By Paul Berger (The Jewish Daily Forward)
September 26, 2013
Dozens of former students who say they were abused by rabbis at a Yeshiva University high school waited decades too long to file their $380 million lawsuit, Y.U.’s attorneys say.
“There is no debate that the abuse each plaintiff endured, if true, is unacceptable,” the attorneys stated in a recent court filing. But “the law strikes a balance between the rights [the plaintiffs] could have exercised long ago, and the defendants’ competing rights to a fair opportunity to present evidence in their defense.
“The passage of time, fading of memories and passing of witnesses deprives defendants [of] a fair opportunity to defend themselves against plaintiffs who sat on their claims.”
Under New York State law, child victims of sexual abuse have until their 23rd birthday to file a civil lawsuit.
Kevin Mulhearn, who represents the plaintiffs in this case, argues that the statute of limitations does not apply, because Y.U. fraudulently covered up the abuse and misrepresented the safety of the school. Mulhearn’s clients are 34 former students of Yeshiva University’s High School for Boys, in Manhattan, aged 39 to 60. The former students are suing Y.U., current and former senior administrators, and trustees for $380 million in damages for abuses that they say took place between 1971 and 1992.
Last August, Mulhearn wielded the same argument to survive a motion to dismiss a similar case involving his alma mater, Poly Prep Country Day School, in Brooklyn. Poly Prep settled for an undisclosed sum last year with 12 men who said they were abused by the school’s former football coach, Philip Foglietta.
Y.U.’s motion to dismiss the case, which has been anticipated for several weeks, was filed September 13 in U.S. District Court in Manhattan.
Karen Bitar, a lawyer for the firm Greenberg Traurig, which represents the defendants, anticipates that Mulhearn will rely on a ruling in the Poly Prep case to bolster his lawsuit.
Bitar says that the Poly Prep case was “wrongly decided, and should not be followed,” because it misinterpreted an earlier court ruling known as Zumpano, which has killed off many similar previous abuse cases.
But Bitar does not rely on just the statute of limitations to rebut the former students’ suit.
Her motion questions how Y.U. could have fraudulently deceived the abused students into thinking that their rabbis were trustworthy.
“Once abused, plaintiffs were aware that Y.U.’s alleged ‘marketing schemes’ and advertisements were false and deceptive, yet they did not diligently pursue these claims,” Bitar said.
She added that of the nine students who reported abusive incidents to Y.U., none produced evidence that he was prevented from filing a civil suit.
Indeed, Bitar argues that the nine students who reported the abuse were “aware decades ago that the school knew about the ‘sexual predators’ and [the school] failed to taken any action as to their retention/supervision.”
The former students say they were abused by Rabbi George Finkelstein, an administrator who rose to become principal of Y.U.’s high school, and Macy Gordon, a Talmud teacher. Both men worked at Y.U.’s high school for about 25 years.
Three former students say they were abused by Richard Andron, a man who in his late 20s and early 30s visited Y.U.’s high school dormitory during the late 1970s and early ’80s.
Bitar says that because Andron was not a Y.U. employee and because there is no evidence that officials at Y.U. or at the high school were warned that Andron posed a threat, claims concerning him “should be dismissed.”
Some of the former students say that Finkelstein abused them at his Manhattan apartment as well as in a school office and in hallways. Bitar says that Y.U. is not liable for abuses that took place “outside the school premises” because these alleged incidents were “beyond Finkelstein’s and Gordon’s employment.”
The students claim that Y.U. misled them by praising and honoring Finkelstein and Gordon in Y.U. publications and at Y.U. events. But Bitar counters that the students’ examples of misrepresentations are too “generalized and amorphous” and too full of “vague, sweeping statements” to provide evidence of fraud.
She asks why, “given their dreadful firsthand experience” the students did not, until now, doubt their rabbis’ moral character, seek to find out whether others had been abused or pursue legal action.
The former students claim that Y.U.’s failure to deal with the allegations of abuse adequately caused them severe emotional distress. But Bitar said that courts have dismissed similar claims “in circumstances far more egregious than what is, at its core, passive conduct: defendants’ alleged failure to disclose their purported knowledge of other abuse or their failure to respond.”
She added that many of the students failed to show physical manifestation of their emotional distress.
Former students say that they suffered further distress when they learned, through a December 2012 article in the Forward, that the abuse was widespread.
Bitar said that if it is true that Y.U. attempted to conceal the abuse, the university cannot be blamed for causing “severe emotional distress, because their efforts were intended to… prevent the discovery of the scope of the abuse.”
The students’ “‘severe emotional distress’ did not stem from the defendants’ conduct, but from reading about the allegations of abuse in a newspaper article that [Y.U.] did not control,” she said.
Oral arguments in the case are scheduled for October 29.