Proceedings 1
1 SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ORANGE
2
...............................................X
3
CONGREGATION YETEV LEV D'SATMAR OF KIRYAS JOEL,
4 INC. AND MOSHE SCHER,
Plaintiffs
5
-against-
6
CONGREGATION YETEV LEV D'SATMAR, INC., MANUAL
7 MANGUAL, JENO KAHAN, SOL PERLSTEIN, JACOB SCHOENFELD
SOLOMON SANDER, JOHN DOE "1-50", U.T.A. MESIVTA OF KJ,
8 UNITED TALMUDICAL SEMINARY AND UNITED TALMUDICAL
ACADEMY TORAH V'YIRAH, INC.
9 Defendants
...............................................X
10
Government Center
11 Goshen, NY 10924
July 26th, 2006
12
13 B E F O R E:
HON. STEWART A. ROSENWASSER
14 Supreme Court Justice
15
APPEARANCES:
16
FEERICK LYNCH MACCARTNEY
17 99 South Broadway,
South Nyack, NY 10960
18 BY: DONALD J. FEERICK, JR.
19 JACOBOWITZ & GUBITS, LLP
158 Orange Avenue PO Box 367
20 Walden, NY 12586
BY: DONALD G. NICHOL, ESQ.
21
TARSHIS, CATANIA, LIBERTH & MILLIGRAM
22 PLLC.
One Corwin Court
23 PO Box 1479
Newburgh, NY 19550
24 BY: RICHARD M. MAHON II
25
Neil Bostock, RPR-CM
1
SMITH, BUSS & JACOBS, ESQ.
2 500 Fifth Avenue.
New York, NY 10110
3 BY: JEFFREY D. BUSS, ESQ.
AND: GERALD KAHN, ESQ.
4
LESTER PAVERMAN, ESQ.
5 Attorney for New York City.
Police Department.
6 Legal Bureau Rm 1406
One Police Plaza
7 New York, NY 10038
8 HERRICK FEINSTEIN LLP
2 Park Avenue
9 New York, NY 10016
BY: SCOTT E. MOLLEN, ESQ.
10
RIDER, WEINER & FRANKEL PC
11 655 Little Britain Road
New Windsor, NY 12553
12 BY: BRUCE C. DUNN, SR.
13 HERRICK FEINSTEIN LLP
2 Penn Plaza
14 Newark, NJ 07105
BY: RACHEL C. ENGELSTEIN, ESQ.
15
GOLDBERG, RIMBERG & FRIEDLANDER PLLC
16 115 Broadway, 3rd Floor
New York, NY 10006
17 BY: ISRAEL GOLDBERG, ESQ.
18 THE GORDON LAW OFFICE
55 Main St.
19 PO Box 111
Goshen, NY 10924
20 BY: MARK J. GORDON, ESQ.
21
22 Neil Bostock, RPR-CM
23 Official Court Reporter
24
25
Neil Bostock, RPR-CM
Proceedings 3
1 THE COURT: The Court will come to order.
2 MR. FEERICK: Good morning, Donald Feerick of
3 Feerick, Lynch and MacCartney, appearing on behalf
4 of defendant Mesivta of KJ.
5 MR. NICHOL: Donald Nichol of Jacobowitz and
6 Gubits appearing on behalf of the proposed
7 intervenor Village of KJ.
8 MR. MAHON: Richard Mahon, Tarshis, Catania,
9 Liberth and Milligram, appearing on behalf of
10 plaintiffs Congregation Yetev Lev D'Satmar.
11 MR. KAHN: Gerald Kahn, Smith, Buss and Jacobs,
12 on behalf of defendants congregation Yetev Lev
13 D'Satmar Inc.
14 MR. BUSS: Good morning. Jeffrey Buss, Smith,
15 Buss and Jacobs, appearing on behalf of the
16 defendants, Congregation Yetev Lev D'Satmar Inc.
17 MR. PAVERMAN: Lester Paverman, appearing on
18 behalf of New York City Police Department.
19 MR. MOLLEN: Scott Mollen, attorney FOR
20 Congregation Yetev Lev D'Satmar, Jeno Kahan, Sol
21 Perlstein, Jacob Schoenfeld, and Solomon Sander.
22 MR. DUNN: Bruce Dunn, co-counsel to Herrick and
23 Feinstein.
24 MS. ENGELSTEIN: Rachel Engelstein, from
25 Herrick Feinstein.
Neil Bostock, RPR-CM
Proceedings 4
1 MR. GOLDBERG: Israel Goldberg, appearing on
2 behalf of the UTA defendants.
3 MR. GORDON: Mark Gordon, appearing on behalf
4 of UTA.
5 THE COURT: Good morning. Is that everybody?
6 Okay, first off, Mr. Nichol, you're pretty much done
7 here.
8 Your motion is dismissed in its entirety. You
9 can go. That was easy.
10 Now, as to the rest of you, is there any
11 request for new relief other than what was put in
12 the papers? Let me repeat that. Is there any other
13 request for other or different relief other than
14 what was in the papers? Anyone? Hearing none, this
15 is really all moot.
16 MR. MOLLEN: Your Honor, the one request, it's
17 not in the papers, from our side, is that we have a
18 concern, which I'm sure Your Honor will understand,
19 that we would like some way of dealing with their
20 emergency applications, rather than at a time, at
21 the end of the day, where we do not have time to
22 seek review. We're concerned going forward.
23 THE COURT: I see. Well, here is my -- this
24 would be my suggestion. It's just a suggestion.
25 All this stuff ought to be in the Appellate Division
Neil Bostock, RPR-CM
Proceedings 5
1 ab initio, to be honest with you, because gas being
2 3.50 a gallon, and you've got to drive to Brooklyn
3 anyway, and, you know, the case is going to wind up
4 there, however it winds up, and ultimately, shortly
5 I assume, and whether it ultimately ends all this, I
6 don't know, I would hope so, but I kind of doubt it.
7 So you all know I have got about two more days on
8 the bench, so I hope there are no emergencies
9 between now and Friday at five. I was called out to
10 sign these on a table at a delicatessen in the
11 Village of Montgomery the other night. I'd rather
12 be eating a sandwich, but I was willing to sign it,
13 so I just want to know, if there is no other request
14 for relief here, there is nothing really to discuss
15 concerning these pending applications, I mean, what
16 is done is now done.
17 The TRO, the one that was taken, there is
18 really no reason for any of this stuff to continue,
19 and I would deem these all either disposed of, or
20 dismissed as moot now. The funeral's been
21 conducted. I would hope that any disagreement or
22 violence was kept to a minimum, and whether it was
23 because of these orders or not I don't know, but
24 either way it's over. And there being no further
25 requests for relief here, I spoke to Justice
Neil Bostock, RPR-CM
Proceedings 6
1 Prudenti this morning in anticipation of this coming
2 on, and I will tell you what she told me; she said
3 that if any further clarification was needed
4 concerning any stay relief that the Appellate
5 Division granted, then this would not be the forum
6 to seek that clarification, expansion, or
7 limitation, and I agree with her, because who am I
8 to disagree with her, if there is a request for new
9 relief today, which is why I started this with that
10 preface. She says, well, just go through the normal
11 protocol, they will hear the request, and decide it
12 as they see fit, then it will ultimately end up on
13 Clerk Pelzer's desk, to be assigned to the duty
14 judge, and that is where we are. So, you know,
15 really, in the first instance, if it deals with
16 issues of use of property, short-term, long-term, I
17 think that goes to the issue of the parameters of
18 the stay, and the Appellate Division wants to hear
19 that from the outset; appropriately. So the only
20 reason you're all still here is because the judgment
21 hasn't been signed, otherwise there'd be no case
22 before me. I don't think the state prevents me from
23 signing. I think there is some objection to the
24 judgment as submitted. I may or may not get to sign
25 the judgment by Friday. So there will be
Neil Bostock, RPR-CM
Proceedings 7
1 technically a pending open case here in Orange, but
2 it will be someone else's going forward.
3 Mr. Buss, I see you wanted to say something.
4 MR. BUSS: Yes, Your Honor, I did. When Your
5 Honor inquired if there was request for additional
6 relief, we all remained silent because the request
7 for relief I don't believe is, by definition, moot.
8 My understanding is that the memorial services are
9 continuing, and that there are a significant number
10 of people that are anticipated that will be coming
11 to Brooklyn and probably to the Village and the
12 cemetery over the next 30 days, people from outside
13 the United States.
14 THE COURT: Well, the temporary relief as
15 concerns the operation of the cemetery, that all
16 remains. I mean, I don't think any of that was
17 disturbed, as I got copies from the Appellate
18 Division that were e-mailed to me last night, and in
19 terms of -- yes, the order to show cause brought by
20 the plaintiff really deals with the, I guess,
21 operation of the cemetery. What is the problem with
22 the memorial services in Monroe?
23 MR. MAHON: Your Honor -- Richard Mahon
24 speaking -- the only change, in our Order to Show
25 Cause, the only change was the Appellate Division
Neil Bostock, RPR-CM
Proceedings 8
1 struck some language and indicated that the TRO
2 language was pending the hearing of this motion, and
3 the motion itself had to do with the funeral
4 services, and the rights carried out or observed. I
5 think what Jeff was saying is that there is going to
6 be a period now of 30 days where people continue to
7 visit the cemetery, because the Grand Rebbe was
8 buried at five a.m. in the morning.
9 THE COURT: What is the problem with that?
10 MR. MAHON: Well --
11 THE COURT: Why is there an issue with that?
12 MR. MAHON: I just wanted to make sure, since
13 this is the hearing of the motion, that there is
14 some protection in place that there is no
15 interference and there is no obstruction during the
16 30 day period where people will continue to visit
17 the cemetery property.
18 THE COURT: Can you stipulate to something to
19 avoid all this?
20 MR. MOLLEN: My understanding is that the Burial
21 Society will continue to oversee any of the
22 activities at the cemetery, as it has in the past,
23 and I am not aware that there is any interference
24 that is even alleged.
25 THE COURT: But they're not a party to this
Neil Bostock, RPR-CM
Proceedings 9
1 proceeding. What I'm asking is, can everyone agree
2 that there will be no problem concerning the access
3 to the cemetery property for the purposes of paying
4 respects?
5 MR. MAHON: Yes.
6 THE COURT: I cannot direct the Burial Society
7 to do anything since they are not a party.
8 MR. DUNN: I think it would be our
9 understanding, since the Appellate stay referred all
10 matters back to before July 11th when the action was
11 started, back to the status quo, that nobody has a
12 problem accessing the cemetery, and we agree. We
13 agree with that.
14 MR. MAHON: But that has nothing to do with
15 this. This application was not mooted in the
16 Appellate Division. They didn't cross out the TRO
17 language.
18 THE COURT: That is fine. I can adjourn this
19 30 days, and the temporary relief that is in that
20 Order to Show Cause stays in effect. We can play
21 that game, if you want to do that, that's fine.
22 MR. BUSS: That deals with the cemetery but our
23 application also talks about other corporate
24 property, and I believe there is an open issue there
25 and, you know, perhaps we can discuss it, and
Neil Bostock, RPR-CM
Proceedings 10
1 stipulate to an understanding or perhaps there is a
2 need for an additional order but 550 Bedford Avenue
3 is corporate property. It's located in Brooklyn, it
4 was the residence of the Grand Rebbe but it's not a
5 personal residence, and people are coming to pay
6 respects to the family, to sit shiva, and there
7 needs to be an inclusive aspect of that. There is a
8 concern that people will be excluded from entering
9 or participating in those services, and the same
10 thing with the --
11 THE COURT: Whose residence is it?
12 MR. BUSS: The congregation's.
13 MR. DUNN: It was lived in by the Grand Rebbe
14 and his wife.
15 MR. MOLLEN: But the bottom line is that in the
16 Appellate Division -- I have argued this now twice
17 in the Appellate Division. On March 3, 2006 the
18 Appellate Division said the scope of its decision
19 related to the management of and the parties' use of
20 the subject congregations's main synagogue and any
21 other assets, including the cemetery property, so
22 therefore what Your Honor had said at the outset,
23 about if anybody needs any modification or any
24 additional relief, with respect to the congregation
25 property, the appropriate place is the Appellate
Neil Bostock, RPR-CM
Proceedings 11
1 Division, since they have ruled already.
2 THE COURT: That was Justice Prudenti's advise
3 to me. I mean clearly, with the stay in place, I am
4 not going to modify issues of use and access or
5 management of congregation assets. I just have no
6 right to do so. I'm stayed as well as everybody
7 else, which is why she said, if there is any
8 modification, expansion or clarification of the stay
9 because of the events of the last couple of days,
10 that are necessary, go to the Appellate Division.
11 It's their stay. Because anything I do here now,
12 you know, they can just undo, and rightfully so.
13 MR. BUSS: I do not want to remain silent
14 because there is a record being created. If we do
15 go to the Appellate Division it would be to seek
16 clarification about use and access to the main
17 synagogue, and to the corporate residence the Rebbe
18 had resided in, to ensure that people are not
19 arbitrarily excluded from entering or participating.
20 THE COURT: I understand that.
21 It would seem to me that relief is only being
22 sought between now and the date that it's ultimately
23 decided there.
24 MR. MOLLEN: I spent more than one hour in the
25 Appellate Division yesterday, and this is really a
Neil Bostock, RPR-CM
Proceedings 12
1 disingenuous argument to the court, because they
2 stood in the Appellate Division yesterday and they
3 explained their concerns, and they told the
4 Appellate Division what they thought might occur,
5 and the concern their clients had, and the Appellate
6 Division listened to their arguments and the court
7 ruled yesterday, so to come here and suggest that
8 this court rule, and then if this court doesn't,
9 perhaps they should go to the Appellate Division,
10 what happened yesterday?
11 MR. KAHN: What happened yesterday was, Your
12 Honor, that the TRO aspect of that Order to Show
13 Cause was not stricken, and it was apparent that
14 you, Your Honor, would rule on the motion this
15 morning, a mere sixteen hours later and that is what
16 happened. And your observation, Your Honor, that
17 this belongs in the Appellate Division with regard
18 to a determination as to what their order, their
19 stay order means, is appropriate. What we're doing
20 here is making a record to set straight what our
21 concerns are, and those certainly are valid.
22 My information is that word was sent to Rabbi
23 Arin that he would not be welcome there last night,
24 and so he didn't go down there to sit with his
25 mother on the night of his father's funeral. And so
Neil Bostock, RPR-CM
Proceedings 13
1 that is something that is of concern to us, and it
2 should be of concern to everybody.
3 THE COURT: Listen, whereever I stick my nose
4 in, I can assure you it's not going to be between a
5 son and his mother. There are some things beyond
6 the jurisdiction of this court.
7 MR. KAHN: I agree with that, Your Honor.
8 THE COURT: Let me just say again, at the risk
9 of repeating myself, the orders I signed were on an
10 emergency basis, you know, knowing full well that
11 within a very short few hours the need for them
12 would have evaporated. That was the thought when I
13 signed them. They're of very little long-standing
14 value and were not intended to have any
15 long-standing or permanent effect on the relative
16 rights of these parties as they now exist in the
17 Appellate Division. Any request for relief that
18 deals with the assets of Brooklyn Congregation under
19 the terms of the stay, in the short-term, or pending
20 a decision on the appeal, has to go there. I don't
21 see where I have any right to do otherwise, or
22 authority to do otherwise or discretion to do
23 otherwise, and I don't see any request for relief
24 here that is outside the ambit of what was argued in
25 the stay proceeding. It deals with issues of
Neil Bostock, RPR-CM
Proceedings 14
1 access, management, and control of assets, pending
2 the stay, or pending the decision on the appeal, and
3 I guess now the expedited appeal of my decision, so
4 to come here to say, we want access to a house that
5 is congregation property for the purposes of making
6 a shiva call, I think it's a modification of the
7 scope of the stay, and I discussed this with Justice
8 Prudenti this morning in anticipation of just
9 exactly what I thought would be some of the issues.
10 MR. GOLDBERG: If I may -- Israel Goldberg --
11 as I'm hearing the court and I was at the Appellate
12 Division yesterday, the status quo language relates
13 to the management and it's talking about the
14 financial management aspect of the congregation, not
15 the religious aspect. The shiva call, and the
16 ability of somebody to go up to the podium and lead
17 the services in the memory of his father is a
18 religious aspect. What Mr. Mollen is suggesting is
19 that Rabbi Arin, if he gets up to the podium to lead
20 the prayer service, will be excluded, and Mr. Kahan,
21 who is his client, has the authority under the
22 status quo to preclude him from conducting that
23 service. I don't think that was the intention of
24 any court in the issuance of a status quo, that
25 Mr. Kahan or anybody could preclude Rabbi Arin from
Neil Bostock, RPR-CM
Proceedings 15
1 getting up and conducting a prayer service
2 memorializing his father.
3 THE COURT: We're getting way off, you know.
4 MR. MOLLEN: This is exactly what the Appellate
5 Division was concerned with. You can't have chaos
6 at a pulpit inside a congregation. Someone has to
7 be in charge. Rabbi Arin has his congregation. He
8 also has synagogues in Brooklyn. This is our only
9 main synagogue. You cannot have people walking in,
10 with thousands of people coming in and out, then
11 have a dispute at the pulpit, and we've had a
12 history of violence and fights, so someone has to
13 make a decision. In this courtroom you are that
14 person. In the congregation somebody has to make
15 that decision.
16 MR. GOLDBERG: That is precisely what
17 Mr. Mollen argued could not be done, when he said
18 there was a need to have a separation between the
19 religious aspects and management of the corporate
20 entity, the secular aspects. Saying who can go up
21 to the podium, that is a religious matter. When
22 somebody is saying a kadish for his father and leads
23 a service for his father, that is a religious
24 matter. Mr. Mollen now says that Mr. Kahan is the
25 one who presides, under the status quo, over
Neil Bostock, RPR-CM
Proceedings 16
1 religious and secular matters as well. He has now
2 altered the terms and conditions of what everybody
3 understood that status quo to be and entered into a
4 new area and taken it somewhere else.
5 MR. MOLLEN: Except the Appellate Division
6 order specifically not only talked about ownership,
7 not only talked about financial factors, as
8 Mr. Goldberg indicated, but in the words of the
9 Appellate Division, it was the parties use of the
10 main synagogue and corporate assets, so to suggest
11 that, after losing in the Appellate Division, and
12 now coming to you and asking you to overrule the
13 Appellate Division, they can ask, but as Your Honor
14 indicated, it is not something that this court
15 should be doing.
16 THE COURT: I'm good, I'm not that good.
17 MR. GOLDBERG: Since there is a record it
18 should be clear that when Mr. Mollen -- Mr. Mollen
19 as I understand it has said the use encompasses both
20 the religious and secular aspects of management of
21 the congregation.
22 MR. MOLLEN: Use is plain language. The use of
23 the property. As Judge Rosenwasser pointed out, if
24 you want to clarify what the Appellate Division
25 said, go back to the Appellate Division. The
תוקן על ידי - עכטע_נייעס - 01/05/2006 3:14:23
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