Wednesday, February 19, 2014

Class Action Against Yeshiva University High School Dismissed as Untimely

34 adults who attended Yeshiva University High School for Boys between 1968 and 1992 allege in a recent lawsuit that they were abused by one or more individuals associated with YUHS during that time, including a former administrator and principal named Finkelstein, a faculty member named Gordon, and a former student named Andron who was not employed by the school, but as a friend of Finkelstein was allegedly "permitted to roam the hallways of the boys dormitory and enter student rooms as he pleased."  The plaintiffs allege that despite multiple reports of abuse to school administrators, the threat presented by any of them was never disclosed to the students or their parents.  Furthermore, Finkelstein was allowed to keep his job and no disciplinary action was taken against him.  While Gordon was fired, the school did not disclose that it was because of sexual abuse; a fact further obscured by the school's later conduct in honoring him at a school dinner and set up a scholarship in his name. Plaintiffs also allege that school officials were dismissive of their reports of abuse.

A federal court in New York recently dismissed this claims as barred by the statute of limitations.  In so doing, the court rejected the plaintiff's argument that under New York's "discovery rule," the applicable three-year statute of limitations did not begin to run until the plaintiff "discovers or reasonably should have discovered the injury."  Here, the plaintiffs allege that this did not happen until a Yeshiva University official named Lamm admitted in an interview with the Jewish Daily Forward in December 2012 that he and other administrators had been aware of the risk of sexual abuse at YUHS when it was occurring.  But the court reasoned that this argument "confuses knowledge of the existence of a legal right with knowledge of injury."  The plaintiffs were aware of their abuse at the time it occurred, and should have worked from that point to develop their case, the judge reasoned.

I disagree with the court's reasoning here for the simple reason that the injury the plaintiffs allege in this case is not the injury caused by the abusers, but the injury caused by the school's own misconduct in covering up the abuse.  The abuse and the coverup are two separate wrongs.  The plaintiffs are not seeking to hold the school vicariously liable for the acts of the abusers, but for their own misconduct, misconduct they did not learn about until 2012. This later discovery is what ought to have started the plaintiffs' statute of limitation to run, and render their later-filed lawsuit timely.   

Decision: Twersky v. Yeshiva Univ., 2014 WL 314728 (S.D.N.Y. Jan. 29, 2014).