SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF KINGS
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WILMOS FRIEDMAN, HERMAN KAHAN, ZIGMOND
BRACH, JOSE MASRI, ERVIN ROSNER, MORRIS
FRIEDMAN, JOSEPH EPSTEIN, HERMAN LANDAU,
MOSES SPIELMAN and all others similarly situated,

Index No.
Plaintiffs, 33481/08

-against-

CYL CEMETERY, INC., CONGREGATION YETEV

LEV D’SATMAR, INC., CHEVRE KADISHE
D’SATMAR, a division of CONGREGATION YETEV
LEV D’SATMAR, INC., CONGREGATION YETEV
LEV D’SATMAR OF KIRYAS JOEL, INC., CENTRAL
CONGREGATION YETEV LEV D’SATMAR, INC.,
RABBI EZRIEL GLUCK, JOSEPH WEISS, MOSES
WITRIOL, DAVID MARKOWITZ, CHAIM ELIEZER
GROSS, JOEL KAUFMAN, DAVID EKSTEIN, ELIAS
HOROWITZ, and SHLOMO WERTZBERGER,

Defendants.
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REPLY MEMORANDUM OF LAW

This Reply Memorandum of Law is respectfully submitted on

behalf of plaintiffs in further support of, and in response to certain

defendants’ opposition to, plaintiffs’ motion for a preliminary injunction

prohibiting defendants from interfering with the contractual and statutory

rights of the plaintiffs to burial in the Kiryas Joel Cemetery (“the

Cemetery”) and to the erection of a headstone, in accordance with

Certificates and permits issued by Congregation Yetev Lev D’Satmar, Inc.

(“the Congregation”). This Reply Memorandum is also submitted in

opposition to the various defendants’ cross-motions to dismiss the

complaint.

The facts are summarized in the Moving and Reply Affirmation

of David B. Hamm, as supported by additional affirmations and extensive

documentary evidence, to which the Court is respectfully referred.

Unfortunately, opposing defendants have chosen to foist upon this Court

bald misstatements of the facts, without documentary support and indeed in

complete denial of the facts of record. Critically, those falsifications seem to

center on the outrageous assertion that plaintiffs, on behalf of the “Kahan

faction” are seeking to seize control of the Cemetery. This preposterous

notion is absolutely belied by the plaintiffs’ Complaint and motion, which

seeks no such relief. To the contrary, the evidence is clear that it is

defendants who are seeking to exclude Congregants of the Congregation or

force them to pay “membership” or other fees to the Central Congregation,

of which they are not members at all. This is pure extortion, and should be

enjoined.

2
 POINT I

THIS ACTION IS JUSTICIABLE, AS THE

ISSUES PRESENTED CAN BE
DETERMINED BY APPLICATION OF
NEUTRAL PRINCIPLES OF LAW. _________

Defendants insist that this case is non-justiciable, seemingly

relying principally on the fact that this case involves claims by and between

members of and institutions in the Satmar community. Their shotgun attack,

seemingly applicable to any and all inter-Satmar claims, must be rejected.

The Court of Appeals’ decisions in Matter of Congregation

Yetev Lev D’Satmar, Inc. v. Kahana, 9 N.Y.3d 282, 849 N.Y.S.2d 463, 879

N.E.2d 1282 (2007) (“election case”) and Congregation Yetev Lev

D’Satmar of Kiryas Joel, Inc. v. Congregation Yetev Lev D’Satmar, Inc., 9

N.Y.3d 297, 849 N.Y.S.2d 192, 879 N.E.2d 731 (2007) (“Cemetery transfer

case”) did not hold that every dispute or issue involving Satmar is non-

justiciable. Indeed, in the latter case, the Court of Appeals unmistakably

held that the dispute in that case was justiciable. The Court of Appeals there

affirmed the Appellate Division, Second Department’s decision voiding the

purported transfer by the Friedman faction of one-half of the Congregation’s

interest in the Cemetery to defendant Congregation Yetev Lev D’Satmar of

Kiryas Joel, Inc. (“KJ”), upon the specific ground that the record showed

3
that the transfer was not in the best interest of the Congregation, hence

rendered void under neutral principles of law.

In Schwimmer v. Welz, 56 A.D.3d 541, 868 N.Y.S.2d 671 (2d

Dept. 2008), decided subsequent to the Court of Appeals’ decisions, the

Appellate Division, Second Department held that a dispute between Satmars

concerning competing claims to control of the Board of Trustees of a

Talmudic academy was justiciable. The Court noted that the issue in

question there, membership in the Board of Trustees, was not conditioned

under the By-Laws upon any religious criteria, and the issues raised with

respect to the challenged status of the various individuals claiming to be

Board members concerned only notice requirements, requisites for the

conduct of Board meetings and elections, and requirements for amending

corporate documents. Those questions could be determined by reference to

the Talmudic academy’s secular By-Laws, and in accordance with neutral

principles of law, such as those set forth in the Religious Corporations Law

and the Not-for-Profit-Corporations Law. Although matters relating to a

dispute with regard to the religious leadership of the community might

explain why members of the Board took certain actions, the case turned not

on the motivations of the Board members but on the actions they took as

4
those actions related to the relevant provisions of corporate governance and

statute.

Here, too, this Court need not delve into any religious issue or

criteria in order to determine the issues raised by plaintiffs’ claims. As

discussed in Point IV infra, defendants, by their conduct, have

acknowledged, and it is in any event clearly proven, that plaintiffs are

members of the Congregation who purchased Certificates memorializing

their right to be interred in the Cemetery. Thus, defendants’ argument that

religious criteria must be considered in order to determine whether plaintiffs

are members of the Congregation, is devoid of merit.

In any event, the By-Laws of the Congregation do not require

that an individual must be a “member” of the Congregation at the time of

death, but only that he was a member of the Congregation at the time the

Certificate was issued. Defendants have pointed to no provision in the By-

Laws, or in any other document of Record for that matter, which requires

that an individual must be a member at the time of the death as a

precondition to the fulfillment of his contractual right to be buried in the

Cemetery. To the contrary, as outlined in the Reply Affirmations and

annexed exhibits, the sale of rights to burial of those who were not members

at the time of death was clearly contemplated by the Congregation.

5
 Thus, as in Schwimmer, this Court need not touch upon any

matters of religious doctrine involving “membership” of the Congregation in

order to determine the claims in this case. It is disturbing that defense

counsel does not address the Appellate Division’s decision in Schwimmer,

although defense counsel were and are the attorneys in Schwimmer.

The Appellate Division in Schwimmer applied the well settled

rule of law that those disputes involving religious organizations which can

be resolved by application of “neutral principles of law”, should be resolved

by the Court (see, Episcopal Diocese of Rochester v. Harnish, 11 N.Y.3d

340, ___ N.Y.S.2d ___ [2008]; Park Slope Jewish Center v. Congregation

B’Nai Jacob, 90 N.Y.2d 517, 664 N.Y.S.2d 236, 686 N.E.2d 1330 [1997];

Morris v. Scribner, 69 N.Y.2d 418, 515 N.Y.S.2d 424, 508 N.E.2d 136

[1987]; First Presbyterian Church of Schenectady v. United Presbyterian

Church in United States, 62 N.Y.2d 110, 476 N.Y.S.2d 86, 464 N.E.2d 454

[1984]; Avitzur v. Avitzur, 58 N.Y.2d 108, 459 N.Y.S.2d 572, 446 N.E.2d

136 [1983]).

The First Amendment, by operation of the 14th Amendment,

prohibits States from making “`laws respecting an establishment of religion,

or prohibiting the free exercise thereof’” (First Presbyterian Church of

Schenectady v. United Presbyterian Church, supra, 62 N.Y.2d 110, 116).

6
Consistent with this principle, civil courts are precluded from interfering or

determining religious disputes and thus courts are prohibited from “resolving

church property disputes on the basis of religious doctrine and practice.”

Jones v. Wolf, 443 U.S. 595, 99 S.Ct. 3020, 61 L.Ed.2d 775 (1979); First

Presbyterian Church of Schenectady v. United Presbyterian Church, supra,

62 N.Y.2d 110, 116).

While the “First Amendment severely circumscribes the role

that civil courts may play in resolving church property disputes”,

nevertheless a “State has an obvious and legitimate interest in the peaceful

resolution of property disputes, and in providing a civil forum where the

ownership of church property can be determined conclusively.” Jones v.

Wolf, supra, 443 U.S. at 602. Thus, the United States Supreme Court has

held that civil courts may resolve property disputes, even where such

disputes are the result of a schism, as long as they involve no consideration

of doctrinal matters. Jones v. Wolf, supra, at 602.

The New York courts have adopted the “neutral principles of

law” analysis crafted by the United States Supreme Court for use in

resolving property disputes involving religious groups. Episcopal Diocese

of Rochester v. Harnish, supra, 11 N.Y.3d 340; Park Slope Jewish Center v.

B’nai Jacob, supra, 90 N.Y.2d at 521 (“the courts are free to decide [church

7
property disputes] if they can do so without resolving underlying

controversies over religious doctrine”); Morris v. Scribner, supra, 69 N.Y.2d

418 (resolution by civil court of internal dispute between church officials

and a minority of parishioners who opposed construction on church property

did not violate the First Amendment, because dispute could be decided on

the basis of statutory interpretation and common-law precedent without

reference to matters of religious belief or dogma); First Presbyterian Church

of Schenectady v. United Presbyterian Church, supra, 62 N.Y.2d at 120-121;

cf., Avitzur v. Avitzur, supra, 58 N.Y.2d 108 (the “neutral principles of law”

approach contemplates the application of objective, well-established

principles of secular law to the dispute, thus permitting judicial involvement

to the extent that it can be accomplished in purely secular terms).

Under the neutral principles of law analysis, the Court must

look only to those documents that deal specifically with church property,

taking care to examine these documents in secular terms and not relying on

religious precepts to determine whether the parties intended a particular

result. Park Slope Jewish Center v. B’nai Jacob, supra, 90 N.Y.2d at 522;

First Presbyterian Church of Schenectady v. United Presbyterian Church,

supra, at 123 (“…[T]he court may look only to provisions relating to

property and it must interpret them in a secular light”.) These documents

8
include instruments such as deeds, the terms of the local church charter, the

corporate by-laws, and the State statutes governing the holding of church

property (Ibid.; see also, Karageorgious v. Laoudis, 271 A.D.2d 653, 706

N.Y.S.2d 720 [2d Dept. 2000]). Indeed, in Episcopal Diocese of Rochester

v. Harnish, supra, 11 N.Y.3d 340, the Court of Appeals’ latest

pronouncement on the issue of justiciability, the Court dissected a single

document, avoiding those clauses which involved ecclesiastical issues, and

decided the case on the basis of a singular clause which permitted invocation

of neutral principles of law.

Applying these criteria, this Court need not entangle itself in

matters of religious doctrine in order to determine this controversy. This

contractual dispute can be resolved by examination of the relevant

documents setting out the parties’ rights with respect to the cemetery plots

which were purchased, interpreting those documents solely in a secular light.

Furthermore, the conduct of certain defendants, in attempting to block

funerals and the erection of headstones, can be adjudicated through

application of traditional legal doctrine addressing interference with a

contract.

Here, the Certificates which were issued to plaintiffs evidence

all of the elements of a contract, especially when read in conjunction with

9
the By-Laws. The plaintiffs have in exchange for consideration (i.e., the

purchase price, which was fully paid), obtained the right to be buried in the

Cemetery. The Certificates state:

THIS IS TO CERTIFY AS EVIDENCE FOR

THE RESPECTED
________________________________________

The holder of this certificate has been accepted as

a member in our holy association to be entitled to a
burial plot for himself after he passes away at the
cemetery of our holy Community in Kiryas Joel,
Monroe, at the location of the gravesite of the holy
Grand Rebbe of blessed memory according to the
amount determined by the committee of our holy
Community in accordance with the holy
regulations of the holy Congregation Yetev Lev
D’Satmar. He has paid the sum in full. 1

Each of the plaintiffs has regularly paid the dues charged by

and other amounts pledged to the Congregation, including amounts

earmarked for the benefit of the Chevre Kadishe (Burial Society), and has

paid a separate lump sum to the Congregation in order to purchase a burial

plot in the Cemetery. In addition to the right to be buried in the Cemetery,

the Congregation’s By-Laws give Certificate holders the right to erect a

stone or monument at the grave site. (See Article 11 of the By-Laws,

1
Certificates bearing alternative language, as explained in the Reply Affirmations
of David B. Hamm and Chaim Jacobowitz, are substantively identical. In any event, any
issue of fact in that regard would not and should not preclude issuance of a preliminary
injunction (see CPLR 6312[c]).

10
annexed as Exhibit 10 to the moving Affirmation of David Hamm). The By-

Laws of a not-for-profit corporation have long been recognized as a contract

between the members of the corporation and the corporation itself (Matter of

George v. Holstein-Friesian Assn. of Am., 238 N.Y. 513, 523 [1924]). The

law is clear that the purchaser of a cemetery lot becomes possessed of a

property right, which includes the right to erect a monument or tombstone

(Sockel v. Degel Yehudo Cemetery, 268 App. Div. 207, 49 N.Y.S.2d 176

[1st Dept. 1944]; Oatka Cemetery Assoc., Inc. v. Cazeau, 242 App. Div. 415,

275 N.Y.S. 355 [4th Dept. 1934]).

New York courts routinely determine contractual and property

disputes such as the one presented here, even when such disputes arise

against a background of religious or doctrinal controversy. Very recently,

the Appellate Division, Second Department in Merkos L’Inyonei Chinuch,

Inc. v. Sharf, __A.D.3d ___, 2009 N.Y. Slip. Op. 659, 2009 N.Y. App. Div.

LEXIS 729 (2d Dept. 2009), held that the “existence of a divisive doctrinal

dispute” within the Lubavitch Hasidic community did not render the action

non-justiciable, even if the facts underlying the action arose from that

dispute. The Court noted that “Property disputes between rival religious

factions may be resolved by courts, despite the underlying doctrinal

controversy, when it is possible to do so on the basis of neutral principles of

11
law” (citations omitted). The Appellate Division held that the issue of title

to certain buildings and the right of possession thereto could be determined

based upon the deeds of the properties.

Yet another example is found in Karageorgious v. Laoudis,

supra, 271 A.D.2d 653, where the Appellate Division, Second Department

applied the clear dictate of the relevant corporate by-laws in determining an

issue concerning “control over the property and accounts” of a church

parish. The Court held that the fact that a “schism had occurred” did not

require the court to resolve any issues of religious doctrine.

Similarly, in Trustees of Diocese of Albany v. Trinity Episcopal

Church, 250 A.D.2d 282, 684 N.Y.S.2d 76 (3d Dept. 1999), the Appellate

Division, Third Department held that a dispute over ownership of church

property could be resolved through the application of neutral principles of

law without interfering in church doctrine or polity by an examination of,

among other things, the deeds to the property, the terms of the defendant

church’s local charter and the statutes governing the holding of church

property. The Court noted that “although the controversy at hand was borne

out of a schism…the resolution of this property dispute can still be achieved

through neutral principles of law without resort to judicial intrusion into

matters of religious doctrine” (250 A.D.2d at 286; citations omitted).

12
 In First Presbyterian Church of Schenectady, supra, the Court

of Appeals, applying “familiar property law principles”, focused upon the

deeds to the property, which were in the name of the plaintiff local church or

its trustees, in holding that the property at issue belonged to the plaintiff

church and not to the denominational church organization from which it had

withdrawn because of a dispute over financial support of radical political

groups (62 N.Y.2d at 122).

Highly instructive is the Court of Appeals’ decision in Avitzur

v. Avitzur, supra, 58 N.Y.2d 108. In that case, the plaintiff wife and

defendant husband had, prior to their marriage, signed a document known as

a “Ketubah”, in which they both agreed to recognize the “Beth Din”, a

rabbinical tribunal, as having authority to counsel the couple in matters

concerning their marriage. The defendant husband was granted a civil

divorce, but the wife was not considered divorced and could not remarry

pursuant to Jewish law until such time as a Jewish divorce decree, known as

a “Get”, was granted. A Get could be obtained only after the husband and

wife appeared before the Beth Din. After the defendant refused to appear,

plaintiff brought an action seeking an order compelling the defendant’s

specific performance of the requirement in the “Ketubah” that the husband

appear before the Beth Din.

13
 The Appellate Division, Third Department held that

defendant’s motion to dismiss should have been granted. In its view, the

Ketubah constituted an ecclesiastical agreement which was unenforceable by

the Court, since the State, having granted a civil divorce to the parties, had

no further interest in their marital status.

The Court of Appeals reversed, holding that nothing in law or

public policy prevented judicial recognition and enforcement of the secular

terms of a religious marriage agreement. The Court emphasized that the

Ketubah was in essence a civil contract to submit a dispute to a non-judicial

forum, and that it was entitled to no less dignity than any other civil contract

(58 N.Y.2d at 114). The Court stated that the case “can be decided solely

upon the application of neutral principles of contract law, without reference

to any religious principle” (Ibid.). The relief sought by plaintiff, i.e., to

compel the defendant to perform a secular obligation to which he

contractually bound himself, required that no doctrinal issue be passed upon

(58 N.Y.2d at 115). Here, similarly, the relief which plaintiffs seek, i.e., to

compel defendants to respect, and not to interfere with, plaintiffs’

contractual rights, does not require this Court to pass upon any doctrinal

issue.

14
 In the recent case of Episcopal Diocese of Rochester v. Harnish,

supra, 11 N.Y.3d 340, the Court of Appeals looked to the deeds, the

certificate of incorporation, the Religious Corporation Law, and the

constitution of the general church in finding that the defendant breakaway

parish had held its property in trust for the benefit of the plaintiff diocese

and nonparty national church, and that upon the parish’s separation from the

diocese its property reverted to the diocese or the national church. The

Court further held that with respect to the defendant’s Article 78 petition, the

plaintiffs’ resolution deeming the parish “extinct” was a non-reviewable

ecclesiastical determination. Thus, the Court of Appeals “parsed” the case

and determined those claims which could be determined by application of

neutral principles of law, while declining to determine those aspects which

presented solely ecclesiastical issues.

It is deeply disturbing that defendants’ Joint Memorandum of

Law makes absolutely no mention of either Episcopal Diocese of Rochester

v. Harnish or Avitzur v. Avitzur. These are indisputably leading cases from

the Court of Appeals on the issue of the justiciability of actions involving

religious groups.

New York has adopted the neutral principles of law approach in

order to provide a forum for the peaceful resolution of secular disputes

15
involving religious groups. The “complete deference”, hands-off approach,

which was rejected by the United States Supreme Court in Jones v. Wolf,

supra, 443 U.S. 595 and by the Court of Appeals in First Presbyterian

Church of Schenectady, supra, 62 N.Y.2d 110, would deprive the

Congregation’s members of their constitutional right to this secular forum.

What is more, a “hands-off” approach would utterly frustrate

the policy of the Religious Corporations Law. “The primary purpose of the

Religious Corporations Law is to provide an orderly method for the

administration of the property and temporalities dedicated to the use of

religious groups, and to preserve them from exploitation by those who might

divert them from the true beneficiaries of the corporate trust” (Morris v.

Scribner, supra, 69 N.Y.2d at 423). Defendants cannot wrap themselves in a

cloak of “religious dispute” and then use that as a shield against the Court’s

ability and indeed, obligation to resolve the instant contractual dispute (see

Jews for Jesus, Inc. v. Jewish Commun. Relations Council of N.Y., Inc., 968

F.2d 286 [2d Cir. 1992]). If a party could foreclose inquiry or thwart the

court’s jurisdiction merely by asserting its view of religious doctrine, every

attempt to apply a neutral principles analysis could easily be stymied. See

Merkos L’Inyonei Chinuch v. Otsar Sifrei Lubavitch, Inc., 312 F.3d 94, 99-

100 (2d Cir. 2002).

16
 As the Appellate Division, Second Department has noted:

“Nothing can be more indispensable to a well

ordered society and a smoothly functioning
civilization than the integrity of its records
involving property. If…property rights [could be]
overturned with the ease argued for here…, the
resulting chaos in organized society would surpass
that which follows an earthquake or any other
catastrophe which destroys the archives of the
people.” Congregation Yetev Lev D’Satmar, Inc.
v. 26 Adar N.B. Corp., 219 A.D.2d 186, 191,
641 N.Y.S.2d 680, 683 (2d Dept. 1996), quoting
Pennsylvania Baptist Convention v. Regular
Baptist Church, 377 Pa. 631, 635, 105 A.2d 296,
298 (1954).

For these reasons, among others, the burden is on the

defendants to establish that the issues before the Court are non-justiciable

because they would necessarily involve the Court in resolving controversies

over religious doctrine and practice. Instructive is Kelley v. Garuda, 36

A.D.3d 593, 827 N.Y.S.2d 293 (2d Dept. 2007), in which the Court made

clear that a party cannot render a dispute which can be resolved on legal

principles “non-justiciable”, by unilaterally intertwining religious issues.

In Kelley, the plaintiffs brought an action to enjoin an alleged

trespass and usurpation of corporate authority and for a judgment declaring

the rights and interests of the respective parties in a temple. Their motion

for, inter alia, a preliminary injunction enjoining the defendants from selling,

17
mortgaging, or otherwise encumbering plaintiffs’ property including the

temple was denied by the lower court.

The Appellate Division, Second Department modified the

Order by substituting a provision granting the preliminary injunction. The

Appellate Division noted that while the parties had attempted to drag the

court into a dispute over church doctrine and practice, the causes of action

alleging trespass and usurpation were based, essentially, on legal principles

of corporate government and property. The Court held that the defendants

had the burden of establishing non-justiciability, stating, “The defendants

failed to establish that the court could not resolve these issues by applying

neutral principles of law to analyze the deed to the property, the certificate

of incorporation…, the terms of the by-laws, and the documents submitted

by the parties….”

The Appellate Division in Kelley held that the lower court’s

finding that plaintiffs had not established a likelihood of success on the

merits was based on its erroneous determination that the trespass and

usurpation of corporate authority causes of action were non-justiciable. As

the plaintiffs would suffer irreparable injury should the defendants sell,

mortgage, or otherwise encumber the property, an injunction was necessary

to preserve the status quo.

18
 The same result should apply here. The matter of enforcing

plaintiffs’ contractual rights need not thrust this Court into the area of

ecclesiastical decision making or internal policy matters. Plaintiffs’ claims

can be resolved by resort to neutral principles of law and by review of

documents concerning the Cemetery property, including the Certificates and

By-Laws, without inquiring into Satmar doctrine or tenets of faith. Further,

a preliminary injunction is clearly warranted as there is a real threat to the

named and class plaintiffs that their access to the Cemetery will be barred by

defendants through extortive demands for payments in arbitrary amounts,

notwithstanding full prior payment for the right of burial.

The cases cited by defendants in their Joint Memorandum of

Law are inapposite. Particularly misleading is defendants’ citation to the

decision by Judge Ambrosio in Frankel v. Congregation Yetev Lev

D’Satmar, 20 Misc.3d 1137(A), 2008 WL 3915798, 2008 N.Y. Slip Op.

51779(U) (Sup. Ct., Kings County, August 22, 2008). That case actually

involved three actions. Defendants inexcusably fail to advise this Court that

the first action, Frankel v. Congregation Yetev Lev D’Satmar, was

discontinued as of right by the plaintiffs, and the class was never certified.

Thus, that case is worthless as precedents for defendants. Furthermore,

Judge Ambosio in his decision noted that the Frankel action was a

19
manipulative attempt by the Friedman adherents to obtain judicial

recognition that the Friedman faction, rather than the Kahan leadership, was

authorized to act on behalf of the Congregation, an attempt which was

properly rejected by Judge Ambrosio.

The second action referred to by Judge Ambrosio in the Frankel

decision, Congregation Yetev Lev D’Satmar, Inc., Moshe Scher et al v.

Congregation Yetev Lev D’Satmar, Inc., Sol Perlstein et al, (“the Scher

action”) was a class action commenced in Orange County in June 2006 by

the Friedman adherents. Defendants herein fail to advise this Court that the

Scher action, like the Frankel action, was discontinued by the plaintiffs. As

Judge Ambrosio noted, “both the Frankel action and this [the Scher action]

are now deemed discontinued and are non-justiciable”.

The third action before Judge Ambrosio, entitled Congregation

Yetev Lev D’Satmar, Inc., Jenoe Kahan et al. v. Friedman, was a claim by

what was termed the Kahan faction to exclusive authority over all assets of

the Congregation to the exclusion of what was termed the Friedman faction.

Plaintiffs sought, among other things, a preliminary injunction enjoining the

Friedman faction from holding themselves out as the duly elected board of

the Congregation. Judge Ambrosio declined to rule on that claim, on the

grounds that the Court of Appeals had previously declined to declare the

20
validity of either side’s election because such determination would require

the Court to impermissibly pass upon issues of religious doctrine.

Even had this Order been properly decided, it is entirely and

obviously distinguishable. In this action, plaintiffs seek no ruling with

respect to whether the Friedman faction should be excluded from exerting

control over assets of the Congregation. Plaintiffs do not seek to exclude

any Satmar person from burial in the Cemetery; nothing in the complaint or

the relief requested on this motion can be so misinterpreted as suggesting the

exclusion of anyone, defendants’ false and baseless accusations

notwithstanding. Plaintiffs seek only to confirm their rights under and

pursuant to their contracts to burial and the erection of a headstone in the

Cemetery, not at all the exclusion of anyone else. Beyond that, it is

respectfully submitted that Judge Ambrosio misinterpreted the import of the

Court of Appeals’ decisions and erred in failing to enforce the “status quo”

referred to in Justice Barasch’s decision affirmed by the Court of Appeals.

As we will show, infra at Point II, that term had legally cognizable meaning.

Defendants also place mistaken reliance upon the decision of

Judge Sifton in Brach v. Congregation Yetev Lev D’Satmar, et al. (S.D.N.Y.

1993). In that case, a splinter group of Satmar consisting of approximately

41 families in Kiryas Joel brought an action asserting federal civil rights

21
claims against the Congregation, which had purportedly barred them from

creating their own prayer group in the Cemetery. In his decision which

granted the Congregation’s motion to dismiss those claims, Judge Sifton did

not state that plaintiffs’ claims were non-justiciable. Rather, Judge Sifton,

relying on the plain terms of the statutes involved, (1) dismissed plaintiffs’

section 1982 claims upon the ground that the statute only covered

discrimination on the grounds of race or ethnicity, not religious

discrimination; (2) dismissed plaintiffs’ section 1983 claim on the ground

that the Congregation’s alleged actions did not constitute state action; and

(3) dismissed plaintiffs’ section 1985 claim upon the ground that the claim

was poorly pleaded and failed to state a cause of action, in that it failed to

plead that the plaintiffs were the victims of a “class-based animus” which

discriminated against them based on their Judaism.

Thus, Judge Sifton in the Brach case, rather than declining to

adjudicate plaintiffs’ claims on the grounds of non-justiciability, determined

and disposed of those claims utilizing neutral principles of law, including

principles of statutory interpretation. Thus, Brach provides no support for

defendants’ arguments that this case is non-justiciable. In fact, Brach

22
provides support for plaintiffs’ arguments here that this Court should

determine the action insofar as it can do so using neutral principles of law. 2

2
Weinstock v. Congregation Yetev Lev D’Satmar, Inc. (Orange County Index No.
5798/72), cited in the Buss and Mahon affirmations, is inapposite. This Court is not
being asked to review the propriety of an exercise of church discipline, i.e., the propriety
of the expulsion of a member upon religious grounds. There has been no such expulsion,
and even if there were, it would not be relevant to the rights to burial. For that reason, the
Buss affirmation’s reliance upon Paul v. Watchtower Bible and Trust Society of New
York, Inc., 819 F.2d 875 (9th Cir. 1987), cert denied, 484 U.S. 926 (1988), and Grunwald
v. Bornfreund, 696 F. Supp. 838 (E.D.N.. 1988), which similarly involve issues of church
discipline (i.e., “shunning” and ostracism of former members), is misplaced.

The cases cited at page 18 of the Joint Memorandum of Law are not helpful to
defendants. In Park Slope Jewish Center v. Congregation B’Nai Jacob, supra, 90 N.Y.2d
517; Archdiocese of Ethiopian Orthodox Church in U.S. and Canada v. Yesehaq, 232
A.D.2d 332, 648 N.Y.S.2d 605 (1st Dept. 1996); and Upstate New York Synod of
Evangelical Lutheran Church in Am. v. Christ Evangelical Lutheran Church of Buffalo,
185 A.D.2d 693, 585 N.Y.S.2d 914 (4th Dept. 1992), the Courts determined those issues
in the church disputes which could be determined by application of neutral principles of
law. The same result should apply here. This Court is not being asked to determine
whether a church has substantially abandoned its original religious doctrines
(Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Mem. Presby.
Church, 393 U.S. 440, 89 S.Ct. 601, 21 L.Ed.2d 658 [1969]) or to interfere in a church’s
exercise of church discipline in defrocking a rebellious bishop (Serbian Orthodox
Diocese v. Milivojevich, 426 U.S. 696, 96 S.Ct. 2372, 49 L.Ed.2d 151 [1976]).

23
 POINT II

THE CONGREGATION HAD ACTUAL

AUTHORITY TO ISSUE THE CERTIFICATES.
THAT THE COURTS HAVE DECLINED TO
VALIDATE EITHER OF THE 2001 ELECTIONS
DOES NOT CREATE A VACUUM; RATHER,
THE BOARD THAT WAS PREVIOUSLY IN
POWER REMAINS IN POWER. CERTAINLY,
PLAINTIFFS HAD THE RIGHT TO RELY
ON THEIR CONTINUING DAY TO DAY
AUTHORITY IN PURCHASING THEIR
CERTIFICATES.__________________________

As set forth in the moving papers, the plaintiffs’ Certificates

were issued by the Congregation at a time when the ownership and authority

of the Congregation over the Cemetery was undisputed. Indeed, as noted

supra, in 2007 the Court of Appeals confirmed the Appellate Division’s set

aside of a purported transfer by the Friedman faction of a one-half interest in

the Cemetery away from the Congregation to the KJ Congregation. See,

Congregation Yetev Lev D’Satmar of Kiryas Joel, Inc. v. Cong. Yetev Lev

D’Satmar, Inc., supra, 9 N.Y.3d 297. In addition, the authority of the Board

of the Congregation in place prior to and since 2001, with its principal place

of business at 152 Rodney Street, to manage the affairs of the Congregation

including the Cemetery, survived a Court challenge by the Friedman faction

which reached the Court of Appeals. See, Matter of Cong. Yetev Lev

D’Satmar v. Kahana, supra, 9 N.Y.3d 282. Accordingly, the Certificates

24
issued by the Congregation are valid, set forth the terms of the contract

between the Congregation and the plaintiffs, and specifically grant plaintiffs

the right to be buried in the Cemetery and impose upon the Congregation the

obligation to facilitate plaintiff’s burial in the allotted plot (DaSilva v.

Musso, 53 N.Y.2d 543, 550, 444 N.Y.S.2d 50 [1981] [“Under long accepted

principles one who signs a document is, absent fraud or other wrongful act

of the other contracting party, bound by its contents”]; Florence v.

Merchants Central Alarm Co., Inc., 51 N.Y.2d 793, 794, 433 N.Y.S.2d 91

[1980] [same]).

In any event, the law is clear that where an election (or

elections) is held for new officers or directors, and that election is not

deemed valid, a power vacuum does not result; rather, the individuals who

make up the prior officers and directors continue in their positions until their

successors have been elected in a valid election.

Article 10 of the Religious Corporation Law (“RCL”), which

governs Jewish religious corporations, does not have a specific provision as

to which individuals constitute the board of directors when an election is

refused validation. However, RCL section 2-b(1)(a) provides that the

provisions of the Not-for-Profit Corporation Law apply to every corporation

to which the RCL applies, except for certain exceptions not relevant here.

25
Section 703(c) of the Not-for- Profit Corporation Law provides that “Each

director shall hold office until the expiration of the term for which he is

elected or appointed, and until his successor has been elected or appointed

and qualified.” This provision is similar to section 703(b) of the Business

Corporation Law, which provides that “Each director shall hold office until

the expiration of the term for which he is elected, and until his successor has

been elected and qualified”.

Thus, pursuant to statute, since neither the Kahan nor the

Friedman elections in 2001 were determined to be valid, then the prior

board, of which Messrs. Kahan and Perlstein (the then President and Vice-

President, respectively) were indisputably members, continues in office until

such time as a valid election takes place. 3 See e.g., Griffin v. Varflex Corp.,

79 A.D.2d 857, 434 N.Y.S.2d 488 (4th Dept. 1980) (pursuant to Business

Corporation Law §703[b], in the absence of a showing that a successor to

petitioner as a director of the corporation has been elected, petitioner

continues as such director with an absolute right to inspect the books and

3
Defendants argue in their Joint Memorandum of Law that Berl Friedman was
previously the “President” of the Board. However, in the proceeding before Justice
Barasch in Supreme Court, Kings County, the Friedman faction (the Petitioners therein)
admitted that Berl Friedman had been at most a “Co-President” along with Jenoe Kahan.
The Barasch decision indicates that Jeno Kahan and Berl Friedman served as co-
presidents from 1998 (Congregation Yetev Lev D’Satmar v. Kahana, 5 Misc.3d 1023A,
799 N.Y.S.2d 159 [S.Ct. Kings County 2004]). However, Friedman was expelled by the
Grand Rabbi prior to the 2001 elections, leaving only Kahan as President.

26
records of the corporation); Matter of the Annual Election of the Empire

State Supreme Lodge of the Degree of Honor, A Corporation, 118 App. Div.

616, 103 N.Y.S.2d 1124 (4th Dept. 1907) (the Court declared that the

election of the respondents was illegal and that the nine directors elected

should be ousted from control; the future management of the affairs of the

association was to be returned to the former executive committee until a

regular election could be held); Matter of Application of A.J. Briggs v.

Noble, 2 Misc.3d 1010A, 784 N.Y.S.2d 918 (Sup. Ct., Erie County 2004)

(where July assembly of Baptist congregation was not an annual meeting

properly called by the trustees, and certain members of the church were

excluded from participating under threat of arrest, the July meeting was a

nullity and as a consequence, the survivors of the last elected board of

trustees remained in office until their successors were elected in accordance

with the constitution and by-laws of the church and the Religious

Corporation Law); In the Matter of Standup Harlem, Inc., 1 Misc.3d 904A,

781 N.Y.S.2d 628 (Sup. Ct., New York County 2003) (with respect to

corporation organized under the Not-For-Profit Corporation Law, if

membership resolutions were improperly obtained, then the election of the

1999 directors was invalid and the 1997 board remained in office pursuant to

Not-for-Profit Corporation Law §703[c]).

27
 What is more, as Exhibit 39, annexed to the Reply Affirmation

of David B. Hamm, shows, Berl Friedman himself (p. 2, para. 6) announced

at a public gathering that, although elections of the Congregation were to

take place every three years, if the Trustees determine to extend the term

(i.e., if elections do not take place), “the management that is serving at that

time will continue with all its duties until new elections will be arranged”.

Thus, the notion of hold-over officers maintaining the status quo during a

period in which valid elections had not taken place is no stranger to Satmar.

In light of this, we respectfully submit, Justice Barasch’s

comment at 5 Misc.3d 1023A of continuing the status quo has real legal

reference. Certificates attesting to the right to burial in the Cemetery, and

Permits attesting to the right to erect a headstone, issued under the auspices

of Messrs. Kahan, Perlstein and other pre-2001 election Board Members are

completely valid, and that, respectfully, without regard to whether they were

issued before or after April 1, 2006. 4

4
This is not to suggest that Certificates issued under the auspices of other
Directors, prior to 2001 would not be similarly valid.

28
 POINT III

IN ANY EVENT, DEFENDANTS ARE

ESTOPPED BY THEIR CONDUCT
FROM REFUSING TO RECOGNIZE
PLAINTIFFS’ CERTIFICATES.

Up until recently, the Certificates for burial and Permits for

headstones, whether issued to Satmar Hasidim by the Congregation or by the

KJ Congregation, have all been honored by the Burial Society and the

Cemetery, premised on payment to the Congregation in which the individual

is/was a congregant. Congregants of the all of the various entities have been

buried in the Cemetery without incident. Specifically, Certificates identical

to those called invalid by defendants were in fact honored, Certificate

holders buried and headstones erected based on the Certificates of the

Congregation (see Exhibit K to Exhibit 34 to the Reply Affirmation of

David B. Hamm, Esq., consisting of copies of Certificates issued by the

Congregation, signed by Chaim Jacobowitz, which have been honored by

the Burial Society and the Cemetery).

As the Court stated in Matter of Charles v. Charles, 296 A.D.2d

547, 549, 745 N.Y.S.2d 572 (2d Dept. 2002), “an equitable estoppel may be

imposed to prevent injustice suffered by a person who, in justifiable reliance

on the words or conduct of another, is induced to act or forbear ….” This

doctrine applies squarely to the present case. For decades, defendants acted

29
in recognition of the rights of holders of Certificates issued by the

Congregation. Burial arrangements were made; graves were dug; deceased

Certificate holders and their relatives were buried; and headstones were

erected. In reliance on this practice, Congregation members continued to

purchase Certificates, expending significant sums of money with the belief

and reasonable expectation that they held the same rights as those whose

Certificates had previously been honored. Defendants necessarily knew that

Congregation members were continuing to purchase Certificates in reliance

on defendants’ conduct, since defendants were active participants in the

burial process.

The estoppel doctrine was applied in analogous circumstances

in Doctor’s Council v. New York City Employees Retirement System, 127

A.D.2d 380, 394-95, 514 N.Y.S.2d 922 (1st Dept. 1987), rev’d in part on

other grounds, 71 N.Y.2d 669, 529 N.Y.S.2d 732, 525 N.E.2d 454 (1988).

The issue in that case was the right of plaintiff doctors, who were employed

part time by the City and its Health and Hospitals Corporation, to

membership in the City’s employment retirement system. Defendants took

the position that as a matter of law only full time doctors were entitled to

membership. Plaintiffs asserted that part-time doctors had regularly been

admitted to membership in the past; that they had entered City service

30
primarily to be eligible for retirement benefits; and that defendants had made

representations that plaintiffs would be eligible. The Court, in reversing a

grant of summary judgment in defendants’ favor on this issue, stated that

“defendants may be estopped from exercising their discretion to exclude part

time employees from … membership if plaintiff doctors relied, as alleged,

upon express assurances or a practice, even if unauthorized, of extending

membership eligibility to part-time and sessional doctors.” (emphasis

added). The Court went on to state, in language also applicable to the

present case:

“The doctrine of equitable estoppel should be

available in just such circumstances. It would
preclude a party from exercising a power he might
otherwise legally exercise, when to do so would
result in severe prejudice or injury to another party
who has placed himself in a position of risk in
reliance upon the express or implied
representations of the first party” (emphasis
added).

Doctor’s Council was followed in Walter v. City of New York

Police Department, 256 A.D.2d 8, 680 N.Y.S.2d 519 (1st Dept. 1998), where

plaintiffs, who were over 35 years old, had qualified to attend the Police

Academy at a time when Federal Law precluded hiring restrictions based on

their age. Before the commencement of the next class at the Academy, the

law was changed, but defendant allegedly continued to advise plaintiffs that

31
their age would not be a consideration in their appointment. Many plaintiffs

left their jobs or sold their businesses in reliance. Defendant then decided to

apply the age restrictions permitted by the amended statute. The First

Department sustained plaintiffs’ “cause of action for estoppel against the

Department for its inconsistent and belated determination to apply [the

amended law] retroactively to plaintiffs, rather that prospectively only.”

Similarly, no basis exists here to permit defendants to interfere with

established contract rights.

Bisbing v. Sterling Precision Corporation, 34 A.D.2d 427, 312

N.Y.S.2d 305 (3d Dept. 1970) also supports the application of the estoppel

doctrine here. In Bisbing, plaintiffs were retired employees who claimed to

have continued working for defendant employers based on representations as

to what their retirement benefits would be. After the employers were

acquired by another company, plaintiffs’ benefits were reduced. In reversing

an order of summary judgment in defendants’ favor, the Court, quoting from

Rothschild v. Title Guarantee & Trust Co., 204 N.Y. 458 (1912), stated:

“When a party with full knowledge, or with

sufficient notice of his rights and of all the material
facts, freely does what amounts to a recognition or
adoption of a contract or transaction as existing, or
acts in a manner inconsistent with its repudiation
and so as to affect or interfere with the relations
and situation of the parties, he acquiesces in and
assents to it and is equitably estopped from

32
 impeaching it although it was originally void or
voidable” (emphasis added).

Defendants’ conduct here in acting in recognition of the

contracts established by Congregation members’ Certificates fits precisely

within the above formulation of the equitable estoppel rule.

Electrolux Corp. v. Val-Worth, Inc., 6 N.Y.2d 556, 190

N.Y.S.2d 977, 161 N.E.2d 197 (1959), also strongly supports plaintiffs’

position on this issue. There plaintiff had for an extended period of time

sold to defendants used vacuum cleaners received by plaintiff as trade-ins.

Defendants then refurbished the machines, using some non-Electrolux parts,

and re-sold them as “re-built Electrolux” vacuum cleaners. After defendants

began advertising these products on television, plaintiff sued and asserted

unfair competition claims. In affirming the dismissal of certain of those

claims, the Court of Appeals stated:

“The Appellate Division held that plaintiff was

estopped from enjoining a course of business of
which it not only presumably had knowledge, but
in which it actively participated. We agree in this
conclusion. For, as we have said in Rothschild v.
Title Guar. & Trust Co., (204 N.Y. 458, 461
[1912]), `Where a person wronged is silent under a
duty to speak, or by an act or declaration
recognizes the wrong as an existing and valid
transaction, and in some degree, at least, gives it
effect so as to benefit himself or so as to affect the
rights or relations created by it between the
wrongdoer and a third person, he acquiesces in and

33
 assents to it and is equitably estopped from
impeaching it.’ Assuming that it was actionable to
use foreign parts in the `rebuilt Electrolux’,
plaintiff profited by continuing sales of trade-in
machines while at the same time refusing to sell
genuine Electrolux parts to respondents. `One
cannot knowingly sanction business methods
adopted by a rival, much less invite his competitor
to engage in a business and later recover damages
for the alleged losses to his business by means
which he encouraged.’ (William H. Keller, Inc., v.
Chicago Pneumatic Tool Co., 298 F. 52, 59 [7th
Cir., 1923])”.

A finding of estoppel is all the more imperative here because

the Burial Society actually received a portion of the money which plaintiffs

and other Congregation members remitted for the purchase of their

Certificates (see documents annexed as Exhibit L to the Affirmation of

Chaim Jacobowitz, Exh. 34 to the Affirmation of David B. Hamm). Having

accepted the financial benefits of the sale of the certificates to the plaintiffs

and other members of the Congregation, the Burial Society and the other

defendants are estopped from challenging the validity of those Certificates

(see e.g., Markovitz v. Markovitz, 29 A.D.3d 460, 816 N.Y.S.2d 419 [1st

Dept. 2006]; 1602 Avenue Y, Inc. v. Markowitz, 274 A.D.2d 506, 711

N.Y.S.2d 473 [2d Dept. 2000] [“Estoppel will lie when an individual has

accepted the benefits of an agreement” (citation omitted)]; Matter of the City

of New York v. Klondike; 80 A.D.2d 611, 436 N.Y.S.2d 52 [2d Dept.

34
1981]; Belmont Homes, Inc. v. Kreutzer, 6 A.D.2d 697, 174 N.Y.S.2d 310

[2d Dept. 1958]).

POINT IV

BY THEIR CONDUCT, DEFENDANTS HAVE

RECOGNIZED THAT PLAINTIFFS ARE
MEMBERS OF THE CONGREGATION AND
THAT PLAINTIFFS PURCHASED THE RIGHT
TO BE BURIED IN THE CEMETERY. AS
PLAINTIFFS’ STANDING IS CONCEDED BY
DEFENDANTS, THE BURDEN IS ON
DEFENDANTS TO DEMONSTRATE THEIR
OWN STANDING AND TO JUSTIFY THEIR
ATTEMPTS TO EXERCISE AUTHORITY OVER
PLAINTIFFS, A BURDEN WHICH THEY
HAVE NOT AND CANNOT MEET._____________

Defendants cannot dispute that plaintiffs and all others in their

class are members of the Congregation, as defendants’ own conduct has

demonstrated that plaintiffs are members. All of the plaintiffs received

direct mailings from “Congregation Yetev Lev D’Satmar, Inc.” purportedly

located at “163 Rodney Street” (i.e., in actuality, defendant Central

Congregation Yetev Lev D’Satmar, Inc.), which claimed, without sanction,

to have authority over burials in the Cemetery. The first of these mailings

emphasized that the right to obtain a plot in the Cemetery is designated only

for “special members” who have “specifically purchased this special right

and received a certificate from the Chevre Kadishe Burial Society in

accordance with the customs of our holy Community since the cemetery was

35
dedicated almost thirty years ago.” That mailing purported to direct

plaintiffs, as such “special members”, to bring in their old Certificates by the

cut-off date of “21 Kislev” (December 18, 2008), and further directed that

those “special members” must acquire a new certificate to replace the old

one. The new certificate would then serve as the “only form of legitimate

and recognized evidence” of the right to be buried in the Cemetery.

That mailing was followed by another mailing, again

purportedly from “Congregation Yetev Lev D’Satmar” at “163 Rodney

Street”. That mailing, dated November 2, 2008, is specifically addressed

“To our friend and member of the Community.” It acknowledges that “our

records indicate that you are registered as a member in our Community….”

The mailing further purports to demand payment of a “large sum” of unpaid

membership dues over a period of “years”.

On November 25, 2008, the entity at 163 Rodney Street sent

another missive addressed “To the Disciples and Hassidim of Satmar,

members of our Community”. It states that “The Congregation also agreed

that, come what may, all members would be considered full members until

21 Kislev [December 18, 2008]”. The letter stated, “please send your

outstanding balance immediately so that your membership is considered to

remain active.”

36
 On December 22, 2008, yet another letter was sent to plaintiffs

from “Congregation Yetev Lev D’Satmar” at “163 Rodney Street”, stating

that a “complaint” had been submitted against them that they had violated

Article 10, paragraph 3 of the “regulations” of the “Yetev Lev Community

D’Satmar”. That “regulation” purportedly states that “members” are to be

excluded from the Congregation if it is determined that “You work against

the interests of the Community”. The letter purported to summon plaintiffs

to meet within three days with a “Committee” at 163 Rodney Street in order

to determine the accuracy of the complaint, and “If you do not come within

three days we will be forced to exclude you from the Congregation and you

will lose all membership rights”.

Most recently, “Congregation Yetev Lev D’Satmar” at “163

Rodney Street” sent a “final warning” in the form of an unsigned

anonymous letter to plaintiffs dated January 6, 2009. The letter threatens

that “If you continue your legal case in secular court you will be excluded

from the Community…without any recourse whatsoever”. The letter

advises that if plaintiffs come to the “Congregation’s” office at 163 Rodney

Street within two weeks, express regret to the “Committee” and “promise

not to go to secular court or harm the interests of the Congregation”,

plaintiffs may remain members. Thus, defendants have explicitly

37
acknowledged in writing that the plaintiffs are members of the Congregation

who purchased Certificates demonstrating their right to be buried in the

Cemetery, and cannot now be heard to protest otherwise.

In contrast to plaintiffs’ conceded standing as members of the

Congregation who purchased the right to burial in the Cemetery, defendants

have not, and cannot, demonstrate their purported standing or authority to

forcibly exclude plaintiffs from the Cemetery, to attempt unilaterally to

revoke plaintiffs’ contract rights to be buried in the Cemetery, or to even

threaten to expel plaintiffs from membership in the Congregation should

they continue to assert their constitutional right to seek redress in the civil

courts. Justice Barasch in Matter of Congregation Yetev Lev D’Satmar v.

Kahana, 5 Misc.3d 1023A, 799 N.Y.S.2d 159 (Sup. Ct., Kings County

2004), declined to recognize the Friedman faction as the Congregation’s

Board of Directors. His decision was affirmed by the Appellate Division (31

A.D.3d 541) and by the Court of Appeals (9 N.Y.3d 282). As defendants

cannot demonstrate that they have the legal authority which they purport to

exercise over plaintiffs, their attempt to unilaterally revoke plaintiffs’

contract rights and their threat to expel them from the Congregation for

exercising their constitutional right to seek redress in the civil courts, may be

38
recognized as sheer harassment of the most base and crude kind. It

underscores the need for a preliminary injunction to be granted.

In any event, there is no requirement in the By-Laws that a

person holding a certificate be a member at the time of death. What is more,

the only ground stated in the By-Laws and the “final warning” as ground for

termination is “harming the interests of the Congregation”, a purely secular

issue which can be resolved by the Courts (see e.g., Congregation Yetev Lev

D’Satmar of Kiryas Joel, Inc. v. Congregation Yetev Lev D’Satmar, Inc.,

supra, 9 N.Y.3d 297 [holding that purported transfer by the Friedman faction

of a one-half interest in the Cemetery property to the KJ Congregation was

void, as the record showed that the transfer was not in the best interest of the

Congregation]).

POINT V

DEFENDANTS’ ILLICIT ATTEMPT TO

TRANSFER THE CONGREGATION’S
INTEREST IN THE CEMETERY TO A
DEFECTIVELY INCORPORATED
CEMETERY CORPORATION IS VOID, AS
IT WAS NOT IN THE BEST INTERESTS OF
THE CONGREGATION. NOR CAN
PLAINTIFFS’ RIGHTS AS LOT OWNERS
BE ALIENATED BY DEFENDANT’S
ATTEMPTED TRANSFER.________________

As discussed supra, in Congregation Yetev Lev D’Satmar of

Kiryas Joel, Inc. v. Congregation Yetev Lev D’Satmar, Inc., supra, 9 N.Y.3d

39
297, the Court of Appeals held that the purported transfer by the Friedman

faction of one-half of the Congregation’s interest in the Cemetery property

to the KJ Congregation was void, as the record showed that the transfer was

not in the best interest of the Congregation. The Friedman faction, however,

dissatisfied with the Appellate Division’s pronouncement on the issue, and

even as they sought review at the Court of Appeals, immediately attempted

to do an end-run around that decision by purporting to transfer the entire

Cemetery property to a defectively-incorporated cemetery corporation,

without payment of any consideration. The Friedman faction apparently

believed that their machinations would be protected from judicial review by

RCL section 12(7), which does not require prior court approval before lots

or plots in a cemetery owned by a religious corporation are sold or conveyed

to a cemetery corporation. However, as discussed infra, RCL §12(7), even

were it otherwise applicable to the case, in no way does away with the

requirement, applicable to all sales or transfers of property by a religious

corporation, that the transfer be in the best interests of the Congregation.

This requirement was discussed in depth in a recent article in

the New York Law Journal (David G. Samuels, Outside Counsel, “Court

`Veto’ Power Oversees Property Sales by Religious Firms”, NYLJ 1/26/09,

pp. 4, 8). In that article, the author noted that New York religious

40
corporations are subject to special rules with respect to the sale or transfer of

real property. RCL §12 provides that a religious corporation must ordinarily

obtain leave of court pursuant to section 511 of the Not-for-Profit

Corporation Law (“NPCL”) before it may sell its property. Section 511 of

the NPCL authorizes the approval of the sale if it appears to the court’s

satisfaction that “the consideration and the terms of the [transaction] are fair

and reasonable to the corporation, and that the purposes of the corporation,

or the interests of its members will be promoted thereby.”

Citing to the decision of the Appellate Division, Second

Department in Church of God of Prospect Plaza v. Fourth Church of Christ,

Scientist, of Brooklyn, 76 A.D.2d 712, 431 N.Y.S.2d 834 (2d Dept. 1980),

the article noted that while a corporation may enter into a valid contract for

the sale of its real property without first obtaining court approval, before the

court may enforce the contract, it must first determine that the terms and

consideration of the contract are fair and reasonable; if this is so determined,

the court must then analyze whether the contract will promote the purposes

of the corporation or the interest of its members in accordance with NPCL

§511(d). As the Court noted in Church of God, the purpose of requiring

court approval is to protect the members of the religious corporation from

loss through unwise bargains and to assure that the disposition of the

41
corporate property is consistent with, or in furtherance of, the corporate

purpose.

In Church of God, the Court held that the first prong of the test

– whether the consideration and terms of the contract are fair and reasonable

– should be determined as of the time the contract is made. The second

prong of the test – whether the contract serves the purposes of the

corporation or the interests of its members -- should be reviewed by the

court at the time the petition for approval is before it. The Court in Church

of God stated that the court may consider whether corporate purposes would

have been served or the best interests of the membership promoted at the

time the contract was made; however, the court, in making its ultimate

determination, must be guided by the circumstances as they presently exist.

The article concludes with the observation that ever since the

enactment of the RCL, “the role of the court, as protector of the assets and

the interests of the members of religious corporations, has never been

challenged” and that “contracting parties should be advised that contracts

made with religious corporations are subject to the ultimate `veto’ power of

the court” (Samuels, supra, at p. 8, citing to Church of God, supra).

The Court of Appeals in Congregation Yetev Lev D’Satmar of

Kiryas Joel, Inc. v. Congregation Yetev Lev D’Satmar, Inc., supra, 9 N.Y.3d

42
297, has already determined that the attempted transfer by the Friedman

faction of one half of the Congregation’s interest in the Cemetery property to

KJ, was not in the best interests of the Congregation. The Friedman

faction’s outrageous effort to thwart the Court of Appeals’ determination by

the purported expedient of transferring the entire Cemetery property to a

defectively incorporated “cemetery corporation”, itself incorporated by their

attorney and controlled by Friedman, should not be tolerated by this Court in

light of the Court of Appeals’ prior determination that transfer of a one-half

interest in the Cemetery was not in the best interests of the Congregation.

What is more, plaintiffs’ rights as lot owners certainly cannot

be terminated by defendant’s illicit attempt to transfer the Congregation’s

interest in the Cemetery. For example, RCL §8 provides that lots in the

cemetery are held indivisible, and upon the decease of a proprietor of such

lot, the title descends to his or her heirs-at law or devises. The statute

provides that “The widow may at any time release her right in such lot, but

no conveyance or devise by any other person shall deprive her of such

right.” If the bogus attempted transfer by the Friedman faction of the

Congregation’s interest in the Cemetery to KJ cannot deprive the “widow”

of her right to be buried in the Cemetery, then such purported transfer

certainly cannot deprive the original purchaser of the right to be buried there.

43
 The Buss Affirmation at paragraph 54 cites several cases which

purportedly stand for the proposition that RCL §8 “is narrowly construed”.

However, none of the cases cited make any such statement. Nor do they

support the proposition that a Certificate holder’s contractual right to

interment in the burial plot he purchased can, without the purchaser’s

consent, be nullified by the purported unilateral transfer of the Cemetery to a

bogus “cemetery corporation”.5

Nor have defendants pointed to any “rules, regulations, by-laws

and traditions of Satmar” which purportedly “require on-going membership

as a condition of burial” (Buss Aff., para. 57), as distinct from the

requirement of membership when the Certificate for burial is purchased.

Thus, the authorities cited in paragraph 58 of the Buss Affirmation, which

purportedly hold that “Restrictions which preclude the burial of any person

who is not, at the time of his death, a member in good standing of the

religious organization, are enforceable, even if the person has previously

purchased a lot or burial right”, are not on point, as defendants have not

5
The Buss Affirmation at paragraph 55 similarly misquotes RCL §7 by asserting
that the statute provides that burial in a private religious cemetery is purportedly “subject
to the rules, regulations, and traditions of the religion”. The statute contains no such
language.

44
identified any By-Law or other document evidencing such “restrictions”. 6

POINT VI

THIS COURT HAS THE POWER TO ISSUE A

PRELIMINARY INJUNCTION TO PROTECT
THE RIGHTS OF ALL MEMBERS OF
THE PUTATIVE CLASS TO BE FREE FROM
HARASSMENT FROM DEFENDANTS, PENDING
CERTIFICATION OF THE CLASS. ______

A suggestion has been made that this Court does not have the

power to issue or fashion a preliminary injunction that would protect the

rights of all members of the putative class to be free from harassment by

defendants, as the class has not yet been certified. That is not the law. This

Court has the power to issue such an injunction to protect the rights of all of

the members of the putative class prior to the certification of a class, and

should exercise that authority to protect the class plaintiffs in this matter.

Instructive is Greer v. Monroe County Department of Social

Services, 67 Misc.2d 480, 324 N.Y.S.2d 446 (Sup. Ct., Monroe County

6
McGuire v. Trustees of St. Patrick’s Cathedral, 54 Hun. 207, 7 N.Y.S. 345 (Sup.
Ct., General Term, 1st Dept. 1889), cited in the Buss Affirmation at paragraph 58, is not
on point. In that case, the Court held that the receipt which had been obtained by the
decedent, which stated that the decedent had purchased a “grave” for the amount of ten
dollars, was too vague to permit interment of the decedent in the defendant’s cemetery
where the decedent’s wife had already been buried in the plot. Further, in that case, the
plaintiff expressly admitted that the cemetery land was consecrated for the exclusive
purpose of the burial of the remains of persons who “die in communion with” the Roman
Catholic Church. Here, defendants have pointed to no By-Law or document that requires
that a Certificate holder must be a member of the Congregation at the time of death in
order to be buried in the Cemetery, and, indeed, numerous documents confirm the
opposite to be true.

45
1971). In that case the plaintiff, who filed an action on behalf of herself and

all other recipients of public assistance in the County as a class action, was

granted a temporary restraining order on August 25, 1971 preventing the

defendant County Department of Social Services from implementing or

enforcing a policy regarding the replacement of lost or stolen welfare checks

which came into force on August 3, 1971. Said the Court, “the application

of the plaintiff for a temporary order restraining defendant from

implementing or enforcing the…policy is granted, applicable to all persons

similarly situated” (emphasis added and citation omitted).

Similarly, in Harris v. Wyman, 60 Misc.2d 1076, 304 N.Y.S.2d

423 (Sup. Ct., Nassau County 1969), the plaintiff brought an action for

herself and her minor children “and on behalf of all other persons residing in

this county similarly situated” seeking a judgment declaring a statute

unconstitutional, and sought a preliminary injunction enforcing the

defendants from enforcing the statute pending a final determination of the

action. The court granted the requested relief and issued an “order enjoining

the defendants from enforcing section 139-a against the plaintiff and all

other persons similarly situated residing in this county”. See also, Carnegie

v. H&R Block, Inc., 180 Misc.2d 67, 71, 687 N.Y.S.2d 528 (Sup. Ct., New

York County 1999) (the Court had authority to issue a preliminary

46
injunction controlling pre-certification contact between defendants, their

counsel and putative class members).

In RAM v. Blum, 533 F. Supp. 933 (S.D.N.Y. 1982), plaintiffs

commenced an action by filing a complaint with the Court, which named

only two defendants. The Court scheduled a hearing on plaintiffs’ motion

for class certification and a preliminary injunction, and, pending the hearing,

restrained defendants from implementing, “with respect to any member of

the plaintiff class”, the policy to which plaintiffs objected. Subsequently,

one of the defendants moved for an order joining another party as a

defendant, which was granted. The entry of the additional defendant made it

impossible for the parties to brief and argue plaintiffs’ class

certification/preliminary injunction motion prior to the expiration of the

TRO which had been previously issued by the Court. Accordingly, the

Court issued an order extending the TRO until it could hear oral argument

on and determine plaintiffs’ class certification/preliminary injunction

motion. This Court has similar broad powers with respect to the issuance of

a preliminary injunction.

47
 POINT VII

PLAINTIFFS’ CLAIMS ARE NOT

BARRED BY RES JUDICATA OR
COLLATERAL ESTOPPEL.

Defense counsel’s argument in the Joint Memorandum of Law,

that the claims presented in this case are barred under the doctrines of res

judicata and/or collateral estoppel, is totally devoid of merit. Among other

fatal defects, many plaintiffs, who were not parties to the actions which were

determined by the Court of Appeals, never had a “full and fair opportunity”

to litigate their claims. While the Buss Affirmation asserts at paragraph 5

that “five (5) of the named plaintiffs were parties” to the Court of Appeals’

decision in Congregation Yetev Lev D’Satmar, Inc. v. Kahana, 9 N.Y.3d

282 (2007), Mr. Buss nowhere states which five of the named plaintiffs were

purported parties. What is more, the caption of the Court of Appeals’

decision lists none of the plaintiffs here as parties. 7

In any event, only one plaintiff is needed for a class action

(CPLR 901). As plaintiffs were not all parties to the prior action and never

had a full and fair opportunity to litigate their claims, collateral estoppel and

res judicata are completely inapplicable (Staatsburg Water Co. v. Staatsburg

7
The Buss Affirmation at page 3 ambiguously refers to an “Exhibit J” which was
purportedly part of the “record” before the Court of Appeals in the appeal from the
Barasch decision. The Buss Affirmation does not annex a copy of that “Exhibit J”, and a
perusal of the Appendix submitted to the Court of Appeals in the Barasch case did not
reveal the “Exhibit J” to which Mr. Buss refers.

48
Fire Dist., 72 N.Y.2d 147, 531 N.Y.S.2d 876, 527 N.E.2d 754 [1988]; Liss

v. Trans. Auto Systems, Inc., 68 N.Y.2d 15, 505 N.Y.S.2d 831, 496 N.E.2d

851 [1986]; Tamily v. General Contracting Corp., 210 A.D.2d 564, 620

N.Y.S.2d 506 [3d Dept. 1994]; Levine v. Gross, 177 A.D.2d 290, 575

N.Y.S.2d 864 [1st Dept. 1991]).

In any event, even had certain plaintiffs been named parties, res

judicata is inapplicable for the further reason that the precise issue of

plaintiffs’ right to enforcement of their contractual right to burial in the

Cemetery, was never put in issue or determined in the prior actions (see e.g.,

Griffin v. Keese, 187 N.Y. 454 [1907]; North v. Murtaugh, 229 A.D.2d

1012, 645 N.Y.S.2d 189 [4th Dept. 1996] [res judicata was not applicable

because “precise issue” of whether plaintiff’s driveway encroached onto

defendant’s property was never determined in the prior action]).

Collateral estoppel, which requires an “identity of issue” in that

the prior action must have determined an issue which is decisive of the

claims in the present action (Staatsburg Water Co. v. Staatsburg Fire Dist.,

supra, 72 N.Y.2d 147) is also inapplicable. The Court of Appeals in the

appeal from the Barasch decision (9 N.Y.3d 282) simply declined to validate

either side’s election of trustees. In the appeal from Justice Rosenwasser’s

decision (9 N.Y.3d 297), the Court affirmed the decision of the Appellate

49
Division, Second Department which voided the purported transfer by the

Friedman faction of a one-half interest in the Cemetery property to KJ, upon

the ground that the record showed that the transfer was not in the best

interest of the Congregation. Neither of the Court of Appeals’ decisions

determined any issue which is decisive of plaintiffs’ claims herein with

respect to the enforcement of their contractual right to the burial plots they

purchased.

POINT VIII

PLAINTIFFS HAVE SATISFIED ALL

OF THE ELEMENTS FOR THE ISSUANCE
OF A PRELIMINARY INJUNCTION.

In their Joint Memorandum of Law, defendants distort the

“likelihood of success on the merits” element of the three-fold test for the

issuance of a preliminary injunction, by insinuating that a motion for a

preliminary injunction is the functional equivalent of a motion for summary

judgment. To the contrary, it is well settled that “the movant is not required

to show conclusively that he or she would prevail on the merits to obtain the

injunction….” (13 Weinstein-Korn-Miller, New York Civil Practice,

¶6301.05[2] p. 63-33 [2d Ed. LexisNexis]). All that is required at this

juncture is a showing of “likelihood of success on the merits” (see e.g.,

Terrell v. Terrell, 279 A.D.2d 301, 719 N.Y.S.2d 41 [1st Dept. 2001];

50
DeMartini v. Chatham Green, Inc., 169 A.D.2d 689, 565 N.Y.S.2d 712 [1st

Dept. 1991] [evidence demonstrating a likelihood of success on the merits

need not be conclusive]; McLaughlin, Piven, Vogel, Inc. v. W.J. Nolan &

Co., 114 A.D.2d 165, 498 N.Y.S.2d 146 [2d Dept. 1986]). Indeed, City of

Yonkers v. Dyl & Dyl Development Corp., 67 Misc.2d 704, 325 N.Y.S.2d

206 (S. Ct., Westchester County 1971), affd. 38 A.D.2d 691, 328 N.Y.S.2d

1023 (2d Dept. 1971), cited in defendants’ Joint Memorandum of Law,

states that “[I]t is not required of plaintiff to demonstrate as certainty that he

will prevail in the main action, a reasonable probability of ultimate success”

is sufficient]).

With respect to defendants’ argument regarding the required

evidentiary showing on a motion for a preliminary injunction, it is well

settled that admissible factual proof in affidavit form detailing the requisites

of movant’s underlying prima facie claim is sufficient, with actual

testimonial proof of the case left to a trial on the merits (Weinstein-Korn-

Miller, supra, at 63-35; Terrell v. Terrell, supra, 279 A.D.2d 301;

McLaughlin, Piven, Vogel, Inc. v. W.J. Nolan & Co., supra, 114 A.D.2d

165).

Here, plaintiffs’ affirmations detail their purchase of the

Certificates establishing the right to be buried in the Cemetery and the right

51
to erect a headstone on that grave, as well as their regular payment of dues

charged by the Congregation including amounts designated as payable for

the Burial Society. Plaintiffs describe in their affirmations the mailings sent

by certain defendants threatening that plaintiffs’ contractual rights to burial

would not be honored, and have annexed to their affirmations copies of that

harassing and abusive correspondence. What is more, plaintiffs have shown

that certain defendants have confronted members of the Congregation who

possess identical Certificates and whose relatives have died, and extorted

money from them as a precondition to allowing the deceased to be buried in

the Cemetery. The defendants have further prevented headstones from being

erected and have even desecrated a grave by causing the removal of an

erected headstone. Thus, at a minimum, plaintiffs have established a prima

facie case of breach of contract and interference with contractual relations.

Defendants’ Joint Memorandum of Law argues that the

preliminary injunction should be denied because defendants dispute some of

the underlying facts. Defendants ignore CPLR 6312(c ), which states that

“Provided that the elements required for the issuance

of a preliminary injunction are demonstrated in the
plaintiff’s papers, the presentation by the defendant
of evidence sufficient to raise an issue of fact as to
any of such elements shall not in itself be grounds
for denial of the motion. In such event the court
shall make a determination by hearing or
otherwise whether each of the elements required

52
 for issuance of a preliminary injunction exists.”

CPLR 6312(c ) was enacted in 1996 to make clear that the

existence of factual issues is not, without more, sufficient reason to deny a

preliminary injunction if the requisite elements for granting a preliminary

injunction could be established, and to repudiate case law which had held

that a preliminary injunction was not available in cases in which there were

sharply disputed factual issues (Weinstein-Korn-Miller, supra, ¶6312.08 at

p. 63-182). The cases cited at page 24 of the Joint Memorandum of Law,

which purportedly hold that a movant should be denied injunctive relief

where a factual conflict exists on the issues, were all decided prior to the

enactment of CPLR 6312(c) in 1996 and those cases have been repudiated

by the statute.

Plaintiffs have clearly shown irreparable harm if the

preliminary injunction is not granted. “Irreparable injury” has been defined

as an injury for which monetary compensation is not adequate. Melvin v.

Union College, 195 A.D.2d 447, 600 N.Y.S.2d 141 (2d Dept. 1992).

Defendants nowhere attempt to distinguish Pantel v.

Workmen’s Circle Arbetter Ring Branch, 289 A.D.2d 917, 735 N.Y.S.2d

228 (3d Dept. 2001), even though it was prominently highlighted in

plaintiffs’ moving Memorandum of Law at page 10. In Pantel, it was held

53
that the removal of footstones from a family burial plot constituted

irreparable harm, based on “[p]laintiffs’ allegation of mental and emotional

distress from the perceived desecration of their family graves….” The

irreparable harm absent an injunction in the present case is even more

apparent than in Pantel. The very real likelihood that the Certificates

authorizing plaintiffs to be buried in the Cemetery will not be honored, and

that plaintiffs will not be permitted to bury their family members in the

Cemetery without paying an arbitrary amount in extortion money, is already

causing severe emotional distress as attested to in plaintiffs’ affirmations. If

the threat is permitted to become a reality, the emotional distress will be

immeasurable. The fact that in one instance a tombstone has already been

removed by certain defendants underscores the need for an injunction.

Plaintiffs have also clearly shown that the balance of the

equities are in plaintiffs’ favor. The record shows that up until recently, the

Certificates for burial and Permits for headstones, whether issued to Satmar

Hasidim by the Congregation or by the KJ Congregation, have all been

honored by the defendants, premised on payment of dues and fees to the

congregation of which the individual is/was a congregant. Members of all of

the various entities have been buried in the Cemetery without incident.

These members have also been permitted to erect tombstones on the graves

54
of their family members. Preserving this status quo while the litigation is

pending will harm no one. Allowing the defendants to trample on the

plaintiffs’ contractual and statutory rights will result in a wrong which can

never be righted.

Defendants have nowhere shown why they are entitled to rely

upon case law dealing with a “public entity” which is “proceeding with a

project undertaken for the general welfare” of the public (see Joint Mem. Of

Law, pp. 25-26). In contrast, in New York, “Preliminary injunctions and

temporary restraining orders have been granted in cases involving contract

rights of all descriptions” and “where a party breaches or threatens to breach

a duty under an agreement, an injunction may be available, provided the

usual prerequisites have been satisfied” (see Weinstein-Korn-Miller, supra,

¶6301.11[1] p. 63-107).

Defendants’ Joint Memorandum of Law asserts that plaintiffs’

application is defective because they are purportedly required to submit an

undertaking as a prerequisite for obtaining preliminary relief. However,

CPLR 6312(b) simply provides that the Court, prior to issuing the

injunction, should fix the amount of any undertaking that is to be posted by

the plaintiff. The amount of the undertaking is in the court’s discretion, but

the amount of the undertaking must be “rationally related” to the defendant’s

55
potential damages should the court’s grant of the preliminary injunction later

prove to have been unwarranted. Lelekakis v. Kamamis, 303 A.D.2d 380,

755 N.Y.S.2d 665 (2d Dept. 2003); Clover St. Assocs. v. Nilsson, 244

A.D.2d 312, 665 N.Y.S.2d 537 (2d Dept. 1997). The amount of the

undertaking cannot be based upon speculation. Lelekakis, supra; 7th Sense,

Inc. v. Liu, 220 A.D.2d 215, 631 N.Y.S.2d 835 (1st Dept. 1995).

Accordingly, the Court should carefully consider a defendant’s potential

damages in order to fix the amount of the undertaking (Weinstein-Korn-

Miller, supra, ¶6312.03[4], p. 63-164).

Here, defendants have utterly failed to demonstrate to this

Court any potential damages they might sustain if a preliminary injunction is

issued in this case. This Court therefore has no “rational basis” upon which

to fix the amount of any undertaking. As such, defendants’ argument

regarding plaintiffs’ alleged failure to post an undertaking is devoid of

foundation in either fact or law. Should defendants show a rational and non-

speculative basis for determining any alleged damages, and allow us the

opportunity to respond, an appropriate undertaking can at that time be

posted.

56
 CONCLUSION

For all the reasons set forth herein and in plaintiffs’ moving and

reply papers, this Court should issue a preliminary injunction preserving the

status quo, and deny defendants’ cross-motions to dismiss.

Dated: New York, New York

February 17, 2009

HERZFELD & RUBIN, P.C.

By: _______________________
David B. Hamm
Attorneys for Plaintiffs
40 Wall Street
New York, New York 10005
(212) 471-8500

57