By Mark Hamblett, From New York Law Journal

It didn’t take long for a federal appeals court to hold that the statute of limitations had since expired on claims by dozens of former students that they had been sexually abused by a former principal and two others at Yeshiva University High School for Boys.

One week after oral arguments, Judges Reena Raggi (See Profile), Guido Calabresi (See Profile) and Denny Chin (See Profile) ruled the statute was not tolled by the plaintiffs’ belated realization of an alleged school conspiracy to cover up the abuse by one-time principal George Finkelstein and a former teacher and former student at the school.

The court held in Twersky v. Yeshiva University, 14-365-cv, that the Title IX claims of some 34 plaintiffs who were seeking $680 million in damages were “correctly dismissed as untimely” by Southern District Judge Koeltl (See Profile).

On Aug. 28, the three judges grilled plaintiffs’ lawyer Kevin Mulhearn on his contention that Koeltl erred in February by dismissing the case brought against Yeshiva and former high-ranking officials for deliberate indifference to the predations of Finkelstein, ex-teacher Macy Gordon and former student Richard Andron, a friend of Finkelstein’s.

But the judges also gave a hard time to the school’s attorney, Karen Bitar of Greenberg Traurig, criticizing her position on when the clock started running on the former students’ claims, which were brought over 20 years after the last plaintiff had left the school. (NYLJ, Aug. 29.)

Nonetheless, on Thursday the judges ruled for Bitar and the school by summary order on the three-year statute of limitations. While the statute is tolled under New York law until the students reached the age of 18, the court said, they were obligated to bring suit long ago.

“When plaintiffs left YUHS, more than 20 years before filing this suit on July 8, 2013, they were unquestionably aware of (1) their injuries, (2) their abusers’ identities, and (3) their abusers’ prior and continued employment at YUHS,” the court said. “This information was sufficient to put them on at least inquiry notice as to the school’s awareness of an indifference to the abusive conduct of its teachers.”

Mulhearn had argued the former students could not have discovered the extent of the “monstrous coverup and conspiracy” until a 2012 article in the Jewish Daily Forward in which former University President and Chancellor Norman Lamm, a defendant in the Mulhearn lawsuit, admitted he had received a complaint against Finkelstein in 1983 and did nothing, believing that it was better to let an offending staff member “go quietly.”

When Lamm resigned in 2013, he conceded that his approach had been “ill-conceived,” and Mulhearn, who contends that the school’s deliberate indifference created the environment that allowed the abuse to happen in the first place, said this revelation was what started the clock running on the time to file suit. The circuit disagreed.

“This conclusion is belied by the fact that nine plaintiffs brought their own abuse to the attention of Lamm or other administrators,” the court said. “To the extent these administrators rebuffed their complaints or otherwise failed to take adequate remedial action, plaintiffs were thus aware more than three years before filing this suit of a potential claim for deliberate indifference.”

The circuit also disposed of the argument that the school discouraged the students by falsely describing Finkelstein and Gordon as “highly regarded,” in “good standing” and “trustworthy” at school events and in school publications.

“These alleged falsehoods were neither directed at plaintiffs nor sufficiently specific so as to admit plaintiffs’ reasonable reliance in failing to investigate or file suit,” the court said.

And the court did not buy Mulhearn’s argument that the school’s status as in loco parentis meant that any statement it made to students had the force of the words of a parent.

“Even assuming that defendant occupied an in loco parentis status that required disclosure of their alleged knowledge of the teachers’ prior abuses, this relationship ended when plaintiffs left YUHS,” the judges said.

IMAGE: Yeshiva University High School for Boys yuhsb.org

For more on this story go to: http://www.newyorklawjournal.com/id=1202668997251/Dismissal-of-Sex-Abuse-Case-Against-Yeshiva-Upheld#ixzz3CgMTmILT