ADR: Sweringen v. New York State Dispute Resolution Association

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U.S. District Court, Northern District of New York

ADR

Deceptive Practices — Conflict of Interest

Sweringen v. New York State Dispute Resolution Association
05-CV-428
Judge Mordue

Background: NYSDRA is a nonprofit professional membership organization that provides dispute resolution services. In 2004, the Roman Catholic Diocese of Albany hired retired New York Court of Appeals Judge Howard A. Levine to develop the Independent Mediation Assistance Program and serve as its system administrator. The stated purpose of IMAP was to provide assistance to people who as minors had been abused sexually 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 claims in the complaint include the following: that NYSDRA is involved in a conflict of interest inasmuch as it is funded by the diocese and therefore is not independent and neutral as advertised; that in arranging for mediation of cases under the IMAP program, NYSDRA is violating its own policy statement that mediation “is not an option” in child abuse cases; that NYSDRA falsely advised the plaintiff that NYSDRA “was permitted to be involved in the program and that the program was appropriately vetted by the defendant NYSDRA and did not involve fraud, deception or a conflict of interest”; that NYSDRA unfairly and unjustly granted to its representatives discretionary authority to determine what matters proceed to mediation and what matters are delayed or do not go to mediation; and that NYSDRA’s employees do not have formal training in working with victims of sexual abuse.

Ruling: As to the deceptive practices claim under the General Business Law, Sweringen cannot prevail on his section 349 and 350 claims, because no rational jury could find that the communications of which he complains were likely to mislead a reasonable consumer under the circumstances. A rational jury also could not find that those communications caused Sweringen injury. As to the breach of contract claim, the court finds no basis in the record to imply an agreement as alleged by Sweringen. The publicly-disseminated information demonstrates NYSDRA disclosed the role of the diocese. There is no evidence that NYSDRA promised Sweringen the diocese would mediate with him, that Sweringen was entitled to any relief or that the offending priest would be removed from the ministry. Moreover, apart from the lack of evidence that NYSDRA made the alleged promises, there is no evidence that it made any such promises as consideration for any particular performance by Sweringen. Likewise, while Sweringen may have refrained from suing or criticizing the church, there is no evidence of any agreement between him and NYSDRA that he would do those things as consideration for NYSDRA’s performance. That and the other causes of action are dismissed. Summary judgment is granted in favor of the defendant.

Randall Sweringen and David Wilson et al., pro se, and Mark W. Blanchfield of Hiscock & Barclay LLP for the defendant