new zali baishachaim papers 2/17/09
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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WILMOS FRIEDMAN, HERMAN KAHAN, ZIGMOND
BRACH, JOSE MASRI, ERVIN ROSNER, MORRIS
FRIEDMAN, JOSEPH EPSTEIN, HERMAN LANDAU,
MOSES SPIELMAN and all others similarly situated,
Index No.
Plaintiffs, 33481/08
-against-
CYL CEMETERY, INC., CONGREGATION YETEV
LEV DSATMAR, INC., CHEVRE KADISHEDSATMAR, a division of CONGREGATION YETEV
LEV DSATMAR, INC., CONGREGATION YETEV
LEV DSATMAR OF KIRYAS JOEL, INC., CENTRAL
CONGREGATION YETEV LEV DSATMAR, INC.,
RABBI EZRIEL GLUCK, JOSEPH WEISS, MOSES
WITRIOL, DAVID MARKOWITZ, CHAIM ELIEZER
GROSS, JOEL KAUFMAN, DAVID EKSTEIN, ELIAS
HOROWITZ, and SHLOMO WERTZBERGER,
Defendants.
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REPLY MEMORANDUM OF LAW
This Reply Memorandum of Law is respectfully submitted on
behalf of plaintiffs in further support of, and in response to certain
defendants opposition to, plaintiffs motion for a preliminary injunction
prohibiting defendants from interfering with the contractual and statutory
rights of the plaintiffs to burial in the Kiryas Joel Cemetery (the
Cemetery) and to the erection of a headstone, in accordance with
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Certificates and permits issued by Congregation Yetev Lev DSatmar, Inc.
(the Congregation). This Reply Memorandum is also submitted in
opposition to the various defendants cross-motions to dismiss the
complaint.
The facts are summarized in the Moving and Reply Affirmation
of David B. Hamm, as supported by additional affirmations and extensive
documentary evidence, to which the Court is respectfully referred.
Unfortunately, opposing defendants have chosen to foist upon this Court
bald misstatements of the facts, without documentary support and indeed in
complete denial of the facts of record. Critically, those falsifications seem to
center on the outrageous assertion that plaintiffs, on behalf of the Kahan
faction are seeking to seize control of the Cemetery. This preposterous
notion is absolutely belied by the plaintiffs Complaint and motion, which
seeks no such relief. To the contrary, the evidence is clear that it is
defendants who are seeking to exclude Congregants of the Congregation or
force them to pay membership or other fees to the Central Congregation,
of which they are not members at all. This is pure extortion, and should be
enjoined.
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POINT I
THIS ACTION IS JUSTICIABLE, AS THE
ISSUES PRESENTED CAN BE
DETERMINED BY APPLICATION OF
NEUTRAL PRINCIPLES OF LAW. _________
Defendants insist that this case is non-justiciable, seemingly
relying principally on the fact that this case involves claims by and between
members of and institutions in the Satmar community. Their shotgun attack,
seemingly applicable to any and all inter-Satmar claims, must be rejected.
The Court of Appeals decisions in Matter of Congregation
Yetev Lev DSatmar, Inc. v. Kahana, 9 N.Y.3d 282, 849 N.Y.S.2d 463, 879
N.E.2d 1282 (2007) (election case) and Congregation Yetev Lev
DSatmar of Kiryas Joel, Inc. v. Congregation Yetev Lev DSatmar, Inc., 9
N.Y.3d 297, 849 N.Y.S.2d 192, 879 N.E.2d 731 (2007) (Cemetery transfer
case) did not hold that every dispute or issue involving Satmar is non-
justiciable. Indeed, in the latter case, the Court of Appeals unmistakably
held that the dispute in that case was justiciable. The Court of Appeals there
affirmed the Appellate Division, Second Departments decision voiding the
purported transfer by the Friedman faction of one-half of the Congregations
interest in the Cemetery to defendant Congregation Yetev Lev DSatmar of
Kiryas Joel, Inc. (KJ), upon the specific ground that the record showed
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that the transfer was not in the best interest of the Congregation, hence
rendered void under neutral principles of law.
In Schwimmer v. Welz, 56 A.D.3d 541, 868 N.Y.S.2d 671 (2d
Dept. 2008), decided subsequent to the Court of Appeals decisions, the
Appellate Division, Second Department held that a dispute between Satmars
concerning competing claims to control of the Board of Trustees of a
Talmudic academy was justiciable. The Court noted that the issue in
question there, membership in the Board of Trustees, was not conditioned
under the By-Laws upon any religious criteria, and the issues raised with
respect to the challenged status of the various individuals claiming to be
Board members concerned only notice requirements, requisites for the
conduct of Board meetings and elections, and requirements for amending
corporate documents. Those questions could be determined by reference to
the Talmudic academys secular By-Laws, and in accordance with neutral
principles of law, such as those set forth in the Religious Corporations Law
and the Not-for-Profit-Corporations Law. Although matters relating to a
dispute with regard to the religious leadership of the community might
explain why members of the Board took certain actions, the case turned not
on the motivations of the Board members but on the actions they took as
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those actions related to the relevant provisions of corporate governance and
statute.
Here, too, this Court need not delve into any religious issue or
criteria in order to determine the issues raised by plaintiffs claims. As
discussed in Point IV infra, defendants, by their conduct, have
acknowledged, and it is in any event clearly proven, that plaintiffs are
members of the Congregation who purchased Certificates memorializing
their right to be interred in the Cemetery. Thus, defendants argument that
religious criteria must be considered in order to determine whether plaintiffs
are members of the Congregation, is devoid of merit.
In any event, the By-Laws of the Congregation do not require
that an individual must be a member of the Congregation at the time of
death, but only that he was a member of the Congregation at the time the
Certificate was issued. Defendants have pointed to no provision in the By-
Laws, or in any other document of Record for that matter, which requires
that an individual must be a member at the time of the death as a
precondition to the fulfillment of his contractual right to be buried in the
Cemetery. To the contrary, as outlined in the Reply Affirmations and
annexed exhibits, the sale of rights to burial of those who were not members
at the time of death was clearly contemplated by the Congregation.
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Thus, as in Schwimmer, this Court need not touch upon any
matters of religious doctrine involving membership of the Congregation in
order to determine the claims in this case. It is disturbing that defense
counsel does not address the Appellate Divisions decision in Schwimmer,
although defense counsel were and are the attorneys in Schwimmer.
The Appellate Division in Schwimmer applied the well settled
rule of law that those disputes involving religious organizations which can
be resolved by application of neutral principles of law, should be resolved
by the Court (see, Episcopal Diocese of Rochester v. Harnish, 11 N.Y.3d
340, ___ N.Y.S.2d ___ [2008]; Park Slope Jewish Center v. Congregation
BNai Jacob, 90 N.Y.2d 517, 664 N.Y.S.2d 236, 686 N.E.2d 1330 [1997];
Morris v. Scribner, 69 N.Y.2d 418, 515 N.Y.S.2d 424, 508 N.E.2d 136
[1987]; First Presbyterian Church of Schenectady v. United Presbyterian
Church in United States, 62 N.Y.2d 110, 476 N.Y.S.2d 86, 464 N.E.2d 454
[1984]; Avitzur v. Avitzur, 58 N.Y.2d 108, 459 N.Y.S.2d 572, 446 N.E.2d
136 [1983]).
The First Amendment, by operation of the 14th
Amendment,
prohibits States from making `laws respecting an establishment of religion,
or prohibiting the free exercise thereof (First Presbyterian Church of
Schenectady v. United Presbyterian Church, supra, 62 N.Y.2d 110, 116).
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property disputes] if they can do so without resolving underlying
controversies over religious doctrine); Morris v. Scribner, supra, 69 N.Y.2d
418 (resolution by civil court of internal dispute between church officials
and a minority of parishioners who opposed construction on church property
did not violate the First Amendment, because dispute could be decided on
the basis of statutory interpretation and common-law precedent without
reference to matters of religious belief or dogma); First Presbyterian Church
of Schenectady v. United Presbyterian Church, supra, 62 N.Y.2d at 120-121;
cf., Avitzur v. Avitzur, supra, 58 N.Y.2d 108 (the neutral principles of law
approach contemplates the application of objective, well-established
principles of secular law to the dispute, thus permitting judicial involvement
to the extent that it can be accomplished in purely secular terms).
Under the neutral principles of law analysis, the Court must
look only to those documents that deal specifically with church property,
taking care to examine these documents in secular terms and not relying on
religious precepts to determine whether the parties intended a particular
result. Park Slope Jewish Center v. Bnai Jacob, supra, 90 N.Y.2d at 522;
First Presbyterian Church of Schenectady v. United Presbyterian Church,
supra, at 123 ([T]he court may look only to provisions relating to
property and it must interpret them in a secular light.) These documents
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include instruments such as deeds, the terms of the local church charter, the
corporate by-laws, and the State statutes governing the holding of church
property (Ibid.; see also, Karageorgious v. Laoudis, 271 A.D.2d 653, 706
N.Y.S.2d 720 [2d Dept. 2000]). Indeed, in Episcopal Diocese of Rochester
v. Harnish, supra, 11 N.Y.3d 340, the Court of Appeals latest
pronouncement on the issue of justiciability, the Court dissected a single
document, avoiding those clauses which involved ecclesiastical issues, and
decided the case on the basis of a singular clause which permitted invocation
of neutral principles of law.
Applying these criteria, this Court need not entangle itself in
matters of religious doctrine in order to determine this controversy. This
contractual dispute can be resolved by examination of the relevant
documents setting out the parties rights with respect to the cemetery plots
which were purchased, interpreting those documents solely in a secular light.
Furthermore, the conduct of certain defendants, in attempting to block
funerals and the erection of headstones, can be adjudicated through
application of traditional legal doctrine addressing interference with a
contract.
Here, the Certificates which were issued to plaintiffs evidence
all of the elements of a contract, especially when read in conjunction with
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the By-Laws. The plaintiffs have in exchange for consideration (i.e., the
purchase price, which was fully paid), obtained the right to be buried in the
Cemetery. The Certificates state:
THIS IS TO CERTIFY AS EVIDENCE FOR
THE RESPECTED
________________________________________
The holder of this certificate has been accepted as
a member in our holy association to be entitled to a
burial plot for himself after he passes away at the
cemetery of our holy Community in Kiryas Joel,
Monroe, at the location of the gravesite of the holy
Grand Rebbe of blessed memory according to the
amount determined by the committee of our holy
Community in accordance with the holy
regulations of the holy Congregation Yetev Lev
DSatmar. He has paid the sum in full.1
Each of the plaintiffs has regularly paid the dues charged by
and other amounts pledged to the Congregation, including amounts
earmarked for the benefit of the Chevre Kadishe (Burial Society), and has
paid a separate lump sum to the Congregation in order to purchase a burial
plot in the Cemetery. In addition to the right to be buried in the Cemetery,
the Congregations By-Laws give Certificate holders the right to erect a
stone or monument at the grave site. (See Article 11 of the By-Laws,
1 Certificates bearing alternative language, as explained in the Reply Affirmations
of David B. Hamm and Chaim Jacobowitz, are substantively identical. In any event, any
issue of fact in that regard would not and should not preclude issuance of a preliminaryinjunction (see CPLR 6312[c]).
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annexed as Exhibit 10 to the moving Affirmation of David Hamm). The By-
Laws of a not-for-profit corporation have long been recognized as a contract
between the members of the corporation and the corporation itself (Matter of
George v. Holstein-Friesian Assn. of Am.,238 N.Y. 513, 523 [1924]). The
law is clear that the purchaser of a cemetery lot becomes possessed of a
property right, which includes the right to erect a monument or tombstone
(Sockel v. Degel Yehudo Cemetery, 268 App. Div. 207, 49 N.Y.S.2d 176
[1st Dept. 1944]; Oatka Cemetery Assoc., Inc. v. Cazeau, 242 App. Div. 415,
275 N.Y.S. 355 [4th
Dept. 1934]).
New York courts routinely determine contractual and property
disputes such as the one presented here, even when such disputes arise
against a background of religious or doctrinal controversy. Very recently,
the Appellate Division, Second Department in Merkos LInyonei Chinuch,
Inc. v. Sharf, __A.D.3d ___, 2009 N.Y. Slip. Op. 659, 2009 N.Y. App. Div.
LEXIS 729 (2d Dept. 2009), held that the existence of a divisive doctrinal
dispute within the Lubavitch Hasidic community did not render the action
non-justiciable, even if the facts underlying the action arose from that
dispute. The Court noted that Property disputes between rival religious
factions may be resolved by courts, despite the underlying doctrinal
controversy, when it is possible to do so on the basis of neutral principles of
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law (citations omitted). The Appellate Division held that the issue of title
to certain buildings and the right of possession thereto could be determined
based upon the deeds of the properties.
Yet another example is found in Karageorgious v. Laoudis,
supra, 271 A.D.2d 653, where the Appellate Division, Second Department
applied the clear dictate of the relevant corporate by-laws in determining an
issue concerning control over the property and accounts of a church
parish. The Court held that the fact that a schism had occurred did not
require the court to resolve any issues of religious doctrine.
Similarly, in Trustees of Diocese of Albany v. Trinity Episcopal
Church, 250 A.D.2d 282, 684 N.Y.S.2d 76 (3d Dept. 1999), the Appellate
Division, Third Department held that a dispute over ownership of church
property could be resolved through the application of neutral principles of
law without interfering in church doctrine or polity by an examination of,
among other things, the deeds to the property, the terms of the defendant
churchs local charter and the statutes governing the holding of church
property. The Court noted that although the controversy at hand was borne
out of a schismthe resolution of this property dispute can still be achieved
through neutral principles of law without resort to judicial intrusion into
matters of religious doctrine (250 A.D.2d at 286; citations omitted).
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In First Presbyterian Church of Schenectady, supra, the Court
of Appeals, applying familiar property law principles, focused upon the
deeds to the property, which were in the name of the plaintiff local church or
its trustees, in holding that the property at issue belonged to the plaintiff
church and not to the denominational church organization from which it had
withdrawn because of a dispute over financial support of radical political
groups (62 N.Y.2d at 122).
Highly instructive is the Court of Appeals decision in Avitzur
v. Avitzur, supra, 58 N.Y.2d 108. In that case, the plaintiff wife and
defendant husband had, prior to their marriage, signed a document known as
a Ketubah, in which they both agreed to recognize the Beth Din, a
rabbinical tribunal, as having authority to counsel the couple in matters
concerning their marriage. The defendant husband was granted a civil
divorce, but the wife was not considered divorced and could not remarry
pursuant to Jewish law until such time as a Jewish divorce decree, known as
a Get, was granted. A Get could be obtained only after the husband and
wife appeared before the Beth Din. After the defendant refused to appear,
plaintiff brought an action seeking an order compelling the defendants
specific performance of the requirement in the Ketubah that the husband
appear before the Beth Din.
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The Appellate Division, Third Department held that
defendants motion to dismiss should have been granted. In its view, the
Ketubah constituted an ecclesiastical agreement which was unenforceable by
the Court, since the State, having granted a civil divorce to the parties, had
no further interest in their marital status.
The Court of Appeals reversed, holding that nothing in law or
public policy prevented judicial recognition and enforcement of the secular
terms of a religious marriage agreement. The Court emphasized that the
Ketubah was in essence a civil contract to submit a dispute to a non-judicial
forum, and that it was entitled to no less dignity than any other civil contract
(58 N.Y.2d at 114). The Court stated that the case can be decided solely
upon the application of neutral principles of contract law, without reference
to any religious principle (Ibid.). The relief sought by plaintiff, i.e., to
compel the defendant to perform a secular obligation to which he
contractually bound himself, required that no doctrinal issue be passed upon
(58 N.Y.2d at 115). Here, similarly, the relief which plaintiffs seek, i.e., to
compel defendants to respect, and not to interfere with, plaintiffs
contractual rights, does not require this Court to pass upon any doctrinal
issue.
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involving religious groups. The complete deference, hands-off approach,
which was rejected by the United States Supreme Court in Jones v. Wolf,
supra, 443 U.S. 595 and by the Court of Appeals in First Presbyterian
Church of Schenectady, supra, 62 N.Y.2d 110, would deprive the
Congregations members of their constitutional right to this secular forum.
What is more, a hands-off approach would utterly frustrate
the policy of the Religious Corporations Law. The primary purpose of the
Religious Corporations Law is to provide an orderly method for the
administration of the property and temporalities dedicated to the use of
religious groups, and to preserve them from exploitation by those who might
divert them from the true beneficiaries of the corporate trust (Morris v.
Scribner, supra, 69 N.Y.2d at 423). Defendants cannot wrap themselves in a
cloak of religious dispute and then use that as a shield against the Courts
ability and indeed, obligation to resolve the instant contractual dispute (see
Jews for Jesus, Inc. v. Jewish Commun. Relations Council of N.Y., Inc., 968
F.2d 286 [2d Cir. 1992]). If a party could foreclose inquiry or thwart the
courts jurisdiction merely by asserting its view of religious doctrine, every
attempt to apply a neutral principles analysis could easily be stymied. See
Merkos LInyonei Chinuch v. Otsar Sifrei Lubavitch, Inc., 312 F.3d 94, 99-
100 (2d Cir. 2002).
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As the Appellate Division, Second Department has noted:
Nothing can be more indispensable to a well
ordered society and a smoothly functioning
civilization than the integrity of its records
involving property. Ifproperty rights [could be]
overturned with the ease argued for here, the
resulting chaos in organized society would surpass
that which follows an earthquake or any other
catastrophe which destroys the archives of the
people. Congregation Yetev Lev DSatmar, Inc.
v. 26 Adar N.B. Corp., 219 A.D.2d 186, 191,
641 N.Y.S.2d 680, 683 (2d Dept. 1996), quoting
Pennsylvania Baptist Convention v. Regular
Baptist Church, 377 Pa. 631, 635, 105 A.2d 296,298 (1954).
For these reasons, among others, the burden is on the
defendants to establish that the issues before the Court are non-justiciable
because they would necessarily involve the Court in resolving controversies
over religious doctrine and practice. Instructive is Kelley v. Garuda, 36
A.D.3d 593, 827 N.Y.S.2d 293 (2d Dept. 2007), in which the Court made
clear that a party cannot render a dispute which can be resolved on legal
principles non-justiciable, by unilaterally intertwining religious issues.
In Kelley, the plaintiffs brought an action to enjoin an alleged
trespass and usurpation of corporate authority and for a judgment declaring
the rights and interests of the respective parties in a temple. Their motion
for, inter alia, a preliminary injunction enjoining the defendants from selling,
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mortgaging, or otherwise encumbering plaintiffs property including the
temple was denied by the lower court.
The Appellate Division, Second Department modified the
Order by substituting a provision granting the preliminary injunction. The
Appellate Division noted that while the parties had attempted to drag the
court into a dispute over church doctrine and practice, the causes of action
alleging trespass and usurpation were based, essentially, on legal principles
of corporate government and property. The Court held that the defendants
had the burden of establishing non-justiciability, stating, The defendants
failed to establish that the court could not resolve these issues by applying
neutral principles of law to analyze the deed to the property, the certificate
of incorporation, the terms of the by-laws, and the documents submitted
by the parties.
The Appellate Division in Kelley held that the lower courts
finding that plaintiffs had not established a likelihood of success on the
merits was based on its erroneous determination that the trespass and
usurpation of corporate authority causes of action were non-justiciable. As
the plaintiffs would suffer irreparable injury should the defendants sell,
mortgage, or otherwise encumber the property, an injunction was necessary
to preserve the status quo.
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The same result should apply here. The matter of enforcing
plaintiffs contractual rights need not thrust this Court into the area of
ecclesiastical decision making or internal policy matters. Plaintiffs claims
can be resolved by resort to neutral principles of law and by review of
documents concerning the Cemetery property, including the Certificates and
By-Laws, without inquiring into Satmar doctrine or tenets of faith. Further,
a preliminary injunction is clearly warranted as there is a real threat to the
named and class plaintiffs that their access to the Cemetery will be barred by
defendants through extortive demands for payments in arbitrary amounts,
notwithstanding full prior payment for the right of burial.
The cases cited by defendants in their Joint Memorandum of
Law are inapposite. Particularly misleading is defendants citation to the
decision by Judge Ambrosio in Frankel v. Congregation Yetev Lev
DSatmar, 20 Misc.3d 1137(A), 2008 WL 3915798, 2008 N.Y. Slip Op.
51779(U) (Sup. Ct., Kings County, August 22, 2008). That case actually
involved three actions. Defendants inexcusably fail to advise this Court that
the first action, Frankel v. Congregation Yetev Lev DSatmar, was
discontinued as of right by the plaintiffs, and the class was never certified.
Thus, that case is worthless as precedents for defendants. Furthermore,
Judge Ambosio in his decision noted that the Frankel action was a
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manipulative attempt by the Friedman adherents to obtain judicial
recognition that the Friedman faction, rather than the Kahan leadership, was
authorized to act on behalf of the Congregation, an attempt which was
properly rejected by Judge Ambrosio.
The second action referred to by Judge Ambrosio in the Frankel
decision, Congregation Yetev Lev DSatmar, Inc., Moshe Scher et al v.
Congregation Yetev Lev DSatmar, Inc., Sol Perlstein et al, (the Scher
action) was a class action commenced in Orange County in June 2006 by
the Friedman adherents. Defendants herein fail to advise this Court that the
Scher action, like the Frankel action, was discontinued by the plaintiffs. As
Judge Ambrosio noted, both the Frankel action and this [the Scher action]
are now deemed discontinued and are non-justiciable.
The third action before Judge Ambrosio, entitled Congregation
Yetev Lev DSatmar, Inc., Jenoe Kahan et al. v. Friedman, was a claim by
what was termed the Kahan faction to exclusive authority over all assets of
the Congregation to the exclusion of what was termed the Friedman faction.
Plaintiffs sought, among other things, a preliminary injunction enjoining the
Friedman faction from holding themselves out as the duly elected board of
the Congregation. Judge Ambrosio declined to rule on that claim, on the
grounds that the Court of Appeals had previously declined to declare the
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validity of either sides election because such determination would require
the Court to impermissibly pass upon issues of religious doctrine.
Even had this Order been properly decided, it is entirely and
obviously distinguishable. In this action, plaintiffs seek no ruling with
respect to whether the Friedman faction should be excluded from exerting
control over assets of the Congregation. Plaintiffs do not seek to exclude
any Satmar person from burial in the Cemetery; nothing in the complaint or
the relief requested on this motion can be so misinterpreted as suggesting the
exclusion of anyone, defendants false and baseless accusations
notwithstanding. Plaintiffs seek only to confirm their rights under and
pursuant to their contracts to burial and the erection of a headstone in the
Cemetery, not at all the exclusion of anyone else. Beyond that, it is
respectfully submitted that Judge Ambrosio misinterpreted the import of the
Court of Appeals decisions and erred in failing to enforce the status quo
referred to in Justice Baraschs decision affirmed by the Court of Appeals.
As we will show, infra at Point II, that term had legally cognizable meaning.
Defendants also place mistaken reliance upon the decision of
Judge Sifton in Brach v. Congregation Yetev Lev DSatmar, et al. (S.D.N.Y.
1993). In that case, a splinter group of Satmar consisting of approximately
41 families in Kiryas Joel brought an action asserting federal civil rights
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claims against the Congregation, which had purportedly barred them from
creating their own prayer group in the Cemetery. In his decision which
granted the Congregations motion to dismiss those claims, Judge Sifton did
not state that plaintiffs claims were non-justiciable. Rather, Judge Sifton,
relying on the plain terms of the statutes involved, (1) dismissed plaintiffs
section 1982 claims upon the ground that the statute only covered
discrimination on the grounds of race or ethnicity, not religious
discrimination; (2) dismissed plaintiffs section 1983 claim on the ground
that the Congregations alleged actions did not constitute state action; and
(3) dismissed plaintiffs section 1985 claim upon the ground that the claim
was poorly pleaded and failed to state a cause of action, in that it failed to
plead that the plaintiffs were the victims of a class-based animus which
discriminated against them based on their Judaism.
Thus, Judge Sifton in the Brach case, rather than declining to
adjudicate plaintiffs claims on the grounds of non-justiciability, determined
and disposed of those claims utilizing neutral principles of law, including
principles of statutory interpretation. Thus, Brach provides no support for
defendants arguments that this case is non-justiciable. In fact, Brach
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provides support for plaintiffs arguments here that this Court should
determine the action insofar as it can do so using neutral principles of law.2
2 Weinstock v. Congregation Yetev Lev DSatmar, Inc. (Orange County Index No.
5798/72), cited in the Buss and Mahon affirmations, is inapposite. This Court is notbeing asked to review the propriety of an exercise of church discipline, i.e., the propriety
of the expulsion of a member upon religious grounds. There has been no such expulsion,
and even if there were, it would not be relevant to the rights to burial. For that reason, theBuss affirmations reliance upon Paul v. Watchtower Bible and Trust Society of New
York, Inc., 819 F.2d 875 (9th Cir. 1987), cert denied, 484 U.S. 926 (1988), and Grunwald
v. Bornfreund, 696 F. Supp. 838 (E.D.N.. 1988), which similarly involve issues of churchdiscipline (i.e., shunning and ostracism of former members), is misplaced.
The cases cited at page 18 of the Joint Memorandum of Law are not helpful to
defendants. In Park Slope Jewish Center v. Congregation BNai Jacob, supra, 90 N.Y.2d517; Archdiocese of Ethiopian Orthodox Church in U.S. and Canada v. Yesehaq, 232
A.D.2d 332, 648 N.Y.S.2d 605 (1st Dept. 1996); and Upstate New York Synod of
Evangelical Lutheran Church in Am. v. Christ Evangelical Lutheran Church of Buffalo,185 A.D.2d 693, 585 N.Y.S.2d 914 (4th Dept. 1992), the Courts determined those issues
in the church disputes which could be determined by application of neutral principles of
law. The same result should apply here. This Court is not being asked to determinewhether a church has substantially abandoned its original religious doctrines
(Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Mem. Presby.
Church, 393 U.S. 440, 89 S.Ct. 601, 21 L.Ed.2d 658 [1969]) or to interfere in a churchs
exercise of church discipline in defrocking a rebellious bishop (Serbian OrthodoxDiocese v. Milivojevich, 426 U.S. 696, 96 S.Ct. 2372, 49 L.Ed.2d 151 [1976]).
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POINT II
THE CONGREGATION HAD ACTUAL
AUTHORITY TO ISSUE THE CERTIFICATES.
THAT THE COURTS HAVE DECLINED TO
VALIDATE EITHER OF THE 2001 ELECTIONS
DOES NOT CREATE A VACUUM; RATHER,
THE BOARD THAT WAS PREVIOUSLY IN
POWER REMAINS IN POWER. CERTAINLY,
PLAINTIFFS HAD THE RIGHT TO RELY
ON THEIR CONTINUING DAY TO DAY
AUTHORITY IN PURCHASING THEIR
CERTIFICATES.__________________________
As set forth in the moving papers, the plaintiffs Certificates
were issued by the Congregation at a time when the ownership and authority
of the Congregation over the Cemetery was undisputed. Indeed, as noted
supra, in 2007 the Court of Appeals confirmed the Appellate Divisions set
aside of a purported transfer by the Friedman faction of a one-half interest in
the Cemetery away from the Congregation to the KJ Congregation. See,
Congregation Yetev Lev DSatmar of Kiryas Joel, Inc. v. Cong. Yetev Lev
DSatmar, Inc.,supra, 9 N.Y.3d 297. In addition, the authority of the Board
of the Congregation in place prior to and since 2001, with its principal place
of business at 152 Rodney Street, to manage the affairs of the Congregation
including the Cemetery, survived a Court challenge by the Friedman faction
which reached the Court of Appeals. See, Matter of Cong. Yetev Lev
DSatmar v. Kahana, supra, 9 N.Y.3d 282. Accordingly, the Certificates
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issued by the Congregation are valid, set forth the terms of the contract
between the Congregation and the plaintiffs, and specifically grant plaintiffs
the right to be buried in the Cemetery and impose upon the Congregation the
obligation to facilitate plaintiffs burial in the allotted plot (DaSilva v.
Musso, 53 N.Y.2d 543, 550, 444 N.Y.S.2d 50 [1981] [Under long accepted
principles one who signs a document is, absent fraud or other wrongful act
of the other contracting party, bound by its contents]; Florence v.
Merchants Central Alarm Co., Inc., 51 N.Y.2d 793, 794, 433 N.Y.S.2d 91
[1980] [same]).
In any event, the law is clear that where an election (or
elections) is held for new officers or directors, and that election is not
deemed valid, a power vacuum does not result; rather, the individuals who
make up the prior officers and directors continue in their positions until their
successors have been elected in a valid election.
Article 10 of the Religious Corporation Law (RCL), which
governs Jewish religious corporations, does not have a specific provision as
to which individuals constitute the board of directors when an election is
refused validation. However, RCL section 2-b(1)(a) provides that the
provisions of the Not-for-Profit Corporation Law apply to every corporation
to which the RCL applies, except for certain exceptions not relevant here.
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Section 703(c) of the Not-for- Profit Corporation Law provides that Each
director shall hold office until the expiration of the term for which he is
elected or appointed, and until his successor has been elected or appointed
and qualified. This provision is similar to section 703(b) of the Business
Corporation Law, which provides that Each director shall hold office until
the expiration of the term for which he is elected, and until his successor has
been elected and qualified.
Thus, pursuant to statute, since neither the Kahan nor the
Friedman elections in 2001 were determined to be valid, then the prior
board, of which Messrs. Kahan and Perlstein (the then President and Vice-
President, respectively) were indisputably members, continues in office until
such time as a valid election takes place.3
See e.g., Griffin v. Varflex Corp.,
79 A.D.2d 857, 434 N.Y.S.2d 488 (4th
Dept. 1980) (pursuant to Business
Corporation Law 703[b], in the absence of a showing that a successor to
petitioner as a director of the corporation has been elected, petitioner
continues as such director with an absolute right to inspect the books and
3 Defendants argue in their Joint Memorandum of Law that Berl Friedman was
previously the President of the Board. However, in the proceeding before Justice
Barasch in Supreme Court, Kings County, the Friedman faction (the Petitioners therein)admitted that Berl Friedman had been at most a Co-President along with Jenoe Kahan.
The Barasch decision indicates that Jeno Kahan and Berl Friedman served as co-
presidents from 1998 (Congregation Yetev Lev DSatmar v. Kahana, 5 Misc.3d 1023A,
799 N.Y.S.2d 159 [S.Ct. Kings County 2004]). However, Friedman was expelled by theGrand Rabbipriorto the 2001 elections, leaving only Kahan as President.
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records of the corporation); Matter of the Annual Election of the Empire
State Supreme Lodge of the Degree of Honor, A Corporation, 118 App. Div.
616, 103 N.Y.S.2d 1124 (4th
Dept. 1907) (the Court declared that the
election of the respondents was illegal and that the nine directors elected
should be ousted from control; the future management of the affairs of the
association was to be returned to the former executive committee until a
regular election could be held); Matter of Application of A.J. Briggs v.
Noble, 2 Misc.3d 1010A, 784 N.Y.S.2d 918 (Sup. Ct., Erie County 2004)
(where July assembly of Baptist congregation was not an annual meeting
properly called by the trustees, and certain members of the church were
excluded from participating under threat of arrest, the July meeting was a
nullity and as a consequence, the survivors of the last elected board of
trustees remained in office until their successors were elected in accordance
with the constitution and by-laws of the church and the Religious
Corporation Law); In the Matter of Standup Harlem, Inc., 1 Misc.3d 904A,
781 N.Y.S.2d 628 (Sup. Ct., New York County 2003) (with respect to
corporation organized under the Not-For-Profit Corporation Law, if
membership resolutions were improperly obtained, then the election of the
1999 directors was invalid and the 1997 board remained in office pursuant to
Not-for-Profit Corporation Law 703[c]).
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What is more, as Exhibit 39, annexed to the Reply Affirmation
of David B. Hamm, shows, Berl Friedman himself (p. 2, para. 6) announced
at a public gathering that, although elections of the Congregation were to
take place every three years, if the Trustees determine to extend the term
(i.e., if elections do not take place), the management that is serving at that
time will continue with all its duties until new elections will be arranged.
Thus, the notion of hold-over officers maintaining the status quo during a
period in which valid elections had not taken place is no stranger to Satmar.
In light of this, we respectfully submit, Justice Baraschs
comment at 5 Misc.3d 1023A of continuing the status quo has real legal
reference. Certificates attesting to the right to burial in the Cemetery, and
Permits attesting to the right to erect a headstone, issued under the auspices
of Messrs. Kahan, Perlstein and other pre-2001 election Board Members are
completely valid, and that, respectfully, without regard to whether they were
issued before or after April 1, 2006.4
4 This is not to suggest that Certificates issued under the auspices of other
Directors, prior to 2001 would not be similarly valid.
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POINT III
IN ANY EVENT, DEFENDANTS ARE
ESTOPPED BY THEIR CONDUCT
FROM REFUSING TO RECOGNIZE
PLAINTIFFS CERTIFICATES.
Up until recently, the Certificates for burial and Permits for
headstones, whether issued to Satmar Hasidim by the Congregation or by the
KJ Congregation, have all been honored by the Burial Society and the
Cemetery, premised on payment to the Congregation in which the individual
is/was a congregant. Congregants of the all of the various entities have been
buried in the Cemetery without incident. Specifically, Certificates identical
to those called invalid by defendants were in fact honored, Certificate
holders buried and headstones erected based on the Certificates of the
Congregation (see Exhibit K to Exhibit 34 to the Reply Affirmation of
David B. Hamm, Esq., consisting of copies of Certificates issued by the
Congregation, signed by Chaim Jacobowitz, which have been honored by
the Burial Society and the Cemetery).
As the Court stated in Matter of Charles v. Charles, 296 A.D.2d
547, 549, 745 N.Y.S.2d 572 (2d Dept. 2002), an equitable estoppel may be
imposed to prevent injustice suffered by a person who, in justifiable reliance
on the words or conduct of another, is induced to act or forbear . This
doctrine applies squarely to the present case. For decades, defendants acted
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in recognition of the rights of holders of Certificates issued by the
Congregation. Burial arrangements were made; graves were dug; deceased
Certificate holders and their relatives were buried; and headstones were
erected. In reliance on this practice, Congregation members continued to
purchase Certificates, expending significant sums of money with the belief
and reasonable expectation that they held the same rights as those whose
Certificates had previously been honored. Defendants necessarily knew that
Congregation members were continuing to purchase Certificates in reliance
on defendants conduct, since defendants were active participants in the
burial process.
The estoppel doctrine was applied in analogous circumstances
in Doctors Council v. New York City Employees Retirement System, 127
A.D.2d 380, 394-95, 514 N.Y.S.2d 922 (1st
Dept. 1987), revd in part on
other grounds, 71 N.Y.2d 669, 529 N.Y.S.2d 732, 525 N.E.2d 454 (1988).
The issue in that case was the right of plaintiff doctors, who were employed
part time by the City and its Health and Hospitals Corporation, to
membership in the Citys employment retirement system. Defendants took
the position that as a matter of law only full time doctors were entitled to
membership. Plaintiffs asserted that part-time doctors had regularly been
admitted to membership in the past; that they had entered City service
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primarily to be eligible for retirement benefits; and that defendants had made
representations that plaintiffs would be eligible. The Court, in reversing a
grant of summary judgment in defendants favor on this issue, stated that
defendants may be estopped from exercising their discretion to exclude part
time employees from membership if plaintiff doctors relied, as alleged,
upon express assurances or a practice, even if unauthorized, of extending
membership eligibility to part-time and sessional doctors. (emphasis
added). The Court went on to state, in language also applicable to the
present case:
The doctrine of equitable estoppel should be
available in just such circumstances. It would
preclude a party from exercising a power he might
otherwise legally exercise, when to do so would
result in severe prejudice or injury to another party
who has placed himself in a position of risk in
reliance upon the express or implied
representations of the first party (emphasis
added).
Doctors Council was followed in Walter v. City of New York
Police Department, 256 A.D.2d 8, 680 N.Y.S.2d 519 (1st
Dept. 1998), where
plaintiffs, who were over 35 years old, had qualified to attend the Police
Academy at a time when Federal Law precluded hiring restrictions based on
their age. Before the commencement of the next class at the Academy, the
law was changed, but defendant allegedly continued to advise plaintiffs that
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their age would not be a consideration in their appointment. Many plaintiffs
left their jobs or sold their businesses in reliance. Defendant then decided to
apply the age restrictions permitted by the amended statute. The First
Department sustained plaintiffs cause of action for estoppel against the
Department for its inconsistent and belated determination to apply [the
amended law] retroactively to plaintiffs, rather that prospectively only.
Similarly, no basis exists here to permit defendants to interfere with
established contract rights.
Bisbing v. Sterling Precision Corporation, 34 A.D.2d 427, 312
N.Y.S.2d 305 (3d Dept. 1970) also supports the application of the estoppel
doctrine here. In Bisbing, plaintiffs were retired employees who claimed to
have continued working for defendant employers based on representations as
to what their retirement benefits would be. After the employers were
acquired by another company, plaintiffs benefits were reduced. In reversing
an order of summary judgment in defendants favor, the Court, quoting from
Rothschild v. Title Guarantee & Trust Co., 204 N.Y. 458 (1912), stated:
When a party with full knowledge, or with
sufficient notice of his rights and of all the materialfacts, freely does what amounts to a recognition or
adoption of a contract or transaction as existing, or
acts in a manner inconsistent with its repudiation
and so as to affect or interfere with the relations
and situation of the parties, he acquiesces in and
assents to it and is equitably estopped from
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impeaching it although it was originally void or
voidable (emphasis added).
Defendants conduct here in acting in recognition of the
contracts established by Congregation members Certificates fits precisely
within the above formulation of the equitable estoppel rule.
Electrolux Corp. v. Val-Worth, Inc., 6 N.Y.2d 556, 190
N.Y.S.2d 977, 161 N.E.2d 197 (1959), also strongly supports plaintiffs
position on this issue. There plaintiff had for an extended period of time
sold to defendants used vacuum cleaners received by plaintiff as trade-ins.
Defendants then refurbished the machines, using some non-Electrolux parts,
and re-sold them as re-built Electrolux vacuum cleaners. After defendants
began advertising these products on television, plaintiff sued and asserted
unfair competition claims. In affirming the dismissal of certain of those
claims, the Court of Appeals stated:
The Appellate Division held that plaintiff was
estopped from enjoining a course of business of
which it not only presumably had knowledge, but
in which it actively participated. We agree in this
conclusion. For, as we have said in Rothschild v.
Title Guar. & Trust Co., (204 N.Y. 458, 461
[1912]), `Where a person wronged is silent under aduty to speak, or by an act or declaration
recognizes the wrong as an existing and valid
transaction, and in some degree, at least, gives it
effect so as to benefit himself or so as to affect the
rights or relations created by it between the
wrongdoer and a third person, he acquiesces in and
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assents to it and is equitably estopped from
impeaching it. Assuming that it was actionable to
use foreign parts in the `rebuilt Electrolux,
plaintiff profited by continuing sales of trade-in
machines while at the same time refusing to sell
genuine Electrolux parts to respondents. `One
cannot knowingly sanction business methods
adopted by a rival, much less invite his competitor
to engage in a business and later recover damages
for the alleged losses to his business by means
which he encouraged. (William H. Keller, Inc., v.
Chicago Pneumatic Tool Co., 298 F. 52, 59 [7th
Cir., 1923]).
A finding of estoppel is all the more imperative here because
the Burial Society actually received a portion of the money which plaintiffs
and other Congregation members remitted for the purchase of their
Certificates (see documents annexed as Exhibit L to the Affirmation of
Chaim Jacobowitz, Exh. 34 to the Affirmation of David B. Hamm). Having
accepted the financial benefits of the sale of the certificates to the plaintiffs
and other members of the Congregation, the Burial Society and the other
defendants are estopped from challenging the validity of those Certificates
(see e.g., Markovitz v. Markovitz, 29 A.D.3d 460, 816 N.Y.S.2d 419 [1st
Dept. 2006]; 1602 Avenue Y, Inc. v. Markowitz, 274 A.D.2d 506, 711
N.Y.S.2d 473 [2d Dept. 2000] [Estoppel will lie when an individual has
accepted the benefits of an agreement (citation omitted)]; Matter of the City
of New York v. Klondike; 80 A.D.2d 611, 436 N.Y.S.2d 52 [2d Dept.
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1981]; Belmont Homes, Inc. v. Kreutzer, 6 A.D.2d 697, 174 N.Y.S.2d 310
[2d Dept. 1958]).
POINT IV
BY THEIR CONDUCT, DEFENDANTS HAVE
RECOGNIZED THAT PLAINTIFFS ARE
MEMBERS OF THE CONGREGATION AND
THAT PLAINTIFFS PURCHASED THE RIGHT
TO BE BURIED IN THE CEMETERY. AS
PLAINTIFFS STANDING IS CONCEDED BY
DEFENDANTS, THE BURDEN IS ON
DEFENDANTS TO DEMONSTRATE THEIR
OWN STANDING AND TO JUSTIFY THEIRATTEMPTS TO EXERCISE AUTHORITY OVER
PLAINTIFFS, A BURDEN WHICH THEY
HAVE NOT AND CANNOT MEET._____________
Defendants cannot dispute that plaintiffs and all others in their
class are members of the Congregation, as defendants own conduct has
demonstrated that plaintiffs are members. All of the plaintiffs received
direct mailings from Congregation Yetev Lev DSatmar, Inc. purportedly
located at 163 Rodney Street (i.e., in actuality, defendant Central
Congregation Yetev Lev DSatmar, Inc.), which claimed, without sanction,
to have authority over burials in the Cemetery. The first of these mailings
emphasized that the right to obtain a plot in the Cemetery is designated only
for special members who have specifically purchased this special right
and received a certificate from the Chevre Kadishe Burial Society in
accordance with the customs of our holy Community since the cemetery was
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dedicated almost thirty years ago. That mailing purported to direct
plaintiffs, as such special members, to bring in their old Certificates by the
cut-off date of 21 Kislev (December 18, 2008), and further directed that
those special members must acquire a new certificate to replace the old
one. The new certificate would then serve as the only form of legitimate
and recognized evidence of the right to be buried in the Cemetery.
That mailing was followed by another mailing, again
purportedly from Congregation Yetev Lev DSatmar at 163 Rodney
Street. That mailing, dated November 2, 2008, is specifically addressed
To our friend and member of the Community. It acknowledges that our
records indicate that you are registered as a member in our Community.
The mailing further purports to demand payment of a large sum of unpaid
membership dues over a period of years.
On November 25, 2008, the entity at 163 Rodney Street sent
another missive addressed To the Disciples and Hassidim of Satmar,
members of our Community. It states that The Congregation also agreed
that, come what may, all members would be considered full members until
21 Kislev [December 18, 2008]. The letter stated, please send your
outstanding balance immediately so that your membership is considered to
remain active.
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On December 22, 2008, yet another letter was sent to plaintiffs
from Congregation Yetev Lev DSatmar at 163 Rodney Street, stating
that a complaint had been submitted against them that they had violated
Article 10, paragraph 3 of the regulations of the Yetev Lev Community
DSatmar. That regulation purportedly states that members are to be
excluded from the Congregation if it is determined that You work against
the interests of the Community. The letter purported to summon plaintiffs
to meet within three days with a Committee at 163 Rodney Street in order
to determine the accuracy of the complaint, and If you do not come within
three days we will be forced to exclude you from the Congregation and you
will lose all membership rights.
Most recently, Congregation Yetev Lev DSatmar at 163
Rodney Street sent a final warning in the form of an unsigned
anonymous letter to plaintiffs dated January 6, 2009. The letter threatens
that If you continue your legal case in secular court you will be excluded
from the Communitywithout any recourse whatsoever. The letter
advises that if plaintiffs come to the Congregations office at 163 Rodney
Street within two weeks, express regret to the Committee and promise
not to go to secular court or harm the interests of the Congregation,
plaintiffs may remain members. Thus, defendants have explicitly
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acknowledged in writing that the plaintiffs are members of the Congregation
who purchased Certificates demonstrating their right to be buried in the
Cemetery, and cannot now be heard to protest otherwise.
In contrast to plaintiffs conceded standing as members of the
Congregation who purchased the right to burial in the Cemetery, defendants
have not, and cannot, demonstrate their purported standing or authority to
forcibly exclude plaintiffs from the Cemetery, to attempt unilaterally to
revoke plaintiffs contract rights to be buried in the Cemetery, or to even
threaten to expel plaintiffs from membership in the Congregation should
they continue to assert their constitutional right to seek redress in the civil
courts. Justice Barasch in Matter of Congregation Yetev Lev DSatmar v.
Kahana, 5 Misc.3d 1023A, 799 N.Y.S.2d 159 (Sup. Ct., Kings County
2004), declined to recognize the Friedman faction as the Congregations
Board of Directors. His decision was affirmed by the Appellate Division (31
A.D.3d 541) and by the Court of Appeals (9 N.Y.3d 282). As defendants
cannot demonstrate that they have the legal authority which they purport to
exercise over plaintiffs, their attempt to unilaterally revoke plaintiffs
contract rights and their threat to expel them from the Congregation for
exercising their constitutional right to seek redress in the civil courts, may be
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recognized as sheer harassment of the most base and crude kind. It
underscores the need for a preliminary injunction to be granted.
In any event, there is no requirement in the By-Laws that a
person holding a certificate be a member at the time of death. What is more,
the only ground stated in the By-Laws and the final warning as ground for
termination is harming the interests of the Congregation, a purely secular
issue which can be resolved by the Courts (see e.g., Congregation Yetev Lev
DSatmar of Kiryas Joel, Inc. v. Congregation Yetev Lev DSatmar, Inc.,
supra, 9 N.Y.3d 297 [holding that purported transfer by the Friedman faction
of a one-half interest in the Cemetery property to the KJ Congregation was
void, as the record showed that the transfer was not in the best interest of the
Congregation]).
POINT V
DEFENDANTS ILLICIT ATTEMPT TO
TRANSFER THE CONGREGATIONS
INTEREST IN THE CEMETERY TO A
DEFECTIVELY INCORPORATED
CEMETERY CORPORATION IS VOID, AS
IT WAS NOT IN THE BEST INTERESTS OF
THE CONGREGATION. NOR CAN
PLAINTIFFS RIGHTS AS LOT OWNERSBE ALIENATED BY DEFENDANTS
ATTEMPTED TRANSFER.________________
As discussed supra, in Congregation Yetev Lev DSatmar of
Kiryas Joel, Inc. v. Congregation Yetev Lev DSatmar, Inc., supra, 9 N.Y.3d
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297, the Court of Appeals held that the purported transfer by the Friedman
faction of one-half of the Congregations interest in the Cemetery property
to the KJ Congregation was void, as the record showed that the transfer was
not in the best interest of the Congregation. The Friedman faction, however,
dissatisfied with the Appellate Divisions pronouncement on the issue, and
even as they sought review at the Court of Appeals, immediately attempted
to do an end-run around that decision by purporting to transfer the entire
Cemetery property to a defectively-incorporated cemetery corporation,
without payment of any consideration. The Friedman faction apparently
believed that their machinations would be protected from judicial review by
RCL section 12(7), which does not require prior court approval before lots
or plots in a cemetery owned by a religious corporation are sold or conveyed
to a cemetery corporation. However, as discussed infra, RCL 12(7), even
were it otherwise applicable to the case, in no way does away with the
requirement, applicable to all sales or transfers of property by a religious
corporation, that the transfer be in the best interests of the Congregation.
This requirement was discussed in depth in a recent article in
the New York Law Journal (David G. Samuels, Outside Counsel, Court
`Veto Power Oversees Property Sales by Religious Firms, NYLJ 1/26/09,
pp. 4, 8). In that article, the author noted that New York religious
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corporations are subject to special rules with respect to the sale or transfer of
real property. RCL 12 provides that a religious corporation must ordinarily
obtain leave of court pursuant to section 511 of the Not-for-Profit
Corporation Law (NPCL) before it may sell its property. Section 511 of
the NPCL authorizes the approval of the sale if it appears to the courts
satisfaction that the consideration and the terms of the [transaction] are fair
and reasonable to the corporation, and that the purposes of the corporation,
or the interests of its members will be promoted thereby.
Citing to the decision of the Appellate Division, Second
Department in Church of God of Prospect Plaza v. Fourth Church of Christ,
Scientist, of Brooklyn, 76 A.D.2d 712, 431 N.Y.S.2d 834 (2d Dept. 1980),
the article noted that while a corporation may enter into a valid contract for
the sale of its real property without first obtaining court approval, before the
court may enforce the contract, it must first determine that the terms and
consideration of the contract are fair and reasonable; if this is so determined,
the court must then analyze whether the contract will promote the purposes
of the corporation or the interest of its members in accordance with NPCL
511(d). As the Court noted in Church of God, the purpose of requiring
court approval is to protect the members of the religious corporation from
loss through unwise bargains and to assure that the disposition of the
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corporate property is consistent with, or in furtherance of, the corporate
purpose.
In Church of God, the Court held that the first prong of the test
whether the consideration and terms of the contract are fair and reasonable
should be determined as of the time the contract is made. The second
prong of the test whether the contract serves the purposes of the
corporation or the interests of its members -- should be reviewed by the
court at the time the petition for approval is before it. The Court in Church
of God stated that the court may consider whether corporate purposes would
have been served or the best interests of the membership promoted at the
time the contract was made; however, the court, in making its ultimate
determination, must be guided by the circumstances as they presently exist.
The article concludes with the observation that ever since the
enactment of the RCL, the role of the court, as protector of the assets and
the interests of the members of religious corporations, has never been
challenged and that contracting parties should be advised that contracts
made with religious corporations are subject to the ultimate `veto power of
the court (Samuels, supra, at p. 8, citing to Church of God, supra).
The Court of Appeals in Congregation Yetev Lev DSatmar of
Kiryas Joel, Inc. v. Congregation Yetev Lev DSatmar, Inc., supra, 9 N.Y.3d
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297, has already determined that the attempted transfer by the Friedman
faction of one half of the Congregations interest in the Cemetery property to
KJ, was not in the best interests of the Congregation. The Friedman
factions outrageous effort to thwart the Court of Appeals determination by
the purported expedient of transferring the entire Cemetery property to a
defectively incorporated cemetery corporation, itself incorporated by their
attorney and controlled by Friedman, should not be tolerated by this Court in
light of the Court of Appeals prior determination that transfer of a one-half
interest in the Cemetery was not in the best interests of the Congregation.
What is more, plaintiffs rights as lot owners certainly cannot
be terminated by defendants illicit attempt to transfer the Congregations
interest in the Cemetery. For example, RCL 8 provides that lots in the
cemetery are held indivisible, and upon the decease of a proprietor of such
lot, the title descends to his or her heirs-at law or devises. The statute
provides that The widow may at any time release her right in such lot, but
no conveyance or devise by any other person shall deprive her of such
right. If the bogus attempted transfer by the Friedman faction of the
Congregations interest in the Cemetery to KJ cannot deprive the widow
of her right to be buried in the Cemetery, then such purported transfer
certainly cannot deprive the original purchaser of the right to be buried there.
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The Buss Affirmation at paragraph 54 cites several cases which
purportedly stand for the proposition that RCL 8 is narrowly construed.
However, none of the cases cited make any such statement. Nor do they
support the proposition that a Certificate holders contractual right to
interment in the burial plot he purchased can, without the purchasers
consent, be nullified by the purported unilateral transfer of the Cemetery to a
bogus cemetery corporation.5
Nor have defendants pointed to any rules, regulations, by-laws
and traditions of Satmar which purportedly require on-going membership
as a condition of burial (Buss Aff., para. 57), as distinct from the
requirement of membership when the Certificate for burial is purchased.
Thus, the authorities cited in paragraph 58 of the Buss Affirmation, which
purportedly hold that Restrictions which preclude the burial of any person
who is not, at the time of his death, a member in good standing of the
religious organization, are enforceable, even if the person has previously
purchased a lot or burial right, are not on point, as defendants have not
5 The Buss Affirmation at paragraph 55 similarly misquotes RCL 7 by asserting
that the statute provides that burial in a private religious cemetery is purportedly subject
to the rules, regulations, and traditions of the religion. The statute contains no suchlanguage.
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identified any By-Law or other document evidencing such restrictions.6
POINT VI
THIS COURT HAS THE POWER TO ISSUE A
PRELIMINARY INJUNCTION TO PROTECT
THE RIGHTS OF ALL MEMBERS OF
THE PUTATIVE CLASS TO BE FREE FROM
HARASSMENT FROM DEFENDANTS, PENDING
CERTIFICATION OF THE CLASS. ______
A suggestion has been made that this Court does not have the
power to issue or fashion a preliminary injunction that would protect the
rights of all members of the putative class to be free from harassment by
defendants, as the class has not yet been certified. That is not the law. This
Court has the power to issue such an injunction to protect the rights of all of
the members of the putative class prior to the certification of a class, and
should exercise that authority to protect the class plaintiffs in this matter.
Instructive is Greer v. Monroe County Department of Social
Services, 67 Misc.2d 480, 324 N.Y.S.2d 446 (Sup. Ct., Monroe County
6 McGuire v. Trustees of St. Patricks Cathedral, 54 Hun. 207, 7 N.Y.S. 345 (Sup.
Ct., General Term, 1st Dept. 1889), cited in the Buss Affirmation at paragraph 58, is not
on point. In that case, the Court held that the receipt which had been obtained by the
decedent, which stated that the decedent had purchased a grave for the amount of tendollars, was too vague to permit interment of the decedent in the defendants cemetery
where the decedents wife had already been buried in the plot. Further, in that case, the
plaintiff expressly admitted that the cemetery land was consecrated for the exclusivepurpose of the burial of the remains of persons who die in communion with the Roman
Catholic Church. Here, defendants have pointed to no By-Law or document that requires
that a Certificate holder must be a member of the Congregation at the time of death in
order to be buried in the Cemetery, and, indeed, numerous documents confirm theopposite to be true.
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1971). In that case the plaintiff, who filed an action on behalf of herself and
all other recipients of public assistance in the County as a class action, was
granted a temporary restraining order on August 25, 1971 preventing the
defendant County Department of Social Services from implementing or
enforcing a policy regarding the replacement of lost or stolen welfare checks
which came into force on August 3, 1971. Said the Court, the application
of the plaintiff for a temporary order restraining defendant from
implementing or enforcing thepolicy is granted, applicable to all persons
similarly situated (emphasis added and citation omitted).
Similarly, in Harris v. Wyman, 60 Misc.2d 1076, 304 N.Y.S.2d
423 (Sup. Ct., Nassau County 1969), the plaintiff brought an action for
herself and her minor children and on behalf of all other persons residing in
this county similarly situated seeking a judgment declaring a statute
unconstitutional, and sought a preliminary injunction enforcing the
defendants from enforcing the statute pending a final determination of the
action. The court granted the requested relief and issued an order enjoining
the defendants from enforcing section 139-a against the plaintiff and all
other persons similarly situated residing in this county. See also, Carnegie
v. H&R Block, Inc., 180 Misc.2d 67, 71, 687 N.Y.S.2d 528 (Sup. Ct., New
York County 1999) (the Court had authority to issue a preliminary
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injunction controlling pre-certification contact between defendants, their
counsel and putative class members).
In RAM v. Blum, 533 F. Supp. 933 (S.D.N.Y. 1982), plaintiffs
commenced an action by filing a complaint with the Court, which named
only two defendants. The Court scheduled a hearing on plaintiffs motion
for class certification and a preliminary injunction, and, pending the hearing,
restrained defendants from implementing, with respect to any member of
the plaintiff class, the policy to which plaintiffs objected. Subsequently,
one of the defendants moved for an order joining another party as a
defendant, which was granted. The entry of the additional defendant made it
impossible for the parties to brief and argue plaintiffs class
certification/preliminary injunction motion prior to the expiration of the
TRO which had been previously issued by the Court. Accordingly, the
Court issued an order extending the TRO until it could hear oral argument
on and determine plaintiffs class certification/preliminary injunction
motion. This Court has similar broad powers with respect to the issuance of
a preliminary injunction.
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POINT VII
PLAINTIFFS CLAIMS ARE NOT
BARRED BY RES JUDICATA OR
COLLATERAL ESTOPPEL.
Defense counsels argument in the Joint Memorandum of Law,
that the claims presented in this case are barred under the doctrines of res
judicata and/or collateral estoppel, is totally devoid of merit. Among other
fatal defects, many plaintiffs, who were not parties to the actions which were
determined by the Court of Appeals, never had a full and fair opportunity
to litigate their claims. While the Buss Affirmation asserts at paragraph 5
that five (5) of the named plaintiffs were parties to the Court of Appeals
decision in Congregation Yetev Lev DSatmar, Inc. v. Kahana, 9 N.Y.3d
282 (2007), Mr. Buss nowhere states which five of the named plaintiffs were
purported parties. What is more, the caption of the Court of Appeals
decision lists none of the plaintiffs here as parties.7
In any event, only one plaintiff is needed for a class action
(CPLR 901). As plaintiffs were not all parties to the prior action and never
had a full and fair opportunity to litigate their claims, collateral estoppel and
res judicata are completely inapplicable (Staatsburg Water Co. v. Staatsburg
7 The Buss Affirmation at page 3 ambiguously refers to an Exhibit J which was
purportedly part of the record before the Court of Appeals in the appeal from the
Barasch decision. The Buss Affirmation does not annex a copy of that Exhibit J, and a
perusal of the Appendix submitted to the Court of Appeals in the Barasch case did notreveal the Exhibit J to which Mr. Buss refers.
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Fire Dist., 72 N.Y.2d 147, 531 N.Y.S.2d 876, 527 N.E.2d 754 [1988]; Liss
v. Trans. Auto Systems, Inc., 68 N.Y.2d 15, 505 N.Y.S.2d 831, 496 N.E.2d
851 [1986]; Tamily v. General Contracting Corp., 210 A.D.2d 564, 620
N.Y.S.2d 506 [3d Dept. 1994]; Levine v. Gross, 177 A.D.2d 290, 575
N.Y.S.2d 864 [1st
Dept. 1991]).
In any event, even had certain plaintiffs been named parties, res
judicata is inapplicable for the further reason that the precise issue of
plaintiffs right to enforcement of their contractual right to burial in the
Cemetery, was never put in issue or determined in the prior actions (see e.g.,
Griffin v. Keese, 187 N.Y. 454 [1907]; North v. Murtaugh, 229 A.D.2d
1012, 645 N.Y.S.2d 189 [4th
Dept. 1996] [res judicata was not applicable
because precise issue of whether plaintiffs driveway encroached onto
defendants property was never determined in the prior action]).
Collateral estoppel, which requires an identity of issue in that
the prior action must have determined an issue which is decisive of the
claims in the present action (Staatsburg Water Co. v. Staatsburg Fire Dist.,
supra, 72 N.Y.2d 147) is also inapplicable. The Court of Appeals in the
appeal from the Barasch decision (9 N.Y.3d 282) simply declined to validate
either sides election of trustees. In the appeal from Justice Rosenwassers
decision (9 N.Y.3d 297), the Court affirmed the decision of the Appellate
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Division, Second Department which voided the purported transfer by the
Friedman faction of a one-half interest in the Cemetery property to KJ, upon
the ground that the record showed that the transfer was not in the best
interest of the Congregation. Neither of the Court of Appeals decisions
determined any issue which is decisive of plaintiffs claims herein with
respect to the enforcement of their contractual right to the burial plots they
purchased.
POINT VIII
PLAINTIFFS HAVE SATISFIED ALL
OF THE ELEMENTS FOR THE ISSUANCE
OF A PRELIMINARY INJUNCTION.
In their Joint Memorandum of Law, defendants distort the
likelihood of success on the merits element of the three-fold test for the
issuance of a preliminary injunction, by insinuating that a motion for a
preliminary injunction is the functional equivalent of a motion for summary
judgment. To the contrary, it is well settled that the movant is not required
to show conclusively that he or she would prevail on the merits to obtain the
injunction. (13 Weinstein-Korn-Miller, New York Civil Practice,
6301.05[2] p. 63-33 [2d Ed. LexisNexis]). All that is required at this
juncture is a showing of likelihood of success on the merits (see e.g.,
Terrell v. Terrell, 279 A.D.2d 301, 719 N.Y.S.2d 41 [1st
Dept. 2001];
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DeMartini v. Chatham Green, Inc., 169 A.D.2d 689, 565 N.Y.S.2d 712 [1st
Dept. 1991] [evidence demonstrating a likelihood of success on the merits
need not be conclusive]; McLaughlin, Piven, Vogel, Inc. v. W.J. Nolan &
Co., 114 A.D.2d 165, 498 N.Y.S.2d 146 [2d Dept. 1986]). Indeed, City of
Yonkers v. Dyl & Dyl Development Corp., 67 Misc.2d 704, 325 N.Y.S.2d
206 (S. Ct., Westchester County 1971), affd. 38 A.D.2d 691, 328 N.Y.S.2d
1023 (2d Dept. 1971), cited in defendants Joint Memorandum of Law,
states that [I]t is not required of plaintiff to demonstrate as certainty that he
will prevail in the main action, a reasonable probability of ultimate success
is sufficient]).
With respect to defendants argument regarding the required
evidentiary showing on a motion for a preliminary injunction, it is well
settled that admissible factual proof in affidavit form detailing the requisites
of movants underlying prima facie claim is sufficient, with actual
testimonial proof of the case left to a trial on the merits (Weinstein-Korn-
Miller, supra, at 63-35; Terrell v. Terrell, supra, 279 A.D.2d 301;
McLaughlin, Piven, Vogel, Inc. v. W.J. Nolan & Co., supra, 114 A.D.2d
165).
Here, plaintiffs affirmations detail their purchase of the
Certificates establishing the right to be buried in the Cemetery and the right
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to erect a headstone on that grave, as well as their regular payment of dues
charged by the Congregation including amounts designated as payable for
the Burial Society. Plaintiffs describe in their affirmations the mailings sent
by certain defendants threatening that plaintiffs contractual rights to burial
would not be honored, and have annexed to their affirmations copies of that
harassing and abusive correspondence. What is more, plaintiffs have shown
that certain defendants have confronted members of the Congregation who
possess identical Certificates and whose relatives have died, and extorted
money from them as a precondition to allowing the deceased to be buried in
the Cemetery. The defendants have further prevented headstones from being
erected and have even desecrated a grave by causing the removal of an
erected headstone. Thus, at a minimum, plaintiffs have established a prima
facie case of breach of contract and interference with contractual relations.
Defendants Joint Memorandum of Law argues that the
preliminary injunction should be denied because defendants dispute some of
the underlying facts. Defendants ignore CPLR 6312(c ), which states that
Provided that the elements required for the issuance
of a preliminary injunction are demonstrated in theplaintiffs papers, the presentation by the defendant
of evidence sufficient to raise an issue of fact as to
any of such elements shall not in itself be grounds
for denial of the motion. In such event the court
shall make a determination by hearing or
otherwise whether each of the elements required
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for issuance of a preliminary injunction exists.
CPLR 6312(c ) was enacted in 1996 to make clear that the
existence of factual issues is not, without more, sufficient reason to deny a
preliminary injunction if the requisite elements for granting a preliminary
injunction could be established, and to repudiate case law which had held
that a preliminary injunction was not available in cases in which there were
sharply disputed factual issues (Weinstein-Korn-Miller, supra, 6312.08 at
p. 63-182). The cases cited at page 24 of the Joint Memorandum of Law,
which purportedly hold that a movant should be denied injunctive relief
where a factual conflict exists on the issues, were all decided prior to the
enactment of CPLR 6312(c) in 1996 and those cases have been repudiated
by the statute.
Plaintiffs have clearly shown irreparable harm if the
preliminary injunction is not granted. Irreparable injury has been defined
as an injury for which monetary compensation is not adequate. Melvin v.
Union College, 195 A.D.2d 447, 600 N.Y.S.2d 141 (2d Dept. 1992).
Defendants nowhere attempt to distinguish Pantel v.
Workmens Circle Arbetter Ring Branch, 289 A.D.2d 917, 735 N.Y.S.2d
228 (3d Dept. 2001), even though it was prominently highlighted in
plaintiffs moving Memorandum of Law at page 10. In Pantel, it was held
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that the removal of footstones from a family burial plot constituted
irreparable harm, based on [p]laintiffs allegation of mental and emotional
distress from the perceived desecration of their family graves. The
irreparable harm absent an injunction in the present case is even more
apparent than in Pantel. The very real likelihood that the Certificates
authorizing plaintiffs to be buried in the Cemetery will not be honored, and
that plaintiffs will not be permitted to bury their family members in the
Cemetery without paying an arbitrary amount in extortion money, is already
causing severe emotional distress as attested to in plaintiffs affirmations. If
the threat is permitted to become a reality, the emotional distress will be
immeasurable. The fact that in one instance a tombstone has already been
removed by certain defendants underscores the need for an injunction.
Plaintiffs have also clearly shown that the balance of the
equities are in plaintiffs favor. The record shows that up until recently, the
Certificates for burial and Permits for headstones, whether issued to Satmar
Hasidim by the Congregation or by the KJ Congregation, have all been
honored by the defendants, premised on payment of dues and fees to the
congregation of which the individual is/was a congregant. Members of all of
the various entities have been buried in the Cemetery without incident.
These members have also been permitted to erect tombstones on the graves
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of their family members. Preserving this status quo while the litigation is
pending will harm no one. Allowing the defendants to trample on the
plaintiffs contractual and statutory rights will result in a wrong which can
never be righted.
Defendants have nowhere shown why they are entitled to rely
upon case law dealing with a public entity which is proceeding with a
project undertaken for the general welfare of the public (see Joint Mem. Of
Law, pp. 25-26). In contrast, in New York, Preliminary injunctions and
temporary restraining orders have been granted in cases involving contract
rights of all descriptions and where a party breaches or threatens to breach
a duty under an agreement, an injunction may be available, provided the
usual prerequisites have been satisfied (see Weinstein-Korn-Miller, supra,
6301.11[1] p. 63-107).
Defendants Joint Memorandum of Law asserts that plaintiffs
application is defective because they are purportedly required to submit an
undertaking as a prerequisite for obtaining preliminary relief. However,
CPLR 6312(b) simply provides that the Court, prior to issuing the
injunction, should fix the amount of any undertaking that is to be posted by
the plaintiff. The amount of the undertaking is in the courts discretion, but
the amount of the undertaking must be rationally related to the defendants
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potential damages should the courts grant of the preliminary injunction later
prove to have been unwarranted. Lelekakis v. Kamamis, 303 A.D.2d 380,
755 N.Y.S.2d 665 (2d Dept. 2003); Clover St. Assocs. v. Nilsson, 244
A.D.2d 312, 665 N.Y.S.2d 537 (2d Dept. 1997). The amount of the
undertaking cannot be based upon speculation. Lelekakis, supra; 7th
Sense,
Inc. v. Liu, 220 A.D.2d 215, 631 N.Y.S.2d 835 (1st
Dept. 1995).
Accordingly, the Court should carefully consider a defendants potential
damages in order to fix the amount of the undertaking (Weinstein-Korn-
Miller, supra, 6312.03[4], p. 63-164).
Here, defendants have utterly failed to demonstrate to this
Court any potential damages they might sustain if a preliminary injunction is
issued in this case. This Court therefore has no rational basis upon which
to fix the amount of any undertaking. As such, defendants argument
regarding plaintiffs alleged failure to post an undertaking is devoid of
foundation in either fact or law. Should defendants show a rational and non-
speculative basis for determining any alleged damages, and allow us the
opportunity to respond, an appropriate undertaking can at that time be
posted.
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CONCLUSION
For all the reasons set forth herein and in plaintiffs moving and
reply papers, this Court should issue a preliminary injunction preserving the
status quo, and deny defendants cross-motions to dismiss.
Dated: New York, New York
February 17, 2009
HERZFELD & RUBIN, P.C.
By: _______________________
David B. Hamm
Attorneys for Plaintiffs
40 Wall Street
New York, New York 10005
(212) 471-8500