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FILED: ROCKLAND COUNTY CLERK 11/21/2023 12:41 PM INDEX NO. 036020/2021
NYSCEF DOC. NO. 607 RECEIVED NYSCEF: 11/21/2023
November 21, 2023
Honorable Christie D’Alessio
Rockland County Supreme Court
1 South Main Street
New City, New York
Re: Moskovits v. Thaler, Index. No. 036020/2021
Dear Judge D’Alessio:
I am writing to you regarding a few housekeeping and litigation management matters that
we would respectfully request the Court address.
Discovery Deadline and Motion for Summary Judgment Response Adjournment
First, there was a deadline issued by this Court for Discovery and Depositions set for
November 17, 2023. On November 10, 2023, Plaintiffs’ and Defendants’ counsel entered into a
consent letter to extend discovery for 90 days (attached hereto). On the same day that the consent
letter was prepared and about to be submitted to this Court, Plaintiffs’ counsel filed its Motion for
Summary Judgment. Thus, Plaintiffs’ counsel agrees that there should be additional discovery of
90 days while undercutting this by submitting its Motion.
In light of this consent, we request that this Court adjourn the Motion for Summary
Judgment so that a response is not required until after this period. Under CPLR 3212 (f), summary
judgment may be denied as premature where the opposing party has not yet had adequate
opportunity to conduct discovery. It is necessary for the party opposing summary judgment to
demonstrate how further discovery might reveal the existence of evidence within the exclusive
knowledge of the movant that would warrant denial of the motion (see Green v Covington, 299
AD2d 636, 637 [3d Dept 2002]; Landes v Sullivan, 235 AD2d 657, 658 [3d Dept 1997]; Halsey v
County of Madison, 215 AD2d 824, 824-825 [3d Dept 1995]).
In this instance, there are specific documents that Mr. Moskovits and the other Third-Party
Defendants have within their control necessary to prove the issues surrounding any alleged merger
and a trial period. Correspondence between these individuals that discuss hiring Rabbi Weisner in
August of 2020 can demonstrate that no trial period or legal merger was ever discussed.
Additionally, in the interests of judicial economy, it is imperative that these issues be
addressed, and discovery be conducted related to the Third-Party Complaint. All of these matters
are inextricably intertwined and having to repeat the procedure after the Motion for Summary
Judgment wastes time and resources of the Court.
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Representation of Third-Party Defendants Has Not Been Finalized
Additionally, Mr. Feerick continues to indicate that he will be retained by the Third-Party
Defendants. Indeed, when sending Mr. Menche, a deposition notice, via email, he also responded
that his attorney should be involved and cc’d Mr. Feerick. However, no notice of appearance or
official statement of representation has been made. I intend to follow the ethical guidelines about
represented parties but find it difficult to do so if I am unsure as to whether the parties are actually
represented by Mr. Feerick. We request that Mr. Feerick so indicate by his filing a Notice of
Appearance or otherwise indicating his retention.
Reply on Motion #9
Finally, we would ask this Court to permit Defendants to file a brief sur-reply on the motion
for a preliminary injunction regarding elections. Pursuant to binding Appellate Division, First and
Second Department precedents, supplemental affirmations and/or sur-reply’s are permissible upon
leave of the court with good cause shown, particularly where (1) the movant submits evidence for
the first time in its reply papers or (2) “where the offering party’s adversaries responded to the
newly presented claim or evidence [citations omitted].” Kennelly v. Mobius Realty Holdings LLC,
33 A.D.3d 380, 381-382, 822 N.Y.S.2d 264, 266 (1st Dep’t 2006)
Plaintiff exceeded the scope of their initial papers and Defendant’s response within their
reply filed on November 17, 2023. Plaintiff provided new arguments, including ad hominin attacks
of the Defendants that were not raised in previous papers. Plaintiff goes so far as to cite Tanakh,
(also referred to as the Old Testament of the Bible) in attempt to distract from the issue of prior
restraint and other arguments thoughtfully laid out by Defendants. Defendants also attach hereto a
case relevant to this Motion.
Therefore, we request that a sur-reply of three pages, exclusive of caption and signature,
be permitted.
We are available for argument if the Court wishes.
Respectfully,
/ s/ Leo Fox_______________________
Leo Fox
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November 13 , 2023
Honorable Christie D' Alessio
Rockland County Supreme Court
1 South Main Street
New City, New York
Re: Congregation Zichron Be ' er v. Thaler, Index. No. 036020/2021
Dear Judge D' Alessio:
As Your Honor is aware, Defendants have now served a Counterclaim and Third-Party
Complaint on Plaintiff and Third-Party Defendants . Counsel for the Plaintiff has indicated that
they will also be representing the Third-Party Defendants and that they anticipate submitting a
Motion to Dismiss in response to Defendants ' claims. Now that more parties are involved there
will be a need to exchange additional discovery demands.
In light of the foregoing, the undersigned both stipulate and agree that the deadline for discovery
and depositions should be rescheduled from November 17, 2023 , a date set forth by the Court in
the Order denying the Motion to Dismiss, by at least 90 days so that all parties can properly
provide notices, exchange documents, conduct depositions, amplify the pleadings, and that any
pending pre-discovery motions can be adjudicated .
In the meantime, Plaintiff and Defendants intend to continue the discovery process in good faith
and without unnecessary delay .
Respectfully submitted,
Leo Fox
630 Third Ave., 18 th Floor
New York, NY 10017
Tel: 212-867-9595
leo@leofoxlaw.com
c~
Feerick Nugent Maccartney PLLC
96 Broadway
South Nyack, New York 10960
(845) 353-2000
cpavlacka@fnmlawfirm.com
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11/20/23, 6:31 PM No. 142: Matter of Congregation Yetev Lev D'Satmar, Inc. v Kahana
NYSCEF DOC. NO. 607 RECEIVED NYSCEF: 11/21/2023
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LII > Archival content > New York Court of Appeals
NEW YORK COURT OF APPEALS
2007 NY Int. 153
This opinion is uncorrected and subject to revision
before publication in the Official Reports.
2007 NY Slip Op 09068
Decided on November 20, 2007
No. 142
In the Matter of Congregation Yetev
Lev D'Satmar, Inc., et al., Appellants,
v
Jacob (Jeno)(Yaakov) Kahana, et al.,
Respondents.
Congregation Yetev Lev D'Satmar,
Inc., et al., Appellants,
v
26 Adar N.B. Corp., et al.,
Respondents.
Gerald A. Novack, for appellants.
Scott E. Mollen, for respondents.
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PIGOTT, J.
The central issue in this appeal is whether resolution of an election
controversy between two rival factions of a religious congregation can
be achieved through the application of neutral principles of law without
judicial intrusion into matters of religious doctrine. Like the trial court
and Appellate Division, we conclude that it cannot.
Congregation Yetev Lev D'Satmar, Inc. is a community of Orthodox
Judaism known as Satmar Hasidism located in Brooklyn. The
Congregation was founded in 1948 by Grand Rabbi (also referred to as
"Rebbe") Joel Teitelbaum and formally incorporated in New York. In
1952, bylaws were promulgated setting forth the purpose of the
Congregation, the functions of the Grand Rabbi, as well as issues
involving membership in the community. The bylaws provided for a
board of directors and officers to preside over the Congregation and,
among other things, assure compliance with the rules of the
Congregation.
In 1974, the Grand Rabbi expanded the Satmar community by
establishing a new congregation in Monroe, New York. In 1981, that
congregation, named for him, was incorporated in New York as
Congregation Yetev Lev D'Satmar of Kiryas Joel, Inc.
In 1979, the Grand Rabbi died and was succeeded by his nephew,
Moses Teitelbaum. Moses Teitelbaum, now deceased, appointed his
elder son, Aaron Teitelbaum, Chief Rabbi of the Monroe Congregation
and his younger son, Zalman Leib Teitelbaum, Chief Rabbi of the
Brooklyn Congregation. Some time thereafter, a bitter feud erupted
between Rabbi Aaron's supporters and Rabbi Zalman's supporters
1
pertaining to who should succeed as Grand Rabbi . As a result, the
Brooklyn Congregation split into two rival factions.
Each faction conducted a separate election of the board of directors
and officers for the Brooklyn Congregation. The first election, which
took place on May 12-13, 2001, resulted in the election of petitioners,
with Berl Friedman as president. The second, which took place the
same day and is claimed to have been certified by the Grand Rabbi
Moses Teitelbaum himself on May 24, 2001, resulted in the election of
respondents, with Jacob Kahan as president.
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Petitioners brought the instant proceeding pursuant to Not-For-Profit
Corporation Law § 618 seeking an order declaring that the
respondents' election is null and void and directing that Congregation
property be transferred to Berl Friedman. Petitioners claimed that their
election resulted in certain members of the Congregation becoming
duly elected officers, including Berl Friedman; that respondents illegally
attempted to "remove" these duly elected officers and expel Berl
Friedman from membership; and that respondents' election violated
the bylaws and/or the Religious Corporations Law. Respondents
challenged the jurisdiction of Supreme Court, arguing that the it should
refrain from interfering in the internal affairs of the Congregation; and
further contended that their election was proper, legal and in
accordance with the Congregation's prior practice and bylaws.
Respondents disputed petitioners' election, arguing it was a sham
election for several reasons, including that Berl Friedman had been
expelled from the Congregation by the Grand Rabbi.
Supreme Court declined to make a determination as to the validity of
respondent's election, holding that it could not decide the election
dispute through the application of neutral principles of law because the
resolution of the issues would require it to apply ecclesiastical doctrine
in violation of the First Amendment . The Appellate Division, with one
Justice dissenting, agreed with Supreme Court that "resolution of the
parties' dispute would necessarily involve impermissible inquiries into
religious doctrine and the Congregation's membership requirements"
(31 AD3d 541, 543 [2d Dept 2006]). The Appellate Division
subsequently granted leave and certified the following question to us:
"Was the decision and order of this Court dated July 11, 2006 properly
made?" We now affirm.
The First Amendment forbids civil courts from interfering in or
determining religious disputes, because there is substantial danger that
the state will become entangled in essentially religious controversies or
intervene on behalf of groups espousing particular doctrines or beliefs
(see Serbian Orthodox Diocese v Milivojevich, 426 US 696 [1976]).
Civil disputes involving religious parties or institutions may be
adjudicated without offending the First Amendment as long as neutral
principles of law are the basis for their resolution (see First Presbyt.
Church v United Presbyt. Church, 62 NY2d 110 [1984]; Park Slope
Jewish Ctr. v Congregation B'nai Jacob, 90 NY2d 517, 521 [1997],
citing Jones v Wolf, 933 US 595 ). The "neutral principles of law"
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approach requires the court to apply objective, well-established
principles of secular law to the issues (First Presbyt. Church, 62 NY2d
at 118). In doing so, courts may rely upon internal documents, such as
a congregation's bylaws, but only if those documents do not require
interpretation of ecclesiastical doctrine. Thus, judicial involvement is
permitted when the case can be "decided solely upon the application of
neutral principles of . . . law, without reference to any religious
principle" (Avitzur v Avitzur, 58 NY2d 108, 115 [1983]).
Petitioners argue that this case involves nothing more than notice,
quorum or other technical challenges to the respondents' election. At
first blush, the arguments raised by the petitioners in their appellate
2
brief to this Court , do not appear to implicate ecclesiastical issues.
Indeed, courts have properly adjudicated disputes involving religious
elections on neutral principles of law. For example, in Rector,
Churchwardens & Vestrymen of Church of the Holy Trinity v Melish 3
NY2d 476 [1957]), after determining that the quorum rules of the
Religious Corporations Law, by their terms, did not apply to an
Episcopalian church's election of a rector, we held that two meetings
held by the church complied with applicable quorum requirements of a
church canon. The Appellate Divisions have resolved similar disputes
(see Matter of Kaminsky (251 AD 132 [4th Dept 1937], aff'd 77 NY 524
[1938]); Sillah v Tanvir (18 AD3d 223 [1st Dept 2005], lv denied 5
NY3d 711 [2005]); but see Mays v Burrell, 124 AD2d 714 [2d Dept
1986]). These cases were resolved under neutral principles of law
pursuant to the court's power to adjudicate under the Religious
Corporations Law and/or the Not-For-Profit Law (see e.g. Not-For-Profit
Corporation Law §§ 618, 706). In each of those cases, the courts
resolved the election dispute by applying those laws as well as the
bylaws or rules of the religious organization.
Here, however, as both Supreme Court and the Appellate Division
recognized, the dispute between the two factions involves issues
beyond mere notice and quorum challenges, such as whether Berl
Friedman had been removed or expelled from the Congregation.
Respondents claim that Jacob Kahan succeeded Berl Friedman as
president and thus Jacob Kahan had the authority to conduct
respondents' election. Specifically, respondents claim that Grand Rabbi
Moses Teitelbaum denounced Berl Friedman and another member of his
faction for rebelling against the authority of the Grand Rabbi and the
Grand Rabbi's son, resulting in their expulsion from the Congregation.
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Berl Friedman denies being removed from the Congregation and further
argues that an elected corporate officer cannot be removed by a
spiritual authority such as the Grand Rabbi, which respondents refute.
It is well settled that membership issues such as those that are at the
core of this case are an ecclesiastical matter (Park Slope Jewish Ctr. v
Stern, 128 AD2d 847 [2d Dept 1987], lv dismissed 70 NY2d 746
[1987]; Kissel v Russian Orthodox Greek Catholic Holy Trinity Church of
Yonkers, 103 AD2d 830 [2d Dept 1984]). A decision as to whether or
not a member is in good standing is binding on the courts when
examining the standards of membership requires intrusion into
constitutionally protected ecclesiastical matters. Although courts
generally have jurisdiction to determine whether a congregation has
adhered to its own bylaws in making determinations as to the
membership status of individual congregants, here, the Congregation's
bylaws condition membership on religious criteria, including whether a
congregant follows the "ways of the Torah." Whether Berl Friedman
was expelled from membership of the Congregation inevitably calls into
question religious issues beyond any membership criteria found in the
Congregation's bylaws (Park Slope Jewish Ctr.,128 AD2d 847; Kissel,
103 AD2d 830).
Contrary to petitioners' position, Berl Friedman's religious standing
within the Congregation is essential to resolution of this election
dispute. Petitioners ask that this Court not only to determine the
validity of the respondents' election but also to recognize that
petitioners, including Berl Friedman, are elected officers and the
authorized governing body of the Congregation. With such membership
issues at the center of this election dispute, matters of an ecclesiastical
nature are clearly at issue. These particular issues must be resolved by
the members of the Congregation, and cannot be determined by this
Court.
Accordingly, the Appellate Division order should be affirmed with costs
and the certified question not answered upon the ground that it is
unnecessary.
In the Matter of Congregation Yetev Lev D'Satmar, Inc. v Jacob (Jeno)
(Yaakov) Kahan, et al.
No. 142
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SMITH, J.(dissenting) :
The majority is of course correct in saying that courts of our state, like
other state and federal courts, are forbidden from deciding religious
questions. This rule, as applied to disputes over ecclesiastical property,
is usually a rule of deference: Civil courts defer to the decisions of
religious tribunals, unless the case can be decided on the basis of
neutral (i.e., non-religious) principles. But in cases like this one, there
is no religious tribunal to defer to, and the rule becomes one of
justiciability; the majority here does not accept the decision of a
religious tribunal as binding, but simply refuses to decide the case at
all. Such a refusal is a drastic measure, because when a case is non-
justiciable it means the wrong committed, if there is one, cannot be
remedied anywhere. Whichever side happens to be the defendant in
the case will win.
I believe that courts should hold disputes between religious factions to
be non-justiciable only as a last resort, where it is absolutely clear that
no neutral principle can decide the case. I do not think that is true
here, and I therefore dissent from the majority's finding of non-
justiciability and would reach the merits. On the merits, I would reject
the claim that Berl Friedman and his allies are the duly elected officers
of the Brooklyn Congregation, and would remit the case for Supreme
Court to decide whether Jenoe Kahan and his allies were validly
elected, or whether there must be a new election.
I
The rule that civil courts may not decide ecclesiastical questions has its
origin in Watson v Jones (13 Wall [80 US] 679 [1872]), in which the
United States Supreme Court decided that the right to use property
claimed by contesting factions of a local Presbyterian church must be
resolved not by the courts, but by the highest decision-making
authority of the Presbyterian Church in the United States. Though the
decision was not based on the Constitution, it was based on
fundamental principles of religious freedom and state neutrality toward
religion:
"In this country the full and free right to entertain any
religious belief, to practice any religious principle, and to teach
any religious doctrine which does not violate the laws of
morality and property, and which does not infringe personal
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rights, is conceded to all. The law knows no heresy, and is
committed to the support of no dogma, the establishment of
no sect."
(Id. at 728).
Watson made clear that its holding applied only to hierarchical
organizations like the Presbyterian Church — "large and influential
bodies," each having "a body of constitutional and ecclesiastical law of
its own" (id. at 729). The Court said:
"[W]henever the questions of discipline, or of faith, or
ecclesiastical rule, custom or law have been decided by the
highest of these church judicatories to which the matter has
been carried, the legal tribunals must accept such decisions as
final, and as binding on them, in their application to the case
before them."
(Id. at 727).
The Watson Court distinguished the case of a hierarchical church from
the case of "a church of a strictly congregational or independent
organization, governed solely within itself" (id. at 724). For
congregational churches, Watson did not pronounce a rule of
deference, but said: "where there is a schism which leads to a
separation into distinct and conflicting bodies, the rights of such bodies
to the use of the property must be determined by the ordinary
principles which govern voluntary associations" (id. at 725). In
applying to congregational churches the rules governing voluntary
associations, there could be "no inquiry into the existing religious
opinions of those who comprise the legal or regular organization" (id.
at 725).
The rule of Watson was recognized in the 20th century as having a
constitutional basis, and was followed in a series of Supreme Court
cases, among them Kedroff v Saint Nicholas Cathedral of Russian
Orthodox Church of North America 344 US 94 [1952]); Presbyterian
Church in U.S. v Mary Elizabeth Blue Hull Memorial Presbyterian Church
393 US 440 [1969]); and Serbian Eastern Orthodox Diocese for United
States and Canada v Milivojevich 426 US 696 [1976]). These cases
seemed to stand for the proposition that a civil court must always defer
to the authoritative decision-making bodies of hierarchical churches,
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but in Jones v Wolf 443 US 595 [1979]), the Court held that states
could decide religious property disputes in civil courts if they did so
according to "neutral principles of law" (id. at 602-603). The Court in
Jones v Wolf restated the constitutional rule established by several of
its earlier cases: "[T]he First Amendment prohibits civil courts from
resolving church property disputes on the basis of religious doctrine
and practice" (id. at 602).
In First Presbyt. Church of Schenectady v United Presbyt. Church in
U.S. of Am. 62 NY2d 110, 121 [1984]), we adopted the "neutral
principles" approach, describing it as "preferable to deference." We also
held in First Presbyterian, however, that we were "constitutionally
foreclosed" from resolving doctrinal issues, including issues of church
government (id. at 124).
All the cases cited so far in this opinion involved hierarchical churches.
They established that civil courts may decide church property disputes
based on "neutral principles" where they can, but must defer to
ecclesiastical authorities when neutral principles will not resolve the
case. The problem of how to deal with disputes within congregational
religious bodies is harder, and has received less attention. Deference
often is not possible, for there is no tribunal of the church hierarchy to
defer to. Neutral principles seem the only available option — but what
if, as sometimes happens, neutral principles cannot resolve the case?
The Supreme Court has said that there are cases in which adjudicating
a property dispute "would require the civil court to resolve a religious
controversy" (Jones v Wolf, 443 US at 604)— but it said in the same
case that civil courts may not do so.
When the dilemma is insoluble, the only remedy is the one the majority
adopts here — to dismiss the case as non-justiciable. This is not the
first case in which it has been done (see e.g. Congregation Beth
Yitzhok v Briskman, 566 F Supp 555, 557-558 [ED NY 1983]), though I
think it is the first in which we have done it, and there is no case in
which the United States Supreme Court has endorsed that remedy. It is
a remedy that should if possible be avoided.
Non-justiciability implies that the party having the burden of proof
loses; thus it is ordinarily a "defendant wins" rule. It will inevitably
produce arbitrary and inconsistent, and sometimes perverse or unjust,
results. Here, for example, the Kahan faction is the defendant, and
therefore wins, because the status quo is in its favor — it is in de facto
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control of the Brooklyn Congregation. But if members of the Friedman
faction had somehow succeeded in occupying the Congregation's
offices, and the Kahan faction sued to evict them, presumably the
majority would say the case is still non-justiciable and the Friedman
faction, being the defendant, would win. Or suppose both factions
claimed the corporation's bank account and the bank, not knowing
whose checks to honor, brought an interpleader action. Would the
majority say that the interpleader action is non-justiciable — leaving
the bank account frozen indefinitely?
It is to avoid problems like these, I think, that courts try hard to find,
and usually succeed in finding, neutral principles to resolve disputes
where deference is not an option. In Park Slope Jewish Ctr. v
Congregation B'nai Jacob 90 NY2d 517 [1997]), we held that a dispute
arising from a schism within a congregation could be resolved by
neutral principles, reversing a ruling that it was non-justiciable. Lower
New York courts have removed the management of religious bodies,
and ordered new elections under court supervision, without deciding
any religious issue (see e.g. St. Matthew Church of Christ v Creech,
196 Misc 2d 843 [Sup Ct 2003]). And in a copyright infringement
dispute involving a prayer book, where the defendant argued that the
court lacked jurisdiction because the case turned on the validity of a
rabbinical court ruling, the Court of Appeals for the Second Circuit
concluded that, while defendant's argument had "some force," it must
be rejected because of the harm that would flow from a holding of non-
justiciability: "we cannot decline jurisdiction on this basis; to do so
would permit any party to contend that religious doctrine that it deems
authoritative undermines the authority of its adversary's position"
(Merkos L'Inyonei Chinuch, Inc. v Otsar Sifrei Lubavitch, Inc., 312 F3d
94, 100 [2d Cir 2002]).
For similar reasons, I approach this case with a strong reluctance to
decline jurisdiction, and I conclude that the case can be decided on
neutral principles.
II
Before turning to neutral principles, however, I consider the possibility
that deference is an option in this case — that the approach of Watson
v Jones and later cases involving hierarchical religious bodies can be
applied here. It can be argued — indeed, the Kahan faction seems to
argue, and Supreme Court may have found — that the Brooklyn
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Congregation, however unlike the Catholic or Presbyterian church in its
structure, is hierarchical in the relevant sense, because there is a single
decision-making body whose authority all adherents have agreed to
accept: the Grand Rabbi. The Kahan faction submits a document, which
it says was signed by the Grand Rabbi, certifying that the Kahan faction
nominees were validly elected. This, the Kahan faction says, ends the
matter. I do not think the case can be resolved so easily.
First, as I read the parties' contentions, the Friedman faction disputes
the authenticity of the document and of the Grand Rabbi's signature on
it. But putting that aside, the Friedman faction disputes the Grand
Rabbi's authority to decide the validity of a congregational election; it
acknowledges the Grand Rabbi's supreme authority in spiritual matters,
but claims that he has "no secular authority," and that the validity of
the election is a secular question. Central to this argument is article 8
of the bylaws, which speaks of the first Grand Rabbi, Joel Teitelbaum,
in terms that the parties agree apply to his successor, Moses
Teitelbaum:
"The most revered teacher, Rabbi Yoel Teitelbaum, may he live
long and be well, is our local rabbi, may it be for many years
to come. Nobody can perform his functions without his
consent. He is the only authority in all spiritual matters. No
rabbi, ritual slaughterer or teacher can be chosen without his
consent. His decision is binding on every member."
This may mean that all of the Grand Rabbi's decisions bind every
member, or only that they bind every member "in all spiritual matters."
The language seems ambiguous to me, and I do not think the
ambiguity can be resolved without deciding a religious question — the
scope of a religious leader's authority over his followers. Indeed, it is
one of the ironies of this case that Supreme Court based its finding of
non-justiciability on its interpretation of this bylaw; I think the issue of
what the bylaw means is itself non-justiciable.
III
The Friedman faction makes essentially two claims: that its candidates
are the validly elected leaders of the Brooklyn Congregation, and that
the candidates of the Kahan faction are not. I conclude, applying
neutral principles, that we can readily resolve the first of these claims:
The Friedman faction has wholly failed to establish that its candidates
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were validly elected. The question as to whether the election of the
Kahan faction's candidates was valid, I conclude, raises issues of fact
that should be resolved by Supreme Court.
A
The basis for the Friedman faction's claim to control the Brooklyn
Congregation is an election held in early May 2001, pursuant to a
resolution passed at what the Friedman faction says was a meeting of
the Congregation's board of trustees on January 14, 2001. The Kahan
faction says that the Friedman faction's election was irregular in many
ways, and the Friedman faction makes no specific response. Indeed,
the Friedman faction does not explain its basis for asserting that the
people who met on January 14 were members of the Congregation's
board, and there is considerable reason to doubt the validity of that
board meeting. Friedman asserted in an affirmation submitted to
Supreme Court that the meeting was attended by "83 board members"
— but Religious Corporations Law § 207 provides for a maximum of 72
trustees, and various versions of the Congregation's bylaws provide for
varying numbers, none more than 52.
Without defending the lawfulness of its candidates' election, the
Friedman faction says they must be installed in office because no
timely challenge to that election was brought. This argument fails; that
is not the way the Not-For-Profit Corporation Law works.
Section 618 of the Not-For-Profit Corporation Law provides for a
proceeding by "any member aggrieved by an election," but the failure
to bring such a proceeding does not mean that any activity called an
"election" by its participants becomes binding. Section 618 provides a
means of removing from power people who may not have been lawfully
elected — not a means of installing claimants who say they have been.
On the Friedman faction's theory, any group of people could hold what
they called an "election" for officers of any not-for-profit corporation;
wait four months for the statute of limitations to run (see CPLR 217);
and, if no Section 618 proceeding was brought, march in and take over
the corporation. This is an absurd result, and the Friedman faction cites
no authority supporting it. No examination of religious doctrine is
needed to reject this aspect of the Friedman faction's case.
B
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The Friedman faction's challenge to the validity of the election on which
the Kahan faction relies, an election allegedly authorized at a board
meeting held January 18, 2001, presents a harder issue. The Friedman
faction says this election is invalid on several grounds. One is that it
was called by a board from which Berl Friedman had, allegedly
improperly, been excluded. The Kahan faction claims that Friedman
was removed by the Grand Rabbi. I have already said that I regard the
extent of the Grand Rabbi's authority as a religious question, and I
therefore agree with the majority that, if the Grand Rabbi did in fact
remove Friedman, a challenge to the election based on his lack of
authority to do so would not be justiciable. The Friedman faction,
however, challenges not only the Grand Rabbi's authority to remove
Friedman, but the factual claim that he did so. I agree with Justice
Spolzino, dissenting below, that it "requires no inquiry into religious
doctrine to ascertain whether the Grand Rebbe said and did what he is
purported to have said and done." This issue, at least, can be resolved
on neutral principles.
There are other issues that can be so resolved. The Friedman faction's
challenge to the election is not based on Friedman's exclusion alone.
The Friedman faction disputes whether the
Preview
FILED: ROCKLAND COUNTY CLERK 11/21/2023 12:41 PM INDEX NO. 036020/2021 NYSCEF DOC. NO. 607 RECEIVED NYSCEF: 11/21/2023 November 21, 2023 Honorable Christie D’Alessio Rockland County Supreme Court 1 South Main Street New City, New York Re: Moskovits v. Thaler, Index. No. 036020/2021 Dear Judge D’Alessio: I am writing to you regarding a few housekeeping and litigation management matters that we would respectfully request the Court address. Discovery Deadline and Motion for Summary Judgment Response Adjournment First, there was a deadline issued by this Court for Discovery and Depositions set for November 17, 2023. On November 10, 2023, Plaintiffs’ and Defendants’ counsel entered into a consent letter to extend discovery for 90 days (attached hereto). On the same day that the consent letter was prepared and about to be submitted to this Court, Plaintiffs’ counsel filed its Motion for Summary Judgment. Thus, Plaintiffs’ counsel agrees that there should be additional discovery of 90 days while undercutting this by submitting its Motion. In light of this consent, we request that this Court adjourn the Motion for Summary Judgment so that a response is not required until after this period. Under CPLR 3212 (f), summary judgment may be denied as premature where the opposing party has not yet had adequate opportunity to conduct discovery. It is necessary for the party opposing summary judgment to demonstrate how further discovery might reveal the existence of evidence within the exclusive knowledge of the movant that would warrant denial of the motion (see Green v Covington, 299 AD2d 636, 637 [3d Dept 2002]; Landes v Sullivan, 235 AD2d 657, 658 [3d Dept 1997]; Halsey v County of Madison, 215 AD2d 824, 824-825 [3d Dept 1995]). In this instance, there are specific documents that Mr. Moskovits and the other Third-Party Defendants have within their control necessary to prove the issues surrounding any alleged merger and a trial period. Correspondence between these individuals that discuss hiring Rabbi Weisner in August of 2020 can demonstrate that no trial period or legal merger was ever discussed. Additionally, in the interests of judicial economy, it is imperative that these issues be addressed, and discovery be conducted related to the Third-Party Complaint. All of these matters are inextricably intertwined and having to repeat the procedure after the Motion for Summary Judgment wastes time and resources of the Court. 1 of 17 FILED: ROCKLAND COUNTY CLERK 11/21/2023 12:41 PM INDEX NO. 036020/2021 NYSCEF DOC. NO. 607 RECEIVED NYSCEF: 11/21/2023 Representation of Third-Party Defendants Has Not Been Finalized Additionally, Mr. Feerick continues to indicate that he will be retained by the Third-Party Defendants. Indeed, when sending Mr. Menche, a deposition notice, via email, he also responded that his attorney should be involved and cc’d Mr. Feerick. However, no notice of appearance or official statement of representation has been made. I intend to follow the ethical guidelines about represented parties but find it difficult to do so if I am unsure as to whether the parties are actually represented by Mr. Feerick. We request that Mr. Feerick so indicate by his filing a Notice of Appearance or otherwise indicating his retention. Reply on Motion #9 Finally, we would ask this Court to permit Defendants to file a brief sur-reply on the motion for a preliminary injunction regarding elections. Pursuant to binding Appellate Division, First and Second Department precedents, supplemental affirmations and/or sur-reply’s are permissible upon leave of the court with good cause shown, particularly where (1) the movant submits evidence for the first time in its reply papers or (2) “where the offering party’s adversaries responded to the newly presented claim or evidence [citations omitted].” Kennelly v. Mobius Realty Holdings LLC, 33 A.D.3d 380, 381-382, 822 N.Y.S.2d 264, 266 (1st Dep’t 2006) Plaintiff exceeded the scope of their initial papers and Defendant’s response within their reply filed on November 17, 2023. Plaintiff provided new arguments, including ad hominin attacks of the Defendants that were not raised in previous papers. Plaintiff goes so far as to cite Tanakh, (also referred to as the Old Testament of the Bible) in attempt to distract from the issue of prior restraint and other arguments thoughtfully laid out by Defendants. Defendants also attach hereto a case relevant to this Motion. Therefore, we request that a sur-reply of three pages, exclusive of caption and signature, be permitted. We are available for argument if the Court wishes. Respectfully, / s/ Leo Fox_______________________ Leo Fox 2 of 17 FILED: ROCKLAND COUNTY CLERK 11/21/2023 12:41 PM INDEX NO. 036020/2021 NYSCEF DOC. NO. 607 RECEIVED NYSCEF: 11/21/2023 November 13 , 2023 Honorable Christie D' Alessio Rockland County Supreme Court 1 South Main Street New City, New York Re: Congregation Zichron Be ' er v. Thaler, Index. No. 036020/2021 Dear Judge D' Alessio: As Your Honor is aware, Defendants have now served a Counterclaim and Third-Party Complaint on Plaintiff and Third-Party Defendants . Counsel for the Plaintiff has indicated that they will also be representing the Third-Party Defendants and that they anticipate submitting a Motion to Dismiss in response to Defendants ' claims. Now that more parties are involved there will be a need to exchange additional discovery demands. In light of the foregoing, the undersigned both stipulate and agree that the deadline for discovery and depositions should be rescheduled from November 17, 2023 , a date set forth by the Court in the Order denying the Motion to Dismiss, by at least 90 days so that all parties can properly provide notices, exchange documents, conduct depositions, amplify the pleadings, and that any pending pre-discovery motions can be adjudicated . In the meantime, Plaintiff and Defendants intend to continue the discovery process in good faith and without unnecessary delay . Respectfully submitted, Leo Fox 630 Third Ave., 18 th Floor New York, NY 10017 Tel: 212-867-9595 leo@leofoxlaw.com c~ Feerick Nugent Maccartney PLLC 96 Broadway South Nyack, New York 10960 (845) 353-2000 cpavlacka@fnmlawfirm.com 3 of 17 FILED: ROCKLAND COUNTY CLERK 11/21/2023 12:41 PM INDEX NO. 036020/2021 11/20/23, 6:31 PM No. 142: Matter of Congregation Yetev Lev D'Satmar, Inc. v Kahana NYSCEF DOC. NO. 607 RECEIVED NYSCEF: 11/21/2023 Skip navigation LII > Archival content > New York Court of Appeals NEW YORK COURT OF APPEALS 2007 NY Int. 153 This opinion is uncorrected and subject to revision before publication in the Official Reports. 2007 NY Slip Op 09068 Decided on November 20, 2007 No. 142 In the Matter of Congregation Yetev Lev D'Satmar, Inc., et al., Appellants, v Jacob (Jeno)(Yaakov) Kahana, et al., Respondents. Congregation Yetev Lev D'Satmar, Inc., et al., Appellants, v 26 Adar N.B. Corp., et al., Respondents. Gerald A. Novack, for appellants. Scott E. Mollen, for respondents. https://www.law.cornell.edu/nyctap/I07_0153.htm 1/14 4 of 17 FILED: ROCKLAND COUNTY CLERK 11/21/2023 12:41 PM INDEX NO. 036020/2021 11/20/23, 6:31 PM No. 142: Matter of Congregation Yetev Lev D'Satmar, Inc. v Kahana NYSCEF DOC. NO. 607 RECEIVED NYSCEF: 11/21/2023 PIGOTT, J. The central issue in this appeal is whether resolution of an election controversy between two rival factions of a religious congregation can be achieved through the application of neutral principles of law without judicial intrusion into matters of religious doctrine. Like the trial court and Appellate Division, we conclude that it cannot. Congregation Yetev Lev D'Satmar, Inc. is a community of Orthodox Judaism known as Satmar Hasidism located in Brooklyn. The Congregation was founded in 1948 by Grand Rabbi (also referred to as "Rebbe") Joel Teitelbaum and formally incorporated in New York. In 1952, bylaws were promulgated setting forth the purpose of the Congregation, the functions of the Grand Rabbi, as well as issues involving membership in the community. The bylaws provided for a board of directors and officers to preside over the Congregation and, among other things, assure compliance with the rules of the Congregation. In 1974, the Grand Rabbi expanded the Satmar community by establishing a new congregation in Monroe, New York. In 1981, that congregation, named for him, was incorporated in New York as Congregation Yetev Lev D'Satmar of Kiryas Joel, Inc. In 1979, the Grand Rabbi died and was succeeded by his nephew, Moses Teitelbaum. Moses Teitelbaum, now deceased, appointed his elder son, Aaron Teitelbaum, Chief Rabbi of the Monroe Congregation and his younger son, Zalman Leib Teitelbaum, Chief Rabbi of the Brooklyn Congregation. Some time thereafter, a bitter feud erupted between Rabbi Aaron's supporters and Rabbi Zalman's supporters 1 pertaining to who should succeed as Grand Rabbi . As a result, the Brooklyn Congregation split into two rival factions. Each faction conducted a separate election of the board of directors and officers for the Brooklyn Congregation. The first election, which took place on May 12-13, 2001, resulted in the election of petitioners, with Berl Friedman as president. The second, which took place the same day and is claimed to have been certified by the Grand Rabbi Moses Teitelbaum himself on May 24, 2001, resulted in the election of respondents, with Jacob Kahan as president. https://www.law.cornell.edu/nyctap/I07_0153.htm 2/14 5 of 17 FILED: ROCKLAND COUNTY CLERK 11/21/2023 12:41 PM INDEX NO. 036020/2021 11/20/23, 6:31 PM No. 142: Matter of Congregation Yetev Lev D'Satmar, Inc. v Kahana NYSCEF DOC. NO. 607 RECEIVED NYSCEF: 11/21/2023 Petitioners brought the instant proceeding pursuant to Not-For-Profit Corporation Law § 618 seeking an order declaring that the respondents' election is null and void and directing that Congregation property be transferred to Berl Friedman. Petitioners claimed that their election resulted in certain members of the Congregation becoming duly elected officers, including Berl Friedman; that respondents illegally attempted to "remove" these duly elected officers and expel Berl Friedman from membership; and that respondents' election violated the bylaws and/or the Religious Corporations Law. Respondents challenged the jurisdiction of Supreme Court, arguing that the it should refrain from interfering in the internal affairs of the Congregation; and further contended that their election was proper, legal and in accordance with the Congregation's prior practice and bylaws. Respondents disputed petitioners' election, arguing it was a sham election for several reasons, including that Berl Friedman had been expelled from the Congregation by the Grand Rabbi. Supreme Court declined to make a determination as to the validity of respondent's election, holding that it could not decide the election dispute through the application of neutral principles of law because the resolution of the issues would require it to apply ecclesiastical doctrine in violation of the First Amendment . The Appellate Division, with one Justice dissenting, agreed with Supreme Court that "resolution of the parties' dispute would necessarily involve impermissible inquiries into religious doctrine and the Congregation's membership requirements" (31 AD3d 541, 543 [2d Dept 2006]). The Appellate Division subsequently granted leave and certified the following question to us: "Was the decision and order of this Court dated July 11, 2006 properly made?" We now affirm. The First Amendment forbids civil courts from interfering in or determining religious disputes, because there is substantial danger that the state will become entangled in essentially religious controversies or intervene on behalf of groups espousing particular doctrines or beliefs (see Serbian Orthodox Diocese v Milivojevich, 426 US 696 [1976]). Civil disputes involving religious parties or institutions may be adjudicated without offending the First Amendment as long as neutral principles of law are the basis for their resolution (see First Presbyt. Church v United Presbyt. Church, 62 NY2d 110 [1984]; Park Slope Jewish Ctr. v Congregation B'nai Jacob, 90 NY2d 517, 521 [1997], citing Jones v Wolf, 933 US 595 ). The "neutral principles of law" https://www.law.cornell.edu/nyctap/I07_0153.htm 3/14 6 of 17 FILED: ROCKLAND COUNTY CLERK 11/21/2023 12:41 PM INDEX NO. 036020/2021 11/20/23, 6:31 PM No. 142: Matter of Congregation Yetev Lev D'Satmar, Inc. v Kahana NYSCEF DOC. NO. 607 RECEIVED NYSCEF: 11/21/2023 approach requires the court to apply objective, well-established principles of secular law to the issues (First Presbyt. Church, 62 NY2d at 118). In doing so, courts may rely upon internal documents, such as a congregation's bylaws, but only if those documents do not require interpretation of ecclesiastical doctrine. Thus, judicial involvement is permitted when the case can be "decided solely upon the application of neutral principles of . . . law, without reference to any religious principle" (Avitzur v Avitzur, 58 NY2d 108, 115 [1983]). Petitioners argue that this case involves nothing more than notice, quorum or other technical challenges to the respondents' election. At first blush, the arguments raised by the petitioners in their appellate 2 brief to this Court , do not appear to implicate ecclesiastical issues. Indeed, courts have properly adjudicated disputes involving religious elections on neutral principles of law. For example, in Rector, Churchwardens & Vestrymen of Church of the Holy Trinity v Melish 3 NY2d 476 [1957]), after determining that the quorum rules of the Religious Corporations Law, by their terms, did not apply to an Episcopalian church's election of a rector, we held that two meetings held by the church complied with applicable quorum requirements of a church canon. The Appellate Divisions have resolved similar disputes (see Matter of Kaminsky (251 AD 132 [4th Dept 1937], aff'd 77 NY 524 [1938]); Sillah v Tanvir (18 AD3d 223 [1st Dept 2005], lv denied 5 NY3d 711 [2005]); but see Mays v Burrell, 124 AD2d 714 [2d Dept 1986]). These cases were resolved under neutral principles of law pursuant to the court's power to adjudicate under the Religious Corporations Law and/or the Not-For-Profit Law (see e.g. Not-For-Profit Corporation Law §§ 618, 706). In each of those cases, the courts resolved the election dispute by applying those laws as well as the bylaws or rules of the religious organization. Here, however, as both Supreme Court and the Appellate Division recognized, the dispute between the two factions involves issues beyond mere notice and quorum challenges, such as whether Berl Friedman had been removed or expelled from the Congregation. Respondents claim that Jacob Kahan succeeded Berl Friedman as president and thus Jacob Kahan had the authority to conduct respondents' election. Specifically, respondents claim that Grand Rabbi Moses Teitelbaum denounced Berl Friedman and another member of his faction for rebelling against the authority of the Grand Rabbi and the Grand Rabbi's son, resulting in their expulsion from the Congregation. https://www.law.cornell.edu/nyctap/I07_0153.htm 4/14 7 of 17 FILED: ROCKLAND COUNTY CLERK 11/21/2023 12:41 PM INDEX NO. 036020/2021 11/20/23, 6:31 PM No. 142: Matter of Congregation Yetev Lev D'Satmar, Inc. v Kahana NYSCEF DOC. NO. 607 RECEIVED NYSCEF: 11/21/2023 Berl Friedman denies being removed from the Congregation and further argues that an elected corporate officer cannot be removed by a spiritual authority such as the Grand Rabbi, which respondents refute. It is well settled that membership issues such as those that are at the core of this case are an ecclesiastical matter (Park Slope Jewish Ctr. v Stern, 128 AD2d 847 [2d Dept 1987], lv dismissed 70 NY2d 746 [1987]; Kissel v Russian Orthodox Greek Catholic Holy Trinity Church of Yonkers, 103 AD2d 830 [2d Dept 1984]). A decision as to whether or not a member is in good standing is binding on the courts when examining the standards of membership requires intrusion into constitutionally protected ecclesiastical matters. Although courts generally have jurisdiction to determine whether a congregation has adhered to its own bylaws in making determinations as to the membership status of individual congregants, here, the Congregation's bylaws condition membership on religious criteria, including whether a congregant follows the "ways of the Torah." Whether Berl Friedman was expelled from membership of the Congregation inevitably calls into question religious issues beyond any membership criteria found in the Congregation's bylaws (Park Slope Jewish Ctr.,128 AD2d 847; Kissel, 103 AD2d 830). Contrary to petitioners' position, Berl Friedman's religious standing within the Congregation is essential to resolution of this election dispute. Petitioners ask that this Court not only to determine the validity of the respondents' election but also to recognize that petitioners, including Berl Friedman, are elected officers and the authorized governing body of the Congregation. With such membership issues at the center of this election dispute, matters of an ecclesiastical nature are clearly at issue. These particular issues must be resolved by the members of the Congregation, and cannot be determined by this Court. Accordingly, the Appellate Division order should be affirmed with costs and the certified question not answered upon the ground that it is unnecessary. In the Matter of Congregation Yetev Lev D'Satmar, Inc. v Jacob (Jeno) (Yaakov) Kahan, et al. No. 142 https://www.law.cornell.edu/nyctap/I07_0153.htm 5/14 8 of 17 FILED: ROCKLAND COUNTY CLERK 11/21/2023 12:41 PM INDEX NO. 036020/2021 11/20/23, 6:31 PM No. 142: Matter of Congregation Yetev Lev D'Satmar, Inc. v Kahana NYSCEF DOC. NO. 607 RECEIVED NYSCEF: 11/21/2023 SMITH, J.(dissenting) : The majority is of course correct in saying that courts of our state, like other state and federal courts, are forbidden from deciding religious questions. This rule, as applied to disputes over ecclesiastical property, is usually a rule of deference: Civil courts defer to the decisions of religious tribunals, unless the case can be decided on the basis of neutral (i.e., non-religious) principles. But in cases like this one, there is no religious tribunal to defer to, and the rule becomes one of justiciability; the majority here does not accept the decision of a religious tribunal as binding, but simply refuses to decide the case at all. Such a refusal is a drastic measure, because when a case is non- justiciable it means the wrong committed, if there is one, cannot be remedied anywhere. Whichever side happens to be the defendant in the case will win. I believe that courts should hold disputes between religious factions to be non-justiciable only as a last resort, where it is absolutely clear that no neutral principle can decide the case. I do not think that is true here, and I therefore dissent from the majority's finding of non- justiciability and would reach the merits. On the merits, I would reject the claim that Berl Friedman and his allies are the duly elected officers of the Brooklyn Congregation, and would remit the case for Supreme Court to decide whether Jenoe Kahan and his allies were validly elected, or whether there must be a new election. I The rule that civil courts may not decide ecclesiastical questions has its origin in Watson v Jones (13 Wall [80 US] 679 [1872]), in which the United States Supreme Court decided that the right to use property claimed by contesting factions of a local Presbyterian church must be resolved not by the courts, but by the highest decision-making authority of the Presbyterian Church in the United States. Though the decision was not based on the Constitution, it was based on fundamental principles of religious freedom and state neutrality toward religion: "In this country the full and free right to entertain any religious belief, to practice any religious principle, and to teach any religious doctrine which does not violate the laws of morality and property, and which does not infringe personal https://www.law.cornell.edu/nyctap/I07_0153.htm 6/14 9 of 17 FILED: ROCKLAND COUNTY CLERK 11/21/2023 12:41 PM INDEX NO. 036020/2021 11/20/23, 6:31 PM No. 142: Matter of Congregation Yetev Lev D'Satmar, Inc. v Kahana NYSCEF DOC. NO. 607 RECEIVED NYSCEF: 11/21/2023 rights, is conceded to all. The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect." (Id. at 728). Watson made clear that its holding applied only to hierarchical organizations like the Presbyterian Church — "large and influential bodies," each having "a body of constitutional and ecclesiastical law of its own" (id. at 729). The Court said: "[W]henever the questions of discipline, or of faith, or ecclesiastical rule, custom or law have been decided by the highest of these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them, in their application to the case before them." (Id. at 727). The Watson Court distinguished the case of a hierarchical church from the case of "a church of a strictly congregational or independent organization, governed solely within itself" (id. at 724). For congregational churches, Watson did not pronounce a rule of deference, but said: "where there is a schism which leads to a separation into distinct and conflicting bodies, the rights of such bodies to the use of the property must be determined by the ordinary principles which govern voluntary associations" (id. at 725). In applying to congregational churches the rules governing voluntary associations, there could be "no inquiry into the existing religious opinions of those who comprise the legal or regular organization" (id. at 725). The rule of Watson was recognized in the 20th century as having a constitutional basis, and was followed in a series of Supreme Court cases, among them Kedroff v Saint Nicholas Cathedral of Russian Orthodox Church of North America 344 US 94 [1952]); Presbyterian Church in U.S. v Mary Elizabeth Blue Hull Memorial Presbyterian Church 393 US 440 [1969]); and Serbian Eastern Orthodox Diocese for United States and Canada v Milivojevich 426 US 696 [1976]). These cases seemed to stand for the proposition that a civil court must always defer to the authoritative decision-making bodies of hierarchical churches, https://www.law.cornell.edu/nyctap/I07_0153.htm 7/14 10 of 17 FILED: ROCKLAND COUNTY CLERK 11/21/2023 12:41 PM INDEX NO. 036020/2021 11/20/23, 6:31 PM No. 142: Matter of Congregation Yetev Lev D'Satmar, Inc. v Kahana NYSCEF DOC. NO. 607 RECEIVED NYSCEF: 11/21/2023 but in Jones v Wolf 443 US 595 [1979]), the Court held that states could decide religious property disputes in civil courts if they did so according to "neutral principles of law" (id. at 602-603). The Court in Jones v Wolf restated the constitutional rule established by several of its earlier cases: "[T]he First Amendment prohibits civil courts from resolving church property disputes on the basis of religious doctrine and practice" (id. at 602). In First Presbyt. Church of Schenectady v United Presbyt. Church in U.S. of Am. 62 NY2d 110, 121 [1984]), we adopted the "neutral principles" approach, describing it as "preferable to deference." We also held in First Presbyterian, however, that we were "constitutionally foreclosed" from resolving doctrinal issues, including issues of church government (id. at 124). All the cases cited so far in this opinion involved hierarchical churches. They established that civil courts may decide church property disputes based on "neutral principles" where they can, but must defer to ecclesiastical authorities when neutral principles will not resolve the case. The problem of how to deal with disputes within congregational religious bodies is harder, and has received less attention. Deference often is not possible, for there is no tribunal of the church hierarchy to defer to. Neutral principles seem the only available option — but what if, as sometimes happens, neutral principles cannot resolve the case? The Supreme Court has said that there are cases in which adjudicating a property dispute "would require the civil court to resolve a religious controversy" (Jones v Wolf, 443 US at 604)— but it said in the same case that civil courts may not do so. When the dilemma is insoluble, the only remedy is the one the majority adopts here — to dismiss the case as non-justiciable. This is not the first case in which it has been done (see e.g. Congregation Beth Yitzhok v Briskman, 566 F Supp 555, 557-558 [ED NY 1983]), though I think it is the first in which we have done it, and there is no case in which the United States Supreme Court has endorsed that remedy. It is a remedy that should if possible be avoided. Non-justiciability implies that the party having the burden of proof loses; thus it is ordinarily a "defendant wins" rule. It will inevitably produce arbitrary and inconsistent, and sometimes perverse or unjust, results. Here, for example, the Kahan faction is the defendant, and therefore wins, because the status quo is in its favor — it is in de facto https://www.law.cornell.edu/nyctap/I07_0153.htm 8/14 11 of 17 FILED: ROCKLAND COUNTY CLERK 11/21/2023 12:41 PM INDEX NO. 036020/2021 11/20/23, 6:31 PM No. 142: Matter of Congregation Yetev Lev D'Satmar, Inc. v Kahana NYSCEF DOC. NO. 607 RECEIVED NYSCEF: 11/21/2023 control of the Brooklyn Congregation. But if members of the Friedman faction had somehow succeeded in occupying the Congregation's offices, and the Kahan faction sued to evict them, presumably the majority would say the case is still non-justiciable and the Friedman faction, being the defendant, would win. Or suppose both factions claimed the corporation's bank account and the bank, not knowing whose checks to honor, brought an interpleader action. Would the majority say that the interpleader action is non-justiciable — leaving the bank account frozen indefinitely? It is to avoid problems like these, I think, that courts try hard to find, and usually succeed in finding, neutral principles to resolve disputes where deference is not an option. In Park Slope Jewish Ctr. v Congregation B'nai Jacob 90 NY2d 517 [1997]), we held that a dispute arising from a schism within a congregation could be resolved by neutral principles, reversing a ruling that it was non-justiciable. Lower New York courts have removed the management of religious bodies, and ordered new elections under court supervision, without deciding any religious issue (see e.g. St. Matthew Church of Christ v Creech, 196 Misc 2d 843 [Sup Ct 2003]). And in a copyright infringement dispute involving a prayer book, where the defendant argued that the court lacked jurisdiction because the case turned on the validity of a rabbinical court ruling, the Court of Appeals for the Second Circuit concluded that, while defendant's argument had "some force," it must be rejected because of the harm that would flow from a holding of non- justiciability: "we cannot decline jurisdiction on this basis; to do so would permit any party to contend that religious doctrine that it deems authoritative undermines the authority of its adversary's position" (Merkos L'Inyonei Chinuch, Inc. v Otsar Sifrei Lubavitch, Inc., 312 F3d 94, 100 [2d Cir 2002]). For similar reasons, I approach this case with a strong reluctance to decline jurisdiction, and I conclude that the case can be decided on neutral principles. II Before turning to neutral principles, however, I consider the possibility that deference is an option in this case — that the approach of Watson v Jones and later cases involving hierarchical religious bodies can be applied here. It can be argued — indeed, the Kahan faction seems to argue, and Supreme Court may have found — that the Brooklyn https://www.law.cornell.edu/nyctap/I07_0153.htm 9/14 12 of 17 FILED: ROCKLAND COUNTY CLERK 11/21/2023 12:41 PM INDEX NO. 036020/2021 11/20/23, 6:31 PM No. 142: Matter of Congregation Yetev Lev D'Satmar, Inc. v Kahana NYSCEF DOC. NO. 607 RECEIVED NYSCEF: 11/21/2023 Congregation, however unlike the Catholic or Presbyterian church in its structure, is hierarchical in the relevant sense, because there is a single decision-making body whose authority all adherents have agreed to accept: the Grand Rabbi. The Kahan faction submits a document, which it says was signed by the Grand Rabbi, certifying that the Kahan faction nominees were validly elected. This, the Kahan faction says, ends the matter. I do not think the case can be resolved so easily. First, as I read the parties' contentions, the Friedman faction disputes the authenticity of the document and of the Grand Rabbi's signature on it. But putting that aside, the Friedman faction disputes the Grand Rabbi's authority to decide the validity of a congregational election; it acknowledges the Grand Rabbi's supreme authority in spiritual matters, but claims that he has "no secular authority," and that the validity of the election is a secular question. Central to this argument is article 8 of the bylaws, which speaks of the first Grand Rabbi, Joel Teitelbaum, in terms that the parties agree apply to his successor, Moses Teitelbaum: "The most revered teacher, Rabbi Yoel Teitelbaum, may he live long and be well, is our local rabbi, may it be for many years to come. Nobody can perform his functions without his consent. He is the only authority in all spiritual matters. No rabbi, ritual slaughterer or teacher can be chosen without his consent. His decision is binding on every member." This may mean that all of the Grand Rabbi's decisions bind every member, or only that they bind every member "in all spiritual matters." The language seems ambiguous to me, and I do not think the ambiguity can be resolved without deciding a religious question — the scope of a religious leader's authority over his followers. Indeed, it is one of the ironies of this case that Supreme Court based its finding of non-justiciability on its interpretation of this bylaw; I think the issue of what the bylaw means is itself non-justiciable. III The Friedman faction makes essentially two claims: that its candidates are the validly elected leaders of the Brooklyn Congregation, and that the candidates of the Kahan faction are not. I conclude, applying neutral principles, that we can readily resolve the first of these claims: The Friedman faction has wholly failed to establish that its candidates https://www.law.cornell.edu/nyctap/I07_0153.htm 10/14 13 of 17 FILED: ROCKLAND COUNTY CLERK 11/21/2023 12:41 PM INDEX NO. 036020/2021 11/20/23, 6:31 PM No. 142: Matter of Congregation Yetev Lev D'Satmar, Inc. v Kahana NYSCEF DOC. NO. 607 RECEIVED NYSCEF: 11/21/2023 were validly elected. The question as to whether the election of the Kahan faction's candidates was valid, I conclude, raises issues of fact that should be resolved by Supreme Court. A The basis for the Friedman faction's claim to control the Brooklyn Congregation is an election held in early May 2001, pursuant to a resolution passed at what the Friedman faction says was a meeting of the Congregation's board of trustees on January 14, 2001. The Kahan faction says that the Friedman faction's election was irregular in many ways, and the Friedman faction makes no specific response. Indeed, the Friedman faction does not explain its basis for asserting that the people who met on January 14 were members of the Congregation's board, and there is considerable reason to doubt the validity of that board meeting. Friedman asserted in an affirmation submitted to Supreme Court that the meeting was attended by "83 board members" — but Religious Corporations Law § 207 provides for a maximum of 72 trustees, and various versions of the Congregation's bylaws provide for varying numbers, none more than 52. Without defending the lawfulness of its candidates' election, the Friedman faction says they must be installed in office because no timely challenge to that election was brought. This argument fails; that is not the way the Not-For-Profit Corporation Law works. Section 618 of the Not-For-Profit Corporation Law provides for a proceeding by "any member aggrieved by an election," but the failure to bring such a proceeding does not mean that any activity called an "election" by its participants becomes binding. Section 618 provides a means of removing from power people who may not have been lawfully elected — not a means of installing claimants who say they have been. On the Friedman faction's theory, any group of people could hold what they called an "election" for officers of any not-for-profit corporation; wait four months for the statute of limitations to run (see CPLR 217); and, if no Section 618 proceeding was brought, march in and take over the corporation. This is an absurd result, and the Friedman faction cites no authority supporting it. No examination of religious doctrine is needed to reject this aspect of the Friedman faction's case. B https://www.law.cornell.edu/nyctap/I07_0153.htm 11/14 14 of 17 FILED: ROCKLAND COUNTY CLERK 11/21/2023 12:41 PM INDEX NO. 036020/2021 11/20/23, 6:31 PM No. 142: Matter of Congregation Yetev Lev D'Satmar, Inc. v Kahana NYSCEF DOC. NO. 607 RECEIVED NYSCEF: 11/21/2023 The Friedman faction's challenge to the validity of the election on which the Kahan faction relies, an election allegedly authorized at a board meeting held January 18, 2001, presents a harder issue. The Friedman faction says this election is invalid on several grounds. One is that it was called by a board from which Berl Friedman had, allegedly improperly, been excluded. The Kahan faction claims that Friedman was removed by the Grand Rabbi. I have already said that I regard the extent of the Grand Rabbi's authority as a religious question, and I therefore agree with the majority that, if the Grand Rabbi did in fact remove Friedman, a challenge to the election based on his lack of authority to do so would not be justiciable. The Friedman faction, however, challenges not only the Grand Rabbi's authority to remove Friedman, but the factual claim that he did so. I agree with Justice Spolzino, dissenting below, that it "requires no inquiry into religious doctrine to ascertain whether the Grand Rebbe said and did what he is purported to have said and done." This issue, at least, can be resolved on neutral principles. There are other issues that can be so resolved. The Friedman faction's challenge to the election is not based on Friedman's exclusion alone. The Friedman faction disputes whether the