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די מפלה פון די אידישע (זאליס) און גויישע )קאטאליקען( האט זעך שוין אנגעהויבען
The Downfall of the Jewish (Zollies) and Non Jewish (Catholics) Just Started
Published: August 28, 2012
A top-tier Brooklyn private school cannot automatically use New York State’s statute of limitations to prevent a case involving sexual abuse allegations against a former football coach from proceeding, a judge ruled Tuesday, because of the possibility that the school may have engaged in a scheme to cover up decades of abuse.
The ruling by the judge, Frederic Block of the Federal District Court in Brooklyn, paves the way for a hearing to establish whether there was a cover-up by the school, Poly Prep, and if it prevented the plaintiffs from bringing a case within the statute of limitations. In New York, survivors of sexual abuse that occurred while they were minors must file a case by the time they are 23.
The judge dismissed all racketeering charges against Poly Prep, but allowed 2 of the 12 plaintiffs to go forward with their racketeering claims against current and former board and administration members. In his 40-page ruling, Judge Block also allowed civil charges including fraud and violations of Title IX, which specifically prohibits sexual abuse, to move forward to a hearing.
The case is being closely watched, as allegations of sexual abuse and the way powerful institutions manage knowledge of those allegations has exploded within the Roman Catholic Church, in the Hasidic community in Brooklyn and in high-profile schools like Horace Mann in the Bronx and Penn State University.
At Poly Prep, 12 plaintiffs, alumni of the school and its summer camp, claim that they were raped and molested by Philip Foglietta, the former football coach. Mr. Foglietta was an iconic leader who started working at the school in 1966 and died in 1998. The first allegation against him by a student came in 1966, the ruling says. Accompanied by his parents, the student told the headmaster that Mr. Foglietta had abused him on multiple occasions. The family was told that an investigation was conducted, that the student’s claims were not credible and that the student would face “severe consequences” if he continued to make such allegations, according to the ruling.
In 1991, Mr. Foglietta retired from Poly Prep. A dinner was held to celebrate his retirement at New York City’s Downtown Athletic Club. When he died in 1998, the lawsuit says, Poly Prep established a memorial fund and solicited donations in his name. The plaintiffs argue that the school treated him as a revered coach, fund-raising on his legacy and celebrating his tenure, in spite of knowledge that he abused young boys for decades.
Judge Block made clear that the plaintiffs still face “several hurdles.” Each plaintiff will have to prove that statements about Mr. Folglietta’s “lily-white reputation were false and made with knowledge of their falsity,” his decision says. Each will have to show that they had relied on the school’s misrepresentations in not bringing a suit earlier, and that once they learned of the school’s alleged deceit, they acted promptly to bring a case.
Kevin T. Mulhearn, a lawyer representing the plaintiffs, said the ruling was a victory. “The court has basically carved out an exception on statute of limitation claims where the party has engaged in affirmative misrepresentations or deceitful conduct,” he said. Edward Flanders, a partner at Pillsbury Winthrop Shaw Pittman L.L.P. working with Mr. Mulhearn, said the “egregious facts” of the case would allow them to clear the hurdles set forth by Judge Block.
Tisha Kresler, a spokeswoman for Poly Prep from Rubenstein Associates, said: “The Court dismissed nearly all of the RICO claims,” she wrote, referring to the Racketeer Influenced and Corrupt Organizations Act. She added that the court had also “ordered an evidentiary hearing, describing the hurdles the plaintiffs must overcome to avoid dismissal of their Title IX and state law claims.” She said that the school still believed the claims would be dismissed, but that it was actively seeking a settlement with the plaintiffs.
Alumni at Horace Mann, which has been grappling with allegations and at least one admission of past sexual abuse, also applauded the ruling.
“This decision levels the playing field between victims and schools by showing that the current statute of limitations isn’t absolute,” said Robert Boynton, communications director for the Horace Mann Action Coalition, a nonprofit organization founded to push Horace Mann to investigate sexual abuse at the school.
The Poly Prep case has taken many twists and turns. In 2004, one alumnus filed a civil suit against the school over abuse. The case was dismissed because the statute of limitations had been exceeded.
In 2009, a larger group of alumni filed a new case, arguing that a cover-up by the school of the abuse prevented the plaintiffs from filing suit in a timely fashion. The vehicle they used to sue was federal racketeering charges, which include mail and wire fraud. The plaintiffs argue that while the school fired Mr. Foglietta for sexual misconduct, it lied to the Poly Prep community about the true nature of his dismissal — and his career there.
Two of the plaintiffs made financial contributions to the school, so they can be considered victims of the school’s alleged scheme to defraud the community through deception about Mr. Foglietta’s legacy, the judge ruled. Those contributions totaled $2,500. But in defending his decision to allow the two RICO charges to move forward, the judge wrote that the scheme alleged is not “just a string of isolated statements.” He continued, “Rather, it is a decades-long attempt to conceal the school’s knowledge of Foglietta’s despicable conduct.”
A version of this article appeared in print on August 29, 2012, on page A22 of the New York edition with the headline: School Abuse Case May Proceed, Judge Says.
U.S. District Court Judge Frederic Block wrote - in what could be considered as a legal victory for the victims of abuse - he would green-light the case because officials may have lied about knowledge of the alleged actions.
Todd Maisel/New York Daily News
Poly Prep Country Day School in Bay Ridge, Brooklyn.
In a startling court order that could be a watershed moment for survivors of childhood sex abuse, a federal judge said Tuesday he will allow portions of an explosive lawsuit to proceed against Poly Prep Country Day School in Brooklyn.
U.S. District Court Judge Frederic Block wrote he would green-light the case because officials may have lied when they claimed they only learned in 1991 that a longtime football coach had allegedly molested boys for several decades.
Block said Poly Prep’s attempts to have the lawsuit dismissed because the statute of limitations had expired falls flat because administrators might have deceived 10 former students and two day campers who claimed they were sexually abused by coach Phil Foglietta.
“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…Foglietta was consistently portrayed to the plaintiffs as a reputable and esteemed football coach throughout the limitations period (1966-1991),” Block wrote in Tuesday's order.
The school’s “deceitful conduct” may have led the plaintiffs to believe that Poly Prep officials were unaware of Foglietta’s alleged sexual abuse and could not be liable for negligently retaining or supervising the accused predator, Block added.
“The plaintiffs are extremely heartened by Judge Block's decision and think this is a watershed moment for survivors of childhood sexual abuse,” said Kevin Mulhearn, the plaintiffs’ lead attorney. “This court has made it clear that a school that shelters a known sexual predator through affirmative misrepresentation and deceitful conduct may face steep consequences.”
Poly Prep’s attorneys argued in a motion to dismiss that the lawsuit, which was filed in 2009 and seeks $20 million for each plaintiff, is not based on viable claims and that the statute of limitations has long expired. The school has not yet had to address the specific abuse allegations in the suit.
A spokesperson for the school, Tisha Kresler, noted that Block dismissed some of the claims against the school and ordered an evidentiary hearing about the others.
“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 yesterday in a settlement conference,” Kresler said. “We are still hopeful that the case may be settled.”
Block’s ruling was a bit of a surprise because the judge expressed skepticism at a June hearing that the lawsuit was based on viable legal claims and appeared to rush Mulhearn and co-counsel Edward Flanders through their arguments.
But perhaps Block was simply trying to play the devil’s advocate: The judge said the plaintiffs had a “very sympathetic case” at a hearing in February and predicted “it may very well survive the motion to dismiss.”
Block said he will allow claims the plaintiffs made under Title IX, which prohibits education programs that receive federal funding from engaging in sexual abuse and harassment, to be applied retroactively in the case. The judge said he will give Poly Prep's attorneys the opportunity to argue that the claims based on the 1972 law, best known for enforcing equality for women in college athletics, should ultimately be tossed because of statute of limitations issues.
Block dismissed claims the plaintiffs made against the elite private school based on the anti-racketeering statute known as RICO. But he will allow RICO claims made by two plaintiffs, Philip Culhane and Philip Henningsen, to proceed against former and current Poly Prep officials because they said they would not have donated money to the school if they had known that Poly Prep officials knew about the alleged abuse as early as the 1960s.
Block said he will schedule an evidentiary hearing on Sept. 14 to determine what actions Poly Prep officials took to cover up decades of alleged sexual abuse by Foglietta, who died in 1998.
U.S. Magistrate Judge Cheryl Pollak ruled in June that there was ample evidence that Poly Prep had tried to commit fraud on the plaintiffs and the court and scheduled a hearing for July. But the hearing was canceled after Poly Prep appealed her decision, and Block did not rule on the appeal. Last year, Pollak slapped the Dyker Heights prep school with sanctions for destroying or discarding evidence in the case.
Fraud and deception are central to the lawsuit , which claims Poly Prep officials knew for decades that Foglietta was a sexual predator but put the school's reputation and fund-raising ahead of student safety. The suit says Poly Prep officials have covered up the abuse since 1966, when administrators threatened to expel a plaintiff named William Jackson who complained that he was molested by Foglietta. The cover-up, Mulhearn has argued, not only allowed Foglietta to rape and assault students for more than 20 years, but it also prevented his clients from pursuing litigation against the school in a timely fashion.
Poly Prep officials have said that they did not learn about the abuse allegations until 1991, when alumnus David Hiltbrand contacted then-headmaster William M. Williams and told him that he was abused by Foglietta in the 1960s. Former Poly Prep quarterback Douglas Miller said in an affidavit filed with the court earlier this month that Steve Andersen, a former teammate who is now a Poly Prep administrator, told him that school officials may have been aware of the abuse allegations before Hiltbrand came forward.
The sexual abuse scandal has roiled the elite school in the decade after Hiltbrand went public with his allegations in 2002. One of the plaintiffs, Philip Smith, is the brother of Scott Smith, the chairman of Poly Prep’s board of directors.
“Plaintiffs hope that this momentous decision will compel schools to stand up, take notice, and better protect the children in their care from known or suspected sexual predators,” said Mulhearn. “Judge Block has decreed that in New York State justice for survivors of childhood sexual abuse may still be available. We believe, in the end, that in this case, the truth shall prevail.”
- With Nathaniel Vinton