New York state law requires survivors of childhood sexual abuse to file a case by the time they are 23 years old. But Block agreed with Mulhearn when he allowed portions of the suit to proceed in August, ruling in August that Poly Prep could not use the statute of limitations to block the suit if administrators had consistently lied about when they first learned about the allegations.
The cover-up, according to lawyers for the plaintiffs, continued even after the suit was filed: They complained that Poly Prep and its attorneys, led by Jeffrey Kohn of O'Melveny and Myers, refused to testify honestly or provide requested documents, prompting Pollak to sanction the school in 2011 for discarding documents relevant to the case. In June, Pollak again said there was ample evidence that indicated the school and its legal team were attempting to defraud the court and the plaintiffs.
Mulhearn and Kohn often clashed during court hearings. But Mulhearn said two other lawyers hired by the school to lead settlement negotiations — Michael Kalmus and Anthony Tagliagambe — seemed eager to reach a fair settlement. All three men are Poly Prep graduates.
"There was a level of candor and trust that fostered a settlement," Mulhearn said.
The lawsuit painted Foglietta, who died in 1998, as an insatiable predator who may have assaulted hundreds of boys during his quarter-century at Poly Prep.
School officials, meanwhile, were portrayed as too timid to challenge the coach, or too addicted to the revenue and reputation generated by his successful football program.
A Poly Prep football player named John Marino, according to the suit, told former athletic director Parker and ex-headmaster Williams during the 1970s that he had seen Foglietta molesting boys on at least 10 separate occasions. Parker and Williams responded, according to court papers, by telling Marino's parents that he was a troublemaker and threatening to discipline him if he continued with the allegations.
Poly Prep officials have said that they did not learn about the abuse allegations until 1991, when a former student named David Hiltbrand contacted Williams and told him that Foglietta had abused him in the 1960s. Williams and other school officials said they chose not to renew Foglietta's contract because of Hiltbrand's allegations.
But they continued to portray Foglietta as a valued educator and coach even after Hiltbrand came forward. The school honored the alleged pedophile with a lavish retirement banquet at the Downtown Athletic Club in Manhattan later that year.
The plaintiffs claim the abuse by Foglietta led to substance abuse, depression and a host of other problems. Some struggled in school; others say the abuse damaged their abilities to pursue meaningful careers and relationships.
Mulhearn said he came to realize that Poly Prep's Harman understood what his clients have been through. "I have come to realize that the present headmaster, David Harman, is a good and decent person who cares deeply about children," Mulhearn said. "That gave us additional motivation to see if we could reach a settlement."