SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ORANGE
x
CONGREGATION YETEV LEV D'SATMAR OF: Index No. 4495/05
KIRY AS JOEL, INe. and MOSHE SCHER
Plaintiffs, VERIFIED ANSWER TO SECOND
AMENDED COMPLAINT
WITH COUNTERCLAIMS
-against
CONGREGATION YETEV LEV D'SATMAR, INC., MANUAL MANGUAL, JENO KAHAN, SOL PERLSTEIN, JACOB SCHOENFELD, SOLOMON SANDER, JOHN DOE "I-50", U.T.A. : MESIVTA OF KJ, UNITED TALMUDICAL SEMINARY and UNITED T ALMUDICAL ACADEMY TORAH V'YIRAH, INC.
Defendants.
Defendants, Congregation Yetev Lev D'Satmar, Inc., (the "Brooklyn
Congregation") Jeno Kahan, Sol Perlstein, Jacob Schoenfeld and Solomon Sander (hereinafter
collectively referred to as the "Congregation Defendants"), by and through their attorneys
Herrick, Feinstein LLP and Rider, Weiner & Frankel, PC, as and for their Answer to the Second
Amended Verified Complaint (the "Complaint"), allege as follows:
PRELIMINARY STATEMENT
1.
The Congregation Defendants neither admit nor deny the allegations contained in
Paragraph 1 of the Complaint, as such allegations constitute legal conclusions to which no
response is required. The Congregation Defendants deny that Plaintiffs are entitled to the relief
requested therein.
2.
The Congregation Defendants neither admit nor deny the allegations contained in
Paragraph 2 of the Complaint, as such allegations constitute legal conclusions to which no response is required. The Congregation Defendants deny that Plaintiffs are entitled to the relief
requested therein.
VENUE
3.
The Congregation Defendants deny the allegations of Paragraph 3 of the
Complaint.
JURISDICTION
4.
The Congregation Defendants neither admit nor deny the allegations contained in
Paragraph 4 of the Complaint, as such allegations constitute legal conclusions to which no
response is required. The Congregation Defendants deny that the deed dated January 19, 2001
which was recorded in the Orange County Clerk's Office in Liber 5525 at Page 245 was
authorized, valid or effectuated any transfer of the property in dispute.
PARTIES
5.
The Congregation Defendants deny the allegations contained in Paragraph 5 of
the Complaint, except admit that, upon information and belief, Congregation Yetev Lev
D'Satmar of Kiryas Joel, Inc. (the "Kiryas Joel Congregation") is a New York religious
corporation, which maintains its principal office at 12 Garfield Place in the Village of Kiryas
Joel, County of Orange, State of New York. The Congregation Defendants also admit that the
parcel containing the cemetery owned by the Brooklyn Congregation described in Paragraph 5 is
located on Schunnemunk Road, Town of Orange, State of New York (the "Cemetery Property").
6.
The Congregation Defendants admit the allegations contained in Paragraph 6 of
the Complaint.
7.
The Congregation Defendants admit that Defendant Congregation Yetev Lev
D'Satmar, Inc. (the "Brooklyn Congregation") is a religious corporation organized under the laws of the State of New York with its principle place of business at 152 Rodney Street,
Brooklyn, New York. It is the owner of the Cemetery Property. The Congregation Defendants
otherwise deny the allegations contained in Paragraph 7 of the Complaint.
8.
The Congregation Defendants admit the allegations contained in Paragraph 8 of
the Complaint.
9.
The Congregation Defendants deny the allegations contained in Paragraph 9 of
the Complaint, except admit that Jeno Kahan, Sol Perlstein, Jacob Schoenfeld and Solomon
Sander (the "Individual Congregation Defendants") served on the Board of the Brooklyn
Congregation both before and after the Congregation's May 2001 elections. The Congregation
Defendants also admit that several litigations were commenced in the Supreme Court for the
County of Kings challenging the Individual Congregation Defendants' re-election to the
Brooklyn Congregation's Board. Those challenges were dismissed by Kings County Supreme
Court Justice Barasch and are now on appeal to the Appellate Division, Second Department.
10.
The Congregation Defendants admit the allegations contained in Paragraph 10 of
the Complaint.
11.
The Congregation Defendants deny the allegations contained in Paragraph 11 of
the Complaint, except admit that Defendant Manual Mangual was appointed the Brooklyn
Congregation's security coordinator for limited purposes.
12.
The Congregation Defendants neither admit nor deny the allegations contained in
Paragraph 12 of the Complaint as the Congregation Defendants lack knowledge or information
sufficient to form a belief as to their truth or falsity.
13.
The Congregation Defendants deny the allegations contained in Paragraph 13 of
the Complaint
FACTUAL BACKGROUND
14.
The Congregation Defendants deny the allegations contained in Paragraph 14 of
the Complaint, except admit that the Kiryas Joel Congregation was at one point the owner of the
Cemetery Property until 1988 and that the Burial Society operates the cemetery under the
direction of the Brooklyn Congregation as to deceased persons who were not residents of Kiryas
Joel, and under the direction of Congregation Yetev Lev D'Satmar of Kiryas Joel, Inc. (the
"Kiryas Joel Congregation") with respect to deceased persons who were residents ofKiryas Joel.
The Congregation Defendants also admit that it is well-known world-wide that the Cemetery
Property contains the grave of the first Satmar Grand Rebbe, the holy Grand Rabbi Joel
Teitelbaum and that the Cemetery Property has special religious significance to Satmar Chassids.
15.
The Congregation Defendants deny the allegations contained in Paragraph 15 of
the Complaint, except admit that the Individual Congregation Defendants executed a Declaration
which imposed a restrictive covenant upon the Cemetery Property.
The Congregation
Defendants respectfully refer the Court to the document, as the Declaration speaks for itself as to
its terms and meaning.
16.
The Congregation Defendants deny the allegations contained in Paragraph 16 of
the Complaint, except admit that no Court approval was sought with respect to the Declaration
referenced in Paragraph 15 of the Complaint, as none was needed.
17.
The Congregation Defendants neither admit nor deny the allegations contained in
Paragraph 17 of the Complaint, as such allegations constitute legal conclusions to which no
response is required. Alternatively, to the extent that an affirmative response is required, the
Congregation Defendants deny the allegations contained in paragraph 17 of the Complaint and
deny that Plaintiffs are entitled to the relief requested therein
18.
The Congregation Defendants admit, upon information and belief, the allegations
of Paragraph 18 of the Complaint.
19.
The Congregation Defendants deny the allegations contained in Paragraph 19 of
the Complaint, except admit that the Cemetery Property was conveyed by written deed from the
Kiryas Joel Congregation to the Brooklyn Congregation, which conveyance was approved by
Order of this Court, and that on September 22, 1987 the Congregation and the Kiryas Joel
Congregation held a joint meeting. The Congregation Defendants can neither admit nor deny the
remaining allegations of Paragraph 19 of the Complaint because an English translation of Exhibit
E to the Complaint was not provided by Plaintiffs.
20.
The Congregation Defendants deny the allegations contained in Paragraph 20 of
the Complaint, except admit that the 1988 conveyance from the Kiryas Joel Congregation to the
Brooklyn Congregation was not intended to alter the status quo with respect to the Burial Society
and the services that it provides. The Congregation Defendants specifically deny that the
Brooklyn Congregation had a joint meeting with the Kiryas Joel Congregation on January 14,
2001.
21.
The Congregation Defendants deny the allegations contained in Paragraph 21 of
the Complaint, except admit that, upon information and belief, the purported deed annexed to the
Complaint at Exhibit A, which was not authorized or approved by the Brooklyn Congregation,
this Court or the Attorney General of the State of New York, was recorded with the County
Clerk's office.
22.
The Congregation Defendants deny the allegations contained in Paragraph 22 of
the Complaint, except admit that the Individual Congregation Defendants were and are the
legitimate officers of the Congregation and caused the Declaration to be filed regarding the Cemetery Property. The Congregation Defendants respectfully refer the Court to the document
as the Declaration speaks for itself as to its terms and meaning.
23.
The Congregation Defendants deny the allegations contained in Paragraph 23 of
the Complaint.
24.
The Congregation Defendants deny the allegations contained in Paragraph 24 of
the Complaint, except admit that the Brooklyn Congregation conducted Board elections in May
2001 in which the Individual Congregation Defendants were reelected to their positions on the
Brooklyn Congregation's Board. The results of the Brooklyn Congregation's election were
certified by the Satmar Grand Rebbe, Rabbi Moses Teitelbaum (the "Grand Rebbe").
25.
The Congregation Defendants deny the allegations contained in Paragraph 25 of
the Complaint, except admit that the Berl Friedman, who was expelled from the Brooklyn
Congregation, and other rebels against the Grand Rebbe, filed a challenge to the Brooklyn
Congregation's election and that the Congregation Defendants counterclaimed for a declaratory
judgment that the sham election conducted by Bed Friedman and his supporters was improper.
26.
The Congregation Defendants deny the allegations contained in Paragraph 26 of
the Complaint, except admit that in October 2004, Justice Barasch of the Kings County Supreme
Court dismissed all claims and counterclaims in the election litigation for the reason that the First Amendment to the United States Constitution bars a civil court from deciding the Satmar
leadership dispute.
27.
The Congregation Defendants deny the allegations contained in Paragraph 27 of
the Complaint, except admit that Berl Friedman, who was expelled from the Brooklyn
Congregation by the Grand Rebbe, has appealed the dismissal of his election challenge to the
Second Department and that the appeal has been fully briefed.
28.
The Congregation Defendants deny the allegations contained in Paragraph 28 of
the Complaint.
29.
The Congregation Defendants deny the allegations contained in Paragraph 29 of
the Complaint, except admit that the day to day operations and management of the Cemetery
Property have continued over the past four years without denial by either side in this dispute of
burial of anyone entitled to be buried in the Cemetery Property, other than Plaintiffs' attempt in
this action to drastically alter the status quo.
30.
The Congregation Defendants deny the allegations contained in Paragraph 30 of
the Complaint.
31.
The Congregation Defendants deny the allegations contained in Paragraph 31 of
the Complaint. The June 30, 2005 letter referenced in Paragraph 31 is an utter forgery.
32.
The Congregation Defendants deny the allegations contained in Paragraph 32 of
the Complaint.
33.
The Congregation Defendants deny the allegations contained in Paragraph 33 of
the Complaint.
34.
The Congregation Defendants deny the allegations contained in Paragraph 34 of
the Complaint, except admit that on the anniversary of the passing of the first Satmar Grand
Rebbe, Grand Rabbi Joel Teitelbaum, founder of the Satmar Chassidic movement, as calculated
by the Hebrew calendar, Satmar Chassids traditionally visit his grave in commemoration.
35.
The Congregation Defendants deny the allegations contained in Paragraph 35 of
the Complaint, except admit that Defendant Manual Mangual was designated as the Brooklyn
Congregation's security coordinator for certain purposes. The Congregation Defendants refer the Court to the document annexed to the Complaint as Exhibit B as the letter speaks for itself as
to its terms and meaning.
36.
The Congregation Defendants deny the allegations contained in Paragraph 36 of
the Complaint.
37.
The Congregation Defendants deny the allegations contained in Paragraph 37 of
the Complaint.
38.
The Congregation Defendants deny the allegations contained in Paragraph 38 of
the Complaint.
39.
The Congregation Defendants deny the allegations contained in Paragraph 39 of
the Complaint.
40.
The Congregation Defendants deny the allegations contained in Paragraph 40 of
the Complaint.
41.
The Congregation Defendants deny the allegations contained in Paragraph 41 of
the Complaint, except admit that it is the Congregation's policy that only those that pay
membership dues to the Brooklyn Congregation, excluding residents of Kiryas Joel, are entitled
to be buried in the Cemetery Property, owned by the Brooklyn Congregation. The Brooklyn
Congregation does not require residents of Kiryas Joel to also pay membership dues to the
Congregation in order to be allowed to be buried in the Cemetery Property.
42.
The Congregation Defendants deny the allegations contained in Paragraph 42 of
the Complaint because the Congregation Defendants have not taken the aforesaid actions
ascribed to them.
43.
The Congregation Defendants deny the allegations contained in Paragraph 43 of
the Complaint.
44.
The Congregation Defendants deny that the Plaintiffs are entitled to any remedy,
at law or in equity.
AS AND FOR A FIRST CAUSE OF ACTION AGAINST ALL DEFENDANTS
45.
The Congregation Defendants repeat and reallege every preceding response to the
foregoing allegations of the Complaint, as if the same were fully set forth herein.
46.
The Congregation Defendants admit that the allegations contained in Paragraph
46 of the Complaint set forth the legal relief requested by Plaintiffs, but deny that Plaintiffs are
entitled to any such relief.
AS AND FOR A SECOND CAUSE OF ACTION AGAINST ALL DEFENDANTS
47.
The Congregation Defendants repeat and reallege every preceding response to the
foregoing allegations of the Complaint, as if the same were fully set forth herein.
48.
The Congregation Defendants admit that the allegations contained in Paragraph
48 of the Complaint set forth the legal relief requested by Plaintiffs, but deny that Plaintiffs are
entitled to any such relief.
AS AND FOR A THIRD CAUSE OF ACTION AGAINST ALL DEFENDANTS
49.
The Congregation Defendants repeat and reallege every preceding response to the
foregoing allegations of the Complaint, as if the same were fully set forth herein.
50.
The Congregation Defendants deny the allegations contained in Paragraph 50 of
the Complaint.
51.
The Congregation Defendants admit that the allegations contained in Paragraph
51 of the Complaint set forth the legal relief requested by Plaintiffs, but deny that Plaintiffs are
entitled to any such relief.
AS AND FOR A FOURTH CAUSE OF ACTION CONSTRUCTIVE TRUST
52.
The Congregation Defendants repeat and reallege every preceding response to the
foregoing allegations of the Complaint, as if the same were fully set forth herein.
53.
The Congregation Defendants lack knowledge or information concerning the
allegations of Paragraph 53 of the Complaint, except admit, upon information and belief, that the
Cemetery Property was conveyed in 1979 to United Talmudical Academy, which in turn, in
1981, conveyed the Cemetery Property to the Kiryas Joel Congregation which, at the time, did
not have any members.
54.
The Congregation Defendants deny the allegations contained in Paragraph 54 of
the Complaint.
55.
The Congregation Defendants deny the allegations contained in Paragraph 55 of
the Complaint.
56.
The Congregation Defendants deny the allegations contained in Paragraph 56 of
the Complaint.
57.
The Congregation Defendants admit that the allegations contained in Paragraph
57 of the Complaint set forth legal relief requested by Plaintiffs, but deny that Plaintiffs are
entitled to any such relief.
AS AND FOR A FIFTH CAUSE OF ACTION BREACH OF CONTRACT
58.
The Congregation Defendants repeat and reallege every preceding response to the
foregoing allegations of the Complaint, as if the same were fully set forth herein.
59.
The Congregation Defendants deny the allegations contained in Paragraph 59 of
the Complaint, except admit that the Brooklyn Congregation is the fee simple owner of the
Cemetery Property, and that pursuant to the Brooklyn Congregation's practices and procedures over the prior decades, the Brooklyn Congregation has permitted residents of Kiryas Joel to be
buried in the Cemetery Property.
60.
The Congregation Defendants deny the allegations contained in Paragraph 60 of
the Complaint, except admit that the Brooklyn Congregation is the fee simple owner of the
Cemetery Property, and that pursuant to the Brooklyn Congregation's practices and procedures
over decades, the Brooklyn Congregation has permitted Satmar Chassids who are members of
the Congregation, and residents of Kiryas Joel, to be buried in the Cemetery property, including
members of the Kiryas Joel Congregation.
61.
The Congregation Defendants deny the allegations contained in Paragraph 61 of
the Complaint.
62.
The Congregation Defendants deny the allegations contained in Paragraph 62 of
the Complaint.
63.
The Congregation Defendants deny the allegations contained in Paragraph 63 of
the Complaint.
AS AND FOR A SIXTH CAUSE OF ACTION TORTIOUS INTERFERENCE WITH CONTRACT
64.
The Congregation Defendants repeat and reallege every preceding response to the
foregoing allegations of the Complaint, as if the same were fully set forth herein.
65.
The Congregation Defendants deny the allegations contained in Paragraph 65 of
the Complaint.
66.
The Congregation Defendants deny the allegations contained in Paragraph 66 of
the Complaint.
67.
The Congregation Defendants deny the allegations contained in Paragraph 67 of
the Complaint.
68.
the Complaint.
69.
The Congregation Defendants deny the allegations contained in Paragraph 68 of
AS AND FOR A SEVENTH CAUSE OF ACTION
The Congregation Defendants repeat and reallege every preceding response to the
foregoing allegations of the Complaint, as if the same were fully set forth herein.
70.
The Congregation Defendants admit, upon information and belief, the allegations
contained in Paragraph 70 of the Complaint.
71.
The Congregation Defendants admit, upon information and belief, the allegations
contained in Paragraph 71 of the Complaint.
72.
The Congregation Defendants admit, upon information and belief, the allegations
contained in Paragraph 72 of the Complaint.
73.
The Congregation Defendants admit, upon information and belief, the allegations contained in Paragraph 73 of the Complaint, but deny that the corporate purpose of the Kiryas Joel Congregation over the past eighteen years has been to own a cemetery..
74.
the Complaint.
75.
The Congregation Defendants deny the allegations contained in Paragraph 74 of
The Congregation Defendants deny the allegations contained in Paragraph 75 of
the Complaint, except admit that on or about November 23, 1988, the Kiryas Joel Congregation
conveyed the Cemetery Property by deed to the Brooklyn Congregation.
76.
The Congregation Defendants deny allegations contained in Paragraph 76 of the Complaint, except admit that the Brooklyn congregation is the fee simple owner of the Cemetery property, and that pursuant to the Brooklyn Congregation's practices and procedures
over decades, the Brooklyn Congregation has permitted Satmar Chassids who are members of the Congregation, and those who are residents of Kiryas Joel, to be buried in the Cemetery
Property.
77.
The Congregation Defendants deny the allegations contained in Paragraph 77 of
the Complaint.
78.
The Congregation Defendants deny the allegations contained in Paragraph 78 of
the Complaint.
79.
The Congregation Defendants admit that the allegations contained in Paragraph
79 of the Complaint set forth legal relief requested by Plaintiffs, but deny that Plaintiffs are
entitled to any such relief.
AS AND FOR AN EIGHTH CAUSE OF ACTION DECLARATORY JUDGMENT
80.
The Congregation Defendants repeat and reallege every preceding response to the
foregoing allegations of the Complaint, as if the same were fully set forth herein
81.
The Congregation Defendants admit that the allegations contained in Paragraph
81 of the Complaint set fonh legal relief requested by Plaintiffs, but deny that Plaintiffs are
entitled to any such relief.
82.
The Congregation Defendants deny the allegations contained in Paragraph 82 of
the Complaint.
83.
The Congregation Defendants admit the allegations contained in Paragraph 83 of
the Complaint.
84.
The Congregation Defendants admit the allegations contained in Paragraph 84 of
the Complaint insofar as they identify the principal objects and purposes for which the Brooklyn
Congregation was formed nearly 60 years ago.
85.
The Congregation Defendants deny the allegations contained in Paragraph 85 of
the Complaint, except admit that operation and maintenance of a cemetery is consistent with the
charitable and religious purposes for which the Brooklyn Congregation was incorporated and is
expressly contemplated by the Brooklyn Congregation's by-laws.
86.
The Congregation Defendants deny the allegations contained in Paragraph 86 of
the Complaint, as there was no "conveyance" by the Brooklyn Congregation of an interest in the
Cemetery Property to the Kiryas Joel Congregation in 2001, except admit that a portion of Exhibit A to the Complaint contains a legal describtion of the Cemetery Property.
87.
The Congregation Defendants deny the allegations contained in Paragraph 87 of
the Complaint.
88.
The Congregation Defendants deny the allegations contained in Paragraph 88 of
the Complaint.
89.
The Congregation Defendants deny the allegations contained in Paragraph 89 of
the Complaint as there was no "conveyance" by the Brooklyn Congregation of an interest in the
Cemetery Property to the Kiryas Joel Congregation in 2001.
90.
The Congregation Defendants deny the allegations contained in Paragraph 90 of
the Complaint.
91.
The Congregation Defendants deny the allegations contained in Paragraph 91 of
the Complaint, as the authority of the Individual Congregational Defendants to act as officers of
the Congregation has been and is being litigated Supreme Court (Kings County) and the
Appellate Division, Second Department.
92.
The Congregation Defendants admit that the allegations contained in Paragraph
92 of the Complaint set forth the legal relief requested by Plaintiffs, but deny that Plaintiffs are
entitled to any such relief.
AS AND FOR A NINTH CAUSE OF ACTION
93.
The Congregation Defendants repeat and reallege every preceding response to the
foregoing allegations of the Complaint, as if the same were fully set forth herein.
94.
The Congregation Defendants neither admit nor deny the allegations contained in
Paragraph 94 of the Complaint as the Congregation Defendants lack knowledge or information
sufficient to form a belief as to their truth or falsity.
95.
The Congregation Defendants deny the allegations contained in Paragraph 95 of
the Complaint.
96.
The Congregation Defendants deny the allegations contained in Paragraph 96 of
the Complaint to the extent that the allegations contained therein are alleged against the
Congregation Defendants, except admit that the Court held a conference on or about August 24,
2005.
97.
The Congregation Defendants deny the allegations contained in Paragraph 97 of
the Complaint.
98.
The Congregation Defendants deny the allegations contained in Paragraph 98 of
the Complaint to the extent that the allegations contained therein are alleged against the
Congregation Defendants, except admit that the Court held a conference on or about August 24,
2005.
99.
The Congregation Defendants deny the allegations contained in Paragraph 99 of
the Complaint.
100.
The Congregation Defendants neither admit nor deny the allegations contained in
Paragraph 100 of the Complaint as the Congregation Defendants lack knowledge or information
sufficient to form a belief as to their truth or falsity.
101.
The Congregation Defendants neither admit nor deny the allegations contained in
Paragraph 101 of the Complaint as the Congregation Defendants lack knowledge or information
sufficient to form a belief as to their truth or falsity.
102.
The Congregation Defendants neither admit nor deny the allegations contained in
Paragraph 102 of the Complaint as the Congregation Defendants lack knowledge or information
sufficient to form a belief as to their truth or falsity.
103.
Paragraph 103 of the Complaint states a legal conclusion to which no response is
required. To the extent that any response may be required, the Congregation Defendants neither
admit nor deny the allegations contained in Paragraph 103 of the Complaint as the Congregation
Defendants lack knowledge or information sufficient to form a belief as to their truth or falsity.
104.
The Congregation Defendants deny the allegations contained in Paragraph 104 of
the Complaint.
GENERAL DENIAL
105.
All allegations of Plaintiffs' complaint not specifically admitted herein are hereby
denied.
FIRST AFFIRMATIVE DEFENSE
106.
Plaintiffs' claims for relief in the Complaint are barred, in whole or in part,
because they fail to state a claim for which relief can be granted.
SECOND AFFIRMATIVE DEFENSE
107.
Plaintiffs' claims for relief in the Complaint are barred by the doctrine of laches
and/or estoppel.
THIRD AFFIRMATIVE DEFENSE
108.
Plaintiffs' claims for relief in the Complaint are barred by the doctrine of unclean
hands.
FOURTH AFFIRMATIVE DEFENSE
109.
Plaintiffs' claims for relief in the Complaint are barred by Plaintiffs' failure to
name an indispensable party.
FIFTH AFFIRMATIVE DEFENSE
110.
Plaintiffs' claims for relief in the Complaint are barred by the fact that the 2001
deed that purported to convey one half of the Brooklyn Congregation's interest in the Cemetery
Property to the Kiryas Joel Congregation was not signed by a party authorized to act on behalf of
the Brooklyn Congregation.
SIXTH AFFIRMATIVE DEFENSE
111.
Plaintiffs' claims for relief in the Complaint are barred by the fact that the 2001
deed that purported to convey one half of the Brooklyn Congregation's interest in the Cemetery
Property to the Kiryas Joel Congregation was signed by a party who had previously been
removed from the Brooklyn Congregation's Board by the Grand Rebbe, the ultimate authority on
all Congregational matters.
SEVENTH AFFIRMATIVE DEFENSE
112.
Plaintiffs' claims for relief in the Complaint are barred by the fact that the 2001
deed that purported to convey one half of the Brooklyn Congregation's interest in the Cemetery
Property to the Kiryas Joel Congregation was not authorized because it was not approved by a
majority of the Brooklyn Congregation's Board.
EIGHTH AFFIRMATIVE DEFENSE
113.
Plaintiffs' claims for relief in the Complaint are barred by the fact that the 2001
deed that purported to convey one half of the Brooklyn Congregation's interest in the Cemetery
Property to the Kiryas Joel Congregation was not authorized because it was not submitted to the
membership of the Brooklyn Congregation for approval, nor was it actually approved by a
majority of the membership.
NINTH AFFIRMATIVE DEFENSE
114.
Plaintiffs' claims for relief in the Complaint are barred by the fact that the 2001
deed purporting to memorialize a conveyance of one half of the Brooklyn Congregation's
interest in the Cemetery Property to the Kiryas Joel Congregation was not approved by the
Attorney General of the State of New York.
TENTH AFFIRMATIVE DEFENSE
115.
Plaintiffs' claims for relief in the Complaint are barred by the fact that the 2001
deed purporting to memorialize a conveyance of one half of the Brooklyn Congregation's
interest in the Cemetery Property to the Kiryas Joel Congregation was not approved by the
Supreme Court for the County of Orange.
ELEVENTH AFFIRMATIVE DEFENSE
116.
Plaintiffs' claims for relief in the Complaint are barred by the fact that the a
conveyance of one half of the Brooklyn Congregation's interest in the Cemetery Property to the
Kiryas Joel Congregation would not be in the best interests of the Brooklyn Congregation.
TWELVTH AFFIRMATIVE DEFENSE
117.
Plaintiffs' claims for relief in the Complaint are barred by the fact that the
conveyance of one half of the Brooklyn Congregation's interest in the Cemetery Property to the
Kiryas Joel Congregation would harm the interests of the Brooklyn Congregation and its
members.
THIRTEENTH AFFIRMATIVE DEFENSE
118.
Plaintiffs' claims for relief in the Complaint are barred because they are not
properly venued in Orange County.
ALLEGATIONS PERTINENT TO EACH COUNTERCLAIM
119.
Upon information and belief, Congregation Yetev Lev D'Satmar of Kiryas Joel,
Inc. (the "Kiryas Joel Congregation") is a New York religious corporation, that maintains its
principal office at 12 Garfield Place in the Village of Kiryas Joel, County of Orange, State of
New York.
120.
Congregation Yetev Lev D'Satmar, Inc. (the "Brooklyn Congregation") is a
religious corporation organized under the laws of the State of New York with its principal place
of business at 152 Rodney Street, Brooklyn, New York.
121.
At all times relevant herein, Jeno Kahan, Sol Perlstein, Jacob Schoenfeld and
Solomon Sander (the "Individual Congregation Defendants") served on the Board of Trustees of
the Congregation Yetev Lev D'Satmar, Inc.
122.
The title and ownership of the parcel of property that is at issue herein is located
on Schunnemunk Road, Town of Orange, State of New York (the "Cemetery Property") and is
more fully described on the Town of Monroe Tax Map as Section 305, Block I, Lot 1.11.
123.
By order dated November 16, 1988, this Court, by the Honorable Angelo J.
Ingrassia, J.S.c., approved the application of the Kiryas Joel Congregation to transfer the
Cemetery Property to the Brooklyn Congregation.
124.
The deed memorializing this court-authorized transfer, dated November 23, 1988,
was duly recorded at Liber 3068 of Deeds at Page 186 in the Orange County Clerk's Office (the
"1988 Deed").
125.
The Kiryas Joel Congregation claims a deed, dated January 19, 2001 and recorded
on or about May 14, 2001 at Liber 5525 of Deeds at Page 245 in the Orange County Clerk's
Office, transfers the Cemetery Property from the Brooklyn Congregation to the Kiryas Joel
Congregation and the Brooklyn Congregation as tenants in common (the "2001 Deed").
FIRST COUNTERCLAM PURSUANT TO ARTICLE 15
OF THE REAL PROPERTY ACTIONS AND PROCEEDINGS LAW
126.
Counterclaim plaintiff the Brooklyn Congregation repeats and realleges the
allegations in paragraphs "105" through "111" above as though set forth fully herein.
127.
Grand Rebbe Moses Teitelbaum (the "Grand Rebbe") is the Grand Rebbe of the
Satmar Chasidic sect.
128.
The Grand Rebbe of the Satmar Chasidic Sect is invested with the ultimate
authority to determine all matters affecting the Satmar Chasidic sect.
129.
Upon information and belief, Berl Freidman ("Freidman") is a real person who
claims to be a member of the Board of Trustees of the Congregation Yetev Lev D'Satmar, Inc.
130.
Upon information and belief, Freidman claims to be a member of Satmar Chasidic
Sect and the Brooklyn Congregation.
131.
On or about December 29,2000, Jeno Kahan, Sol Perlstein, Jacob Schoenfeld and
others attended a meeting at the residence of the Grand Rebbe with the Grand Rebbe present
thereat.
132.
During this meeting, the Grand Rebbe ordered that, effective immediately,
Friedman was dismissed from the Board of Trustees of the Brooklyn Congregation (the
"Board").
133.
During that meeting, the Grand Rebbe commanded Schoenfeld, the Secretary of
the Brooklyn Congregation, to notify Friedman that the he had been dismissed from the Board by
the Grand Rebbe.
134.
On or about December 31, 2000, Schoenfeld appeared personally before the then
members of the Board of the Brooklyn Congregation, including Freidman, and reported the
direction of the Grand Rebbe dismissing Freidman from the Board.
135.
Upon information and belief, on or about January 14, 2001, Freidman claims to
have conducted a meeting of the Brooklyn Congregation's Board of Trustees.
136.
Upon information and belief, during this claimed meeting of the Brooklyn
Congregation's board of trustees, Friedman was directed to effectuate the transfer of the Cemetery Property, from the Brooklyn Congregation to the Kiryas Joel Congregation and the
Brooklyn Congregation as tenants in common.
137.
On or about January 15, 2001, a panel of Rabbinical Judges of the Satmar
Chasidic sect convened.
138.
On or about January 15, 2001, the said Rabbinical Judges issued a "Torah
opinion" pronouncing that the actions of Friedman and his associates constituted a direct
rebellion against the ultimate authority of the Grand Rebbe and were a grievous sin tantamount
to blasphemy.
139.
On or about January 18, 2001, the Board of Trustees of the Congregation Yetev
Lev D'Satmar, Inc. met and declared that Friedman could not be a member of the Brooklyn
Congregation.
140.
During the Board meeting on or about January 18, 2001, the Grand Rebbe
addressed the Board by telephone and expelled Freidman from the Brooklyn Congregation.
141.
After December 29,2000 Friedman had no authority to act on behalf of the Board
of Trustees of the Congregation Yetev Lev D'Satmar, Inc.
142.
After December 31,2000 Friedman had no authority to act on behalf of the Board
of Trustees of the Congregation Yetev Lev D'Satmar, Inc.
143.
After December 29,2000 Friedman had no authority to act on behalf of the Board
of Trustees of the Congregation Yetev Lev D'Satmar, Inc.
144.
Upon information and belief, Friedman executed the 2001 Deed on or about
January 19,2001 claiming to act as the President, and a member, of the Brooklyn Congregation.
145.
On January 19, 2001 Friedman lacked the authority to execute the 2001 Deed.
146.
The Brooklyn Congregation is thereby entitled to judgment declaring: that the
2001 Deed is a legal nullity without effect; that the Brooklyn Congregation is the owner in fee of
the Cemetery Property; and, that the 1988 Deed is the true and bona fide document evidencing
the ownership of the Cemetery Property.
SECOND COUNTERCLAM PURSUANT TO ARTICLE 15 OF THE REAL PROPERTY ACTIONS AND PROCEEDINGS LAW
147.
The Brooklyn Congregation repeats and realleges the allegations in paragraphs
"105" through "111" above as though set forth fully herein.
148.
Section 12 of the Religious Corporation Law ("RCL") provides that "A religious
corporation shall not sell * * * any of its real property without applying for and obtaining leave
of the court therefor pursuant to section five hundred eleven of the not-for-profit corporation
law" .
149.
Section 511 of the Not-for-profit Corporation Law ("NPCL"), requires any entity
organized pursuant to the RCL to present a verified petition to the Supreme Court before it may
transfer realty.
150.
Section 511 of the NPCL further requires the Court to direct notice of any such
Petition seeking to transfer real property to be provided to the Attorney General of the State of
New York fifteen days prior to a hearing upon such Petition.
151.
No verified Petition was filed applying to this Court for leave to transfer the
Cemetery Property from the Brooklyn Congregation to the Kiryas Joel Congregation and the
Brooklyn Congregation as tenants in common.
152.
The Attorney General's office was not given notice of any Petition for the transfer
of the Cemetery Property from the Brooklyn Congregation to the Kiryas Joel Congregation and
the Brooklyn Congregation as tenants in cornmon.
153.
This Court never granted leave for any purported transfer of the Cemetery
Property from the Brooklyn Congregation to the Kiryas Joel Congregation and the Brooklyn
Congregation as tenants in common.
154.
The Brooklyn Congregation is thereby entitled to judgment declaring: that the
2001 Deed is a legal nullity without effect; that the Brooklyn Congregation is the owner in fee of
the Cemetery Property; and, that the 1988 Deed is the true and bona fide recordation of the
ownership of the Cemetery Property.
THIRD COUNTERCLAM PURSUANT TO ARTICLE 15
OF THE REAL PROPERTY ACTIONS AND PROCEEDINGS LAW
155.
Counterclaim plaintiff the Brooklyn Congregation repeats and realleges the
allegations in paragraphs "105" through "111"and "133" through "140" above as though set
forth fully herein.
156.
Plaintiff, the Kiryas Joel Congregation, asks this Court to grant it relief in
accordance with Section 7-a.12(7) and 12(8) of the RCL where such sections cannot provide the
relief sought by Plaintiff.
157.
It is section 12(9) of the RCL whereby the Court may determine that a deed of
conveyance can be found valid without due proceedings under the law. If the Court considers
the Second Amended Verified Complaint as seeking such relief pursuant to that section, then the
Court may not conclude that the transaction at issue was in the best interests of the Brooklyn
Congregation and must refuse to grant such approval.
158.
Plaintiff has not and cannot properly, legally and sufficiently seek or allege that
this Court can determine the 2001 Deed valid, without having Petitioned this Court and without
due proceedings.
159.
The Brooklyn Congregation is thereby entitled to judgment declaring: that the
2001 Deed is a legal nullity without effect; that the Brooklyn Congregation is the owner in fee of
the Cemetery Property; and, that the 1988 Deed is the true and bona fide recordation of the
ownership of the Cemetery Property.
WHEREFORE, the Congregation Defendants respectfully request judgment:
(a)
Dismissing all of Plaintiffs' causes of action set forth in their Complaint with
prejudice;
(b)
Awarding the Congregation Defendants judgment, pursuant to Article 15 of the
Real Property Actions and Proceedings Law, on their first counterclaim declaring that the 2001
Deed is a legal nullity without effect, the Brooklyn Congregation is the owner in fee of the
Cemetery Property and the 1988 Deed is the true and bona fide recordation of the ownership of
the Cemetery Property;
(c)
A warding the Congregation Defendants judgment, pursuant to Article 15 of the
Real Property Actions and Proceedings Law, on their second counterclaim declaring that the
2001 Deed is a legal nullity without effect, the Brooklyn Congregation is the owner in fee of the
Cemetery Property and the 1988 Deed is the true and bona fide recordation of the ownership of
the Cemetery Property;
(d)
Awarding the Congregation Defendants judgment, pursuant to Article 15 of the
Real Property Actions and Proceedings Law, on their third counterclaim declaring that the 2001
Deed is a legal nullity without effect, the Brooklyn Congregation is the owner in fee of the Cemetery Property and the 1988 Deed is the true and bona fide recordation ofthe ownership of
the Cemetery Property;
(e)
Awarding the Congregation Defendants the costs and disbursements incurred in
defending this action; and
(f)
Awarding the Congregation Defendants such other relief as the Court deems
proper.
Dated: New York, New York
January 25,2006
RIDER,WEINERFRANKEL, P.C.
Bruce C. Dunn,Sr.
Co-Counsel for the Congregation Defendants 655 Little Britain Road
New Windsor, NY 12553
HERRICK, FEINSTEIN LLP
2 Park Avenue
New York, New York 10016 212-592-1400
Co-Counsel for the Congregation Defendants
VERIFICATION
COUNTY OF ORANGE
)
) SS.: )
STATE OF NEW YORK
I, the undersigned, an attorney duly admitted to practice law in the Courts of the
State ofNew York, state that I am associated with the law firm ofRIDER, WEINER & FRANKEL
P.C., the co-counsel for the Congregation Defendants in the within action; I have read the foregoing
Verified Answer with Counterclaims to the Second Amended Verified Complaint and know the
contents thereof and the same is truc to the best of my knowledge, based upon documents and
materials contained in our file.
The grounds of my belief as to all matters not stated upon my own knowledge are based
upon review of correspondence, records and reports in my possession.
The reason this verification is made by me and not by defendants, pursuant to CPLR
§3020(d)(3), is that the said defendants reside outside Orange County where the undersigned
maintains his offices.
I affirm that the foregoing statements are true, under penalties ofperjury .
Dated: New Windsor, New York
January 25, 2006
Attorney at Law
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ORANGE
x
CONGREGATION YETEV LEV D'SATMAR OF KIRYAS JOEL, INC. AND MOSHE SCHER,
Index No. 4495/2005
Plaintiffs,
ATTORNEY 'S CERTIFICATION
Against
CONGREGATION YETEV LEV D'SATMAR, INC.,
MANUAL MANGUAL, }ENO KAHAN, SOL PERlSTEIN,
JACOB SCHOENFELD, SOLOMON SANDER, JOHN DOE "I-50", U.T.A. MESIVTA OF KJ, UNITED TALMUDICAL SEMINARY AND UNITED TALMUDICAL ACADEMY TORAH V'YIRAH, INC.
Defendants.
X
Pursuant to 22 NCYRR 130-1.1, the undersigned, an Attorney admitted to practice law before the Courts of the State of New York, certifies that, upon information and belief and reasonable inquiry, the contentions contained in the annexed Verified Answer To Second Amended Complaint With Counterclaims document are not frivolous.
Dated: January 25,2006
Signa
Print Signer's Name: BRUCE C. DUNN. SR., ESQ.
-------------------
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ORANGE
x
CONGREGATION YETEV LEV D'SA TMAR OF: Index No. 4495/05 KIRY AS JOEL, INC. and MOSHE SCHER
Plaintiffs,
-against
SUPPLEMENTAL AFFIRMATION OF SCOTT E. MOLLEN IN RESPONSE TO COURT'S CONVERSION OF MOTION FOR PRELIMINARY INJUNCTION INTO MOTION FOR SUMMARY JUDGMENT
CONGREGATION YETEV LEV D'SATMAR, INC., MANUAL MANGUAL, JENO KAHAN, SOL PERLSTEIN, JACOB SCHOENFELD, SOLOMON SANDER, JOHN DOE "I-50", u.T.A.: MESIVTA OF KJ, UNITED TALMUDICAL SEMINARY AND UNITED T ALMUDICAL ACADEMY TORAH V'YIRAH, INe.
Defendants.
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
SCOTT E. MOLLEN, an attorney admitted to practice before the Courts of the State of
New York, being duly sworn, deposes and says:
1.
I am a member of Herrick, Feinstein LLP, co-counsel for defendants
Congregation Yetev Lev D'Satmar, Inc. (the "Brooklyn Congregation" or the "Congregation")
and Jeno Kahan, Sol Perlstein, Jacob Schoenfeld and Solomon Sander (the "Individual
Defendants" or the "Kahan Leadership"), the duly elected leadership of the Brooklyn
Congregation. Unless otherwise stated, I have personal knowledge of the matters set forth
herein.
2.
I submit this Supplemental Affirmation, together with the accompanying
Affirmation of Sol Perlstein, in response to the Court's January 19, 2006 letter advising that it
would treat the Plaintiffs' preliminary injunction application as a motion for summary judgment.
Specifically, these affirmations are intended to further delineate why it would be improper for
the Court to award summary judgment to the Plaintiffs and recognize or approve the challenged
Deed. 1 In addition, for the reasons set forth in these two affirmations, the Court should dismiss
Plaintiffs' Second Amended Complaint because the Deed for which they seek ratification is null
and void as a matter of law.
3.
As set forth in detail in Mr. Perlstein's Affirmation and as previously discussed in
the Brooklyn Congregation's papers in opposition to Plaintiffs' initial Order to Show Cause, the
Deed is a legal nullity because the process surrounding the purported transfer of a one-half
interest in the Cemetery Property, as well as the Deed itself, suffers from numerous procedural
and statutory defects which are fatal to the Deed's purported validity.
Specifically, Berl
Friedman, who purported to act on behalf of the Brooklyn Congregation with respect to this
challenged transaction, never sought Attorney General review for the proposed transfer and also
failed to obtain Court approval. His failure to follow these procedures renders the Deed null and
void.
4.
Furthermore, since Berl Friedman executed the Deed after he had been removed
from his position as co-president of the Brooklyn Congregation by the Grand Rebbe, he was not
authorized to act on behalf of the Brooklyn Congregation. The Deed, therefore, cannot be
considered to be an enforceable corporate act, especially considering the fact that the members of the Brooklyn Congregation were never afforded an opportunity to vote on this alleged proposed
transaction, in violation of the procedure set forth by the Attorney General. Due to these glaring
and incurable defects in the Deed, the Court must find that the Kiryas Joel Congregation does not
own one-half of the Cemetery Property, as Plaintiffs alleges in their Second Amended
Complaint.
5.
Moreover, as described in detail by Mr. Perlstein, nunc pro tunc approval of the
purported Deed would not be in the best interests of the Brooklyn Congregation; in fact, such
approval of an unauthorized Deed would cause substantial harm to the Congregation and its
thousands of members. 2
Procedural History of This Action
6.
Plaintiffs commenced this action by Complaint and Order to Show Cause filed on
July 11, 2005, in which they initially sought, among other things, to have the Brooklyn
Congregation divested of its authority to operate and manage the Cemetery Property.3 By Order
dated July 12, 2005, this Court declined to grant the requested relief, but imposed temporary restraints enjoining all parties from taking any action to alter the status quo with respect to the
operation and management of the Cemetery Property.
7.
For the past several months, the Kahan Leadership has been responding to the
Court's request that it file a motion seeking a declaration that the Kahan Leadership, and not the
Friedman Dissidents, are authorized to hire counsel on behalf of the Brooklyn Congregation in
this action. The aforementioned motion was fully submitted in mid-December 2005.
8.
The Court then sent a letter dated January 19, 2006 to all parties advising that
Plaintiffs' motion for a preliminary injunction would be treated as one for summary judgment.
The Court further instructed that any additional submissions related to the treatment of the
motion as one for summary judgment must be filed on or before January 25,2006.4 (A copy of
the Court's January 19, 2006 letter to all counsel of record is attached hereto as Exhibit A.)
Additional Considerations on Summary Judgment
9.
Some of the arguments as to why the Court should not grant Plaintiffs' their
request relief, namely approval of the purported 2001 Deed and recognition of their alleged one
half interest in the Cemetery Property, have been addressed in detail in the Kahan Leadership's
prior submissions, including specifically, the Brief in Opposition to Plaintiffs' Order to Show Cause, filed on or about August 16, 2005.
However, now that the Court will be considering
Plaintiffs' request for relief in the context of a summary judgment motion, the Kahan Leadership
believes that the Court should also consider the following, which has not been previously submitted.5
10.
First, summary judgment is a "drastic remedy" that should not be granted where
there is any doubt as to the existence of a material factual issue, Rotuba Extruders, Inc. v.
Ceppos, 46 N.Y.2d 223, 231 (1978); Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d
395, 404 (1957); where a factual issue is "arguable," Barrett v. Jacobs, 255 N.Y. 520, 522
(1931); or where the court must engage in factual "issue determination" rather than
"issue-finding." Sillman, 3 N.Y.2d at 404; LaGrega v. Farrell Lines, Inc., 156 AD.2d 205, 548
N.Y.S.2d 464 (1st Dep't 1989). Moreover, a motion for summary judgment requires that "the
court. . . draw all reasonable inferences in favor of the nonmoving party." Pantote Big Alpha
Foods, Inc. v. Schefman,121 AD.2d 295, 297, 503 NY.S.2d 58, 59 (1st Dep't 1986). Where
conflicting inferences may be drawn from the proof adduced by the parties, summary judgment
must be denied. Epstein v. Scally, 99 AD.2d 713, 714, 472 N.Y.S.2d 318 (1st Dep't 1984).
11.
This well-settled summary judgment standard precludes any judgment
recognizing or approving the Deed. The voluminous papers submitted to this Court evidence
hotly contested factual issues including (i) the claimed authority of Bed Freidman, an expelled
member of the Brooklyn Congregation, to execute the challenged Deed on behalf of the
Brooklyn Congregation and (ii) whether the proposed transfer of one-half the Brooklyn
Congregation's interest in the Cemetery Property -- one of its most treasured and sacred assets could possibly be in the Brooklyn's Congregation's best interest. Indeed, as Mr. Perlstein has
affirmed in his accompanying Affirmation, far from benefiting the Brooklyn Congregation, nunc
pro tunc approval of the Deed would cause substantial harm to the Brooklyn Congregation and
create further instability in an already incendiary situation.
12.
In fact, the only summary judgment that is appropriate here is judgment in favor
of the Brooklyn Congregation dismissing the action. In the mountain of papers submitted to the
Court, two facts emerge as undisputed with regard to the purported transfer by the challenged
Deed -- review by the Attorney General was never sought and Supreme Court approval was
never obtained. As a matter of law, the Deed is fatally defective and the Second Amended
Complaint should be dismissed.
13.
Finally, in considering Plaintiffs' application as one for summary judgment, the
Court also should be aware of information obtained about Isack Rosenberg, Berl Friedman's
right-hand associate, who has submitted statements to this Court in support of the Friedman
Dissidents' position and who is also one of the individuals that the Friedman Dissidents claim
should wield power and authority on behalf of the Brooklyn Congregation.
14.
On October 29, 1999, Isack Rosenberg pled guilty before a Federal District Court
in Florida to bankruptcy fraud. In his plea agreement, Rosenberg admitted that on two separate
occasions, he submitted false and fraudulent documents, that had been supposedly signed under
penalty of perjury, in a bankruptcy proceeding pending in the Eastern District of New York. (A
copy of Isack Rosenberg's signed plea agreement dated October 27, 1999 is attached hereto as
Exhibit B.)
15.
As reported by the Daily News, as part of Rosenberg's plea agreement, he
testified about his involvement in a scheme to use a Satmar Yeshiva to launder money for the
mob-connected owners of the Scores strip club. Rosenberg received two checks from a lawyer
connected with the Scores club, deposited them in the Yeshiva's bank account while lying to the
other board members about the source and purpose of the funds. According to newspaper
accounts, Rosenberg then wrote checks to the lumber company that he owns, keeping a $5,000
fee for himself. Taking the cash from his business, Rosenberg then delivered the money to a co
owner of Scores, who then delivered it to a mob-soldier; the money eventually ended up in the
hands of John A. Gotti. (Copies of newspaper articles discussing Rosenberg's guilty plea to
bankruptcy fraud, as well as his involvement in money laundering for the Gotti crime family are
attached hereto collectively as Exhibit C.)
16.
Isack Rosenberg, a convicted felon who has admitted to submitting fraudulent
statements to a bankruptcy court on numerous occasions, is seeking, with Berl Friedman, to be
placed in control of the Congregation, a religious organization with significant financial assets.
No court should ignore such illegal behavior and blatant disrespect for the laws of this state and
country by placing this convicted felon at the helm of a religious corporation, which has
thousands of members. Furthermore, in light of Isack Rosenberg having admitted to submitting
fraudulent documents to a court, this Court should seriously consider the weight, if any, that
should be afforded to his statements.
CONCLUSION
The Kahan Leadership, on behalf of the Brooklyn Congregation, has identified for the
Court multiple reasons why it must refuse Plaintiffs' request for recognition or approval of the
unauthorized 2001 Deed signed by Berl Friedman, an expelled member of the Congregation.
Many of these reasons require the Court to do nothing more than simply apply the
requirements of the Religious Corporation Law, the Not-For-Profit Corporation Law and the
Brooklyn Congregation's own rules of internal governance to the events surrounding the
purported transfer. By so doing, the Court is left with the unavoidable conclusion that the
Deed is a legal nullity and that the Brooklyn Congregation remains the undivided owner of
the Cemetery Property.
Because of the undeniable division within the greater Satmar Chassid community and
the acrimonious nature of the relationship between the Brooklyn Congregation and the Kiryas
Joel Congregation, this Court should not even entertain nunc pro tunc approval of the
unauthorized Deed. Furthermore, the voluminous papers submitted to this Court are a clear
testament to the numerous issues of fact that preclude this Court from granting such approval
within the context of a motion for summary judgment. However, even if the Court were to
consider Plaintiffs' request for such approval, for the reasons specified in the accompanying
affirmation of Sol Perlstein, it would not be in the best interests of the Brooklyn
Congregation, and therefore improper, for the Court to grant nunc pro tunc approval which
would strip the Brooklyn Congregation of one of its most sacred and treasured assets, as a
result ofBerl Friedman's larcenous acts.
Accordingly, the Kahan Leadership requests that the Court enter summary judgment
in favor of the Brooklyn Congregation (i) declaring that the Deed is null and void and that the
transfer of the Cemetery Property it purports to evidence is a legal nullity; (ii) declaring that the Brooklyn Congregation is the undivided owner of the Cemetery Property and (iii)
dismissing the Second Amended Complaint as against the Kahan Leadership and the
Brooklyn Congregation with prejudice.
Scott E Mollen
footnotes
1 Capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the accompanying affirmation of Sol Perlstein and in the other affirmations previously submitted by the Brooklyn Congregation and the Individual Defendants.
2 In the interest of brevity, the various arguments as to why nunc pro tunc approval of the Deed
would not be in the best interests of the Congregation are not enumerated herein. Instead, I respectfully refer the Court to the accompanying Affirmation of Sol Perlstein.
3 Plaintiffs subsequently filed an Amended Complaint and a Second Amended Complaint, only
the latter of which was served upon the Brooklyn Congregation and the Individual Defendants. The claims against the Brooklyn Congregation and the Individual Defendants contained in the Second Amended Complaint are identical to those asserted against them in the original Complaint. The Brooklyn Congregation and the Individual Defendants are serving their Verified Answer with Counterclaims to the Second Amended Complaint along with these affirmations. The Brooklyn Congregation and the Individual Defendants did not file an Answer to the Second Amended Complaint earlier because their obligation to do so was stayed by this Court pending determination of the motion relating to the dispute over the proper persons authorized to retain counsel for the Brooklyn Congregation in this action.
4 We were uncertain from the Court's letter as to exactly which causes of action alleged in Plaintiffs' Second Amended Complaint the Court would be considering for summary judgment. It was also unclear whether the Kahan Leadership's Counterclaims, which were submitted as part of its Verified Amended Answer (and which are now repeated in its Verified Answer to Plaintiffs' Second Amended Complaint), would be considered for summary judgment, as well. We believe that clarification of these issues would have enabled us to make an informed decision as to what further submissions, if any, were necessary and appropriate. However, without such clarification, the Kahan Leadership has focused these submissions on one of the only issues that has not been extensively submitted to this Court, specifically why nunc pro tunc approval of the purported Deed would not be in the best interests of the Brooklyn Congregation.
5 Furthermore, to the extent that the Kiryas Joel Congregation or the Friedman Dissidents submit any new arguments or factual assertions, the Brooklyn Congregation and the Individual Defendants as defendants herein must be given a fair opportunity to respond accordingly.
תוקן על ידי - וילי_ראביי - 29/01/2006 18:14:10