Yeshiva University High School for Boys
Yeshiva University High School for Boys (yuhsb.org)

With a ruling last week, two federal court judges have now reached different conclusions about whether damages could be sought in cases before them of sexual abuse that occurred decades ago.

Southern District Judge John Koeltl (See Profile) dismissed Twersky v. Yeshiva University, 13 Civ. 4679, a case in which 34 former students at Yeshiva University High School for Boys sought $680 million in damages for alleged abuse between 1968 and 1992 at the hands of an administrator, a teacher, and a one-time student who they claimed was given free run of the dorms.

Koeltl said Thursday the three-year statute of limitations­­—tolled for minorities until claimants reach age 18—has long since run. He rejected an argument that positive statements about alleged abusers to the general community after some abuse had been reported to a school official equitably estopped a defendant school from invoking a statute of limitations defense.

“[T]here is nothing about general statements to the community that prevented the plaintiffs from knowing they were abused, who had abused them, and who employed their abusers,” Koeltl said in his 52-page opinion, ruling that “In this case, the statutes of limitations have expired decades ago, and no exceptions apply.”

It was how to analyze an exception to the limitations period on which Koeltl differed from a colleague in the Eastern District, Judge Frederic Block (See Profile) in Zimmerman v. Poly Prep Country Day School, 888 F.Supp.2d 317 in 2012.

Orangeburg attorney Kevin Mulhearn represented the plaintiffs in both Zimmerman and in the case before Koeltl. Mulhearn has vowed to appeal Koeltl’s ruling.

Mulhearn said that Koeltl made “an absurd distinction” when separating out statements by school officials as generalized or lacking in specificity.

“Basically, we argued what I firmly believed was an accurate statement of New York law, which provides that schools and school officials have an in loco parentis authority over students, which means that every representation a school official makes to a student is to be treated with the same immediacy and intimacy as if the statement had been made by a parent to a child armed with the same information,” he said.

In Twersky, the plaintiffs sued the university, administrators and several unnamed members of the board of trustees claiming the school was on notice about the alleged abuse by one-time principal George Finkelstein, former teacher Macy Gordon and former student Richard Andron.

Their lawsuit claimed that the defendants failed to disclose this information to parents, teachers and law enforcement authorities.

In Zimmerman, the plaintiffs had argued the school should not be allowed to invoke the statute of limitations on their claims that a football coach abused them in a number of incidents beginning in 1966 and running for over 20 years. The plaintiffs argued that the school should be estopped because of statements by school officials about the good standing of the coach.

Block said it was possible that representations made by school officials at school events and in school publications about the good standing of the alleged abuser could have led the plaintiffs to “falsely believe that” the school “was aware of the abuser’s misconduct and could not be liable for negligent retention or supervision” (NYLJ, Aug. 30, 2012).

Block held that it was possible for the plaintiffs to show estoppel, although he said the argument faced “several hurdles.” He ordered an evidentiary hearing on the issue but the case settled before a hearing was necessary.

In Twersky, Mulhearn also claimed equitable estoppel for failure to report the abuse to the authorities, failure to warn families and failure to disclose the abuse publicly.

But Koeltl said that “absent a fiduciary relationship, such passive concealment falls short of the sort of specific and affirmative misrepresentation required to trigger an equitable estoppel defense.”

The argument made by Mulhearn in Twersky was based on positive statements made over the years to the school community at large about the three alleged abusers after the name plaintiff made an abuse allegation against Finkelstein to Yeshiva University president and chancellor Norman Lamm in 1983, and Lamm took no action.

In an article in the Jewish Daily Forward in 2012, Lamm told a reporter “if it was an open-and-shut case I just let [the staff member] go quietly. It was not our position to destroy a person without further inquiry.”

But in his 2013 resignation letter, Lamm conceded his approach was “ill-conceived” and the Twersky plaintiffs said in their complaint that they could not have known about the school’s awareness of sex abuse until the “length and extent of the cover up was first presented” in the Jewish Daily Forward article.

Koeltl, however, said the statements made to the school community at large after Twersky reported the abuse to Hamm “are also inadequate in light to the specificity requirement.”

Koeltl said in a footnote that Block’s statement in Zimmerman about how public representations could have led plaintiffs to falsely believe the school was unaware of the abuse was inconsistent with the New York Court of Appeals decision in Zumpano v. Quinn, 849 N.E.2d 926 (N.Y. 2006).

“This position cannot be squared with Zampano, in which the Court of Appeals found that the plaintiffs’ failure to ‘allege any specific misrepresentation[s] to them by defendants’ was fatal to their equitable estoppel defense,” Koeltl said. “Accordingly, Zimmerman is unpersuasive.”

In the body of the opinion, Koeltl said the New York Court of Appeals has yet to rule on “whether a fiduciary relationship sufficient to trigger estoppel-by-passive-concealment exists between a school and its students, or whether such a duty is breached by the school’s failure to disclose prior incidents of sexual abuse.”

But that is of no matter here, he said, “because even assuming the in loco parentis relationship had a transformative effect upon the passive concealments and generalized misstatements … any such relationship between the schools and the students ceased at the very latest when the students left or graduated.”

Karen Bitar, Stephen Mendelsohn and Ryan Harsch of Greenberg Traurig represented the defendants.