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Philip R. Berwish, Esq.
155 Water Street
Brooklyn, New York I 1201
(917) 832-1567
AffornevfiJ,. the Plainfi{l
Yel11Ida Fulda
SUPREME COURT OF THE STATE"OF :\JEW YORK
COUNTY OF KINGS: COMMERCIAL DIVISION
--------------------"----------------x
INDEX NO. 500321/2009
YEHUDA FULDA,
PI~jllfiff
against Â
ELI S. MILES,
Defendant
-----.;.--------x
AFFII1AVIT OF YEHUDA FULDA
IN SUPPORT OF THE OPPOSITION TO DEFENDANT'S MOTION TO DISMISS, AND
PLAINTIFF'S CRO$S:-MOTION TO COMPEL ARBITRATION
Ychuda Fulda, being duly ~lWorn, deposes and says:
1. I am Yehuda Fulda, the Plai nli ff in the above entitled action, and make this
affidavit based upon my personal knowledge of the facts and circumstances relating
hereto. except where indicated to be based upon information and belief, and where based
upon information and belieC I believe the same to be true.
I submit this affidavit in support of Illy opposition to the Defendant's motion to
dismiss, and in support of my cross-motion seeking to enforce the arbitration clause
contained in the written instruments evidencing the loans, and to compel arbitration.
3. I have reviewed the Defendanfs motion to dismiss, the memorandum in support
of his motion to dismiss. and the Affidavit of Eli S. Miles in support of his motion to
dismiss.
Contrary to the allegations made by Mr. Miles. at no time was Net2Phone
specified as a basis for a loan or all investment. The Iska contract is not secured by a
Net2Phone receivable, which it would have been if it was the basis of a loan or
I
investment. Nor does Mr. Miles disclose \-"hy he never sought to collect on his
claim to be owed monies from Nct2Phone. Net2Phone is a red herring and is not relevant
to this action.
5. Mr. Miles allegations, at paragl'aph 10 of his affidavit. contradicts the terms and
provisions of the written instruments h0 admits to having signed.
7. I categorically deny the alleghlio!1s that r defrauded, misrepresented or mislead
Mr. Miles in any way. r never reptcselfted to Mr. Miles that the Iska contract was not
enforceable or not intended to b~ enforceable.
8. Mr. Miles accepted monies froni me willingly and signed the Iska Contracts
, ,
knowingly and willingly, with full k11()tvledge of what they are, what they represent, and
with the intent that they be enfor:ceabk. As Mr. Miles notes in his affidavit, both he and I
are observant jews and, upon information and belief, Mr. Miles is fully familiar with Iska
contracts. Mr. Miles' allegations of j~'alld arc false, illogical and inconsistent (Miles
AffIdavit, at paragraph 20). Mr! Mill!s claims there were representations that the Iska
contracts were not enforceable,foJlo\vcd by the allegation the purpose was to permit me
to charge 10% interest on the ·'Loan';'. Mr. Miles fails to provide a cogent explanation as
to why anyone would bother to sign an unenforceable document for the purpose of
i
charging interest that was never going to be collected. Even Mr. Miles explanation at
paragraph 19 of his Affidavit dqes not sct forth a fraudulent inducement as by his own
It
words, "the plaintiff wanted me to sign in order for the Plaintiff to be allowed to charge
10% interest on the moncy still n()t r~lxijd". It is clear that Mr. Miles fully understood the
terms and intent of the fska contract. He merely finds them to be inconvenient at this
time. Moreover, monies weteprovided at the time of signing the Iska contracts.
9. Mr. Miles has admitted taking rllonies from me and failing to repay those monies,
despite representing that he would d0 so. J am the one who has been defrauded.
J
10. Mr. Miles has admitted that thei'c were previous attempts to collect the monies.
Mr. Miles fails to recite that he was subpoenaed by a rabbinical court but that he
disregarded the summons just as he bus attempted to avoid all efforts to seek repayment.
11. The allegations made by Mr. Miles in his aflidavit are at odds with the language
of the documents (i.e. the Iska contracts). M1'. Miles cannot now rewrite the terms of the
agreement by affidavit simply hecallse he continues to avoid repayment of the monies he
admits to having received.
Mr. Miles attempts to have things both ways (actually, more than both ways)
when he claims at paragraph 14 of his aHidavit that even if the Iska contracts are not a
nullity (they are not a nullity): I was 110t entitled to profits because we were to share
losses equally. The Iska contractsspd~k for tbemselves. Among other things, Mr. Miles,
obligated himself to use the monies in a manner he believed would generate profits.
13. The third paragraph of the Iska contract provides, in pertinent part, as follows:
"If these profits are being paid in a timely manner, the
retilrn of the sum invested herewith shall not be required
until December 30, 2003. However. at the Investing
Pal!!lerS option he may waive the due date and allow for
later payment. -, (emphasis supplied)
14. I waived the December 30, 2003 due date as I am permitted to do under the
terms of the Iska contract and aJ lo"ved rot later payment. I contend that the six years must
start from the date of default. TIle defatllt occurred when Mr. Miles refused to pay the
Heter Iska and I summoned him to a 8eth Din, on July 14, 2004. Consequently, this
action was commenced within six (6) years of the default by Mr. Miles, prior to July 14,
2010.
I S. In addition, it is undisptlted that the Iska contract contains a mandatory
arbitration clause. Mr. Miles has already ignored one summons from a rabbinical comt. I
respectfully request the arbitration provision be enforced, and Mr. Miles be compelled to
3
attend and participate in a Beth Din. The last paragraph of the Iska contract which Mr.
Miles admits to having signed. reads as follO\vs:
"This agt'eement shall follow the guidelines of Heter Iska
as explained in S"ejer Bris Yehudah. It is agreed that any
dispute which may aris~in connection with this agreement
shajlbe submitted before a frum Bais din."
(emphasis supplied)
16. The language of the Iska contract is not vague or open to interpretation. It
mandates any dispute be submitted to ~tfrum Bais din. It is undisputed that there is a
dispute between Mr. NIiles and lUySelf. Presumably, this would include Mr. Miles'
allegations against me as well as my allegations set forth against him. The frum Bais din
is the proper forum for a determiilatioil in this action.
17. With reference to the prior litigation dismissed on or about March 30,2010, it is
my understanding the Court detei'mincd service upon Mr, Miles', accepted by his 17 year
old son at his home, was somehow improper service of process.
WHEREFORE: I respectfully request that the Court deny the Defendant's
motion to dismiss and all()w my cross-motion to enforce the arbitration clause and
compel the Defendant to attend and participate in an arbitration at a frum Bais
din. as mandated by the written agreement signed by the parties, and for such
other relief as the Court deems Just and proper.
SIGNED UNDER THE PAINS AND PENALTIES OF
OF .JULY, 2010
RJURY THIS C... DAY
Yehuda Fulda
4
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Philip R. Berwish, Esq. 155 Water Street Brooklyn, New York I 1201 (917) 832-1567 AffornevfiJ,. the Plainfi{l Yel11Ida Fulda SUPREME COURT OF THE STATE"OF :\JEW YORK COUNTY OF KINGS: COMMERCIAL DIVISION --------------------"----------------x INDEX NO. 500321/2009 YEHUDA FULDA, PI~jllfiff against  ELI S. MILES, Defendant -----.;.--------x AFFII1AVIT OF YEHUDA FULDA IN SUPPORT OF THE OPPOSITION TO DEFENDANT'S MOTION TO DISMISS, AND PLAINTIFF'S CRO$S:-MOTION TO COMPEL ARBITRATION Ychuda Fulda, being duly ~lWorn, deposes and says: 1. I am Yehuda Fulda, the Plai nli ff in the above entitled action, and make this affidavit based upon my personal knowledge of the facts and circumstances relating hereto. except where indicated to be based upon information and belief, and where based upon information and belieC I believe the same to be true. I submit this affidavit in support of Illy opposition to the Defendant's motion to dismiss, and in support of my cross-motion seeking to enforce the arbitration clause contained in the written instruments evidencing the loans, and to compel arbitration. 3. I have reviewed the Defendanfs motion to dismiss, the memorandum in support of his motion to dismiss. and the Affidavit of Eli S. Miles in support of his motion to dismiss. Contrary to the allegations made by Mr. Miles. at no time was Net2Phone specified as a basis for a loan or all investment. The Iska contract is not secured by a Net2Phone receivable, which it would have been if it was the basis of a loan or I investment. Nor does Mr. Miles disclose \-"hy he never sought to collect on his claim to be owed monies from Nct2Phone. Net2Phone is a red herring and is not relevant to this action. 5. Mr. Miles allegations, at paragl'aph 10 of his affidavit. contradicts the terms and provisions of the written instruments h0 admits to having signed. 7. I categorically deny the alleghlio!1s that r defrauded, misrepresented or mislead Mr. Miles in any way. r never reptcselfted to Mr. Miles that the Iska contract was not enforceable or not intended to b~ enforceable. 8. Mr. Miles accepted monies froni me willingly and signed the Iska Contracts , , knowingly and willingly, with full k11()tvledge of what they are, what they represent, and with the intent that they be enfor:ceabk. As Mr. Miles notes in his affidavit, both he and I are observant jews and, upon information and belief, Mr. Miles is fully familiar with Iska contracts. Mr. Miles' allegations of j~'alld arc false, illogical and inconsistent (Miles AffIdavit, at paragraph 20). Mr! Mill!s claims there were representations that the Iska contracts were not enforceable,foJlo\vcd by the allegation the purpose was to permit me to charge 10% interest on the ·'Loan';'. Mr. Miles fails to provide a cogent explanation as to why anyone would bother to sign an unenforceable document for the purpose of i charging interest that was never going to be collected. Even Mr. Miles explanation at paragraph 19 of his Affidavit dqes not sct forth a fraudulent inducement as by his own It words, "the plaintiff wanted me to sign in order for the Plaintiff to be allowed to charge 10% interest on the moncy still n()t r~lxijd". It is clear that Mr. Miles fully understood the terms and intent of the fska contract. He merely finds them to be inconvenient at this time. Moreover, monies weteprovided at the time of signing the Iska contracts. 9. Mr. Miles has admitted taking rllonies from me and failing to repay those monies, despite representing that he would d0 so. J am the one who has been defrauded. J 10. Mr. Miles has admitted that thei'c were previous attempts to collect the monies. Mr. Miles fails to recite that he was subpoenaed by a rabbinical court but that he disregarded the summons just as he bus attempted to avoid all efforts to seek repayment. 11. The allegations made by Mr. Miles in his aflidavit are at odds with the language of the documents (i.e. the Iska contracts). M1'. Miles cannot now rewrite the terms of the agreement by affidavit simply hecallse he continues to avoid repayment of the monies he admits to having received. Mr. Miles attempts to have things both ways (actually, more than both ways) when he claims at paragraph 14 of his aHidavit that even if the Iska contracts are not a nullity (they are not a nullity): I was 110t entitled to profits because we were to share losses equally. The Iska contractsspd~k for tbemselves. Among other things, Mr. Miles, obligated himself to use the monies in a manner he believed would generate profits. 13. The third paragraph of the Iska contract provides, in pertinent part, as follows: "If these profits are being paid in a timely manner, the retilrn of the sum invested herewith shall not be required until December 30, 2003. However. at the Investing Pal!!lerS option he may waive the due date and allow for later payment. -, (emphasis supplied) 14. I waived the December 30, 2003 due date as I am permitted to do under the terms of the Iska contract and aJ lo"ved rot later payment. I contend that the six years must start from the date of default. TIle defatllt occurred when Mr. Miles refused to pay the Heter Iska and I summoned him to a 8eth Din, on July 14, 2004. Consequently, this action was commenced within six (6) years of the default by Mr. Miles, prior to July 14, 2010. I S. In addition, it is undisptlted that the Iska contract contains a mandatory arbitration clause. Mr. Miles has already ignored one summons from a rabbinical comt. I respectfully request the arbitration provision be enforced, and Mr. Miles be compelled to 3 attend and participate in a Beth Din. The last paragraph of the Iska contract which Mr. Miles admits to having signed. reads as follO\vs: "This agt'eement shall follow the guidelines of Heter Iska as explained in S"ejer Bris Yehudah. It is agreed that any dispute which may aris~in connection with this agreement shajlbe submitted before a frum Bais din." (emphasis supplied) 16. The language of the Iska contract is not vague or open to interpretation. It mandates any dispute be submitted to ~tfrum Bais din. It is undisputed that there is a dispute between Mr. NIiles and lUySelf. Presumably, this would include Mr. Miles' allegations against me as well as my allegations set forth against him. The frum Bais din is the proper forum for a determiilatioil in this action. 17. With reference to the prior litigation dismissed on or about March 30,2010, it is my understanding the Court detei'mincd service upon Mr, Miles', accepted by his 17 year old son at his home, was somehow improper service of process. WHEREFORE: I respectfully request that the Court deny the Defendant's motion to dismiss and all()w my cross-motion to enforce the arbitration clause and compel the Defendant to attend and participate in an arbitration at a frum Bais din. as mandated by the written agreement signed by the parties, and for such other relief as the Court deems Just and proper. SIGNED UNDER THE PAINS AND PENALTIES OF OF .JULY, 2010 RJURY THIS C... DAY Yehuda Fulda 4