SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT
x
Application of
CONGREGATION YETEV LEV D'SATMAR, INC.,
-against-
Petitioner,
JACOB (JENO) (YAAKOV) KAHANA, SOL
(SHAUL) PERLSTEIN, MOSES (MOSHE)
FRIEDMAN, LOUIS (ELIEZER) KESTENBAUM,
SOLOMON SANDER, SOL WERTHEIMER,
MOSES ZUPNICK, LEIBISH JACOBOWITZ,
BENJAMIN HIRSH, Y. A. MOSKOWITZ, A.N.
REICH, N.A. WEINBERGER, USHER M.
MEISELS, SAFRA SPILMAN, ISSAC WEISS, S.
WERTZBERGER, ISRAEL S. ROSNER, CHAIM
GELBSTEIN, JACOB GLICK, MAYER
SHNITZLER, YOSEF E. SHLESINGER, ABISH
WEINBERGER, JOSEPH POLOCHAK, JOEL
GOLD, JACOB GOLD, MOSHE WOLF KLEIN,
MENDY BRILL, MARTIN WIEDER, MOSHE
REISMAN, SHOLOM DEUTSCH, MOSES
WERTHEIMER, CHANANIA SCHMILOWITZ,
YIDEL WEINSTOCK, ISSAC WERTHEIMER,
ARULY LANDAU, JOSEPH YOCHANAN
ALNDAU, MOSHE WEISER, CHEVRA
GEMILATH CHASUDIM YETEV, G'MACH BETH
YOSEF ARYEH, JERUSALEM HOMES, INC.,
KIRYAS (VILLAGE) OF V'YOEL MOSHE,
UNITED TALMUDICAL ACADEMY TORAH
V'YIRAH RABBINICAL, INC., MACHANE
(CAMP) ROV TOV, SATMAR MEAT OF
CONGREGATION YETEV LEV, INC., KEREN
V'YOEL MOSHE, INC., DER YID, INC., MATZA
BAKERY D'KHAL YETEV LEV D'SATMAR,
CHASE BANK, STERLING NATIONAL BANK,
HSBC, MERRILL LYNCH, INC, SANDOR MN
WEISS, R.A. ARCHITECTS, P.C., and BUILDING
DEPARTMENT OF THE CITY OF NEW YORK,
APP. DIV. NO. 2004-97 16
Index No. 28989/01
(Barasch, J.)
AFFIDAVIT OF SCOTT E.
MOLLEN IN OPPOSITION TO
APPELLANTS' MOTION FOR
STAY PENDING APPEAL AND
OTHER INJUNCTIVE Relief
Respondents.
BENJAMIN HIRSCH, SHEA ARYA MOSKOWITZ,
AVRAHAM MEIR REICH, NOACH AARON
WEINBERGER, USHER MEILECH MEISELS,
SUFRA SPILMAN, ISSAC (YITZCHOK) WEISS,
SENDER WIRZBERGER, ISRAEL (YISRUEL)
SHMAYA ROSNER, CHAIM GELBSTEIN, JACOB
(YAAKOV) GLUCK MEIR SHNITZLER, YOSEF
ELYE SCHLEZINGER, ABISH WE1NBERGER,
JOSPEH (YOSEF) POLATCHEK, YITZCHOK
GOLDERBERGER, YAAKOV HERSH
FRIEDMAN, YITZCHOK FRIED, SHULEM
EIZIKOWITZ, ZVI ELIMELECH KAHAN, CHAIM
PESACH GOLDSTEIN, AVRAHAM HERSH
LANDAU, YIDA HERSH LANDAU, NAFTAL
FLEISCHMAN, CHAIM BERKOWITZ, ISSAC
REICH, MEIR BRAND, AHRON GAVRIEL
HAUER, MOSHE HERSH DEUTSCH, MEIR LEIB
GOLD, YAKOV DRESDNER, BEREL KATZ,
SENDER GREENFELD, MOSHE DAVID GREEN,
ZEV FRIEDMAN, LEVI YITZCHOK LEIMZIDER,
FISHEL GLUCK, CHAIM HERSH KLAGSBALD,
SHLOME YIDA MOSKOWITZ, YOSEF KAHAN,
MENDEL ROSENBERG, YOSEF CHAIM WEISS,
MOSHE DAVID NIEDERMAN, YECHEZKEL
SCHWIMMER, YAKOV YOCHANAN FULOP,
MOREDECHAI WIRZBERGER, YONAH KATZ,
MOSED DAVID ROSNER, MOSHE YOSEF
DEUTSCH, CONGREGATION YETEV LEV
D'SATMAR, INC.,
Respondents.
CONGREGATION YETEV LEV D'SATMAR, INC., LUIOVICK WEISZ, and JACOB SCHOENFELD,
Plaintiffs,
-against-
26 ADAR N.B. CORP., NACHMAN BRACH, CONGREGATION BETH JOEL, BETH FIEGE, INC. and BAY RIDGE FEDERAL SAVINGS AND LOAN,
Defendants.
:x
Index No. 13224/90
(Barasch, J.)
:x
- x
In the matter of the Petition to Set Aside the Election
of the Board of Trustees and Officers of Congregation
Yetev Lev D'Satrnar held from the 13th to the 24th of : Index No. 4 1256/01
May 2001 and ''Certified'' on May 24, 2001, : (Barasch, J.)
BERL FRIEDMAN, SANDOR OBERLANDER,
ISSAC ROSENBERG, DAVID ECKSTEIN, DAVID
MARKOWITZ, ELIAS A. HOROWITZ, BEN
WERCZBERGER,
Petitioners,
-against-
JACOB (JENO (YAAKOV) KAHAN, SOL (SHAUL)
PERLSTE1N, MOSES (MOSHE) FRIEDMAN,
LOUIS (ELIEZER) KESTENBAUM, SOLOMON
SANDER, SOL WERTHEIMER,
MOSES ZUPNICK, LEIBISH JACOBOWITZ,
BENJAMIN HIRSH, Y. A. MOSKOWITZ, A.N.
REICH, N.A. WEINBERGER, USHER M.
MEISELS, SAFRA SPILMAN, ISSAC WEISS, S.
WERTZBERGER, ISRAEL S. ROSNER, CHAIM
GELBSTEIN, JACOB GLICK, MAYER
SHNITZLER, YOSEF E. SHLESINGER, ABISH
WEINBERGER, JOSEPH POLOCHAK, JOEL
GOLD, JACOB GOLD, MOSHE WOLF KLEIN,
MENDY BRILL, MARTIN WIEDER, MOSHE
REISMAN, SHOLOM DEUTSCH, MOSES
WERTHEIMER, CHANANIA SCHMILOWITZ,
YIDEL WEINSTOCK, ISSAC WERTHEIMER,
ARULY LANDAU, JOSEPH YOCHANAN
ALNDAU, MOSHE WEISER, CHEVRA
GEMILATH CHASUDIM YETEV, G'MACH BETH
YOSEF ARYEH, JERUSALEM HOMES, INC.,
KIRYAS (VILLAGE) OF V'YOEL MOSHE,
UNITED TALMUDICAL ACADEMY TORAH
V'YIRAH RABBINICAL, INC., MACHANE
(CAMP) ROV TOV, SATMAR MEAT OF
CONGREGATION YETEV LEV, INC., KEREN
V'YOEL MOSHE, INC., DER YID, INC. JACOB
(JENO) (YAKOV) KAHAN, SOL (SHAUL)
PERLSTEIN, SOLOMON (SHLOME ZALMEN)
SANDER, SOL (CHAIME SHLOME)
WETHEIMER, MOSES (MOSHE) ZUPNICK,
LEIBISH (DAVID LEIB) JACOBOWITZ,
AFFIDAVIT
STATE OF NEW YORK)
) ss.:
COUNTY OF NEW YORK)
SCOTT E. MOLLEN, being duly sworn, deposes and says:
1. I am a member of Herrick, Feinstein LLP, counsel for the certain named Respondents,' the duly elected leadership of Congregation Yetev Lev D'Satmar, Inc. (the ''Congregation''). As such, I am fully familiar with the records and proceedings discussed herein. I respectfully submit this affidavit in opposition to the motion dated November 16, 2004 of Appellant-Petitioners (''Appellants'') for a stay pending appeal of the October 22, 2004 decision of the Honorable Melvin S. Barasch, entered by the Clerk of the Supreme Court of Kings County on October 26, 2004 and for additional injunctive relief, including the reinstatement of an August 7, 2001 Restraining Order, as modified by the Appellate Division, Second Department on August 10, 2001.
PRELIMINARY STATEMENT
2. Despite the fact that Judge Barasch's decision was issued on October 22, 2004, Appellants waited three full weeks, until November 16, 2004, to file the instant Order to Show Cause. This delay, together with the failure to cite to any evidence of any immediate threatened wrongful conduct, demonstrates that Appellants are in no immediate danger of suffering any Irreparable harm that would necessitate this Court granting the drastic relief requested. Appellants have submitted absolutely no evidence of any actions taken by Respondents in the past three weeks -- or, for that matter, over the past three years -- that threaten Appellants with grave injury, for which no other remedy at law would be available. Rather, Appellants rely upon unfounded suspicions and concerns, which fall incredibly short of the standard for issuing such an order.
3. Furthermore, despite criticizing certain aspects of Justice Barasch' s decision,
Appellants fail to identify the specific grounds on which they believe they will prevail on appeal.
They fault Justice Barasch for accepting and relying upon the translation of the Congregation's By-Laws that Appellants submitted to him. Such disingenuous criticism, however, fails to demonstrate Appellants' likelihood of prevailing on appeal.
4. This application is merely Appellants' most recent ploy to perpetuate the state of limbo in which the Congregation and its thousands of members have been forced to live for the past several years. Appellants have delayed resolution of the merits at every available opportunity. For example, in appealing an administrative order issued by the Honorable Michael L. Pesce, the former Administrative Justice of the Second Judicial District, Appellants waited until what they thought was the last day to perfect their appeal. After delaying six months, they actually let the appeal period expire and had to seek relief from this Court to perfect late.
The undersigned represents the following named Respondents in the above-captioned matter:
Jacob (Jeno) (Yaakov) Kahana, Moses (Moshe) Friedman, Solomon Sander, Sol Wertheimer,
Moses Zupnick, Leibish Jacobowitz, Benjamin Hirsch, Y.A. Moskowitz, A.M. Reich, N.A.
Weinberger, Safra Spilman, Issac Weiss, S. Wertzberger, Israel S. Rosner, Chaim Gelbstein,
Jacob Glick, Mayer Slmitzler, Yosef E. Shlesinger, Abish Weinberger, and Joseph Polochack.
5. Appellants' failure to submit any factual support for the many accusations upon which they base their motion evidences their true intent to impede the operations of the Congregation that provides much needed charitable, social, religious and educational services to thousands of families on a daily basis. The vagueness and breadth of the relief they seek shows Appellants' true intent to unreasonably hamstring the Congregation without regard for the thousands of lives that will affected thereby. The proposed order would create havoc within a large network of social, charitable, educational and religious institutional programs.
FACTUAL AND PROCEDURAL BACKGROUND
6. In order to appreciate the complex background against which Justice Barasch issued his decision that has precipitated this appeal, it is necessary to briefly detail the history of the Satmar community, as well as the convoluted procedural history of these consolidated actions, which includes Appellants' multiple attempts to manipulate the judicial system.
FACTUAL HISTORY FOUNDING OF THE CONGREGATION
7. As Rabbi Shlomo Gelbaman, a noted historian and widely published scholar of the Satmar Chassidic Movement2 explained to the Court below, which has been confirmed by numerous elder members of the Satmar community, the Satmar movement was founded by Rabbi Joel Teitelbaum who, in 1934, became the Chief Rebbe3 of the Hungarian town of Suta Mare. Prior to the Holocaust, Rabbi Joel Teitelbaum had amassed a following of more than 10,000 Chassidic followers. As Grand Rebbe, he was the ultimate authority on all religious and over the past twenty-five years; Rabbi Gelbaman has interviewed hundreds of Satmar Chassid's, Satmar leaders, and senior and influential members of the Congregation. He has published hundreds of newspaper articles tracking the Satmar Chassidic movement and its development in the United States, and has authored numerous books about the Satmar Community, most notably Moshian Shel Yisroel (The Helper of Israel), an eight-volume history/biography of the life and leadership of the late Grand Rebbe, Rabbi Joel Teitelbaum. The term ''Rebbe'' is often used by Chassidic follower in place of the term ''Rabbi'' when referring to the leader of their sect. As such, Rabbi Joel Teitelbaum, and his nephew who succeeded him, current Rabbi Moses Teitelbaum, are herein referred to as the ''Grand Rebbe'' of the Satmar Chassidic Sect.
8. After a post-Holocaust stay in what was then Palestine, Rabbi Joel Teitelbaum emigrated to the United States in 1947 and established Congregation Yetev Lev in Williamsburg, in an attempt to reestablish a Chassidic community, similar to the one that had existed before, and had been decimated by, the Holocaust.
9. The Satmar Chassidic movement is centered around the revered Grand Rebbe, the sect's central authority, whose statements and decisions are respected and adhered to without challenge. By definition, a Satmar Chassid is one who is an unwavering follower of the Grand Rebbe and seeks guidance from the Grand Rebbe when making any type of significant decision. See Affirmation of Shlomo Gelbaman at ¶ 14, dated July 13, 2004, attached hereto as Exhibit A. Whether it be which profession to enter, which house to buy, which individual to marry, or which investment decision is proper, when a Satmar Chassid asks the Satmar Grand Rebbe for advice, he intends to adhere to his decision. The Satmar Grand Rebbe does not issue advisory opinions; it is expected and understood that his wishes will be obeyed. Whenever disputes arose among Board members regarding any Congregational matter, only the Grand Rebbe would resolve this dispute; his decision was final. çç Affirmation of Shlomo Gelbman at ¶ 15, dated July 13, 2004, attached hereto as Exhibit A.
10. As the historian Rabbi Gelbaman explained to the court below in his Affirmation (Ex. A hereto at ¶ 7), the Congregation did not hire or select Rabbi Teitelbaum to
Although the various affirmations cited herein were submitted to the Court below with
numerous exhibits, Respondents have attached hereto only the affirmations themselves, with any directly applicable exhibits, so as not to burden the Court with unnecessary documentation. lead them; instead, he founded the Congregation and those who wanted, voluntarily associated themselves therewith by accepting him as their unquestioned leader and joining as members. Any notion that somehow the Satmar Grand Rebbe serves at the pleasure or at the will of Congregation Yetev Lev is an absolutely false. See id. Upon the passing of Rabbi Joel Teitelbaum in 1979, his nephew Rabbi Moses Teitelbaum ascended to the position of Grand Rebbe. As his uncle had been, Grand Rebbe Moses Teitelbaum is the revered Grand Rebbe and undisputed leader of the entire worldwide Satmar sect.5 Today, the Congregation is essentially the umbrella organization of a thriving community under the leadership of the current Grand Rebbe, that runs multiple synagogues, schools, camps, butcher shops, a matzah bakery and countless charitable organizations that provide its members with goods and services for virtually every aspect of their lives.
11. To memorialize the fact that it was the first Grand Rebbe, Rabbi Joel Teitelbaum, who founded Yetev Lev, and to recognize the leadership of the current Grand Rebbe, the Congregation added the following to its official emblem and letterhead in 1990's: ''Founded in 5708 [1948] by the holy Grand Rebbe of blessed memory - under the leadership of the [current] Grand Rebbe, may he live.'' Sc Affirmation of Shlomo Gelbman at ¶ 7, dated July 13, 2004, attached hereto as Exhibit A.
In 1995, Article 8 of the By-Laws were amended to include the following: [With the passing away of our holy father and most revered Grand Rebbe, Of Blessed Memory, we accepted upon ourselves the honorable holy Grand Rebbe, Rabbi Moshe Teitelbaum to be his successor.'' By amending the By-Laws, the Congregation explicitly acknowledged that Rabbi Moses Teitelbaum assumed all of the powers and authorities held by his uncle before him. In addition, the Board passed a resolution explicitly confirming that Grand Rebbe Moses Teitelbaum ''possess all of the rights, exactly as the previous Rabbi, Of Blessed Memory, and whoever is challenging the Rabbi is as if he would have challenged the Al-mighty.'' See Exh. H, infra.
THE CONGREGATION'S BY-LAWS
12. When the first Grand Rebbe established the Congregation, he recognized the need to do so in accordance with the laws of the State of New York. As such, he authorized the registration and incorporation of the Congregation, as well as creation of formal By-Laws. Article 2 of the Congregation's By-Laws confirm the Grand Rebbe's supreme position in the Congregation. Therein it states under the section entitled Purpose of the Congregation:
''(1) The Congregation was founded to unite Jews who desire to conduct themselves and educate their children according to the ways of our forefathers and our holy teachers under the leadership of the most venerable teacher, Rabbi Joel Teitelbaum . . . (3) To maintain and take care of all holy institutions and the institutions that Orthodox congregations have to have according to the laws set for the by the great rabbis, the founders of orthodoxy in old Hungary with the approval of the holy venerable Rabbi. . .
A copy of the Congregation's By-Laws, along with a verified translation, is attached hereto as Exhibit B (emphasis added).
13. The Grand Rebbe also recognized the need for a governing body to assist him in its daily operations. Consistent with the provisions of the newly created By-Laws, the Grand Rebbe directed the creation of a Board of Directors (the ''Board''). The records show that Rabbi Teitelbaum never intended to cede any of his power over the Congregation to the Board. His desire that the Board serve beneath the Grand Rebbe is supported by Article 8 of the Congregation's By-Laws, which delineates the scope of the Grand Rebbe's authority over the Congregation and says that the Grand Rebbe is the authority of the Congregation, ''his ruling is binding upon every member,'' and ''no one can occupy his position without his consent.'' These two crucial clauses in the section of the By-Laws dealing with the Grand Rebbe '5 authority, assured that the Grand Rebbe's authority would supercede any Board decisions. The Board members recognized that they were serving the Congregation at the Grand Rebbe's pleasure, and It was inconceivable that any Board member would have the audacity to challenge the authority of the Grand Rebbe on any issue, without any distinction as to the nature of the matter. See Affirmation of Shlomo Gelbman at ¶ 10, dated July 13, 2004, attached hereto as Exhibit A.
PAST PRACTICE OF THE CONGREGATION
14. The first Grand Rebbe believed that Congregation decisions must be made consistent with the Torah position and, therefore, insisted on being the supreme authority of the Congregation in order to ensure that all actions comported with his interpretation of Jewish law and custom. Even those decisions in which the Grand Rebbe did not play an active role were subject to his approval. As Mi. Gelbman explains, no significant decision regarding any matter, spiritual or financial, practical or ecclesiastical, was made for the Congregation without the express knowledge and consent of the Grand Rebbe. $çç Affirmation of Shlomo Gelbman at ¶ 11, dated July 13, 2004, attached hereto as Exhibit A.
15. As is also the case in other Chassidic communities, the role of a Grand Rebbe is to act as the ultimate and final authority regarding all matters, both religious and secular. For this reason, Satmar Chassidim continually seek the Grand Rebbe's guidance and direction regarding business, marital, and family issues, as well as on spiritual and religious matters. See Affirmation of Shlomo Gelbman at ¶ 13, dated July 13, 2004, attached hereto as Exhibit A.
16. Ever since the Congregation's inception in 1948, the Grand Rebbe exercised total and absolute authority over all Congregational matters, both religious and otherwise.
Affirmation of Shlomo Gelbman at ¶ 12, dated July 13, 2004, attached hereto as Exhibit A. The Congregation's Board never questioned or attempted to override his supreme authority. In fact, the recent rebellion by some dissident members is unprecedented in the history of the Satmar Chassidic Community.
17. The breadth of the Grand Rebbe's power and his control over the Congregation's Board was all encompassing, as is amply demonstrated by two telling incidents. See Affirmation of Shlomo Gelbman at ¶ 16, dated July 13, 2004, attached hereto as Exhibit A.
18. In approximately 1965, the Congregation held an election for the position of treasurer. As between the candidates Solomon Katz and Wolf Freund, a majority of the participating members voted for Mr. Wolf Freund. Believing that it was in the best interest of the Congregation, the Grand Rebbe overruled the election results and appointed Mr. Katz to serve as treasurer. This decision was fully accepted by the Congregation and Mr. Katz served in this position. This incident clearly demonstrates the Grand Rebbe's supreme authority over all Congregational affairs, and the fact that the Congregation and its members duly deferred to him regarding the selection of lay leaders of the Congregation. Affirmation of Shlomo Gelbman at ¶ 17, dated July 13, 2004, attached hereto as Exhibit A.
19. Second, in 1978, the Board agreed that there was a need to increase the number of Board members due to the growth of the Congregation. Mr. Leopold Lefkowitz, who was then president of the Congregation, stated on the record that there had been no elections held recently and since there were no plans for one in the immediate future, he presented to the Grand Rebbe for approval of the names of potential new Board members. The Grand Rebbe approved the appointment of these new Board members and as a result, those individuals assumed positions on the Board. See Affirmation of Shlomo Gelbman at ¶ 18, dated July 13, 2004, attached hereto as Exhibit A.
APPOINTMENT OF RABBI ZALMEN LEIB TEITELBAUM AS CHIEF RABBI OF WILLIAMSBURG CONGREGATION
20. Unfortunately, the failure of some dissident members of the Congregation to Accept and adhere to the rulings of the Grand Rebbe has precipitated the instant dispute. In June 1999, the Grand Rebbe appointed his son, Rabbi Zalmen Leib Teitelbaum, who was then the Chief Rabbi of the Satmar congregation in Jerusalem, to be the Chief Rabbi of the Congregation in Williamsburg, rather than the Grand Rebbe 'S other son, Rabbi Aaron Teitelbaum, whom the Grand Rabbi had previously appointed to be the Chief Rabbi of the separate and independent congregation in Kiryas Joel. In a statement made at a January 18, 2001 Board meeting, the Grand Rebbe stated, ''If we really want Satmar to remain Satmar, in the way my uncle of blessed memory had wished, then [Zalmen Leib] is the most qualified person to serve as Rabbi of the Williamsburg Congregation.'' A copy of the Grand Rebbe's statement, along with a verified translation is attached hereto as Exhibit D.
21. The Grand Rebbe insisted on installing Rabbi Zalmen Leib as Chief Rabbi of the Williamsburg Congregation despite intense lobbying by Rabbi Aaron and his supporters to appoint Rabbi Aaron instead. At the direction of the Grand Rebbe, the Congregation officially hired Rabbi Zalmen Leib as its Chief Rabbi, who subsequently assumed rabbinical authority directly from his father. See Affirmation of Jacob Schoenfeld dated May 5, 2004 at ¶ 22, attached hereto as Exhibit E. The appointment was announced to the community and ratified by the Board of the Congregation.
22. After exhausting his futile campaign to orchestrate a change of heart by the Grand
Rebbe, Rabbi Aaron himself delivered a public concession speech in the synagogue in Kiryas Joel. Rabbi Aaron stated that the Grand Rebbe has the ultimate and highest authority in congregation matters, and that it was he who decided to install Rabbi Zalmen Leib as Chief Rabbi in Brooklyn. Seemingly, Rabbi Aaron's supporters were put on notice to accept the action taken by the Grand Rebbe, which was subsequently accepted by the board. $çç Affirmation of Jacob Schoenfeld dated May 5, 2004 at ¶ 23, attached hereto as Exhibit E.
23. In December 2000, the then-serving members of the board, including Petitioners Ben Friedman and Issac Rosenberg, signed the Hebrew document known as a Kunses, which fixes Rabbi Zalmen Leib's official title as ''Av Beth Din,'' loosely translated as Chief of the Rabbinical Court of the Congregation. At that time, Rabbi Zalmen Leib became the head of the entire ecclesiastical establishment, subordinate only to the Grand Rebbe himself. See Affirmation of Jacob Schoenfeld dated May 5, 2004 at ¶ 24, attached hereto as Exhibit E.
THE UNPRECEDENTED REBELLION AGAINST THE GRAND REBBE'S AUTHORITY
24. In the summer of 2000, two dissident board members of the Congregation, Ben Friedman6 and Isaac Rosenberg, who supported Rabbi Aaron Teitelbaum, launched a rebellion against the Grand Rebbe and most of the remaining members of the Board. They began contemplating legal action intended to defeat the Grand Rebbe's decision. See Affirmation of Jacob Schoenfeld dated May 5, 2004 at ¶ 28, attached hereto as Exhibit E.
25. I am advised that an entire section in the authoritative Code of Jewish Law (Choshen Mishpat) is devoted to the prohibition for members of the Jewish people to bring any controversy before civil courts. Jewish Law provides for unusually harsh consequences to those who violate this prohibition. The Congregation, which steadfastly adheres to the most strict Orthodox interpretation of the Code of Jewish Law has a long and well-documented history of reprimanding, and even expelling, members who have sought to adjudicate their dispute in civil courts, based upon the exclusive direction of the Grand Rebbe and the Congregation Rabbinical Judges. Aff. of Jacob Schoenfeld dated May 5, 2004 at ¶ 4 attached hereto as Exhibit E. Justice Barasch also recognized that submitting this controversy to secular court, rather than to a Beth Din, is considered a grave offence under Jewish law. See Buss Aff., Exh. D at Footnote 2.
and it bears noting that in 1986, when Berl Friedman first became a member of the Board, it was not the result of any election: he was unilaterally appointed by the Grand Rebbe. Nor was Berl Friedman ever elected to the President of the Congregation. Instead, after the former president, Leopold Lefkowitz passed away in 1998, the board appointment Berl Friedman and Respondent Jacob (Jeno) Kahan to serve as co-presidents. Kahan had been appointed to the Board several years before Berl Friedman was appointed, and Kahan was first elected to the Board in 1984. See Aff. of Solomon Wertheimer dated November 30, 2001, attached hereto as Exhibit G.
26. Concerned about involving the civil courts, the Board passed a resolution in August 2000 requiring all board members to commit not to bring internal disputes before civil courts for resolution. Over the following months, the Board considered a number of texts for the letter of commitment. The final version was signed by a majority on the board and became binding upon all board members, even those who refused to sign. See Affirmation of Jacob Schoenfeld dated May 5, 2004 at ¶ 29, attached hereto as Exhibit E.
27. Dissidents Friedman and Rosenberg abstained from signing the Commitment. Their opposition lent credence to the steady rumors that they considered resorting to the civil courts in complete contempt of the Grand Rebbe and in complete disrespect of decades of Congregation policy. See Affirmation of Jacob Schoenfeld dated May 5, 2004 at ¶ 30, attached hereto as Exhibit E.
28. After the Grand Rebbe refused to capitulate to the Dissidents, the Dissidents launched a campaign of violence and intimidation, which included the disruption of services in the Congregation's main synagogue and other functions of the Congregation. In December 2000 and January 2001, the Dissidents expressly refused to recognize the authority of, and affirm allegiance to Rabbi Zalmen Leib, despite the fact that he had been unquestionably appointed by The Grand Rebbe. See Affirmation of Solomon Wertheimer dated November 30, 2001 at ¶J 24, 25, attached hereto as Exhibit G.
EXPULSION OF FRIEDMAN AND ROSENBERG FROM THE CONGREGATION
29. On December 29, 2000, at a routine Congregation meeting with the Grand Rebbe in his residence, the Grand Rebbe expressed frustration over the fact that dissidents Friedman and Rosenberg were still defiantly refusing to commit themselves not to go to the civil courts to address Congregation affairs, and he ordered their immediate dismissal from the Board. On December 31, 2000, the Board formally adopted the Grand Rebbe's decree removing Messrs. Friedman and Rosenberg from the Board. Affirmation of Jacob Schoenfeld dated May 5, 2004 at ¶J 32, 34 attached hereto as Exhibit E; Affirmation of Sol Wertheimer dated November 30, 2001 at ¶ 26, attached hereto as Exhibit G.
30. On January 14, 2001, the Dissidents purported to hold a meeting in the name of the Congregation at a catering hail in Brooklyn, where they purported to announce that they would hold an election for Board positions. See Affirmation of Solomon Wertheimer dated November 30, 2001 at ¶J 24, 25, attached hereto as Exhibit G.
31. On January 15, 2001, a panel of Congregation Rabbinical Judges convened a meeting to discuss the Dissidents' unprecedented and treasonous conduct. The Rabbinical Judges issued a pronouncement that they ''appear[ed] with the powers of [their] holy Torah, to publicly declare [their] opinion, which is the Torah opinion . . . '' regarding the Dissidents' conduct. They found that the Dissident's January 14 ''meeting'' was designed to undermine the ultimate ecclesiastical authority of the Grand Rebbe and that the Dissidents were ''conspiring traitors'' who have having shamed the ''honor of the Torah, and the slandering of the Al-mighty's name, especially on the humiliation of the Grand Rabbi.'' The Judges ruled that all of the so called ''resolutions'' passed by the Dissidents were null and void. A copy of the Rabbinical Judges' January 15, 2001 ruling is attached hereto as Exhibit S.
32. Three days later, on January 18, 2001, the official Congregation Board convened again, this time together with the lower board of directors, known as the Tuvim committee. Recognizing that the purpose of the Congregation is to conduct its affairs in accordance with the Torah and that the declaration of the esteemed Rabbinical Judges represents the Torah opinion, the Board formally adopted the Rabbinical Judge's declaration, which declared the Dissidents' January 14 ''meeting'' null and void.
33. More importantly, at this same Board meeting, the Grand Rebbe criticized the rebellion led by Berl Friedman. The Grand Rebbe also condemned Friedman's statements that the Grand Rebbe has ''a limited amount of powers and rights within the Congregation'' by saying that ''such a statement is against our holy Torah.'' Based upon Berl Friedman's treasonous, even heretical conduct, of making statements against the Torah and disseminating lies and deceptions in the Grand Rebbe's name, the Grand Rebbe ordered that ''Berl Friedman can no longer be a member in Congregation Yetev Lev'' and that he cannot enter any Satmar place of worship. A copy of the January 18, 2001 statement of the Grand Rebbe is attached hereto as Exhibit D. The Grand Rebbe's decision to expel Ben Friedman from the Congregation was clearly premised upon an ecclesiastical determination that his actions violated the Torah and the fundamental teachings of the Satmar sect. Ich
34. Subsequent to the Grand Rebbe ordering Friedman's expulsion, the Board, ''accept[ed] with the full effectiveness the Torah opinion as set forth by the Rabbinical Judges, and by the [Grand] Rabbi'' their decision to expel Berl Friedman from the Congregation. Then, Recognizing that ''everything must be absolutely compatible with Torah principles'' and acting to ''carr[y] out the Torah opinion, as set forth by the rabbinical judges and by the [Grand] Rabbi,'' the Board stripped Friedman of his membership in the Congregation and barred him from being elected to any position in the Congregation. A true and complete copy of the minutes from the Board's January 18, 2001 meeting, along with a verified translation, is attached hereto as Exhibit H.
CONGREGATION RESPONDENTS' ELECTION
35. The Congregation's Board organized and conducted legitimate elections in accordance with the Congregation's prior practice and its By-Laws. In accordance with the Bylaws and the Congregation's prior practice, the Board established an election committee, which arranged for the preparation and mailing of voter cards with computerized bar codes to each member of the Congregation. In the weeks leading up to the election, the Committee gave the Congregation members ample notice of the upcoming election by posting notices in the Congregation's main synagogue and by publishing additional notices in the local newspaper, Der Yid. See Aff. of Solomon Wertheimer dated November 30, 2001 at ¶J 28-34, attached hereto as Exhibit G. Respondents were elected by a clear majority and the results were confirmed and certified by the Commissioners of Deeds. Copies of the certifications from the Commissioners of Deeds are attached hereto as Exhibit 1.
36. On May 27, 2001, the Grand Rebbe himself confirmed and certified the results of Respondents' Official Election and congratulated the winners. He reminded the Board members that they were elected to assist the members of community ''to execute from theory into action the opinion of our holy Torah, pursuant to the tradition of our forefathers and great Rabbinical scholars, and in accordance to the customs and standards of the congregation, which have been steadfastly set forth by my later uncle, the Grand Rebbe, of blessed memory.'' A copy of the Grand Rebbe's letter dated May 27, 2001 is attached hereto as Exhibit J.
APPELLANTS' SHAM ELECTION
37. Despite having been stripped of his Board position and expelled from the Congregation by the Grand Rebbe, Berl Friedman led the Dissidents in organizing a sham election, which lacked all indicia of legitimacy and failed to present even the appearance of propriety. For example, Appellants listed several candidates on their ballot whose consent Appellants had not even sought. Further, Appellants' election committee chairman, Mr. Eisenberg, was in Florida during the entire Appellant election process. Indeed, he admitted having nothing to do with Appellants' election. çç Affirmation of Solomon Wertheimer dated November 30, 2001 at ¶ 38, attached hereto as Exhibit G.
38. In this sham election, Berl Friedman was purportedly elected president of the Congregation, despite the fact that he had been expelled from the Congregation by the Grand Rebbe and was, therefore, obviously ineligible to serve as the Congregation's president. He had also been expelled by the Board and specifically barred from holding any elected position. See Affirmation of Sol Wertheimer dated November 30, 2001 at ¶J 37-40, 45-47 attached hereto as Exhibit G.
PROCEDURAL HISTORY COMMENCEMENT OF LITIGATION BY INCREDIBLY BROAD Ex PARTE TRO
39. In August 2001, the Dissidents brought a special proceeding under CPLR Article
75 seeking to compel certain respondents to arbitrate the dispute as to who are the duly authorized and elected officers and board members of the Congregation (the ''Article 75 Action''). Upon commencement of the Article 75 Action, the Dissidents managed to obtain an incredibly broad temporary restraining order (defined hereinafter as the ''Ex Parte TRO'') under highly irregular circumstances. Former Justice Reynold Mason signed the August 7, 2001 Ex Parte TRO without the benefit of any substantive submissions from Respondents or any oral argument on the merits of the underlying issues and drastically altered the governance of the Congregation. The Ex Parte TRO unilaterally discarded the then existing leadership structure of the Congregation and established a 'joint committee'' to be composed of six members, including three from the dissenting group. In essence, Justice Mason single handedly gave 50% control of the Congregation and veto power over affairs of the Congregation to the Dissidents, without any argument, submission or hearing.
THE APPELLATE DIVISION AND JUSTICE BARASCH MODIFY THE TRO
40. The Appellate Division recognized that the Ex Parte TRO would significantly hinder the operations of the Congregation and was reluctant to leave such extraordinary restraints in place, because they were imposed without the benefit of a full record. Therefore, the Appellate Division rapidly and substantially modified the Ex Parte TRO on August 10, 2001, and the Order was continued, as modified, by Justice Barasch on August 13, 2001. Both the Appellate Division and Justice Barasch ruled that the Congregation Respondents -- no one else -- were authorized to continue to manage the Congregation's affairs in the ordinary course of business.
41. In the First Action, Respondents counterclaimed for a declaratory judgment judicially determining that Respondents were the duly elected officers of the Congregation and for an injunction preventing Appellants from representing themselves as officers of the Congregation and from purporting to act on its behalf.
42. Despite the Ex Parte TRO that granted Respondents alone the sole authority to manage the affairs of the Congregation, Appellants persisted in the late summer and fall of 2001 attempting to collect membership dues on behalf of the Congregation and selling seats for the High Holiday services to be held in the Congregation's main synagogue located at 152 Rodney Street. In addition, Yossi Brach, a convicted felon, federal prison escapee and supporter of the Dissidents, repeatedly caused violent disruptions in the main synagogue, resulting in injury to Congregation members and necessitating police involvement. As a result, Justice Barasch held hearings in August, September and October 2001 in which he heard from the various parties and he signed orders granting Respondents the authority to undertake certain activities on behalf of the Congregation and specifically precluding Appellants from engaging in those same activities. Copies of two of Justice Barasch's orders dated August 30, 2001 and September 14, 2001 are attached hereto as Exhibits K and L, respectively.
43. The Dissidents expressed great unhappiness with certain of Justice Barasch's rulings and they attempted to maneuver this dispute out of his courtroom, first by making a baseless cross-motion dated September 14, 2001, seeking Justice Barasch's refusal from the case. However, the Dissidents then retained new counsel who quickly withdrew that motion, see Exh. M, and who promptly embarked upon a new, more clever scheme to steer this dispute to a judge of their choice.
DISSIDENTS' BLATANT EFFORT TO ''JUDGE SHOP'' AND THE FALSE RJI
44. In their next attempt to manipulate the judicial system, Dissidents brought an order to show cause, in a ten-year-old unrelated real estate dispute (the ''Real Estate Action'') in which the Congregation was a party that had been recently transferred to Justice Theodore Jones, in which Dissidents sought essentially the same relief that they had been denied by Justice Barasch -- i.e., an order declaring Berl Friedman the elected President of the Congregation and turning over control of the Congregation and its assets to him. The relief sought conflicted directly with the provisions of previous orders of Justice Barasch and the Appellate Division.
45. In furtherance of their scheme to hijack the leadership/election dispute from before Justice Barasch, the Dissidents then commenced a third action, in which they sought a determination that the election that the Respondents won should be voided under Not-for-Profit Law § 61 8. This third action was assigned to Justice Jones, based upon Appellants' false representations on their request for judicial intervention (''RJI'') filed with this action, that the matter related to only to the Real Estate Action, which was pending before Judge Jones. The RJI also falsely represented that the relief sought therein had not been sought previously in that, or any other court. Needless to say, the RJI did also not disclose this Court's August 10, 2001 ruling regarding who should control the Congregation while the matter was proceeding. Appellants again sought the same relief that Justice Barasch had previously denied.
JUSTICE PESCE'S ADMINISTRATIVE TRANSFER
46. In an effort to prevent conflicting decisions and to put all matters concerning the Appellants allege that Respondents have never challenged Appellants' sham election. See Buss Aff. at ¶J 27. First, however, in the days immediately following Appellants' sham election, Respondents immediately acted to challenge Appellants' authority by using the appropriate internal Satmar mechanisms - the decrees of the Grand Rebbe and the Rabbinical Judges - instead of resorting to the civil courts in violation of Jewish law. Moreover, after Appellants filed the above-captioned actions, Respondents, after obtaining permission from the Rabbinical Judges of the Congregation, cross-claimed for a determination that their election was valid and proper. Of course, the onus should not be placed upon the long-standing leaders of the Congregation to challenge every sham election that renegades may stage. If they had that heavy burden, the litigation of this dispute would never cease: Appellants could simply purport to hold several new elections on a regular basis, and Respondents would be forced to challenge each one in court or else surrender control to the renegades. Rather, the onus was on the Appellants to challenge the election called for by those already running the Congregation and who had conducted previous elections of the Congregation. Satmar leadership dispute before one justice, on February 6, 2002, Justice Michael Pesce, the then administrative judge of Kings County, administratively transferred all actions related to the Satmar leadership dispute to Justice Barasch, the judge to whom the first related action had been randomly assigned.
APPELLANTS' DELAYING TACTICS
47. Appellants then appealed Justice Pesce's decision to the Appellate Division and in doing so, further deliberately stalled a resolution on the merits. Having successfully frozen the litigation, they then deliberately chose to wait until the last minute of the permissible period to perfect their appeal so that the stay would last as long as possible. As a result, however, they missed their deadline to perfect the appeal by fifteen days, which required Appellants to move for an enlargement of their time to appeal.
48. Appellants then perfected their appeal only after having received ''dispensation'' from the Appellate Division. In such appeal, Appellants disingenuously argued that Justice Pesce had decided a motion to consolidate and, therefore, they were appealing from an appealable order. Congregation Yetev Lev D'Satmar, Inc. v. Kahana, 308 A.D.2d 446, 446-47 (2nd Dep't 2003). The Appellate Division subsequently affirmed Justice Pesce's order and the three above-captioned cases remained before Justice Barasch.
49. The above procedural history is marked by Appellants' dilatory and manipulative tactics, which evidence Appellants' intent to delay resolution of this dispute as long as possible, irrespective of the harm this protracted litigation has inflicted upon the Satmar community. Since the issuance of the modified TRO more than three years ago largely upon allegations of wrongdoing that Appellants alleged in their original Article 75 Petition but did not have the temerity to repeat in their Section 618 Action, Appellants have not once been able to prove that Respondents' management of the Congregation presents any threat of irreparable harm to themselves. Petitioners never challenged Justice Barasch's modified TRO; they did not submit a motion for re-argument, nor did they appeal it. In fact, Appellants have even acknowledged that since 2001, Respondents have been in control of the Congregation's affairs. $ç Affirmation of Ben Friedman in Opposition to December 3, 2003 Order to Show Cause, attached hereto as Exhibit N. As evidenced by the fact that Appellants have not produced any evidence questioning or challenging Respondents' control of the Congregation since Justice Barasch continued the Appellate Division's August 2001 order, Respondents have abided by the Court's directive and have responsibly managed the affairs of the Congregation.
JUSTICE BARASCH'S DECISION
50. After the Appellate Division upheld Justice Pesce's order transferring all the cases to Justice Barasch, months of motion practice ensued before Justice Barasch. Then, on October 22, 2004 Justice Barasch issued a decision dismissing all claims and counterclaims and denying all outstanding motions in the above-captioned matters. ç Buss Aff., Exh. D. In doing so, Justice Barasch recognized that while Appellants have attempted to cloak the underlying leadership challenge against the Grand Rebbe and his son Rabbi Zalmen Leib as a dispute over the validity of competing elections, which could be easily decided by reference to the Religious Corporation Law, this is actually a dispute over the Grand Rebbe's powers and who will succeed him. Id. at 14. Justice Barasch cited Justice Felix Frankfurter who recognized that when courts adjudicate disputes between rival factions of a religious faith, they must look to the ''heart of the controversy'' to determine whether they are authorized to intervene therein. Kedroff v. Saint Nicholas Cathedral of the Russian Orthodox Church of North America, 344 U.S. 94, 122 (1952).
51. Appellants have disingenuously represented to the Court that the dispute herein involves ''straight forward matters of corporate and election law.'' $ç Buss. Aff. at ¶ 46. Rather, these consolidated cases are about a rebellious group of dissidents who have been expelled from the Congregation by its ultimate authority, the Grand Rebbe, and who have fraudulently portrayed themselves as the elders of the Congregation who were duly elected, though in reality they were actually expelled from the Congregation for religious reasons.
52. The Court found that in order to determine even the tangential issues in the case, it would be required, impermissibly, to interpret and apply ecclesiastical doctrine. Barasch Opinion at 26. Deciding who is a member of the Congregation, and consequently who is entitled to vote and hold elected office, in light of the criteria set forth in the By-Laws could not be done by reference to neutral principles of law. Article 3 of the By-laws list three qualifications for membership:
''A. If he keeps the Sabbath as provided in Jewish law, and does not intentionally transgress anything that is forbidden in our holy Torah.
B. If he generally conducts himself in the ways of the Torah and educates his children in the ways of the Torah, and one whose wife does not wear her own hair.
C. If he is over 18 years old or immediately after his wedding.''
See Exhibit B. In light of these membership criteria which make explicit reference to, and require application of, ecclesiastical principles of Jewish law, the Court was unable to decide the issues regarding membership and entitlement to vote and hold elected office. $ç Buss Aff., Exh. D at 26-27.
53. While refusing to decide the validity of either side's elections, Justice Barasch concluded that the history of the Satmar sect, as supported by the Congregation's By-Laws,
''leaves no doubt that in every aspect of anything Satmar, the final arbiter is the Grand Rebbe himself. His word is supreme from which there is no appeal.'' Ich at 21. Furthermore, the Grand Rebbe is vested with:
consummate authority over every aspect that affects members of the community without resort to appeal. The Grand Rebbe is not a traditional clergyman hired by a religious congregation. He is neither hired by the community nor is he subject to dismissal from his position. There is no provision granting the Grand Rebbe an official salary from the Congregation. He is simply accepted as the indisputable leader of the sect. Id. at 20 (emphasis original).
54. Among other things, the Court cited to two specific provisions of the By-Laws in support of its findings. Article 8 of the By-Laws states ''His decision is binding on every member'' (emphasis added). In addition, the Court found that Article 2, as discussed supra at ¶ 11, evidences the fact that the entire purpose of the Satmar sect is to unite those who wish to live in accordance with the rulings and teaches of the Grand Rebbe. ''That an organizational system was set up to run the mundane day-to-day operations of the community, does not serve to obviate the Grand Rebbe's authority and decision making power which is necessarily binding on all members.'' (emphasis original). Id. at 21.
ARGUMENT
55. After finally receiving resolution as to the core issue of this dispute, mainly the Grand Rebbe's power over the constitution of the Congregation's Board and membership therein, Appellants are again engaging in tactics designed to prolong this litigation and sew doubt in the minds of the Congregants as to the state of affairs.
56. On this motion for injunctive relief from this Court pending resolution of their appeal under C.P.L.R. § 5518, Appellants bear the burden of establishing a likelihood of success on the merits of its appeals, the danger of immediate irreparable injury in the absence of an injunction, and a balance of the equities in its favor. 1659 Ralph Ave. Laundromat Corp. v. Ben David Enterprises, LLC, 307 A.D.2d 288, 289, 762 N.Y.S.2d 288 (2d Dep't 2003). Appellants cannot sustain their heavy burden.
APPELLANTS HAVE FAILED TO DEMONSTRATE ANY THREAT OF IRREPARABLE HARM.
57. Despite submitting a 101 -paragraph affirmation, it is not until paragraph 95 that Appellants even broach the concept of irreparable harm. Even then, their unfounded, dated allegations fall far short of establishing an immediate threat.
58. Just as telling as the lack of substance to Appellants' motion is the timing of its filing. The fact that Appellants waited three weeks to file a motion for a stay speaks volumes to its lack of merit. Justice Barasch issued his decision on October 22, 2004, yet it was not until November 16, 2004 that Appellants have decided that the situation warrants an application for such drastic relief. Appellants present absolutely no evidence to demonstrate that anything has transpired in the past weeks, or even during the past three years, that threatens injury to Appellants in any way.
59. Unable to cite to any recent occurrence or action by Respondents that threatens to cause Appellants harm as support for their application, Appellants are forced to mention that, in their original petition, they alleged that Respondents had ''unlawfully seized control of the Congregation's physical assets, real property and cash;'' that Appellants supposedly ''converted a housing project developed with the use of more than $5 Million dollars of Congregational funds to private control;'' and they ''squandered and delayed the construction of a new synagogue in Williamsburg for which over $5 Million dollars in pledges and contributions had already been collected.'' $ Affirmation of Jeffrey Buss (''Buss Aff.'') ¶ 95. What Appellants fail to mention, however, is that the original Petition submitted to the Court below in 2001 was ultimately withdrawn by Appellants, and when Appellants filed their third action seeking a determination under Not-for-Profit Law § 618, they did not have the audacity to repeat these key allegations from the original Petition that served as the underpinning for their request for initial relief. This omission is itself most telling. There is no evidence presented now, nor was there ever any presented to the Court below, to substantiate any of these claims contained in the original Petition. Surely the allegations from a three-year-old petition that are not now, nor have ever been, substantiated by competent evidence are insufficient to prove any threat of harm to Appellants.
60. In their next attempt at alleging irreparable harm, Appellants state in conclusory fashion that ''[since the issuance of the August 2001 Restraining Order, additional issues have arisen which raise grave concern regarding Respondents' ability to exercise fiduciary obligations over the Congregation property which they have unlawfully seized.'' $çç Buss Aff. at ¶ 97. Appellants do not identify these ''additional issues.'' Instead, and in support of this wild accusation, Appellants point to a completely unrelated litigation that involves a school that is affiliated with, yet run independently, from the Congregation. Besides from being totally unrelated, this lawsuit was commenced more than a year ago. As such, the unrelated allegations underlying this thirteen-month-old-lawsuit that have not been presented to or substantiated for this Court in no way serve to support Appellants' allegations as to Respondents' abilities as fiduciaries of the Congregation.
61. In a last desperate attempt to prove a threat of injury, Appellants question the propriety of Justice Barasch' s decision that they charge ''effectively divests control over the Congregation's assets from an elected Board and places it under the control of a ninety year old man, who I am advised, is suffering from what appears to be early stage dementia'' and ''provides no guidance regarding the standards or fiduciary duties that this individual must exercise . . . See Buss Aff. at ¶ 99. The issue of the Grand Rebbe's competency was never raised by Appellants in the court below and, as such, is irrelevant to the determination of this motion. Furthermore, Mr. Buss fails to identify who allegedly ''advised'' him of the Grand Rebbe' s purported condition, nor does he provide any basis for the mystery source's diagnosis. These comments are desperate attempts to distract the Court from the applicable legal standards for obtaining injunctive relief. It is well known that the Grand Rebbe, the leader of the Satmar Chassidic movement, is a very public figure who often attends religious services, participates in public meals with hundreds of his Chassidic followers, and attends other public ceremonies and functions. The anonymous and wholly-unsubstantiated characterization of the Grand Rebbe's condition as proffered by Mr. Buss rings hollow given the Grand Rebbe's high public profile.
62. In almost every litigation, opposing parties are distrustful of one another and concerned about the possible actions the other side may take. Such generalized suspicion of potential wrongdoing, without specifics or supporting evidence, does not give rise to the need for extraordinary injunctive relief if demonstrating unsubstantiated mistrust of the opposing party was the standard for the issuance of a stay, such relief would issue in every case. Appellants' citation to unfounded allegations is illustrative of the dearth of evidence Appellants have to justify the injunctive relief they seek.
63. In light of Appellants' utter failure to identify any threat of irreparable harm, the Court should deny the motion for a stay on this ground alone.
RESPONDENTS WILL BE PREJUDICED IF A STAY SHOULD ISSUE. CHAOS AND INSTABILITY WITHIN THE COMMUNITY
64. For the more than three years that the Ex Parte TRO, as modified by the Appellate Division, was in place, Respondents have not violated the Court's directive and have managed to successfully manage the affairs of the Congregation.
65. By contrast, Appellants' actions have forced Respondents to repeatedly seek injunctive relief from the Court restraining Appellants from interfering with Respondents' operation of the Congregation. Respondents were forced to seek numerous orders from the Court clarifying that Respondents alone, to the specific exclusion of Appellants, were authorized to act on behalf of the Congregation. Specifically, the Court issued supplemental orders authorizing Respondents to write checks drawn on the Congregation's bank accounts, sell tickets for seats in the Congregation's main synagogue for the High Holidays, collect contributions and charitable donations in the name of the Congregation, and speak for the Congregation in dealing with the New York City Police Department while trying to maintain decorum in the sanctuary of the main synagogue. Exh. K and L hereto.
66. It is truly ironic that Appellants, and not the Respondents, are seeking injunctive relief from this Court on an emergency basis. Appellants seem to believe that the ''status quo'' means that Respondents are responsible for paying all expenses of the Congregation, while Appellants may continue to masquerade as the leadership of the Congregation and to collect membership dues, thereby siphoning off funds needed to support the Congregation's activities. Here are two recent examples: First, in the October 29, 2004 edition of Der Blatt, Appellants published a notice that they will be opening new butcher shops in the name of the Congregation in Williamsburg and that those who pay Appellants their Congregational membership dues will received a discount on ''all of their orders.'' See Exhibit C hereto.
67. Second, Appellants ran, in the November 12, 2004 edition of Der Blatt, an advertisement announcing that they, acting in the name of the Congregation, will be conducting a special meeting of the Congregation's Board ''to sign up and confirm the hundreds of new applicants for membership.'' See Exhibit F. That advertisement encourages members to pay past-due membership dues to Appellants in order to receive discounts at these new butcher shops.
68. Notably, these advertisements were published after Justice Barasch dismissed Appellants' actions and announced that he was leaving Respondents in control of the Congregation's day-to-day operations. Appellants cannot pretend to need relief from this Court when they are utilizing brazen tactics that betray their unclean hands. It is outrageous that Appellants seek this Court's assistance to handcuff Respondents in their stewardship of the Congregation while Appellants are simultaneously working to siphon away funds while purporting to act in the name of the Congregation. The prejudice to Respondents is manifest.
69. Even with the Court's clear mandate that Respondents were vested with the power to control the daily operations of the Congregation; Appellants still repeatedly challenged this authority.
70. In March 2004, certain Dissidents attempted to collect payment of past due Congregation dues from the family of a recently deceased member in order so that the family would be permitted to erect and unveil the headstone for its deceased, in accordance with the long standing Congregation policy. Despite being admonished by the leader of the Burial Society, the separate organization that is responsible for performing all necessary pre-burial, burial and post-burial services for members of the Congregation, not to drag this sacred institution into the leadership conflict, Dissidents threatened to forcefully enter the cemetery with the assistance of the New York State Police, if denied access thereto. Despite the Burial Society ordering the Dissidents not to proceed, the Dissidents nevertheless ignored those orders and erected the tombstone on Sunday, March 21 under the cover of night. The Congregation has never received the three years of past-due membership fees that it is rightfully owed. A full deion of this incident is detailed in the Affirmation of Sol Perlstein dated April 4, 2004, which is attached hereto as Exhibit 0.
71. In April 2004, Appellants also attempted to collect the arrears of the Congregation, despite the clear order of the Court that they are prohibited from doing so. In the April 2, 2004 edition of Der Blatt, a Yiddish language newspaper, the Dissidents again placed an announcement wrongfully asserting that Berl Friedman and the other Dissidents are the rightful leadership of the Congregation with the authority to collect funds on its behalf, in blatant disregard of multiple court orders. A true and correct copy of this announcement in Hebrew, as well as a certified translation thereof, is attached hereto as Exhibit P.
72. Even more illustrative of the prejudice to Respondents should a stay issue are the events that occurred most recently on the Jewish holidays of Shmini Atzeres and Simchas Torah on October 6 and 7, 2004. The Appellants organized a massive disruption to take place in the Congregation's main synagogue that was designed to incite violence and mayhem on this sacred holiday and in preparation for this disruption closed all of their own synagogues in Williamsburg, that had been founded after the schism. Supporters of the Dissidents filled the main synagogue and a near-riot ensued. The unfortunate violent resolution to this well-planned disturbance was precipitated by one Yossi Brach, a convicted felon and federal detention escapee, assuming the honored chair specially designated for Rabbi Zalman Leib at the front of the synagogue while flanked by three armed guards and by Brach locking the door that provides access to the synagogue from the personal offices and occasional living quarters of the Grand Rebbe and Rabbi Zalman Leib. A full deion of the events of October 6 and 7 are detailed in the Affirmations of Sol Perlstein and Moshe Klein, which are attached hereto as Exhibits Q and R, respectively.
NEED FOR CLARITY AS TO CONTROL
73. These unfortunate events underscore the need for clarity with regard to who is in control of the Congregation. When events occur that necessitate police involvement, especially in the Congregation's main synagogue which holds thousands of people, it is necessary for the police understand from which parties to take directive. If a protest group decides to use violent or fraudulent tactics to disrupt religious services or improperly solicit the members of a congregation, the leaders of that congregation must be empowered to control the congregation's private property and protect its members from being preyed upon. The relief sought herein by Appellants would strip Respondents of the power to protect the Congregation and its members, leaving both vulnerable to attack.
APPELLANTS' PROPOSED ORDER IS EXTREMELY BROAD AND WOULD WRECK HAVOC
74. The scope of relief requested by Appellants reveals their true intent to create more confusion and chaos within the Satmar community. Appellants seek an order enjoining ''Respondents, or any other person, entity or spiritual authority, from transferring the temporal assets of the Congregation, conducting elections, excluding members, or otherwise changing the status quo pending a determination of the issues raised by this appeal'' (emphasis added).
75. This proposed order is far broader than this Court's August 10, 2001 Order and Justice's modification thereof. The effect of such an order would be to paralyze the Congregation and prevent it from servicing the thousands of families that rely on it daily; it would undoubtedly hinder Respondents from managing the Congregation's affairs in the ordinary course of business. If Respondents are precluded from ''transferring the temporal assets of the Congregation,'' the Congregation would presumably be unable to continuing functioning -- without the ability to pay hundreds of teachers' and Rabbis' salaries, to pay rent, utilities and other operating expenses for its numerous real properties, or to provide charitable assistance to hundreds of dependent families, the Congregation and its members would suffer true immediate irreparable harm. It is inconceivable how Berl Friedman, a rebel who was expelled from the Congregation almost three years ago, could obtain such drastic relief that would essentially freeze millions of dollars.
76. By including the Grand Rebbe within the scope of their proposed order, Appellants seek to radically alter the very essence of the Satmar sect. As discussed previously, the Congregation was established for the purpose of uniting Jews who wish to live according to the teachings and ruling of the Satmar Grand Rebbe. If the Grand Rebbe's powers over the Congregation wee in any way limited by the Court's ruling, the Satmar community's decades old, way of life, that relies upon the Grand Rebbe for guidance on virtually all matters of significance, would cease. The issuance of the order Appellants seek would preclude the Congregation from operating under the Grand Rebbe' s leadership, as it has done since its inception; to bar or even limit his leadership would cripple the institutions that he has helped to nurture for the past twenty years. Needless to say, it is procedurally improper for Appellants to seek an order restricting the Grand Rebbe from functioning in his position without commencing any action against him and without serving him with this motion.
77. Moreover, since Respondents would be required to seek Supreme Court and
Attorney General approval before transferring or encumbering any real estate held by the
Congregation, i.e., its most valuable asset, there is adequate statutory protection in the Religious Corporation Law and the Not-for-Profit Law that eliminates the necessity for injunctive relief here.
APPELLANTS HAVE FAILED TO DEMONSTRATE THE PROBABILITY OF MERITORIOUS APPEAL
78. Appellants base the probability of a meritorious appeal on the arguments that Justice Barasch allegedly did not consider certain evidence they submitted and that there were flaws in two of his interpretations of certain translations of the Congregation's By-Laws. These arguments fail to establish that Appellants' have a likelihood of succeeding on their appeal.
79. Appellants raised the issue below regarding the scope of the Grand Rebbe's authority, arguing that it was limited by the Congregation's By-laws to exclusively spiritual matters. Barasch Opinion at 15. The Court specifically addressed Appellants' argument by examining the By-laws and the evidence regarding the Congregation's past practice and found that the Grand Rebbe possesses supreme authority with regard to all Congregational affairs, including membership in the Congregation and the qualifications for holding elected office. It follows directly from this finding of the Court that all issues relating to the election should be determined by the Grand Rebbe, and not by the Court.
80. It is blackletter law that ''membership requirements are strictly an ecclesiastical matter and decisions of the church or synagogue are binding on the courts,'' and First Amendment restrictions prevent the Court from reviewing controversies ''concerning the internal affairs of a church.'' Park Slope Jewish Ctr. v. Stern, 128 A.D.2d 847, 513 N.Y.S.2d 767, 769 (2d Dep't 1987); Mays v. Burrell, 124 A.D.2d 714; 508 N.Y.S.2d 226 (2d Dep't 1986); see Kissel v. Russian Orthodox Greek Catholic Holy Trinity Church of Yonkers, 103 A.D.2d 830, 478 N.Y.S.2d 68, 69 (''whether one is a member in good standing is a matter of an ecclesiastical nature, relating to the government and discipline of the church; and the church's decision as to such a matter is binding on the courts''); Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 710 (1976); Gonzalez v. Roman Catholic Archbishop, 280 U.S. 1 (1929); Hutchinson v. Thomas, 789 F.2d 392, 396 (6th Cir. 1986); Crowder v. Southern Baptist Convention, 828 F.2d 718 (11th Cir. 1987).
81. Appellants charge that Justice Barasch arrived at his conclusion that the Grand Rebbe is the ultimate authority on all Congregational matters and his powers are not limited to the spiritual realm by ignoring and failing to consider certain affirmations they submitted. See Buss Aff. at ¶ 62-66. Appellants have no proof that Justice Barasch ignored these documents; rather, his opinion makes clear that his finding regarding the Grand Rebbe's power was fully supported by the Congregation's By-Laws and the history of the Congregation. The fact that Justice Barasch ultimately accepted Respondents' argument that the Grand Rebbe's powers are supreme does not support Appellants' allegation that he ignored the evidence submitted in support of their interpretation of the Grand Rebbe's position.
82. Appellants ignore the voluminous documents that Respondents submitted below in support of their position and fail to acknowledge that Justice Barasch's decision was made with the benefit of an extremely detailed record. Having sufficiently supported his conclusion with specific reference to multiple provisions of the By-Laws, Justice Barasch's failure to cite to in his decision any of Appellants' documentary evidence is not grounds for reversal. As such, this argument lends no support to Appellants' likelihood of succeeding on appeal.
83. Overlooking the Court's thorough examination of the By-Laws and its citation to the recurring theme therein regarding the Grand Rebbe's supreme authority, Appellants attack two specific translations within Justice Barasch's opinion. These criticisms are particularly ironic in light of the fact that, within its decision, the Court used the translations of the Congregation's By-laws submitted by Appellants. With the Court specifically quoting from the translations submitted by Appellants, Appellants cannot validly challenge the Court's interpretation of these translations.
84. For example: Appellants attack Justice Barasch's translation of the word ''melamed'' -- which he translated in Section 8 of the By-Laws as ''teacher'' (meaning that the Grand Rebbe has power over the selection of any teacher employed by the Congregation). They claim, without citation to any dictionary or Yiddish expert, that a ''melamed'' is ''a teacher of religion, not a teacher of secular material such as math, science, social studies of English'' (implying that the Grand Rebbe's authority is strictly limited to matters of religion.8 [Respondents were not aware that Mr. Buss is fluent in Yiddish.] Buss. Aff. at ¶ 73. The Court translated the word using the Modern English-Yiddish Dictionary, Uriel Weinreich, Schocken Books 1977, which translates ''melamed'' as ''teacher of children in a religious school.''9 While only a teacher in a religious school would be referred to as a ''melamed,'' there is no support for Appellants' argument that a ''melamed'' teaches only religious subjects. Indeed, the translation of the By-Laws submitted to Justice Barasch by Appellants, which the Court referenced in its decision, translates the word as ''teacher,'' not as ''religious teacher,'' which Appellants now claim is the correct meaning. If, as Mr. Buss argues, ''any Yeshiva child knows, a ''melamid'' is a teacher of religion, not a teacher of secular material,'' then why did Appellants' not supply the phrase ''religious teacher'' in the translation of the By-Laws they submitted to the If all a losing party has to do in order to concoct a meritorious appeal is argue that the lower court erred by adopting the very translation that party submitted to it, then this Court will become very busy reviewing newly-discovered disputes over translations.
85. Having failed to establish the probability that Justice Barasch' s decision would be reversed on appeal, Appellants have not sustained their burden and, as such, are not entitled to the relief sought herein.
APPELLANTS' AFFIRMATION BY COUNSEL HAVING NO PERSONAL KNOWLEDGE OF THE FACTS IS LEGALLY INSUFFICIENT TO SUPPORT THEIR MOTION FOR A STAY
86. Appellants' motion consists solely of the unsupported affirmation of its counsel having no facts of the facts about which he affirmed. Indeed, the Affirmation of Jeffrey Buss See also www.yiddishdictionaryonline.com. Appellants also take issue with the Court's interpretation of the following sentence from Article 8 of the By-Laws: ''Nobody can perform his functions without his consent.'' See Buss Aff. at ¶ ¶ 78-82. As with the translation of the word ''melamed,'' the Court accepted Appellants' translation of this sentence, so Appellants have no genuine grounds to argue that the Court erred by adopting their translation. contains nothing more than suppositions and theories about which Mr. Buss has no personal knowledge or supporting evidence. Counsel's affirmation is particularly unreliable because it is derivative of the unsupported theories of his client, and contains countless incidents of hearsay, several times removed.
87. In light of the inherent unreliability of counsel's affirmation due to its lack documentation supporting its many unsubstantiated theories, Respondents respectfully submit that it should not be considered and, as such, Appellants' motion fails for lack of support.
CONCLUSION
88. Having waited three weeks to bring this motion, Appellants have failed to conjure up any need for immediate relief or the threat of irreparable harm. Appellants' attempt to cripple the affairs of the Congregation via the exceedingly broad injunction they seek should not be countenanced by this Court. There has been no showing that Appellants have no adequate remedy at law. Significantly, important transactions involving real property of the Congregation would require approval from the Attorney General's Office.
89. The underlying dispute necessarily involves questions of religious doctrine and discipline concerning the Appellants' brazen rebellion against the Grand Rebbe ' s authority which are ecclesiastical in nature and go to the very heart of who is eligible to be a member of the Congregation and the circumstances under which a member may be expelled. Respondents and the Rabbinical Judges of the Congregation have joined the Grand Rebbe in condemning Appellants' rebellion as contrary to religious law and custom. Respondents respectfully submit that no secular court can opine as to whether the Appellants' conduct against the authority of the Grand Rebbe can possibly be consistent with Jewish law and tradition as practiced by the Satmar Chasidic sect.
90. Appellants' conduct throughout this litigation has manifested a reckless lack of concern for the welfare of the Congregation and its members. Most recently, they have attempted to wreak havoc in the Main Synagogue (just last month), and are continuing to masquerade as the leadership of the Congregation so as to siphon off funding needed to support the Congregation's numerous activities and functions, while sewing doubt in the Satmar community--and those with whom it necessarily interacts, including the NYPD—regarding who actually is authorized to act on behalf of the Congregation. The prejudice that would result from the drastic relief Appellants seek, alone, warrants denial of this motion.
WHEREFORE, Respondents respectfully request that the Court deny Appellants' motion for a stay pending appeal and award to Respondents such other and further relief as the Court may deem just and proper.
Scott E. Mollen
Subscribed and sworn to before me
this 22nd day of November, 2004
Notary Public
x
Application of
CONGREGATION YETEV LEV D'SATMAR, INC.,
-against-
Petitioner,
JACOB (JENO) (YAAKOV) KAHANA, SOL
(SHAUL) PERLSTEIN, MOSES (MOSHE)
FRIEDMAN, LOUIS (ELIEZER) KESTENBAUM,
SOLOMON SANDER, SOL WERTHEIMER,
MOSES ZUPNICK, LEIBISH JACOBOWITZ,
BENJAMIN HIRSH, Y. A. MOSKOWITZ, A.N.
REICH, N.A. WEINBERGER, USHER M.
MEISELS, SAFRA SPILMAN, ISSAC WEISS, S.
WERTZBERGER, ISRAEL S. ROSNER, CHAIM
GELBSTEIN, JACOB GLICK, MAYER
SHNITZLER, YOSEF E. SHLESINGER, ABISH
WEINBERGER, JOSEPH POLOCHAK, JOEL
GOLD, JACOB GOLD, MOSHE WOLF KLEIN,
MENDY BRILL, MARTIN WIEDER, MOSHE
REISMAN, SHOLOM DEUTSCH, MOSES
WERTHEIMER, CHANANIA SCHMILOWITZ,
YIDEL WEINSTOCK, ISSAC WERTHEIMER,
ARULY LANDAU, JOSEPH YOCHANAN
ALNDAU, MOSHE WEISER, CHEVRA
GEMILATH CHASUDIM YETEV, G'MACH BETH
YOSEF ARYEH, JERUSALEM HOMES, INC.,
KIRYAS (VILLAGE) OF V'YOEL MOSHE,
UNITED TALMUDICAL ACADEMY TORAH
V'YIRAH RABBINICAL, INC., MACHANE
(CAMP) ROV TOV, SATMAR MEAT OF
CONGREGATION YETEV LEV, INC., KEREN
V'YOEL MOSHE, INC., DER YID, INC., MATZA
BAKERY D'KHAL YETEV LEV D'SATMAR,
CHASE BANK, STERLING NATIONAL BANK,
HSBC, MERRILL LYNCH, INC, SANDOR MN
WEISS, R.A. ARCHITECTS, P.C., and BUILDING
DEPARTMENT OF THE CITY OF NEW YORK,
APP. DIV. NO. 2004-97 16
Index No. 28989/01
(Barasch, J.)
AFFIDAVIT OF SCOTT E.
MOLLEN IN OPPOSITION TO
APPELLANTS' MOTION FOR
STAY PENDING APPEAL AND
OTHER INJUNCTIVE Relief
Respondents.
BENJAMIN HIRSCH, SHEA ARYA MOSKOWITZ,
AVRAHAM MEIR REICH, NOACH AARON
WEINBERGER, USHER MEILECH MEISELS,
SUFRA SPILMAN, ISSAC (YITZCHOK) WEISS,
SENDER WIRZBERGER, ISRAEL (YISRUEL)
SHMAYA ROSNER, CHAIM GELBSTEIN, JACOB
(YAAKOV) GLUCK MEIR SHNITZLER, YOSEF
ELYE SCHLEZINGER, ABISH WE1NBERGER,
JOSPEH (YOSEF) POLATCHEK, YITZCHOK
GOLDERBERGER, YAAKOV HERSH
FRIEDMAN, YITZCHOK FRIED, SHULEM
EIZIKOWITZ, ZVI ELIMELECH KAHAN, CHAIM
PESACH GOLDSTEIN, AVRAHAM HERSH
LANDAU, YIDA HERSH LANDAU, NAFTAL
FLEISCHMAN, CHAIM BERKOWITZ, ISSAC
REICH, MEIR BRAND, AHRON GAVRIEL
HAUER, MOSHE HERSH DEUTSCH, MEIR LEIB
GOLD, YAKOV DRESDNER, BEREL KATZ,
SENDER GREENFELD, MOSHE DAVID GREEN,
ZEV FRIEDMAN, LEVI YITZCHOK LEIMZIDER,
FISHEL GLUCK, CHAIM HERSH KLAGSBALD,
SHLOME YIDA MOSKOWITZ, YOSEF KAHAN,
MENDEL ROSENBERG, YOSEF CHAIM WEISS,
MOSHE DAVID NIEDERMAN, YECHEZKEL
SCHWIMMER, YAKOV YOCHANAN FULOP,
MOREDECHAI WIRZBERGER, YONAH KATZ,
MOSED DAVID ROSNER, MOSHE YOSEF
DEUTSCH, CONGREGATION YETEV LEV
D'SATMAR, INC.,
Respondents.
CONGREGATION YETEV LEV D'SATMAR, INC., LUIOVICK WEISZ, and JACOB SCHOENFELD,
Plaintiffs,
-against-
26 ADAR N.B. CORP., NACHMAN BRACH, CONGREGATION BETH JOEL, BETH FIEGE, INC. and BAY RIDGE FEDERAL SAVINGS AND LOAN,
Defendants.
:x
Index No. 13224/90
(Barasch, J.)
:x
- x
In the matter of the Petition to Set Aside the Election
of the Board of Trustees and Officers of Congregation
Yetev Lev D'Satrnar held from the 13th to the 24th of : Index No. 4 1256/01
May 2001 and ''Certified'' on May 24, 2001, : (Barasch, J.)
BERL FRIEDMAN, SANDOR OBERLANDER,
ISSAC ROSENBERG, DAVID ECKSTEIN, DAVID
MARKOWITZ, ELIAS A. HOROWITZ, BEN
WERCZBERGER,
Petitioners,
-against-
JACOB (JENO (YAAKOV) KAHAN, SOL (SHAUL)
PERLSTE1N, MOSES (MOSHE) FRIEDMAN,
LOUIS (ELIEZER) KESTENBAUM, SOLOMON
SANDER, SOL WERTHEIMER,
MOSES ZUPNICK, LEIBISH JACOBOWITZ,
BENJAMIN HIRSH, Y. A. MOSKOWITZ, A.N.
REICH, N.A. WEINBERGER, USHER M.
MEISELS, SAFRA SPILMAN, ISSAC WEISS, S.
WERTZBERGER, ISRAEL S. ROSNER, CHAIM
GELBSTEIN, JACOB GLICK, MAYER
SHNITZLER, YOSEF E. SHLESINGER, ABISH
WEINBERGER, JOSEPH POLOCHAK, JOEL
GOLD, JACOB GOLD, MOSHE WOLF KLEIN,
MENDY BRILL, MARTIN WIEDER, MOSHE
REISMAN, SHOLOM DEUTSCH, MOSES
WERTHEIMER, CHANANIA SCHMILOWITZ,
YIDEL WEINSTOCK, ISSAC WERTHEIMER,
ARULY LANDAU, JOSEPH YOCHANAN
ALNDAU, MOSHE WEISER, CHEVRA
GEMILATH CHASUDIM YETEV, G'MACH BETH
YOSEF ARYEH, JERUSALEM HOMES, INC.,
KIRYAS (VILLAGE) OF V'YOEL MOSHE,
UNITED TALMUDICAL ACADEMY TORAH
V'YIRAH RABBINICAL, INC., MACHANE
(CAMP) ROV TOV, SATMAR MEAT OF
CONGREGATION YETEV LEV, INC., KEREN
V'YOEL MOSHE, INC., DER YID, INC. JACOB
(JENO) (YAKOV) KAHAN, SOL (SHAUL)
PERLSTEIN, SOLOMON (SHLOME ZALMEN)
SANDER, SOL (CHAIME SHLOME)
WETHEIMER, MOSES (MOSHE) ZUPNICK,
LEIBISH (DAVID LEIB) JACOBOWITZ,
AFFIDAVIT
STATE OF NEW YORK)
) ss.:
COUNTY OF NEW YORK)
SCOTT E. MOLLEN, being duly sworn, deposes and says:
1. I am a member of Herrick, Feinstein LLP, counsel for the certain named Respondents,' the duly elected leadership of Congregation Yetev Lev D'Satmar, Inc. (the ''Congregation''). As such, I am fully familiar with the records and proceedings discussed herein. I respectfully submit this affidavit in opposition to the motion dated November 16, 2004 of Appellant-Petitioners (''Appellants'') for a stay pending appeal of the October 22, 2004 decision of the Honorable Melvin S. Barasch, entered by the Clerk of the Supreme Court of Kings County on October 26, 2004 and for additional injunctive relief, including the reinstatement of an August 7, 2001 Restraining Order, as modified by the Appellate Division, Second Department on August 10, 2001.
PRELIMINARY STATEMENT
2. Despite the fact that Judge Barasch's decision was issued on October 22, 2004, Appellants waited three full weeks, until November 16, 2004, to file the instant Order to Show Cause. This delay, together with the failure to cite to any evidence of any immediate threatened wrongful conduct, demonstrates that Appellants are in no immediate danger of suffering any Irreparable harm that would necessitate this Court granting the drastic relief requested. Appellants have submitted absolutely no evidence of any actions taken by Respondents in the past three weeks -- or, for that matter, over the past three years -- that threaten Appellants with grave injury, for which no other remedy at law would be available. Rather, Appellants rely upon unfounded suspicions and concerns, which fall incredibly short of the standard for issuing such an order.
3. Furthermore, despite criticizing certain aspects of Justice Barasch' s decision,
Appellants fail to identify the specific grounds on which they believe they will prevail on appeal.
They fault Justice Barasch for accepting and relying upon the translation of the Congregation's By-Laws that Appellants submitted to him. Such disingenuous criticism, however, fails to demonstrate Appellants' likelihood of prevailing on appeal.
4. This application is merely Appellants' most recent ploy to perpetuate the state of limbo in which the Congregation and its thousands of members have been forced to live for the past several years. Appellants have delayed resolution of the merits at every available opportunity. For example, in appealing an administrative order issued by the Honorable Michael L. Pesce, the former Administrative Justice of the Second Judicial District, Appellants waited until what they thought was the last day to perfect their appeal. After delaying six months, they actually let the appeal period expire and had to seek relief from this Court to perfect late.
The undersigned represents the following named Respondents in the above-captioned matter:
Jacob (Jeno) (Yaakov) Kahana, Moses (Moshe) Friedman, Solomon Sander, Sol Wertheimer,
Moses Zupnick, Leibish Jacobowitz, Benjamin Hirsch, Y.A. Moskowitz, A.M. Reich, N.A.
Weinberger, Safra Spilman, Issac Weiss, S. Wertzberger, Israel S. Rosner, Chaim Gelbstein,
Jacob Glick, Mayer Slmitzler, Yosef E. Shlesinger, Abish Weinberger, and Joseph Polochack.
5. Appellants' failure to submit any factual support for the many accusations upon which they base their motion evidences their true intent to impede the operations of the Congregation that provides much needed charitable, social, religious and educational services to thousands of families on a daily basis. The vagueness and breadth of the relief they seek shows Appellants' true intent to unreasonably hamstring the Congregation without regard for the thousands of lives that will affected thereby. The proposed order would create havoc within a large network of social, charitable, educational and religious institutional programs.
FACTUAL AND PROCEDURAL BACKGROUND
6. In order to appreciate the complex background against which Justice Barasch issued his decision that has precipitated this appeal, it is necessary to briefly detail the history of the Satmar community, as well as the convoluted procedural history of these consolidated actions, which includes Appellants' multiple attempts to manipulate the judicial system.
FACTUAL HISTORY FOUNDING OF THE CONGREGATION
7. As Rabbi Shlomo Gelbaman, a noted historian and widely published scholar of the Satmar Chassidic Movement2 explained to the Court below, which has been confirmed by numerous elder members of the Satmar community, the Satmar movement was founded by Rabbi Joel Teitelbaum who, in 1934, became the Chief Rebbe3 of the Hungarian town of Suta Mare. Prior to the Holocaust, Rabbi Joel Teitelbaum had amassed a following of more than 10,000 Chassidic followers. As Grand Rebbe, he was the ultimate authority on all religious and over the past twenty-five years; Rabbi Gelbaman has interviewed hundreds of Satmar Chassid's, Satmar leaders, and senior and influential members of the Congregation. He has published hundreds of newspaper articles tracking the Satmar Chassidic movement and its development in the United States, and has authored numerous books about the Satmar Community, most notably Moshian Shel Yisroel (The Helper of Israel), an eight-volume history/biography of the life and leadership of the late Grand Rebbe, Rabbi Joel Teitelbaum. The term ''Rebbe'' is often used by Chassidic follower in place of the term ''Rabbi'' when referring to the leader of their sect. As such, Rabbi Joel Teitelbaum, and his nephew who succeeded him, current Rabbi Moses Teitelbaum, are herein referred to as the ''Grand Rebbe'' of the Satmar Chassidic Sect.
8. After a post-Holocaust stay in what was then Palestine, Rabbi Joel Teitelbaum emigrated to the United States in 1947 and established Congregation Yetev Lev in Williamsburg, in an attempt to reestablish a Chassidic community, similar to the one that had existed before, and had been decimated by, the Holocaust.
9. The Satmar Chassidic movement is centered around the revered Grand Rebbe, the sect's central authority, whose statements and decisions are respected and adhered to without challenge. By definition, a Satmar Chassid is one who is an unwavering follower of the Grand Rebbe and seeks guidance from the Grand Rebbe when making any type of significant decision. See Affirmation of Shlomo Gelbaman at ¶ 14, dated July 13, 2004, attached hereto as Exhibit A. Whether it be which profession to enter, which house to buy, which individual to marry, or which investment decision is proper, when a Satmar Chassid asks the Satmar Grand Rebbe for advice, he intends to adhere to his decision. The Satmar Grand Rebbe does not issue advisory opinions; it is expected and understood that his wishes will be obeyed. Whenever disputes arose among Board members regarding any Congregational matter, only the Grand Rebbe would resolve this dispute; his decision was final. çç Affirmation of Shlomo Gelbman at ¶ 15, dated July 13, 2004, attached hereto as Exhibit A.
10. As the historian Rabbi Gelbaman explained to the court below in his Affirmation (Ex. A hereto at ¶ 7), the Congregation did not hire or select Rabbi Teitelbaum to
Although the various affirmations cited herein were submitted to the Court below with
numerous exhibits, Respondents have attached hereto only the affirmations themselves, with any directly applicable exhibits, so as not to burden the Court with unnecessary documentation. lead them; instead, he founded the Congregation and those who wanted, voluntarily associated themselves therewith by accepting him as their unquestioned leader and joining as members. Any notion that somehow the Satmar Grand Rebbe serves at the pleasure or at the will of Congregation Yetev Lev is an absolutely false. See id. Upon the passing of Rabbi Joel Teitelbaum in 1979, his nephew Rabbi Moses Teitelbaum ascended to the position of Grand Rebbe. As his uncle had been, Grand Rebbe Moses Teitelbaum is the revered Grand Rebbe and undisputed leader of the entire worldwide Satmar sect.5 Today, the Congregation is essentially the umbrella organization of a thriving community under the leadership of the current Grand Rebbe, that runs multiple synagogues, schools, camps, butcher shops, a matzah bakery and countless charitable organizations that provide its members with goods and services for virtually every aspect of their lives.
11. To memorialize the fact that it was the first Grand Rebbe, Rabbi Joel Teitelbaum, who founded Yetev Lev, and to recognize the leadership of the current Grand Rebbe, the Congregation added the following to its official emblem and letterhead in 1990's: ''Founded in 5708 [1948] by the holy Grand Rebbe of blessed memory - under the leadership of the [current] Grand Rebbe, may he live.'' Sc Affirmation of Shlomo Gelbman at ¶ 7, dated July 13, 2004, attached hereto as Exhibit A.
In 1995, Article 8 of the By-Laws were amended to include the following: [With the passing away of our holy father and most revered Grand Rebbe, Of Blessed Memory, we accepted upon ourselves the honorable holy Grand Rebbe, Rabbi Moshe Teitelbaum to be his successor.'' By amending the By-Laws, the Congregation explicitly acknowledged that Rabbi Moses Teitelbaum assumed all of the powers and authorities held by his uncle before him. In addition, the Board passed a resolution explicitly confirming that Grand Rebbe Moses Teitelbaum ''possess all of the rights, exactly as the previous Rabbi, Of Blessed Memory, and whoever is challenging the Rabbi is as if he would have challenged the Al-mighty.'' See Exh. H, infra.
THE CONGREGATION'S BY-LAWS
12. When the first Grand Rebbe established the Congregation, he recognized the need to do so in accordance with the laws of the State of New York. As such, he authorized the registration and incorporation of the Congregation, as well as creation of formal By-Laws. Article 2 of the Congregation's By-Laws confirm the Grand Rebbe's supreme position in the Congregation. Therein it states under the section entitled Purpose of the Congregation:
''(1) The Congregation was founded to unite Jews who desire to conduct themselves and educate their children according to the ways of our forefathers and our holy teachers under the leadership of the most venerable teacher, Rabbi Joel Teitelbaum . . . (3) To maintain and take care of all holy institutions and the institutions that Orthodox congregations have to have according to the laws set for the by the great rabbis, the founders of orthodoxy in old Hungary with the approval of the holy venerable Rabbi. . .
A copy of the Congregation's By-Laws, along with a verified translation, is attached hereto as Exhibit B (emphasis added).
13. The Grand Rebbe also recognized the need for a governing body to assist him in its daily operations. Consistent with the provisions of the newly created By-Laws, the Grand Rebbe directed the creation of a Board of Directors (the ''Board''). The records show that Rabbi Teitelbaum never intended to cede any of his power over the Congregation to the Board. His desire that the Board serve beneath the Grand Rebbe is supported by Article 8 of the Congregation's By-Laws, which delineates the scope of the Grand Rebbe's authority over the Congregation and says that the Grand Rebbe is the authority of the Congregation, ''his ruling is binding upon every member,'' and ''no one can occupy his position without his consent.'' These two crucial clauses in the section of the By-Laws dealing with the Grand Rebbe '5 authority, assured that the Grand Rebbe's authority would supercede any Board decisions. The Board members recognized that they were serving the Congregation at the Grand Rebbe's pleasure, and It was inconceivable that any Board member would have the audacity to challenge the authority of the Grand Rebbe on any issue, without any distinction as to the nature of the matter. See Affirmation of Shlomo Gelbman at ¶ 10, dated July 13, 2004, attached hereto as Exhibit A.
PAST PRACTICE OF THE CONGREGATION
14. The first Grand Rebbe believed that Congregation decisions must be made consistent with the Torah position and, therefore, insisted on being the supreme authority of the Congregation in order to ensure that all actions comported with his interpretation of Jewish law and custom. Even those decisions in which the Grand Rebbe did not play an active role were subject to his approval. As Mi. Gelbman explains, no significant decision regarding any matter, spiritual or financial, practical or ecclesiastical, was made for the Congregation without the express knowledge and consent of the Grand Rebbe. $çç Affirmation of Shlomo Gelbman at ¶ 11, dated July 13, 2004, attached hereto as Exhibit A.
15. As is also the case in other Chassidic communities, the role of a Grand Rebbe is to act as the ultimate and final authority regarding all matters, both religious and secular. For this reason, Satmar Chassidim continually seek the Grand Rebbe's guidance and direction regarding business, marital, and family issues, as well as on spiritual and religious matters. See Affirmation of Shlomo Gelbman at ¶ 13, dated July 13, 2004, attached hereto as Exhibit A.
16. Ever since the Congregation's inception in 1948, the Grand Rebbe exercised total and absolute authority over all Congregational matters, both religious and otherwise.
Affirmation of Shlomo Gelbman at ¶ 12, dated July 13, 2004, attached hereto as Exhibit A. The Congregation's Board never questioned or attempted to override his supreme authority. In fact, the recent rebellion by some dissident members is unprecedented in the history of the Satmar Chassidic Community.
17. The breadth of the Grand Rebbe's power and his control over the Congregation's Board was all encompassing, as is amply demonstrated by two telling incidents. See Affirmation of Shlomo Gelbman at ¶ 16, dated July 13, 2004, attached hereto as Exhibit A.
18. In approximately 1965, the Congregation held an election for the position of treasurer. As between the candidates Solomon Katz and Wolf Freund, a majority of the participating members voted for Mr. Wolf Freund. Believing that it was in the best interest of the Congregation, the Grand Rebbe overruled the election results and appointed Mr. Katz to serve as treasurer. This decision was fully accepted by the Congregation and Mr. Katz served in this position. This incident clearly demonstrates the Grand Rebbe's supreme authority over all Congregational affairs, and the fact that the Congregation and its members duly deferred to him regarding the selection of lay leaders of the Congregation. Affirmation of Shlomo Gelbman at ¶ 17, dated July 13, 2004, attached hereto as Exhibit A.
19. Second, in 1978, the Board agreed that there was a need to increase the number of Board members due to the growth of the Congregation. Mr. Leopold Lefkowitz, who was then president of the Congregation, stated on the record that there had been no elections held recently and since there were no plans for one in the immediate future, he presented to the Grand Rebbe for approval of the names of potential new Board members. The Grand Rebbe approved the appointment of these new Board members and as a result, those individuals assumed positions on the Board. See Affirmation of Shlomo Gelbman at ¶ 18, dated July 13, 2004, attached hereto as Exhibit A.
APPOINTMENT OF RABBI ZALMEN LEIB TEITELBAUM AS CHIEF RABBI OF WILLIAMSBURG CONGREGATION
20. Unfortunately, the failure of some dissident members of the Congregation to Accept and adhere to the rulings of the Grand Rebbe has precipitated the instant dispute. In June 1999, the Grand Rebbe appointed his son, Rabbi Zalmen Leib Teitelbaum, who was then the Chief Rabbi of the Satmar congregation in Jerusalem, to be the Chief Rabbi of the Congregation in Williamsburg, rather than the Grand Rebbe 'S other son, Rabbi Aaron Teitelbaum, whom the Grand Rabbi had previously appointed to be the Chief Rabbi of the separate and independent congregation in Kiryas Joel. In a statement made at a January 18, 2001 Board meeting, the Grand Rebbe stated, ''If we really want Satmar to remain Satmar, in the way my uncle of blessed memory had wished, then [Zalmen Leib] is the most qualified person to serve as Rabbi of the Williamsburg Congregation.'' A copy of the Grand Rebbe's statement, along with a verified translation is attached hereto as Exhibit D.
21. The Grand Rebbe insisted on installing Rabbi Zalmen Leib as Chief Rabbi of the Williamsburg Congregation despite intense lobbying by Rabbi Aaron and his supporters to appoint Rabbi Aaron instead. At the direction of the Grand Rebbe, the Congregation officially hired Rabbi Zalmen Leib as its Chief Rabbi, who subsequently assumed rabbinical authority directly from his father. See Affirmation of Jacob Schoenfeld dated May 5, 2004 at ¶ 22, attached hereto as Exhibit E. The appointment was announced to the community and ratified by the Board of the Congregation.
22. After exhausting his futile campaign to orchestrate a change of heart by the Grand
Rebbe, Rabbi Aaron himself delivered a public concession speech in the synagogue in Kiryas Joel. Rabbi Aaron stated that the Grand Rebbe has the ultimate and highest authority in congregation matters, and that it was he who decided to install Rabbi Zalmen Leib as Chief Rabbi in Brooklyn. Seemingly, Rabbi Aaron's supporters were put on notice to accept the action taken by the Grand Rebbe, which was subsequently accepted by the board. $çç Affirmation of Jacob Schoenfeld dated May 5, 2004 at ¶ 23, attached hereto as Exhibit E.
23. In December 2000, the then-serving members of the board, including Petitioners Ben Friedman and Issac Rosenberg, signed the Hebrew document known as a Kunses, which fixes Rabbi Zalmen Leib's official title as ''Av Beth Din,'' loosely translated as Chief of the Rabbinical Court of the Congregation. At that time, Rabbi Zalmen Leib became the head of the entire ecclesiastical establishment, subordinate only to the Grand Rebbe himself. See Affirmation of Jacob Schoenfeld dated May 5, 2004 at ¶ 24, attached hereto as Exhibit E.
THE UNPRECEDENTED REBELLION AGAINST THE GRAND REBBE'S AUTHORITY
24. In the summer of 2000, two dissident board members of the Congregation, Ben Friedman6 and Isaac Rosenberg, who supported Rabbi Aaron Teitelbaum, launched a rebellion against the Grand Rebbe and most of the remaining members of the Board. They began contemplating legal action intended to defeat the Grand Rebbe's decision. See Affirmation of Jacob Schoenfeld dated May 5, 2004 at ¶ 28, attached hereto as Exhibit E.
25. I am advised that an entire section in the authoritative Code of Jewish Law (Choshen Mishpat) is devoted to the prohibition for members of the Jewish people to bring any controversy before civil courts. Jewish Law provides for unusually harsh consequences to those who violate this prohibition. The Congregation, which steadfastly adheres to the most strict Orthodox interpretation of the Code of Jewish Law has a long and well-documented history of reprimanding, and even expelling, members who have sought to adjudicate their dispute in civil courts, based upon the exclusive direction of the Grand Rebbe and the Congregation Rabbinical Judges. Aff. of Jacob Schoenfeld dated May 5, 2004 at ¶ 4 attached hereto as Exhibit E. Justice Barasch also recognized that submitting this controversy to secular court, rather than to a Beth Din, is considered a grave offence under Jewish law. See Buss Aff., Exh. D at Footnote 2.
and it bears noting that in 1986, when Berl Friedman first became a member of the Board, it was not the result of any election: he was unilaterally appointed by the Grand Rebbe. Nor was Berl Friedman ever elected to the President of the Congregation. Instead, after the former president, Leopold Lefkowitz passed away in 1998, the board appointment Berl Friedman and Respondent Jacob (Jeno) Kahan to serve as co-presidents. Kahan had been appointed to the Board several years before Berl Friedman was appointed, and Kahan was first elected to the Board in 1984. See Aff. of Solomon Wertheimer dated November 30, 2001, attached hereto as Exhibit G.
26. Concerned about involving the civil courts, the Board passed a resolution in August 2000 requiring all board members to commit not to bring internal disputes before civil courts for resolution. Over the following months, the Board considered a number of texts for the letter of commitment. The final version was signed by a majority on the board and became binding upon all board members, even those who refused to sign. See Affirmation of Jacob Schoenfeld dated May 5, 2004 at ¶ 29, attached hereto as Exhibit E.
27. Dissidents Friedman and Rosenberg abstained from signing the Commitment. Their opposition lent credence to the steady rumors that they considered resorting to the civil courts in complete contempt of the Grand Rebbe and in complete disrespect of decades of Congregation policy. See Affirmation of Jacob Schoenfeld dated May 5, 2004 at ¶ 30, attached hereto as Exhibit E.
28. After the Grand Rebbe refused to capitulate to the Dissidents, the Dissidents launched a campaign of violence and intimidation, which included the disruption of services in the Congregation's main synagogue and other functions of the Congregation. In December 2000 and January 2001, the Dissidents expressly refused to recognize the authority of, and affirm allegiance to Rabbi Zalmen Leib, despite the fact that he had been unquestionably appointed by The Grand Rebbe. See Affirmation of Solomon Wertheimer dated November 30, 2001 at ¶J 24, 25, attached hereto as Exhibit G.
EXPULSION OF FRIEDMAN AND ROSENBERG FROM THE CONGREGATION
29. On December 29, 2000, at a routine Congregation meeting with the Grand Rebbe in his residence, the Grand Rebbe expressed frustration over the fact that dissidents Friedman and Rosenberg were still defiantly refusing to commit themselves not to go to the civil courts to address Congregation affairs, and he ordered their immediate dismissal from the Board. On December 31, 2000, the Board formally adopted the Grand Rebbe's decree removing Messrs. Friedman and Rosenberg from the Board. Affirmation of Jacob Schoenfeld dated May 5, 2004 at ¶J 32, 34 attached hereto as Exhibit E; Affirmation of Sol Wertheimer dated November 30, 2001 at ¶ 26, attached hereto as Exhibit G.
30. On January 14, 2001, the Dissidents purported to hold a meeting in the name of the Congregation at a catering hail in Brooklyn, where they purported to announce that they would hold an election for Board positions. See Affirmation of Solomon Wertheimer dated November 30, 2001 at ¶J 24, 25, attached hereto as Exhibit G.
31. On January 15, 2001, a panel of Congregation Rabbinical Judges convened a meeting to discuss the Dissidents' unprecedented and treasonous conduct. The Rabbinical Judges issued a pronouncement that they ''appear[ed] with the powers of [their] holy Torah, to publicly declare [their] opinion, which is the Torah opinion . . . '' regarding the Dissidents' conduct. They found that the Dissident's January 14 ''meeting'' was designed to undermine the ultimate ecclesiastical authority of the Grand Rebbe and that the Dissidents were ''conspiring traitors'' who have having shamed the ''honor of the Torah, and the slandering of the Al-mighty's name, especially on the humiliation of the Grand Rabbi.'' The Judges ruled that all of the so called ''resolutions'' passed by the Dissidents were null and void. A copy of the Rabbinical Judges' January 15, 2001 ruling is attached hereto as Exhibit S.
32. Three days later, on January 18, 2001, the official Congregation Board convened again, this time together with the lower board of directors, known as the Tuvim committee. Recognizing that the purpose of the Congregation is to conduct its affairs in accordance with the Torah and that the declaration of the esteemed Rabbinical Judges represents the Torah opinion, the Board formally adopted the Rabbinical Judge's declaration, which declared the Dissidents' January 14 ''meeting'' null and void.
33. More importantly, at this same Board meeting, the Grand Rebbe criticized the rebellion led by Berl Friedman. The Grand Rebbe also condemned Friedman's statements that the Grand Rebbe has ''a limited amount of powers and rights within the Congregation'' by saying that ''such a statement is against our holy Torah.'' Based upon Berl Friedman's treasonous, even heretical conduct, of making statements against the Torah and disseminating lies and deceptions in the Grand Rebbe's name, the Grand Rebbe ordered that ''Berl Friedman can no longer be a member in Congregation Yetev Lev'' and that he cannot enter any Satmar place of worship. A copy of the January 18, 2001 statement of the Grand Rebbe is attached hereto as Exhibit D. The Grand Rebbe's decision to expel Ben Friedman from the Congregation was clearly premised upon an ecclesiastical determination that his actions violated the Torah and the fundamental teachings of the Satmar sect. Ich
34. Subsequent to the Grand Rebbe ordering Friedman's expulsion, the Board, ''accept[ed] with the full effectiveness the Torah opinion as set forth by the Rabbinical Judges, and by the [Grand] Rabbi'' their decision to expel Berl Friedman from the Congregation. Then, Recognizing that ''everything must be absolutely compatible with Torah principles'' and acting to ''carr[y] out the Torah opinion, as set forth by the rabbinical judges and by the [Grand] Rabbi,'' the Board stripped Friedman of his membership in the Congregation and barred him from being elected to any position in the Congregation. A true and complete copy of the minutes from the Board's January 18, 2001 meeting, along with a verified translation, is attached hereto as Exhibit H.
CONGREGATION RESPONDENTS' ELECTION
35. The Congregation's Board organized and conducted legitimate elections in accordance with the Congregation's prior practice and its By-Laws. In accordance with the Bylaws and the Congregation's prior practice, the Board established an election committee, which arranged for the preparation and mailing of voter cards with computerized bar codes to each member of the Congregation. In the weeks leading up to the election, the Committee gave the Congregation members ample notice of the upcoming election by posting notices in the Congregation's main synagogue and by publishing additional notices in the local newspaper, Der Yid. See Aff. of Solomon Wertheimer dated November 30, 2001 at ¶J 28-34, attached hereto as Exhibit G. Respondents were elected by a clear majority and the results were confirmed and certified by the Commissioners of Deeds. Copies of the certifications from the Commissioners of Deeds are attached hereto as Exhibit 1.
36. On May 27, 2001, the Grand Rebbe himself confirmed and certified the results of Respondents' Official Election and congratulated the winners. He reminded the Board members that they were elected to assist the members of community ''to execute from theory into action the opinion of our holy Torah, pursuant to the tradition of our forefathers and great Rabbinical scholars, and in accordance to the customs and standards of the congregation, which have been steadfastly set forth by my later uncle, the Grand Rebbe, of blessed memory.'' A copy of the Grand Rebbe's letter dated May 27, 2001 is attached hereto as Exhibit J.
APPELLANTS' SHAM ELECTION
37. Despite having been stripped of his Board position and expelled from the Congregation by the Grand Rebbe, Berl Friedman led the Dissidents in organizing a sham election, which lacked all indicia of legitimacy and failed to present even the appearance of propriety. For example, Appellants listed several candidates on their ballot whose consent Appellants had not even sought. Further, Appellants' election committee chairman, Mr. Eisenberg, was in Florida during the entire Appellant election process. Indeed, he admitted having nothing to do with Appellants' election. çç Affirmation of Solomon Wertheimer dated November 30, 2001 at ¶ 38, attached hereto as Exhibit G.
38. In this sham election, Berl Friedman was purportedly elected president of the Congregation, despite the fact that he had been expelled from the Congregation by the Grand Rebbe and was, therefore, obviously ineligible to serve as the Congregation's president. He had also been expelled by the Board and specifically barred from holding any elected position. See Affirmation of Sol Wertheimer dated November 30, 2001 at ¶J 37-40, 45-47 attached hereto as Exhibit G.
PROCEDURAL HISTORY COMMENCEMENT OF LITIGATION BY INCREDIBLY BROAD Ex PARTE TRO
39. In August 2001, the Dissidents brought a special proceeding under CPLR Article
75 seeking to compel certain respondents to arbitrate the dispute as to who are the duly authorized and elected officers and board members of the Congregation (the ''Article 75 Action''). Upon commencement of the Article 75 Action, the Dissidents managed to obtain an incredibly broad temporary restraining order (defined hereinafter as the ''Ex Parte TRO'') under highly irregular circumstances. Former Justice Reynold Mason signed the August 7, 2001 Ex Parte TRO without the benefit of any substantive submissions from Respondents or any oral argument on the merits of the underlying issues and drastically altered the governance of the Congregation. The Ex Parte TRO unilaterally discarded the then existing leadership structure of the Congregation and established a 'joint committee'' to be composed of six members, including three from the dissenting group. In essence, Justice Mason single handedly gave 50% control of the Congregation and veto power over affairs of the Congregation to the Dissidents, without any argument, submission or hearing.
THE APPELLATE DIVISION AND JUSTICE BARASCH MODIFY THE TRO
40. The Appellate Division recognized that the Ex Parte TRO would significantly hinder the operations of the Congregation and was reluctant to leave such extraordinary restraints in place, because they were imposed without the benefit of a full record. Therefore, the Appellate Division rapidly and substantially modified the Ex Parte TRO on August 10, 2001, and the Order was continued, as modified, by Justice Barasch on August 13, 2001. Both the Appellate Division and Justice Barasch ruled that the Congregation Respondents -- no one else -- were authorized to continue to manage the Congregation's affairs in the ordinary course of business.
41. In the First Action, Respondents counterclaimed for a declaratory judgment judicially determining that Respondents were the duly elected officers of the Congregation and for an injunction preventing Appellants from representing themselves as officers of the Congregation and from purporting to act on its behalf.
42. Despite the Ex Parte TRO that granted Respondents alone the sole authority to manage the affairs of the Congregation, Appellants persisted in the late summer and fall of 2001 attempting to collect membership dues on behalf of the Congregation and selling seats for the High Holiday services to be held in the Congregation's main synagogue located at 152 Rodney Street. In addition, Yossi Brach, a convicted felon, federal prison escapee and supporter of the Dissidents, repeatedly caused violent disruptions in the main synagogue, resulting in injury to Congregation members and necessitating police involvement. As a result, Justice Barasch held hearings in August, September and October 2001 in which he heard from the various parties and he signed orders granting Respondents the authority to undertake certain activities on behalf of the Congregation and specifically precluding Appellants from engaging in those same activities. Copies of two of Justice Barasch's orders dated August 30, 2001 and September 14, 2001 are attached hereto as Exhibits K and L, respectively.
43. The Dissidents expressed great unhappiness with certain of Justice Barasch's rulings and they attempted to maneuver this dispute out of his courtroom, first by making a baseless cross-motion dated September 14, 2001, seeking Justice Barasch's refusal from the case. However, the Dissidents then retained new counsel who quickly withdrew that motion, see Exh. M, and who promptly embarked upon a new, more clever scheme to steer this dispute to a judge of their choice.
DISSIDENTS' BLATANT EFFORT TO ''JUDGE SHOP'' AND THE FALSE RJI
44. In their next attempt to manipulate the judicial system, Dissidents brought an order to show cause, in a ten-year-old unrelated real estate dispute (the ''Real Estate Action'') in which the Congregation was a party that had been recently transferred to Justice Theodore Jones, in which Dissidents sought essentially the same relief that they had been denied by Justice Barasch -- i.e., an order declaring Berl Friedman the elected President of the Congregation and turning over control of the Congregation and its assets to him. The relief sought conflicted directly with the provisions of previous orders of Justice Barasch and the Appellate Division.
45. In furtherance of their scheme to hijack the leadership/election dispute from before Justice Barasch, the Dissidents then commenced a third action, in which they sought a determination that the election that the Respondents won should be voided under Not-for-Profit Law § 61 8. This third action was assigned to Justice Jones, based upon Appellants' false representations on their request for judicial intervention (''RJI'') filed with this action, that the matter related to only to the Real Estate Action, which was pending before Judge Jones. The RJI also falsely represented that the relief sought therein had not been sought previously in that, or any other court. Needless to say, the RJI did also not disclose this Court's August 10, 2001 ruling regarding who should control the Congregation while the matter was proceeding. Appellants again sought the same relief that Justice Barasch had previously denied.
JUSTICE PESCE'S ADMINISTRATIVE TRANSFER
46. In an effort to prevent conflicting decisions and to put all matters concerning the Appellants allege that Respondents have never challenged Appellants' sham election. See Buss Aff. at ¶J 27. First, however, in the days immediately following Appellants' sham election, Respondents immediately acted to challenge Appellants' authority by using the appropriate internal Satmar mechanisms - the decrees of the Grand Rebbe and the Rabbinical Judges - instead of resorting to the civil courts in violation of Jewish law. Moreover, after Appellants filed the above-captioned actions, Respondents, after obtaining permission from the Rabbinical Judges of the Congregation, cross-claimed for a determination that their election was valid and proper. Of course, the onus should not be placed upon the long-standing leaders of the Congregation to challenge every sham election that renegades may stage. If they had that heavy burden, the litigation of this dispute would never cease: Appellants could simply purport to hold several new elections on a regular basis, and Respondents would be forced to challenge each one in court or else surrender control to the renegades. Rather, the onus was on the Appellants to challenge the election called for by those already running the Congregation and who had conducted previous elections of the Congregation. Satmar leadership dispute before one justice, on February 6, 2002, Justice Michael Pesce, the then administrative judge of Kings County, administratively transferred all actions related to the Satmar leadership dispute to Justice Barasch, the judge to whom the first related action had been randomly assigned.
APPELLANTS' DELAYING TACTICS
47. Appellants then appealed Justice Pesce's decision to the Appellate Division and in doing so, further deliberately stalled a resolution on the merits. Having successfully frozen the litigation, they then deliberately chose to wait until the last minute of the permissible period to perfect their appeal so that the stay would last as long as possible. As a result, however, they missed their deadline to perfect the appeal by fifteen days, which required Appellants to move for an enlargement of their time to appeal.
48. Appellants then perfected their appeal only after having received ''dispensation'' from the Appellate Division. In such appeal, Appellants disingenuously argued that Justice Pesce had decided a motion to consolidate and, therefore, they were appealing from an appealable order. Congregation Yetev Lev D'Satmar, Inc. v. Kahana, 308 A.D.2d 446, 446-47 (2nd Dep't 2003). The Appellate Division subsequently affirmed Justice Pesce's order and the three above-captioned cases remained before Justice Barasch.
49. The above procedural history is marked by Appellants' dilatory and manipulative tactics, which evidence Appellants' intent to delay resolution of this dispute as long as possible, irrespective of the harm this protracted litigation has inflicted upon the Satmar community. Since the issuance of the modified TRO more than three years ago largely upon allegations of wrongdoing that Appellants alleged in their original Article 75 Petition but did not have the temerity to repeat in their Section 618 Action, Appellants have not once been able to prove that Respondents' management of the Congregation presents any threat of irreparable harm to themselves. Petitioners never challenged Justice Barasch's modified TRO; they did not submit a motion for re-argument, nor did they appeal it. In fact, Appellants have even acknowledged that since 2001, Respondents have been in control of the Congregation's affairs. $ç Affirmation of Ben Friedman in Opposition to December 3, 2003 Order to Show Cause, attached hereto as Exhibit N. As evidenced by the fact that Appellants have not produced any evidence questioning or challenging Respondents' control of the Congregation since Justice Barasch continued the Appellate Division's August 2001 order, Respondents have abided by the Court's directive and have responsibly managed the affairs of the Congregation.
JUSTICE BARASCH'S DECISION
50. After the Appellate Division upheld Justice Pesce's order transferring all the cases to Justice Barasch, months of motion practice ensued before Justice Barasch. Then, on October 22, 2004 Justice Barasch issued a decision dismissing all claims and counterclaims and denying all outstanding motions in the above-captioned matters. ç Buss Aff., Exh. D. In doing so, Justice Barasch recognized that while Appellants have attempted to cloak the underlying leadership challenge against the Grand Rebbe and his son Rabbi Zalmen Leib as a dispute over the validity of competing elections, which could be easily decided by reference to the Religious Corporation Law, this is actually a dispute over the Grand Rebbe's powers and who will succeed him. Id. at 14. Justice Barasch cited Justice Felix Frankfurter who recognized that when courts adjudicate disputes between rival factions of a religious faith, they must look to the ''heart of the controversy'' to determine whether they are authorized to intervene therein. Kedroff v. Saint Nicholas Cathedral of the Russian Orthodox Church of North America, 344 U.S. 94, 122 (1952).
51. Appellants have disingenuously represented to the Court that the dispute herein involves ''straight forward matters of corporate and election law.'' $ç Buss. Aff. at ¶ 46. Rather, these consolidated cases are about a rebellious group of dissidents who have been expelled from the Congregation by its ultimate authority, the Grand Rebbe, and who have fraudulently portrayed themselves as the elders of the Congregation who were duly elected, though in reality they were actually expelled from the Congregation for religious reasons.
52. The Court found that in order to determine even the tangential issues in the case, it would be required, impermissibly, to interpret and apply ecclesiastical doctrine. Barasch Opinion at 26. Deciding who is a member of the Congregation, and consequently who is entitled to vote and hold elected office, in light of the criteria set forth in the By-Laws could not be done by reference to neutral principles of law. Article 3 of the By-laws list three qualifications for membership:
''A. If he keeps the Sabbath as provided in Jewish law, and does not intentionally transgress anything that is forbidden in our holy Torah.
B. If he generally conducts himself in the ways of the Torah and educates his children in the ways of the Torah, and one whose wife does not wear her own hair.
C. If he is over 18 years old or immediately after his wedding.''
See Exhibit B. In light of these membership criteria which make explicit reference to, and require application of, ecclesiastical principles of Jewish law, the Court was unable to decide the issues regarding membership and entitlement to vote and hold elected office. $ç Buss Aff., Exh. D at 26-27.
53. While refusing to decide the validity of either side's elections, Justice Barasch concluded that the history of the Satmar sect, as supported by the Congregation's By-Laws,
''leaves no doubt that in every aspect of anything Satmar, the final arbiter is the Grand Rebbe himself. His word is supreme from which there is no appeal.'' Ich at 21. Furthermore, the Grand Rebbe is vested with:
consummate authority over every aspect that affects members of the community without resort to appeal. The Grand Rebbe is not a traditional clergyman hired by a religious congregation. He is neither hired by the community nor is he subject to dismissal from his position. There is no provision granting the Grand Rebbe an official salary from the Congregation. He is simply accepted as the indisputable leader of the sect. Id. at 20 (emphasis original).
54. Among other things, the Court cited to two specific provisions of the By-Laws in support of its findings. Article 8 of the By-Laws states ''His decision is binding on every member'' (emphasis added). In addition, the Court found that Article 2, as discussed supra at ¶ 11, evidences the fact that the entire purpose of the Satmar sect is to unite those who wish to live in accordance with the rulings and teaches of the Grand Rebbe. ''That an organizational system was set up to run the mundane day-to-day operations of the community, does not serve to obviate the Grand Rebbe's authority and decision making power which is necessarily binding on all members.'' (emphasis original). Id. at 21.
ARGUMENT
55. After finally receiving resolution as to the core issue of this dispute, mainly the Grand Rebbe's power over the constitution of the Congregation's Board and membership therein, Appellants are again engaging in tactics designed to prolong this litigation and sew doubt in the minds of the Congregants as to the state of affairs.
56. On this motion for injunctive relief from this Court pending resolution of their appeal under C.P.L.R. § 5518, Appellants bear the burden of establishing a likelihood of success on the merits of its appeals, the danger of immediate irreparable injury in the absence of an injunction, and a balance of the equities in its favor. 1659 Ralph Ave. Laundromat Corp. v. Ben David Enterprises, LLC, 307 A.D.2d 288, 289, 762 N.Y.S.2d 288 (2d Dep't 2003). Appellants cannot sustain their heavy burden.
APPELLANTS HAVE FAILED TO DEMONSTRATE ANY THREAT OF IRREPARABLE HARM.
57. Despite submitting a 101 -paragraph affirmation, it is not until paragraph 95 that Appellants even broach the concept of irreparable harm. Even then, their unfounded, dated allegations fall far short of establishing an immediate threat.
58. Just as telling as the lack of substance to Appellants' motion is the timing of its filing. The fact that Appellants waited three weeks to file a motion for a stay speaks volumes to its lack of merit. Justice Barasch issued his decision on October 22, 2004, yet it was not until November 16, 2004 that Appellants have decided that the situation warrants an application for such drastic relief. Appellants present absolutely no evidence to demonstrate that anything has transpired in the past weeks, or even during the past three years, that threatens injury to Appellants in any way.
59. Unable to cite to any recent occurrence or action by Respondents that threatens to cause Appellants harm as support for their application, Appellants are forced to mention that, in their original petition, they alleged that Respondents had ''unlawfully seized control of the Congregation's physical assets, real property and cash;'' that Appellants supposedly ''converted a housing project developed with the use of more than $5 Million dollars of Congregational funds to private control;'' and they ''squandered and delayed the construction of a new synagogue in Williamsburg for which over $5 Million dollars in pledges and contributions had already been collected.'' $ Affirmation of Jeffrey Buss (''Buss Aff.'') ¶ 95. What Appellants fail to mention, however, is that the original Petition submitted to the Court below in 2001 was ultimately withdrawn by Appellants, and when Appellants filed their third action seeking a determination under Not-for-Profit Law § 618, they did not have the audacity to repeat these key allegations from the original Petition that served as the underpinning for their request for initial relief. This omission is itself most telling. There is no evidence presented now, nor was there ever any presented to the Court below, to substantiate any of these claims contained in the original Petition. Surely the allegations from a three-year-old petition that are not now, nor have ever been, substantiated by competent evidence are insufficient to prove any threat of harm to Appellants.
60. In their next attempt at alleging irreparable harm, Appellants state in conclusory fashion that ''[since the issuance of the August 2001 Restraining Order, additional issues have arisen which raise grave concern regarding Respondents' ability to exercise fiduciary obligations over the Congregation property which they have unlawfully seized.'' $çç Buss Aff. at ¶ 97. Appellants do not identify these ''additional issues.'' Instead, and in support of this wild accusation, Appellants point to a completely unrelated litigation that involves a school that is affiliated with, yet run independently, from the Congregation. Besides from being totally unrelated, this lawsuit was commenced more than a year ago. As such, the unrelated allegations underlying this thirteen-month-old-lawsuit that have not been presented to or substantiated for this Court in no way serve to support Appellants' allegations as to Respondents' abilities as fiduciaries of the Congregation.
61. In a last desperate attempt to prove a threat of injury, Appellants question the propriety of Justice Barasch' s decision that they charge ''effectively divests control over the Congregation's assets from an elected Board and places it under the control of a ninety year old man, who I am advised, is suffering from what appears to be early stage dementia'' and ''provides no guidance regarding the standards or fiduciary duties that this individual must exercise . . . See Buss Aff. at ¶ 99. The issue of the Grand Rebbe's competency was never raised by Appellants in the court below and, as such, is irrelevant to the determination of this motion. Furthermore, Mr. Buss fails to identify who allegedly ''advised'' him of the Grand Rebbe' s purported condition, nor does he provide any basis for the mystery source's diagnosis. These comments are desperate attempts to distract the Court from the applicable legal standards for obtaining injunctive relief. It is well known that the Grand Rebbe, the leader of the Satmar Chassidic movement, is a very public figure who often attends religious services, participates in public meals with hundreds of his Chassidic followers, and attends other public ceremonies and functions. The anonymous and wholly-unsubstantiated characterization of the Grand Rebbe's condition as proffered by Mr. Buss rings hollow given the Grand Rebbe's high public profile.
62. In almost every litigation, opposing parties are distrustful of one another and concerned about the possible actions the other side may take. Such generalized suspicion of potential wrongdoing, without specifics or supporting evidence, does not give rise to the need for extraordinary injunctive relief if demonstrating unsubstantiated mistrust of the opposing party was the standard for the issuance of a stay, such relief would issue in every case. Appellants' citation to unfounded allegations is illustrative of the dearth of evidence Appellants have to justify the injunctive relief they seek.
63. In light of Appellants' utter failure to identify any threat of irreparable harm, the Court should deny the motion for a stay on this ground alone.
RESPONDENTS WILL BE PREJUDICED IF A STAY SHOULD ISSUE. CHAOS AND INSTABILITY WITHIN THE COMMUNITY
64. For the more than three years that the Ex Parte TRO, as modified by the Appellate Division, was in place, Respondents have not violated the Court's directive and have managed to successfully manage the affairs of the Congregation.
65. By contrast, Appellants' actions have forced Respondents to repeatedly seek injunctive relief from the Court restraining Appellants from interfering with Respondents' operation of the Congregation. Respondents were forced to seek numerous orders from the Court clarifying that Respondents alone, to the specific exclusion of Appellants, were authorized to act on behalf of the Congregation. Specifically, the Court issued supplemental orders authorizing Respondents to write checks drawn on the Congregation's bank accounts, sell tickets for seats in the Congregation's main synagogue for the High Holidays, collect contributions and charitable donations in the name of the Congregation, and speak for the Congregation in dealing with the New York City Police Department while trying to maintain decorum in the sanctuary of the main synagogue. Exh. K and L hereto.
66. It is truly ironic that Appellants, and not the Respondents, are seeking injunctive relief from this Court on an emergency basis. Appellants seem to believe that the ''status quo'' means that Respondents are responsible for paying all expenses of the Congregation, while Appellants may continue to masquerade as the leadership of the Congregation and to collect membership dues, thereby siphoning off funds needed to support the Congregation's activities. Here are two recent examples: First, in the October 29, 2004 edition of Der Blatt, Appellants published a notice that they will be opening new butcher shops in the name of the Congregation in Williamsburg and that those who pay Appellants their Congregational membership dues will received a discount on ''all of their orders.'' See Exhibit C hereto.
67. Second, Appellants ran, in the November 12, 2004 edition of Der Blatt, an advertisement announcing that they, acting in the name of the Congregation, will be conducting a special meeting of the Congregation's Board ''to sign up and confirm the hundreds of new applicants for membership.'' See Exhibit F. That advertisement encourages members to pay past-due membership dues to Appellants in order to receive discounts at these new butcher shops.
68. Notably, these advertisements were published after Justice Barasch dismissed Appellants' actions and announced that he was leaving Respondents in control of the Congregation's day-to-day operations. Appellants cannot pretend to need relief from this Court when they are utilizing brazen tactics that betray their unclean hands. It is outrageous that Appellants seek this Court's assistance to handcuff Respondents in their stewardship of the Congregation while Appellants are simultaneously working to siphon away funds while purporting to act in the name of the Congregation. The prejudice to Respondents is manifest.
69. Even with the Court's clear mandate that Respondents were vested with the power to control the daily operations of the Congregation; Appellants still repeatedly challenged this authority.
70. In March 2004, certain Dissidents attempted to collect payment of past due Congregation dues from the family of a recently deceased member in order so that the family would be permitted to erect and unveil the headstone for its deceased, in accordance with the long standing Congregation policy. Despite being admonished by the leader of the Burial Society, the separate organization that is responsible for performing all necessary pre-burial, burial and post-burial services for members of the Congregation, not to drag this sacred institution into the leadership conflict, Dissidents threatened to forcefully enter the cemetery with the assistance of the New York State Police, if denied access thereto. Despite the Burial Society ordering the Dissidents not to proceed, the Dissidents nevertheless ignored those orders and erected the tombstone on Sunday, March 21 under the cover of night. The Congregation has never received the three years of past-due membership fees that it is rightfully owed. A full deion of this incident is detailed in the Affirmation of Sol Perlstein dated April 4, 2004, which is attached hereto as Exhibit 0.
71. In April 2004, Appellants also attempted to collect the arrears of the Congregation, despite the clear order of the Court that they are prohibited from doing so. In the April 2, 2004 edition of Der Blatt, a Yiddish language newspaper, the Dissidents again placed an announcement wrongfully asserting that Berl Friedman and the other Dissidents are the rightful leadership of the Congregation with the authority to collect funds on its behalf, in blatant disregard of multiple court orders. A true and correct copy of this announcement in Hebrew, as well as a certified translation thereof, is attached hereto as Exhibit P.
72. Even more illustrative of the prejudice to Respondents should a stay issue are the events that occurred most recently on the Jewish holidays of Shmini Atzeres and Simchas Torah on October 6 and 7, 2004. The Appellants organized a massive disruption to take place in the Congregation's main synagogue that was designed to incite violence and mayhem on this sacred holiday and in preparation for this disruption closed all of their own synagogues in Williamsburg, that had been founded after the schism. Supporters of the Dissidents filled the main synagogue and a near-riot ensued. The unfortunate violent resolution to this well-planned disturbance was precipitated by one Yossi Brach, a convicted felon and federal detention escapee, assuming the honored chair specially designated for Rabbi Zalman Leib at the front of the synagogue while flanked by three armed guards and by Brach locking the door that provides access to the synagogue from the personal offices and occasional living quarters of the Grand Rebbe and Rabbi Zalman Leib. A full deion of the events of October 6 and 7 are detailed in the Affirmations of Sol Perlstein and Moshe Klein, which are attached hereto as Exhibits Q and R, respectively.
NEED FOR CLARITY AS TO CONTROL
73. These unfortunate events underscore the need for clarity with regard to who is in control of the Congregation. When events occur that necessitate police involvement, especially in the Congregation's main synagogue which holds thousands of people, it is necessary for the police understand from which parties to take directive. If a protest group decides to use violent or fraudulent tactics to disrupt religious services or improperly solicit the members of a congregation, the leaders of that congregation must be empowered to control the congregation's private property and protect its members from being preyed upon. The relief sought herein by Appellants would strip Respondents of the power to protect the Congregation and its members, leaving both vulnerable to attack.
APPELLANTS' PROPOSED ORDER IS EXTREMELY BROAD AND WOULD WRECK HAVOC
74. The scope of relief requested by Appellants reveals their true intent to create more confusion and chaos within the Satmar community. Appellants seek an order enjoining ''Respondents, or any other person, entity or spiritual authority, from transferring the temporal assets of the Congregation, conducting elections, excluding members, or otherwise changing the status quo pending a determination of the issues raised by this appeal'' (emphasis added).
75. This proposed order is far broader than this Court's August 10, 2001 Order and Justice's modification thereof. The effect of such an order would be to paralyze the Congregation and prevent it from servicing the thousands of families that rely on it daily; it would undoubtedly hinder Respondents from managing the Congregation's affairs in the ordinary course of business. If Respondents are precluded from ''transferring the temporal assets of the Congregation,'' the Congregation would presumably be unable to continuing functioning -- without the ability to pay hundreds of teachers' and Rabbis' salaries, to pay rent, utilities and other operating expenses for its numerous real properties, or to provide charitable assistance to hundreds of dependent families, the Congregation and its members would suffer true immediate irreparable harm. It is inconceivable how Berl Friedman, a rebel who was expelled from the Congregation almost three years ago, could obtain such drastic relief that would essentially freeze millions of dollars.
76. By including the Grand Rebbe within the scope of their proposed order, Appellants seek to radically alter the very essence of the Satmar sect. As discussed previously, the Congregation was established for the purpose of uniting Jews who wish to live according to the teachings and ruling of the Satmar Grand Rebbe. If the Grand Rebbe's powers over the Congregation wee in any way limited by the Court's ruling, the Satmar community's decades old, way of life, that relies upon the Grand Rebbe for guidance on virtually all matters of significance, would cease. The issuance of the order Appellants seek would preclude the Congregation from operating under the Grand Rebbe' s leadership, as it has done since its inception; to bar or even limit his leadership would cripple the institutions that he has helped to nurture for the past twenty years. Needless to say, it is procedurally improper for Appellants to seek an order restricting the Grand Rebbe from functioning in his position without commencing any action against him and without serving him with this motion.
77. Moreover, since Respondents would be required to seek Supreme Court and
Attorney General approval before transferring or encumbering any real estate held by the
Congregation, i.e., its most valuable asset, there is adequate statutory protection in the Religious Corporation Law and the Not-for-Profit Law that eliminates the necessity for injunctive relief here.
APPELLANTS HAVE FAILED TO DEMONSTRATE THE PROBABILITY OF MERITORIOUS APPEAL
78. Appellants base the probability of a meritorious appeal on the arguments that Justice Barasch allegedly did not consider certain evidence they submitted and that there were flaws in two of his interpretations of certain translations of the Congregation's By-Laws. These arguments fail to establish that Appellants' have a likelihood of succeeding on their appeal.
79. Appellants raised the issue below regarding the scope of the Grand Rebbe's authority, arguing that it was limited by the Congregation's By-laws to exclusively spiritual matters. Barasch Opinion at 15. The Court specifically addressed Appellants' argument by examining the By-laws and the evidence regarding the Congregation's past practice and found that the Grand Rebbe possesses supreme authority with regard to all Congregational affairs, including membership in the Congregation and the qualifications for holding elected office. It follows directly from this finding of the Court that all issues relating to the election should be determined by the Grand Rebbe, and not by the Court.
80. It is blackletter law that ''membership requirements are strictly an ecclesiastical matter and decisions of the church or synagogue are binding on the courts,'' and First Amendment restrictions prevent the Court from reviewing controversies ''concerning the internal affairs of a church.'' Park Slope Jewish Ctr. v. Stern, 128 A.D.2d 847, 513 N.Y.S.2d 767, 769 (2d Dep't 1987); Mays v. Burrell, 124 A.D.2d 714; 508 N.Y.S.2d 226 (2d Dep't 1986); see Kissel v. Russian Orthodox Greek Catholic Holy Trinity Church of Yonkers, 103 A.D.2d 830, 478 N.Y.S.2d 68, 69 (''whether one is a member in good standing is a matter of an ecclesiastical nature, relating to the government and discipline of the church; and the church's decision as to such a matter is binding on the courts''); Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 710 (1976); Gonzalez v. Roman Catholic Archbishop, 280 U.S. 1 (1929); Hutchinson v. Thomas, 789 F.2d 392, 396 (6th Cir. 1986); Crowder v. Southern Baptist Convention, 828 F.2d 718 (11th Cir. 1987).
81. Appellants charge that Justice Barasch arrived at his conclusion that the Grand Rebbe is the ultimate authority on all Congregational matters and his powers are not limited to the spiritual realm by ignoring and failing to consider certain affirmations they submitted. See Buss Aff. at ¶ 62-66. Appellants have no proof that Justice Barasch ignored these documents; rather, his opinion makes clear that his finding regarding the Grand Rebbe's power was fully supported by the Congregation's By-Laws and the history of the Congregation. The fact that Justice Barasch ultimately accepted Respondents' argument that the Grand Rebbe's powers are supreme does not support Appellants' allegation that he ignored the evidence submitted in support of their interpretation of the Grand Rebbe's position.
82. Appellants ignore the voluminous documents that Respondents submitted below in support of their position and fail to acknowledge that Justice Barasch's decision was made with the benefit of an extremely detailed record. Having sufficiently supported his conclusion with specific reference to multiple provisions of the By-Laws, Justice Barasch's failure to cite to in his decision any of Appellants' documentary evidence is not grounds for reversal. As such, this argument lends no support to Appellants' likelihood of succeeding on appeal.
83. Overlooking the Court's thorough examination of the By-Laws and its citation to the recurring theme therein regarding the Grand Rebbe's supreme authority, Appellants attack two specific translations within Justice Barasch's opinion. These criticisms are particularly ironic in light of the fact that, within its decision, the Court used the translations of the Congregation's By-laws submitted by Appellants. With the Court specifically quoting from the translations submitted by Appellants, Appellants cannot validly challenge the Court's interpretation of these translations.
84. For example: Appellants attack Justice Barasch's translation of the word ''melamed'' -- which he translated in Section 8 of the By-Laws as ''teacher'' (meaning that the Grand Rebbe has power over the selection of any teacher employed by the Congregation). They claim, without citation to any dictionary or Yiddish expert, that a ''melamed'' is ''a teacher of religion, not a teacher of secular material such as math, science, social studies of English'' (implying that the Grand Rebbe's authority is strictly limited to matters of religion.8 [Respondents were not aware that Mr. Buss is fluent in Yiddish.] Buss. Aff. at ¶ 73. The Court translated the word using the Modern English-Yiddish Dictionary, Uriel Weinreich, Schocken Books 1977, which translates ''melamed'' as ''teacher of children in a religious school.''9 While only a teacher in a religious school would be referred to as a ''melamed,'' there is no support for Appellants' argument that a ''melamed'' teaches only religious subjects. Indeed, the translation of the By-Laws submitted to Justice Barasch by Appellants, which the Court referenced in its decision, translates the word as ''teacher,'' not as ''religious teacher,'' which Appellants now claim is the correct meaning. If, as Mr. Buss argues, ''any Yeshiva child knows, a ''melamid'' is a teacher of religion, not a teacher of secular material,'' then why did Appellants' not supply the phrase ''religious teacher'' in the translation of the By-Laws they submitted to the If all a losing party has to do in order to concoct a meritorious appeal is argue that the lower court erred by adopting the very translation that party submitted to it, then this Court will become very busy reviewing newly-discovered disputes over translations.
85. Having failed to establish the probability that Justice Barasch' s decision would be reversed on appeal, Appellants have not sustained their burden and, as such, are not entitled to the relief sought herein.
APPELLANTS' AFFIRMATION BY COUNSEL HAVING NO PERSONAL KNOWLEDGE OF THE FACTS IS LEGALLY INSUFFICIENT TO SUPPORT THEIR MOTION FOR A STAY
86. Appellants' motion consists solely of the unsupported affirmation of its counsel having no facts of the facts about which he affirmed. Indeed, the Affirmation of Jeffrey Buss See also www.yiddishdictionaryonline.com. Appellants also take issue with the Court's interpretation of the following sentence from Article 8 of the By-Laws: ''Nobody can perform his functions without his consent.'' See Buss Aff. at ¶ ¶ 78-82. As with the translation of the word ''melamed,'' the Court accepted Appellants' translation of this sentence, so Appellants have no genuine grounds to argue that the Court erred by adopting their translation. contains nothing more than suppositions and theories about which Mr. Buss has no personal knowledge or supporting evidence. Counsel's affirmation is particularly unreliable because it is derivative of the unsupported theories of his client, and contains countless incidents of hearsay, several times removed.
87. In light of the inherent unreliability of counsel's affirmation due to its lack documentation supporting its many unsubstantiated theories, Respondents respectfully submit that it should not be considered and, as such, Appellants' motion fails for lack of support.
CONCLUSION
88. Having waited three weeks to bring this motion, Appellants have failed to conjure up any need for immediate relief or the threat of irreparable harm. Appellants' attempt to cripple the affairs of the Congregation via the exceedingly broad injunction they seek should not be countenanced by this Court. There has been no showing that Appellants have no adequate remedy at law. Significantly, important transactions involving real property of the Congregation would require approval from the Attorney General's Office.
89. The underlying dispute necessarily involves questions of religious doctrine and discipline concerning the Appellants' brazen rebellion against the Grand Rebbe ' s authority which are ecclesiastical in nature and go to the very heart of who is eligible to be a member of the Congregation and the circumstances under which a member may be expelled. Respondents and the Rabbinical Judges of the Congregation have joined the Grand Rebbe in condemning Appellants' rebellion as contrary to religious law and custom. Respondents respectfully submit that no secular court can opine as to whether the Appellants' conduct against the authority of the Grand Rebbe can possibly be consistent with Jewish law and tradition as practiced by the Satmar Chasidic sect.
90. Appellants' conduct throughout this litigation has manifested a reckless lack of concern for the welfare of the Congregation and its members. Most recently, they have attempted to wreak havoc in the Main Synagogue (just last month), and are continuing to masquerade as the leadership of the Congregation so as to siphon off funding needed to support the Congregation's numerous activities and functions, while sewing doubt in the Satmar community--and those with whom it necessarily interacts, including the NYPD—regarding who actually is authorized to act on behalf of the Congregation. The prejudice that would result from the drastic relief Appellants seek, alone, warrants denial of this motion.
WHEREFORE, Respondents respectfully request that the Court deny Appellants' motion for a stay pending appeal and award to Respondents such other and further relief as the Court may deem just and proper.
Scott E. Mollen
Subscribed and sworn to before me
this 22nd day of November, 2004
Notary Public