Preview
FILED: KINGS COUNTY CLERK 12/04/2023 06:14 PM INDEX NO. 526762/2023
NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 12/04/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
-----------------------------------------------------------------X Index No. 526762/2023
MOSHE MANACHAM GOLD,
REPLY AFFIRMATION
Petitioner,
-against-
FREEWAY CARRIERS INC., CHAIM ELIYAHU
POSNER, and JUDITH POSNER,
Respondents.
-----------------------------------------------------------------X
ISRAEL T. APPEL, an attorney duly admitted to practice law before the Courts of the
State of New York, affirms the following to be true under penalty of perjury:
1. I am the Principal of Appel P.C., counsel for Respondents FREEWAY
CARRIERS INC., CHAIM ELIYAHU POSNER, and JUDITH POSNER (the “Respondents”),
and am fully familiar with the facts and circumstances of this proceeding.
2. This affirmation is made upon personal knowledge and upon information and
belief, the sources of which include a review of all papers heretofore had, documentary evidence,
public records searches, and my own further research and investigation.
3. This affirmation is made in reply to Petitioner’s memorandum of law and in
further support of Respondents’ motion to dismiss the proceeding as time barred.
ARGUMENT
I. THE COURT SHOULD DENY AND DISMISS THE
PETITION TO CONFIRM THE ARBITRATION
AWARD BECAUSE THIS PROCEEDING IS TIME
BARRED.
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4. Petitioner concedes that he commenced the instant special proceeding to confirm
the underlying arbitration award over one year after he was delivered the arbitration award
NYSCEF 26 (Pet. Mem. Of Law 2-3). The proceeding is therefore time barred. CPLR 7510
provides that “[t]he court shall confirm an award upon application of a party made within one
year after its delivery to him, unless the award is vacated or modified upon a ground specified
in section 7511.” Courts have consistently strictly construed the one-year statute of limitations to
confirm an arbitration award. See e.g., Elliot v Green Bus Lines, Inc., 58 NY2d 76, 78 (1983);
Matter of Nahum v Mansour, 109 AD3d 548, 549 (2d Dept 2013); Matter of Salamon v
Friedman, 11 AD3d 700, 700 (2d Dept 2004); Matter of Cantor v Langer, 210 AD2d 325, 326
(2d Dept 1994; Moye v Thomas, 153 AD2d 673 (2d Dept 1989; Teachers Ass'n of Tarrytowns v
Tarrytown Bd. of Ed., 59 AD2d 890, 890 (2d Dept 1977).
5. Petitioner’s unprecedented contention that “[t]he limitations period under these
circumstances does not run from the date of the delivery of the Award but rather from the date of
the final partial payment” NYSCEF 26 (Pet. Mem. Of Law at 5) is entirely misplaced. In support
of his contention, Petitioner relies solely on HSBC Bank USA, N.A. v Macaulay, 187 AD3d 721
(2d Dept 2020), a mortgage foreclosure proceeding, where the court held that partial mortgage
payments which evidenced an acknowledgement of the debt extended the statute of limitations to
foreclose on a mortgage. However, this theory is inapplicable to confirming an arbitration award.
6. The time to confirm an arbitration award is solely determined by the date of the
award’s delivery. CPLR 7510. The cause of action to confirm an award accrues upon the delivery
of the award by the arbitrator and expires one year later. Neither time is dependent on a party’s
actions, and therefore a party’s actions in complying with the award cannot extend the timeline,
absent fraud, or death. This is because the one-year limit for confirmation exists to ensure swift
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resolution and maintain the integrity of the arbitration process. Allowing ongoing partial
payments to extend the one-year limit contradicts the purpose of the law, risking delays and
undermining the efficiency of arbitration.
7. Moreover, unlike a breach of contract, where partial payments may indicate an
ongoing acknowledgment of a contractual debt, an arbitration award resolves a dispute as to
obligations. Even if the partial payment doctrine applied here, which it does not, the payments
would nevertheless need to “constitute an unconditional and unqualified acknowledgment of the
debt.” Nationstar Mtge., LLC v Dorsin, 180 AD3d 1054, 1056-57 (2d Dept 2020) (quotations,
citations, and alterations omitted) (three partial payments did not evidence an acknowledgement
of the debt where payments were made in the hopes of reaching a modification agreement).
8. Here, Respondents’ payments neither acknowledges the debt, nor does it
acknowledge an indebtedness to the award. Respondents complied with the award because of
their religious beliefs requiring them to comply with a Beth Din’s award, and not because they
acknowledged the lawfulness or correctness of the award. Moreover, payments made pursuant to
an arbitration award, and not pursuant to a contract between the parties, do not evidence an
acknowledgment of a prior agreement.
9. Petitioner’s attempt to stretch the partial payment concept beyond its logical
application contradicts the established statutory framework governing arbitration in New York.
The special provisions governing applications for confirmations of
awards in arbitration are expressly prescribed in CPLR article 75.
CPLR 7510 provides that the application to confirm an award must
be made within one year after its delivery. CPLR 7512 authorizes
the court to extend the time within which an application to confirm
an award must be made in the event of the death or incompetency of
a party. Conspicuously omitted is any comparable provision with
respect to the infancy of a party. In this circumstance it must be
concluded, the more specific provisions overriding the more
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general, that the general tolling provisions in the event of infancy
set forth in CPLR 208 have no application.
Elliot v Green Bus Lines, Inc., 58 NY2d 76, 78 (1983).
10. Infancy, like partial payments in a breach of contract, generally tolls the statute of
limitations. CPLR 208. But the Court of Appeals held that infancy cannot toll the time to confirm
an arbitration award because Article 75 of the CPLR does not provide such a provision. Elliot v
Green Bus Lines, Inc., 58 NY2d 76, 78 (1983). Similarly, a partial payment towards an
arbitration award cannot extend the statute of limitations to confirm it because Article 75 does
not so provide.
11. Finally, Petitioner has taken contradictory positions in this proceeding. Petitioner
avers that the Award was rendered on June 3, 2023, and that payments were required to begin on
April 1, 2023. It is undisputed that no cash payments 1 were made after April 1, 2023, rendering
Petitioner’s theory of partial payments a nullity.
II. THE VERIFIED PETITION MUST ALSO BE DENIED
BECAUSE IT IS NOT SUPPORTED BY ADMISSIBLE
EVIDENCE AS THE TRANSLATED ARBITRATION
AWARD LACKS THE TRANSLATOR’S AFFIDAVIT
OF ACCURACY.
12. Contrary to Petitioner’s contention, the Respondents are highly prejudiced by the
absence of a proper translator’s affidavit certifying the truth and accuracy of the translated
arbitration award, because Petitioner’s translation contains several material inaccuracies and
therefore cannot be confirmed. First, Petitioner’s Translated Award states the award was issued
on June 3, 2022, when it was issued on March 6, 2022. Second, Petitioner’s Translated Award
1
Respondents contend that they stopped making payments on April 1, 2023, because Petitioner
fraudulently deposited an IRS check belong to Respondents and therefore credited themselves in
that amount.
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states that monthly installment payments are to begin “starting from next April 1st” when the
award states that the monthly payments are to begin “starting from the upcoming April 1.”
III. THE COURT SHOULD NOT ENTER A MONEY
JUDGMENT IN THE AMOUNT OF $153,000 PLUS
INTEREST BECAUSE IT CONFLICTS WITH THE
TERMS AND INTENT OF THE ARBITRATION
AWARD.
13. Even had the Verified Petition been timely filed and was supported by admissible
evidence, the court should not add interest to the award. A judgment should not be more
burdensome than the award itself. Rand Const. Co. v Rockland County, 21 AD2d 826, 826-27
(2d Dept 1964). The Beth Din Award did not order the Respondents to pay Petitioner a lump
sum of money, or even to make installment payments. The Award merely provided that in
exchange for the Respondents receiving full ownership of the Company, the Respondents must
pay the Petitioner $3,500 a month until the sum of $153,000 is paid so long as the Respondents
are engaged in their current business. A “court should adopt the most reasonable meaning of the
text by avoiding any potential interpretations of the award that would render any part of its
language superfluous or lead to an absurd result.” Pine St. Assoc., L.P. v Southridge Partners,
L.P., 107 AD3d 95, 100 (1st Dept 2013).
CONCLUSION
14. The Court must deny and dismiss the Verified Petition because it was filed well
over a year after the delivery of the arbitration award and is thus time barred by operation of law.
The partial payments made by the Respondents following the award cannot extend the statute of
limitations because the statute of limitations is based on the delivery of the award, not
compliance therewith. Moreover, the Verified Petition is defective because it lacks an affidavit by
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the translator stating the translator’s qualifications and that the translation is accurate, prejudicing
the Respondents who contest the translation. Finally, even if the Verified Petition was timely and
supported by admissible evidence, a money judgment in the amount of $153,000 should not be
entered because the Beth Din awarded (1) monthly payments, (2) capped at $153,000, (3)
conditioned on Respondents continuation in the freight trucking business, and because Petitioner
has already received payment in the amount of $65,910.90.
WHEREFORE, the Court should grant the relief requested herein, together with such
other and further relief as is just and proper.
Dated: New York, New York
December 4, 2023
APPEL P.C.
By: /s/ Israel T. Appel
Israel T. Appel
11 Broadway, Suite 615
New York, New York 10004
(212) 551-1010
iappel@appelpc.com
Attorneys for Respondents
Freeway Carriers Inc.,
Chaim Eliyahu Posner, and
Judith Posner
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CERTIFICATE OF COMPLIANCE WITH 22 NYCRR 202.8(B) AND RULE 130
The undersigned attorney for Respondents Freeway Carriers Inc., Chaim Eliyahu Posner,
and Judith Posner certifies under Section 202.8-b the Uniform Civil Rules for the Supreme Court
and the County Court that the word count for the foregoing affirmation is 1,502 words, exclusive
of the caption, table of contents, table of authorities, and signature block as counted by the word
processing program: Microsoft Word. The number of words in the above submission does not
exceed 4,200 words as required for reply affidavits, affirmations and memorandum of law.
Dated: December 4, 2023
New York, New York
APPEL P.C.
/s/ Israel T. Appel
By: ____________________
Israel T. Appel
11 Broadway, Suite 615
New York, New York 10004
(212) 551-1010
iappel@appelpc.com
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Preview
FILED: KINGS COUNTY CLERK 12/04/2023 06:14 PM INDEX NO. 526762/2023 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 12/04/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -----------------------------------------------------------------X Index No. 526762/2023 MOSHE MANACHAM GOLD, REPLY AFFIRMATION Petitioner, -against- FREEWAY CARRIERS INC., CHAIM ELIYAHU POSNER, and JUDITH POSNER, Respondents. -----------------------------------------------------------------X ISRAEL T. APPEL, an attorney duly admitted to practice law before the Courts of the State of New York, affirms the following to be true under penalty of perjury: 1. I am the Principal of Appel P.C., counsel for Respondents FREEWAY CARRIERS INC., CHAIM ELIYAHU POSNER, and JUDITH POSNER (the “Respondents”), and am fully familiar with the facts and circumstances of this proceeding. 2. This affirmation is made upon personal knowledge and upon information and belief, the sources of which include a review of all papers heretofore had, documentary evidence, public records searches, and my own further research and investigation. 3. This affirmation is made in reply to Petitioner’s memorandum of law and in further support of Respondents’ motion to dismiss the proceeding as time barred. ARGUMENT I. THE COURT SHOULD DENY AND DISMISS THE PETITION TO CONFIRM THE ARBITRATION AWARD BECAUSE THIS PROCEEDING IS TIME BARRED. 1 of 7 FILED: KINGS COUNTY CLERK 12/04/2023 06:14 PM INDEX NO. 526762/2023 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 12/04/2023 4. Petitioner concedes that he commenced the instant special proceeding to confirm the underlying arbitration award over one year after he was delivered the arbitration award NYSCEF 26 (Pet. Mem. Of Law 2-3). The proceeding is therefore time barred. CPLR 7510 provides that “[t]he court shall confirm an award upon application of a party made within one year after its delivery to him, unless the award is vacated or modified upon a ground specified in section 7511.” Courts have consistently strictly construed the one-year statute of limitations to confirm an arbitration award. See e.g., Elliot v Green Bus Lines, Inc., 58 NY2d 76, 78 (1983); Matter of Nahum v Mansour, 109 AD3d 548, 549 (2d Dept 2013); Matter of Salamon v Friedman, 11 AD3d 700, 700 (2d Dept 2004); Matter of Cantor v Langer, 210 AD2d 325, 326 (2d Dept 1994; Moye v Thomas, 153 AD2d 673 (2d Dept 1989; Teachers Ass'n of Tarrytowns v Tarrytown Bd. of Ed., 59 AD2d 890, 890 (2d Dept 1977). 5. Petitioner’s unprecedented contention that “[t]he limitations period under these circumstances does not run from the date of the delivery of the Award but rather from the date of the final partial payment” NYSCEF 26 (Pet. Mem. Of Law at 5) is entirely misplaced. In support of his contention, Petitioner relies solely on HSBC Bank USA, N.A. v Macaulay, 187 AD3d 721 (2d Dept 2020), a mortgage foreclosure proceeding, where the court held that partial mortgage payments which evidenced an acknowledgement of the debt extended the statute of limitations to foreclose on a mortgage. However, this theory is inapplicable to confirming an arbitration award. 6. The time to confirm an arbitration award is solely determined by the date of the award’s delivery. CPLR 7510. The cause of action to confirm an award accrues upon the delivery of the award by the arbitrator and expires one year later. Neither time is dependent on a party’s actions, and therefore a party’s actions in complying with the award cannot extend the timeline, absent fraud, or death. This is because the one-year limit for confirmation exists to ensure swift 2 of 7 FILED: KINGS COUNTY CLERK 12/04/2023 06:14 PM INDEX NO. 526762/2023 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 12/04/2023 resolution and maintain the integrity of the arbitration process. Allowing ongoing partial payments to extend the one-year limit contradicts the purpose of the law, risking delays and undermining the efficiency of arbitration. 7. Moreover, unlike a breach of contract, where partial payments may indicate an ongoing acknowledgment of a contractual debt, an arbitration award resolves a dispute as to obligations. Even if the partial payment doctrine applied here, which it does not, the payments would nevertheless need to “constitute an unconditional and unqualified acknowledgment of the debt.” Nationstar Mtge., LLC v Dorsin, 180 AD3d 1054, 1056-57 (2d Dept 2020) (quotations, citations, and alterations omitted) (three partial payments did not evidence an acknowledgement of the debt where payments were made in the hopes of reaching a modification agreement). 8. Here, Respondents’ payments neither acknowledges the debt, nor does it acknowledge an indebtedness to the award. Respondents complied with the award because of their religious beliefs requiring them to comply with a Beth Din’s award, and not because they acknowledged the lawfulness or correctness of the award. Moreover, payments made pursuant to an arbitration award, and not pursuant to a contract between the parties, do not evidence an acknowledgment of a prior agreement. 9. Petitioner’s attempt to stretch the partial payment concept beyond its logical application contradicts the established statutory framework governing arbitration in New York. The special provisions governing applications for confirmations of awards in arbitration are expressly prescribed in CPLR article 75. CPLR 7510 provides that the application to confirm an award must be made within one year after its delivery. CPLR 7512 authorizes the court to extend the time within which an application to confirm an award must be made in the event of the death or incompetency of a party. Conspicuously omitted is any comparable provision with respect to the infancy of a party. In this circumstance it must be concluded, the more specific provisions overriding the more 3 of 7 FILED: KINGS COUNTY CLERK 12/04/2023 06:14 PM INDEX NO. 526762/2023 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 12/04/2023 general, that the general tolling provisions in the event of infancy set forth in CPLR 208 have no application. Elliot v Green Bus Lines, Inc., 58 NY2d 76, 78 (1983). 10. Infancy, like partial payments in a breach of contract, generally tolls the statute of limitations. CPLR 208. But the Court of Appeals held that infancy cannot toll the time to confirm an arbitration award because Article 75 of the CPLR does not provide such a provision. Elliot v Green Bus Lines, Inc., 58 NY2d 76, 78 (1983). Similarly, a partial payment towards an arbitration award cannot extend the statute of limitations to confirm it because Article 75 does not so provide. 11. Finally, Petitioner has taken contradictory positions in this proceeding. Petitioner avers that the Award was rendered on June 3, 2023, and that payments were required to begin on April 1, 2023. It is undisputed that no cash payments 1 were made after April 1, 2023, rendering Petitioner’s theory of partial payments a nullity. II. THE VERIFIED PETITION MUST ALSO BE DENIED BECAUSE IT IS NOT SUPPORTED BY ADMISSIBLE EVIDENCE AS THE TRANSLATED ARBITRATION AWARD LACKS THE TRANSLATOR’S AFFIDAVIT OF ACCURACY. 12. Contrary to Petitioner’s contention, the Respondents are highly prejudiced by the absence of a proper translator’s affidavit certifying the truth and accuracy of the translated arbitration award, because Petitioner’s translation contains several material inaccuracies and therefore cannot be confirmed. First, Petitioner’s Translated Award states the award was issued on June 3, 2022, when it was issued on March 6, 2022. Second, Petitioner’s Translated Award 1 Respondents contend that they stopped making payments on April 1, 2023, because Petitioner fraudulently deposited an IRS check belong to Respondents and therefore credited themselves in that amount. 4 of 7 FILED: KINGS COUNTY CLERK 12/04/2023 06:14 PM INDEX NO. 526762/2023 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 12/04/2023 states that monthly installment payments are to begin “starting from next April 1st” when the award states that the monthly payments are to begin “starting from the upcoming April 1.” III. THE COURT SHOULD NOT ENTER A MONEY JUDGMENT IN THE AMOUNT OF $153,000 PLUS INTEREST BECAUSE IT CONFLICTS WITH THE TERMS AND INTENT OF THE ARBITRATION AWARD. 13. Even had the Verified Petition been timely filed and was supported by admissible evidence, the court should not add interest to the award. A judgment should not be more burdensome than the award itself. Rand Const. Co. v Rockland County, 21 AD2d 826, 826-27 (2d Dept 1964). The Beth Din Award did not order the Respondents to pay Petitioner a lump sum of money, or even to make installment payments. The Award merely provided that in exchange for the Respondents receiving full ownership of the Company, the Respondents must pay the Petitioner $3,500 a month until the sum of $153,000 is paid so long as the Respondents are engaged in their current business. A “court should adopt the most reasonable meaning of the text by avoiding any potential interpretations of the award that would render any part of its language superfluous or lead to an absurd result.” Pine St. Assoc., L.P. v Southridge Partners, L.P., 107 AD3d 95, 100 (1st Dept 2013). CONCLUSION 14. The Court must deny and dismiss the Verified Petition because it was filed well over a year after the delivery of the arbitration award and is thus time barred by operation of law. The partial payments made by the Respondents following the award cannot extend the statute of limitations because the statute of limitations is based on the delivery of the award, not compliance therewith. Moreover, the Verified Petition is defective because it lacks an affidavit by 5 of 7 FILED: KINGS COUNTY CLERK 12/04/2023 06:14 PM INDEX NO. 526762/2023 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 12/04/2023 the translator stating the translator’s qualifications and that the translation is accurate, prejudicing the Respondents who contest the translation. Finally, even if the Verified Petition was timely and supported by admissible evidence, a money judgment in the amount of $153,000 should not be entered because the Beth Din awarded (1) monthly payments, (2) capped at $153,000, (3) conditioned on Respondents continuation in the freight trucking business, and because Petitioner has already received payment in the amount of $65,910.90. WHEREFORE, the Court should grant the relief requested herein, together with such other and further relief as is just and proper. Dated: New York, New York December 4, 2023 APPEL P.C. By: /s/ Israel T. Appel Israel T. Appel 11 Broadway, Suite 615 New York, New York 10004 (212) 551-1010 iappel@appelpc.com Attorneys for Respondents Freeway Carriers Inc., Chaim Eliyahu Posner, and Judith Posner 6 of 7 FILED: KINGS COUNTY CLERK 12/04/2023 06:14 PM INDEX NO. 526762/2023 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 12/04/2023 CERTIFICATE OF COMPLIANCE WITH 22 NYCRR 202.8(B) AND RULE 130 The undersigned attorney for Respondents Freeway Carriers Inc., Chaim Eliyahu Posner, and Judith Posner certifies under Section 202.8-b the Uniform Civil Rules for the Supreme Court and the County Court that the word count for the foregoing affirmation is 1,502 words, exclusive of the caption, table of contents, table of authorities, and signature block as counted by the word processing program: Microsoft Word. The number of words in the above submission does not exceed 4,200 words as required for reply affidavits, affirmations and memorandum of law. Dated: December 4, 2023 New York, New York APPEL P.C. /s/ Israel T. Appel By: ____________________ Israel T. Appel 11 Broadway, Suite 615 New York, New York 10004 (212) 551-1010 iappel@appelpc.com 7 of 7