דא איז די גאנצע הירינג, ענדשויטס ענק
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS - CIVIL TERM - PART 26
INDEX No. 41256/01
IN THE MATTER OF THE PETITION TO SET ASIDE THE ELECTION OF THE BOARD OF TRUSTEES
AND OFFICERS OF CONGREGATION YETEV LEV HELD FROM THE 13TH TO THE 24TH DAY
OF MAY, 2001, AND "CERTIFIED" ON MAY 24, 2001,
BERL FRIEDMAN, SANDOR OBERLANDER, ISAAC ROSENBERG
DAVID ECKSTEIN, DAVID MARKOWITZ, ELIAS A. HOROWITZ, BEN WERCZBERGER
Petitioners,
-against-
JACOB(JENO)(YAKOV) KAHAN, SOL(SHAUL), PERLSTEIN, SOLOMON(SHLOME ZALMEN) SANDER, SOL(CHAIME SHLOME) WERTHEIMER, ET AL.
Respondents.
360 Adams St.
Brooklyn, NY
July 15th, 2004
MOTION
B E F O R E:
HONORABLE MELVIN BARASCH,
Justice
A P P E A R A N C E S:
GARRY & GARRY, P.C.
Attorney for the Petitioner
404 Park Avenue South
New York, New York 10016
BY: THOMAS J. GARRY, ESQ.
SMITH, BUSS & JACOBS, LLP
Attorneys for the Respondent
1212 Avenue of the Americas
New York, New York 10036
BY: JEFFREY D. BUSS, ESQ.
HERRICK, FEINSTEIN, LLP
Attorneys for the respondents
104 Carnegie Center
Princeton, NJ 08540-6232
BY: RACHEL C. ENGLESTEIN, ESQ.
HERRICK, FEINSTEIN, LLP
Attorneys for the respondents
PARK AVENUE
NEW YORK, NEW YORK 10016
BY: SCOTT E. MOLLEN, ESQ.
JENNIE FANTASIA,
OFFICIAL COURT REPORTER
THE CLERK: 41256 of 2001, D'Satmar against Satmar et al. This is one and two, 41256 of 2001, the matter of the petition Satmar et al versus Jacob Kahan. Et al.
MR. BUSS: Good morning. Jeffrey Buss, Smith Buss and Jacobs for the petitioners.
MR. GARRY: Thomas J. Garry for the petitioners.
MR. MOLLEN: Scott Mollen for the respondents, most of them.
MS. ENGELSTEIN: Rachel Engelstein for the respondents.
THE COURT: Morning. There are two motions on behalf of Mr. Buss. How would you prefer to handle this?
Do you want to argue one motion and have opposition or you want to combine them, whichever you're more comfortable with.
MR. BUSS: I'll argue them together.
Thank you, Your Honor.
Motions related this morning, this afternoon, whatever time it is, I would like to focus on the merits of this dispute. And what we are seeking here today is a special proceeding under 618 of the Non For Profit Corporation Law to void an unauthorized election that was called by the respondents and certified by them on May 24th, 2001.
In the alternative, what we are seeking in the second motion is a preliminary injunction barring the respondents from interfering with the rights of the petitioners to discharge the offices that they've been elected to on May 12th, 2001.
I say in the alternative because in the event that a prompt decision is not made or will be made on our application to void the May 24th election, we believe it to be legally correct and appropriate for the individuals who were elected, the last unchallenged election being May 12th, to have the ability to discharge their offices.
THE COURT: That's May 12th of what year?
MR. BUSS: 2001.
THE COURT: Fine.
MR. BUSS: Your Honor, before delving into all the different facts and legal arguments, I know the Court has read the papers, we've had the pleasure of being here before and Your Honor has clearly demonstrated that you've read all the voluminous papers put forth, I would like to highlight a little bit of some of the issues that I think are important and go through them.
THE COURT: Fine.
MR. BUSS: First, petitioner, Your Honor, has said the same thing to the Court at least ten times. We apologize for that. I think it's important to note that it's not been repeated ten times, but the fact that it was the same thing, the same facts, the same law.
The reason I make that distinction is the respondents constantly contradict themselves in their positions.
For example, my learned adversary, Mr. Mollen, stood up in front of Your Honor on February 13, 2004 in response to our argument that the declaratory judgment action that they had filed should be dismissed for failure to name necessary parties and said:
"No, we don't have to name the necessary parties. We don't have to name the individuals that we're seeking to remove from office."
The Court inquired:
"Why not Mr. Mollen?"
He said:
"We're not challenging them. We're not."
THE COURT: It was a dramatic moment.
MR. BUSS: And I would like to relive it as much as I can.
"THE COURT: Not naming all the individuals, is that relevant in this case?"
"MR. MOLLEN: No."
"THE COURT: Why not Mr. Mollen?"
"Because we're not challenging. We're not challenging what it says. You have to name them if you're challenging their election. "
"THE COURT: Correct. All right."
"MR. MOLLEN: We're not challenging their election. We're asking for a declaration that looks at and places scrutiny on our election."
Your Honor at the time we took the position and we continue to take the position that that was a fatal, fatal admission to a number of other arguments that are put forth by the Court and that lead us to promptly file the present request for preliminary injunction.
In opposition to that application, both Mr. Mollen and his client expend 60 or 70 percent of their papers challenging the May 12th election under the guise that we're not really challenging it in a 618 action, we're challenging it through the back door.
It's a blatant contradiction, Your Honor. They can't take both positions. The fact is it's conceded by respondents they didn't name the necessary parties. They didn't file a timely challenge.
As the Court of Appeals has stated and recited in our previous argument to the Court, a declaratory judgment action should be viewed as what it is most like. In this case it is most like a challenge under 618 and therefore they were barred by the four month statute of limitations from making that proceeding.
Also, in the most recent set of papers from Mr. Mollen, May 6th, paragraph 26, he claims that the petitioners engaged in a violent take-over of the congregation.
However, his own client the day before, Mr. Schoenfeld, Jacob Schoenfeld, in an affidavit dated or affirmation signed May 5th, paragraphs 12 through 14 says, well, the petitioners didn't do anything. We thought they gave up. They were totally peaceful. Made no efforts to challenge.
Which is it? Was it nothing or was it violence? They're easy to tell the difference. Just another example of direct contradiction in the paperwork.
The same thing, this is a much more important issue in terms of law for Your Honor to take a look at, Solomen Wertheimer, who is one of the named respondents, we named everyone who we think should be removed from office, Mr. Wertheimer submitted a substantial amount of opposing papers to, at that time, Justice Jones. The papers were dated November 2001.
In those papers Mr. Wertheimer, paragraph 26, puts forth the claim that the reason that their election is valid is because the board and the Rabbi removed Mr. Friedman, the duly elected president, from office and from membership in the congregation at a meeting that they held on January 18th of 2001.
Never happened. And I will get into why it's not a legally factually bonafided argument for them. I'm focusing the Court's attention on the date, January 18th.
Well, when we put in our reply papers to Justice Jones in January of 2002, one of the main arguments that was made in the affirmation of Mr. Werczberger and reply memo of law is this action on the 18th was, even it had any validity, was too late because on January 14th a full meeting of the board and officers convened and Berl Friedman was present. They called for an election. They took and passed a corporate resolution that said Mr. Kahan and ten other board members who were the dissenters couldn't bind the corporation and had no right to take any action and they specifically rejected at that meeting calls of three unelected rabbis for Mr. Friedman's removal from membership and from office.
Those valid corporate resolutions were passed by majority of the board and president on January 14th, 2001.
Four days later, there was a trumped up board meeting, Mr. Kahan and ten other board members met and said we're going to ignore what the majority of the corporation board did. We're going to ignore what they've passed as binding corporate resolutions and we are going to arbitrarily remove Mr. Friedman from office and from membership without stating charges, without a declaration of his hearing, without calling a special meeting as required under the religious corporations law, without posting two notices of purpose of the meeting, at least, weekly before it was called.
But focusing on the date, he said January 18th. We say you can't do it January 18th, besides legal reasons, you're just too late. They've had two years to think about it.
Now what do we see, an affidavit from Mr. Schoenfeld dated May 5th, 2004 for the first time in paragraphs 31 through 34 of his papers, Mr. Schoenfeld says, no, no, no, it wasn't January 18th, excuse me, it was December, 2,000. It's very convenient they change the date.
Now suddenly they came to have taken this action still with the same problems without calling the special meeting, without having a quorum, without posting the charges, without giving him an opportunity to confront adverse witnesses, all the items required by the religious corporations law and the case law cited in our memo submitted in January of 2002.
Now they've just changed the date. It can't be both. It can't be after January 18th and before December 2000.
Your Honor gave Mr. Mollen the opportunity to submit a sur reply and cautioned I was not allowed a sur-sur reply, but I could respond to what it is.
THE COURT: Please do.
MR. BUSS: Suddenly we again hear from Mr. Wertheimer, he only told half-truths. Just believe half of what I said because I erroneously said it was removed on the 18th. I really meant to say whatever Mr. Schoenfeld said.
It's just not true. It's just not true. It's a blatant contradiction and we could request that the Court strike the affidavit. At least in weighing the evidence in Your Honor's mind, you look at the fact that the contradictions in this case are contradictions of the respondent, not contradictions of the petitioner.
Not only does it go to credibility, but we are effectively asking for a decision on the law because we believe the law as set forth in our memo requires that the May 24th election be held void.
And perhaps one of the more aptly named cases I shall identify, by the 2d. Department, a case called Bum Steer, Bum Steer.
THE COURT: Bum Steer.
MR. BUSS: Yes, an Appellate Division 2d. Department case, you can't defeat a motion for summary judgment by contradicting yourself. In effect, that's what Mr. Mollen's clients are trying to do. You can't see on the record my gesture with my fingers going in different directions, they are saying one thing and then they are saying another thing. We said the same thing ten times, they said ten different things ten different times.
One of the issues is whether or not their election was valid or not relates to who was allowed to vote in the second election. The respondents excluded entirely any member of the congregation who resided in Kiryat Joel, Monroe, and, I believe, Lakewood.
I remember they let some guy from England vote, he must've voted the right way, but they had a very arbitrary method of the way they allowed people to vote.
Now, in Mr. Wertheimer's affidavit submitted in November of 2001 he says well, that's just the way it's always been. We don't recognize KJ as part of the congregation.
Of course, what he overlooks is documents that are attached to --
THE COURT: KJ?
MR. BUSS: KJ, Kiryat Joel, whichever, meaning the village of Joel.
THE COURT: Curious George comes to my mind.
MR. BUSS: In 1999, Mr. Wertheimer, once the board signed a resolution, and a copy of it is attached as an exhibit M to our reply exhibit book in January of 2002, that resolution says that as of April 25th, 1999, that all congregations including Kiryat Joel, Williamsburg, Monsey and Borough Park are really one congregation. And this is the way it has always been.
That the congregation, the expression congregation means the community of the Satmar community. And Rabbi Teitelbaum, Joel, first established this. This was very clear in his teachings and his instructions that this should be one community. It shouldn't be split into different parts.
There are separate boards for Borough Park, for Kiryat Joel, for, I believe, Lakewood, but they're all under the governing of one body and that body is elected along with the other boards at one massive election.
If you're a member of Satmar and you reside in Williamsburg, you get to vote for individuals that are running for the board of Williamsburg, individuals that are running for a board of a subsidiary in Borough Park and individuals running for the subsidiary in Kiryat Joel.
You are resident of Kiryat Joel, you get to vote for people on the Williamsburg slate and the Borough Park slate. It's always been that way. Mr. Wertheimer himself signed this resolution conceding this April 25th, 1999. In our exhibit book we have exhibit O, January 29th, 1985 board meeting confirming that this is one congregation.
We have exhibit N, 1992 general assembly of all members of the organization providing that it's one congregation without regard to geographical limitation or restrictions.
If Your Honor were to look at the bylaws which we believe are the very controlling documents in this case, the bylaws do not say that a person's right to vote their franchise is limited by any geographical restriction. There is absolutely no such limitation in the bylaws.
And yet in the second election, I'll call it that, that was called by the respondents as documented in exhibit T to that reply book, it says we're not allowing anybody to vote from KJ, Kiryat Joel. Exact quote from their notice. They violated that.
The absolute absurdity of their point is best illustrated by the individual by the name of Mr. Lefkowitz. Mr. Lefkowitz had been the president of Satmar for approximately 20 years. 20 years without dispute, without controversy. No challenges to his officer or his position. All parties voted for him by majority.
Well, what else did Mr. Lefkowitz do? He happened to be the mayor of Kiryat Joel, a legal village. The residents of village -- he ran for office in the village. He was elected as president of the congregation, the Williamsburg board, whatever you want to call it, and the mayor of Kiryat Joel.
How could Mr. Wertheimer possibly claim we are just excluding KJ because that's the way we've always done it. It's not true. It's contradicted by the facts and his own signature on exhibit M. Just another example of contradictions.
Similarly, the bylaws, back in the early history of this case, Your Honor, there was a big brouhaha about whether or not another case, 26 Adar had anything to do with this case and whether they should be consolidated and whatever.
One of the reasons that we were pushing that argument is because in the record of 26 Adar there are a number of findings or documents or, not really findings, admissions by the congregation that relate to the dispute in this case.
And if you recall, when that case was started there wasn't Mr. Mollen versus Mr. Buss or Mr. Kahan versus Mr. Friedman. They were one. They were united. And after years of squabbling back and forth with their adversaries with the Court, a set of bylaws was admitted into the record in that court and all parties said these are the bylaws, and these are accurate translations of those bylaws.
Section or article eight of those bylaws says that the Grand Rabbi is the supreme spiritual authority of the congregation. Mr. Mollen has submitted a translation of the bylaws which conveniently leaves off the word spiritual. It's a misleading.
THE COURT: Is there an issue whether the chief Rabbi has final say spiritually or civilly?
MR. GARRY: Absolutely.
MR. BUSS: It's one of the key issues that the other side is pushing.
THE COURT: Yes.
MR. BUSS: Because they claim that the rabbi has supreme authority of both civil and spiritual matters. It's not true. The bylaws, which is where I would start --
Before I lose the point, I want to repeat this issue, they submitted a translation that deletes the word spiritual. I think that was deliberate. It was intentional. We pointed it out in our reply papers. And they continue to submit it. They continue to argue as if that word was not present. We submitted an affidavit from a renowned religious scholar by the name of Zalin Alpert.
First we submitted in 2002 and I believe I attached it to these exhibit papers. Mr. Alpert traces the history and background and looks at the language in the bylaws and discusses the translation and comes to the position which is what we put forth that the Grand Rabbi's position is spiritual.
THE COURT: Has anyone heard from the Grand Rabbi lately as to what his position is?
MR. BUSS: I --
THE COURT: I notice there is not, there are no affidavits from the Grand Rabbi.
MR. BUSS: There is nothing. There is nothing. One of the issues that my clients find troubling, my clients are very devout, pious members of this community. They are here. I don't know which -- if you can tell which --
THE COURT: No.
MR. BUSS: Distinguish one side from the other.
THE COURT: No.
MR. BUSS: Both sides firmly believe in the teachings and the traditions of the Satmar faith. No one from either side is supposed to degrade or say something without respect regarding the Grand Rabbi.
The fact is that the other side has been using his name constantly as an alleged justification for what they claim that they're doing or have done. It's just wrong.
My clients insist that the Rabbi never made the statements they attribute to him. There was one time that the Rabbi supposedly gave a speech over a tape-recorded document and it was broadcast at some hall. My clients took the tape, gave it to an expert, it's all in the paper with the report, it was not the Rebbe's voice. The Rabbi has not taken these positions.
Berl Friedman and my clients are denying access to the Rebbe. The Rebbe is, in effect, I believe about 90 years old. His health is declining. He is not -- there are people immediately around him who are on the respondent's side of this case and they control access to him.
The point I want to make, Your Honor, is the Rabbi didn't say anything about my clients. Any statements that the other side is claiming that he made is incorrect. Just the way everything I've shown to be false and contradictory, we believe these statements to be false and contradictory.
The Rabbi's authority is limited to the spiritual. The Rabbi has no power to buy and sell buildings. That's what 26 Adar is about.
The Board --
THE COURT: Hasn't there been a history of the Rabbi removing members of the board and putting in new members? That goes beyond the spiritual. That has happened.
MR. BUSS: It didn't happen exactly in that fashion. Mr. Gelberman's sur reply, he is an editor of the newspaper published by the other side, he is under their employ. We didn't get into the dueling tabloids at this point. I think he makes a living as a comic at weddings. He likes to write. He is not a scholar in the sense of Mr. Alpert. He is a scholar to the effect that he works and studies things.
His arguments, this is not documented, not relevant, he attaches exhibits of board meetings, not statements signed in the letterhead, Grand Rabbi, I hereby say. They're board minutes.
The Rebbe makes recommendations. I don't think I like this. I think you should do that. Would you please consider it? He goes to the board and asks them to do it. He is recognizing their authority.
In every single one of those examples, the Board is saying, yes, yes, yes. Okay. The fact that the Board in the examples they cited don't contradict the Grand Rabbi doesn't mean that the Rabbi has an authority contrary to the bylaws.
If you look at the whole structure, article nine, paragraph 7-B of the bylaws that the business of the congregation shall be governed by the elected Board of Directors.
Article eight says the Rabbi is the spiritual authority.
In fact, one of the -- maybe it was an overstatement, I enjoyed it just the way I keep reading Mr. Mollen's statement, years ago before there was a fight, before people had a reason to twist and turn the meanings of what they see, Jonas Halpert, Halpert, who is secretary of the Grand Rabbi submitted an affidavit into a proceeding, and I have attached it as an exhibit to one of the papers, where he clearly states in that case that the Grand Rabbi was, in effect, limited to spiritual. He was not an officer or director of the corporation, that he had no authority to make decisions regarding the business affairs and the activities of the congregation.
In fact, what's the purpose of having a board? If there is a supreme authority who can rule by fiat and make absolute determinations as to who can buy buildings, sell buildings, collect dues, go through all the functions that are set forth, and there are five pages of bylaws saying this is what the president does, this is what the vice president does, this is what the treasurer's responsibilities are, those bylaws are there and they're real and they have meaning.
The Court can't simply take them and rip them up. That's in effect what Mr. Mollen's argument is. This is ridiculous. We don't need any of these because the Rebbe can do all this. Not true.
Joel Teitelbaum, who was the founding Rebbe of the Satmar faith in the United States, sat down with Leopold Friedman, Berl Friedman's father and discussed these issues.
Mr. Friedman's father was in charge of the committee that drafted and wrote these bylaws. They had a board meeting. The Board passed them. And the Grand Rabbi himself blessed them and said I believe them.
Throughout his life did he follow those rules and teachings? In fact, we have another exhibit in the record, exhibit D to that big exhibit book, there was some disputes simmering in Montreal. The Grand Rabbi wrote them a letter and said, you know, you really need to have a set of corporate bylaws to govern yourself with. I want to send you a copy of the bylaws that we've adopted here in Brooklyn.
Those bylaws say there is a board. It's in charge of the business. The board is composed of lay officials, members of the community elected by the members, but it's not a spiritual body.
That treatment, by the way, Your Honor, is completely consistent with the religious corporations law. If you look in our brief you will see the history, the whole issue how and when the government can regulate a religious body.
Basically the government has a religious corporation law. It's an entity established by the State. It's not established by God. It's not established by a religious figure. It's an organization established under the law of the State of New York by the legislature and the religious corporation is subject to the controls that are imposed on corporations.
THE COURT: Is the Montreal group a part of Satmar under the jurisdiction of the Satmar constitution?
MR. BUSS: Good question. I don't know. I haven't heard from them. It hasn't come up.
MR. GARRY: I assume they are.
THE COURT: Let me ask, would the Board have contradicted anything that the original Rabbi Joel Teitelbaum demanded whether it was religious or secular?
Have they ever, in fact?
MR. BUSS: Um, I doubt that the Board would try to contradict because no one --
THE COURT: Whether it was religious or secular.
MR. BUSS: There's no one who really wants to contradict the Grand Rabbi.
Let me posit this question. Thank you for the question, Your Honor.
Mr. Mollen's argument, the Grand Rabbi says, Berl Friedman, you're a bum. I want you out of the organization. Throws him out. Strips him of the office and membership. Then calls for an election. 4,000 members, 4,241 members vote for Berl Friedman.
How, how I ask, Your Honor, could that many devout members of a Satmar organization ignore what the Rebbe said? Very simple. He didn't say it. They know he didn't say it. They know better than I know or Your Honor would know what is going on in their own community. There is no way, no way in the world that that many people would have simply ignored his statement.
And if you look in the bylaws, there's a provision for the removal of the person from membership. There is no provision for the removal of an officer and -- an officer, I think, there is a clear distinction, an officer can only be -- there is three ways.
I'll suggest them to the court. There is probably three ways that you would remove an officer. One is election, which is exactly the procedure that was followed.
By the way, if Mr. Mollen's argument that the Rebbe could do all this is appropriate, why in the world did he and his clients call for a second election on May 24th? What was the point of that?
The point of that, they know they have to be elected. That's why they called for an election. If the Rebbe could have simply said, Mr. Wertheimer I know you're confused on who votes, I know Mr. Schoenfeld changed your story, I forgive you, I will make you the officer of the --
THE COURT: What are the other two ways?
MR. BUSS: Special procedure by the Attorney General of the State of New York. And under the case law cited in our memo, there was a procedure that a Board can follow, a Board, not the religious community, a Board which requires calling a special meeting. It has to be called at least twice by posting notice in the main synagogue at least two times before the meeting is to be called setting forth a date time and place of the meeting setting forth the purpose of the meeting.
And at the meeting you have essentially a due process procedure. You're given a set of charges. And you're given an opportunity to confront your adverse witnesses and proceed with that.
None of that happened here. And some of the cases we cited in our memo petition of Hayes and Holconbe versus Levitt involves circumstances where religious authorities in a religious corporation, not Satmar, but religious authorities in a religious corporation attempted to remove officers of a congregation.
One of the cases, I think it was Hayes, a minister didn't like what the Board was doing. He had a budget that he wanted them to approve. He had things that he thought his church should be doing. The Board came up with their own version and he said fine, you're out of office. He threw them out of office. He called for a new election, had his slate run. They got elected.
The first group ran to court, hey, you can't do this. This man is the religious authority. He has no authority over the business affairs and the election of members. That's governed by the religious corporation laws.
Same issues here. Same issues here. In this case, the only way that somebody can do that is through the corporation's authority, not spiritual authority.
And the case law on that is entirely consistent with what we said the history, which both sides have recounted in their papers, show the Rebbe is, in effect, the spiritual authority, but not the business authority and the bylaws, which are controlling, make it very, very clear as to what he can and can't do.
Behind all of that, as Your Honor suggested to me with that question, why would over 4,000 devout members of the Satmar community vote for Mr. Friedman if the Rebbe had the power to remove him. They wouldn't do that.
And the legal argument, to go back, this election we had on May 12th, 2001, it was certified May 12th, and in Mr. Mollen's own words, they haven't challenged it. They haven't challenged it.
At that election, which remains outstanding and valid and unchallenged, Berl Friedman was elected president. It's really a moot question. He can't even raise the question. It's over. It's history. Berl Friedman is the president. There is no dispute about that.
THE COURT: Next election was held when? How much after?
MR. BUSS: I was a little dramatic. I ripped up my notes. I believe it was May 24, 2001.
THE COURT: Berl Friedman do anything about stopping that election before it could be held?
MR. BUSS: The election -- no. The elections were started on the same day. And in the accordance with the traditions that were always followed, Berl Friedman convened a meeting. Read the minutes. Gave the financials. Opened the polls for voting. Voting was conducted. Polls were closed. Results were certified and published.
Mr. Mollen's clients started their own election at the same time. They didn't have a board meeting, a reading of the minutes or financial statement. They simply opened up this high tech voting thing, doing bar codes and stamps. They continued to conduct these elections for two weeks, two weeks, and at the end of the two-week period, which is -- they're certified May 24th, they announced that they had won the election and had it certified by two employees of Mr. Wertheimer, commissioners of deeds, notary publics, they worked in the navy yard.
That election was so tainted with fraud and ambiguity and improper procedures that Your Honor must void that election. That's the remedy that we've asked. That's the remedy we've sought.
Our election is not being challenged. We're only focused on their election. We didn't ask the Court to say our election was better than theirs. We didn't challenge our own election.
Mr. Mollen -- we're it.
THE COURT: You made that point.
MR. BUSS: The election that they conducted, first of all, was not an authorized election. It wasn't called for in accordance with the bylaws.
Article seven, paragraph one of the bylaws clearly states that the president of the congregation has to call for an election. It has to be confirmed by majority of the boards. Neither one of these events took place.
They claim Mr. Kahan, who was the vice president and was an officer of the Board called for an election. It's not clear when he called for it.
In their papers they signed they say he called for it on January 18th. When you read the exhibits they attached of the resolution that they passed at the January 18th meeting, there is no call at that point for the election. But sometime over the next couple of months, they embarked on an election campaign putting out notices we are holding an election also.
The first and most fundamental flaw with that, that January 18th meeting was an unauthorized meeting. The January 14th -- at the January 14th, 2001 meeting, a majority of the Board passed a resolution that said Mr. Kahan and the ten other board members didn't have the authority to bind the corporation or to call meetings. They ignored it. They went and had a meeting. That's not a board meeting.
At that meeting they did certain things. He didn't call for an election, but somehow afterwards they called for an election. Not good. Totally unauthorized. It's intravillous. It's beyond the corporation's powers. They had no right to do that.
The election committee they appointed, bylaws article seven, paragraph 11, provides who is to be composed on that board. It's supposed to be members of the board, the election committee, members and non-members of the board. Their election didn't comply with those requirements.
When they actually called for the election itself, the most obvious flaw with the election was their exclusion of people from Kiryat Joel from voting and that's documented. It's undisputed. They have admitted it consistently, and exhibit T, which we attached to our book, says if you happen to live in this particular geographical area we're not going to let you vote.
They also allowed ballots by mail. This was never done before. And, in fact, there is a provision of the religious corporations law that allows for voting by mail if the organization is entirely within the City Of New York. This organization is not entirely within the City of New York.
Even within the religious corporations law we believe it's improper, but under the practices and the bylaws of the congregation, they are not allowed to use or have mail-in ballots.
These are very telling things. Your Honor, having a lot more background in election law, you might want to take a look at the numbers. Our election May 12th, 4364 votes were passed. Mr. Friedman prevailed in that election by 3,624 of the votes. 1,166 were cast by residents of KJ and 237 were passed by people residing in Monsey, Lakewood and Bayswater, a community in Queens.
These numbers, in case Your Honor wants to look at them as you're considering the motions before you are set forth in the reply affirmation of Mr. Wertheimer which was submitted January of 2002 Justice Jones.
THE COURT: What was the amount of voting in the second election?
MR. BUSS: May 24th election, 3,232 votes. Out of those 33 -- 1,595, 1,600 votes were absentee votes or mail-in ballots. And Mr. Kahan prevailed in this election that he called by a total of 114 votes asking the question whether or not an act or something improper could have tainted or effected the outcome.
I think it's pretty obvious when the tally or victory was only 114 votes. You have, first of all, over 1,200 people that they excluded from participating. 1,166 voters from KJ. If they had been allowed to vote, that 114 majority clearly would have been impacted.
I don't know how they voted. I could guess, but I don't know. But the question for the Court is could the addition of 1,166 votes into an election that is decided by 114 votes effect the outcome?
Obviously, yes.
Same question, could the addition or deletion of 1,600 absentee votes have effected outcome of the election which was only decided by 114 votes?
Absolutely.
THE COURT: Excuse me, one moment.
(Pause.)
THE COURT: Please continue.
MR. BUSS: We are not trying to get into a factual hearing about it.
THE COURT: No, I would like to wind it up within five minutes.
MR. BUSS: Okay.
Legally those votes should be excluded. And they allowed people who weren't members, in our opinion, to vote. And they packed the member list. I refer you to our papers as to why their election was actually void. I just want to take a look at the issue that they claim Mr. Friedman, why they claim that he was removed.
There is a document attached as exhibit F to that gigantic exhibit book in 2002. Respondents circulated this document which had a lot of provisions, but one of them you as an elected official, a board member of a religious corporation must abrogate your authority to an unelected group of three rabbis.
Mr. Friedman said I can't do that. That's a violation of my fiduciary duty as a director of the non-for-profit or religious corporation. I can't do that. And I won't do that. And he refused to sign that piece of paper.
January 14th, they called for a meeting of the boards of all three congregations. They had 83 officers and board members, the president including Mr. Friedman. That body, which was the majority of all three boards and a majority of the governing board, expressly resolved that the call made by these three unelected rabbis or for the elected official to abrogate their powers was not legal and Berl Friedman was a proper officer.
I think I touched on all the big issues.
THE COURT: Fine. Thank you very much. We'll take about a ten minutes recess and we'll hear from the other side.
(Pause in the proceedings.)
THE COURT: Mr. Mollen, please go right ahead.
MR. MOLLEN: Morning, Your Honor.
There is an old adage that says the facts do not disappear if you simply ignore them.
Mr. Buss' presentation sounds perfectly reasonable. It sounds fair. Sounds like how could anybody argue with it. The only problem is, he needs a court that has a short memory. He needs a court that forgets about the case law; that forgets about the procedural history of this case; that forgets about the detailed affidavits submitted in opposition to the facts that are been presented.
He presents things as if they're uncontested when, in fact, they're very contested. And I use an expression sometimes in court that something that someone does presents a window of insight that they say something, they do something that kind of tells a whole story of what is really going on. And I think I would like to start by just touching on a couple of such windows of insight.
Mr. Buss described Schlomo Gelberman, a respected historian in the Satmar community, as an comic. He denigrated him. He put him down by describing him as not really a serious kind of fellow. He used the word comic.
In his affidavit, his sides' affidavit, signed a few days ago, an affirmation signed but a few days ago by Isaac Rosenberg, Sandor Oberlander, David Eckstein, David Markowitz, Elias Horowitz and Benjamin Werczberger, each one of those people said in their affirmation that the history of the congregation as recorded by the historians, Abraham Fuchs and Schlomo Gelberman confirm that the first four Grand Rabbi's were not relatives.
So they identified Mr. Gelberman as a respected historian. They cited him. They relied upon him.
And when Mr. Gelberman gave us an affirmation a few days ago, he said these people never even talked to me. They submitted statements, put words in my mouth saying that these are the traditions, rules of, the law of the Satmar community. They never talked to me. They didn't consult with me.
Even worse than that, he said they're wrong. They're just wrong. They gave an incorrect recitation of the history and the power and the respect of the Grand Rebbe within the religious community.
That's just one example.
They talk about an election that so many people supported them and it was a close election. That was a sham election. The papers detailed what kind of election they held. They didn't have any of the, any -- I don't want to say any, they didn't have the kind of safeguards that people who want an honest, fair election would put into place to make sure that there is not an ability to manipulate the election results. And in our detailed papers we spell that out.
They stood up and said to you that there is one congregation. Kiryat Joel is with the Satmar community in Williamsburg.
They ignore the history that year after year after year Kiryat Joel has been run as a separate entity, separate with respect to the religious corporation law. They've had their own dues, their own collections. They've had properties in their own names. They've had their own Board of Directors. They have had separate books and maintain separate books.
And I believe they explained in our papers that there was an exception throughout the entire history where they did something jointly. We, at least, acknowledge, we're forthright and say there was one exception. But look at the history. Look at the general practice, the custom and usage that had gone on for years and years and years.
When they make a presentation, they make it completely one-sided. Oh yes, we were always part of one congregation.
Your Honor asked a very, very pointed question as Your Honor tends to do. You asked the other side, you asked the other side, did your clients question, did they question the Grand Rebbe when he ventured into decision making and recommendations? Did they question him in civil matters as well as religious matters? Did they exercise independence from the Grand Rebbe? When the Grand Rebbe chose to express his view, was there anybody who of your clients in an official position who challenged him?
The answer was I can't cite any, I can't cite such an example. That tells the story of the uniqueness of the Satmar community.
We, in our papers, we give examples where the Board may have started to go down one road and the Rabbi, the Grand Rabbi said no, I would like you to do it differently. We point out that out of respect for the Grand Rebbe within the Satmar community, the Board acceded to the wishes of the Grand Rebbe.
Now, what I would like to do is, I want to touch on those few points at the outset, the very critical motion, one critical motion for us is this injunction motion today.
The injunction motion again illustrates what an one-sided incomplete presentation my adversary, who I have great respect for, made.
First of all, they've asked for injunctive relief. Your staff, and you know from your years on the bench, that if you are seeking injunctive relief from a court you are obligated to make a representation to the Court that no prior requests for identical or similar relief has been made to the Court. That is a pre-condition for an injunction in this court.
I read Mr. Buss's moving affidavit. I couldn't find that representation. I believe I know why I couldn't find it. I think this Court knows why he didn't say that. He didn't say it because he knows that they are making now the same request, they're trying to enter through a back door the same kind of request they've been making to multiple judges, multiple courts for approximately two to three years.
And if this injunction, if their injunction were granted, we believe Your Honor would be violating the law of the case and all of the rules and legal principles relating to injunctive relief.
The record shows that they started this proceeding -- how did we get into court? They say why isn't the Grand Rebbe making statements?
The Grand Rebbe has made statements in the congregation. They come forward for three years and the best they've said is they had somebody hear a tape and that person doesn't think it's the Grand Rebbe.
During this whole period the Grand Rebbe has been participating publicly in this proceeding. He's been leading services. He's been conducting the business of the congregation and doing numerous things.
Last fall, he lead the high holiday services before several hundred people and stood for hours. The Grand Rebbe blew the shofar on the high holidays, which takes physical strength and mental focus.
The Grand Rebbe read the megillah on Purim before hundreds of people and stood the entire time. In late 1999 the Grand Rebbe called a meeting of the entire congregation and announced his desire to plan for the future and he expressed his view.
You could disagree with it. These are difficult choices. They're sensitive choices, but he made a decision that he wanted -- he believed his son Zelman should be the leader in Williamsburg and he wanted Aaron for the Rabbi in Kiryat Joel.
And up until this time, the same people who are attacking the wishes of the Grand Rebbe now are the people who had always followed his guidance and advice and, in fact, January 14th, 2001, Berl Friedman, their client, said in a breakaway meeting that they would conduct elections, but if the Grand Rebbe said the elections should not take place, there would be no elections.
THE COURT: Friedman said this where?
MR. MOLLEN: On January 14th.
THE COURT: In an article?
MR. MOLLEN: He said it at a public meeting.
The bylaws provide that the Torah play a very important role because the bylaws -- they like to cite one phrase or one sentence or one word out of the bylaws. You have to look at the bylaws as a whole. They make a point of saying that adherence to the Torah is a critical element of membership or qualification for membership.
The Torah specifically says, if one is going to adhere to the strict interpretation of the Torah, that you must follow the teachings and decisions of your Rabbi.
In fact, Berl Friedman, who presents himself as the man of the people, the winner of what we believe was a phony election, how did he come on to the board? He came to the Grand Rebbe and asked to be appointed. And Berl Friedman in 1986 was appointed by the Grand Rebbe, not because he won an election. He wasn't put on there in the same way we elect a president of the United States.
And, in fact, the Grand Rebbe, they give the impression you think the Grand Rebbe serves at the pleasure of the congregation like he's a hired employee. That's not the history of the Grand Rebbe within the Satmar community.
In fact, the congregation was really welcomed into the home and property of the Rebbe. The Rebbe had purchased the home before the congregation formed. He was the founder. It was his personal funds that founded the congregation. In fact, he wasn't even paid a compensation as a salary because he wasn't, in fact, an employee serving at the pleasure of a congregation. Only somebody who does not understand the Satmar community could ever imply that or say that.
I want to go back to the injunctive relief aspect. When they came into the court with their ex-parte temporary restraining order based on a moving affidavit of a person who also came into courtroom before Your Honor, a person who later took the witness stand and started to lecture Your Honor on religious law and principles within the Satmar community, it later came out that person was a convicted felon and an escapee from federal detention, based on this so-called pious religious person, the restraining order that they obtained was not signed by Your Honor, but was signed by Judge Reynold Mason.
After Judge Mason signed the order, my clients did not take to the streets. That order created a whole new form of governance in the Satmar community. It created a joint committee, three of them and three of us. It took away the power of our board. And took away the power of the wishes -- it undermined the wishes of the Grand Rebbe with respect to the board.
So we did not cause a scene in the congregation. We didn't have rioting. No one raised their voice. What they did, they followed proper lawful procedure notwithstanding the Grand Rebbe's admonition, do not go into -- don't bring disputes into Civil Court. Notwithstanding the interpretation and the revered Rabbi in Israel, Rabbi Fisher, not to go into Civil Court. We were dragged into Civil Court by the order signed by Justice Mason.
What did we do? We followed lawful procedure and went to the Appellate Division.
And the Appellate Division took a look at this order that they had obtained, said this is wrong to change the governance on an ex-parte basis where we didn't have a chance to argue. We weren't allowed. Today we are in a courtroom next to them, when they went to get their order from Judge Mason. They found Judge Mason and made the request without us. We weren't invited. We weren't asked.
The Appellate Division immediately modified that order and sent us back to Your Honor. The Appellate Division, in essence, looked at the form of governance, the issue, struck Judge Mason's provisions and sent us back to Your Honor.
When we came back to Your Honor and had argument it wasn't on an ex-parte basis. Then they were represented, the other side represented by Robert Batra. After argument Your Honor made a ruling.
Your Honor's ruling was that our side for now, until the ultimate decisions are made as to who is the appropriate party to run the congregation, because we have thousands of families that have to be taken care of, we have schools, we have camps, we have social programs, we have banks, money goes back and forth to pay for teachers and for food, so someone has to be in a position to make decisions. And Your Honor said I'm going to, in essence, do what the Appellate Division did and continue the board, which I represent, in power.
After you made your rulings, did they go like we did? We followed the lawful procedure. We did what we're supposed to do. We went to the Appellate Division when we had a problem. What did the other side do?
They didn't go to the Appellate Division and appeal your order. They didn't move to reargue your order. What they did, they tried to find another judge who could contradict you. They went down the hall and they said that this case really relates to an old, a ten year old real estate case then pending before a distinguished jurist, Justice Jones. And they asked him to sign an order that would have contradicted your rulings. They asked for the same kind of relief before Justice Jones that you had just ruled on.
And I asked for an investigation. I asked for the administrative judge's chambers to look at what I viewed as improper, what is the slang expression, judge shopping in the courthouse. And I said, in essence, how dare these people be dissatisfied with Justice Barasch's rulings? Instead of taking an appeal, the proper way, they tried to get another colleague essentially to give contradictory relief.
Justice Pesce looked into it. Gave more opportunity than anyone could really reasonably ask for, took arguments, briefs. There were two arguments. Lawyers came in. Clients came in. And he made a ruling that all the cases belonged in front of Your Honor.
Subsequently, we had -- and once that ruling is made, once that decision is made, the Appellate Division 2d. Department in the case of Angel v. Eichler, 753 NY sub. 2d. 109, and the case of Pollack v. Pollack, 736, NYS 2d., 632, both Appellate decisions, have said once the decision is made by the Court, that is the law of the case. If you want to appeal it, you appeal it. You can't come back two years later, three years later and try to collaterally attack that ruling.
Basically, that's exactly what they did. Not only your first ruling or the Appellate Division ruling on August 10th, 2001, this Court, Your Honor, made your first ruling that our People should remain in charge of the congregation until the ultimate issues in this procedure are resolved on August 13th, 2001.
That August 13th ruling was never challenged. Never moved to reargue. And it's remained in effect since August 10th, 2001. We've been in control since August 10th which means almost three years.
In fact, the petitioners in their own papers, they say that since 2001 the respondents have been in control. Berl Friedman's affidavit dated December 3rd, 2003 attached as exhibit A acknowledges that since 2001 we have been running the congregation.
Now, here we are years later after these rulings have been made, we have a course of conduct for three years and they are asking you now to change the management, change the control of the congregation on a motion for injunctive relief with no basis to overturn the prior rulings. No explanation why they never appealed. No new circumstances. No changed circumstances. No compelling reason why there should be a change.
What they've done is they say we have a factual history that is different than our factual history. We have people who will say things occurred a little bit differently or very differently.
Why hasn't there been more evidence in this case? You have a bunch of people saying here are the traditions, rules, customs of the Satmar community on one side. And you have -- and here's what the Rabbi did, the Grand Rebbe did and didn't do. Here's what the Board did and didn't do. Here's the election the way it was conducted and, if you will, read their version it's all wonderful, it's terrific. They did everything proper and ours is terrible.
If you read ours, you almost have a mirror image, in essence. The reason there hasn't been more uncovering of the facts and testimony and evidence is because they put a wall up. They came to Your Honor and they said to Your Honor we want a stay of all discovery. They asked for the stay. Discovery would have been able to proceed.
And then after they obtained the stay of discovery, then we -- they had a right to appeal. They did appeal the Justice Pesce decision. And if they were really interested in justice, if they were really interested in rapid justice and protecting the families of the Satmar community, you would think, and this is an important issue, goes to the heart of the leadership of the Satmar community, you would think they would want a quick resolution? Let's get this straightened out quickly.
What did they do? They waited the entire six month appeal period and never filed their appeal. They never followed through with their appeal during the appellate period and, in fact, let the period expire and then one of their attorneys went to, respected again, Justice Malonous, and asked the Appellate Division, please give us permission to file a late appeal.
What they did, they waited -- they made a strategic decision, stall as long as possible, wait until the last minute. I believe they confused the 1st Department and 2d. Department because the 1st Department, they can wait the nine months and the 2d. Department is six months.
Low and behold, they let the period go. They discovered that. The Appellate Division, in its' capacity, allowed them to file the appeal and the Appellate Division ruled that Justice Pesce was correct and the case belonged in front of Your Honor and the Appellate Division pointed out that one reason his decision, Justice Pesce's decision was appropriate was because, in essence, what they did, they asked for similar relief that would have contradicted the orders that Justice Barasch had issued. And that was the telling point and the critical point in the eyes of the Appellate Division.
After Your Honor rendered that August 13th decision, Your Honor was confronted with other multiple applications for rulings as to who should be in charge with different aspects because specific issues had come up.
One issue came up, the banks wanted to know who is in charge. The banks want to know whose signatures should we accept? Even worse than that, I don't want to say worse than that, what was very troubling on the high holidays, knowing that we are selling seats in the synagogue, they go and start selling seats, the same seats, in essence, counterfeit tickets.
The Court rulings said we're in charge and they start taking money from people telling them they're giving them tickets for seats that they didn't have a right to do.
Then they were collecting contributions and charitable donations in the name of the congregation even though the Court ruled at that point in time and had said our board is in control.
And then they purported to speak to the Police Department and say they speak for the congregation even though there were multiple court orders saying we speak for the congregation.
Those prior decisions are attached as exhibits B, C, D and E to our papers.
Given those orders, given those orders, there's no basis for the respondents to say we lack a legal basis to be in charge. We followed proper procedure. We put in the appropriate papers. When we disagreed with the Court, if we've ever disagreed, we would follow appellate procedure. They didn't do that.
They argue then that all these orders in their papers are irrelevant. They think they can take an eraser on like a blackboard and make all these orders go away by simply saying these records were in the other case because there were two cases. They say those orders were issued in a case that had a different index number.
What they ignore again, another fact that they ignore, on January 10th, 2002, this Court orally granted a motion to consolidate the two cases. And that's exhibit F to our papers.
What they're asking for here is remedy that is not different than they previously asked. What they're doing is what they've done in the past, first time when they didn't convince the Court of the merits of their position, they tried to get another judge.
Now that they can't go looking for another judge, they're trying to use another mechanism. The relief is essentially the same. They're trying a new mechanism.
Under the law of the case, the Appellate Division says, you can appeal. Those rulings stand. We remain in control until there is a final disposition.
I would like to approach the 618 argument because that's an important part of their presentation.
Under the election law, a plaintiff, a party has a right to develop it's own strategy. It has a right to decide which remedies it wishes to choose, what vehicles it chooses to use to try to seek justice provided that it's lawful and appropriate and legal.
A plaintiff could decide whether to proceed in the Federal Court or the State Court or an arbitration. The other side -- in arbitration, if there is a binding agreement.
The adversary cannot tell us what claims to make. They can control their papers. They can control whatever claims they want to make against us. That is their right. But they cannot tell us what claims we can make.
Now, our view is that we don't have to challenge, bring a challenge under section 618 to their election.
Why? For a very simple reason. You have large organization, thousands of people are involved. There are times when people will have disagreements sometimes. In the Satmar community, if it's a disagreement with the Grand Rebbe, the Grand Rebbe prevails.
You can have dissident groups breakaway. Catholic groups have had dissident groups breakaway. Protestants have had it. Episcopalians have had groups break away. The Jewish community had has groups breakaway in divisions within their community. That's part of life sometimes and one has to understand that that happens.
There is no rule of law that says if we had five different groups break away and they decide to hold an election, they're not authorized, because in our view the authority comes ultimately from the Grand Rebbe. That's the Satmar way of life.
There is an official Board of Directors. If people who are not the official Board of Directors decide they're going to hold their own election on Monday and in a different group they're going to hold their election on Wednesday and another group they're going to hold their election two weeks from now, is the congregation required to incur legal fees and spend thousands of dollars hiring lawyer to go challenge every one of these dissident groups' elections?
They want to hold their own kind of election somewhere and they want to call themselves, as long it doesn't mislead the public, call themselves something other than us, that's okay.
But what we chose to do is instead of bringing separate -- bringing separate actions, we came into court saying we want a declaratory judgment that our election was the proper election. We invited the Court to take a look at our election, take a look at our procedure. See what we did. On notice to them they have an opportunity to contest it. They have a right to come in and say it's an improper election. But we filed an action, a declaratory judgment request and for them to look you in the face, for them to come into court and say we never challenged their election, how can they say that?
Of course we challenged their election. We did it in the form of a declaratory judgment action.
If you're going to be honest and forthright, then say yes, they challenged it. We disagreed with the form that they used. That's okay. That's their right to challenge it. We think they're a wrong. We think that we have a right to bring a declaratory judgment action. We challenged it.
I said on February 13th, 2004 petitioner doesn't have the authority and that's clear. They chose to bring a formal proceeding and asked for legal declaration as to whether our election was valid or not valid.
So, after we have been in this court and in the Appellate Division fighting to protect the legitimacy of our Board of Directors and for saying two, three years we're legitimate leadership and we've served our right in any court that is appropriate, how could you come in with a straight face and say to the Court we didn't challenge the election. That's clearly a lawyer's cute and clever way of presenting an argument. That flies in the face of the facts and flies in the face of the case law.
We should not have to spend money attacking every trumped up election that somebody decides to hold in some small synagogue.
Now, we have now several affirmations of experts as to how and why the conflict arose. You have the Wertheimer affidavit. And he goes into great detail. He explains the election procedures that were used in the election. He points out that Berl Friedman and Rosenberg could not be officers or directors of the congregation because the Grand Rebbe said they don't belong in the movement because they have challenged my authority.
If the Pope, if the Pope excommunicated a Catholic for challenging the Pope, that's within the Catholic hierarchy. That maybe appropriate.
In order to be Satmar, you have to accept the authority of the Grand Rebbe. Once you say I am not accepting the authority of the Grand Rebbe, you are subject to the action that the Grand Rebbe took which has been the same power that was exercised and is the rightful power by his predecessor, the Grand Rebbe, the founder of the Satmar movement, Joel Teitelbaum, may he rest in peace.
The Rabbi was viewed as the successor in the bylaws to be his successor. And successor means to succeed to the powers of the person who was before you.
They didn't create a new position. They didn't create a vice Grand Rebbe. They didn't create a junior Grand Rebbe. They said he succeeds to the power.
When did anyone take on Rabbi Joel Teitelbaum when he expressed his view? When did anybody challenge him? No.
Now when they disagree with the Grand Rebbe's choice and Rabbi Joel Teitelbaum is not around unfortunately, now all of a sudden the powers of the Grand Rebbe are a little bit different than had been exercised year after year after year by these same people.
The dissidents said they established a lawful election. They had 11 candidates on their ballot who never consented to having their names on the ballot. They were 11 people that never consented to have their name on the ballot.
THE COURT: Is that in your papers?
MR. MOLLEN: Yes. They had an election committee, chairman who was so concerned about monitoring the election that during the election he was in Florida.
They ignored the membership list and they permitted non-members to vote. Bylaws are specific about age. It's someone over 18, someone married. They had people voting who were not members, not qualified under the bylaws. They failed to verify the members' identity.
They make fun of our safeguards. They talk about us with bar codes and the procedures we had. Yes, we had procedures. We had procedures to make sure that the people who were entitled to vote are the ones who were voting and not bussing in people or taking people off the street who were not qualified to vote. They're, as I indicated, separate corporate entities, separate officers, separate directors, separate operations, separate membership lists, separate property, separate real estate properties.
The notice of the election, the only notice of their election was in the newspaper Der Blatt. This is a newspaper that the Grand Rebbe had declared should not be read by Satmar Hasidim.
This is the newspaper -- you will recall the testimony of Mr. Brock when he disavowed statements in the newspaper. Aren't you the president of the newspaper? Mr. Brock, he said well, I'm like the honorary president, if you recall his testimony. He didn't really want to admit that he was really a major force in the newspaper.
We put in details that they used counterfeit voting cards that contained unreadable false bar codes and did not require the voter's signature.
They diverted people from our polling place. We were holding our election and they did theirs at the same time and the people would be confused as to which polling place to go to.
In contrast, in contrast, at a January 18th, 2001 meeting, the official board established an election committee. The committee held eight meetings. They ran their election pursuant to the prior practice and the bylaws. They arranged the preparation and mailing of voter cards to each member.
Each member was given a card that had a computerized bar code that identified the member. And an embossed gold seal that made duplication difficult. And every member was required to sign the voter card.
The committee mailed the ballots that contained competing slates. Members were given the right to vote by mail pursuant to religious corporation law section 207.
There were mailed ballots and they were also allowed to vote at the main synagogue. They were two independent observers who were not Satmar Hasidim.
What they didn't tell you also is that the dissidents were given an opportunity to submit a competing slate. In our case, we invited them to put up a competing slate. We said if you comply with the rules as permitted by the Grand Rebbe, we are willing to have a competing slate and they chose not to.
We also posted notices in the main synagogue. It was also noticed and was published in Der Yid. Our congregation -- the newspaper our congregation recognized.
Additional notices were made April 24th and April 26th and May 1st and May 8th and May 10th and May 11th posted in the main synagogue.
And our group that I represent, in essence, were elected not by a slim majority that my adversary alludes to, but by an overwhelming majority.
And the Grand Rebbe went ahead and confirmed and certified the results and exhibit I is the confirmation with the translation.
Now, having controlled the synagogue and the congregation for three years, where is -- let's talk about the law a little bit.
Where is the reparable harm that warrants a new injunction? The immediate reparable harm. They fail to allege any reason for a departure from practice for three years.
Where is the balance of equities argument? What are the equities involved when you've had multiple rulings, no appeals, no motions to reargue? No specific facts presented to the court that warrant changed circumstances?
Where is the balance of the equities? And certainly they can't possibly demonstrate a likelihood of success on the merits.
You have two contradictory versions of what had occurred and what the rules are so we don't see how there could be a legal basis for a new injunction.
The Schoenfeld affidavit explains the background of why we should not have gone into the Civil Court system, explain how Rabbi Israel Jacob Fisher of the Prominent Rabbinical Court in Jerusalem issued a decree that the dispute should not go into court and that was in the exhibits.
When the rules were set up that you don't bring these disputes into the Civil Court, Berl Friedman was a member of the board at that time and supported it.
Now, in fact, Rabbi Aaron had delivered a public speech in a synagogue in Kiryat Joel where he stated, he himself stated, making an issue of what the Grand Rebbe said, Grand Rebbe, there are many witnesses who are available as to what the Grand Rebbe said, we presented evidence of that in affirmations, but Rabbi Aaron had stated in a synagogue in Kiryat Joel that the Grand Rebbe has the ultimate authority in all congregational matters.
We have submitted in our sur reply papers, the response of the Gelberman response. We have attached in detail the so-called inconsistencies.
What Gelberman, what Schlomo Gelberman states is very important and it's worthy of just summarizing. He says, in essence, that number one, they never consulted me when they cited me. Number two, they're wrong. They misstated history. They were not three Satmar Grand Rebbes before Rabbi Joseph Teitelbaum. He was the founder, Rabbi Teitelbaum.
The Grand Rebbe within the Satmar community had authority over religious and civil matters. He is very clear about that. The Grand Rebbe does not serve at the pleasure of the congregation. He accepted the congregation.
It's a very hard concept sometimes for people who are not Satmars to understand. This is not a modern religious movement that goes out and takes an ad out for a Rabbi. Doesn't work that way within the Satmar community.
The Rabbi accepted the congregation. He refused any compensation. His rulings are binding. In fact, in the bylaws nobody can accept a position without the rabbi's consent. He spells out that people within the Satmar community look to the Grand Rebbe for business, on business matters. They look to the Grand Rebbe for marital issues. They look to the Grand Rebbe for family matters. Things that go beyond traditional religious issues. That's been the tradition. And the rule within the Satmar community.
No one forces you to become Satmar. No one forces you to remain to the Satmar community, but if you do, that is the way the -- that is the Satmar way.
And I pointed out that in 1965 the Grand Rebbe overruled an election for treasurer. They had an election for treasurer. The Grand Rebbe, and I'm talking about Rabbi Joel Teitelbaum, decided that the election result should not stand for whatever reason. And the Grand Rebbe exercised, chose to use his authority and he overruled the election. And the Board and everybody accepted.
In 1978 the Grand Rebbe appointed new members to the board without an election. Everyone accepted. And, in fact, my adversaries when they benefited from the rulings of the Grand Rebbe, when they accepted the appointment without an election, they were happy to take the appointment of Berl Friedman to the Board, all of a sudden the Grand Rebbe had the supreme authority. No election needed.
Now when he, the Grand Rebbe, has the temerity to disagree, now all of a sudden we are bringing in lawyers and we're going to challenge the authority of the Grand Rebbe.
I think that what is important here is number one, there is no legally sufficient basis to grant an injunction based on this record. The law of the case is the answer. The answer is no immediate reparable harm. No likelihood of no balancing of equities. Those are the relative reasons that the injunction is inappropriate.
With respect to the petition, I would point out that if there is a lack of additional information, if there is a lack of additional back-up in support, it's because they asked for a stay of discovery. And there are too many factual issues. I believe you have contradictory experts. You have contradictory fact witnesses as to what occurred.
But to grant their petition based on this state of this record, I think, would fly in the face of well established rules.
I want to thank you for your patience.
THE COURT: Thank you, counsel.
I want to thank both counsel for their presentations. I think this was a better session then a lot of other previous sessions. I think the acrimony is down. We will give it a lot of consideration.
Mr. Buss.
MR. BUSS: If I may, Your Honor, very briefly. I'll give you an example of when the board ever challenged the Grand Rebbe. The 26 Adar case brought by Ashley Jacob Schoenfeld who says he doesn't go to the court. He is a named plaintiff in this case.
THE COURT: What year?
MR. BUSS: 1990 until today. I think the case is still pending maybe in front of Your Honor.
THE COURT: No.
MR. BUSS: It's been pending for 13 years.
This is a property on Bedford Avenue.
THE COURT: Right.
MR. BUSS: Owned by congregation Yetev Lev through the board transferred the property to congregation Beth Joel. The president of Beth Joel and the director of Beth Joel is Joel Teitelbaum.
That property was transferred by his entity, somebody called Beth Figge and transferred it and transferred it again, 26 Adar. The lawsuit brings out, Jacob Schoenfeld says these transfers are improper.
Now, one transfer from Beth Figge, that was transferred by Joel Teitelbaum himself, his corporations when he was the president of the board. That transfer actually was even, it's in the record for 26 Adar, Rabbi Moses Teitelbaum who was then alive, he affirmed that transfer as being proper.
They brought this to court and challenged and my client tells me that there are number other occasions when the board has not simply done what the Grand Rebbe said.
If Your Honor wants, I'll take sometime and I'll supplement the record. That's in the public record. That's a fact. That was a challenge. It may not have been the primary issue in front of the court but the ultimate resolution of the congregation is the board had the power to do this. They did it. It's done. Title company issued insurance. It's over. End of story.
The whole theory that case was brought on was it had, by necessity, been to implicate questioning whether or not Joel Teitelbaum and Moshe could transfer real property. There was affidavit after affidavit saying he couldn't do it.
The bylaws article seven, paragraph nine, state that in any election, the members must vote personally. Personally. So the whole provision about mail, where they admit they have 1,600 votes, are void.
I should've cited Mr. Mollen. I did read his statement, but it sure sounded like he is challenging his election when he said he wasn't, but the fact is, who are the necessary parties? He has never named them. If Your Honor recalls his underlying complaint actually uses the phrase the unnamed parties. It should be removed.
Thank you.
MR. MOLLEN: Just --
THE COURT: Just on the election.
MR. MOLLEN: On the 26 Adar, there is no evidence in the record that when the board decided to challenge or when that challenge was made by Moshe Teitelbaum about the Rabbi's authority, there is no evidence that that challenge did not have the approval or blessing of the Rabbi. There is no evidence that people do allow people to assert technical defenses, technical arguments, there is no evidence that the Rabbi was opposed to the arguments that were made.
THE COURT: Thank you. We'll review this and on a small note, please look at today's Law Journal. My picture is on the front page. You might be interested in it. Thank you very much.
MR. GARRY: Thank you, Your Honor.
MR. BUSS: Thank you.
MR. MOLLEN: Thank you.
* * *
Certified that the foregoing is a
true and accurate tran of the
original stenographic minutes in
this case.
Jennie Fantasia
Official Court Reporter
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