Doe v. Poly Prep Country Day Sch.
| Docket Number | 20-CV-03628 (DG) (SJB) |
| Decision Date | 22 September 2021 |
| Citation | 590 F.Supp.3d 551 |
| Parties | PC-41 DOE, Plaintiff, v. POLY PREP COUNTRY DAY SCHOOL, William Williams, Michael Novello, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Victoria Elizabeth Phillips, Levy, Phillips & Konigsberg, New York, NY, for Plaintiff.
Gershon Akerman, Karen Yasmine Bitar, Seyfarth Shaw LLP, New York, NY, for Defendants.
This case arises out of sexual abuse allegedly perpetrated against Plaintiff PC-41 Doe by a Poly Prep Country Day School ("Poly Prep") physical education teacher and coach, Philip Foglietta, while Doe was a student at Poly Prep. Plaintiff seeks to hold liable Defendant Poly Prep; Poly Prep's former headmaster from approximately 1970 to 2000, Defendant William Williams, and Poly Prep's former middle head from at least 1972 to 1983, Defendant Michael Novello (collectively, "Defendants"). Plaintiff brings his claims in seven counts: (1) negligent hiring, retention, supervision, and direction; (2) negligent, reckless, and willful misconduct; (3) negligent infliction of emotional distress; (4) premises liability; (5) breach of fiduciary non-delegable duty;1 (6) breach of duty in loco parentis ; and (7) breach of statutory duties to report. See Complaint ("Compl.") ¶¶ 160-214, ECF No. 1.
Pending before the Court is Defendants’ Motion to Dismiss Plaintiff's Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (" Rule 12(b)(6)") and the Due Process Clause of the New York State Constitution. See Defendants’ Motion to Dismiss Plaintiff's Complaint, ECF No. 15; Defendants’ Memorandum of Law in Support ("Defs.’ Br."), ECF No. 15-1.
For the reasons set forth below, Defendants’ Motion to Dismiss is granted in part and denied in part. The First and Second Counts of the Complaint may proceed at this juncture. The Third, Fourth, Fifth, Sixth, and Seventh Counts are dismissed.
Plaintiff attended Poly Prep, a private college preparatory school located in Brooklyn, New York, from approximately fifth grade through twelfth grade in the 1970s and 1980s. Compl. ¶¶ 24, 41-42. Plaintiff alleges that, while there, he "was repeatedly and unlawfully sexually abused for years" by a Poly Prep physical education teacher and coach, Philip Foglietta. Id. ¶¶ 1-4. Foglietta, who worked for Poly Prep from approximately 1966 through 1991, id. ¶ 48, was Plaintiff's PE teacher in approximately fifth through seventh grade and Plaintiff's football coach in high school. Id. ¶¶ 55-56.
Plaintiff alleges that Foglietta, now deceased, id. ¶ 47, was "a pedophile and sexual predator," who "unlawfully sexually abused multiple students at Poly Prep between approximately 1966 and 1986," id. ¶¶ 51-53; see also id. ¶ 5. Foglietta's abuse of Plaintiff, which took place on school premises "as frequently as several times per week," is alleged to have occurred between approximately 1976 and 1983, id. ¶¶ 12-13, 57-59, and to have included Foglietta touching and fondling Plaintiff's buttocks and genitals and penetrating Plaintiff's anus with his fingers, id. ¶ 60.
Plaintiff alleges that in approximately 1979-1980, he told a homeroom and music teacher, Michael Morangelli, about Foglietta's "inappropriate conduct" and "was told that his report about Foglietta's behavior would be looked into." Id. ¶¶ 61-62. Plaintiff further alleges that Poly Prep did not, however, "conduct a thorough investigation of Plaintiff's complaint regarding Foglietta," and "Foglietta was not fired, removed, or made to resign during Plaintiff's years at Poly Prep" or "reported to law enforcement for criminal investigation by Defendants prior to or during Plaintiff's years at Poly Prep." Id. ¶¶ 63-65. As alleged, Foglietta continued to abuse Plaintiff after Plaintiff "reported his abuse by Foglietta." Id. ¶ 67.
Plaintiff further alleges, largely based on information and belief, that several other students (and certain of their parents) told teachers and/or administrators at Poly Prep about Foglietta's actions prior to Foglietta's abuse of Plaintiff. See, e.g. , id. ¶ 130.3 Plaintiff alleges, for example, that an eighth-grade student and his parents met in 1966 with Poly Prep's then-headmaster and then-athletic director, J. Folwell Scull and Harlow Parker, respectively, and "accused Foglietta of repeated sexual abuse" and "provid[ed] graphic details." Id. ¶¶ 75, 80, 85-87. In 1973, another student and his parents allegedly met with Defendant Williams and Harlow Parker and "accused Foglietta of ‘fooling around with boys’ in Foglietta's Car on Battery Avenue." Id. ¶ 96. Then, in 1974, that same student and his parents allegedly had a second meeting with Williams and Parker in which the student "again accused Foglietta of sexually abusing male students" and in which the student and his father "reported that they had witnessed Foglietta sexually abusing a child at Poly Prep." Id. ¶¶ 103-05. Plaintiff alleges that Williams has acknowledged having had at least the first meeting with this student and his parents, id. ¶ 100, and that Williams "believed that he discussed [the student's] accusations with Parker or ... Novello," id. ¶ 109. Plaintiff further alleges, on information and belief, that "prior to and/or by the time of Plaintiff's abuse by Foglietta, Defendant Novello had been advised of reports of Foglietta's sexually abusing students." Id. ¶ 110. Plaintiff additionally alleges that, in the mid-1970s, Williams received two anonymous letters and one anonymous phone call, in which the writer and/or caller indicated that Foglietta was "doing terrible things" to students. See id. ¶¶ 114, 125. Plaintiff alleges that Williams has testified that he did not believe the letters or phone call pertained to sexual abuse. See id. ¶¶ 115, 127. Plaintiff also alleges that another student – "John Doe II" – has alleged, in another case in this District, that he told a Poly Prep administrator that Foglietta was "inappropriately grabbing boys," and that Parker saw John Doe II being abused by Foglietta in the boys’ showers. Id. ¶¶ 131-32.
Plaintiff alleges that "Defendants engaged in a pattern of denying Foglietta's conduct, concealing his abusive behavior, conducting sham investigations, and failing to disclose the risk that Foglietta posed to the student body, their parents, and alumni at Poly Prep." Id. ¶ 72; see also id. ¶¶ 88-89, 97-99, 101-02, 106-07, 111-13, 126, 128-29 (alleging that Poly Prep declined to meaningfully investigate or take other action with respect to Foglietta in the face of various abuse allegations, and that Defendant Williams threatened to expel one student who raised accusations about Foglietta).
Foglietta's contract was allegedly not renewed in 1991. Id. ¶ 142. Although not made public at the time, see id. ¶¶ 143, 148-53, the determination not to renew Foglietta's contract resulted, as alleged, from the fact that Williams "had received credible allegations that Foglietta had sexually abused a former student," id. ¶ 145.
Plaintiff commenced this action on August 12, 2020. See Compl. On December 15, 2020, this case was reassigned to the undersigned. On December 18, 2020, Defendants moved to dismiss Plaintiff's Complaint. ECF No. 15; Defs.’ Br., ECF No. 15-1. On December 22, 2020, the Court stayed briefing to ensure full compliance with Federal Rule of Civil Procedure 5.1 (" Rule 5.1"). See Dec. 22, 2020 Docket Entry; see also ECF No. 16 (). On December 29, 2020, Defendants fully complied with Rule 5.1. See ECF No. 19. On March 2, 2021, Plaintiff filed his Memorandum in Opposition. Pl.’s Br., ECF No. 26. On March 16, 2021, Defendants filed their Reply in Support. Defendants’ Reply in Support ("Defs.’ Reply"), ECF No. 27. On August 24, 2021, Plaintiff filed a letter containing supplemental authority. ECF No. 28. Oral argument was held on August 25, 2021. See ECF No. 29.
Defendants argue that the claim-revival statute under which this case has been brought, the Child Victims Act ("CVA"), C.P.L.R. § 214-g (" Section 214-g"), runs afoul of the Due Process Clause of the New York State Constitution ("New York Due Process Clause").4 The Court concludes – as have the other courts that have opined on this issue – that it does not.5 To the contrary, the CVA, which afforded victims of childhood sexual abuse a limited period of time within which to pursue their claims of sexual abuse through the judicial system, was a reasonable, non-arbitrary response to remedy an injustice and therefore satisfies the New York Due Process Clause.
Although "[r]evival is an extreme exercise of legislative power," Regina Metro. Co., LLC v. N.Y. State Div. of Hous. & Cmty. Renewal , 35 N.Y.3d 332, 371, 130 N.Y.S.3d 759, 154 N.E.3d 972 (2020) (alteration in original) (quoting Hopkins v. Lincoln Tr. Co. , 233 N.Y. 213, 215, 135 N.E. 267 (1922) ), New York's revival statutes – including the one at issue here – have been upheld. See In re World Trade Ctr. Lower Manhattan Disaster Site Litig. , 846 F.3d 58, 69 (2d Cir. 2017) ().
In 2017 – prior to the enactment of the CVA – the New York State Court of Appeals ("Court of Appeals") clarified the standard of review that governs challenges to the constitutionality of a claim-revival statute under the New York Due Process Clause, holding that "a claim-revival statute will satisfy the Due Process Clause of the [New York] State Constitution if it was enacted as a reasonable response in order to remedy an injustice." In re World Trade Ctr. Lower Manhattan Disaster Site Litig. , 30 N.Y.3d 377, 400, 67 N.Y.S.3d 547, 89 N.E.3d 1227 (2017) (hereinafter In re WTC ).
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