Zimmerman v. Poly Prep Country Day Sch.
| Decision Date | 28 August 2012 |
| Docket Number | Case No. 09–CV–4586 (FB)(CLP). |
| Citation | 888 F.Supp.2d 317 |
| Parties | James ZIMMERMAN, Philip Culhane, David Hiltbrand, William Jackson, George Zarou, John Joseph Paggioli (Formerly “John Doe I”), “John Doe II,” “John Doe III,” Philip C. Henningsen (Formerly “John Doe IV”), Philip Lyle Smith, and “John Doe V,” Plaintiffs, v. POLY PREP COUNTRY DAY SCHOOL, William M. Williams, David B. Harman, Various Members of the Poly Prep Board of Trustees, Whose Names are Currently Unknown and thus Designated as “James Doe I–XXX,” Harry Petchesky, Esq., Robert F. Herrmann, Esq., and Michael Novello, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
OPINION TEXT STARTS HERE
Kevin T. Mulhearn, Esq. Orangeburg, NY, Edward Flanders, Esq., Kimberly L. Buffington, Esq., John A. Fedun, Esq., Pillsbury Winthrop Shaw Pittman LLP, New York, NY, for Plaintiffs.
Jeffrey I. Kohn, Esq., Howard E. Heiss, Esq., Shiva Eftekhari, Esq., James E. Miller, Esq., O'Melveny & Myers, LLP, New York, NY, for Defendants Poly Prep, Williams, Harman, and “James Doe I–XXX.”
Harry Petchesky, New York, NY, pro se.
Philip Touitou, Esq., Concepcion A. Montoya, Esq., Hinshaw & Culbertson LLP, New York, NY, for Defendant Herrmann.
David G. Trachtenberg, Esq., Stephen Arena, Esq., Trachtenberg Rodes & Friedberg LLP, New York, NY, for Defendant Novello.
Plaintiffs are ten former Poly Prep students and two former attendees of the school's summer camp. Their stories vary in the details, but each alleges that he was sexually abused by Philip Foglietta, Poly Prep's football coach from 1966 to 1991. The abuse occurred between 1966 and 1986, and ranged in frequency from two incidents, in the case of plaintiff Philip Henningsen, to hundreds, in the case of plaintiff Philip Lyle Smith.
Plaintiffs uniformly allege that their abuse led to severe psychological and emotional difficulties, including drug and alcohol dependency in some cases. They further allege that they have suffered diminished educational and employment opportunities, and the out-of-pocket costs of counseling, therapy and other forms of treatment.
But this case is not against Foglietta, who died in 1998. Rather, it is against Poly Prep, its Board of Trustees and current and former administrators (“Poly Prep”). In addition, one plaintiff brings a claim against Poly Prep's general counsel. Much of the complaint, as amended, focuses on the defendants' alleged knowledge of Foglietta's predatory behavior, their failure to take corrective action, and their attempts to conceal both Foglietta's conduct and their knowledge of it.
Pending before the Court are the defendants' motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, those motions are granted in part and denied in part.
In 1966, Foglietta abused plaintiff William Jackson “on multiple occasions.” Third Am. Compl. ¶ 48. Jackson notified his parents, who arranged a meeting with Poly Prep's Headmaster, J. Folwell Scull, and Athletic Director, Harlow Parker. According to the complaint, Scull and Parker, in concert with Poly Prep's Board of Trustees, conducted a “sham” investigation, notified Jackson and his parents that his claims of abuse were “not credible,” and warned that Jackson would face expulsion and other “severe consequences” if he persisted in making them. Id. ¶ 53. Poly Prep's response to Jackson's accusations caused him to “act out” in school; he was expelled for “repeated fighting” in 1968. Id. ¶ 63.
Defendant William M. Williams replaced Scull as Headmaster in 1970. Upon his appointment, he was told of Jackson's complaint against Foglietta.
Two years later, in 1972, Foglietta attempted to sexually abuse John Marino, who is not a plaintiff. Marino, then a freshman, rebuffed Foglietta's advances, following which Foglietta began to subject Marino to physical, verbal and emotional abuse during football practice and elsewhere.
On “multiple occasions” during his remaining four years at Poly Prep, Marino saw Foglietta sexually abusing other boys. One such incident was witnessed by Marino's father.
Marino's parents met with Williams and Parker twice. Both times they were told that their son was an “undisciplined ... trouble-maker” who had started a “false and malicious rumor about Foglietta's sexual abuse of children.” Id. ¶ 78. At no point did Williams and Parker mention Jackson's earlier claim of abuse. Instead, they said that Marino was “on thin ice” and threatened to expel him for misbehavior. Id. ¶¶ 83–84. Williams and Parker told Michael Novello, another Poly Prep administrator, about Marino's allegations.
Williams received anonymous letters and phone calls accusing Foglietta of sexual abuse throughout the remainder of the 1970s. On at least one occasion, Williams confronted Foglietta about the accusations. Foglietta denied the charges and threatened to file a defamation lawsuit if Poly Prep repeated them.
No one at Poly Prep retained the anonymous letters or memorialized the anonymous phone calls. Nor did anyone memorialize the meetings with Jackson and Marino. Instead, the complaint alleges that Poly Prep “made the conscious and fateful decision to whitewash Foglietta's egregious sexual misconduct.” Id. ¶ 95. Among other things, the school moved Foglietta into the “bowels of the boys' locker room.” Id. ¶ 98. There, he continued to sexually abuse students until 1991.
Throughout Foglietta's tenure, Poly Prep distributed to plaintiffs and others various publications that “represented that he remained in good standing at the school and was held in high regard.” Id. ¶ 397. These publications included football programs, student newspapers, yearbooks, alumni magazines, press releases, and...
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