OPINION AND ORDER
The plaintiffs in this action are thirty-four former students of Yeshiva University High School for Boys (“YUHS”). Each of
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 plaintiffs favor. McCarthy v. Dun & Bradstreet Corp.,
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.,
When presented with a motion to dismiss pursuant to Rule 12(b)(6), the Court
“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.,
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 advis- or 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.
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.
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 been leveled against Gordon.”).)
Some plaintiffs also allege more specifically that they were dissuaded from taking any action on their complaints. John Doe Fifteen informed several faculty members and administrators, including Lamm, of the abuse he suffered at the hands of Finkelstein in the late 1970s and early 1980s. In response, one faculty member informed Doe Fifteen that his allegations were “more fantasy than reality,” and he urged Doe Fifteen to seek psychological counseling. (Am. Compl. ¶ 192.) Another faculty member told Doe Fifteen that it was “better to drop the matter.” (Am. Compl. ¶ 196.) The chairman of the YUHS Board of Directors at the time responded to Doe Fifteen’s allegations by removing the door to Finkelstein’s office, where some of the abuse had occurred, but
Similarly, in or about 1983, John Doe Sixteen reported to the YUHS head dormitory counselor, as well as several of his friends, that he had been abused by Fink-elstein. One such friend, Yitzhak Twer-sky, told his brother, Plaintiff Mordechai Twersky, who in turn relayed this information to Lamm. Lamm reacted “in disbelief and then anger that no one had told him about [this] before.” (Am. Compl. ¶425.) Lamm “said over and over that he couldn’t believe it, and that he never before heard such an allegation about Finkelstein, as if trying to convince [Twersky] that he knew nothing about it.” (Am. Compl. ¶ 425.) At some subsequent point, Lamm was seen reprimanding Finkelstein, but Lamm did not notify anyone of Doe Sixteen’s allegations or take any other remedial actions.
D.
In December 2012, Paul Berger of the Jewish Daily Forward published an interview with Lamm concerning allegations of sex abuse at YUHS. In the interview, Lamm stated, “If it was an open-and-shut case, I just let [the staff member] go quietly. It was not our intention or position to destroy a person without further inquiry.” (Am. Compl. ¶ 5 (alteration in original).)
On July 1, 2013, Lamm resigned from his position at YU. In his resignation letter, he stated that “at the time that inappropriate actions by individuals at Yeshiva were brought to my attention, I acted in a way that I thought was correct, but which now seems ill conceived ... [.] I now recognize that I was wrong[.]” (Am. Compl. ¶ 7 (first and third alterations in original).)
The plaintiffs allege that they could not have known about the defendants’ awareness of the sex abuse at YUHS until the “length and extent of the cover up was first presented” in the Jewish Daily Forward. (See, e.g., Am. Compl. ¶ 125.)
E.
Plaintiffs Barry Singer, Mordechai Twersky, and John Does One through Seventeen filed this lawsuit on July 8, 2013-roughIy twenty-one years after the last plaintiff left YUHS. On August 15, 2013, an Amended Complaint was filed, which included fifteen new plaintiffs (John Does Eighteen through Thirty-Two). All plaintiffs bring claims for fraudulent inducement (Count I), negligent infliction of emotional distress (Count II), intentional infliction of emotional distress (Count III), deceptive business practices and false advertising in violation of New York General Business Law §§ 349 and 350 (Counts IV and V), negligent misrepresentation (Count VI), negligent supervision and retention (Count VII), and violation of Title IX (Count VIII). The defendants have moved to dismiss all of the plaintiffs’ claims. The plaintiffs cross moved for leave to file a Second Amended Complaint in the event that the Court dismisses the claims in their First Amended Complaint. The Court has jurisdiction over the plaintiffs’ Title IX claim pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction over the state-law claims pursuant to 28 U.S.C. § 1367.
III.
As explained in more detail below, all of the claims in the Complaint are prima facie time-barred. Accordingly, the claims survive the defendants’ statute-of-limitations-based defense only if the plaintiffs have plausibly alleged that they fall within an exception to the applicable statutes of limitations. See, e.g., Singleton,
A.
The plaintiffs allege that Defendants YUHS and YU are liable to them under Title IX because these defendants were deliberately indifferent to known acts of sex diserimination-namely, abuse by Fink-elstein and Gordon-that occurred under their control. Title IX generally provides, with certain exceptions, that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.... ” 20 U.S.C. § 1681(a). The defendants argue that the plaintiffs’ Title IX claim should be dismissed because it is untimely as a matter of law, and because no cause of action under Title IX existed for the conduct alleged in the Complaint during the period in which the conduct is alleged to have occurred.
Title IX does not contain a statute of limitations, and the four-year federal catch-all statute of limitations in 28 U.S.C. § 1658(a) is inapplicable. Curto v. Edmundson,
The plaintiffs do not dispute the applicability of the New York statute of limitations and “coordinate tolling rules” to their claims. Rather, they argue that their claims did not accrue until the interview with Lamm was published in the Jewish Daily Forward in December 2012, and that
It is well established that in a federal question case in which the limitations and tolling rules are culled from state law, federal common law determines the date on which that federal claim accrues. See Guilbert v. Gardner,
In support of their argument for delayed accrual until December 2012, the plaintiffs rely on the federal “discovery rule” — a rule that arose in the context of fraud cases “as an exception to the general limitations rule that a cause of action accrues once a plaintiff has a complete and present cause of action.” Merck & Co., Inc. v. Reynolds,
1.
“In common parlance a right accrues when it comes into existence .... ” Singleton,
Nevertheless, in recent years, “both state and federal courts have applied forms of the ‘discovery rule’ to claims other than fraud.” Merck,
The plaintiffs rely on these cases for the proposition that the discovery rule is applicable here. However, in doing so, they ignore the continuing significance of the “standard rule” that claims accrue upon
Moreover, the plaintiffs point to only one case, Beasley v. Alabama State University,
If the standard complete-and-present-cause-of-action rule governed accrual of the Title IX claim in this case, all of the plaintiffs’ Title IX claims would be time-barred. Each plaintiffs Title IX claim accrued under the standard accrual rule when, despite their knowledge of the abuse at the school, the school administrators failed to take corrective actions. See Geb-ser v. Lago Vista Indep. Sch. Dist.,
The Court of Appeals for the Second Circuit has not determined whether a discovery rule should be applied to Title IX cases. And, while the Supreme Court has repeatedly expressed reluctance to extend a general federal discovery rule beyond cases of fraud, latent disease, and medical malpractice, it has decided recent cases narrowly on the grounds that specific statutes did not provide for a discovery rule. See, e.g., Gabelli,
2.
The discovery rule provides that “[t]he clock begins to run when the plaintiff has ‘inquiry notice’ of his injury, namely when he discovers or reasonably should have discovered the ... injury.” Singleton,
The plaintiffs argue that accrual of their Title IX claim did not occur until 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. Before this point, the plaintiffs contend that they were unaware that the school defendants had injured them, and unable with reasonable diligence to discover the school officials’ deliberate indifference to “actual knowledge” that school employees posed a substantial risk of sexually abusing students, as required for bringing a claim under Title IX. See Gebser,
This argument confuses knowledge of the existence of a legal right with knowledge of injury, contrary to the Supreme Court’s teaching that the former has no bearing on accrual under the discovery rule. See Kubrick,
Because this action was filed more than three years after each plaintiff should have become aware of the alleged Title IX violation, even taking account of tolling for infancy, the federal discovery rule would not save the Title IX claim from the applicable time bar.
B.
The remainder of the plaintiffs’ claims are asserted under Yew York State law. Those claims include causes of action for fraudulent inducement (Count I), negligent infliction of emotional distress (Count II), intentional infliction of emotional distress (Count III), deceptive business practices and false advertising in violation of New York General Business Law §§ 349 and 350 (Counts IV and V), negligent misrepresentation (Count VI), and negligent supervision and retention (Count VII).
Even with tolling for infancy, these claims, which were brought approximately two decades after the last plaintiff turned twenty-one, are time-barred. See N.Y. C.P.L.R. § 208 (permitting tolling for infancy of up to three years after infancy ends); Gristede’s Foods, Inc. v. Unkechauge Nation,
“The doctrine of equitable estoppel applies where it would be unjust to allow a defendant to assert a statute of limitations defense.” Zumpano v. Quinn,
Absent affirmative conduct on the part of the defendant, “the plaintiff must demonstrate a fiduciary relationship ... which gave the defendant an obligation to inform him or her of facts underlying the claim.” Zumpano,
In order to invoke equitable estoppel, a plaintiff must also demonstrate
When the claims are prima facie barred by the statute of limitations, the plaintiff must make sufficient factual allegations that each of the requirements of equitable estoppel is satisfied, or at least raise an issue of fact as to whether equitable estoppel applies. See, e.g., Santo B. v. Roman Catholic Archdiocese of New York,
Two authoritative cases from the New York Court of Appeals illustrate the limits of the extraordinary doctrine of equitable estoppel. In Putter, the Court of Appeals declined to recognize a valid equitable es-toppel defense where the plaintiff contracted Hepatitis C by virtue of the alleged negligence of the defendant hospital.
In Zumpano, the Court of Appeals considered the application of equitable estop-pel to the filing of untimely claims alleging clerical sexual abuse of minors.
[E]ach plaintiff was aware of the sexual abuse he or she suffered at the hands of defendant priests.... Plaintiffs were likewise aware that the priests were employees of the dioceses and could have brought actions against the dioceses, or at least investigated whether a basis for such actions existed. Plaintiffs do not allege they made timely complaints to the dioceses regarding clergy mistreatment. Subsequent conduct by the dioceses did not appear in any way to alter plaintiffs’ early awareness of the essential facts and circumstances underlying their causes of action or their ability to timely bring their claims.
Id. The Court of Appeals also rejected the argument that conduct such as reassigning priests to new dioceses, failing to report allegations of abuse to law enforcement officials, and making private payments to complainants to prevent them from publicizing their abuse were sufficient to establish equitable estoppel. Id.,
The defendants argue 1) that the plaintiffs have failed to allege the type of specific, affirmative misrepresentation required for an equitable estoppel defense to the statute of limitations; 2) that the plaintiffs have similarly failed to allege a fiduciary duty between the defendants and the plaintiffs sufficient to give rise to an obligation upon the defendants to disclose the risk of harm to the plaintiffs from their abusers; and 3) that the plaintiffs’ equitable estoppel allegations fail for the additional reason that the misstatements alleged in the Complaint were not pleaded with the requisite factual support.
1.
The allegations in the Complaint that form the basis for the plaintiffs’ equitable estoppel defense fall into three categories. In the first category are allegations that the defendants failed to report known abuse to the authorities, failed to warn students and their families of the known risk of abuse, and failed to disclose the abuse publicly. Absent a fiduciary relationship, such passive concealment falls short of the sort of specific and affirmative misrepresentation required to trigger an equitable estoppel defense. See Zumpano,
2.
The second category of misrepresentations alleged in the Complaint are statements made to the school community at large about the trustworthiness and moral uprightness of the abusers. Thus, for example, after Plaintiff Twersky disclosed his abuse to Defendant Lamm, the schools are alleged to have
continued to make frequent and regular representations, in school events attended by students, and in school publications received by students, parents, former students, and alumni, that Finkelstein was highly regarded by YUHS and YU, that Finkelstein remained in good standing, that Finkelstein was a man of strong moral character, that Finkelstein was a trustworthy man, and that Finkelstein was a positive role model for boys and well-suited to lead them in their journey to learning traditional Jewish principles and traditions and how to live based on the sacred tenets of the Torah.
(Am. Compl. ¶224 (emphasis added); see also Am. Compl. ¶¶ 229, 837-48, 850-55, 863-71, 876-78.) These sorts of misrepresentations are also inadequate in light of the specificity requirement in the equitable estoppel standard; equitable estoppel is only “appropriate where the plaintiff is prevented from filing an action within the applicable statute of limitations due to defendants’ misconduct toward the potential plaintiff, not a community at large.”
3.
The plaintiffs attempt to augment these alleged passive concealments and general misstatements to the school community by arguing that the heightened duty of care owed by schools to their students, deriving from the fact that schools assume a quasi-parental role vis-a-vis the children in their custody (termed an “in loco parentis” relationship), renders all concealments and misrepresentations made in the context of this relationship sufficiently affirmative and specific, such that they qualify to trigger the equitable estoppel defense. This
The New York courts have not yet ruled on the question of whether a fiduciary relationship sufficient to trigger estoppel-by-passive-concealment exists between a school and its students, or whether such a duty is breached by the school’s failure to disclose prior incidents of sexual abuse. However, it is not necessary to reach these questions here, because even assuming the in loco parentis relationship had the transformative effect upon the passive concealments and generalized misstatements asserted by the plaintiffs, any such relationship between the schools and the students ceased at the very latest when the students left or graduated. See, e.g., Zumpano,
4.
The final category of misrepresentation alleged in the Complaint as a basis for equitable estoppel is the claim by nine plaintiffs that they reported their abuse to YUHS and YU after it occurred, and that they were subsequently affirmatively deceived in various ways. This allegation is made with varying degrees of specificity by Plaintiffs Twersky and Does One, Two, Thirteen, Fourteen, Fifteen, Sixteen, Thirty-One, and Thirty-Two.
Most commonly, these plaintiffs allege in general terms that they complained to YUHS and YU officials, and 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.) Similarly, Doe Two alleges that he “was informed and led to believe that his complaint was one of first impression and that no such allegations had ever been leveled against Gordon.” (Am. Compl. ¶ 165.)
Such allegations are insufficient as a matter of law to establish an equitable estoppel defense to the prima facie showing that the claims are barred by the statute of limitations. They fail to specify the content of the misrepresentations that were made, the timing of the misrepresentations, how the plaintiffs reasonably relied on the misrepresentations, and how the
In Santo B., the Appellate Division affirmed the dismissal of a complaint as time-barred and rejected the plaintiffs assertion of equitable estoppel despite the plaintiffs allegation that he informed a representative of the defendant Archdiocese in 2001 about his claim of sexual abuse by an employee of the Archdiocese, that a representative of the Archdiocese denied him information regarding his abuser’s location, and that he “reasonably relied” upon the Archdiocese to investigate and “make [him] whole.”
The plaintiff did not aver specific promises or statements made by the respondents’ representative which led the plaintiff to believe that the Archdiocese was investigating his claim, nor did the plaintiff do anything further after this single meeting until four years later, when in 2005, he filed the instant lawsuit. Under the circumstances, the plaintiff failed to establish reasonable reliance upon misrepresentations or conduct of the respondents which prevented him from timely filing.
Id. at 676 (citation omitted).
So too here. Each of the nine plaintiffs who alleges that he reported his abuse clearly knew that he was abused, who had abused him, and who employed his abuser. In light of this knowledge, none of these nine plaintiffs explain how the defendants’ representations could plausibly have dissuaded them from bringing suit. These plaintiffs’ general allegations are therefore insufficient to establish reasonable reliance, and cannot form the basis for an equitable estoppel defense. See Putter,
Indeed, in their papers, the plaintiffs do not explain or even address how equitable estoppel could apply to the nine plaintiffs who allege that they complained to school officials. Each of those nine plaintiffs could tell from publicly available information that the abusers continued to be employed by the schools even after the schools had been informed of the abuse— and yet these nine plaintiffs failed to bring their lawsuit until decades after their complaints went unanswered.
Of the nine plaintiffs who allege affirmative misrepresentations, Does Two, Fifteen, and Sixteen allege more particular misrepresentations. Nevertheless, for similar reasons, these plaintiffs’ allegations fail to supply a valid basis for an equitable estoppel defense.
Doe Two alleges that he met with an official of YU in 1980 and reported that he was abused by Gordon. The official said he would inform Lamm of the complaint and take appropriate action, but no disciplinary or remedial measures were ultimately taken. (Am. Compl. ¶¶ 152-54.)
Despite containing more particulars about timing and content than the general allegations discussed above, this allegation is similarly devoid of any explanation as to how the alleged representation could have prevented Doe Two from bringing a timely action. To the contrary, the Complaint highlights Doe Two’s awareness of his abuse, of the identity of his abuser, and of who employed his abuser in 1980. Nothing in Doe Two’s allegations plausibly ex
In a similar vein, Doe Fifteen alleges that on multiple occasions he reported his abuse to school officials, and that in response the officials made various sorts of affirmative misstatements to him. In 1982, Doe Fifteen informed a YU faculty member that he had been abused by Fink-elstein. In response, he was told that his accusations were “more fantasy than reality.” (Am. Compl. ¶ 192.) At some point between 1981 and 1985, Doe Fifteen informed another YU faculty member about his abuse at the hands of Finkelstein, and that faculty member allegedly told him “it was better to drop the matter.” (Am. Compl. ¶ 196.) In 1984, Doe Fifteen informed Lamm that he had been abused, and Lamm allegedly promised to look into the matter, but failed to do so. (Am. Compl. ¶¶ 198-99.) Finally, at some point in the late 1980s, Doe Fifteen reported the abuse to another school official, who allegedly accused him of “spreading ‘gossip.’ ”
For the same reasons, these allegations do not rise to the level of supporting a valid equitable estoppel claim. There is no explanation in the Complaint as to how any of these alleged misrepresentations could plausibly have prevented Doe Fifteen from bringing a timely action, given that Doe Fifteen knew of his abuse, of who had abuse him, and of who employed his abusers. To the contrary, in light of what he knew, it was unreasonable for Doe Fifteen to have relied on the alleged misstatements in delaying his suit for multiple decades.
Doe Sixteen alleges that he reported Finkelstein’s abuse to Lamm through Plaintiff Twersky in approximately 1983. In response, Lamm reportedly said that “he couldn’t believe it, and that he never before had heard such an allegation about Finkelstein.” (Am. Compl. ¶ 425.) But there is no explanation how this alleged misrepresentation could have prevented Doe Sixteen — who knew he had been abused, who had abused him, and who employed his abuser — from pursuing his
5.
Because the plaintiffs have failed to plead a proper basis for their equitable estoppel claim, they do not have recourse to equitable tolling as a means to overcome the prima facie time bars that are applicable to their claims. Given that equitable estoppel and the federal discovery rule are the only two statute-of-limitations exceptions alleged to apply to the claims in Counts II through VIII, these claims are time-barred and must therefore be dismissed.
C.
The plaintiffs’ final effort to overcome the prima facie time bar relates exclusively to their claim for fraudulent inducement (Count I). In Count I, the plaintiffs allege that the defendants are liable because they knew of prior incidents of abuse by Finkel-stein, Gordon, and Andron, and misrepresented the risk of abuse to current and future students in order to induce the students to continue to enroll at YUHS or refrain from leaving the school. This claim is subject to a six-year statute of limitations. See N.Y. C.P.L.R. § 213(8). However, the New York state statute of limitations for fraud contains its own discovery rule: “an action based upon fraud ... must be commenced [within] the greater .of six years from the date the cause of action accrued or two years from the time the plaintiff or the person under whom the plaintiff claims discovered the fraud, or could with reasonable diligence have discovered it.” Id. The plaintiffs allege that they could not reasonably have discovered the defendants’ fraud until the Jewish Daily Forward article was published in December 2012, and that the fraud claim therefore did not accrue until this time. However, it is not necessary to reach the question of whether the New York fraud discovery rule applies here,
Courts are wary of plaintiffs who cast their claims in fraud for the sole purpose of using this rule to avoid a shorter statute of limitations applicable to other claims in their complaint. See Powers Mercantile Corp. v. Feinberg,
The Complaint in this action contains two sorts of allegations of fraud. On the one hand, the defendants are alleged to have caused the plaintiffs’ injuries by fraudulently misrepresenting the risk of abuse at the school prior to the abuse of each individual plaintiff. These injuries include the abuse itself, as well pecuniary losses stemming from the abuse, such as the cost of treatment and counseling. Such allegations fail under the first prong of the relevant test, because the pre-abuse fraud did not occur subsequent to the injury that is the basis of the other claims. Compare id. at 545 (finding that allegedly fraudulent statements designed to cover up injury from a radiation leak met the first prong of the test because they were “separate and distinct from the exposure”), with N.Y. Seven-Up Bottling Co. v. Dow Chem. Co.,
The other sort of fraud alleged in the complaint consists of post-abuse misrepresentations as to the existence of viable claims against the defendants. (See, e.g., Am. Compl. ¶¶ 876-78 (alleging public representations as to the trustworthiness and strong moral character of Gordon, which are argued to have deceived the plaintiffs into believing they had no viable claims).) This alleged fraud passes muster under the first prong, but fails the second prong of the test because it did not cause injuries in any way distinct from the injuries arising from the alleged negligence, intentional torts, and Title IX violations. And even if such post-abuse fraud exacerbated the alleged pecuniary injuries — for example, by making therapy more costly— exacerbation of an injury does not constitute a distinct additional injury. See Corcoran,
In their submissions, the plaintiffs argue almost exclusively from McGrath v. Dominican College,
IV.
The plaintiffs have filed a cross-motion for leave to file a Second Amended Complaint pursuant to Rule 15(a) of the Federal Rules of Civil Procedure in the event that the Court grants the defendants’ motion to dismiss the plaintiffs’ First Amended Complaint. In support of this cross-motion, the plaintiffs assert that new facts have come to light since the filing of their First Amended Complaint, consisting of 1) information from two new confidential witnesses about abuse by Finkelstein and Gordon at YUHS during the 1950s and 1980s, and 2) a report by Sullivan & Cromwell dated August 26, 2013, that was commissioned by YU in the wake of the December 2012 Jewish Daily Forward article to investigate YU’s alleged cover-up of sex abuse at YUHS.
Rule 15(a) provides that leave to file an amended complaint should be granted “freely ... when justice so requires.” Fed.R.Civ.P. 15(a)(2); see also Foman v. Davis,
THE COURT: What is there in your allegations in support of an amended complaint that changed any of the legal issues before me on the motion to dismiss?
MR. MULHEARN: The issues in the amended complaint go to the Macy Gordon allegations in which the defendants stated in their papers, in the moving papers, that there were no prior allegations against Macy Gordon prior to 1980. That was a categorical statement originally, and they backtracked somewhat with a footnote in the reply memorandum saying this is what we alleged, but we now know, based on conversations after we filed the amended complaint, that there was additional complaints made*452 against Macy Gordon, at least one, that was addressed far before 1980.
THE COURT: Anything else?
Mr. MULHEARN: No, your Honor. Other than that, the legal issues remain pretty much static.
(Oral Arg. Tr. 43.) Given that the new information that has come to light has no bearing on the fact that all claims in the First Amended Complaint are untimely as a matter of law, repleading in this action would be futile. See Goodrich v. Long Island R.R. Co.,
CONCLUSION
The Court has considered all of the arguments of the parties. To the extent not specifically addressed above, the remaining arguments are either moot or without merit. Because all claims in the Amended Complaint are time-barred, and because none of the alleged exceptions to the applicable statutes of limitations save these claims from the time bars, the defendants’ motion to dismiss is granted. The plaintiffs have failed to make a showing that the deficiencies in the Complaint could be cured in a Second Amended Complaint. Accordingly, the plaintiffs’ cross-motion for leave to replead is denied, and all claims in the Complaint are dismissed with prejudice. The Clerk is directed to enter Judgment dismissing the Complaint. The Clerk is also directed to close all pending motions.
SO ORDERED.
Notes
. The Complaint contains no allegations as to how old the plaintiffs are; the only indications of the plaintiffs' ages are the dates during which they attended YUHS. For purposes of this motion, the Court will assume that each plaintiff was eighteen years old when he left YUHS. Given the timing of the events at issue here, any plausible discrepancy between this assumption and the plaintiffs’ actual ages is immaterial.
. Some of the plaintiffs allege that they made inquiiy into the schools' awareness of the risk of abuse at YUHS. (See Am. Compl. ¶¶ 124, 164, 208, 249, 291, 435, 599, 610.) They did so by notifying school officials that they had been abused, which served the dual purpose of "alert[ing] the school concerning [the abusers’] criminal conduct AND [ ] investigating] whether or not the school was aware of [the abusers'] predilection to abuse young boys.” (See, e.g., Am. Compl. ¶¶ 124, 164.) Although the discovery rule is sometimes phrased as imposing a "duty of inquiiy” upon a putative plaintiff, see, e.g., Stone v. Williams,
. The defendants argue that no cause of action of the sort alleged here was available under Title IX during the time period in which the conduct giving rise to the plaintiffs' Title DC claim occurred. They contend that the elements of a Title IX private right of action against a school for sexual abuse by teachers and administrators had not been defined by the Supreme Court until it decided Gebser,
. The plaintiffs also assert that equitable es-toppel salvages their Title IX claim, to the extent that their arguments for application of the federal discovery rule fail. There is no question that the New York state doctrine of equitable estoppel is applicable to state-law causes of action in federal court. See, e.g., Bisson v. Martin Luther King Jr. Health Clinic,
. Federal courts follow New York law in requiring a plaintiff to plead each element of equitable estoppel with particularity. See Abercrombie,
. In support of this theory of equitable estop-pel, the plaintiffs rely on Zimmerman,
This position cannot be squared with Zum-pano, in which the Court of Appeals found that the plaintiffs’ failure to "allege any specific misrepresentation[s] to them by defendants” was fatal to their equitable estoppel defense.
. Doe Fifteen alleges that he made additional complaints to other officials, but he does not allege that these complaints provoked affirmative misrepresentations. (See, e.g., Am. Compl. ¶¶ 197, 200, 204, 205.) Accordingly, these allegations are insufficient as a matter of law for the reasons explained in Sections III.B.l and III.B.3, above. For the same reasons, allegations by Twersky that he complained about his abuse to school officials in 1983, 2000, and 2001, and that no remedial actions were taken, (see Am. Compl. ¶¶218, 232-35, 244-46), cannot supply a basis for equitable estoppel. Finally, the same reasoning applies to the allegation by Doe One that he reported his abuse to Lamm in 1980, and that Lamm asked him "what he had done to deserve being treated that way.” (Am. Compl. ¶ 342 (internal quotation marks omitted).) This alleged statement does not constitute a misrepresentation that could plausibly have deceived Doe One into believing he had no cause of action at any point before he turned twenty-one. Accordingly, the sole basis for Doe One’s claim for equitable estoppel is the passive concealment of his cause of action, and absent a fiduciary duty, such a claim must fail.
. It is also notable that Doe Fifteen takes credit for causing Finkelstein to be fired from a school in Florida in about 1999 by disclosing Finkelstein’s abuse to school administrators, but that Doe Fifteen did not bring his current claims until 2013. This casts serious doubt upon the contention that the effect of the conduct alleged to have given rise to the estoppel lasted until December 2012. It also renders implausible any argument that Doe Fifteen acted with due diligence in bringing his claims.
. A subset of the nine plaintiffs who reported their abuse — consisting of Twersky, Doe Fourteen, and Doe Thirty-Two — have alleged that school officials responded to their complaints by threatening them in various ways. However, the plaintiffs do not rely on duress as a basis for tolling the statutes of limitations for their claims. Moreover, these allegations do not support a claim of equitable estoppel. Twersky alleges that a YU official met with him in Israel in 2000 and issued a "direct threat ... designed to discourage Twersky from taking legal action against the YU defendants.” (Am. Compl. ¶ 240.) The alleged threat was that if Twersky pursued his complaint, it "would not be good for [him] or for Yeshiva.” (Am. Compl. ¶241.) This allegation does not support an equitable estoppel defense because the threat is alleged to have been made approximately nineteen years after Twersky left YUHS. It can therefore have had no effect on Twersky's ability to bring his claims within three years of turning eighteen.
Similar claims of duress are also insufficient for Doe Fourteen, who alleges that Fink-elstein punched him and threatened him in 1971 when Doe Fourteen was in school at YUHS, and for Doe Thirty-Two, who alleges that in about 1988 or 1989, he reported Fink-elstein's abuse and was threatened and told to stay home from school for a few days. These allegations are insufficient because they contain no explanations as to how the threats could have continued to have any effect on the plaintiffs after they graduated. Cf. Holy See,
. When asked by the Court whether the damages from fraud are distinct from the damages from negligence, counsel for the plaintiffs stated:
To the extent the negligence claim survives, your Honor, I would concede that the fraud claims may be dismissed as incidental. I have no problem with that. The difference with the negligence claim and the fraud is that the fraud claim, there was an accrual issue whereas in the negligence case, there is only an issue of equitable estoppel.
(Oral Arg. Tr. 51.)
. The defendants also argue that the plaintiffs have failed to plead their fraud claim with sufficient particularity under the requirements of Rule 9(b). Because the fraud claim must be dismissed as merely incidental to the other claims, there is no occasion to address this argument here.