Y.u. Abuse Victims Cite "Catch-22" in Appeal of Dismissal of $680m Suit

By Paul Berger
Jewish Daily Forward
February 18, 2014

http://forward.com/articles/192945/yu-abuse-victims-cite-catch--in-appeal-of-dismis/

A federal judge created a “Catch-22” for victims of sexual abuse at Yeshiva University’s high school by refusing to consider the impact of the school’s alleged cover-up, former students charged in an appeal of the dismissal of a $680 million lawsuit.

Kevin Mulhearn, a lawyer for 34 men who say they were abused at Yeshiva University’s Manhattan boys high school, said in the judge’s January 29 decision made it impossible for victims to bring a claim.

“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. Mulhearn filed the appeal on February 14.

Judge John G. Koeltl, of United States District Court in Manhattan, dismissed the former Y.U. students’ claims last month, citing New York State’s statute of limitations. Under state law, child abuse victims have to bring negligence claims against third parties, such as a school, before they turn 21.

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, the judge said.

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, 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 a similar case in 2012 by arguing that Poly Prep Country Day School, in Brooklyn, 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. He appeared to suggest that the Poly Prep ruling was incorrect, referring to it as “unpersuasive.”