By Adam Klasfeld (Courthouse News Service)
August 28, 2014
MANHATTAN (CN) - At a tense hearing Thursday, an attorney for Yeshiva University drew the ire of appellate judges by claiming that the clock of the statute of limitations started ticking the moment that rabbis allegedly victimized their high school students.
Thirty-four former students of the Yeshiva University High School for Boys sued the university, its directors and administrations in New York in 2013 for $380 million, for the "horrific abuse" they said they endured between 1968 and 1998.
Now in their late 30s and early 60s, the former students claim that the school knew about the assaults and did nothing to stop them.
Rabbi George Finkelstein "preyed on the children of Holocaust survivors," and Rabbi Macy Gordon sodomized a 16-year-old boy with a toothbrush, according to allegations of the graphic , 148-page complaint.
Before their case came to trial, U.S. District Judge John Koeltl dismissed the lawsuit because he found that the statute of limitations had elapsed.
All three appellate judges pressed the former students' attorney Kevin Mulhearn about why his clients did not bring their lawsuit as soon they saw that the school had not acted upon their complaints.
At first, the judges seemed to agree that the former students were "on notice" the moment they believed that the school had stonewalled their complaints.
U.S. Circuit Judge Guido Calibrasi repeated almost mournfully at one point: "Nothing was done, and nothing was done and nothing was done."
The students claim that their notice began when the Jewish Daily Forward published its investigation into the allegations against the Yeshiva in 2012.
Before that time, Mulhearn said, "The administration gave every indication that they did not know about it."
Mulhearn said that the fact that Yeshiva University honored Finkelstein at a tribute dinner in 1995 supports this point.
Karen Bitar, representing the school for Greenberg Traurig, countered that Rabbi Finkelstein's alleged abuse had a reputation as one of the "best kept secrets" of the school.
"I say that with a little bit of sarcasm," she said.
The judges appeared to be taken aback when Bitar said: "Once there is the abuse, it is incumbent on the plaintiff to investigate."
Calabresi, bristling, said: "Impossible!"
Calabresi compared that position to expecting the victim of a car accident to probe whether the other vehicle had a structural defect in order to sue its manufacturer.
Judge Reena Raggi, too, appeared surprised by Bitar's contention.
"You may want to listen to the argument you're making," she said.
Not backing down, Bitar said that the former Yeshiva students "sat on their rights between 20 and 40 years."
Raggi blasted her for "stubbornly arguing that the time of accrual is the time of assault."
Apparently agreeing, Calabresi remarked, "You're doing something very dangerous."
The judge added that courts will want to act on the "appalling" acts alleged against the rabbis and the school unless she proves the complaint was filed too late.
When Bitar said that Judge Koeltl made the same finding, Calabresi replied that his ruling adopted a different reasoning.
"Judge Koeltl knew what he was doing," Calabresi said. "I'm asking you if you know what you are doing."
After more sustained grilling, Bitar stepped down, and Mulhearn began his rebuttal arguments to a warmer reception than when he started.
Raggi told him: "Your situation is a little bit better than when you sat down."
Still, she warned him, "It's not whether your adversary's counsel is wrong. It's whether Judge Koeltl was wrong."
Mulhearn replied that Koeltl indeed made a mistake by basing his opinion on arguments the Yeshiva never made.
Although the judges reserved decision, Mulhearn said in a telephone interview the hearing that he and his clients are "optimistic" that their case will be revived.
Seven of them attended the hearing, and some brought family members with them.
Mulhearn said that the lead plaintiff, Mordechai Twersky, was not in court because he lives in Israel.