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Sweringen v. New York State Dispute Resolution Association

February 16, 2010


The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge



Defendant New York State Dispute Resolution Association ("NYSDRA") moves (Dkt. No. 67) for summary judgment dismissing the action. As set forth below, the Court grants summary judgment and dismisses the action in its entirety.



The following factual background is undisputed unless otherwise indicated. NYSDRA is a not-for-profit professional membership organization that provides dispute resolution services.

In 2004, the Roman Catholic Diocese of Albany ("the Diocese") hired retired New York Court of Appeals Judge Howard A. Levine to develop the Independent Mediation Assistance Program ("IMAP") and serve as its system administrator. The stated purpose of IMAP was to provide assistance to people who as minors had been sexually abused by clergy of the Diocese. Judge Levine contracted with NYSDRA to provide dispute resolution services for IMAP for a fee. Judge Levine's law firm, Whiteman Osterman and Hanna, LLP, paid NYSDRA for the services and was reimbursed by the Diocese.

The IMAP process is described by Charlotte Carter, a NYSDRA employee and Intake Coordinator for IMAP, in her affidavit on this motion, as follows:

The IMAP program afforded victims an opportunity to take part in one or more mediation sessions with a Diocese representative and a mediator, who would facilitate discussions and assist the parties in reaching a mutually agreeable result. ***

By the terms of the program, neither the victim nor the Diocese was obligated to mediate with regard to any particular case. *** Once the IMAP program was announced and was operating, victims and their representatives would typically contact me through e-mail and by telephone to inquire about the program. I would, in turn, supply these people with a brochure about the program and/or refer them to the IMAP website, as well as answer questions about the program.

If the victim expressed an interest in mediation, I would gather information

...[about the claim from various sources]. *** The IMAP System Administrator, Howard Levine, also not a NYSDRA employee or contractor, would review the ... [information] to make a preliminary determination whether the matter would be suitable for mediation.

Thereafter, the Diocese could still decide whether to mediate a particular case or not. If the Diocese decided not to mediate a particular case, I understand the matter could be resubmitted to the System Administrator for further information gathering and review, and the System Administrator could resubmit the matter to the Diocese for their agreement or not to mediate. While the input of the System Administrator was given weight, the Diocese could still refuse to mediate in any particular case.

I understand that at one point before IMAP was announced, it was proposed that the program be open to victims who were 21 or younger at the time of the abuse, without a showing of special circumstances. By the time of the IMAP announcement, the Diocese had determined to direct the program primarily toward victims who were under the age of 18 at the time of the abuse. This age cut-off could be waived for victims who were between 18 and 21 at the time of the abuse, provided the age of majority was 21 at the time of the abuse or there was clinical evidence of a victim's special vulnerability.

Once IMAP was announced, NYSDRA's role was to gather and transmit information with respect to victims expressing interest in mediation, to provide mediators, to provide non-lawyer advocates if requested, to coordinate mediation sessions between the parties, to track each matter until the mediation was complete, and to compile data regarding the program. Though I did not conduct mediations, the other tasks were handled primarily by me.

No one at NYSDRA provided any counseling or other therapeutic or pastoral assistance to the victims. No one at NYSDRA determined who would be eligible to participate in IMAP, determined which cases the Diocese would mediate, nor determined what the victims would receive as a result.

No one at NYSDRA determined the type and content of the advertising or other publicity that would be used to disseminate information about IMAP -- all that was taken care of by the Diocese.

Upon the announcement of the IMAP program on September 22, 2004, it was publicly stated that the program would be funded by the Diocese and that there would be limits on the resources made available to restore the victims.

I am aware of a flow chart distributed at the press conference which made it clear that the program was directed primarily towards those abused while under 18; those abused between ages 18 and 21 would have to demonstrate clinical evidence of special vulnerability or show that the age of majority was 21 at the time of the abuse.

(Paragraph numbering and citations to record omitted.) The plaintiffs

The amended complaint (Dkt. No. 20) claims that plaintiff Randall Sweringen, who was abused by a priest in the mid-1980's when he was 18, 19 and 20 years old, "has been participating in, been involved in and has signed up for" IMAP beginning in October 2004. The amended complaint further states that plaintiff David Wilson, a victim of childhood sexual abuse by a priest, "has investigated and looked into" IMAP. Claims are also asserted on behalf of the John Doe plaintiffs; however, no individuals have been substituted for the John Doe plaintiffs. Sweringen's contacts with IMAP

The initial press release on September 22, 2004 and virtually all subsequent promotional materials regarding IMAP stated that the program was primarily directed towards victims who were minors - that is, under 18 - when the abuse occurred.*fn1 In one of her first e-mails to Sweringen in early November 2004, IMAP's Intake Coordinator, Charlotte Carter, told him that "IMAP is intended to help those who, as minors under 18, were abused by clergy or deacons of the Albany Diocese." Sweringen requested that his case be considered anyway, despite the fact that he was not a minor when he was abused. On November 16, 2004, Carter sent Sweringen an informational brochure and directed him to the IMAP website, which Sweringen subsequently acknowledged reviewing. In correspondence on November 16, 2004 and on other occasions Carter informed Sweringen that the Diocese had discretion to determine whether to participate in mediation with him or any other victim. After a series of communications with Sweringen, Carter informed him on January 12, 2005 that the Diocese did not consider his case to be within the program guidelines because of his age at the time of the abuse. She added: "I raised that with Judge Levine's office, and I am waiting for a response from them." On January 23, 2005, Sweringen wrote to Carter that he had decided not to pursue the matter with NYSDRA any longer and that all further contact with IMAP and the Diocese ...

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