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LEVINE & ASSOCIATES, P.C.
ATTORNEYS-AT-LAW
15 Barclay Road
Scarsdale, New York 10583
e-mail: ml@LevLaw.org
Fax (914) 725-4778
Telcplicine (914) 600-4288
TELECOPY TRANSMISSION MEMO
DATE: September 14, 2020
TO: Hon. Sherri L. Eisenpress, A.J.S.C.
FAX TRANSMISSION NUMBER: 845-483-8421
NUMBER OF PAGES (INCLUDING THIS COVER SHEET): 9
COMMENTS:
Please see attached letter of this date which was NYSCEF-filed a few minutes ago.
7/fiedael
levate
PRIVILEGED AND CONFIDENTIAL COMMUNICATION
This message isliitciidedonly for the use of the iiidividualor entity to which itis add ressed and may
contain information thatis privileged, confitlentialand exempt from disclosure under sppliable law.
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delivering the message to the intended recipient, you are hereby notified that any dissemination,
distribution or copying of this communication is strictly prohibited. If you have received this
communicâtiüii in error, please notify us imiiiedia:cly by ic:cphone and return the original
communication to us at the above address via the U.S. Postal Service. We will reimburse you for the
postage cost. Thank you.
For information regarding this fax can (914) 600-4288
Our Fax Number is: (914) 725-4778
LEVlNE & ASSOCIATES, P.C.
ATTORNEYS-AT-LAW
15 Barclay Road
Scarsdale, New York 10583
e-mail: ml@LevLaw.org
Fax (914) 725-4778
Telephone (914) 600-4288
September 14, 2020
Via NYSCEF and Fax
Hon. Sherri Eisenpress, A.J.S.C.
Rockland County Supreme Court
1 South Main Street
New City, NY 10956
RE: Yeshiva Chofetz Chaim v. Yeshiva Chofetz Chaim, et.al. (033156/2020)
"When you are weak on the facts, pound the law;
when you are weak on the law, pound the facts;
adversary"
when you are weak on both, pound your
-- Oliver Wendel Holms (modified)
Dear Judge Eisenpress:
As you are the undersigned is counsel to Plaintiff Yeshiva Chofetz Chaim in the above -
aware,
referenced matter. This letter is being submitted in response to the September 11, 2020 letterfrom
Joseph Churgin, Esq. and, particularly, the ad homonym attack made on me personally in the same.
I am, frankly, quite surprised that Mr. Churgin has resorted to such tactics; however, I attribute the
same to his client's desperate attempt to divert the attention of the Court from the facts surrounding
his submission of what appears to be a suspect PPP application and the clandestine disbursement
of the funds received from the same. I address Mr. Churgin's attack in seriatim.
I. The Action Formerly Before Judge Thorsen
First, Mr. Churgin alleges that I falsely advised the Court that the case formerly before Judge
Marx)l
Thorsen (and presently before Judger had been stayed by Judge Drain. Mr. Churgin
Issues"
focuses on Judge Drain's March 26 Order and cites only what are defined as the "Contested
therein. As to the other matters that Mr. Churgin admits Judge Drain stayed, Mr. Churgin then
lies2
that they are not the subject matter of the action formerly before Judge Thorsen. Specifically,
Mr. Churgin cites the portion of Judge Drain's order which explicitly provided as follows
(emphasis added):
I
More on that later.
2 "erroneously"
I would have used the word instead, but Mr. Churgin set the standard for
exaggerated allegations, so I am simply following suit.
LEVINE & ASSOCIATES, P.C.
ÂTTORNEYS-AT-IâMF
Hon. Sherri Eisenpress, A.J.S.C.
Page 2 September 14, 2020
ORDERED that, subject to further order of this Court, all parties to this Adversary
Proceeding, their agents and assigns are barred from commencing or continuing
to engage in any arbitration proceeding or other court proceeding that seeks any
on of the Contested Issues or the Reorganized Debtor's post-
ruling any
Confirmation Date transfer of the Property, the incurrence of the Sterling Bank
loan and mortgage or the dissipation of the proceeds thereof...
Mr. Churgin then claimed that "the stay is only of litigation of the Contested Issues involving
YCC,"
Mosdos, not and that the incurrence of the Sterling Bank loan and mortgage or the
dissipation of the proceeds thereof "are not the subject of either of the two YCC actions now before
Court."
this That is an outright and intentional misrepresentation.
Zaks'
The Amended Complaint in Rabbi Mayer action formerly before Judge Thorsen seeks to
aside"
"set mortgages that were already satisfied. In convoluted (and virtually indecipherable)
reasoning, the Complaint alleges as follows (emphasis added):
45. Because of these fraudulent encumbrances, Plaintiffs demand that all of the
unapproved transactions be set aside as unauthorized and invalid, as the First Arnav
Mortgage, the Second Arnav Mortgage and both assignments of leases and rents
create an improper cloud on the title of the Property.
46. Though Defendants claim that both the First Arnav Mortgage and the Second
Arnav Mortgage have been satisfied, upon information and belief, the funds used
to satisfy these üiortgages were funds stolen from another not-for-profit religious
corporation, Mosdos Chofetz Chaim, Inc. ("Mosdos").
Mosdos'
47. Specifically, Rabbi Aryeh, unilaterally and without approvüi of
board, obtained a loan from Sterling National Bank in the amount of
$15,000,000.00 (Fifteen Million Dollars) (the "Sterling Mortgage"), which was
secured by property owned by Mosdos.
48. Then, upon information and belief, Rabbi Aryeh, Henoch and Beatrice
improperly used some of the proceeds of the Sterling Mortgage to pay off the First
Arnav Mortgage and the Second Arnav Mortgage they improperly placed on the
Property.
Mosdos'
49. The board of Mosdos did not approve of the use of funds to pay off the
First Arnav Mortgage or the Second Arnav Mortgage on the Property, and therefore
Defendants'
had no authority to use those funds.
satisfactions'
The Complaint then alleges that, "[c]onsequently, any of the First Arnav Mortgage
voidable"
and the Second Arnav are void or [Comp., 7 50] and that "the improperly obtained First
Amav Mortgage and the Second Arnav Mortgage are still in place on the Property and are
Property"
improperly encumbering the [Comp., 7 5 l].
LEWNE & ASSOCIATES, P.C.
ATTORNEŸS2ÂT-lAMT
Hon. Sherri Eisenpress, A.J.S.C.
Page 3 September 14, 2020
Zaks'
In short, Rabbi Mayer January 2020 Action formerly before Judge Thorsen(which has
properly laid dormant since Judge Drain issued his March 26, 2020 Order) appears to incredibly
mortgages" -
allege that the "Arnav which Rabbi Mayer Zaks alleges were improperly obtained
Rabbi Aryeh Zaks to begin with - should be reinstated because the proceeds the
by of Sterling
Mortgage were improperly used to pay off the Arnav mortgages. Although impossible to
understand why Rabbi Mayer 7aks would want mortgages on the Yeshiva Property to be
"reinstated,"
his Action clear/f implicates the "incurrence of the Sterling Bank loan and mortgage,
thereof,"
or the disposition of the proceeds matters specifically stayed by Judge Drain in his March
forum.3
26, 2020 Order from being litigated in any other
Mr. Churgin is quite correct; I have repeatedly advised Mr. Churgin (and this Court) that
with the matter before Judge Thorsen - given the specific allegations cited
proceeding formerly
above - would constitute a contempt of Judge Drain's March 2020 and I
26, Order, wholeheartedly
stand by that. I had hoped that my repeated warnings in that regard would change Mr. Churgin's
and his client's mind about proceeding down that slippery and dangerous slope. Unfortunately,
my warnings have fallen on deaf ears; and the consequences will be what they will.
II. The Corporate Governance Issue
Secondly, Mr. Churgin falsely alleges that I misrepresented to this Court that Judge Drain "will
are."
determine who the trustees of YCC I never did so. Mr. Churgin cited pages 6 and 7 of the
"A"
transcript of our Skype appearance before this Court on August 18, 2002 (Exhibit to Mr.
Churgin's letter). However, prefacing those pages was the Court's inquiry as to whether the issues
between the brothers could be resolved by the two brothers simply appointing some agreed-upon
trustees. I responded as follows: "So we have this hearing coming up on September 4 before Judge
Drain. That's going to resolve the issue of corporate governance. There are significant disputes
about who is trustees on what board ...That's the single issue before him right now, the corporate
and he said multiple times on the record that that is to - that's the that's
governance, going key
door."
going to unlock the entire Mr. Churgin has repeatedly taken the position that YCC and
entities"
Mosdos are "related such that a determination of the constituency of the Board of one
would impact a determination of the configuration of the other. But regardless of that, what I
represented to the Court - and what I stand - is that Judge Drain in determine the
by will, fact,
3
Mr. Churgin points to this Court's advice that your Honor spoke to Judge Drain and understood
that Judge Drain did not specifically stay any action. However, this Court also advised counsel
that Judge Drain indicated that any issues regarding the issuance of, or use of, the proceeds of,the
Sterling Bank mortgage were matters specifically before him. I respectfully believe that, had this
Court realized that the action formerly before Judge Thorsen was entirely dependent upon specific
allegations that the Sterling Bank mortgage on the Mosdos Property was improperly obtained, and
the proceeds thereof improperly used, and related that to Judge Drain, that the conversation would
have had a vastly different conclusion. And Mr. Churgin well knows that and is trying to simply
pull the wool over this Court's eyes.
LE1/INE & ABSOCIATES, P.C.
ATTORNEES-AT-LAMF
Hon. Sherri Eisenpress, A.J.S.C.
Page 4 September 14, 2020
corporate governance issue as between the brothers (albeit in the context of Mosdos) and that that
4
detennination will render moot the present action
III. The 82 Highview Avenue Mortgage
"fact"
Finally, Mr. Churgin further lies about the purported that I misrepresented that "Judge Drain
Avenue"
approved the $5,200,000 mortgages on 82 Highview Property. I never stated, suggested,
allegation"
or implied any such thing. Indeed, Mr. Churgin's "supporting was also completely
false when he claimed that:
Zaks'
Aryeh counsel has also alleged, and preliminarily convinced the Court that
Judge Drain's approval of the Mosdos Bankruptcy plan was somehow an approval
of the mortgages placed on the 82 Highview property, a property that is owned by
82 Highview LLC, which entity is wholly owned by YCC, not by Mosdos. Aryeh
Zaks'
counsel has argued that Judge Drain's approval of the Bankruptcy plan
obviated the requirement that New York State Attorney General approve the
mortgage upon the property.
In fact, what I accurately stated, and what was the issue before Judge Drain, was whether New
York State Attorney General approval was required for the sale of the Mosdos Property. The
"was"
reason I use the word is because that issue -which was originally contested by Rabbi Mayer
Zaks and his counsel - was conceded them before the scheduled commencement date
by shortly
of the hearing before Judge Drain. Specifically, in their trial memorandum submitted on
Zaks'
September 2, 2020, Rabbi Mayer attorneys put it as follows (emphasis added; citations
omitted):
The Court's Evidentiary Hearing Order provides that two Contested Issues
are to be tried at the Evidentiary Hearing:
(1) Whether the corporate governance of the Reorganized Debtor and the
identity of the Reorganized Debtor's Board of Trustees (a) on the Confirmation
Date and (b) the post-Confirmation Date transfer of the Property by the
Reorganized Debtor were in compliance with the Plan and Confirmation Order; and
(2) Whether the Confirmation Order approved the Reorganized Debtor's
post-confirmation Date transfer of the Property without the requirement of any
additional approval under applicable New York law, and, if not, whether such
approval was obtained.
Itmust be noted at the outset that the Movant [Rabbi Aryeh Zaks] does not
dispute that a post-Confirmation sale of the Property was authorized by this Court
and approved by the Office of the New York Attorney General in accordance with
4
Specifically, if Judge Drain determines that the Board of Trustees of Mosdos authorized the sale
of the Mosdos Property, resulting in the proper acquisition of the Sterling Bank loan and mortgage
on that Property, then the underlying basis for the action formerly before Judge Thorsen
evaporates.
LEVINE & ASSOCIATES, P.C.
ATTORNEYS-AT-LAYT
Hon. Sherri Eisenpress, A.J.S.C.
Page 5 September 14, 2020
New York law. Contested Issue (2), which the Movant understands to encompass
these concerns, is therefore not the subject of Movant's case.
Mr. Churgin, either intentionally or through ignorance, has conflated the approval of the Mosdos
Property sale (resulting in the incurrence of the Sterling Bank Mortgage loan which, in turn, was
used to pay off the prior mortgages on the YCC Property) with approval of those prior mortgages.
This conflation was, it appears, intentionally created for the purpose of falsely alleging that
"misrepresentations"
were made to this Court which were never made.
IV. The Breach of Judge Drain's Status 0uo Order
In the fmal paragraph of Mr. Churgin's letter,he alleges that "Aryeh Zaks has decided to threaten
to cut off funding for the insurance on the school at 82 Highview over a feigned concern about
facility."
temporary trailers needed to deal with the potential for Covid-19 at the He has made this
threat despite the fact that Rabbi Mayer Zaks has bore (sic) the financial burden of carrying the
years."
expenses on 82 Highview for over thirty As an initial matter, the oxymoronic statement
off"
that person A is threatening to "cut financing for a property that person B is allegedly
financing is laughable and indicative of the absolute lack of good faith on the part of Mr. Churgin
"issue"
and his client. More importantly, however, his next statement that the of the breach of
up"
Judge Drain's status quo order should have somehow been "brought with this Court is absurd.
It has absolutely nothing to do with this Court and itwill be taken up with Judge Drain.
V. The referral to Judge Marx
As the Court is aware, the parties have been proceeding as if the action formerly before Judge
Thorsen had been referred to this Court. As this Court knows, I have always taken the position
that the two matters are not related in any event. In fact, a referral Order was issued in that case
which referred that matter to Judge Marx. A copy of the same is enclosed. Therefore, the issue
of whether Judge Drain stayed the former action or not is no longer before this Court in any event
and we will take the matter up with Judge Marx.
Finally, we take Mr. Churgin's submission as a letter motion for sanctions. We filed today a formal
motion to impose sanctions against Rabbi Mayer Zaks and his counsel, pursuant to Rule 130, for
making a frivolous request for sanctions. A copy ofthe notice of motion is annexed hereto as well.
Thank you for your attention.
Respectfully,
. CHAEL LEVINE
cc. Joseph Churgin, Esq. (via email)
FILED ROCKLAND _COUNTY INDEX NO. 036178 /2019
: CLERK 09 /1472020 1 28 AM)
NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 09/14/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ROCKLAND
JUDGE MARX, PAUL I (
Yeshiva Chofetz Chalm Inc et al
i
- v.-
YESHIVA CHOFETZ CHAIM INC et at
COURT NOTICE
This case has been reassigned to Justice Paul I. Marx.
The parties shall confer on a briefing schedule to complete the motion to dismiss (Motion
#2) and contact Justice Marx's Part Clerk, Carole Slattery (cslatter@nycourts.gov), for
approval of the briefing schedule and return date.
DATED 09/14/2020 FILED By Bridget Gauntlett
Page 1 of 1
1 of 1
SUPREME COURT OF THE STATE OF NEW YORK
COUNTYOFROCKLAND
-------------------------------------- - -- X
YESHIVA CHOFETZ CHAIM, INC. : Index No. 033156/2020
Plaintiff, : NOTICE OF MOTION FOR
RULE 130-1.1 SANCTIONS
- against - : AGAINST RABBI MAYER
ZAKS AND HIS COUNSEL
YESHIVA CHOFETZ CHAIM, INC. and JOHN :
DOES NOS. 1-10,
Defendants. :
- -___________-__-____________ - - -- - - -- - - -- X
PLEASE TAKE NOTICE that, upon the annexed Affirmation of Michael Levine, Esq.,
14"'
duly affirmed the day of September, 2020, the Exhibits thereto annexed, and upon allof the
pleadings and proceedings heretofore had herein, the undersigned shall move this Court, before
the Hon. Sherri Eisenpress, at the Courthouse located at 1 South Main Street, New City, New
300'
York, on the day of September, 2020, at 10:00 in the forenoon of that day, or as soon thereafter
as counsel can be heard, for an Order (i)pursuant to Section 130-1.1(a) of the Administrative Rules
of the Unified Court System & Uniform Rules of the Trial Courts, Rules of the Chief
Administrative Judge (22 NYCRR 130-1.1), issuing sanctions against Defendant Rabbi Mayer
Zaks and his counsel for (a) the filing of a frivolous request for sanctions, (b) asserting purported
"facts"
which are demonstrably false, and (c) irresponsibly and falsely accusing opposing counsel
"lying"
of to the Court, and (ii)awarding to Plaintiff such other, further and different relief as may
be just, proper and equitable.
PLEASE TAKE FURTHER NOTICE that, pursuant to § 2214 of the New York Civil
Practice Law and Rules, answering and/or cross-motion papers, if any, must be e-filed with the
within-named Court no later than seven (7) days prior to the return date of this motion.
LEVINE & ASSOCIATES, P.C.
By
Michael Levine
15 Barclay Road
Scarsdale, NY 10583
Telephone (914) 600-4288
Facsimile (914) 725-4778
e-mail: ml@LevLaw.org
Attorneys for Plaintiff
Preview
LEVINE & ASSOCIATES, P.C. ATTORNEYS-AT-LAW 15 Barclay Road Scarsdale, New York 10583 e-mail: ml@LevLaw.org Fax (914) 725-4778 Telcplicine (914) 600-4288 TELECOPY TRANSMISSION MEMO DATE: September 14, 2020 TO: Hon. Sherri L. Eisenpress, A.J.S.C. FAX TRANSMISSION NUMBER: 845-483-8421 NUMBER OF PAGES (INCLUDING THIS COVER SHEET): 9 COMMENTS: Please see attached letter of this date which was NYSCEF-filed a few minutes ago. 7/fiedael levate PRIVILEGED AND CONFIDENTIAL COMMUNICATION This message isliitciidedonly for the use of the iiidividualor entity to which itis add ressed and may contain information thatis privileged, confitlentialand exempt from disclosure under sppliable law. If the reader of this message is not the liitciided recipient,or the employee or agent reep^=rib!e for delivering the message to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communicâtiüii in error, please notify us imiiiedia:cly by ic:cphone and return the original communication to us at the above address via the U.S. Postal Service. We will reimburse you for the postage cost. Thank you. For information regarding this fax can (914) 600-4288 Our Fax Number is: (914) 725-4778 LEVlNE & ASSOCIATES, P.C. ATTORNEYS-AT-LAW 15 Barclay Road Scarsdale, New York 10583 e-mail: ml@LevLaw.org Fax (914) 725-4778 Telephone (914) 600-4288 September 14, 2020 Via NYSCEF and Fax Hon. Sherri Eisenpress, A.J.S.C. Rockland County Supreme Court 1 South Main Street New City, NY 10956 RE: Yeshiva Chofetz Chaim v. Yeshiva Chofetz Chaim, et.al. (033156/2020) "When you are weak on the facts, pound the law; when you are weak on the law, pound the facts; adversary" when you are weak on both, pound your -- Oliver Wendel Holms (modified) Dear Judge Eisenpress: As you are the undersigned is counsel to Plaintiff Yeshiva Chofetz Chaim in the above - aware, referenced matter. This letter is being submitted in response to the September 11, 2020 letterfrom Joseph Churgin, Esq. and, particularly, the ad homonym attack made on me personally in the same. I am, frankly, quite surprised that Mr. Churgin has resorted to such tactics; however, I attribute the same to his client's desperate attempt to divert the attention of the Court from the facts surrounding his submission of what appears to be a suspect PPP application and the clandestine disbursement of the funds received from the same. I address Mr. Churgin's attack in seriatim. I. The Action Formerly Before Judge Thorsen First, Mr. Churgin alleges that I falsely advised the Court that the case formerly before Judge Marx)l Thorsen (and presently before Judger had been stayed by Judge Drain. Mr. Churgin Issues" focuses on Judge Drain's March 26 Order and cites only what are defined as the "Contested therein. As to the other matters that Mr. Churgin admits Judge Drain stayed, Mr. Churgin then lies2 that they are not the subject matter of the action formerly before Judge Thorsen. Specifically, Mr. Churgin cites the portion of Judge Drain's order which explicitly provided as follows (emphasis added): I More on that later. 2 "erroneously" I would have used the word instead, but Mr. Churgin set the standard for exaggerated allegations, so I am simply following suit. LEVINE & ASSOCIATES, P.C. ÂTTORNEYS-AT-IâMF Hon. Sherri Eisenpress, A.J.S.C. Page 2 September 14, 2020 ORDERED that, subject to further order of this Court, all parties to this Adversary Proceeding, their agents and assigns are barred from commencing or continuing to engage in any arbitration proceeding or other court proceeding that seeks any on of the Contested Issues or the Reorganized Debtor's post- ruling any Confirmation Date transfer of the Property, the incurrence of the Sterling Bank loan and mortgage or the dissipation of the proceeds thereof... Mr. Churgin then claimed that "the stay is only of litigation of the Contested Issues involving YCC," Mosdos, not and that the incurrence of the Sterling Bank loan and mortgage or the dissipation of the proceeds thereof "are not the subject of either of the two YCC actions now before Court." this That is an outright and intentional misrepresentation. Zaks' The Amended Complaint in Rabbi Mayer action formerly before Judge Thorsen seeks to aside" "set mortgages that were already satisfied. In convoluted (and virtually indecipherable) reasoning, the Complaint alleges as follows (emphasis added): 45. Because of these fraudulent encumbrances, Plaintiffs demand that all of the unapproved transactions be set aside as unauthorized and invalid, as the First Arnav Mortgage, the Second Arnav Mortgage and both assignments of leases and rents create an improper cloud on the title of the Property. 46. Though Defendants claim that both the First Arnav Mortgage and the Second Arnav Mortgage have been satisfied, upon information and belief, the funds used to satisfy these üiortgages were funds stolen from another not-for-profit religious corporation, Mosdos Chofetz Chaim, Inc. ("Mosdos"). Mosdos' 47. Specifically, Rabbi Aryeh, unilaterally and without approvüi of board, obtained a loan from Sterling National Bank in the amount of $15,000,000.00 (Fifteen Million Dollars) (the "Sterling Mortgage"), which was secured by property owned by Mosdos. 48. Then, upon information and belief, Rabbi Aryeh, Henoch and Beatrice improperly used some of the proceeds of the Sterling Mortgage to pay off the First Arnav Mortgage and the Second Arnav Mortgage they improperly placed on the Property. Mosdos' 49. The board of Mosdos did not approve of the use of funds to pay off the First Arnav Mortgage or the Second Arnav Mortgage on the Property, and therefore Defendants' had no authority to use those funds. satisfactions' The Complaint then alleges that, "[c]onsequently, any of the First Arnav Mortgage voidable" and the Second Arnav are void or [Comp., 7 50] and that "the improperly obtained First Amav Mortgage and the Second Arnav Mortgage are still in place on the Property and are Property" improperly encumbering the [Comp., 7 5 l]. LEWNE & ASSOCIATES, P.C. ATTORNEŸS2ÂT-lAMT Hon. Sherri Eisenpress, A.J.S.C. Page 3 September 14, 2020 Zaks' In short, Rabbi Mayer January 2020 Action formerly before Judge Thorsen(which has properly laid dormant since Judge Drain issued his March 26, 2020 Order) appears to incredibly mortgages" - allege that the "Arnav which Rabbi Mayer Zaks alleges were improperly obtained Rabbi Aryeh Zaks to begin with - should be reinstated because the proceeds the by of Sterling Mortgage were improperly used to pay off the Arnav mortgages. Although impossible to understand why Rabbi Mayer 7aks would want mortgages on the Yeshiva Property to be "reinstated," his Action clear/f implicates the "incurrence of the Sterling Bank loan and mortgage, thereof," or the disposition of the proceeds matters specifically stayed by Judge Drain in his March forum.3 26, 2020 Order from being litigated in any other Mr. Churgin is quite correct; I have repeatedly advised Mr. Churgin (and this Court) that with the matter before Judge Thorsen - given the specific allegations cited proceeding formerly above - would constitute a contempt of Judge Drain's March 2020 and I 26, Order, wholeheartedly stand by that. I had hoped that my repeated warnings in that regard would change Mr. Churgin's and his client's mind about proceeding down that slippery and dangerous slope. Unfortunately, my warnings have fallen on deaf ears; and the consequences will be what they will. II. The Corporate Governance Issue Secondly, Mr. Churgin falsely alleges that I misrepresented to this Court that Judge Drain "will are." determine who the trustees of YCC I never did so. Mr. Churgin cited pages 6 and 7 of the "A" transcript of our Skype appearance before this Court on August 18, 2002 (Exhibit to Mr. Churgin's letter). However, prefacing those pages was the Court's inquiry as to whether the issues between the brothers could be resolved by the two brothers simply appointing some agreed-upon trustees. I responded as follows: "So we have this hearing coming up on September 4 before Judge Drain. That's going to resolve the issue of corporate governance. There are significant disputes about who is trustees on what board ...That's the single issue before him right now, the corporate and he said multiple times on the record that that is to - that's the that's governance, going key door." going to unlock the entire Mr. Churgin has repeatedly taken the position that YCC and entities" Mosdos are "related such that a determination of the constituency of the Board of one would impact a determination of the configuration of the other. But regardless of that, what I represented to the Court - and what I stand - is that Judge Drain in determine the by will, fact, 3 Mr. Churgin points to this Court's advice that your Honor spoke to Judge Drain and understood that Judge Drain did not specifically stay any action. However, this Court also advised counsel that Judge Drain indicated that any issues regarding the issuance of, or use of, the proceeds of,the Sterling Bank mortgage were matters specifically before him. I respectfully believe that, had this Court realized that the action formerly before Judge Thorsen was entirely dependent upon specific allegations that the Sterling Bank mortgage on the Mosdos Property was improperly obtained, and the proceeds thereof improperly used, and related that to Judge Drain, that the conversation would have had a vastly different conclusion. And Mr. Churgin well knows that and is trying to simply pull the wool over this Court's eyes. LE1/INE & ABSOCIATES, P.C. ATTORNEES-AT-LAMF Hon. Sherri Eisenpress, A.J.S.C. Page 4 September 14, 2020 corporate governance issue as between the brothers (albeit in the context of Mosdos) and that that 4 detennination will render moot the present action III. The 82 Highview Avenue Mortgage "fact" Finally, Mr. Churgin further lies about the purported that I misrepresented that "Judge Drain Avenue" approved the $5,200,000 mortgages on 82 Highview Property. I never stated, suggested, allegation" or implied any such thing. Indeed, Mr. Churgin's "supporting was also completely false when he claimed that: Zaks' Aryeh counsel has also alleged, and preliminarily convinced the Court that Judge Drain's approval of the Mosdos Bankruptcy plan was somehow an approval of the mortgages placed on the 82 Highview property, a property that is owned by 82 Highview LLC, which entity is wholly owned by YCC, not by Mosdos. Aryeh Zaks' counsel has argued that Judge Drain's approval of the Bankruptcy plan obviated the requirement that New York State Attorney General approve the mortgage upon the property. In fact, what I accurately stated, and what was the issue before Judge Drain, was whether New York State Attorney General approval was required for the sale of the Mosdos Property. The "was" reason I use the word is because that issue -which was originally contested by Rabbi Mayer Zaks and his counsel - was conceded them before the scheduled commencement date by shortly of the hearing before Judge Drain. Specifically, in their trial memorandum submitted on Zaks' September 2, 2020, Rabbi Mayer attorneys put it as follows (emphasis added; citations omitted): The Court's Evidentiary Hearing Order provides that two Contested Issues are to be tried at the Evidentiary Hearing: (1) Whether the corporate governance of the Reorganized Debtor and the identity of the Reorganized Debtor's Board of Trustees (a) on the Confirmation Date and (b) the post-Confirmation Date transfer of the Property by the Reorganized Debtor were in compliance with the Plan and Confirmation Order; and (2) Whether the Confirmation Order approved the Reorganized Debtor's post-confirmation Date transfer of the Property without the requirement of any additional approval under applicable New York law, and, if not, whether such approval was obtained. Itmust be noted at the outset that the Movant [Rabbi Aryeh Zaks] does not dispute that a post-Confirmation sale of the Property was authorized by this Court and approved by the Office of the New York Attorney General in accordance with 4 Specifically, if Judge Drain determines that the Board of Trustees of Mosdos authorized the sale of the Mosdos Property, resulting in the proper acquisition of the Sterling Bank loan and mortgage on that Property, then the underlying basis for the action formerly before Judge Thorsen evaporates. LEVINE & ASSOCIATES, P.C. ATTORNEYS-AT-LAYT Hon. Sherri Eisenpress, A.J.S.C. Page 5 September 14, 2020 New York law. Contested Issue (2), which the Movant understands to encompass these concerns, is therefore not the subject of Movant's case. Mr. Churgin, either intentionally or through ignorance, has conflated the approval of the Mosdos Property sale (resulting in the incurrence of the Sterling Bank Mortgage loan which, in turn, was used to pay off the prior mortgages on the YCC Property) with approval of those prior mortgages. This conflation was, it appears, intentionally created for the purpose of falsely alleging that "misrepresentations" were made to this Court which were never made. IV. The Breach of Judge Drain's Status 0uo Order In the fmal paragraph of Mr. Churgin's letter,he alleges that "Aryeh Zaks has decided to threaten to cut off funding for the insurance on the school at 82 Highview over a feigned concern about facility." temporary trailers needed to deal with the potential for Covid-19 at the He has made this threat despite the fact that Rabbi Mayer Zaks has bore (sic) the financial burden of carrying the years." expenses on 82 Highview for over thirty As an initial matter, the oxymoronic statement off" that person A is threatening to "cut financing for a property that person B is allegedly financing is laughable and indicative of the absolute lack of good faith on the part of Mr. Churgin "issue" and his client. More importantly, however, his next statement that the of the breach of up" Judge Drain's status quo order should have somehow been "brought with this Court is absurd. It has absolutely nothing to do with this Court and itwill be taken up with Judge Drain. V. The referral to Judge Marx As the Court is aware, the parties have been proceeding as if the action formerly before Judge Thorsen had been referred to this Court. As this Court knows, I have always taken the position that the two matters are not related in any event. In fact, a referral Order was issued in that case which referred that matter to Judge Marx. A copy of the same is enclosed. Therefore, the issue of whether Judge Drain stayed the former action or not is no longer before this Court in any event and we will take the matter up with Judge Marx. Finally, we take Mr. Churgin's submission as a letter motion for sanctions. We filed today a formal motion to impose sanctions against Rabbi Mayer Zaks and his counsel, pursuant to Rule 130, for making a frivolous request for sanctions. A copy ofthe notice of motion is annexed hereto as well. Thank you for your attention. Respectfully, . CHAEL LEVINE cc. Joseph Churgin, Esq. (via email) FILED ROCKLAND _COUNTY INDEX NO. 036178 /2019 : CLERK 09 /1472020 1 28 AM) NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 09/14/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND JUDGE MARX, PAUL I ( Yeshiva Chofetz Chalm Inc et al i - v.- YESHIVA CHOFETZ CHAIM INC et at COURT NOTICE This case has been reassigned to Justice Paul I. Marx. The parties shall confer on a briefing schedule to complete the motion to dismiss (Motion #2) and contact Justice Marx's Part Clerk, Carole Slattery (cslatter@nycourts.gov), for approval of the briefing schedule and return date. DATED 09/14/2020 FILED By Bridget Gauntlett Page 1 of 1 1 of 1 SUPREME COURT OF THE STATE OF NEW YORK COUNTYOFROCKLAND -------------------------------------- - -- X YESHIVA CHOFETZ CHAIM, INC. : Index No. 033156/2020 Plaintiff, : NOTICE OF MOTION FOR RULE 130-1.1 SANCTIONS - against - : AGAINST RABBI MAYER ZAKS AND HIS COUNSEL YESHIVA CHOFETZ CHAIM, INC. and JOHN : DOES NOS. 1-10, Defendants. : - -___________-__-____________ - - -- - - -- - - -- X PLEASE TAKE NOTICE that, upon the annexed Affirmation of Michael Levine, Esq., 14"' duly affirmed the day of September, 2020, the Exhibits thereto annexed, and upon allof the pleadings and proceedings heretofore had herein, the undersigned shall move this Court, before the Hon. Sherri Eisenpress, at the Courthouse located at 1 South Main Street, New City, New 300' York, on the day of September, 2020, at 10:00 in the forenoon of that day, or as soon thereafter as counsel can be heard, for an Order (i)pursuant to Section 130-1.1(a) of the Administrative Rules of the Unified Court System & Uniform Rules of the Trial Courts, Rules of the Chief Administrative Judge (22 NYCRR 130-1.1), issuing sanctions against Defendant Rabbi Mayer Zaks and his counsel for (a) the filing of a frivolous request for sanctions, (b) asserting purported "facts" which are demonstrably false, and (c) irresponsibly and falsely accusing opposing counsel "lying" of to the Court, and (ii)awarding to Plaintiff such other, further and different relief as may be just, proper and equitable. PLEASE TAKE FURTHER NOTICE that, pursuant to § 2214 of the New York Civil Practice Law and Rules, answering and/or cross-motion papers, if any, must be e-filed with the within-named Court no later than seven (7) days prior to the return date of this motion. LEVINE & ASSOCIATES, P.C. By Michael Levine 15 Barclay Road Scarsdale, NY 10583 Telephone (914) 600-4288 Facsimile (914) 725-4778 e-mail: ml@LevLaw.org Attorneys for Plaintiff