In Y.U. child sexual abuse case, a ‘race against time’ to get elderly witnesses on the record – The Forward
When Norman Lamm, the longtime leader of Yeshiva University, died last spring at the age of 92, he took his secrets to his grave.
Lamm died of natural causes while a defendant in a high-profile sexual abuse lawsuit, before he could be called to testify and provide what the plaintiffs and their lawyer say is “significant evidence” regarding a coverup in the 1970s and 1980s at the high school affiliated with the Modern-Orthodox Yeshiva University.
Now, amid the deadly coronavirus pandemic, the 47 plaintiffs are trying to make sure it doesn’t happen again.
“It is vital that we be granted the opportunity to scrutinize key administrators and staff members
who were in the know, before it’s too late,” said one of the plaintiffs, Mordechai Twersky, 57, in an email. “We’re determined to see this through and attain a semblance of justice for that which was done to us.”
The plaintiffs and their lawyer, Kevin Mulhearn, are seeking what’s called expedited discovery – they are trying to get testimony from five elderly witnesses who might have information to offer in the case. The victims say they endured years of abuse at the hands of teachers and administrators like George Finkelstein, who touched children inappropriately in his office and in his home under the pretense of wrestling with them, and Macy Gordon, who was known for “vicious and sadistic” acts of abuse, according to court documents, like sodomizing one boy with a toothbrush and toothpaste.
Gordon died in 2017 and both he and Finkelstein have denied the allegations against them.
Five people whose testimonies the lawyer called “vital and valuable” in court documents are in their 80s. The abuse victims are seeking remote, videotaped depositions from people – including a man who allegedly helped an abuser move jobs and a school secretary who had a desk outside Finkelstein’s office. Both are 81 years old.
The plaintiffs, through their lawyer, cite the ages of these witnesses, their elevated risk of contracting coronavirus and Lamm’s death in their case for expedited discovery, and they say the urgency of these testimonies is underscored by the recent death from the coronavirus of Rabbi Joel Kolko, a sexual abuser in an separate case.
Twersky called the effort to get these witnesses on tape “a race against time.”
Karen Bitar, a lawyer representing Yeshiva University, did not respond to a request for comment. But in court documents summarizing her arguments against expedited discovery, she said that it’s a “thinly veiled attempt to abuse the discovery process” and that the plaintiffs do not present evidence “that any of these individuals are very ill, near death,” or that they have preexisting conditions that would put them at risk of contracting coronavirus.
The abuse victims from the Yeshiva University High School for Boys filed their first complaint in federal court in 2013, but the case was dismissed under New York’s statute of limitations, and once again dismissed on appeal in 2015. In August of 2019, the Child Victims Act extended the statute of limitations for child sexual abuse cases, so now the case has been brought before New York State Supreme Court.
(In the 2013 case, the defense claimed that Lamm was not fit to testify because he was suffering from dementia. The judge in that case, John Koetl, said he would rule on Lamm’s mental state only after an examination by a doctor approved by both parties, but the case was dismissed. In the most recent case, Lamm died during pretrial hearings.)
When the litigation window for Child Victims Act cases opened two years ago, the Y.U. case was one of hundreds filed within the first week, including cases accusing the Boy Scouts and the Catholic Church of failing to stop abuse.
Christopher McGrath, a lawyer at the New York law firm Sullivan Papain Block McGrath Coffinas & Cannavo P.C., who handles Child Victims Act cases but is not specifically involved in the Y.U. case, said these complaints are likely to have elderly defendants and witnesses because by their nature, they occurred many years ago, outside the normal statute of limitations.
“These things occurred when these people were young children or young adults,” he said. “A lot of the defendants are actually dead or very elderly, so yes – you see that way more in these cases than you would in other cases.”
McGrath said using age as a means of getting expedited discovery is fairly common, and that the death of a defendant, Lamm, may have an effect on the judge. But, he said the ongoing pandemic is “not as strong as an argument” as age because defendants or witnesses could present vaccinations to get out of the early depositions, and that the death of an abuser at the center of an unrelated case, Kolko, is unlikely to sway the judge.
The two sides presented oral arguments regarding the expedited discovery last month, and are awaiting a decision by the judge, George J. Silver.
The five witnesses “possess unique and personal knowledge” of the case, said one court filing. They include defendant Robert Hirt, 81, who allegedly helped Finkelstein get a job at the Hillel School in Florida and authorized a scholarship named after Gordon in 2002 nearly two decades after he was fired for sexual misconduct; Herbert C. Dobrinsky, 87, who was also alleged to be involved with the Gordon scholarship and who honored Finkelstein with awards while the school knew about his abuse; Rabbi Yosef Blau, 81, whom one plaintiff says he told about Finkelstein’s abuse and who failed to report it; Naomi Gershgowitz-Lipnick, 81, whose desk sat outside Finkelstein’s office; and Joshua Cheifetz, 85, who oversaw the school’s dormitories while Finkelstein and Gordon both had keys and “unfettered access” to childrens’ rooms, court documents said.
“There is immense value in deposing the secretary-gatekeeper who sat inches from the
principal’s office where many of us were hauled in, thrown onto the office floor, and abused,” said Twersky.
That Lamm, who was president of Y.U. from 1976 through 2003, knew about the allegations and failed to report them was revealed in a Forward investigation in 2012.
“It was not our intention or position to destroy a person without further inquiry,” he said at the time.
The high school long enjoyed a reputation for prestige and academic rigor, and counts among its alumni the lawyer Alan Dershowitz and Stan Kasten, the president of the Los Angeles Dodgers.
The plaintiffs describe long-term mental health issues in their complaint, including depression, flashbacks, full-body tremors and attempts to take their own lives because of the abuse.
In Y.U. child sexual abuse case, a ‘race against time’ to get elderly witnesses on the record