JUDGE Will Allow Poly Prep Sex-abuse Lawsuit to Proceed, but Throws out RICO Claims Made by All but Two Plaintiffs

By Michael O'Keeffe
New York Daily News
August 30, 2012

http://www.nydailynews.com/sports/i-team/judge-poly-prep-sex-abuse-lawsuit-proceed-throws-rico-claims-made-plaintiffs-article-1.1146584

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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 statement from the school 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."