Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
COUNTY OF KINGS
- against -
Index No.: 33481/08
CYL CEMETERY, INC., CONGREGATION YETEV LEV
D’SATMAR, INC., CHEVRE KADISHE D’SATMAR,
a Division of CONGREGATION YETEV LEV D’SATMAR
OF KIRYAS JOEL, INC., CENTRAL CONGREGATION
YETEV LEVD’SATMAR, INC., RABBI EZRIEL GLUCK,
JOSEPH WEISS, MOSES WITRIOL, NEW YORK STATE
POLICE, DAVID MARKOWITZ, CHAIM ELIEZER GROSS,
JOEL KAUFMAN, DAVID ECKSTEIN, ELIAS HOROWITZ,
and SHLOMO WERTZBERGER,
Defendants.
2
TABLE OF CONTENTS
POINT I .......................................................................................................................................... 6
THE KAHAN FACTION HAS FAILED TO ESTABLISH THAT THE PUTATIVE
CERTIFICATE HOLDERS HAVE AN INALIENABLE CONTRACT RIGHT TO BURIAL IN
THE KJ CEMETERY REGARDLESS OFANY CHANGE IN THEIR MEMBERSHIP
STATUS ......................................................................................................................................... 6
2. Given The Membership Issues Which Lie At The Heart Of This Controversy, The
Precedential Authorities Invoked by The Kahan Faction Are Inapposite Herein ................ 19
POINT II ....................................................................................................................................... 24
THE WITHIN CONTROVERSY IS NOT RIPE FOR JUDICIAL DETERMINATION AND
PLAINTIFFS CLEARLY LACK STANDING IN THE ABSENCE OF ANY ACTUAL
INJURY ........................................................................................................................................ 24
POINT III...................................................................................................................................... 26
PLAINTIFF’S CLAIMS ARE BARRED UNDER THE DOCTRINES OF RES JUDICATA
AND/OR COLLATERAL ESTOPPEL........................................................................................ 26
POINT IV...................................................................................................................................... 29
THE KAHAN FACTION’S CLAIM TO POSSESS ACTUAL AUTHORITY TO ISSUE THEIR
SELF-CREATED CERTIFICATES IS BASELESS AND IT IGNORES THE FACT THAT
THE COURTS EXPRESSLY DECLINED TO ENDORSE EITHER FACTION IN THE PRIOR
ELECTION CASE........................................................................................................................ 29
POINT V....................................................................................................................................... 30
NEITHER PLAINTIFFS NOR THE KAHAN FACTION HAS STANDING TO CHALLENGE
THE INTERNAL CONVEYANCE OF THE CEMETERY BETWEEN TWO
CONGREGATION ENTITIES 30
i
POINT VI...................................................................................................................................... 32
PLAINTIFFS ARE NOT ENTITLED TO INJUNCTIVE RELIEF AS THEY SEEK JUDICIAL
ENFORCEMENT OF AN EXECUTORY CONTRACT IN A NON-JUSTICIABLE
CONTROVERSY AND FAIL TO ESTABLISH ]THAT ANY MEMBER OF THE
CONGREGATION HAS BEEN DENIED BURIAL IN THE KJ CEMETERY ........................ 32
CONCLUSION............................................................................................................................. 36
ii
PRELIMINARY STATEMENT
The on-going leadership dispute in the Satmar Hasidic community has been the subject of
numerous litigations commencing in 2001 and continuing through the present. The within action
is another of the myriad battles currently being waged by two factions within the Satmar
community over which of the two sons of their late spiritual leader, Grand Rabbi Moses
Teitelbaum, is his rightful successor [i.e., his elder son, Grand Rabbi Aron Teitelbaum, or his
younger son, Rabbi Zalman Teitelbaum]. In accordance with the Torah and the wishes of the
late Grand Rabbi Moses Teitelbaum, which provides that the elder son is the first in the line of
succession, Grand Rabbi Aron Teitelbaum is recognized as the rightful successor of his late
father and it is he who is the leader of the worldwide Satmar movement. The younger son, Rabbi
Zalman, whose supporters have been labeled “the Kahan faction” in this and other litigations,
seeks to wrest the title of Grand Rabbi from his older brother, employing a series of power plays
It is truly beyond reasonable cavil that Plaintiffs herein are the Kahan faction, as five of
the nine named Plaintiffs herein were actually named as parties in the prior election controversy
and they are represented by the same attorneys [i.e., Herzfeld & Rubin, P.C.] who appeared on
behalf of the Kahan faction in the election controversy. It is disingenuous and misrepresentative
for the Kahan faction to represent otherwise (see, Affirmation of David B. Hamm, Esq., dated
1
One need only compare the captions in the election cases (wherein the five Plaintiffs claimed to have been elected
to the Kahan Board) with the certificates that they have proffered herein to see that, in fact, Plaintiffs are the Kahan
faction. Specifically, Plaintiff Wilmos Friedman was a defendant in the election case prosecuted under index
number 41256/01, having been sued under his Hebrew name, Zev Friedman, which is the name reflected on the
certificate offered herein (see, Affirmation of Wilmos Friedman, dated December 10, 2008, Exhibit A [“Honorary
Member Certificate”]). Plaintiff Herman Kahan was a defendant in the election case prosecuted under index
number 41256/01, having been sued under his Hebrew name, Zvi Elimelich Kahan, which is the name reflected on
the certificate offered herein (see, Affirmation of Herman Kahan, dated December 10, 2008, Exhibit A [“Honorary
Member Certificate”]). Plaintiff Ervin Rosner was a defendant in the election case prosecuted under index number
1
With the exception of the two matters currently pending before Your Honor, the prior
litigations between the Satmar factions have been dismissed on non-justiciablility grounds, as the
adjudication of the claims presented would require impermissible judicial inquiries into religious
doctrine (see, Matter of Congregation Yetev Lev D’Satmar, Inc. v. Kahana, 2004 N.Y. Slip Op.
51515(U), at p. 13, supra, aff’d 31 AD3d 541 [2d Dept., 2006], aff’d 9 NY3d 282 [2007]; see
also, Congregation Yetev Lev D’Satmar of Kiryas Joel, Inc. v. Congregation Yetev Lev
D’Satmar, Inc., 31 AD3d 480 [2d Dept., 2006], aff’d 9 NY3d 297 [2007]; Matter of Meisels, 10
Misc3d 659 [Sup Ct., Kings Co., November 10, 2005]). Such is precisely the conclusion that is
mandated in the matter at bar, where we see that the Satmar leadership dispute is now centered
upon the Burial Society’s governance and administration of what is undoubtedly the most holy of
The hallowed nature of the KJ Cemetery stems from the fact that the founder of the
Satmar movement, the Grand Rabbi Joel Teitelbaum, is interred there, as is his nephew and
successor, Moses Teitelbaum. The Grand Rabbi’s position at the very apex of the Satmar
his extensive analysis of the Grand Rabbi’s hallowed position in the Satmar community, paying
homage to the Grand Rabbi (also referred to as the “Grand Rebbe”) and acknowledging him as
the movement’s incontrovertible leader is truly existential, as “the sine qua non for being labeled
28989/01, having been sued under his Hebrew name, Israel S. Rosner, which is the name reflected on the certificate
offered herein (see, Affirmation of Ervin Rosner, dated December 14, 2008, Exhibit A [“Honorary Member
Certificate”]). Plaintiff Herman Landau was a defendant in the election case prosecuted under index number
41256/01, having been sued under his Hebrew name, Yida Hersh Landau, which is the name reflected on the
certificate offered herein (see, Affirmation of Herman Landau, dated December 14, 2008, Exhibit A [“Honorary
Member Certificate”]). Plaintiff Moses Speilman was a defendant in the election case prosecuted under index
number 41256/01, having been sued under his Hebrew name, Sufra Spielman, which is the name reflected on the
certificate offered herein (see, Affirmation of Moses Spielman, dated December 14, 2008, Exhibit A [“Honorary
Member Certificate”]).
2
with the appellation Satmar” (see, Matter of Congregation Yetev Lev D’Satmar, Inc. v. Kahana,
2004 N.Y. Slip Op. 51515(U), at p. 2 [Sup Ct. Kings County Oct. 22, 2004], aff’d 31 AD3d 541
[2d Dept., 2006], aff’d 9 NY3d 282 [2007]). Upon review of the Congregation’s By-Laws,
This Article makes it abundantly clear that the entire purpose of the existence of Satmar
is to unite like minded individuals in conducting themselves and their lifestyles in a
manner that meets with the approbation of the Grand Rebbe. Defiance of the Grand
Rebbe would seem to constitute blasphemy and contradict the very purpose for which the
sect was founded * * * This leaves no doubt that in every aspect of anything Satmar, the
final arbiter is the Grand Rebbe himself. His word is supreme from which there is no
appeal. His decision is binding upon every member [emphasis in original].2
As the final resting place for both the founder of the Satmar movement and his successor,
the holiness of the KJ Cemetery grounds, and its central importance to the Satmar faith, is
incapable of being overstated. As established in the Reply Affidavit of Chaim Gross, President
of the Burial Society, if an individual has not: [1] led “a just and righteous life in accordance
with the Torah;” and [2] “faithfully followed the teachings of the Satmar Grand Rabbi,” then
“Judaic law precludes their burial in the same holy cemetery which holds the remains of the
deceased Satmar Grand Rabbis” (see, Reply Affidavit of Chaim Gross, dated February 26, 2009
[“Gross Reply Affidavit”], at ¶ 3). The evidence in this regard is abundant in this record and
uncontroverted by the Kahan faction, whose nefarious goals are sought to be advanced by
Plaintiffs herein.
In fact, in the Kahan faction’s 2004 submissions to Justice Barasch, made in furtherance
of their prior unavailing request for judicial intervention in the administration of the KJ
2
The fact that the Grand Rabbi is ultimately “the final arbiter” is of particular moment in this controversy, as the
records of the Congregations, dating from 1987, establish that in the event there is any dispute regarding “all issues
regarding the cemetery, “[t]he Grand Rabbi will decide the matter” (see, Reply Affidavit of Chaim Gross, dated
February 26, 2009 [“Gross Reply Affidavit”], Exhibit A [Minutes of September 22, 1987 meeting]). Accordingly,
the dispute which has been manufactured by the Kahan faction with the creation and sale of their so-called “Burial
Certificates” should be determined in accordance with the internal mechanism established by these very parties for
resolving any dispute involving the KJ Cemetery. Clearly, it was the intention of the parties that any disputes
concerning these hallowed grounds should be determined internally, and not by the secular courts.
3
Cemetery, the Kahan faction specifically stressed that the Burial Society, as the organization
responsible for performing pre-burial, burial and post-burial services, is responsible for “one of
the most sacred institutions and practices of the Satmar community” (see, Affirmation of Jeffrey
D. Buss, Esq., dated January 26, 2008 [“Buss Affirmation”], at Exhibit I [Letter from Scott
Mollen, Esq., counsel for the Kahan faction, dated April 6, 2004]). In this vein, Sol Perlstein, on
behalf of the Kahan faction, submitted an Affirmation to Justice Barasch which further
represented: “The Congregation * * * does not guarantee burial rights in the Kiryas Joel
cemetery to its membership due to the limited space available there and the honor associated
with being buried in close proximity to the previous Grand Rebbe” (see, Buss Affirmation,
Having failed in that prior litigation to win control over the KJ Cemetery,
notwithstanding their vacuous claim to have been supported by “[t]he vast majority of the
Congregation membership” (see, Buss Affirmation, Exhibit I [Perlstein Affirmation]), the Kahan
faction has redoubled its efforts. That is, the Kahan faction has issued its own self-created
“Burial Certificates” and requests that this Court ignore the patent ecclesiastical issues and
determine that these documents somehow imbue them with a permanent, inalienable right to a
future burial in the hallowed ground alongside the founder and spiritual leaders of the Satmar
movement.
Assuming arguendo that this request for relief is ripe for adjudication (which it clearly is
not), the Kahan faction’s present gambit conveniently ignores the fact that only those members
of the Satmar Congregation who meet and maintain the specific and rigorous religious standards
for membership, may be buried in the KJ Cemetery (see, Gross Reply Affidavit, at ¶ 3).3 Neither
3
Significantly, although in moving for dismissal Defendants plainly argued that Plaintiffs’ claims “are not ripe for
judicial determination” (Defendants’ Joint Memorandum of Law, dated January 26, 2009), the Kahan faction has
4
the valid certificates historically issued, recorded and maintained by the Burial Society, nor the
new Certificates created by the Kahan faction in a stark departure from Satmar tradition and
As found by Justice Barasch, who rejected the Kahan faction’s demands concerning the
KJ Cemetery and was ultimately upheld by both the Appellate Division and the New York State
Court of Appeals, determining whether an individual has met and maintained the specific and
rigorous religious standards for membership in the Congregation (and thus burial in the KJ
Cemetery) “requires ecclesiastical and not secular prowess” (Matter of Congregation Yetev Lev
D’Satmar, Inc. v. Kahana, 2004 N.Y. Slip Op. 51515(U), at p. 13, supra, aff’d 31 AD3d 541 [2d
Dept., 2006], aff’d 9 NY3d 282 [2007]). Since burial in the KJ Cemetery ultimately must rest
upon determinations of membership and/or expulsion, which are clearly religious in nature, it is
respectfully submitted that in the words of Justice Barasch, this Court should “decline to don a
rabbinical Shtreimal and ecclesiastical garb in order to make those determinations” (Matter of
Congregation Yetev Lev D’Satmar, Inc. v. Kahana, 2004 N.Y. Slip Op. 51515(U), at p. 14, supra
aff’d 31 AD3d 541 [2d Dept., 2006], aff’d 9 NY3d 282 [2007]).
conveniently ignored this argument in its reply submission (see, Plaintiffs’ Reply Memorandum of Law, dated
February 17, 2009). As such, Plaintiffs, who clearly seek what amounts to an advisory opinion regarding future
eventualities, wholly fail to explain how the within controversy is ripe for adjudication regardless of the fact that
every Plaintiff is alive and no Plaintiff has been denied access to any claimed burial rights.
5
REPLY ARGUMENT
POINT I
THE KAHAN FACTION HAS FAILED TO ESTABLISH THAT THE PUTATIVE
CERTIFICATE HOLDERS HAVE AN INALIENABLE CONTRACT RIGHT TO
BURIAL IN THE KJ CEMETERY REGARDLESS OF ANY CHANGE IN THEIR
MEMBERSHIP STATUS
In Point I of its Reply Memorandum of Law, the Kahan faction contends that the within
controversy is justiciable. In support, they posit that the controversy may be determined based
upon neutral principles of law and the Court “need not delve into any religious issue or criteria in
order to determine the issues raised by [the Kahan faction’s] claims” (Plaintiffs’ Reply
Memorandum of Law, dated February 17, 2009 [“Reply Memorandum”] at p. 5). The linchpin
of the Kahan faction’s argument is the dubious notion that one need not be a member of the
Satmar Congregation in order to be buried in the KJ Cemetery and, as such, Plaintiffs hold an
inalienable contract right “to be interred in the Cemetery” (Reply Memorandum at p. 5).
Therefore, the Kahan faction concludes, the ecclesiastical question of membership need not be
It is respectfully submitted that the Kahan faction’s contentions in this regard, which
strive to sublimate the membership issues which lie at the heart of this controversy (as well as
the issues concerning the authority to issue the “burial certificates” and otherwise act on behalf
of the Congregation in matters relative to the Burial Society), are patently devoid of merit.
Initially, it must be noted that to the extent the adjudication of the Kahan faction’s claims
distills to a question of membership, this clearly renders the controversy non-justiciable. Indeed,
the Kahan faction, which has not even attempted to argue otherwise, has expressly conceded this
truth.
6
In Matter of Congregation Yetev Lev D’Satmar, Inc. v. Jacob Kahana (9 NY3d 282
[2007]), the Court of Appeals expressly recognized, in declining to adjudicate the election
controversy between the two competing factions [“Election Case”], that the question of
membership in a religious society is a core ecclesiastical matter which cannot be resolved by the
courts without trenching upon the First Amendment (id., at 287; see also, Park Slope Jewish Ctr.
v. Stern, 128 AD2d 847 [2d Dept., 1987], lv. dismissed 70 NY2d 746 [1987]; Kissel v. Russian
Orthodix Greek Catholic Holy Trinity Church of Yonkers, 103 AD2d 830 [2d Dept., 1984];
Waller v. Howell, 20 Misc 236 [Sup Ct., Orange Co., 1897]). Indeed, the power to control
church membership is ultimately the power to control the church, and it is an area where the
courts should not become involved – regardless of whether the church is a congregational
Church, Inc., 167 NC App 324, app. dismissed 359 NC 326, cert denied 546 US 819 [2005]).
In Matter of Congregation Yetev Lev D’Satmar, Inc. v. Jacob Kahana (9 NY3d 282,
supra), the Court of Appeals recognized that the election challenge concerning the two
competing factions in the Satmar leadership dispute hinged upon the question of whether
President Berl Friedman had been expelled from the Congregation (thereby ostensibly opening
the door for the Kahan faction to hold their own sham election). Concluding that this presented a
non-justiciable membership issue, the Court reasoned, in pertinent part as follows (Matter of
Congregation Yetev Lev D’Satmar, Inc. v. Jacob Kahana, 9 NY3d 282, 288, supra):
7
inevitably calls into question religious issues beyond any membership criteria found in
the congregation’s bylaws [citation omitted].
Contrary to petitioner’s position, Berl Friedman’s religious standing within the
Congregation is essential to resolution of this election dispute. * * * With such
membership issues at the center of this election dispute, matters of an ecclesiastical
nature are clearly at issue. These particular issues must be resolved by the members of
the congregation, and cannot be determined by this Court.
Significantly, early in the proceedings in the matter at bar, counsel for the Kahan faction
expressly recognized that the within controversy is non-justiciable to the extent that membership
issues are engendered by the competing claims. Indeed, Ed Rubin, Esq., counsel for the Kahan
“because of the bylaws phrased the way they are” (see, Transcript of Proceedings, dated
December 16, 2008, at pp. 15-16). Mr. Rubin expanded upon this admission by noting that
membership is “based upon who is religious or observant or sufficiently something or the other
from the point of view of the current administration, and where you have two administrations
these questions can’t be resolved * * *” (Transcript of Proceedings, dated December 16, 2008, at
p. 16).4
Mindful of the clarity with which the Courts have spoken on this issue, the Kahan faction
endeavors to remove the membership question from this controversy by asserting that Plaintiffs
have an inalienable contractual and/or property right to burial in the KJ Cemetery upon the future
eventuality of their death (Reply Memorandum of Law at 9). As demonstrated below, however,
the record clearly establishes that attaining and maintaining membership in the Congregation,
which necessarily engenders non-justiciable questions regarding whether the individual has
4
Likewise, during this same discussion this Court, clearly mindful of the Court of Appeals’ determination in the
Satmar Election Case, gave voice to the truth that undoubtedly it would be impermissible for the Court to determine
who is a member of the Congregation and who is not a member (Transcript of Proceedings, dated December 16,
2008, at p. 19).
8
followed the Torah and the teachings of the Satmar Grand Rabbi, is a pre-condition to burial in
members of that faith. Restrictions which impose against the burial of any person who is not, at
the time of his death, a member in good standing of the religious organization controlling the
cemetery, are enforceable, even as against purchasers of lots” (14 Am Jur 2d, Cemeteries § 38;
see also, RCL § 7 – providing that a religious corporation may sell and convey lots in a cemetery
for burial purposes, subject to such conditions and restrictions as may be imposed “by the rules
and regulations adopted by such corporation; McGuire v. Trustees of St. Patrick’s Cathedral, 54
Hun 207 [1st Dept., 1889], 7 NYS 345, 351-352 – in a case where the church refused burial of
the purchaser of burial rights, the appellate court held that: [1] the purchaser merely possessed a
revocable license; and [2] the question of whether an individual was in communion with the
church at the time of death was “solely for the determination of the church authorities”).
“A person who secures the privilege of burial in a cemetery subject to the charge and
control of a religious organization takes the right subject to the rules of such organization, which
may limit the right of interment to its members or to those who die in communion with it. Even
those who are members of the congregation have no right to burial except such as is conferred by
the church laws” (14 CJS, Cemeteries § 27; see also, RCL § 7; McGuire v. Trustees of St.
5
The Kahan faction’s charge that RCL § 7 does not provide that burial in a private religious cemetery is “subject to
the rules, regulations, and traditions of the religion” (Reply Memorandum at 44, n. 5) represents a meaningless,
hyper-technical parsing of the statute’s language. That is, while the exact phrase “rules, regulations and traditions of
the religion” may not be found within said statute, it is clear that the statute expressly provides that the sale of burial
rights by a religious corporation may be “subject to such conditions and restrictions as may be imposed by * * * the
9
The McGuire case concerned the denial of burial rights in a religious cemetery to one
who had earlier in life purchased a burial lot but was no longer in communion with the church.
The court therein expressly concluded that the question of whether an individual was in
communion with the church at the time of death was “solely for the determination of the church
authorities.” As noted in Waller v. Howell (20 Misc 236, 238 [Sup Ct., Orange Co., 1897]),
which has occasion to analyze and apply McGuire (supra), “the right of burial in a lot purchased
by the deceased was refused, and no civil right was considered to be involved in the question of
communion upon which the right of burial depended” (Waller v. Howell 20 Misc 236, 238,
supra).6
Here, the KJ Cemetery is a private religious cemetery that is neither open to the general
public nor to individuals who merely subscribe to the Jewish faith. It is an Orthodox Jewish
cemetery reserved only for those members of the Satmar sect of Chassidim who have lived their
lives in an honorable fashion befitting interment in the same holy ground as the movement’s
founder and its supreme spiritual leaders. Contrary to the Kahan faction’s claim that Plaintiffs
are “lot owners” (Reply Memorandum at p. 43), the Congregation does not offer identified burial
plots for sale to its members, nor does it grant property deeds to any specific cemetery lots (see,
Brach v. Congregation Yetev Lev D’Satmar, Inc., CV-93-4606(CPS) [EDNY, Sept. 9, 1993],
aff’d 57 F3d 1064 [2d Cir., 1995], cert denied 516 US 1173 [1996] – finding that the KJ
Cemetery was a private religious cemetery and, further, that the Congregation “does not offer
burial plots for sale and does not allow burial other than as a death benefit to members in good
rules and regulations adopted by such corporation.” As such, the “point” made by the Kahan faction on page 44, n.
5 of its Reply Memorandum amounts to a vacuous exaltation of style over substance.
6
It bears noting that the Waller case was cited by the Second Department in Mays v. Burrell (124 AD2d 714 [2d
Dept., 1986]), wherein that court declined to interfere with matters concerning the internal affairs of a church.
Moreover, the Waller case was cited by the Kahan faction three times in their brief to the Court of Appeals in the
election case (see, 2007 WL 4331720) and four times in their briefs to the Second Department (see, 2005 WL
4715774; 2006 WL 3830871; 2006 WL 3830876).
10
standing”).7 Significantly, in defending the litigation in Brach (supra), the Congregation
expressly argued that it “does not sell burial plots in the [KJ] cemetery” and, further, no person
buried has either “a deed” or “title” to a burial plot (Brach v. Congregation Yetev Lev D’Satmar,
Given the fact that the Congregation merely offers “a death benefit to members in good
standing” (Brach v. Congregation Yetev Lev D’Satmar, Inc., supra), and it clearly has never sold
burial plots or conveyed “title” to any such “lot” as contemplated by RCL § 8, the Kahan
faction’s reliance upon that statute in pleading their second cause of action is misplaced.
Moreover, contrary to the Kahan faction’s contentions, the certificates issued by the
Burial Society do not “constitute valid contracts” (Jacobowitz Affirmation at ¶ 19), as pleaded in
their first cause of action, and they certainly do not confer any possessory or contractual rights in
any particular “cemetery plots,” as claimed in their Reply Memorandum (Reply Memorandum
at p. 9).8 Far from constituting a deed or title to cemetery lots, the certificates historically issued
in the Satmar community are “Honorary Member Certificates,” which merely establish that at the
time of issuance the holder is a “member in our holy association to be entitled to a burial plot for
himself after he passes away” so long as he remains a member (and maintains the religious
determined by the Burial Society (see, e.g., Affirmation of Moses Spielman, dated December 14,
2008, Exhibit A [“Honorary Member Certificate”]). The Kahan faction cannot alter these
immutable ecclesiastical truths by the expedient act of creating their own burial certificates and
7
A copy of the Eastern District’s Decision in Brach v. Congregation Yetev Lev D’Satmar, Inc., is annexed as
Exhibit E to the Buss Affirmation.
8
In fact, while their Reply Memorandum of Law represents that Plaintiffs have purchased “cemetery plots” in which
they have an immediate and inalienable interest “as lot owners” (Reply Memorandum at p. 9, 43), the Kahan faction
has already recognized that it is the Burial Society which, upon death, designates the particular place for burial
(Affirmation of David B. Hamm, Esq., dated February 16, 2009, at p. 10, n. 6).
11
then dubiously arguing that once a certificate is issued the question of membership becomes
Laws, and they include, inter alia, [1] Sabbath keeping; [2] non-transgression of the Holy Torah;
and [3] education of one’s children in the ways of the Holy Torah (see, Buss Affirmation,
Members must be expelled from the congregation if the following cases have been
determined: a. If he is intentionally desecrating the Sabbath or he intentionally
transgresses the commandments, b. If he declines to appear before a Torah Court or abide
by its verdict. c. If his wife appears in public with her hair exposed. d. If he works against
the interests of the congregation.
Clearly, Satmar membership is based upon a profoundly religious test, only a portion of
which is explicitly set forth in the By-Laws. The balance is set forth in Judaic law and tradition,
as interpreted by the Satmar Grand Rabbi (see, Gross Reply Affidavit, at ¶ 17).
Eckstein and Elias Horowitz, all of whom are members of the Burial Society, membership thus
requires an individual to honor the torah and the teachings of the Satmar Grand Rabbi, and to
live consistent with those principles (see, Joint Affirmation of Chaim Gross, Schlomo
Wertzberger, David Eckstein and Elias Horowitz, dated January 27, 2009 [“Joint Affirmation”]
at ¶ 6). According to these esteemed members of the Burial Society, honoring the Torah and the
teachings of the Grand Rabbi “is a continuing requirement, and an individual can lose their
membership if they fail to live a righteous life, in accordance with the Torah, as interpreted by
12
our Grand Rabbi” (Joint Affirmation at ¶ 6).9 Moreover, “[i]f a person is not a bona fide member
of the religious organization, they have no right to be buried in the religious organization’s
The standards for attaining and maintaining “membership” in the Congregation are
clearly religious in nature, requiring assessments of one’s religiosity and judgments as to whether
one lives his life in a “Torah true” fashion. Indeed, such conduct judging is a religious exercise
privilege, not a property or contract right, and it can be taken away or forfeited based upon the
manner in which one lives his life (see, 66 Am Jur 2d, Religious Societies § 19 -- “The relations,
rights, and obligations arising from membership in a religious society are to be determined
according to the constitution, rules, or bylaws of the society * * * because one who becomes a
congregational discipline, with an implied consent to its government, and is bound by its laws,
usages, customs, and principles. Membership in a church is not a property right;” see also,
Temple Beth AM v. Tanenbaum, 6 Misc3d 2373 [Dist Ct., Nassau Co., Nov. 1, 2004], 2004 NY
9
Given the continuing nature of the religious requirements for membership, and the prospect of future expulsion, the
Kahan faction’s argument that Plaintiffs were recognized as members in mass mailings which were recently sent by
the Congregation (see, Reply Memorandum of Law, Point IV), is truly of no moment herein. First, said mass
mailing was sent to some 20,000 individuals across the world, including to both members and non-members who are
connected to the Satmar community. Receipt of that mass mailing neither confirms nor establishes membership.
More important, even if Plaintiffs were members, or continue to be members at the present time, such does not
negate the fact that they remain subject to expulsion, loss of membership and loss of burial privileges in the event
they fail to maintain the religious standards for membership. Indeed, in the prior Election Case the Kahan faction
claimed that the President of the Congregation, Berl Friedman, a revered elder in the Satmar community, had been
expelled for failing to maintain the “religious criteria” for membership (Matter of Congregation Yetev Lev
D’Satmar, Inc. v. Jacob Kahana, 9 NY3d 282, 288, supra).
13
In fact, the courts have already determined on several occasions that expulsion from the
the loss of access to the KJ Cemetery (see, Brach v. Congregation Yetev Lev D’Satmar, Inc.,
CV-93-4606(CPS) [EDNY, Sept. 9, 1993], aff’d 57 F3d 1064 [2d Cir 1995], cert denied 516 US
1173 [1996];10 Weinstock v. Congregation Yetev Lev D’Satmar, 5798/92 [Sup Ct., Orange Co.,
August 24, 1992];11 see also, Matter of Congregation Yetev Lev D’Satmar, Inc. v. Jacob
With reference to the issue of burial in the KJ Cemetery, Article 11 of the By-Laws,
entitled “Burial Society” specifically contemplates that burial in the holy KJ Cemetery is
contingent upon membership (see, Article 11 [d] – “in the case of death, every member is taxed
by 50 cents [emphasis supplied];” Article 11 [h] – referring to the “burial costs of a member who
As affirmed by Joseph Weiss, the Secretary of the Burial Society who has served the
Burial Society for over 30 years, the Burial Society and the Congregation evaluates whether the
certificate holder “has continued in membership and observance of the tenants of the Holy torah
before such individual’s body could be interred at this most holy site” (Affirmation of Joseph
Weiss, dated January 26, 2009 [“Weiss Affirmation”] at ¶ 49). Mr. Weiss clearly establishes that
the question of whether an individual may be buried in the KJ Cemetery is not simply one of
10
In Brach (supra), a case wherein a group of dissidents who were expelled after contesting the succession of the
late Grand Rabbi Moses Teitelbaum unsuccessfully sought access to the KJ Cemetery, the Congregation specifically
argued to the U.S. Supreme Court as follows (Brach v. Congregation Yetev Lev D’Satmar, Inc., Brief in Opposition
to Petition for Writ of Certiorari, 1996 WL 33439181): “If this Court were to reverse the decision of the courts
below, the District Court would be forced to determine whether Petitioner had the right to contest the succession of
the present Rebbe, whether the Satmar Congregation had the right to expel Petitioner under the laws of the Jewish
religion and the practices of the Satmar Hasidic community, and questions pertaining to the internal discipline of the
Satmar Congregation. These questions cannot be separated from the controversy concerning access to the
cemetery.” Clearly, these words and the truths they represent, which squarely contradict the position advocated by
the Kahan faction, echo resoundingly herein.
11
A copy of the Decision in Weinstock v. Congregation Yetev Lev D’Satmar (supra), is annexed as Exhibit F to the
Buss Affirmation.
14
“verifying payment of all dues, fees, pledges, donations and burial expenses” (Weiss Affirmation
at ¶ 49). Indeed, contrary to the Kahan faction’s dubious claim, burial in the KJ Cemetery “is
Significantly, Mr. Weiss’s affirmations are corroborated by the Kahan faction’s own
moving papers, which contain three published notices, dating from 1987, 1992 and 1998, which
expressly and unequivocally establish membership as a criteria for burial in the KJ Cemetery
(see, Affirmation of David B. Hamm, Esq., dated December 15, 2008, at Exhibit 11 [Notices]).
While the Kahan faction contends that membership at the time a Certificate is issued is
all that is required for burial in the KJ Cemetery (see, Reply Memorandum at 5), the evidence
Article 10 of the By-Laws, entitled “Rights and Obligations of the Members,” provides
that “Members who resign or are expelled from the congregation have no claims against the
congregation and all paid contributions, under whatever name they are, shall not be refunded”
(Buss Affirmation, Exhibit D [By-Laws]). The record clearly shows that this includes the
rescission of any burial certificates issued prior to expulsion (see, Gross Reply Affidavit,
Exhibits C-E [Notices concerning termination of membership and consequent loss of burial
privileges]).
The record contains numerous documents, including documents emanating from Jacob
Schonfeld, who was Secretary of the Congregation prior to the schism, and an avid supporter of
the Kahan faction following the schism (see, Gross Reply Affidavit at ¶ 20), which establish that
the loss of membership renders any Certificates previously issued “null and void” (see, Gross
15
Moreover, these Notices establish that rescission of the Certificates is required because
“in no event can a non-member” be buried in the KJ Cemetery (see, Gross Reply Affidavit,
Exhibits D). Significantly, some of these documents, which unequivocally memorialize that a
loss of one’s membership in the Congregation results in the automatic and concomitant loss of
any privilege to be buried in the KJ Cemetery, were submitted by the Kahan faction in
connection with the prior litigation involving the KJ Cemetery (see, Gross Reply Affidavit,
Exhibits C).
At bottom, it is axiomatic that “religious organizations have the First Amendment right to
discipline or expel members” (Brach v. Congregation Yetev Lev D’Satmar, Inc., CV-93-
4606(CPS) [EDNY, Sept. 9, 1993], aff’d 57 F3d 1064 [2d Cir 1995], cert denied 516 US 1173
[1996]; see also, Paul v. Watchtower Bible and Trust Society of New York, Inc., 819 F2d 875
[9th Cir., 1987], cert denied 484 US 926 [1988]; Grunwald v. Bornfreund, 696 FSupp 838
[EDNY, 1988]).
The denial of religious burial rites to expelled Satmars is thus clearly in accord with RCL
§ 7 and the common law (see, RCL § 7; 14 Am Jur 2d, Cemeteries § 38; 14 CJS, Cemeteries §
27; see also, McGuire v. Trustees of St. Patrick’s Cathedral, supra). Further, in accord with the
wealth of documentation in this record, including the By-Laws of the Congregation, the denial of
religious burial rites in the same hallowed ground as the deceased Grand Rabbis represents a
known and historical ecclesiastical sanction imposed under Jewish Law upon those who fail to
adhere to the Holy Torah (see, Kupperman v. Congregation Nusach Sfard of Bronx, 39 Misc2d
12
For these reasons, the Kahan faction’s equitable estoppel argument, made in Point III of its Reply Memorandum,
is patently devoid of merit. Under the By-Laws, as well as the traditions of the Satmar faith, mere payment of a fee
to procure the “Honorary Member Certificate” issued by the Burial Society does not engender an inalienable right to
burial in the KJ Cemetery. Rather, in order to attain that right it is incumbent upon the holder of said Certificate to
16
Given the foregoing, it is patent that only members who remain in good standing through
their lifetimes may be buried in the KJ Cemetery. It is truly absurd for the Kahan faction to
suggest otherwise. The KJ Cemetery, being the gravesite of the Satmar movement’s founder,
Grand Rabbi Joel Teitelbaum, is “a special place not automatically given” and a “a place of
honor” in the Satmar faith (see, Buss Affirmation, Exhibit J [Rabbinical Interpretation of Satmar
“Honorary Member Certificate[s]”]). In this vein, it is noted that while the Satmar community
has cemeteries in other locations, burial in the KJ Cemetery in close proximity to the
Interpretation]).13
Six of the “Honorary Member Certificate[s]” which have been proffered by the Kahan
Faction are valid documents which were issued by the Burial Society and, as represented by Mr.
Weiss, those documents “will be honored at the appropriate time pending membership
compliance issues” (see, Weiss Affirmation at ¶ 55). It is important to note that unlike the self-
created Certificates issued by the Kahan Faction, these valid Certificates were issued under the
aegis of the KJ Cemetery – not that of the Congregation (see, Affirmation of Zigmond Brach,
Spielman, dated December 14, 2008, Exhibit A [“Honorary Member Certificate”]; Affirmation
of Joseph Epstein, dated December 11, 2008, Exhibit A [“Honorary Member Certificate”];
maintain Satmar religious standards for the remainder of his life. Failure to do so can result in expulsion and the
concomitant loss of any burial privileges and, under the By-Laws, “[m]embers who resign or are expelled from the
congregation have no claims against the congregation and all paid contributions, under whatever name they are,
shall not be refunded” (Buss Affirmation, Exhibit D [By-Laws], at Article 10). It is axiomatic that “religious
organizations have the First Amendment right to discipline or expel members” (Brach v. Congregation Yetev Lev
D’Satmar, Inc., CV-93-4606(CPS) [EDNY, Sept. 9, 1993], aff’d 57 F3d 1064 [2d Cir 1995], cert denied 516 US
1173 [1996]). Adopting the Kahan faction’s equitable estoppel argument would render Article 10 of the By-Laws
meaningless and force the Congregation to bury non-believers in their holy cemetery.
13
Notably, even the Kahan faction’s own self-created Certificates contain a phrase which contemplates and
anticipates that a final decision regarding burial in the KJ Cemetery must await death [i.e., “[plaintiff] has taken
possession of his plot effective immediately and until one hour prior to his death [emphasis in original]”
(Affirmation of Morris Friedman, dated December 10, 2008, Exhibit A [“Confirmation Certificate”]).
17
Affirmation of Herman Landau, dated December 14, 2008, Exhibit A [“Honorary Member
Certificate”]; Affirmation of Jose Masri, dated December 14, 2008, Exhibit A [“Honorary
Member Certificate”]; Affirmation of Ervin Rosner, dated December 14, 2008, Exhibit A
Further, these valid Certificates specifically provide that the acceptance of the holder of
the certificate as a member in the holy association is made “in accordance with the holy
regulations of the holy Congregation Yetev Lev D’Satmar” (id.). Therefore, as expressly
contemplated by RCL § 7, the holder remains subject to such conditions and restrictions as may
be imposed “by the rules and regulations adopted by” the Congregation (RCL § 7). The fact that
the holder remains subject to the Congregation’s rules, including the dispositive and
ecclesiastical standards for membership, is evident right on the face of the Certificate.
interpretation of the import of the Certificates.14 Therein, it is established that the subject
Certificates do not confer any inalienable contract or property right to be buried in the KJ
Cemetery unless the holder “fulfills the community’s regulations” (Buss Affirmation, Exhibit J
burial [in the KJ Cemetery] is only for those who are deserving according to the
regulations of the congregation and the statutes, meaning that it doesn’t contradict the
Shulhan Arukh, and treats Judaism and Torah law according to the fundamentals and the
perceptions of our holy masters Rabbi Yoel Teitelbaum (May his virtue protect us) and
his nephew and replacement Rabbi Moshe Teitelbaum (May his merit shield us), and
even someone who already had a membership certificate but went astray will not be
given a burial plot in the cemetery [emphasis supplied].”
Accordingly, the Rabbinical opinion concludes, the procurer of the Certificate “pays that
fee at the behest of that congregation’s burial society, that they will provide him with a burial
14
The Kahan faction has acknowledged that the Certificates written in Hebrew must be construed in accordance
with Jewish law (see, Reply Affirmation of David B. Hamm, Esq., February 16, 2009, at p. 10, n. 6; Reply
Affirmation of Chaim Jacobowitz, dated February 15, 2009, at p. 15, n. 5).
18
plot in accordance with the regard in which they hold him, and also will not allow the internment
of someone who did not fulfill all of the congregation’s regulations” (Buss Affirmation, Exhibit J
[Rabbinical Interpretation]). Significantly, this evidence has been simply ignored by the Kahan
Faction.
And finally, it is particularly specious for the Kahan Faction to now claim that the burial
16, 2009, at ¶ 26), based upon the handwritten minutes of a 1997 meeting (see, Affirmation of
Chaim Jacobowitz, dated February 15, 2009 [“Jacobowitz Affirmation”], Exhibit I [Minutes]).
The minutes in question merely reflect that under truly exceptional circumstances a person who
was not a member at the time of death may nevertheless become “a member after his death in
course, contrary to the Kahan Faction’s distortions, this evidence actually serves to re-affirm the
truth that one must be a member in order to be buried in the KJ Cemetery. Indeed, these meeting
minutes relied upon by the Kahan faction do not provide for mere payment of the requisite fees.
Rather, this evidence clearly and unequivocally establish that one must be accepted as a
“member” after his death, thereby ensuring that the applicant was subjected to the requisite
religious and ecclesiastical judgments and assessments inherent to the membership issue before
being permitted burial in hallowed KJ Cemetery alongside the deceased Grand Rabbis (see,
2. Given The Membership Issues Which Lie At The Heart Of This Controversy, The
Precedential Authorities Invoked by The Kahan Faction Are Inapposite Herein
The precedents invoked by the Kahan faction in support of its neutral principles of law
analysis are unavailing in light of the membership issues which lie at the heart of their claimed
19
First and foremost, the Second Department’s decision in Schwimmer v. Welz (56 AD3d
541 [2d Dept., 2008]), a case decided by Your Honor and one with which both sides are
intimately familiar, is clearly inapposite herein. In Schwimmer (supra), which involves a Satmar
educational institution, the ecclesiastical issue of membership in the Congregation was not
evident in the limited record on appeal that was presented to the Appellate Division.15
Conversely, as previously established, the inalienable right to burial in the KJ Cemetery which
the Kahan faction asks this court to establish herein squarely implicates the non-justiciable issue
of whether said individuals, upon their deaths, will be deemed valid members in the
Congregation who are worthy of burial in the same cemetery as the late Satmar holy leaders. In
short, the membership issue which was absent from the record presented to the Second
Department in Schwimmer is patent herein (cf., Schwimmer v. Welz, 56 AD3d 541, supra).
Likewise, the Second Department’s recent decision in Merkos L’Inyonei Chinuch, Inc. v.
Scharf (___ AD3d ___ [2d Dept., February 3, 2009], 2009 WL 262429), does not support the
conclusion that the within controversy is secular in nature. In Merkos (supra), the dispute
centered upon the issue of title to real property and the right of possession incident thereto.
Although there was a “divisive doctrinal dispute” which may have motivated the property
dispute, said dispute could be determined based upon the deeds to the properties and without
reference to the doctrinal dispute. Of course, that situation differs markedly from the matter at
bar. Indeed, in order to enforce the Kahan Faction’s claims to possess inalienable right to burial
in the KJ Cemetery, the courts would have to adjudicate the non-justiciable question of whether
said Plaintiffs remained members in good standing of the Congregation (cf., Merkos L’Inyonei
15
In Schwimmer (supra at 543-544), the Second Department commenced its analysis of the justiciability issue with
the caveat “On the record before us” before then concluding its analysis with a similarly worded caveat [i.e., “on the
record presented”].
20
While the Kahan faction styles as “[h]ighly instructive” the Court of Appeals’ decision in
Avitzur v. Avitzur (58 NY2d 108 [1983]), said case is also clearly inapposite herein. Indeed,
while the Court of Appeals, by a narrow 4-3 majority, did determine to enforce the husband’s
agreement to appear before a particular rabbinical arbitration tribunal, in doing so the Court
stated that the appearance before the tribunal was “a secular obligation to which [the husband]
contractually bound himself” (Avitzur v. Avitzur, 58 NY2d 108, 115, supra). The Court noted
that as a consequence of compelling the husband’s mere appearance, “no doctrinal issue need be
religious authority will result” (Avitzur v. Avitzur, supra at 115). Indeed, the Court stressed that
divorce * * * is appropriately left to the forum the parties chose for resolving the matter” (id., at
155-116).
Contrarily, in the matter at bar the claims raised by the Kahan faction necessarily
implicate the ecclesiastical questions regarding future burial in the holy ground of the KJ
Cemetery. Had the valid Certificates issued by the Burial Society contained a provision which
called for disputes concerning an individual’s worthiness to be buried in the holy ground to be
resolved by a particular rabbinical tribunal, and one party refused, the Avitzur case would be
compelling precedent to the limited extent that the other party sought to compel appearance
before the rabbinical tribunal.16 As it stands, however, the Kahan faction requests that this Court
rule on the actual ecclesiastical issues bearing upon the claimed entitlement to a religious
interment in the KJ Cemetery. In this manner, therefore, the Kahan faction asks this Court to do
16
In fact, given the Congregation’s internal mechanism for resolution of disputes involving the KJ Cemetery (see,
Gross Reply Affidavit, Exhibit A [Minutes of September 22, 1987 meeting]), it could be argued that Avitzur would
require that the Kahan faction resolve this dispute in accordance with said internal mechanism.
21
what the Court of Appeals in Avitzur expressly determined that it could not do (cf., Avitzur v.
Avitzur, supra).
And finally, while the Kahan faction may find it “deeply disturbing” that Defendants did
not cite to a recent Court of Appeals decision in their Joint Memorandum of Law (see, Reply
Memorandum at 15), it is self-evident that said case is truly of no import herein (see, Episcopal
whether a local parish [i.e., All Saints Protestant Episcopal Church] held its real and personal
property in trust for the benefit of the diocese and the national church to which it was joined,
such that upon the diocese’s decision to dissolve the parish the parish’s property reverted back to
the diocese or the national church. The Court found that there was an express trust in favor of
the diocese and the national church evident in the diocese’s constitutional documents and,
further, that the local parish had agreed to abide by this express trust (Episcopal Diocese of
Rochester v. Harnish, 11 NY3d 240, supra). Citing to the Satmar election case (see, Matter of
Congregation Yetev Lev D’Satmar, Inc. v. Jacob Kahana, 9 NY3d 282, supra), the Court
expressly declined to review the parish’s claims regarding the alleged impropriety of the
diocese’s resolution to dissolve the parish, reasoning that the diocese’s resolution “was a
Once again, we see that in analyzing the common law the Kahan faction has failed to
acknowledge the dispositive membership issue which lies at the heart of the controversy at bar.
Indeed, unlike the “trust” issue in Episcopal Diocese of Rochester v. Harnish (supra), which was
expressly governed by the constitution of the general church concerning the ownership and
22
control of the hierarchal church’s property, the request for judicial recognition and enforcement
of an inalienable right to burial in the KJ Cemetery cannot be determined based upon secular
documents and neutral principles of law. Rather, the issue of whether in the eyes of the
Congregation the individual Plaintiffs, at their death, had remained members in good standing
who are worthy of burial in the KJ Cemetery necessarily implicates ecclesiastical questions.
Indeed, the determination to expel members or permit members to be buried in the KJ Cemetery
is directly akin to the diocese’s resolution to dissolve the local parish following “serious
* * * *
In sum, the record plainly shows that judicial review of the individual Plaintiffs’ religious
standing within the Congregation would be essential to granting the relief sought by the Kahan
faction in this dispute. Plaintiffs’ claim to possess inalienable rights to burial in the religious
cemetery upon the future eventuality of their deaths necessarily hinges upon ecclesiastical issues
concerning the religious standards for membership in the Satmar Congregation. Since these
questions cannot be adjudicated based upon neutral principles of law, the action must be
dismissed as non-justiciable (see, Matter of Congregation Yetev Lev D’Satmar, Inc. v. Jacob
23
POINT II
THE WITHIN CONTROVERSY IS NOT RIPE FOR JUDICIAL
DETERMINATION AND PLAINTIFFS CLEARLY LACK STANDING IN THE
ABSENCE OF ANY ACTUAL INJURY
Although in moving for dismissal Defendants plainly argued that Plaintiffs’ claims “are
not ripe for judicial determination” (Joint Memorandum of Law at p. 27), the Kahan faction has
conveniently ignored this argument in its reply submission (see, Reply Memorandum at pp. 1-
57).
Had the Kahan faction addressed this issue, it would have been compelled to
acknowledge that a justiciable controversy must involve a present, rather than a hypothetical,
contingent or remote, prejudice to plaintiff (see, American Ins. Assn. v. Chu, 64 NY2d 379
[1985], cert denied 474 US 803). The dispute must be real, definite, substantial and sufficiently
mature to be “ripe” for adjudication by the judiciary (see, Sokoloff v. Town Sports International,
Inc., 6 AD3d 185 [1st Dept., 2004]; Bauer v. Roman Catholic Diocese of Albany, 91 AD2d 730
[3d Dept., 1982]; Park Avenue Clinical Hosp. v. Kramer, 26 AD2d 613 [4th Dept., 1966]). The
supreme court is without the jurisdiction to render a declaratory judgment unless the controversy
In this same vein, “the requirement of injury in fact for standing purposes is closely
aligned with [the Court’s] policy not to render advisory opinions” (Society of the Plastics
Industry, Inc. v. County of Suffolk, 77 NY2d 761, 772, supra). Indeed, the common law clearly
instructs that a “court has no inherent power to right a wrong unless thereby the civil, property or
personal rights of the plaintiff in the action or the petitioner in the proceeding are effected”
Applying these principles herein, it is respectfully submitted that the within controversy
is not ripe for judicial determination and Plaintiffs lack standing to pursue their claims since they
24
have suffered no actual injury. In this regard, Plaintiffs’ claims present nothing more than
hypothetical injury based on pure speculation regarding future events. That is, Plaintiffs are all
living and have yet to be denied access to their alleged burial rights by any named Defendant.
Moreover, it should be noted that since the Court vacated the temporary restraining order in this
action, the Satmar community has managed to bury its dead without any judicial supervision or
intervention, including interring 13 individuals in the KJ Cemetery (see, Gross Reply Affidavit at
¶ 5-6).
Having ignored this issue in their papers, the Kahan faction wholly fail to explain how
the within controversy is ripe for adjudication regardless of the fact that every Plaintiff is alive
and no Plaintiff has been denied access to any claimed right to burial or erection of a headstone.
It is self-evident that the Kahan faction improperly seeks what amounts to an advisory opinion
controversy and Plaintiffs have failed to satisfy the requirement of injury in fact for standing
purposes.
25
POINT III
PLAINTIFF’S CLAIMS ARE BARRED UNDER THE DOCTRINES OF RES
JUDICATA AND/OR COLLATERAL ESTOPPEL
It is well-settled that “following a valid final judgment * * * res judicata bars future
litigation between the same parties, or those in privity with them, on the same cause of action
[emphasis supplied]” (Ferris v. Cuevas, 118 F3d 122, 126 [2d Cir. 1997], citing Hodes v.
Axelrod, 70 NY2d 364, 372 [1987]). That includes any claim that was brought to a final
conclusion, all other claims arising out of the same transaction(s) are barred even if they are
based on different theories or are seeking a different remedy (Ferris v. Cuevas, 118 F3d 122,
126, supra, quoting O’Brien v. City of Syracuse, 54 NY2d 353, 357 [1981]).
In this same vein, the doctrine of collateral estoppel, or issue preclusion, “precludes a
party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior
action or proceeding and decided against that party or those in privity, whether or not the
tribunals or causes of action are the same” (see, Ryan v. New York Tel. Co., 62 NY2d 494, 500
[1984]). The doctrine applies if the issue in the second action is identical to an issue which was
raised, necessarily decided and material in the first action, and the plaintiff had a full and fair
opportunity to litigate the issue in the earlier action (see, Parker v. Blauvelt Volunteer Fire Co.,
Inc., 93 NY2d 343 [1999]). Significantly, while “[t]he burden rests upon the proponent of
collateral estoppel to demonstrate the identicality and decisiveness of the issue, * * * the burden
rests upon the opponent to establish the absence of a full and fair opportunity to litigate the issue
in the prior action or proceeding” (Ryan v. New York Tel. Co., 62 NY2d 494, 500, 500-501,
supra).
On the issue of privity, a plaintiff is barred from bringing the same issues in another suit
if both suits were controlled by the same person who was asserting the same interests even
26
though he was not a formal party to either suit (see, Ferris v. Cuevas, 118 F3d 122, 126, supra;
see also, Watts v. Swiss Bank Corp., 27 NY2d 270, 277 [1970]– wherein the Court of Appeals
stated that privity includes, inter alia, “those who control an action although not formal parties to
it [and] those whose interests are represented by a party to the action;” Tamily v. General
Contracting Corp., 210 AD2d 564 [3d Dept., 1994]– wherein the Court determined that privity
exists where a person so controlled the conduct of the prior litigation in which he was interested
In this regard, the Second Circuit in Ferris (supra), found that res judicata prevented the
plaintiffs from bringing suit because the same attorney controlled the prior action as well as the
second action. In this vein, the court was consistent with its earlier finding of res judicata in
Ruiz v. Commissioner of Dept. of Transp. (858 F2d 898, 901 [2d Cir., 1988]), wherein the
federal plaintiffs were precluded from bringing a suit arising out of the same issues as a suit
brought by state plaintiffs because both parties were represented by the same counsel.
Applying these principles herein, it is respectfully submitted that the Court of Appeals
has already determined in the Election Case the same issues presented herein – concerning
control, membership, election, validation and Congregation authority. Specifically, the Court of
Appeals in the Election Case determined that membership status in the Congregation is a non-
justiciable issue. Accordingly, the requirements concerning the identicality and decisiveness of
five of the individual Plaintiffs herein were actually named parties in the Election case.17 As
17
Specifically, Plaintiff Wilmos Friedman was a defendant in the election case prosecuted under index number
41256/01, having been sued under his Hebrew name, Zev Friedman, which is the name reflected on the certificate
offered herein (see, Affirmation of Wilmos Friedman, dated December 10, 2008, Exhibit A [“Honorary Member
Certificate”]). Plaintiff Herman Kahan was a defendant in the election case prosecuted under index number
27
named parties in the Election Case said Plaintiffs can not claim the absence of an opportunity to
litigate the issue of the non-justiciability of membership status in the prior action, which is the
With regard to the four additional Plaintiffs, Zigmond Brach, Jose Marsi, Morris
Friedman and Joseph Epstein, said Plaintiffs have failed to satisfy their burden establishing the
absence of a full and fair opportunity to litigate the issue of the non-justiciability of membership
status in the prior action. That is, these four Plaintiffs are clearly in privity with the defendants
in the Election Case. In fact, Plaintiffs are represented by the same counsel, i.e., Herzfeld &
Rubin, P.C., as the defendants in the previous action. As part of the Kahan faction and having
the same counsel, their interests were clearly represented therein (see, Ferris v. Cuevas, 118 F3d
122, supra; Watts v. Swiss Bank Corp., 27 NY2d 270, supra; Tamily v. General Contracting
At bottom, the dispositive issue herein, the non-justiciability of membership status, was
previously determined by the Court of Appeals’ decision in the Election Case and Plaintiffs have
failed to satisfy their burden to show the absence of a full and fair opportunity to litigate said
issue therein. Accordingly, it is respectfully submitted that the doctrines of res judicata and/or
41256/01, having been sued under his Hebrew name, Zvi Elimelich Kahan, which is the name reflected on the
certificate offered herein (see, Affirmation of Herman Kahan, dated December 10, 2008, Exhibit A [“Honorary
Member Certificate”]). Plaintiff Ervin Rosner was a defendant in the election case prosecuted under index number
28989/01, having been sued under his Hebrew name, Israel S. Rosner, which is the name reflected on the certificate
offered herein (see, Affirmation of Ervin Rosner, dated December 14, 2008, Exhibit A [“Honorary Member
Certificate”]). Plaintiff Herman Landau was a defendant in the election case prosecuted under index number
41256/01, having been sued under his Hebrew name, Yida Hersh Landau, which is the name reflected on the
certificate offered herein (see, Affirmation of Herman Landau, dated December 14, 2008, Exhibit A [“Honorary
Member Certificate”]). Plaintiff Moses Speilman was a defendant in the election case prosecuted under index
number 41256/01, having been sued under his Hebrew name, Sufra Spielman, which is the name reflected on the
certificate offered herein (see, Affirmation of Moses Spielman, dated December 14, 2008, Exhibit A [“Honorary
Member Certificate”]).
28
POINT IV
THE KAHAN FACTION’S CLAIM TO POSSESS ACTUAL AUTHORITY TO
ISSUE THEIR SELF-CREATED CERTIFICATES IS BASELESS AND IT
IGNORES THE FACT THAT THE COURTS EXPRESSLY DECLINED TO
ENDORSE EITHER FACTION IN THE PRIOR ELECTION CASE
In Point II of its Reply Memorandum, the Kahan faction resurrects an argument which
was made and rejected by the Court of Appeals in the prior Election Case.18 That is, Plaintiffs
invoke section 703(c) of the Not-for-Profit Corporation Law in arguing that since neither of the
two competing elections which were conducted in 2001 were validated by the courts in the
election case, the composition of the Congregation’s Board, as it existed prior to the 2001
elections, “continues in office until such time as a valid election takes place” (Reply
Memorandum at p. 26). Significantly, even if this argument were true, it simply means that the
entirety of the last indisputably elected Board, which was elected in the 1994 elections, remains
in office.
Since the Kahan faction has conveniently failed to identify who they claim the continuing
Board members to be, or that these continuing Board members participated in and approved of
the Kahan faction’s decision to create their own burial documents, this N-PCL § 703 argument
In any event, even if the Kahan faction deemed itself authorized to issue its own burial
certificates, such merely engendered a dispute within the Congregation which, in accordance
with the Congregation’s resolution, must be decided by the internal mechanism provided therein
(see, Gross Reply Affidavit, Exhibit A [Minutes of September 22, 1987 meeting]).
18
In Point III of the Appellants’ Brief filed in the Election Case, the Congregation argued that if the Court
determined that the validity of the Kahan faction’s election was non-justiciable, N-PCL § 703 required that the
existing board members [i.e., the Board headed by Berl Friedman] remain in office.
29
POINT V
NEITHER PLAINTIFFS NOR THE KAHAN FACTION HAS STANDING TO
CHALLENGE THE INTERNAL CONVEYANCE OF THE CEMETERY
BETWEEN TWO CONGREGATION ENTITIES
In Point V of its Reply Memorandum, the Kahan faction offers another curiosity to the
Court. That is, although the only two causes of action pleaded in the Verified Complaint seek
judgment declaring that Plaintiffs and other “class members” have the right to burial in the KJ
Cemetery, the Kahan faction now argues in its Point V that the Congregation’s internal
conveyance of the cemetery to another Congregation entity must be deemed “void by the Court”
Clearly, however, the individual Plaintiffs have no standing to mount any challenge to the
subject conveyance. None of the individual plaintiffs has established that he is authorized to
represent the interests of the Congregation herein. This rings particularly true where the
ostensible challenge to the conveyance is raised within the context of a declaratory judgment
Moreover, while the Kahan faction posits that the Congregation seeks to terminate
“plaintiff’s rights as lot owners” by virtue of the internal conveyance (Reply Memorandum at p.
43), this claim is entirely unfounded. Indeed, as previously noted, six of the “Honorary Member
Certificate[s]” which have been proffered by the Kahan faction herein are valid documents
which were issued by the Burial Society under the aegis of the KJ Cemetery. As represented by
Mr. Weiss, those documents “will be honored at the appropriate time pending membership
compliance issues” (see, Weiss Affirmation at p. 19). Clearly, the Kahan faction’s challenge to
the conveyance of the KJ Cemetery is the proverbial red herring in the context of this action.
And finally, to the extent that there exists a dispute concerning the operation and
administration of the KJ Cemetery, such must be decided by the Grand Rabbi Aron Teitelbaum
30
in accordance with the Congregation’s resolution, (see, Gross Reply Affidavit, Exhibit A
31
POINT VI
PLAINTIFFS ARE NOT ENTITLED TO INJUNCTIVE RELIEF AS THEY SEEK
JUDICIAL ENFORCEMENT OF AN EXECUTORY CONTRACT IN A NON-
JUSTICIABLE CONTROVERSY AND FAIL TO ESTABLISH THAT ANY
MEMBER OF THE CONGREGATION HAS BEEN DENIED BURIAL IN THE
KJ CEMETERY
For the reasons heretofore established, the Kahan faction has failed to establish that it is
likely to succeed on the merits of either of the two causes of action it has pleaded in this
connection with the burial of members in the KJ Cemetery, and asking this Court for a judicial
declaration that as of this date they have an inalienable contract right to burial in the KJ
Cemetery upon their death, regardless of what may occur in the interim, the Kahan faction places
the Court squarely in the middle of the Satmar leadership controversy. Indeed, the Kahan faction
asks this Court to determine non-justiciable, ecclesiastical issues such as who is a member,
whether a member has met the religious requirements for burial in the hallowed ground of the KJ
Cemetery, which officers the members should pay their dues to, and who are the authorized
officers of the Congregation and the Burial Society. The Kahan faction also asks the Court to
forever foreclose the religious questions that are engendered upon a member’s death regarding
where that member should be buried and the type and manner of the tombstone to be erected.
These determinations are matters exclusively vested in the religious society and are
Likewise, proof of irreparable harm is completely lacking from the Kahan faction’s
papers. Plaintiffs’ previous allegations, first made in 2004 to Justice Barasch, are strikingly
similar to the allegations made to this Court. Among the remedies sought by the Kahan faction
in 2004 was a declaration that only the Kahan faction had the authority to collect “membership
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dues and burial plot fees” and that Defendants should be enjoined from taking these actions (see
judicial imprimatur for their self-created burial certificates the Kahan faction is essentially
seeking that same authority to collect dues and burial plot fees.
Although the Kahan faction originally gave voice to their vacuous “concerns” regarding
the administration and governance of the KJ Cemetery in 2004, they were denied by Justice
Barasch, denied by the Appellate Division, and denied by the Court of Appeals. Although we
are now rapidly approaching the fifth full year since the Kahan faction’s initial grab for control
of the KJ Cemetery was rebuffed by Justice Barasch, nothing has changed. Indeed, to date no
individual has been denied burial in the KJ Cemetery and the KJ Cemetery and the Burial
Society continues to operate as it always has. The only thing which has changed on the surface
is that the Kahan faction has begun issuing self-created certificates in an effort to incite yet
another showdown over the KJ Cemetery. Peering a bit deeper, we see that the Kahan faction’s
Justice Ambrosio recently excoriated the Kahan faction’s eighth unsuccessful effort to
obtain an injunction which would have recognized the Kahan faction as having control over the
day-to-day operations of the Congregation (see, Frankel v Congregation Yetev Lev D’Satmar, 20
Misc3d 1137(A) [Sup Ct., Kings Co., August 22, 2008], 2008 WL 3915798). According to
Justice Ambrosio: “The [Kahan faction’s] [i]njunction action is nothing more than another
disingenuous attempt by one of the factions to obtain relief which is beyond the reach of the
court” (Frankel v Congregation Yetev Lev D’Satmar , supra at p. 5). The matter presently at bar
thus marks the Kahan faction’s ninth attempt to improperly use the Courts to gain control over
the Congregation.
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As such, rather than present this Court with an actual controversy that is ripe for
adjudication, the Kahan faction once again presents religious issues for a secular court’s
determination in furtherance of their quest to gain control over the various operations of the
And finally, the Kahan faction’s citation to Pantel v. Workmen’s Circle Arbetter Ring
Branch (289 AD2d 917 [3d Dept., 2001]), does not support the award of injunctive relief herein.
In Pantel (supra), the court was presented with a fully ripened, justiciable controversy
concerning the presence of physical structures [i.e., a bench and foot stones] which were already
in place at the plaintiff’s family burial plot. The question presented was whether those
structures, which were already present, could remain in place or had to be removed. In affirming
the trial court’s award of injunctive relief, thereby permitting the existing structures to remain in
place pending the outcome of the litigation, the court stressed that there were questions of fact
regarding the defendant’s uneven enforcement of the rules and regulations of the cemetery, as
well as the fact that granting injunctive relief “achieves the salutary purpose of maintaining the
status quo during the pendency of this litigation” (Pantel v. Workmen’s Circle Arbetter Ring
Conversely, in the matter at bar the Court is not presented with a ripened, justiciable
controversy, as there is neither a deceased member who seeks burial nor is there a headstone
which is sought to be placed. Moreover, far from being the simple question of whether a
tangible, extant object may remain in place, the Kahan faction asks this Court for an advisory
opinion as to what would happen if someone holding one of the Kahan faction’s self-created
certificates were to pass away. For all of the reasons heretofore stated, this places the court
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squarely in the middle of the Satmar leadership controversy and requests that the Court
In addition, while the status quo in Pantel took the form of maintaining the movant’s
bench and footstones which were already physically present, such is certainly not akin to the
matter at bar. The status quo herein does not take the form of any tangible physical structure.
Moreover, the status quo is not represented by the movants and their self-created burial
documents, but by Joseph Weiss -- who has served as the Burial Coordinator for nearly three
decades.
Under the circumstances, where there is no actual controversy currently before the Court,
where the Kahan’s faction’s claims clearly engender non-justiciable ecclesiastical issues, and
where the status quo will be upset by granting the provisional remedy requested, the Kahan’s
faction’s request for injunctive relief must be denied (cf., Pantel v. Workmen’s Circle Arbetter
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CONCLUSION
For the foregoing reason, and for the reasons previously stated in the Joint
Memorandum of Law, it is respectfully requested that the Court deny the Kahan faction’s
request for injunctive relief and dismiss the complaint, with costs and disbursements and
such other and further relief as the court deems just, proper and appropriate under the
circumstances.
Respectfully submitted,
Lead Counsel
733 Yonkers Avenue
Yonkers, New York 10704
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- and -
TARSHIS, CATANIA,LIBERTH,
MAHON & MILLIGRAM, PLLC
One Corwin Court
P.O. Box 1479
Newburgh, New York 12550
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