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FILED: ROCKLAND COUNTY CLERK 10/12/2023 12:21 PM INDEX NO. 036020/2021
NYSCEF DOC. NO. 391 RECEIVED NYSCEF: 10/12/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ROCKLAND
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CONGREGATION ZICHRON BE’ER, by member
and duly authorized administrator,
CHAIM MOSKOVITS,
Plaintiff(s) ATTORNEY AFFIRMATION
IN SUPPORT OF
-against- APPLICATION FOR
PRELIMINARY INJUNCTION
MARTIN THALER, M.D., ELLIOT AMSEL,
IRA ZINSTEIN, ELI KARP, SAMUEL M. BREE,
YAAKOV ROSENBERG, HESHIE FRIED,
CHASKEL WEISSNER, CONGREGATION
ZICHRON MEIR, and other Defendants presently
unknown to Plaintiff at this time,
Defendant(s), Index No. 036020/2021
-against-
SOL MENCHE, IZZY HALBERTHAL, HENRY A.
LEISER, and DR. HIRSCH ZIEGLER
Additional Defendant(s) on the
Counterclaims
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CHRISTOPHER B. PAVLACKA, an attorney duly admitted to practice law before the
courts of this State, hereby affirms the following under penalties of perjury:
1. I am an attorney at Feerick Nugent MacCartney, PLLC, attorneys for Plaintiff in
the above captioned action, and, as such, I am fully familiar with the facts and circumstances
presented herein.
2. I respectfully submit this affirmation in support of Plaintiff’s Application for
Preliminary Injunction (the “Application”).
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Annexed Exhibits
3. Annexed hereto are exhibits submitted in support of the Congregation’s
Application. Each exhibit is a true and complete copy of what it purports to be.
4. Exhibit 1: Jan. 15, 2021 CZB Letter to Defendants, NYSCEF Doc. No. 8.
5. Exhibit 2: Oct. 29, 2021 Defendants’ Counsel Letter to Court, NYSCEF Doc.
No. 31.
6. Exhibit 3: Nov. 11, 2021 Affidavit of Defendant Fried in Opposition to Motion
for Preliminary Injunction, NYSCEF Doc. No. 48.
7. Exhibit 4: Nov. 25, 2022 Defendants’ Counsel Letter to Court, NYSCEF Doc.
No. 120.
8. Exhibit 5: CZB’s Application for Temporary Restraining Order and Preliminary
Injunction, NYSCEF Doc. Nos. 157–84.
9. Exhibit 6: Nov. 11, 2021 Affidavit of Defendant Fried in Support of Defendants’
Proposed Order to Show Cause, NYSCEF Doc. No. 234.
10. Exhibit 7: Sept. 1, 2023 Defendants’ Counsel Letter to Court, NYSCEF Doc.
No. 322.
11. Exhibit 8: CZB’s Renewed Application for Contempt, NYSCEF Doc. Nos. 326–
72.
12. Exhibit 9: Defendants’ Purported Election Notice.
13. Exhibit 10: Oct. 11, 2023 NYSCEF Docket Search for Congregation Zichron
Be’er.
14. Exhibit 11: Oct. 11, 2023 NYSCEF Docket Search for Congregation Zichron
Meir.
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SUMMARY
15. Six months after this Court granted CZB’s March 23, 2023 order to show cause
with preliminary injunction (the “March Application”) and required Defendants to provide CZB
with equal and unimpeded access to CZB’s shul (the “Property”), Defendants continue to
unlawfully masquerade as CZB, They create whatever delays are necessary to retain unlawful
control of CZB’s Property.
16. As the Court is now well-aware, a Beis Din restraining order against Meir
enjoined and ordered a total freeze on all unilateral actions in changing the form of the
Congregation in any way against Meir. Defendants ignored that restraining order. After CZB
successfully amended its Complaint, Defendants filed a filed a frivolous motion to dismiss to
stop the discovery process.
17. After Defendants used the delay they created to raid CZB’s bank account,
draining $38,000 that CZB needed to pay its rabbi and insurance for its real property, CZB
obtained a preliminary injunction (the “Order”) from this Court that granted CZB and its
congregants equal and unimpeded access to the Property. Defendants have failed to abide by any
portion of that Order.
18. Now, Defendants have posted a notice claiming that they intend to hold an
election, purportedly to choose a new board for CZB (the “Board”), on the evening of
October 14, 2023. As Defendants know, however, they are not CZB and have no right to hold
any election on behalf of CZB. Accordingly, this Court should grant CZB’s application for a
preliminary injunction requiring Defendants from conducting an election purportedly on behalf
of CZB.
19. CZB easily meets all three criteria for a preliminary injunction. First, CZB
demonstrates that it has a likelihood of success on the merits.
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20. As demonstrated in CZB’s March Application, CZB and Meir never legally
merged, which establishes that CZB will likely succeed on all of its claims against Defendants.
21. CZB also demonstrates irreparable harm. Defendants’ unlawful attempt to usurp
CZB’s power to call its own elections for its Board deprives CZB of rights granted to it by its
Bylaws (the “Bylaws”) and the Religious Corporations Law (“RCL”).
22. Finally, the balance of equities favors CZB, as Defendants face no prejudice if
they are not allowed to elect a Board for a congregation of which they are not members.
23. Accordingly, immediate injunctive relief is appropriate and this Court should
enjoin Defendants from purporting to conduct an election on behalf of CZB.
FACTS & PROCEDURAL POSTURE
24. I respectfully refer the Court to facts set forth in (1) the March Application,
including the Pavlacka Affirmation, Ex. 5, at 6–10, the Moskovits Affidavit (“Mar. Moskovits
Aff.”), id. at 143–50, and the Memorandum of Law in Support (the “March Application
Memorandum” or “Mar. App. Mem.”), id. at 191–207; and (2) CZB’s Renewed Application for
Contempt, including the Pavlacka Affirmation, Ex. 8, at 1–17, the Moskovits Affidavit (“Aug.
Moskovits Aff.”), id. at 1640–51, the Menche Affidavit, id. at 1702–08, and the Memorandum of
Law in Support, id. at 1709–27; alone with (3) this Affirmation, for a full recitation of the facts.
25. As set forth fully in the accompanying exhibits, after Meir approached CZB about
a potential merger on or about August 6, 2020, CZB and Meir agreed to a trial merger period.
March Moskovits Aff. ¶¶ 18–19.
26. The trial merger was unsuccessful, and on January 3, 2021, the Board voted to
terminate the trial merger. Id. ¶ 30.
27. On January 15, 2021, CZB sent Defendants Fried, Weissner, and Thaler a letter
confirming the termination of the trial merger. Ex. 1, at 2.
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28. CZB informed Defendants that “the continued participation of . . . Meir and their
participants during the prayer services of [CZB] is not to the satisfaction of the congregation and
not in its interest,” and, accordingly, “the temporary arrangement and trial period is terminated
and will not be extended.” Id. Moreover, Meir members, including Defendants, “are no longer
welcome to daven [i.e., worship] with [CZB] during our services.” Id. In other words, CZB
unequivocally ended the trial period and prohibited Meir members from further attending CZB
services.
29. Instead, Meir and the Individual Defendants unlawfully took control of CZB,
necessitating this lawsuit.
30. In opposition to CZB’s March Application and in support of their now-dismissed
Amended Motion to Dismiss, Defendants conspicuously changed their views of the facts.
Defendant Fried, who (along with Defendant Weissner) is the ringleader of Defendants’
unlawful conspiracy to take over CZB, previously affirmed under penalty of perjury that the two
congregations legally merged, Ex. 3; in the Amended Motion to Dismiss, again under penalty of
perjury, he disclaims the existence of a merger entirely, Ex. 6.
31. Either in November of 2021 or now, Defendant Fried perjured himself,
presumably to get a leg up in this case.
32. A table comparing the facts to which Defendant Fried attested under penalty of
perjury on November 18, 2021, Ex. 3, and to which Defendant Fried attested under penalty of
perjury on May 5, 2023, Ex. 6, demonstrate conclusively Defendants’ shifting, shady story:
11/18/21 Fried Allegation 11/18/21 5/3/23 Fried Allegation 5/3/23
Cite Cite
“[O]ur congregants [i.e., Meir’s ¶ 27 “Consequently, about a quarter of the ¶ 5
congregants] had become a party of members from CZM followed the
CZB.” Rabbi and relocated for their place of
worship at CZB.”
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11/18/21 Fried Allegation 11/18/21 5/3/23 Fried Allegation 5/3/23
Cite Cite
“CZM continues to operate ¶ 19
independently from CZB and consists
of the members who chose not to
relocate to CZB.”
“[A]ll of the former congregants of ¶ 32 “CZM continues to operate ¶ 19
. . . Meir (including me) because independently from CZB and consists
[sic] and remained congregants (i.e., of the members who chose not to
members) of CZB . . . .” relocate to CZB.”
“Meir had merged with CZB ¶ 29
and . . . Meir’s congregants had
simply become congregants of
CZB.”
September 9, 2020 Email Sent By ¶ 29
Defendant Fried: “We [i.e., CZB]
have merged with . . . Meir and the
shul is now under the leadership
of” Defendant Weissner.
Meir members became members of ¶ 29. “After the [Meir] members began ¶ 8
CZB because “Meir had merged attending CZB as their primary place
with CZB and . . . Meir’s of worship for the requisite time, they
congregants had become became members of CZB.”
congregants of CZB.”
33. On or about October 10, 2023, CZB discovered that Defendants sent a notice in
which they state they will purport to hold a meeting to elect CZB’s Board on the evening of
October 14, 2023. Ex. 12.
34. The notice is dated September 13, 2023. Because Defendants have refused to
abide by the Order and grant CZB and its congregants equal and unimpeded access to worship at
the Property, Defendants were unable to worship at the Property during the high holidays. Aug.
Moskovits Aff. ¶¶ 75–77.
35. Because of Defendants’ contemptuous disobedience, CZB members travelled
elsewhere, including overseas, and did not see the notice until on or about October 14, 2023.
36. Because Defendants are not CZB, and are not the Board, they have no right to call
an election for CZB’s Board. Ex. 5 (“Bylaws”), at 163 art. VI § 1.
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CONCLUSION
WHEREFORE, Plaintiff respectfully requests that the Court enter the Order to Show
Cause granting a preliminary injunction enjoining Defendants from conducting an election
purportedly on behalf of CZB, along with such other, further, and different relief as this Court
may deem just and proper under the circumstances.
Dated: South Nyack, New York
October 12, 2023
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Preview
FILED: ROCKLAND COUNTY CLERK 10/12/2023 12:21 PM INDEX NO. 036020/2021 NYSCEF DOC. NO. 391 RECEIVED NYSCEF: 10/12/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND ------------------------------------------------------------------X CONGREGATION ZICHRON BE’ER, by member and duly authorized administrator, CHAIM MOSKOVITS, Plaintiff(s) ATTORNEY AFFIRMATION IN SUPPORT OF -against- APPLICATION FOR PRELIMINARY INJUNCTION MARTIN THALER, M.D., ELLIOT AMSEL, IRA ZINSTEIN, ELI KARP, SAMUEL M. BREE, YAAKOV ROSENBERG, HESHIE FRIED, CHASKEL WEISSNER, CONGREGATION ZICHRON MEIR, and other Defendants presently unknown to Plaintiff at this time, Defendant(s), Index No. 036020/2021 -against- SOL MENCHE, IZZY HALBERTHAL, HENRY A. LEISER, and DR. HIRSCH ZIEGLER Additional Defendant(s) on the Counterclaims ------------------------------------------------------------------X CHRISTOPHER B. PAVLACKA, an attorney duly admitted to practice law before the courts of this State, hereby affirms the following under penalties of perjury: 1. I am an attorney at Feerick Nugent MacCartney, PLLC, attorneys for Plaintiff in the above captioned action, and, as such, I am fully familiar with the facts and circumstances presented herein. 2. I respectfully submit this affirmation in support of Plaintiff’s Application for Preliminary Injunction (the “Application”). 1 of 7 FILED: ROCKLAND COUNTY CLERK 10/12/2023 12:21 PM INDEX NO. 036020/2021 NYSCEF DOC. NO. 391 RECEIVED NYSCEF: 10/12/2023 Annexed Exhibits 3. Annexed hereto are exhibits submitted in support of the Congregation’s Application. Each exhibit is a true and complete copy of what it purports to be. 4. Exhibit 1: Jan. 15, 2021 CZB Letter to Defendants, NYSCEF Doc. No. 8. 5. Exhibit 2: Oct. 29, 2021 Defendants’ Counsel Letter to Court, NYSCEF Doc. No. 31. 6. Exhibit 3: Nov. 11, 2021 Affidavit of Defendant Fried in Opposition to Motion for Preliminary Injunction, NYSCEF Doc. No. 48. 7. Exhibit 4: Nov. 25, 2022 Defendants’ Counsel Letter to Court, NYSCEF Doc. No. 120. 8. Exhibit 5: CZB’s Application for Temporary Restraining Order and Preliminary Injunction, NYSCEF Doc. Nos. 157–84. 9. Exhibit 6: Nov. 11, 2021 Affidavit of Defendant Fried in Support of Defendants’ Proposed Order to Show Cause, NYSCEF Doc. No. 234. 10. Exhibit 7: Sept. 1, 2023 Defendants’ Counsel Letter to Court, NYSCEF Doc. No. 322. 11. Exhibit 8: CZB’s Renewed Application for Contempt, NYSCEF Doc. Nos. 326– 72. 12. Exhibit 9: Defendants’ Purported Election Notice. 13. Exhibit 10: Oct. 11, 2023 NYSCEF Docket Search for Congregation Zichron Be’er. 14. Exhibit 11: Oct. 11, 2023 NYSCEF Docket Search for Congregation Zichron Meir. 2 2 of 7 FILED: ROCKLAND COUNTY CLERK 10/12/2023 12:21 PM INDEX NO. 036020/2021 NYSCEF DOC. NO. 391 RECEIVED NYSCEF: 10/12/2023 SUMMARY 15. Six months after this Court granted CZB’s March 23, 2023 order to show cause with preliminary injunction (the “March Application”) and required Defendants to provide CZB with equal and unimpeded access to CZB’s shul (the “Property”), Defendants continue to unlawfully masquerade as CZB, They create whatever delays are necessary to retain unlawful control of CZB’s Property. 16. As the Court is now well-aware, a Beis Din restraining order against Meir enjoined and ordered a total freeze on all unilateral actions in changing the form of the Congregation in any way against Meir. Defendants ignored that restraining order. After CZB successfully amended its Complaint, Defendants filed a filed a frivolous motion to dismiss to stop the discovery process. 17. After Defendants used the delay they created to raid CZB’s bank account, draining $38,000 that CZB needed to pay its rabbi and insurance for its real property, CZB obtained a preliminary injunction (the “Order”) from this Court that granted CZB and its congregants equal and unimpeded access to the Property. Defendants have failed to abide by any portion of that Order. 18. Now, Defendants have posted a notice claiming that they intend to hold an election, purportedly to choose a new board for CZB (the “Board”), on the evening of October 14, 2023. As Defendants know, however, they are not CZB and have no right to hold any election on behalf of CZB. Accordingly, this Court should grant CZB’s application for a preliminary injunction requiring Defendants from conducting an election purportedly on behalf of CZB. 19. CZB easily meets all three criteria for a preliminary injunction. First, CZB demonstrates that it has a likelihood of success on the merits. 3 3 of 7 FILED: ROCKLAND COUNTY CLERK 10/12/2023 12:21 PM INDEX NO. 036020/2021 NYSCEF DOC. NO. 391 RECEIVED NYSCEF: 10/12/2023 20. As demonstrated in CZB’s March Application, CZB and Meir never legally merged, which establishes that CZB will likely succeed on all of its claims against Defendants. 21. CZB also demonstrates irreparable harm. Defendants’ unlawful attempt to usurp CZB’s power to call its own elections for its Board deprives CZB of rights granted to it by its Bylaws (the “Bylaws”) and the Religious Corporations Law (“RCL”). 22. Finally, the balance of equities favors CZB, as Defendants face no prejudice if they are not allowed to elect a Board for a congregation of which they are not members. 23. Accordingly, immediate injunctive relief is appropriate and this Court should enjoin Defendants from purporting to conduct an election on behalf of CZB. FACTS & PROCEDURAL POSTURE 24. I respectfully refer the Court to facts set forth in (1) the March Application, including the Pavlacka Affirmation, Ex. 5, at 6–10, the Moskovits Affidavit (“Mar. Moskovits Aff.”), id. at 143–50, and the Memorandum of Law in Support (the “March Application Memorandum” or “Mar. App. Mem.”), id. at 191–207; and (2) CZB’s Renewed Application for Contempt, including the Pavlacka Affirmation, Ex. 8, at 1–17, the Moskovits Affidavit (“Aug. Moskovits Aff.”), id. at 1640–51, the Menche Affidavit, id. at 1702–08, and the Memorandum of Law in Support, id. at 1709–27; alone with (3) this Affirmation, for a full recitation of the facts. 25. As set forth fully in the accompanying exhibits, after Meir approached CZB about a potential merger on or about August 6, 2020, CZB and Meir agreed to a trial merger period. March Moskovits Aff. ¶¶ 18–19. 26. The trial merger was unsuccessful, and on January 3, 2021, the Board voted to terminate the trial merger. Id. ¶ 30. 27. On January 15, 2021, CZB sent Defendants Fried, Weissner, and Thaler a letter confirming the termination of the trial merger. Ex. 1, at 2. 4 4 of 7 FILED: ROCKLAND COUNTY CLERK 10/12/2023 12:21 PM INDEX NO. 036020/2021 NYSCEF DOC. NO. 391 RECEIVED NYSCEF: 10/12/2023 28. CZB informed Defendants that “the continued participation of . . . Meir and their participants during the prayer services of [CZB] is not to the satisfaction of the congregation and not in its interest,” and, accordingly, “the temporary arrangement and trial period is terminated and will not be extended.” Id. Moreover, Meir members, including Defendants, “are no longer welcome to daven [i.e., worship] with [CZB] during our services.” Id. In other words, CZB unequivocally ended the trial period and prohibited Meir members from further attending CZB services. 29. Instead, Meir and the Individual Defendants unlawfully took control of CZB, necessitating this lawsuit. 30. In opposition to CZB’s March Application and in support of their now-dismissed Amended Motion to Dismiss, Defendants conspicuously changed their views of the facts. Defendant Fried, who (along with Defendant Weissner) is the ringleader of Defendants’ unlawful conspiracy to take over CZB, previously affirmed under penalty of perjury that the two congregations legally merged, Ex. 3; in the Amended Motion to Dismiss, again under penalty of perjury, he disclaims the existence of a merger entirely, Ex. 6. 31. Either in November of 2021 or now, Defendant Fried perjured himself, presumably to get a leg up in this case. 32. A table comparing the facts to which Defendant Fried attested under penalty of perjury on November 18, 2021, Ex. 3, and to which Defendant Fried attested under penalty of perjury on May 5, 2023, Ex. 6, demonstrate conclusively Defendants’ shifting, shady story: 11/18/21 Fried Allegation 11/18/21 5/3/23 Fried Allegation 5/3/23 Cite Cite “[O]ur congregants [i.e., Meir’s ¶ 27 “Consequently, about a quarter of the ¶ 5 congregants] had become a party of members from CZM followed the CZB.” Rabbi and relocated for their place of worship at CZB.” 5 5 of 7 FILED: ROCKLAND COUNTY CLERK 10/12/2023 12:21 PM INDEX NO. 036020/2021 NYSCEF DOC. NO. 391 RECEIVED NYSCEF: 10/12/2023 11/18/21 Fried Allegation 11/18/21 5/3/23 Fried Allegation 5/3/23 Cite Cite “CZM continues to operate ¶ 19 independently from CZB and consists of the members who chose not to relocate to CZB.” “[A]ll of the former congregants of ¶ 32 “CZM continues to operate ¶ 19 . . . Meir (including me) because independently from CZB and consists [sic] and remained congregants (i.e., of the members who chose not to members) of CZB . . . .” relocate to CZB.” “Meir had merged with CZB ¶ 29 and . . . Meir’s congregants had simply become congregants of CZB.” September 9, 2020 Email Sent By ¶ 29 Defendant Fried: “We [i.e., CZB] have merged with . . . Meir and the shul is now under the leadership of” Defendant Weissner. Meir members became members of ¶ 29. “After the [Meir] members began ¶ 8 CZB because “Meir had merged attending CZB as their primary place with CZB and . . . Meir’s of worship for the requisite time, they congregants had become became members of CZB.” congregants of CZB.” 33. On or about October 10, 2023, CZB discovered that Defendants sent a notice in which they state they will purport to hold a meeting to elect CZB’s Board on the evening of October 14, 2023. Ex. 12. 34. The notice is dated September 13, 2023. Because Defendants have refused to abide by the Order and grant CZB and its congregants equal and unimpeded access to worship at the Property, Defendants were unable to worship at the Property during the high holidays. Aug. Moskovits Aff. ¶¶ 75–77. 35. Because of Defendants’ contemptuous disobedience, CZB members travelled elsewhere, including overseas, and did not see the notice until on or about October 14, 2023. 36. Because Defendants are not CZB, and are not the Board, they have no right to call an election for CZB’s Board. Ex. 5 (“Bylaws”), at 163 art. VI § 1. 6 6 of 7 FILED: ROCKLAND COUNTY CLERK 10/12/2023 12:21 PM INDEX NO. 036020/2021 NYSCEF DOC. NO. 391 RECEIVED NYSCEF: 10/12/2023 CONCLUSION WHEREFORE, Plaintiff respectfully requests that the Court enter the Order to Show Cause granting a preliminary injunction enjoining Defendants from conducting an election purportedly on behalf of CZB, along with such other, further, and different relief as this Court may deem just and proper under the circumstances. Dated: South Nyack, New York October 12, 2023 7 7 of 7