אלעס אמת, ליין וואס סקאט מאלען שרייבט וועסטו אביסל קלוגער ווערן
February 14, 2006
BY HAND
Hon. James B. Pelzer
Clerk
New York State Supreme Court
Appellate Division, Second Department
45 Monroe Place
Brooklyn, New York 11201
Re: Congregation Yetev Lev D'Satrnar, Inc. v. Kahan, et al., Docket No. 2004-9716 (the
''2004 Appeal'');
Congregation Yetev Lev D'Satrnar of Kiryas Joel v. Congregation Yetev Lev D'Satmar, inc.
et al Docket No. 2006-1382 (the ''2006 Appeal)
Dear Mr. Pelzer:
This firm represents Congregation Yetev Lev D'Satmar, Inc. (the ''Congregation'') the
Respondent in the above-captioned 2004 Appeal and the Appellant in the above-captioned
2006 Appeal.
We are in receipt of a letter dated February 10, 2006 to this Court from Kevin J.
Plunkett, Esq., counsel for the Appellants the 2004 Appeal in which this Court (Justices
Schmidt, Mastro, Spolzino and Covello) (hereinafter, the ''Panel'') heard oral argument on
December 2, 2005. Mr. Plunkett attaches to his letter a copy of a Decision and Order dated
February 9, 2006 issued by Acting Justice Rosenwasser of the Orange County Supreme Court
the (''Rosenwasser Order'), which is the subject of the 2006 Appeal, and asks that it be
forwarded to the Panel.
In his letter, Mr. Plunkett states that the Rosenwasser Order ''is relevant to the issues
presented to the Court'' in the 2004 Appeal. We could not agree more. Moreover, now that
the Panel has been provided with a copy of the Rosenwasser Order to consider in its
deliberations on the 2004 Appeal, our client would be severely prejudiced if the Panel was
not permitted to review our motion for a stay pending appeal from the Rosenwasser Order
(the ''Motion''). Our Motion explains why we believe the Rosenwasser Order contains
numerous serious errors of law and fact. Accordingly, enclosed are five copies of the
Affirmation of Scott E. Mollen dated February 10, 2006 submitted in support of the
Congregation's Motion for a Stay. We respectfully request that in all events they be
provided to Justices Schmidt, Mastro, Spolzino and Covello.
The voluminous exhibits to this Affirmation were provided to this Court on February 10, 2006.
The Rosenwasser Order directly conflict with the decision and judgment issued by Kings
County Justice Barasch in October 2004, which is the subject of the 2004 Appeal and which
is now sub judice. While Justice Barasch ruled that no civil court can decide the
Congregation's election controversy because of First Amendment considerations, the
Rosenwasser Order rejects that conclusion as ''disemboweling'' the Religious Corporation
Law and proceeds to decide the election controversy Instead of deferring to the
Congregation's ecclesiastical authority, Thus, the Rosenwasser Order purports to resolve
extremely important constitutional issues that are currently sub judice before the Panel
in the 2004 Appeal.
In light of Mr. Plunkett's agreement that the Rosenwasser Order ''is relevant to'' the 2004
Appeal, we respectfully request that the Congregation's Motion for a stay pending appeal
from the Rosenwasser Order be submitted to the Panel before whom the 2004 Appeal is now
pending. it is respectfully submitted that because of the intricate cedural and factual
histories of these two related actions, it would be inappropriate for the Congregation's
Motion to be heard by anyone other than the Justices of this Court who are on the Panel
and who are already fully familiar with the underlying facts and the significant
constitutional issues implicated by both the 2004 Appeal and the Congregation's 2006
Appeal. To burden anyone who is not already familiar with these complex, fact-intensive
issues and legal arguments raised by the Congregation's Motion would waste judicial
resources and serve no*'s interests,
When we were before Susan Harkavy, Esq. last Friday afternoon, after filing our Motion in
support of a stay of the Rosenwasser Order and a temporary stay pending a decision on the
Motion, counsel for the opposing side argued to Ms. Harkavy that the movants did not need
a temporary stay of the Rosenwasser Order because ''nothing was going to happen.'' In this
context, Justice Adams denied the request for a temporary stay and set the Motion down for
submission on February 23rd, We respectfully request that we be given until 5:00 p.m. on
February 27th to reply to the opposition papers to be filed by Respondents' counsel.
Lastly, we recognize that it is not the Court's practice to hear oral argument on motions.
However, we respectfully request that this Court consider hearing oral argument on the
Congregation's Motion for a Stay pending our appeal from the Rosenwasser Order in light of
the unique circumstances surrounding this case, and in the interests of the tens of
thousands of Williamsburg residents who are intensely concerned with the outcome of this
litigation and the impact it will have on the religious, educational, charitable, and
social institutions upon which they depend.
We thank you for your time and consideration.
 |
|
|
