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August 15, 2005.

STEVEN HALL, Plaintiff,

The opinion of the court was delivered by: DAVID HURD, District Judge



Plaintiff Steven Hall ("plaintiff" or "Hall") brings suit alleging that defendants acted to cover-up sex abuse by a local priest, defendant Fr. David Tressic ("Father Tressic"). Father Tressic was employed by defendant Roman Catholic Diocese of Albany (the "Diocese") under the supervision of defendant Howard J. Hubbard ("Bishop Hubbard"). Defendants Michael Costello ("Costello"), and Janet Charney ("Charney"), are attorneys who represented these defendants during the relevant time period. Defendant Karen Hoose ("Hoose") worked as a secretary to Father Tressic at Sacred Heart Church in Gloversville, New York. Defendant Israel Torro ("Officer Torro") is a New York State Trooper who worked on an investigation of plaintiff that occurred during the series of events which make up this case.

  Hall asserts nine causes of action. He only asserts one federal claim and it is under the civil Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961-6818. He also asserts eight state law claims against the various defendants: (1) malicious prosecution and/or false arrest; (2) intentional infliction of emotional distress; (3) negligence; (4) common law fraud (in negotiations); (5) libel; (6) breach of an oral contract; (7) sex abuse; and (8) breach of fiduciary duty.

  Father Tressic, Bishop Hubbard, the Diocese, and Costello, move pursuant to Fed.R.Civ.P. 12 (b)(1) and (6) to dismiss the complaint. Hoose and Charney move on those grounds and pursuant to Fed.R.Civ.P. 12(c). Torro did not make a motion. Plaintiff opposes. The parties did not request oral argument. Therefore, the motions were considered on the submissions.


  Unless otherwise noted, the following facts are taken from the complaint and plaintiff's RICO statement submitted pursuant to N.D.N.Y. Local Rule 9.2.*fn1

  At the time Hall met Father Tressic in 1996, he was homeless, destitute, and involved in drugs and prostitution. (Docket No. 1, Complaint at ¶ 24.) ("Complaint at ___".) Father Tressic "befriended [Hall] and eventually provided room and board, as well as a menial maintenance position for [him] in . . . the rectory of Sacred Heart for approximately four years, or from 1998-2002." Id. at ¶ 26. Father Tressic also told plaintiff that he was putting money aside for his future and continuing educational costs. Id. at ¶ 30. During this time, plaintiff attended college to become a teacher. While the nature of the relationship between Hall and Father Tressic is disputed in that sometimes it is portrayed as a father-son relationship, plaintiff claims that he was sexually abused and molested at various times during the four years he lived and worked at Sacred Heart. Id. at ¶ 31-33. Plaintiff did not condone or permit the activity, but rather resisted without leaving the situation because he was afraid to lose the financial security Father Tressic provided. Plaintiff adds that Bishop Hubbard knew about Father Tressic's sexual orientation, and, in fact, condoned and permitted his lifestyle. Id. at ¶ 34.

  In August of 2002, Hall sought to change his situation. He accused Father Tressic of sexual abuse and attempted to negotiate a civil settlement which would provide him with some money. Id. at ¶ 35. He met with Father Tressic, Bishop Hubbard, and William Przyluch, from Catholic Charities, in early September; and then the two defendants in October of 2002, to discuss his claims. Id. at ¶¶ 40, 47. "In [the October] meeting, Bishop Hubbard stated that Father Tressic was to continue to pay plaintiff's food and rent stipend at State University of New York at Cortland until the civil matter was resolved or settled. Id. at ¶ 47. Father Tressic did pay these expenses through July of 2003. Id. at ¶ 51. In early November of 2002, there was another meeting when plaintiff accepted a $75,000 settlement offer from Father Tressic as payment in full and final satisfaction of any and all claims or possible causes of action. Id. at ¶¶ 48, 56. The $75,000 offer was not memorialized until March 19, 2003. Id. at ¶ 52. Costello drafted the Settlement and Release Agreement and mailed it to plaintiff. Id. at ¶ 263.

  In May of 2003, Father Tressic, now represented by Charney instead of Costello, filed criminal charges against Hall for attempted felony extortion. Id. at ¶ 54. The charge was based on allegations that plaintiff repeatedly threatened to go to the media with his story if he did not receive some money. Plaintiff opines that the filing of this charge, along with charges against two others also claiming sexual abuse, was done in an effort to make the defendants appear proactive in handling sex abuse matters. Id. at ¶¶ 60-63, 66. At the time plaintiff was unaware of the criminal charges filed against him and continued to negotiate a civil settlement.

  Officer Torro began an investigation into the extortion charges against plaintiff. This involved working with Hoose, the church secretary, in secretly tape recording conversations with plaintiff. (Docket No. 6, RICO Statement at ¶ 2(D).) ("RICO Statement at ___".) Costello and Charney also participated in the continuing negotiation process. (Complaint at ¶¶ 52, 83.) Plaintiff asserts that during this time period of the investigation, May 2003 through August 2003, he was regularly told that the settlement money was forthcoming and relied on those statements in managing his finances. He concludes that the overlapping investigation and negotiations demonstrate both fraud in negotiating, and entrapment in investigating.

  On August 19, 2003, Officer Torro took Hall "into custody and interrogated" him concerning the alleged extortion. The interview lasted an hour and was taped. Id. at ¶¶ 80, 81. The next day plaintiff attended a scheduled mediation meeting where he was informed that Fr. Tressic did not intend to pay the $75,000 settlement. Id. at ¶¶ 83-86. Plaintiff concluded that the meeting was a sham and attempted to file charges against Father Tressic, but Officer Torro would not permit it. Id. at ¶ 87.

  Hall was "ultimately arrested and indicted by a Fulton County Grand jury on or about October 6, 2003 with a crime of Attempted Grand Larceny in the Second Degree." Id. at 37. Plaintiff testified before the Grand Jury for three hours. Id. at ¶ 96. He is unsure, but believes that the defendants testified against him and alleges that they committed perjury. Id. at ¶ 97.

  Shortly thereafter, in November 2003, plaintiff was forced to withdraw from school. Id. at ¶¶ 95, 281. Having criminal charges brought against him, and being indicted on a felony, mandated that plaintiff withdraw from the student teaching position at which he was working. Id. at ¶¶ 119, 282, 283. Plaintiff notes that the rules and policies regarding becoming a teacher have changed recently, and because of the loss of the student teacher position, he is now required to retake many college credits. Id. at ¶¶ 122, 285.

  On February 25, 2004, the indictment against Hall was dismissed in the "interest of justice." Id. at ¶ 115. In dismissing the claim, the judge noted the weaknesses in the government's case: Hall never actually got any money; the negotiations that occurred tended to negate the requisite criminal intent; Father Tressic was reluctant to testify; punishment would be unlikely to effect Hall's character; and the crime was unlikely to be repeated. However, the judge made a point of noting the propriety of the indictment. The record before the Grand Jury was unusually full and complete, and the defendant's testimony was both ambiguous and harmful to his interests. (Decision and Order Fulton County Court, Indict. No. 2003-92, Hon. Polly Hoye, at 3, 5.)

  Plaintiff filed the instant action in August of 2004. In stating his RICO claim, plaintiff alleges that defendants have acted in furtherance of a "scheme to protect predatory priests and other clergy from criminal and civil prosecution, to maintain or increase charitable contributions and/or avoid public scandal."*fn2 Id. at ¶ 243. III. DISCUSSION

  A. Motion to Dismiss

  "On a Rule 12 motion to dismiss, the court must accept the factual allegations contained in the complaint, and the RICO statement where RICO claims are asserted, as true, and draw all reasonable inferences in favor of the plaintiff." Nasik Breeding & Research Farm Ltd. v. Merck & Co., 165 F. Supp. 2d 514, 525 (S.D.N.Y. 2001). The court's function is "not to weigh the evidence that might be presented at trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). Therefore, the defendants' present motion will only be granted if it appears that the plaintiff can prove ...

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