Twersky v. Yeshiva Univ.

• Decision Date: 29 January 2014
• Docket Number: No. 13 Civ. 4679(JGK).,13 Civ. 4679(JGK).
• Citation: 993 F.Supp.2d 429
• Parties: Mordechai TWERSKY, et al., Plaintiffs, v. YESHIVA UNIVERSITY, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

993 F.Supp.2d 429

Mordechai TWERSKY, et al., Plaintiffs,

v.YESHIVA UNIVERSITY, et al., Defendants.

No. 13 Civ. 4679(JGK).

United States District Court, S.D. New York.

Jan. 29, 2014.

Kevin Thomas Mulhearn, Kevin T. Mulhearn, P.C., Orangeburg, NY, for Plaintiffs.

Stephen A. Mendelsohn, Greenberg Traurig, P.A., Boca Raton, FL, Karen Yasmine Bitar, Ryan Frazer Harsch, Greenberg Traurig, LLP, Joel Cohen, Stroock & Stroock & Lavan LLP, New York, NY, for Defendants.

OPINION AND ORDER

JOHN G. KOELTL, District Judge:

The plaintiffs in this action are thirty-four former students of Yeshiva University High School for Boys (“YUHS”). Each of them alleges that he was abused by one or more of three individuals, two of whom were employed by YUHS, during the period from 1971 to 1992. The plaintiffs have brought this action not against their individual abusers, but against YUHS, Yeshiva University (“YU”), former administrators of YU, and several unnamed members of the Board of Trustees of YUHS and YU, asserting causes of action for fraud, negligence, violation of New York's General Business Law, and violation of Title IX of the Education Amendments Act of 1972 (“Title IX”). The defendants have moved to dismiss all of the claims against them pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, and, in the case of the allegations sounding in fraud, for failure to satisfy the heightened pleading requirements of Federal Rule of Civil Procedure 9(b). The plaintiffs oppose the defendants' motion and have also cross-moved for leave to file a Second Amended Complaint pursuant to Federal Rule of Civil Procedure 15(a).

The defendants' motion is based for the most part on the claim that the statutes of limitations for all of the plaintiffs' federal and state claims have expired. 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. In this case, the statutes of limitations have expired decades ago, and no exceptions apply. Therefore, for the reasons explained below, the defendants' motion is granted, the plaintiffs' motion is denied, and the plaintiffs' Amended Complaint (“Complaint”) is dismissed.

I.

In deciding a motion to dismiss pursuant to Rule 12(b)(6), the allegations in the complaint are accepted as true, and all reasonable inferences must be drawn in the plaintiff's favor. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.2007). The Court's function on a motion to dismiss is “not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient.” Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.1985). Federal Rule of Civil Procedure 8(a)(2) requires that a claim for relief contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The Court should not dismiss the complaint if the plaintiff has stated “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). While the Court should construe the factual allegations in the light most favorable to the plaintiff, “the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions.” Id.

Claims that sound in fraud must meet the heightened pleading standard of Rule 9(b). See, e.g., Marino v. Grupo Mundial Tenedora, S.A., 810 F.Supp.2d 601, 606 (S.D.N.Y.2011). Rule 9(b) requires that the complaint “(1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent.” ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 99 (2d Cir.2007).

When presented with a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider documents that are referenced in the complaint, documents that the plaintiff relied on in bringing suit and that are either in the plaintiff's possession or that the plaintiff knew of when bringing suit, or matters of which judicial notice may be taken. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002); see also City of Roseville Emps.' Ret. Sys. v. EnergySolutions, Inc., 814 F.Supp.2d 395, 401 (S.D.N.Y.2011).

“Where the dates in a complaint show that an action is barred by a statute of limitations, a defendant may raise the affirmative defense in a pre-answer motion to dismiss.” Ghartey v. St. John's Queens Hosp., 869 F.2d 160, 162 (2d Cir.1989); see also Singleton v. Clash, 951 F.Supp.2d 578, 581–82 (S.D.N.Y.2013).

II.

The following allegations are assumed to be true for the purposes of this motion.

A.

Defendant YUHS is a private college preparatory high school located in New York, New York. Defendant YU is a private undergraduate university, also located in New York, New York. YUHS and YU are affiliated schools, and YU and its Board of Directors closely managed, directed, and controlled YUHS during the entire time period relevant to this action.

Defendant Norman Lamm is a former president and chancellor of YU, and Defendant Robert Hirt is the vice president of Rabbi Isaac Elchanan Theological Seminary, which oversees operations at YUHS, including disciplinary issues and student and parent complaints. Hirt also served from 1986 to the present as a special advisor to the president of YU. Defendants James Does One through Thirty and Joseph Does One through Thirty were various members of the YU Board of Trustees and the YUHS Board of Trustees, respectively, during the period from 1971 to the present.

B.

The plaintiffs attended YUHS at various times during the period from 1968 to 1992.¹ They are now roughly aged between their late thirties and early sixties. During their time at YUHS, all plaintiffs were abused by one or more of three individuals: George Finkelstein, Macy Gordon, and Richard Andron.

Between 1971 and 1995, Finkelstein was employed as assistant principal, associate principal, and eventually principal of YUHS. During his time as an administrator at YUHS, Finkelstein is alleged to have abused nearly all of the plaintiffs physically and sexually in his office, at the YUHS dormitory, and in his private residence. The abuse included groping, “humping,” wrestling, inappropriate touching, and punching and other physical violence.

Beginning at some time in the 1970s and concluding in 1984, Gordon was employed at YUHS as a Judaic Studies faculty member. During his tenure at YUHS, Gordon also repeatedly sexually abused seven of the plaintiffs. Gordon groped, assaulted, sodomized, and sexually tortured one or more of his victims.

Andron was never employed by either YUHS or YU at any relevant point in time. He is a former student of YU, and a former friend of Finkelstein and Plaintiff John Doe Eleven. During the early 1980s, Andron periodically invited three of the plaintiffs to his New York City apartment and sexually abused them while they were there. The abuse consisted of fondling and molesting. The Complaint also alleges that Andron was permitted to roam the halls of a school dormitory and enter students' rooms as he pleased.

C.

The abuse of YUHS students, at least by Finkelstein, was allegedly known to several administrators of YUHS and YU prior to all incidents of abuse perpetrated against each of the plaintiffs in this action. Multiple YUHS students had already been abused, at least by Finkelstein, by the time the first acts of abuse alleged in the Complaint were committed against the plaintiffs here, and school administrators had knowledge of these prior acts of abuse because they were reported to the administration, including to Defendants Lamm and Hirt, and because they sometimes occurred at school facilities and were observed by school employees. Prior sexual assaults by Gordon were also reported to YUHS and YU administrators. Moreover, nine of the thirty-four plaintiffs put school officials on notice of the risk of abuse by reporting their abuse to the school administration.

There is no indication in the Complaint that the defendants took any remedial action on the basis of their awareness of the sexual abuse that had occurred. To the contrary, the defendants allegedly failed to disclose to parents, teachers, or any law enforcement authorities that Finkelstein, Gordon, and Andron had committed acts of abuse against YUHS students. Aside from a few isolated incidents, the defendants also failed to take any disciplinary actions against Finkelstein. Gordon was fired in 1984 in response to complaints received by the school that he had sexually abused students, but the basis for his firing was not publicly disclosed.

Moreover, on multiple occasions, both Finkelstein and Gordon were lauded at public ceremonies and in school publications for their strong moral character, and they were represented to be in good standing at the school. Indeed, even after Gordon was fired for sexual misconduct, he was honored at a school dinner in 2002, and YU accepted a gift to establish a scholarship in his name.

Most of those plaintiffs who reported their abuse to the school allege that they were “informed or led to believe” that their “complaint[s] w[ere] baseless,” which resulted in their being “affirmatively deceived in [their] efforts to learn the truth.” ( See Am. Compl. ¶¶ 125, 209, 250, 292, 436, 600, 611; see also Am. Compl. ¶ 165 (“[John Doe Two] was informed and led to believe that his complaint was one of first impression and that no such allegations had ever...