Professional Documents
Culture Documents
New Zali BaisHaChaim Papers 2/17/09
New Zali BaisHaChaim Papers 2/17/09
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-
Defendants.
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complaint.
of which they are not members at all. This is pure extortion, and should be
enjoined.
2
POINT I
relying principally on the fact that this case involves claims by and between
Yetev Lev D’Satmar, Inc. v. Kahana, 9 N.Y.3d 282, 849 N.Y.S.2d 463, 879
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-
held that the dispute in that case was justiciable. The Court of Appeals there
Kiryas Joel, Inc. (“KJ”), upon the specific ground that the record showed
3
that the transfer was not in the best interest of the Congregation, hence
Talmudic academy was justiciable. The Court noted that the issue in
under the By-Laws upon any religious criteria, and the issues raised with
principles of law, such as those set forth in the Religious Corporations Law
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
4
those actions related to the relevant provisions of corporate governance and
statute.
Here, too, this Court need not delve into any religious issue or
death, but only that he was a member of the Congregation at the time the
Laws, or in any other document of Record for that matter, which requires
annexed exhibits, the sale of rights to burial of those who were not members
5
Thus, as in Schwimmer, this Court need not touch upon any
rule of law that those disputes involving religious organizations which can
340, ___ N.Y.S.2d ___ [2008]; Park Slope Jewish Center v. Congregation
B’Nai 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
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]).
6
Consistent with this principle, civil courts are precluded from interfering or
determining religious disputes and thus courts are prohibited from “resolving
Jones v. Wolf, 443 U.S. 595, 99 S.Ct. 3020, 61 L.Ed.2d 775 (1979); First
Wolf, supra, 443 U.S. at 602. Thus, the United States Supreme Court has
held that civil courts may resolve property disputes, even where such
law” analysis crafted by the United States Supreme Court for use in
B’nai Jacob, supra, 90 N.Y.2d at 521 (“the courts are free to decide [church
7
property disputes] if they can do so without resolving underlying
did not violate the First Amendment, because dispute could be decided on
cf., Avitzur v. Avitzur, supra, 58 N.Y.2d 108 (the “neutral principles of law”
look only to those documents that deal specifically with church property,
taking care to examine these documents in secular terms and not relying on
result. Park Slope Jewish Center v. B’nai Jacob, supra, 90 N.Y.2d at 522;
8
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
decided the case on the basis of a singular clause which permitted invocation
documents setting out the parties’ rights with respect to the cemetery plots
contract.
9
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
earmarked for the benefit of the Chevre Kadishe (Burial Society), and has
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 preliminary
injunction (see CPLR 6312[c]).
10
annexed as Exhibit 10 to the moving Affirmation of David Hamm). The By-
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
(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,
disputes such as the one presented here, even when such disputes arise
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
11
law” (citations omitted). The Appellate Division held that the issue of title
supra, 271 A.D.2d 653, where the Appellate Division, Second Department
parish. The Court held that the fact that a “schism had occurred” did not
Church, 250 A.D.2d 282, 684 N.Y.S.2d 76 (3d Dept. 1999), the Appellate
among other things, the deeds to the property, the terms of the defendant
church’s local charter and the statutes governing the holding of church
property. The Court noted that “although the controversy at hand was borne
12
In First Presbyterian Church of Schenectady, supra, the Court
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
v. Avitzur, supra, 58 N.Y.2d 108. In that case, the plaintiff wife and
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,
13
The Appellate Division, Third Department held that
defendant’s motion to dismiss should have been granted. In its view, the
the Court, since the State, having granted a civil divorce to the parties, had
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
(58 N.Y.2d at 115). Here, similarly, the relief which plaintiffs seek, i.e., to
contractual rights, does not require this Court to pass upon any doctrinal
issue.
14
In the recent case of Episcopal Diocese of Rochester v. Harnish,
supra, 11 N.Y.3d 340, the Court of Appeals looked to the deeds, the
parish had held its property in trust for the benefit of the plaintiff diocese
and nonparty national church, and that upon the parish’s separation from the
diocese its property reverted to the diocese or the national church. The
Court further held that with respect to the defendant’s Article 78 petition, the
religious groups.
15
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
the policy of the Religious Corporations Law. “The primary purpose of the
religious groups, and to preserve them from exploitation by those who might
divert them from the true beneficiaries of the corporate trust” (Morris v.
cloak of “religious dispute” and then use that as a shield against the Court’s
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
Merkos L’Inyonei Chinuch v. Otsar Sifrei Lubavitch, Inc., 312 F.3d 94, 99-
16
As the Appellate Division, Second Department has noted:
defendants to establish that the issues before the Court are non-justiciable
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
the rights and interests of the respective parties in a temple. Their motion
for, inter alia, a preliminary injunction enjoining the defendants from selling,
17
mortgaging, or otherwise encumbering plaintiffs’ property including 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
of corporate government and property. The Court held that 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
by the parties….”
merits was based on its erroneous determination that the trespass and
the plaintiffs would suffer irreparable injury should the defendants sell,
18
The same result should apply here. The matter of enforcing
plaintiffs’ contractual rights need not thrust this Court into the area of
named and class plaintiffs that their access to the Cemetery will be barred by
51779(U) (Sup. Ct., Kings County, August 22, 2008). That case actually
involved three actions. Defendants inexcusably fail to advise this Court that
discontinued as of right by the plaintiffs, and the class was never certified.
Judge Ambosio in his decision noted that the Frankel action was a
19
manipulative attempt by the Friedman adherents to obtain judicial
recognition that the Friedman faction, rather than the Kahan leadership, was
Congregation Yetev Lev D’Satmar, Inc., Sol Perlstein et al, (“the Scher
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]
Yetev Lev D’Satmar, 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.
Friedman faction from holding themselves out as the duly elected board of
grounds that the Court of Appeals had previously declined to declare the
20
validity of either side’s election because such determination would require
any Satmar person from burial in the Cemetery; nothing in the complaint or
Court of Appeals’ decisions and erred in failing to enforce the “status quo”
As we will show, infra at Point II, that term had legally cognizable meaning.
21
claims against the Congregation, which had purportedly barred them from
creating their own prayer group in the Cemetery. In his decision which
granted the Congregation’s 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
that the Congregation’s 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
22
provides support for plaintiffs’ arguments here that this Court should
2
Weinstock v. Congregation Yetev Lev D’Satmar, Inc. (Orange County Index No.
5798/72), cited in the Buss and Mahon affirmations, is inapposite. This Court is not
being 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, the
Buss affirmation’s 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 church
discipline (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 B’Nai Jacob, supra, 90 N.Y.2d
517; 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 determine
whether 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 church’s
exercise of church discipline in defrocking a rebellious bishop (Serbian Orthodox
Diocese v. Milivojevich, 426 U.S. 696, 96 S.Ct. 2372, 49 L.Ed.2d 151 [1976]).
23
POINT II
were issued by the Congregation at a time when the ownership and authority
supra, in 2007 the Court of Appeals confirmed the Appellate Division’s set
Congregation Yetev Lev D’Satmar of Kiryas Joel, Inc. v. Cong. Yetev Lev
D’Satmar, 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
which reached the Court of Appeals. See, Matter of Cong. Yetev Lev
24
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
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
Merchants Central Alarm Co., Inc., 51 N.Y.2d 793, 794, 433 N.Y.S.2d 91
[1980] [same]).
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
to which the RCL applies, except for certain exceptions not relevant here.
25
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
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
board, of which Messrs. Kahan and Perlstein (the then President and Vice-
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
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 D’Satmar v. Kahana, 5 Misc.3d 1023A,
799 N.Y.S.2d 159 [S.Ct. Kings County 2004]). However, Friedman was expelled by the
Grand Rabbi prior to the 2001 elections, leaving only Kahan as President.
26
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
Noble, 2 Misc.3d 1010A, 784 N.Y.S.2d 918 (Sup. Ct., Erie County 2004)
properly called by the trustees, and certain members of the church were
excluded from participating under threat of arrest, the July meeting was a
with the constitution and by-laws of the church and the Religious
781 N.Y.S.2d 628 (Sup. Ct., New York County 2003) (with respect to
1999 directors was invalid and the 1997 board remained in office pursuant to
27
What is more, as Exhibit 39, annexed to the Reply Affirmation
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.
comment at 5 Misc.3d 1023A of continuing the status quo has real legal
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
4
This is not to suggest that Certificates issued under the auspices of other
Directors, prior to 2001 would not be similarly valid.
28
POINT III
KJ Congregation, have all been honored by the Burial Society and the
is/was a congregant. Congregants of the all of the various entities have been
547, 549, 745 N.Y.S.2d 572 (2d Dept. 2002), “an equitable estoppel may be
doctrine applies squarely to the present case. For decades, defendants acted
29
in recognition of the rights of holders of Certificates issued by the
Certificate holders and their relatives were buried; and headstones were
and reasonable expectation that they held the same rights as those whose
burial process.
A.D.2d 380, 394-95, 514 N.Y.S.2d 922 (1st Dept. 1987), rev’d 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
the position that as a matter of law only full time doctors were entitled to
admitted to membership in the past; that they had entered City service
30
primarily to be eligible for retirement benefits; and that defendants had made
present case:
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
their age. Before the commencement of the next class at the Academy, the
law was changed, but defendant allegedly continued to advise plaintiffs that
31
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
N.Y.S.2d 305 (3d Dept. 1970) also supports the application of the estoppel
to what their retirement benefits would be. After the employers were
Rothschild v. Title Guarantee & Trust Co., 204 N.Y. 458 (1912), stated:
32
impeaching it although it was originally void or
voidable” (emphasis added).
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
33
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])”.
the Burial Society actually received a portion of the money which plaintiffs
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
(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
34
1981]; Belmont Homes, Inc. v. Kreutzer, 6 A.D.2d 697, 174 N.Y.S.2d 310
POINT IV
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
accordance with the customs of our holy Community since the cemetery was
35
dedicated almost thirty years ago.” That mailing purported to direct
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
“To our friend and member of the Community.” It acknowledges that “our
that, come what may, all members would be considered full members until
21 Kislev [December 18, 2008]”. The letter stated, “please send your
remain active.”
36
On December 22, 2008, yet another letter was sent to plaintiffs
that a “complaint” had been submitted against them that they had violated
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
that “If you continue your legal case in secular court you will be excluded
Street within two weeks, express regret to the “Committee” and “promise
37
acknowledged in writing that the plaintiffs are members of the Congregation
they continue to assert their constitutional right to seek redress in the civil
Kahana, 5 Misc.3d 1023A, 799 N.Y.S.2d 159 (Sup. Ct., Kings County
Board of Directors. His decision was affirmed by the Appellate Division (31
cannot demonstrate that they have the legal authority which they purport to
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
38
recognized as sheer harassment of the most base and crude kind. It
the only ground stated in the By-Laws and the “final warning” as ground for
issue which can be resolved by the Courts (see e.g., Congregation Yetev Lev
supra, 9 N.Y.3d 297 [holding that purported transfer by the Friedman faction
void, as the record showed that the transfer was not in the best interest of the
Congregation]).
POINT V
Kiryas Joel, Inc. v. Congregation Yetev Lev D’Satmar, Inc., supra, 9 N.Y.3d
39
297, the Court of Appeals held that the purported transfer by the Friedman
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,
RCL section 12(7), which does not require prior court approval before lots
were it otherwise applicable to the case, in no way does away with the
the New York Law Journal (David G. Samuels, Outside Counsel, “Court
pp. 4, 8). In that article, the author noted that New York religious
40
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
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 court’s
satisfaction that “the consideration and the terms of the [transaction] are fair
and reasonable to the corporation, and that the purposes of the corporation,
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
the court must then analyze whether the contract will promote the purposes
loss through unwise bargains and to assure that the disposition of the
41
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
prong of the test – whether the contract serves the purposes of 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
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
made with religious corporations are subject to the ultimate `veto’ power of
Kiryas Joel, Inc. v. Congregation Yetev Lev D’Satmar, Inc., supra, 9 N.Y.3d
42
297, has already determined that the attempted transfer by the Friedman
KJ, was not in the best interests of the Congregation. The Friedman
interest in the Cemetery was not in the best interests of the Congregation.
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
certainly cannot deprive the original purchaser of the right to be buried there.
43
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
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
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 such
language.
44
identified any By-Law or other document evidencing such “restrictions”. 6
POINT VI
A suggestion has been made that this Court does not have the
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.
Services, 67 Misc.2d 480, 324 N.Y.S.2d 446 (Sup. Ct., Monroe County
6
McGuire v. Trustees of St. Patrick’s 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 ten
dollars, was too vague to permit interment of the decedent in the defendant’s cemetery
where the decedent’s wife had already been buried in the plot. Further, in that case, the
plaintiff expressly admitted that the cemetery land was consecrated for the exclusive
purpose 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 the
opposite to be true.
45
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
which came into force on August 3, 1971. Said the Court, “the application
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
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
46
injunction controlling pre-certification contact between defendants, their
for class certification and a preliminary injunction, and, pending the hearing,
defendant, which was granted. The entry of the additional defendant made it
TRO which had been previously issued by the Court. Accordingly, the
Court issued an order extending the TRO until it could hear oral argument
motion. This Court has similar broad powers with respect to the issuance of
a preliminary injunction.
47
POINT VII
that the claims presented in this case are barred under the doctrines of res
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”
that “five (5) of the named plaintiffs were parties” to the Court of Appeals’
282 (2007), Mr. Buss nowhere states which five of the named plaintiffs were
(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
48
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
In any event, even had certain plaintiffs been named parties, res
judicata is inapplicable for the further reason that the precise issue of
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
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.,
appeal from the Barasch decision (9 N.Y.3d 282) simply declined to validate
decision (9 N.Y.3d 297), the Court affirmed the decision of the Appellate
49
Division, Second Department which voided the purported transfer by the
the ground that the record showed that the transfer was not in the best
respect to the enforcement of their contractual right to the burial plots they
purchased.
POINT VIII
“likelihood of success on the merits” element of the three-fold test for the
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
Terrell v. Terrell, 279 A.D.2d 301, 719 N.Y.S.2d 41 [1st Dept. 2001];
50
DeMartini v. Chatham Green, Inc., 169 A.D.2d 689, 565 N.Y.S.2d 712 [1st
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
is sufficient]).
settled that admissible factual proof in affidavit form detailing the requisites
McLaughlin, Piven, Vogel, Inc. v. W.J. Nolan & Co., supra, 114 A.D.2d
165).
Certificates establishing the right to be buried in the Cemetery and the right
51
to erect a headstone on that grave, as well as their regular payment of dues
the Burial Society. Plaintiffs describe in their affirmations the mailings sent
would not be honored, and have annexed to their affirmations copies of that
possess identical Certificates and whose relatives have died, and extorted
the Cemetery. The defendants have further prevented headstones from being
the underlying facts. Defendants ignore CPLR 6312(c ), which states that
52
for issuance of a preliminary injunction exists.”
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
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.
Union College, 195 A.D.2d 447, 600 N.Y.S.2d 141 (2d Dept. 1992).
Workmen’s Circle Arbetter Ring Branch, 289 A.D.2d 917, 735 N.Y.S.2d
53
that the removal of footstones from a family burial plot constituted
apparent than in Pantel. The very real likelihood that the Certificates
that plaintiffs will not be permitted to bury their family members in the
immeasurable. The fact that in one instance a tombstone has already been
equities are in plaintiffs’ favor. The record shows that up until recently, the
Certificates for burial and Permits for headstones, whether issued to Satmar
the various entities have been buried in the Cemetery without incident.
These members have also been permitted to erect tombstones on the graves
54
of their family members. Preserving this status quo while the litigation is
plaintiffs’ contractual and statutory rights will result in a wrong which can
never be righted.
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
¶6301.11[1] p. 63-107).
CPLR 6312(b) simply provides that the Court, prior to issuing the
the plaintiff. The amount of the undertaking is in the court’s discretion, but
55
potential damages should the court’s grant of the preliminary injunction later
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
Inc. v. Liu, 220 A.D.2d 215, 631 N.Y.S.2d 835 (1st Dept. 1995).
issued in this case. This Court therefore has no “rational basis” upon which
foundation in either fact or law. Should defendants show a rational and non-
speculative basis for determining any alleged damages, and allow us the
posted.
56
CONCLUSION
For all the reasons set forth herein and in plaintiffs’ moving and
reply papers, this Court should issue a preliminary injunction preserving the
By: _______________________
David B. Hamm
Attorneys for Plaintiffs
40 Wall Street
New York, New York 10005
(212) 471-8500
57