14-365-cv
Twersky v. Yeshiva Univ.
                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
ASUMMARY ORDER@). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.

      At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 4th day of September, two thousand fourteen.

PRESENT: GUIDO CALABRESI,
                 REENA RAGGI,
                 DENNY CHIN,
                                 Circuit Judges.
----------------------------------------------------------------------
MORDECHAI TWERSKY, BARRY SINGER, JOHN
DOE I–XXXII,
                                 Plaintiffs-Appellants,

                           v.                                            No. 14-365-cv

YESHIVA            UNIVERSITY,             MARSHA            STERN
TALMUDICAL ACADEMY-YESHIVA UNIVERSITY
HIGH SCHOOL FOR BOYS, RABBI NORMAN LAMM,
RABBI ROBERT HIRT, JAMES DOE I–XXX, various
members of the Yeshiva University Board of Trustees
whose names are currently unknown, JOSEPH DOE I–
XXX, various members of the Yeshiva University High
School Board of Directors whose names are currently
unknown,
                                 Defendants-Appellees.*
----------------------------------------------------------------------
*
    The Clerk of Court is directed to amend the official caption as shown above.

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APPEARING FOR APPELLANTS:                 KEVIN T. MULHEARN, ESQ. (J. Michael
                                          Reck, Esq., Michael Kalmus, Esq., on the brief),
                                          Orangeburg, New York.

APPEARING FOR APPELLEES:                  KAREN Y. BITAR (Stephen A. Mendelsohn,
                                          Carmen Beauchamp Ciparick, on the brief),
                                          Greenberg Traurig, LLP, New York, New York.

       Appeal from a judgment of the United States District Court for the Southern District

of New York (John G. Koeltl, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on January 30, 2014, is AFFIRMED.

       Plaintiffs, who sue under Title IX of the Education Amendments of 1972 (“Title

IX”), see 20 U.S.C. § 1681 et seq., and New York law for alleged sexual abuse by teachers

while plaintiffs were students at defendant Marsha Stern Talmudical Academy-Yeshiva

High School for Boys (“YUHS”), now appeal from the dismissal of their suit as untimely,

see Fed. R. Civ. P. 12(b)(6), and from the denial of their motion to amend. In reviewing

these challenged rulings de novo, see Newdow v. Peterson, 753 F.3d 105, 107 (2d Cir.

2014); Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014), we assume the parties’ familiarity

with the facts and the record of prior proceedings, which we reference only as necessary to

explain our decision to affirm.

1.     Time Bar

       Plaintiffs contend that the district court erred in holding both their Title IX claim

and their state law claims untimely. We disagree.


                                             2
       a.     Title IX Claim1

       Private actions under Title IX are subject to a three-year statute of limitations, see

Curto v. Edmundson, 392 F.3d 502, 504 (2d Cir. 2004) (borrowing New York’s personal

injury limitation period), which is tolled under New York law until a plaintiff reaches 18

years of age, see N.Y. C.P.L.R. § 208. Accrual of such claims, however, is governed by

federal law. See Guilbert v. Gardner, 480 F.3d 140, 149 (2d Cir. 2007).

       A claim generally accrues “when it comes into existence,” i.e., “when the plaintiff

has a complete and present cause of action.” Gabelli v. S.E.C., 133 S. Ct. 1216, 1220

(2013) (internal quotation marks omitted).         An exception—the discovery accrual

rule—has been applied in certain circumstances, such as where a “defendant’s deceptive

conduct may prevent a plaintiff from even knowing that he or she has been defrauded.”

Id. (emphasis in original) (internal quotation marks omitted). Under the discovery accrual

1
  In addressing timeliness, we assume without deciding that under Title IX, defendants
may be liable for their alleged deliberate indifference to teachers’ sexual abuse of
plaintiffs, whether evidenced by administrators’ inadequate response to plaintiffs’ own
complaints of abuse or to prior complaints of sexual assaults, which contributed to
plaintiffs’ injuries. See generally 20 U.S.C. § 1681(a) (guaranteeing that “[n]o person . . .
shall, on the basis of sex, . . . be subjected to discrimination” in any educational program
receiving federal funds); Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998)
(stating that school is liable under Title IX only if official with “authority to address the
alleged discrimination and to institute corrective measures on the [school’s] behalf has
actual knowledge of the discrimination in the [school’s] programs and fails adequately to
respond”). We similarly assume that Supreme Court decisions recognizing Title IX to
support a private right of action against a school for deliberate indifference to sexual abuse
of students by teachers apply retroactively to plaintiffs injured before these decisions but
after the law’s enactment in 1972. See, e.g., Gebser v. Lago Vista Indep. Sch. Dist., 524
U.S. at 290; Franklin v. Gwinnett Cnty. Pub. Schs., 503 U.S. 60, 76 (1992); Cannon v.
Univ. of Chi., 441 U.S. 677, 717 (1979).

                                              3
rule, a cause of action accrues “when, with reasonable diligence, the plaintiff has or should

have discovered the critical facts of both his injury and its cause.” A.Q.C. ex rel. Castillo

v. United States, 656 F.3d 135, 140 (2d Cir. 2011) (internal quotation marks and alterations

omitted); cf. Rotella v. Wood, 528 U.S. 549, 555 (2000) (stating that Supreme Court has

been “at pains” to explain that under civil RICO discovery rule, “discovery of the injury,

not discovery of the other elements of the claim, is what starts the clock”). Even if we

were to conclude that, in pursuing their Title IX claim, plaintiffs are entitled to the benefits

of the discovery accrual rule in addition to N.Y. C.P.L.R. § 208, see Koch v. Christie’s Int’l

PLC, 699 F.3d 141, 148 (2d Cir. 2012) (observing that discovery accrual rule generally

applies when statute is silent on issue), we would have to conclude, as the district court did,

that the Title IX claim is untimely.

       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. This information was

sufficient to put them on at least inquiry notice as to the school’s awareness of and

indifference to the abusive conduct by its teachers. See United States v. Kubrick, 444

U.S. 111, 122 (1979) (holding that claim under Federal Tort Claims Act accrued when

plaintiff possessed “critical facts that he has been hurt and who has inflicted the injury,”

and rejecting argument that “plaintiff’s ignorance of his legal rights” deferred accrual);

Kronisch v. United States, 150 F.3d 112, 121 (2d Cir. 1998) (instructing that claim accrues


                                               4
under discovery rule when plaintiff discovers, or reasonably should have discovered,

“enough of the critical facts of injury and causation to protect himself by seeking legal

advice” (internal quotation marks omitted)); see also Stanley v. Trs. of Cal. State Univ.,

433 F.3d 1129, 1136 (9th Cir. 2006) (stating that Title IX claim accrued no later than

plaintiff’s unaddressed complaint of teacher’s sexual harassment).

       In urging otherwise, plaintiffs maintain that they could not have discovered

defendants’ deliberate indifference to sexual abuse before defendant Lamm’s admissions

in a December 2012 interview with the Jewish Daily Forward. This conclusion is belied

by the fact that nine plaintiffs brought their own abuse to the attention of Lamm or other

administrators. 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. Further, these

circumstances put plaintiffs on at least inquiry notice as to administrators’ knowledge of

and indifference to other abuse. See A.Q.C. ex rel. Castillo v. United States, 656 F.3d at

140.

       Accordingly, we conclude that plaintiffs’ Title IX claim, filed more than 20 years

after the last plaintiff left YUHS, was correctly dismissed as untimely.2



2
  Even assuming that plaintiffs’ Title IX claim did not accrue until 1998, when the
Supreme Court recognized an implied damages action against schools for teacher abuse,
see Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. at 290, plaintiffs’ suit is still untimely
as it was filed more than 15 years later.

                                              5
       b.     New York State Claims

       Under New York law, a defendant bears the burden of establishing that a claim is

prima facie time-barred, whereupon the burden shifts to a plaintiff to “aver evidentiary

facts” supporting an exception to the statute of limitations. Philip F. v. Roman Catholic

Diocese of Las Vegas, 70 A.D.3d 765, 766, 894 N.Y.S.2d 125, 127 (2d Dep’t 2010)

(internal quotation marks omitted). One such exception is equitable estoppel, which

applies if a plaintiff’s failure timely to file suit was due to his “reasonable reliance on

deception, fraud or misrepresentations by the defendant.” Putter v. N. Shore Univ. Hosp.,

7 N.Y.3d 548, 553, 825 N.Y.S.2d 435, 437 (2006). Equitable estoppel, however, is an

“extraordinary remedy,” Clark v. Ravikumar, 90 A.D.3d 971, 972, 935 N.Y.S.2d 633, 635

(2d Dep’t 2011), which should be invoked “sparingly and only under exceptional

circumstances,” In re Gross v. N.Y. City Health & Hosps. Corp., 122 A.D.2d 793, 794, 505

N.Y.S.2d 678, 679 (2d Dep’t 1986); accord Townley v. Emerson Elec. Co., 269 A.D.2d

753, 753, 702 N.Y.S.2d 728, 729 (4th Dep’t 2000).

       Plaintiffs do not dispute that their state claims are prima facie time-barred as they

accrued at the time of their abuse and were tolled only until they turned 18 years old,

approximately 20 years prior to filing suit. Nevertheless, plaintiffs assert that defendants

should be equitably estopped from asserting a statute of limitations defense because their




                                             6
fraudulent concealment of the teachers’ prior abuses precluded timely suit. 3               The

argument fails in light of the New York Court of Appeals’s decision in Zumpano v. Quinn,

6 N.Y.3d 666, 816 N.Y.S.2d 703 (2006).4

       As in Zumpano, plaintiffs’ allegations establish that they were “aware of the sexual

abuse [they] . . . suffered at the hands” of the teachers and, thus, plaintiffs “could have

brought actions against [defendants], or at least investigated whether a basis for such

actions existed” before the statute of limitations expired. Id. at 674 (rejecting equitable

estoppel as matter of law despite claim that archdioceses “engaged in a corrupt campaign

and a pattern of concealment” of priests’ child abuse).

       In asserting otherwise, plaintiffs argue that, after their abuse, defendants falsely

described the teachers at school events and in general publications as “highly regarded,” in

“good standing,” possessing “strong moral character,” “trustworthy,” and “positive role

model[s].” Appellants’ Br. 74. But these alleged falsehoods were neither directed at

plaintiffs nor sufficiently specific so as to admit plaintiffs’ reasonable reliance in failing to

investigate or to file suit. See Zumpano v. Quinn, 6 N.Y.3d at 675 (rejecting equitable

estoppel where plaintiffs had not alleged “any specific misrepresentation to them by

3
  Plaintiffs do not argue on appeal that New York’s equitable estoppel doctrine applies to
their Title IX claim.
4
  Because plaintiffs have not “aver[red] evidentiary facts” that preclude defendants’
assertion of a statute of limitations defense, Philip F. v. Roman Catholic Diocese of Las
Vegas, 70 A.D.3d at 766, 894 N.Y.S.2d at 127, we need not decide whether claims of
equitable estoppel must be pleaded with the particularity for “fraud or mistake” demanded
by Fed. R. Civ. P. 9(b).
                                               7
defendants” or other deceptive conduct that precluded filing suit); Santo B. v. Roman

Catholic Archdiocese of N.Y., 51 A.D.3d 956, 958, 861 N.Y.S.2d 674, 674 (1st Dep’t

2008) (relying on Zumpano to reject equitable estoppel claim where plaintiffs did not

allege false “specific promises or statements”); cf. Simcuski v. Saeli, 44 N.Y.2d 442, 447,

406 N.Y.S.2d 259 (1978) (identifying equitable estoppel where defendant doctor falsely

told plaintiff himself that problems caused by alleged malpractice were temporary).

Indeed, plaintiffs have not established how, given knowledge of their own abuse, their

abusers’ identities, and their abusers’ prior and continued employment at YUHS, these

alleged misstatements impeded their investigation or timely institution of suit.

       Further, even assuming that defendants 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. Their failure to investigate or to institute

suit for more than 20 years thereafter cannot support equitable estoppel. See Zumpano v.

Quinn, 6 N.Y.3d at 676, 816 N.Y.S.2d at 703 (stating that, even assuming defendants owed

plaintiffs fiduciary duty to disclose abuse, “conduct relied on as a basis for equitable

estoppel cease[d] to be operational” when plaintiffs reached adulthood (internal quotation

marks and alterations omitted)).

       Accordingly, plaintiffs’ challenge to the dismissal of their New York state claims

fails on the merits.




                                             8
2.     Motion to Amend

       Equally meritless is plaintiffs’ appeal from the denial of their motion to amend the

complaint. As plaintiffs conceded before the district court, the proposed amendments

included only further allegations of defendants’ knowledge of prior abuse, which, for

reasons already explained, would not have rendered plaintiffs’ claims timely. Thus, the

district court correctly concluded that amendment would have been futile. See Grace v.

Rosenstock, 228 F.3d 40, 53 (2d Cir. 2000) (stating that motion to amend may be denied as

futile where claims barred by statute of limitations).

       We have considered plaintiffs’ remaining arguments and conclude that they are

without merit. We therefore AFFIRM the judgment of the district court.

                                   FOR THE COURT:
                                   CATHERINE O’HAGAN WOLFE, Clerk of Court




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