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FILED: KINGS COUNTY CLERK 08/11/2011 INDEX NO. 500201/2010
NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 08/11/2011
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
-------------------------------------------------------------x
YEHUDA FULDA,
Plaintiff Index No. 500201/2010
-against-
ELI S. MILES
Defendant
----------------------------------------------------------x
DEFENDANT ELI S. MILES’S MEMORANDUM OF LAW IN OPPOSITION TO
PLAINTIFF’S MOTION FOR CONTEMPT, SANCTIONS AND/OR
ALTERNATIVELY FOR JUDGMENT
Defendant Eli S. Miles (“Miles” or the “Defendant”), by his counsel, the Law Offices of
David Carlebach, Esq., submits this memorandum of law, along with the Affidavit of Eli S. Miles
(the “Miles Aff.”), Affirmation of David Carlebach, Esq., (the “Carlebach Aff.”) and the Exhibits
annexed thereto in opposition to plaintiff Yehuda Fulda’s (the “Plaintiff”) motion for contempt and
sanctions and/or alternatively for judgment (the “Motion”).
PRELIMINARY STATEMENT
1. The Motion must be dismissed due to numerous jurisdictional defects, including
failure to serve the entire Motion on Defendant, along with the necessary “notice” as required by
Judiciary Law § 756.
2. Furthermore, the Motion fails substantively as well.
3. Specifically, contrary to Plaintiff’s assertions, Defendant is ready, willing and able
to appear in front of Beth Din. In point of fact, Plaintiff now refuses to appear in front of Beth Din,
and wants to proceed in front of the secular court to prosecute the instant baseless Contempt Motion,
as a means of gaining a litigation advantage over the Defendant.
4. Moreover, the portion of the Motion seeking to hold Defendant in contempt pursuant
to Judiciary Law § 755 fails as well, since the alleged offense did not occur in “open court”, and the
fact that the Defendant withdrew his cross-motion at the April 14, 2011 hearing shows that there is
no purpose to impose such penalty in order to preserve order in the court.
5. Accordingly, the Court must deny the Motion in its entirety.
STATEMENT OF FACTS
6. On April 25, 2011, Plaintiff filed a contempt motion which was defective on its face
and rejected by the clerk. See, Court’s Electronic Filing Docket, document 47 (Notice of Motion
Returned for Correction). Plaintiff served this defective motion on Defendant. Miles Aff., ¶ 2.
7. On April 27, 2011, Plaintiff filed a “Corrected” Notice of Motion, and a “Corrected”
motion, which was still procedurally and jurisdictionally defective on its face due to its failure to
comply with the “notice” requirements of Judiciary Law § 756. See, Argument, Point I, infra.
8. Plaintiff mailed the “corrected” notice of motion and “corrected” motion, dated April
27, 2011, which did not contain the entire application, but only made reference to the papers in
support of the application, filed and served on April 25, 2011. Defendant did not waive the
requirement to be served with proper notice along with the entire application. See, “Corrected”
Motion, Aff. of Service; Miles Aff., ¶¶ 2-3.
9. Thus, Plaintiff has failed to properly serve the instant application. See, Argument,
Point II, infra.
10. Aside from the procedural and jurisdictional defects which mandate the denial of the
Motion, the Motion fails substantively as well. This is because Defendant has not disobeyed the
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Court’s August 5, 2010 Order to submit this matter to Beth Din, and is ready, willing and able to do
so. Miles Aff., ¶ 6.
11. Specifically, on or around June 3, 2011, Defendant executed what is known as an
agreement to arbitrate (“Shtarei Berurin”), which Defendant’s counsel, David Carlebach, Esq.,
submitted to the Beth Din of America (“BDA”). Miles Aff., ¶ 6; Carlebach Aff., ¶ 2; Exhibit A.
12. Significantly, just prior to executing the Shtarei Berurin, as evidenced by Mr.
Carlebach’s cover e-mail, Mr. Carlebach had a conversation with Rabbi Shlomo Weissman, Director
of the BDA, concerning certain changes to the form Shtarei Berurin, which Rabbi Weissman
approved. Those changes, set forth in the Addendum, concerned ensuring that the arbitrators be
unbiased, that Defendant get a fair hearing in front of the BDA, and that Plaintiff no longer proceed
in secular court. Id., ¶ 3; Exhibit A (Addendum).
13. Notably, such changes, relating to scope of the arbitration proceeding and eligibility
of arbitrators, are routine when executing Beth Din arbitration agreements. Id., ¶ 4.
14. Subsequently, on or around June 15, 2011, Mr. Carlebach spoke to Rachel Marks,
Esq., Administrative Attorney for the BDA, who informed him that Plaintiff did not want to
countersign the Shtarei Berurin due to the changes made. This surprised Mr. Carlebach, as these
routine changes were already approved by Rabbi Weissman, and only related to giving Defendant
a fair and unbiased hearing before the BDA, and that Plaintiff no longer proceed in secular court,
since Defendant is ready to appear in front of the BDA. Mr. Carlebach protested to Ms. Marks that
Plaintiff had no right to object to the changes based on the above. Id., ¶ 5.
15. Shortly thereafter, on that same day, Rabbi Weissman called Mr. Carlebach and
stated that Plaintiff’s refusal to execute the Shtarei Berurin had nothing to do with the changes
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(which were approved by Rabbi Weissman), but that Plaintiff wanted to proceed in secular court
because Plaintiff perceived that he had a litigation advantage due to the instant Motion. Id., ¶ 6.
16. Mr. Carlebach told Rabbi Weissman that, under these circumstances, the BDA should
revoke the Heter Arkaos (permission to proceed in secular court) which it had previously issued
based on Defendant’s alleged failure to cooperate in appearing in front of Beth Din. The revocation
of the Heter Arkaos would effectively compel Plaintiff to appear before the Beth Din. Id., ¶ 7;
Exhibit B.
17. Rabbi Weissman informed Mr. Carlebach that, notwithstanding Defendant’s
willingness to appear before the BDA evidenced by his signing of the Shtarei Berurin, the BDA, as
a matter of policy, would not revoke the Heter Arkaos. Id., ¶ 8.
18. Mr. Carlebach responded to Rabbi Weisman that, according to black letter Jewish
Law, based on the fact that the Defendant signed a Shtarei Berurin, and is willing to appear in front
of the BDA, the BDA must revoke the Heter Arkaos. Id., ¶ 9.
19. Rabbi Weissman disputed this, and told Mr. Carlebach, amazingly, that he should ask
the secular court for an order forcing Plaintiff to appear in front of Beth Din. Id., ¶ 10.
20. Mr. Carlebach tried repeatedly to explain to Rabbi Weissman that such an order
already exists, i.e., the August 5, 2010 Order, and that the purpose of the Heter Arkaos was to get
Defendant to appear in front of Beth Din pursuant to this order. Id., ¶ 11.
21. Rabbi Weissman left it that the BDA would do nothing, but allow Plaintiff to proceed
in secular court. Id., ¶ 12.
22. Based on the foregoing, on July 26, 2011, Mr. Carlebach e-mailed the following to
Plaintiff’s attorney:
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Dear Mr. Berwish:
As you may be aware, my client Eli Miles signed a Shtarei Berurin
with the RCA indicating his willingness to go to Beth Din. The RCA
subsequently advised us that your client is no longer willing to go to
Beth Din given his perceived litigation advantage in court. If that is
the case please withdraw your motion for contempt.
David Carlebach
Id., ¶ 13; Exhibit C.
23. On July 27, 2011, Plaintiff’s counsel responded to Mr. Carlebach’s e-mail, stating
that Plaintiff will not withdraw his Motion, since, inter alia, the changes Defendant made to the form
Shtarei Berurin “were unacceptable to the Beth Din, and to Mr. Fulda.” Id., ¶ 14; Exhibit D.
24. It is obvious that Plaintiff’s refusal to withdraw the pending Motion is done in utter
bad faith, and his continued prosecution of the Motion is frivolous and sanctionable. In point of fact,
upon information and belief, up until the point of his July 27, 2011 correspondence, Plaintiff had not
even seen a copy of the Shtarei Berurin executed by Defendant. This is evidenced by the fact that,
on July 28, 2011, Mr. Carlebach received an e-mail from Ms. Marks that Plaintiff requested a copy
of the Shtarei Berurin signed by Defendant, and she asked Mr. Carlebach if he would consent to
such disclosure. Id., ¶ 15; Exhibit E.
25. Clearly, Plaintiff’s assertion that the changes to the Shtarei Berurin form were
unacceptable to him prior to even seeing such changes demonstrates, beyond cavil, that said
assertion is nothing more than a red herring. Plaintiff’s conduct is transparent gamesmanship,
whereby he is now refusing to submit to Beth Din and withdraw the instant Motion because of a
perceived litigation advantage in the secular court. Id., ¶ 16.
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26. In any event, Defendant is willing to sign the form Shtarei Berurin without any
additions, in order to remove any possible excuse by Plaintiff for not appearing in Beth Din. Miles
Aff., ¶ 10.
27. Accordingly, as Defendant is ready, willing and able to submit to Beth Din, he cannot
be adjudged in contempt. Thus, the Motion must be denied.
28. Finally, the portion of the Motion to hold Defendant in contempt pursuant to New
York Judiciary Law § 755 must be denied as well.
29. This is because, at the April 14, 2011 Hearing, Defendant withdrew his cross-motion
which included the alleged offending exhibit. Carlebach Aff., ¶ 20; Exhibit F. Since the alleged
offending exhibit was withdrawn, the alleged offense did not occur in “open court”, and the cross-
motion is no longer before the Court. Thus, there is nothing in front of the Court on which to
summarily adjudge Defendant in contempt. See, Argument, Point IV, infra.
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ARGUMENT
I
THE MOTION MUST BE DENIED SINCE THE
APPLICATION WAS NOT PROPERLY SERVED ON
DEFENDANT, AS THE CORRECTED NOTICE OF MOTION
AND MOTION FAILED TO CONTAIN ALL OF THE
MOVING PAPERS
30. In the first instance, the Court must deny the Motion due to improper service.
31. In that regard, N.Y. Judiciary Law § 756 (“Section 756”) provides, inter alia:
The application shall contain on its face a notice....
[emphasis added].
N.Y. Judiciary Law, § 756.
32. Thus, the entire application, i.e., all the moving papers, must be served with the
proper notice. Although, as set forth below (Argument Point II, infra), the Plaintiff failed to comply
with the “notice” requirement, the Motion is jurisdictionally defective in any event as the Plaintiff
failed to serve the “Corrected” Notice of Motion, which it filed and served on April 27, 2011, along
with the underlying papers, which it filed and served on April 25, 2011. In his “Corrected” papers
filed and served on April 27, 2011, Plaintiff only makes reference to the underlying affidavits and
exhibits, which does not meet the strict procedural burden required in contempt proceedings.
33. The applicable rule requiring strict compliance with even the most technical aspects
of Section 756 is set forth in People ex rel. Clarke v. Truesdell, Sup., 79 N.Y.S.2d 413, 415 (S.C.
Orange Co. 1948):
It is a firmly entrenched principle that the power of the court to
punish for contempt cannot be extended in the least degree beyond
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the limits which have been imposed by statute. Rutherford v.
Holmes, 5 Hun. 317, affirmed 66 N.Y. 368; People ex rel. Supreme
Court v. Albertson, 242 App.Div. 450, 275 N.Y.S. 361; Fromme v.
Gray, 14 Misc. 592, 36 N.Y.S. 1107, affirmed 148 N.Y. 695, 43 N.E.
215. Contempt proceedings are stricti juris. Goldie v. Goldie, 77
App.Div. 12, 14, 79 N.Y.S. 268, 269. Courts insist on strict and
literal construction of contempt statutes and accord the accused all
rights, even the most technical rights, which it may afford. In re
Berkon, 180 Misc. 659, 43 N.Y.S.2d 334, reversed on other grounds,
268 App.Div. 825, 49 N.Y.S.2d 551, affirmed 294 N.Y. 828, 62
N.E.2d 388.
People ex rel. Clarke v. Truesdell, supra, at 416.
34. As Section 756 clearly requires Plaintiff to serve the entire application with the
notice. Plaintiff’s piecemeal service of the Motion, in which the “Corrected” Notice of Motion was
not served with all the underlying motion papers, renders the Motion jurisdictionally defective.
Accordingly, the Motion must be denied.
II
ASIDE FROM THE LACK OF PROPER SERVICE, THE
CONTEMPT MOTION MUST BE DENIED SINCE THE
MOTION, BY ITS LACK OF “NOTICE” PROVISION, FAILS
TO COMPLY WITH N.Y. JUDICIARY LAW § 756
35. Furthermore, aside from the Plaintiff’s failure to properly serve the Motion, the
Motion is procedurally defective, as the face of the Motion fails to adhere to the strict requirement
that it contain a “notice” to Defendant, as mandated by Section 756.
36. In that regard, Section 756 provides, inter alia, that an application for contempt:
shall contain on its face a notice that the purpose of the hearing is to
punish the accused for a contempt of court, and that such punishment
may consist of fine or imprisonment, or both, according to law[....]
[emphasis added].
N. Y. Judiciary Law, § 756.
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37. Plaintiff’s “Notice” of Motion, however, contains only the following:
The purpose of this motion is to punish the
accused for a contempt of court, and that
such punishment may consist of fine or
imprisonment, or both.
[emphasis added].
See, Corrected “Notice” of Motion.
38. Obviously, the Plaintiff’s above “notice” fails to comply with the strict requirement
of Section 756, and, thus, the Motion is jurisdictionally defective and must be denied. See, Ortega,
et al., v. City of New York, 11 Misc.3d 848, 863, 809 N.Y.S.2d 884 (Supr. Ct., Kings County
2006)(“It is well settled that an application to punish for contempt that does not contain the warnings
required by Judiciary Law § 756 is jurisdictionally defective and should not be entertained by the
court.”)
39. In that regard, the word “notice” and/or the words “please take notice” is not included
in this sentence. Moreover, the “notice” is defective since it does not specify to the Defendant that
he is the one facing a contempt motion, but states that the motion is being made against the
“accused”. The foregoing procedural defects, which fails to convey to the Defendant the import of
the motion, or that he is the subject of the contempt motion, and, thus facing a possible severe
punishment, render the motion jurisdictionally defective. See, Bank Leumi Trust Company of New
York v. Taylor-Cishahyo, 147 Misc.2d 685, 689, 556 N.Y.S.2d 211, 214 (Civ. Ct. Queens Co.
1990)(The purpose of the “notice” requirement of Section 756 “is defeated when the notice is not
readily apparent to one reading the papers.”). Bank Leumi, supra, was cited with approval by the
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Second Department in Matter of Dawn P., 180 A.D.2d 800, 580 N.Y.S.2d 436 (2nd Dep’t 1992) and
Lada v. Lada, 220 A.D.2d 665, 632 N.Y.S.2d 641 (2nd Dep’t 1995).
40. The failure for Plaintiff to comply with the strict procedural requirement of the notice
provision of Section 756 renders the Motion jurisdictionally defective. In re Berkon, 180 Misc. 659,
43 N.Y.S.2d 334
41. Accordingly the Motion must be denied in its entirety.
III
ASIDE FROM THE JURISDICTIONAL AND PROCEDURAL
DEFECTS, WHICH THE DEFENDANT DOES NOT WAIVE,
THE DEFENDANT IS NOT IN CONTEMPT OF COURT,
SINCE THE DEFENDANT IS READY, WILLING AND ABLE
TO APPEAR BEFORE BETH DIN, AND IT IS PLAINTIFF
WHO REFUSES TO APPEAR BEFORE BETH DIN BECAUSE
HE PERCEIVES HE HAS A LITIGATION ADVANTAGE IN
SECULAR COURT
1. Defendant has not Shown, by Clear and Convincing Evidence, that the Defendant
Should be Held in Civil Contempt.
42. To prevail on a motion to punish a party for civil contempt, the movant must
demonstrate that the party so charged violated a clear and unequivocal court order, and that
prejudice resulted. Kalish v. Lindsay, 47 A.D.3d 889, 891, 850 N.Y.S.2d 599 (2nd Dep’t 2008).
43. Contempt must be proven by clear and convincing evidence. Id.
44. As set forth herein, the Defendant is not in contempt of the Order, since he executed
a Shtarei Berurin with changes pre-approved by the BDA.
45. In point of fact, Plaintiff now refuses to appear in front of Beth Din, as he perceives
that he has a litigation advantage in secular court.
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46. Furthermore, to take away any excuse Plaintiff may have to appear in front of Beth
Din, Defendant is ready, willing and able to execute the form Shtarei Berurin without any of the
changes to which Plaintiff raised frivolous objections to.
47. Accordingly, Defendant cannot be held in civil contempt.
3. Plaintiff has not Shown, Beyond a Reasonable Doubt, that the Defendant Should be
Held in Criminal Contempt.
48. In order to be held in criminal contempt, the Plaintiff must establish that the
Defendant violated a clear and unequivocal court mandate. In re Rubackin, 62 A.D.3d 11, 21, 875
N.Y.S.2d 90 (2nd Dep’t 2009).
49. The standard for criminal contempt is proof beyond a reasonable doubt. Id.
50. The Defendant cannot be held in criminal contempt for the same reasons that he
cannot be held in civil contempt.
51. Specifically, Defendant is ready, willing and able to appear in front of Beth Din and
it is the Plaintiff who refuses to appear in front of Beth Din because he perceives he has a litigation
advantage in secular court.
52. Accordingly, Defendant cannot be held in criminal contempt.
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IV
THE PLAINTIFF CANNOT BE HELD IN CONTEMPT
PURSUANT TO JUDICIARY LAW § 755, AS THE ALLEGED
OFFENSE WAS NOT COMMITTED IN THE IMMEDIATE
VIEW OF THE COURT, AND, IN ANY EVENT, THE
DEFENDANT WITHDREW HIS CROSS-MOTION AT THE
APRIL 14, 2011 HEARING
53. The portion of Plaintiff’s Motion to hold Defendant in contempt pursuant to § 755
of the Judiciary Law (“Section 755”) must be denied.
54. This is because Plaintiff has failed to satisfy any of the requirements of Section 755.
In that regard, Section 755 provides, inter alia, that the offense must be committed “in the
immediate view and presence of the court. N. Y. Judiciary Law, § 755.
55. As the alleged offense was not committed in the immediate view of the court, the
Court cannot hold the Defendant in contempt under Section 755.
56. Moreover, the alleged offense did not disrupt any proceeding conducted by the Court.
In point of fact, the Defendant withdrew his cross-motion, which included the alleged offending
exhibit, at the April 14, 2011 Hearing, as evidenced by the Court’s Order of that date. Exhibit F.
57. Thus, no proceeding was disrupted.
58. As set forth by the Second Department in People v. Jeter, 116 A.D.2d 558, 497
N.Y.S.2d 414 (2nd Dep’t 1986), concerning the Court’s summary contempt power pursuant to
Section 755:
The purpose of the summary contempt power has been clearly set
forth by both our Court of Appeals and the United States Supreme
Court. In Matter of Katz v. Murtagh, 28 N.Y.2d 234, 238, 321
N.Y.S.2d 104, 269 N.E.2d 816, the Court of Appeals stated:
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“It is the need for the preservation of the immediate order in the
courtroom which justifies the summary procedure--one so summary
that the right and need for an evidentiary hearing, counsel,
opportunity for adjournment, reference to another Judge, and the like,
are not allowable because it would be entirely frustrative of the
maintenance of order. Of course, such rigorous procedure is justified
only be necessity and must then be based upon contemptuous conduct
committed in the view and presence of the presiding Justice”.
The United States Supreme Court stated in Cooke v. United States,
267 U.S. 517, 534, 45 S.Ct. 390, 394, 69 L.Ed. 767:
“To preserve order in the court room for the proper conduct of
business, the court must act instantly to suppress disturbance or
violence or physical obstruction or disrespect to the court when
occurring in open court. There is no need of evidence or assistance
of counsel before punishment, because the court has seen the offense.
Such summary vindication of he court’s dignity and authority is
necessary”.
People v. Jeter, supra, at 415, 416.
59. Thus, to be held in contempt under Section 755, the offense must be committed in
“open court” and summary punishment must be necessary to preserve order in the court.
60. In this case, the alleged offense did not occur in “open court”, and there is no need
to render summary punishment to preserve order in the court. In point of fact, the Defendant, at the
April 14, 2011, withdrew his Cross-Motion, upon which the alleged offending exhibit was based,
there is no issue before the Court for which it must invoke its summary contempt powers.
61. Accordingly, the portion of the Motion seeking to hold Defendant in contempt
pursuant to Section 755 must be denied.
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V
THE COURT SHOULD DENY PLAINTIFF’S REQUEST FOR
SANCTIONS AND JUDGMENT.
62. Since, as set forth extensively above, the Court must deny the Motion, on jurisdiction,
procedural, as well as substantive grounds, the balance of the relief requested in the Motion, i.e.,
sanctions and judgment, must be denied as well.
CONCLUSION
63. For the foregoing reasons, the Court should deny Plaintiff’s Motion in its entirety.
WHEREFORE, Defendant respectfully requests that the Court enter an order denying the
Motion, and granting such other, further and different relief as it deems just and proper.
Dated: New York, New York
August 11, 2011
Respectfully submitted,
LAW OFFICES OF DAVID CARLEBACH, ESQ.
Attorneys for the Defendant
By:/s/ Samuel Diamantstein
Samuel Diamantstein, Esq.
40 Exchange Place, Suite 1306
New York, New York 10005
(212) 785-3041
14
Preview
FILED: KINGS COUNTY CLERK 08/11/2011 INDEX NO. 500201/2010 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 08/11/2011 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -------------------------------------------------------------x YEHUDA FULDA, Plaintiff Index No. 500201/2010 -against- ELI S. MILES Defendant ----------------------------------------------------------x DEFENDANT ELI S. MILES’S MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF’S MOTION FOR CONTEMPT, SANCTIONS AND/OR ALTERNATIVELY FOR JUDGMENT Defendant Eli S. Miles (“Miles” or the “Defendant”), by his counsel, the Law Offices of David Carlebach, Esq., submits this memorandum of law, along with the Affidavit of Eli S. Miles (the “Miles Aff.”), Affirmation of David Carlebach, Esq., (the “Carlebach Aff.”) and the Exhibits annexed thereto in opposition to plaintiff Yehuda Fulda’s (the “Plaintiff”) motion for contempt and sanctions and/or alternatively for judgment (the “Motion”). PRELIMINARY STATEMENT 1. The Motion must be dismissed due to numerous jurisdictional defects, including failure to serve the entire Motion on Defendant, along with the necessary “notice” as required by Judiciary Law § 756. 2. Furthermore, the Motion fails substantively as well. 3. Specifically, contrary to Plaintiff’s assertions, Defendant is ready, willing and able to appear in front of Beth Din. In point of fact, Plaintiff now refuses to appear in front of Beth Din, and wants to proceed in front of the secular court to prosecute the instant baseless Contempt Motion, as a means of gaining a litigation advantage over the Defendant. 4. Moreover, the portion of the Motion seeking to hold Defendant in contempt pursuant to Judiciary Law § 755 fails as well, since the alleged offense did not occur in “open court”, and the fact that the Defendant withdrew his cross-motion at the April 14, 2011 hearing shows that there is no purpose to impose such penalty in order to preserve order in the court. 5. Accordingly, the Court must deny the Motion in its entirety. STATEMENT OF FACTS 6. On April 25, 2011, Plaintiff filed a contempt motion which was defective on its face and rejected by the clerk. See, Court’s Electronic Filing Docket, document 47 (Notice of Motion Returned for Correction). Plaintiff served this defective motion on Defendant. Miles Aff., ¶ 2. 7. On April 27, 2011, Plaintiff filed a “Corrected” Notice of Motion, and a “Corrected” motion, which was still procedurally and jurisdictionally defective on its face due to its failure to comply with the “notice” requirements of Judiciary Law § 756. See, Argument, Point I, infra. 8. Plaintiff mailed the “corrected” notice of motion and “corrected” motion, dated April 27, 2011, which did not contain the entire application, but only made reference to the papers in support of the application, filed and served on April 25, 2011. Defendant did not waive the requirement to be served with proper notice along with the entire application. See, “Corrected” Motion, Aff. of Service; Miles Aff., ¶¶ 2-3. 9. Thus, Plaintiff has failed to properly serve the instant application. See, Argument, Point II, infra. 10. Aside from the procedural and jurisdictional defects which mandate the denial of the Motion, the Motion fails substantively as well. This is because Defendant has not disobeyed the 2 Court’s August 5, 2010 Order to submit this matter to Beth Din, and is ready, willing and able to do so. Miles Aff., ¶ 6. 11. Specifically, on or around June 3, 2011, Defendant executed what is known as an agreement to arbitrate (“Shtarei Berurin”), which Defendant’s counsel, David Carlebach, Esq., submitted to the Beth Din of America (“BDA”). Miles Aff., ¶ 6; Carlebach Aff., ¶ 2; Exhibit A. 12. Significantly, just prior to executing the Shtarei Berurin, as evidenced by Mr. Carlebach’s cover e-mail, Mr. Carlebach had a conversation with Rabbi Shlomo Weissman, Director of the BDA, concerning certain changes to the form Shtarei Berurin, which Rabbi Weissman approved. Those changes, set forth in the Addendum, concerned ensuring that the arbitrators be unbiased, that Defendant get a fair hearing in front of the BDA, and that Plaintiff no longer proceed in secular court. Id., ¶ 3; Exhibit A (Addendum). 13. Notably, such changes, relating to scope of the arbitration proceeding and eligibility of arbitrators, are routine when executing Beth Din arbitration agreements. Id., ¶ 4. 14. Subsequently, on or around June 15, 2011, Mr. Carlebach spoke to Rachel Marks, Esq., Administrative Attorney for the BDA, who informed him that Plaintiff did not want to countersign the Shtarei Berurin due to the changes made. This surprised Mr. Carlebach, as these routine changes were already approved by Rabbi Weissman, and only related to giving Defendant a fair and unbiased hearing before the BDA, and that Plaintiff no longer proceed in secular court, since Defendant is ready to appear in front of the BDA. Mr. Carlebach protested to Ms. Marks that Plaintiff had no right to object to the changes based on the above. Id., ¶ 5. 15. Shortly thereafter, on that same day, Rabbi Weissman called Mr. Carlebach and stated that Plaintiff’s refusal to execute the Shtarei Berurin had nothing to do with the changes 3 (which were approved by Rabbi Weissman), but that Plaintiff wanted to proceed in secular court because Plaintiff perceived that he had a litigation advantage due to the instant Motion. Id., ¶ 6. 16. Mr. Carlebach told Rabbi Weissman that, under these circumstances, the BDA should revoke the Heter Arkaos (permission to proceed in secular court) which it had previously issued based on Defendant’s alleged failure to cooperate in appearing in front of Beth Din. The revocation of the Heter Arkaos would effectively compel Plaintiff to appear before the Beth Din. Id., ¶ 7; Exhibit B. 17. Rabbi Weissman informed Mr. Carlebach that, notwithstanding Defendant’s willingness to appear before the BDA evidenced by his signing of the Shtarei Berurin, the BDA, as a matter of policy, would not revoke the Heter Arkaos. Id., ¶ 8. 18. Mr. Carlebach responded to Rabbi Weisman that, according to black letter Jewish Law, based on the fact that the Defendant signed a Shtarei Berurin, and is willing to appear in front of the BDA, the BDA must revoke the Heter Arkaos. Id., ¶ 9. 19. Rabbi Weissman disputed this, and told Mr. Carlebach, amazingly, that he should ask the secular court for an order forcing Plaintiff to appear in front of Beth Din. Id., ¶ 10. 20. Mr. Carlebach tried repeatedly to explain to Rabbi Weissman that such an order already exists, i.e., the August 5, 2010 Order, and that the purpose of the Heter Arkaos was to get Defendant to appear in front of Beth Din pursuant to this order. Id., ¶ 11. 21. Rabbi Weissman left it that the BDA would do nothing, but allow Plaintiff to proceed in secular court. Id., ¶ 12. 22. Based on the foregoing, on July 26, 2011, Mr. Carlebach e-mailed the following to Plaintiff’s attorney: 4 Dear Mr. Berwish: As you may be aware, my client Eli Miles signed a Shtarei Berurin with the RCA indicating his willingness to go to Beth Din. The RCA subsequently advised us that your client is no longer willing to go to Beth Din given his perceived litigation advantage in court. If that is the case please withdraw your motion for contempt. David Carlebach Id., ¶ 13; Exhibit C. 23. On July 27, 2011, Plaintiff’s counsel responded to Mr. Carlebach’s e-mail, stating that Plaintiff will not withdraw his Motion, since, inter alia, the changes Defendant made to the form Shtarei Berurin “were unacceptable to the Beth Din, and to Mr. Fulda.” Id., ¶ 14; Exhibit D. 24. It is obvious that Plaintiff’s refusal to withdraw the pending Motion is done in utter bad faith, and his continued prosecution of the Motion is frivolous and sanctionable. In point of fact, upon information and belief, up until the point of his July 27, 2011 correspondence, Plaintiff had not even seen a copy of the Shtarei Berurin executed by Defendant. This is evidenced by the fact that, on July 28, 2011, Mr. Carlebach received an e-mail from Ms. Marks that Plaintiff requested a copy of the Shtarei Berurin signed by Defendant, and she asked Mr. Carlebach if he would consent to such disclosure. Id., ¶ 15; Exhibit E. 25. Clearly, Plaintiff’s assertion that the changes to the Shtarei Berurin form were unacceptable to him prior to even seeing such changes demonstrates, beyond cavil, that said assertion is nothing more than a red herring. Plaintiff’s conduct is transparent gamesmanship, whereby he is now refusing to submit to Beth Din and withdraw the instant Motion because of a perceived litigation advantage in the secular court. Id., ¶ 16. 5 26. In any event, Defendant is willing to sign the form Shtarei Berurin without any additions, in order to remove any possible excuse by Plaintiff for not appearing in Beth Din. Miles Aff., ¶ 10. 27. Accordingly, as Defendant is ready, willing and able to submit to Beth Din, he cannot be adjudged in contempt. Thus, the Motion must be denied. 28. Finally, the portion of the Motion to hold Defendant in contempt pursuant to New York Judiciary Law § 755 must be denied as well. 29. This is because, at the April 14, 2011 Hearing, Defendant withdrew his cross-motion which included the alleged offending exhibit. Carlebach Aff., ¶ 20; Exhibit F. Since the alleged offending exhibit was withdrawn, the alleged offense did not occur in “open court”, and the cross- motion is no longer before the Court. Thus, there is nothing in front of the Court on which to summarily adjudge Defendant in contempt. See, Argument, Point IV, infra. 6 ARGUMENT I THE MOTION MUST BE DENIED SINCE THE APPLICATION WAS NOT PROPERLY SERVED ON DEFENDANT, AS THE CORRECTED NOTICE OF MOTION AND MOTION FAILED TO CONTAIN ALL OF THE MOVING PAPERS 30. In the first instance, the Court must deny the Motion due to improper service. 31. In that regard, N.Y. Judiciary Law § 756 (“Section 756”) provides, inter alia: The application shall contain on its face a notice.... [emphasis added]. N.Y. Judiciary Law, § 756. 32. Thus, the entire application, i.e., all the moving papers, must be served with the proper notice. Although, as set forth below (Argument Point II, infra), the Plaintiff failed to comply with the “notice” requirement, the Motion is jurisdictionally defective in any event as the Plaintiff failed to serve the “Corrected” Notice of Motion, which it filed and served on April 27, 2011, along with the underlying papers, which it filed and served on April 25, 2011. In his “Corrected” papers filed and served on April 27, 2011, Plaintiff only makes reference to the underlying affidavits and exhibits, which does not meet the strict procedural burden required in contempt proceedings. 33. The applicable rule requiring strict compliance with even the most technical aspects of Section 756 is set forth in People ex rel. Clarke v. Truesdell, Sup., 79 N.Y.S.2d 413, 415 (S.C. Orange Co. 1948): It is a firmly entrenched principle that the power of the court to punish for contempt cannot be extended in the least degree beyond 7 the limits which have been imposed by statute. Rutherford v. Holmes, 5 Hun. 317, affirmed 66 N.Y. 368; People ex rel. Supreme Court v. Albertson, 242 App.Div. 450, 275 N.Y.S. 361; Fromme v. Gray, 14 Misc. 592, 36 N.Y.S. 1107, affirmed 148 N.Y. 695, 43 N.E. 215. Contempt proceedings are stricti juris. Goldie v. Goldie, 77 App.Div. 12, 14, 79 N.Y.S. 268, 269. Courts insist on strict and literal construction of contempt statutes and accord the accused all rights, even the most technical rights, which it may afford. In re Berkon, 180 Misc. 659, 43 N.Y.S.2d 334, reversed on other grounds, 268 App.Div. 825, 49 N.Y.S.2d 551, affirmed 294 N.Y. 828, 62 N.E.2d 388. People ex rel. Clarke v. Truesdell, supra, at 416. 34. As Section 756 clearly requires Plaintiff to serve the entire application with the notice. Plaintiff’s piecemeal service of the Motion, in which the “Corrected” Notice of Motion was not served with all the underlying motion papers, renders the Motion jurisdictionally defective. Accordingly, the Motion must be denied. II ASIDE FROM THE LACK OF PROPER SERVICE, THE CONTEMPT MOTION MUST BE DENIED SINCE THE MOTION, BY ITS LACK OF “NOTICE” PROVISION, FAILS TO COMPLY WITH N.Y. JUDICIARY LAW § 756 35. Furthermore, aside from the Plaintiff’s failure to properly serve the Motion, the Motion is procedurally defective, as the face of the Motion fails to adhere to the strict requirement that it contain a “notice” to Defendant, as mandated by Section 756. 36. In that regard, Section 756 provides, inter alia, that an application for contempt: shall contain on its face a notice that the purpose of the hearing is to punish the accused for a contempt of court, and that such punishment may consist of fine or imprisonment, or both, according to law[....] [emphasis added]. N. Y. Judiciary Law, § 756. 8 37. Plaintiff’s “Notice” of Motion, however, contains only the following: The purpose of this motion is to punish the accused for a contempt of court, and that such punishment may consist of fine or imprisonment, or both. [emphasis added]. See, Corrected “Notice” of Motion. 38. Obviously, the Plaintiff’s above “notice” fails to comply with the strict requirement of Section 756, and, thus, the Motion is jurisdictionally defective and must be denied. See, Ortega, et al., v. City of New York, 11 Misc.3d 848, 863, 809 N.Y.S.2d 884 (Supr. Ct., Kings County 2006)(“It is well settled that an application to punish for contempt that does not contain the warnings required by Judiciary Law § 756 is jurisdictionally defective and should not be entertained by the court.”) 39. In that regard, the word “notice” and/or the words “please take notice” is not included in this sentence. Moreover, the “notice” is defective since it does not specify to the Defendant that he is the one facing a contempt motion, but states that the motion is being made against the “accused”. The foregoing procedural defects, which fails to convey to the Defendant the import of the motion, or that he is the subject of the contempt motion, and, thus facing a possible severe punishment, render the motion jurisdictionally defective. See, Bank Leumi Trust Company of New York v. Taylor-Cishahyo, 147 Misc.2d 685, 689, 556 N.Y.S.2d 211, 214 (Civ. Ct. Queens Co. 1990)(The purpose of the “notice” requirement of Section 756 “is defeated when the notice is not readily apparent to one reading the papers.”). Bank Leumi, supra, was cited with approval by the 9 Second Department in Matter of Dawn P., 180 A.D.2d 800, 580 N.Y.S.2d 436 (2nd Dep’t 1992) and Lada v. Lada, 220 A.D.2d 665, 632 N.Y.S.2d 641 (2nd Dep’t 1995). 40. The failure for Plaintiff to comply with the strict procedural requirement of the notice provision of Section 756 renders the Motion jurisdictionally defective. In re Berkon, 180 Misc. 659, 43 N.Y.S.2d 334 41. Accordingly the Motion must be denied in its entirety. III ASIDE FROM THE JURISDICTIONAL AND PROCEDURAL DEFECTS, WHICH THE DEFENDANT DOES NOT WAIVE, THE DEFENDANT IS NOT IN CONTEMPT OF COURT, SINCE THE DEFENDANT IS READY, WILLING AND ABLE TO APPEAR BEFORE BETH DIN, AND IT IS PLAINTIFF WHO REFUSES TO APPEAR BEFORE BETH DIN BECAUSE HE PERCEIVES HE HAS A LITIGATION ADVANTAGE IN SECULAR COURT 1. Defendant has not Shown, by Clear and Convincing Evidence, that the Defendant Should be Held in Civil Contempt. 42. To prevail on a motion to punish a party for civil contempt, the movant must demonstrate that the party so charged violated a clear and unequivocal court order, and that prejudice resulted. Kalish v. Lindsay, 47 A.D.3d 889, 891, 850 N.Y.S.2d 599 (2nd Dep’t 2008). 43. Contempt must be proven by clear and convincing evidence. Id. 44. As set forth herein, the Defendant is not in contempt of the Order, since he executed a Shtarei Berurin with changes pre-approved by the BDA. 45. In point of fact, Plaintiff now refuses to appear in front of Beth Din, as he perceives that he has a litigation advantage in secular court. 10 46. Furthermore, to take away any excuse Plaintiff may have to appear in front of Beth Din, Defendant is ready, willing and able to execute the form Shtarei Berurin without any of the changes to which Plaintiff raised frivolous objections to. 47. Accordingly, Defendant cannot be held in civil contempt. 3. Plaintiff has not Shown, Beyond a Reasonable Doubt, that the Defendant Should be Held in Criminal Contempt. 48. In order to be held in criminal contempt, the Plaintiff must establish that the Defendant violated a clear and unequivocal court mandate. In re Rubackin, 62 A.D.3d 11, 21, 875 N.Y.S.2d 90 (2nd Dep’t 2009). 49. The standard for criminal contempt is proof beyond a reasonable doubt. Id. 50. The Defendant cannot be held in criminal contempt for the same reasons that he cannot be held in civil contempt. 51. Specifically, Defendant is ready, willing and able to appear in front of Beth Din and it is the Plaintiff who refuses to appear in front of Beth Din because he perceives he has a litigation advantage in secular court. 52. Accordingly, Defendant cannot be held in criminal contempt. 11 IV THE PLAINTIFF CANNOT BE HELD IN CONTEMPT PURSUANT TO JUDICIARY LAW § 755, AS THE ALLEGED OFFENSE WAS NOT COMMITTED IN THE IMMEDIATE VIEW OF THE COURT, AND, IN ANY EVENT, THE DEFENDANT WITHDREW HIS CROSS-MOTION AT THE APRIL 14, 2011 HEARING 53. The portion of Plaintiff’s Motion to hold Defendant in contempt pursuant to § 755 of the Judiciary Law (“Section 755”) must be denied. 54. This is because Plaintiff has failed to satisfy any of the requirements of Section 755. In that regard, Section 755 provides, inter alia, that the offense must be committed “in the immediate view and presence of the court. N. Y. Judiciary Law, § 755. 55. As the alleged offense was not committed in the immediate view of the court, the Court cannot hold the Defendant in contempt under Section 755. 56. Moreover, the alleged offense did not disrupt any proceeding conducted by the Court. In point of fact, the Defendant withdrew his cross-motion, which included the alleged offending exhibit, at the April 14, 2011 Hearing, as evidenced by the Court’s Order of that date. Exhibit F. 57. Thus, no proceeding was disrupted. 58. As set forth by the Second Department in People v. Jeter, 116 A.D.2d 558, 497 N.Y.S.2d 414 (2nd Dep’t 1986), concerning the Court’s summary contempt power pursuant to Section 755: The purpose of the summary contempt power has been clearly set forth by both our Court of Appeals and the United States Supreme Court. In Matter of Katz v. Murtagh, 28 N.Y.2d 234, 238, 321 N.Y.S.2d 104, 269 N.E.2d 816, the Court of Appeals stated: 12 “It is the need for the preservation of the immediate order in the courtroom which justifies the summary procedure--one so summary that the right and need for an evidentiary hearing, counsel, opportunity for adjournment, reference to another Judge, and the like, are not allowable because it would be entirely frustrative of the maintenance of order. Of course, such rigorous procedure is justified only be necessity and must then be based upon contemptuous conduct committed in the view and presence of the presiding Justice”. The United States Supreme Court stated in Cooke v. United States, 267 U.S. 517, 534, 45 S.Ct. 390, 394, 69 L.Ed. 767: “To preserve order in the court room for the proper conduct of business, the court must act instantly to suppress disturbance or violence or physical obstruction or disrespect to the court when occurring in open court. There is no need of evidence or assistance of counsel before punishment, because the court has seen the offense. Such summary vindication of he court’s dignity and authority is necessary”. People v. Jeter, supra, at 415, 416. 59. Thus, to be held in contempt under Section 755, the offense must be committed in “open court” and summary punishment must be necessary to preserve order in the court. 60. In this case, the alleged offense did not occur in “open court”, and there is no need to render summary punishment to preserve order in the court. In point of fact, the Defendant, at the April 14, 2011, withdrew his Cross-Motion, upon which the alleged offending exhibit was based, there is no issue before the Court for which it must invoke its summary contempt powers. 61. Accordingly, the portion of the Motion seeking to hold Defendant in contempt pursuant to Section 755 must be denied. 13 V THE COURT SHOULD DENY PLAINTIFF’S REQUEST FOR SANCTIONS AND JUDGMENT. 62. Since, as set forth extensively above, the Court must deny the Motion, on jurisdiction, procedural, as well as substantive grounds, the balance of the relief requested in the Motion, i.e., sanctions and judgment, must be denied as well. CONCLUSION 63. For the foregoing reasons, the Court should deny Plaintiff’s Motion in its entirety. WHEREFORE, Defendant respectfully requests that the Court enter an order denying the Motion, and granting such other, further and different relief as it deems just and proper. Dated: New York, New York August 11, 2011 Respectfully submitted, LAW OFFICES OF DAVID CARLEBACH, ESQ. Attorneys for the Defendant By:/s/ Samuel Diamantstein Samuel Diamantstein, Esq. 40 Exchange Place, Suite 1306 New York, New York 10005 (212) 785-3041 14