How Y.U. Won $680M Abuse Case on Same Issue Another School Lost

Appeals Court Unlikely To Allow Statute of Limitations Easing


By Paul Berger

Published February 19, 2014.
  • Print
  • Share Share

In a decision likely to affect the access child sex abuse victims in New York will have to civil remedies years after their alleged abuse, a federal appeals court will examine dueling decisions by judges in two recent high-profile child sex abuse lawsuits.

Lawyer Kevin Mulhearn represented plaintiffs in both cases, which were filed long after New York State’s statute of limitations for child sex abuse suits.

In the first case, against Poly Prep Country Day School in Brooklyn, Mulhearn persuaded a judge that the school’s cover-up of abuse and the positive statements it made about an abuser were enough to override the state’s statute of limitations.

But Mulhearn lost his second case, a $680 million lawsuit against Yeshiva University, in January of this year, despite using an identical legal strategy.

In both cases Mulhearn argued that each school’s positive statements about the alleged abusers to victims and to the school community were enough to “toll,” or pause, the statute of limitations.

A federal judge in Brooklyn, Frederic Block, ruled in Mulhearn’s favor in the Poly Prep case. He rejected a motion to dismiss the case and, soon after, the school negotiated a settlement with victims.

But a federal judge in Manhattan, John Koeltl, dismissed the Y.U. case on January 29. Koeltl even appeared to suggest that the Poly Prep decision was wrong, describing it in his ruling as “unpersuasive.”

Mulhearn filed an appeal of Koeltl’s decision with the Court of Appeals for the Second Circuit on February 14. New York State’s statute of limitations has long been the bane of campaigners who say the short window given to abuse victims to file civil or criminal complaints works in favor of perpetrators and the institutions that shield them.

In New York, victims have until the age of 23 to bring civil claims against their abusers and until the age of 21 to bring claims against third parties. Abuse advocates say that in many cases victims are too traumatized to bring a case until they are much older.

Neal Brickman, a Manhattan lawyer who has handled a number of civil sex abuse cases, said that finding a legal reason to pause the statute of limitations in court presents “an incredibly high burden.”

“I think the surprising aspect of the two cases is [Mulhearn] got a judge to buy the tolling argument [in the Poly Prep case],” Brickman said. “Almost unanimously these cases have not allowed a tolling of the statute.”

He added: “My caution to Mr. Mulhearn would be, don’t push the one he lost too hard because he may drag the one he won down with him.” Marci Hamilton, an advocate for nationwide reform of statutes of limitations, said it is “unlikely” the appeals court will rule in Mulhearn’s favor because New York’s courts prefer to leave statute of limitations issues to the legislature.

“I do not expect that these survivors will receive any better treatment in New York than others have until the judicial, the legislative, or the executive branch decide to choose children over powerful men,” said Hamilton, a law professor at Yeshiva University’s Benjamin N. Cardozo School of Law.

In recent years there has been a huge push to reform statutes of limitations for child sexual abuse. Data collected by Hamilton indicates that last year, eight states passed legislation extending or lifting criminal or civil statutes of limitations for such cases. This year, bills to do so are pending in California, Georgia, Hawaii, Iowa and New York.

Assemblywoman Margaret Markey has tried and failed four times to pass legislation that would relax New York’s filing deadline. Markey said that the federal court decision in the Y.U. case “shows how the current law actually rewards institutions such as such as this one that placed reputation ahead of responsibility.” Markey’s latest bill, would eliminate the criminal and civil statute of limitations on child sexual abuse. It would also open up a one-year window for decades-old civil abuse claims.

Though the legislation is likely to pass in the Assembly later this year, Markey’s bill faces tough opposition in the senate. Her bills have never made it to the senate floor because of opposition from senators who cite objections from the Catholic Church and some ultra-Orthodox organizations that decades-old civil suits are difficult to defend against and could bankrupt their religious institutions.

Judge Koeltl, in his January 29 decision, said: “Statutes of limitations strike a balance between providing a reasonable time for victims to bring their claims while assuring that defendants have a fair opportunity to defend themselves before evidence is lost or memories fade.” Koeltl added: “In this case, the statutes of limitations have expired decades ago, and no exceptions apply.” Mulhearn, who represents 34 men who say they were abused at Yeshiva University’s Manhattan boys high school, said Koeltl’s decision created a “Catch-22” for victims of abuse.

“There’s no way sex abuse victims can get justice if the school decides to conceal and cover-up their own knowledge and complicity,” Mulhearn told the Forward.

Koeltl said that the students, who were abused between 1971 and 1992, knew they were abused, knew who abused them and knew who employed their abusers. They could and should have brought their claims decades ago, he ruled.

But Mulhearn told the Forward that the key issue is that Y.U. staff and board members knew that rabbis George Finkelstein and Macy Gordon were a threat to students. Y.U. not only continued to employ the men, but the Modern Orthodox college covered up complaints and maintained to students and their families that the two rabbis were trustworthy people. That made it impossible for the abuse victims to prove a cover-up until long after the statute of limitations had expired, Mulhearn said.

In court papers filed with the Court of Appeals for the Second Circuit, which covers New York, Vermont and Connecticut, Mulhearn said: “The District Court created a grossly improper and absurd ‘Catch-22’… by requiring Plaintiffs to bring claims against Y.U. and [its high school] of which they neither knew nor — because of Defendants prolonged and successful concealment and cover-up — ought to have known.”

The former students say they only became aware of the cover-up when they read a December 2012 interview with Y.U.’s former president, Rabbi Norman Lamm, in the Forward. Lamm told the Forward that during his tenure, from 1976 to 2003, he quietly dismissed staff members for inappropriate behavior. In a July 2013 retirement letter, Lamm said: “I acted in a way that I thought was correct, but which now seems ill conceived.”

Mulhearn overcame the statute of limitations in the Poly Prep case by arguing that the school deceived students by making positive statements about a football coach, Philip Foglietta, whom administrators knew to be an abuser.

Mulhearn used the same argument in the Y.U. case, pointing out that despite more than 20 separate abuse complaints to Y.U., while students were at the school or after they left, Y.U. continued to represent Finkelstein and Gordon as upstanding rabbis, even creating scholarships in their names.

Koeltl dismissed Mulhearn’s argument. In his ruling, Koeltl said that Y.U.’s positive statements about Finkelstein and Gordon were “passive” and “general” and therefore did not rise to the level of active concealment that might stop the clock on the statute of limitations.

Contact Paul Berger at berger@forward.com or on Twitter [@pdberger](http://www.twitter.com/pdberger


The Jewish Daily Forward welcomes reader comments in order to promote thoughtful discussion on issues of importance to the Jewish community. In the interest of maintaining a civil forum, The Jewish Daily Forwardrequires that all commenters be appropriately respectful toward our writers, other commenters and the subjects of the articles. Vigorous debate and reasoned critique are welcome; name-calling and personal invective are not. While we generally do not seek to edit or actively moderate comments, our spam filter prevents most links and certain key words from being posted and The Jewish Daily Forward reserves the right to remove comments for any reason.





Find us on Facebook!
  • "I’ve never bought illegal drugs, but I imagine a small-time drug deal to feel a bit like buying hummus underground in Brooklyn."
  • We try to show things that get less exposed to the public here. We don’t look to document things that are nice or that people would like. We don’t try to show this place as a beautiful place.”
  • A new Gallup poll shows that only 25% of Americans under 35 support the war in #Gaza. Does this statistic worry you?
  • “You will stomp us into the dirt,” is how her mother responded to Anya Ulinich’s new tragicomic graphic novel. Paul Berger has a more open view of ‘Lena Finkle’s Magic Barrel." What do you think?
  • PHOTOS: Hundreds of protesters marched through lower Manhattan yesterday demanding an end to American support for Israel’s operation in #Gaza.
  • Does #Hamas have to lose for there to be peace? Read the latest analysis by J.J. Goldberg.
  • This is what the rockets over Israel and Gaza look like from space:
  • "Israel should not let captives languish or corpses rot. It should do everything in its power to recover people and bodies. Jewish law places a premium on pidyon shvuyim, “the redemption of captives,” and proper burial. But not when the price will lead to more death and more kidnappings." Do you agree?
  • Slate.com's Allison Benedikt wrote that Taglit-Birthright Israel is partly to blame for the death of American IDF volunteer Max Steinberg. This is why she's wrong:
  • Israeli soldiers want you to buy them socks. And snacks. And backpacks. And underwear. And pizza. So claim dozens of fundraising campaigns launched by American Jewish and Israeli charities since the start of the current wave of crisis and conflict in Israel and Gaza.
  • The sign reads: “Dogs are allowed in this establishment but Zionists are not under any circumstances.”
  • Is Twitter Israel's new worst enemy?
  • More than 50 former Israeli soldiers have refused to serve in the current ground operation in #Gaza.
  • "My wife and I are both half-Jewish. Both of us very much felt and feel American first and Jewish second. We are currently debating whether we should send our daughter to a Jewish pre-K and kindergarten program or to a public one. Pros? Give her a Jewish community and identity that she could build on throughout her life. Cons? Costs a lot of money; She will enter school with the idea that being Jewish makes her different somehow instead of something that you do after or in addition to regular school. Maybe a Shabbat sing-along would be enough?"
  • Undeterred by the conflict, 24 Jews participated in the first ever Jewish National Fund— JDate singles trip to Israel. Translation: Jews age 30 to 45 travelled to Israel to get it on in the sun, with a side of hummus.
  • from-cache

Would you like to receive updates about new stories?




















We will not share your e-mail address or other personal information.

Already subscribed? Manage your subscription.