Y.U. Backed by Abuse Case Judge on Statute of Limitations — Conflict With Poly Prep

By Paul Berger
Jewish Daily Forward
February 19, 2014

http://forward.com/articles/192996/yu-backed-by-abuse-case-judge-on-statute-of-limita/?

An appeals court in New York will examine dueling decisions by federal judges in two recent high-profile child sex abuse lawsuits and, at least in the Northeast, the court’s decision is likely to affect the access future child victims will have to civil remedies years after their alleged abuse.

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. Last year, eight states passed legislation that extended or lifted 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’s latest bill, would eliminate the criminal and civil statute of limitations on child sexual abuse.

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.

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, leading the alleged victims to negate their own experiences.

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.