Cemetery Transcript 3/12/09

1
1 SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF KINGS: CIVIL TERM : PART COM1
2 -----------------------------------------X
WILMOS FRIEDMAN,
3
Plaintiff, 33481/08
4
- against - OSC
5
CYL CEMETARY, INC., CONGREGATION
6 YETEV LEV D'SATMAR,INC., CHEVRE
KADISHE D'SATMAR, A DIVISION OF
7 CONGRFEGATION YETEV LEV
D'SATMAR,INC.,CONGREGATION YETEV
8 LEV D'SARMAR OF KIRYAS JOEL,INC.,
CENTRAL CONGREGATION YETEV LEV
9 D'SATMAR, INC., RABBI EZRIEL GLUCK,
JOSEPH WEISS, MOSES WITRIOL, DAVID
10 MARKOWITZ, CHAIM E LIEZEF GROSS,
JOEL KAUFMAN, DAVID EKSTEIN, ELIAS
11 HOROWITZ and SHLOMO WERTZBERGER,
12 Defendants .
-----------------------------------------X
13 360 Adams Street
Brooklyn, New York
14 March 12, 2009
15 B E F O R E : HONORABLE CAROLYN E.DEMAREST,

Justice
16
17 A P P E A R A N C E S:
Attorneys for the Plaintiff
18 HERZFELD & RUBIN
40 Wall Street
19 New York, New York 10005
By: DAVID B. HAMM, ESQ.
20
21 Attorneys for the Defendants-

CYL CEMETARY, CONGREGATION YETEV LEV D'SATMAR,
22 CHEVRE KADISHE SATMAR, SATMAR, CENTRAL CONGREGATION
YETEV, JOSEPH WEISS, DAVID MARKOWITZ, CHAIM GROSS,
23 JOEL KAUFMAN, ELIAS HOROWITZ and SHLOMO WERTZBERGER
SMITH, BUSS & JACOBS, LLP
24 500 Fifth Avenue
New York, New York 10110
25 By: JEFFREY D. BUSS,, ESQ.
2
1 A P P E A R A N C E S :
2 CO-COUNSEL WITH SMITH, BUSS & JACOBS, LLP

FISHER & FISHER, ESQ.
3 1 Whitehall Street
4
5 Attorneys for the Defendant -

CONGREGATION YETEV D'SATMAR and CHEVRE KADISHE
6 ISRAEL VIDER, ESQ.
1507 Avenue M
7 Brooklyn, New York 11230
8 Attorney for Defendant - RABBI EZRIEL GLUCK

JAMES KLATSKY,ESQ.
9 185 Madison Avenue
10
Attorney for the Defendant -
11 CONGREGATION YETEV D'SATMAR
EDWARD RUBIN, ESQ.
12 444 Madison Avenue
13
Attorney for the Defendant -
14 YETEV LEV D'SATMAR OF KIRYAS JOEL
RICHARD M. MAHON,II, ESQ.
15 1 Corwin Court
Newburgh, New York 12550
16
Attorney for Defendant -
17 DIRECTOR OF PUBLIC SAFETY, MOSES WITRIOL
JACOBOWITZ & GUBITS, LLP
18 158 Orange Avenue
Walden, New York 12586
19
Margaret Breitfeller,RPR
20 Official Court Reporter
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Proceedings
1 COURT CLERK: Part N motion
2 calendar, numbers one through five on the
3 motion calendar, Friedman, et al versus CWL
4 Cemetary, et al condensed.
5 Counsel, appearances.
6 MR. HAMM: May it, please, the
7 Court, my name is David Hamm. I am with
8 Herzfeld & Rubin. I am here on behalf of
9 plaintiffs.
10 MR. RUBIN: Edward Rubin, along
11 with my colleague, Mr. Vider to Congregation
12 Yetev Lev D'Satmar and Chevre Kadishe, Inc.,
13 THE COURT: You are actually a
14 defendant?
15 MR. RUBIN: Correct.
16 THE COURT: Yes, sir.
17 MR. VIDER: Israel Vider as
18 co-counsel to Edward Rubin for Congregation
19 Yetev Lev D'Satmar and Chevre Kadishe.
20 MR. KLATSKY: James Klatsky for
21 Rabbi Ezriel Gluck.
22 THE COURT: Spell the last name.
23 MR. KLATSKY: Gluck G-L-U-C-K.
24 THE COURT: G-L-U-C-K. All right.
25 Okay. Because.
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1 MR. BUSS: Jeffrey Buss of Smith,
2 Buss and Jacobs. My firm represents
3 defendants: CYL CEMETARY, CONGREGATION YETEV
4 LEV D'SATMAR,CHEVRE KADISHE SATMAR, SATMAR,
5 CENTRAL CONGREGATION YETEV, JOSEPH WEISS,
6 DAVID MARKOWITZ, CHAIM GROSS, JOEL KAUFMAN,
7 ELIAS HOROWITZ AND SHLOMO WERTZBERGER.
8 THE COURT: Okay.
9 MR. FISHER: Edward Fisher, Fisher
10 & Fisher for the same parties that Mr. Buss
11 represents.
12 THE COURT: Okay, thank you.
13 MR. MAHON: Richard M. Mahon,
14 attorney for defendant, Congregat Yetev Lev
15 D'Satmar of Kiryas Joel, Inc.
16 MR. NICHOL: Donald Nichol. I am
17 the village attorney. I am representing the
18 Director of Public Safety, Moses Witrial.
19 THE COURT: Okay. I thought this
20 had been discontinued. Well, I guess it is
21 discontinued against the police, the State
22 police, but that is not who you represent;
23 correct?
24 MR. NICHOL: Correct.
25 THE COURT: It is the village.

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1 MR. NICHOL: I represent the
2 Director of Public Safety.
3 THE COURT: Okay. We have a lot
4 of papers here. I know the primary issue,
5 which probably should just be addressed right
6 up front, has to do with the original motion
7 which was for a preliminary injunction, which
8 would necessarily address the underlying
9 merits of this matter and cross motion to
10 dismiss.
11 I know we argued the preliminary
12 injunction matter a few times.
13 I don't know if there is anything
14 you want to add to prior arguments Mr. Hamm,
15 I think you have been here many times before.
16 I heard you argue. I know what your position
17 is.
18 Is there any change or anything you
19 have to add to your argument.
20 MR. HAMM: Yes, Your Honor. I in
21 would like to be able to address the matter
22 in a comprehensive way because at the last
23 occasion, I did not have before the Court a
24 response to the cross motion to dismiss,
25 which included not only arguments based on

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1 factual matter, evidence in support of our
2 motion for preliminary injunction and against
3 their motion to dismiss and also legal issues
4 they had raised in their opposition papers,
5 which we responded in our reply memorandum of
6 law. I would like to address those if it
7 please the Court.
8 THE COURT: Let's begin with
9 plaintiff then.
10 MR. HAMM: There are thousands of
11 facts in the papers before the Court and just
12 as many fictions. I am not going to address
13 that unless the Court has a specific question
14 on specific facts. I am going to limit my
15 argument to the facts for legal reasons.
16 I do that for three legal reasons:
17 CPLR-6312(c) even if there is a
18 real issue of fact, it does not indotate a
19 preliminary injunction, even if there is a
20 real relevant issue of fact.
21 I am not talking about
22 75/25 percent. A relative issue of fact that
23 does not prevent a preliminary injunction.
24 Certainly under 7211, if there is a
25 relative issue of fact, a dismissal would not

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1 be warranted.
2 And, third, another important
3 statutory provision under C.P.L. 901 I do not
4 need nine named plaintiffs. I don't need
5 five. I need one.
6 THE COURT: But you don't have a
7 certified class.
8 MR. HAMM: Not yet. If that is an
9 issue I would point to our cases in the
10 memorandum law is that you can get a class
11 action preliminary injunction notwithstanding
12 there has been a class certification, a
13 protection of the class is still something
14 which the Court can provide for, even though
15 a motion for class certification has not yet
16 been presented or granted.
17 Among the cases we're against
18 Monroe County, which we mentioned also
19 because it applies as well to the question of
20 whether we can bring a preliminary injunction
21 with respect to a party who is an official or
22 county official or village official in this
23 case.
24 But I want to talk about the law.
25 I want to speak specifically about two facts,

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1 which I think should be undisputed, except
2 that my adversary seems to dispute
3 everything.
4 One is that the plaintiffs are
5 members of the congregation. Now I said that
6 not only because they say they are members
7 and not only because Saul Bilsky, the last
8 the Vice President prior to the 2001
9 elections says their members and not only
10 because the certificates themselves specify
11 that they are members, but also because the
12 defendants in sending out from 163 Robbie
13 Street various letters threatening to throw
14 them out of membership necessarily inherently
15 admit that right now they are members of the
16 congregation.
17 The claim, there was a claim that
18 five of the plaintiffs had been thrown out.
19 They pointed to Exhibits G and H in the
20 original opposition papers. My copies of D
21 and H say nothing of the sort.
22 If Your Honor looks at copies of D
23 and H, they mention my client's name. I
24 would really like you to know that.
25 THE COURT: What, what are you

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1 referring to?
2 MR. HAMM: The opposition and
3 cross motion.
4 THE COURT: Okay.
5 MR. HAMM: There are a number of
6 statements made in there. Five of the
7 plaintiffs that had been thrown out of
8 membership. It said five or six submissions
9 in there. The only evidence pointed to was
10 Exhibits G and H attached to Mr. Buss's
11 affirmation.
12 THE COURT: Oh, I see.
13 MR. HAMM: My copies of G & H do
14 not have my client's names in there. They
15 throw out certain individuals, but not my
16 clients. So if Your Honor's copy of that
17 says something else.
18 THE COURT: Well, I am trying to
19 find a copy to which you refer.
20 Unfortunately, I know you are referring to
21 the submission in support of the cross motion
22 for dismissal in which there were multiple
23 individual affirmations.
24 MR. HAMM: Well, I received it
25 like this in rubber bands with no backs.

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1 THE COURT: I didn't receive it
2 much differently. I don't exactly know.
3 MR. HAMM: Exhibit G & H to Mr.
4 Buss's affirmation.
5 THE COURT: To Mr. Buss's
6 affirmation, all right. That will help. Now
7 you are saying that G and H do not contain a
8 certificate of your clients.
9 MR. HAMM: Does not mention that
10 my clients have been thrown out of the
11 congregation. That is what they were cited
12 to, for that purpose in the motion papers.
13 THE COURT: Okay, go on.
14 MR. HAMM: All right. So they are
15 members, Your Honor.
16 And the second important point that
17 I want to make concerning that is that the
18 plaintiffs have certificates entitling them
19 to burial in the cemetary.
20 Now I say that not only because it
21 is clear from the face of the certificates,
22 it expressly says they have the right to
23 burial.
24 It is also clear from Exhibit 34H,
25 which was submitted without reply, 34H I am

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1 sorry.
2 THE COURT: No, no, just go.
3 MR. HAMM: Surely.
4 Exhibit 34H was a proposal.
5 THE COURT: This is your original
6 Order to Show Cause?
7 MR. HAMM: No, this is the second
8 document we submitted. We submitted a total
9 of two affirmations.
10 THE COURT: Right. I have your
11 reply and it is your affidavit.
12 MR. HAMM: This is annexed to the
13 affidavit.
14 THE COURT: What number?
15 MR. HAMM: 34H.
16 THE COURT: I see what you did.
17 34 has multiple sub-exhibits.
18 MR. HAMM: And H is the one I am
19 referring to.
20 THE COURT: I see.
21 MR. HAMM: That exhibit was a
22 standard form solicitation for the purchase
23 of a burial plot. Standard form and it too
24 made very clear that once that burial
25 certificate was issued, that was a contract.

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1 It uses that term.
2 In fact, it uses it in the
3 translation from Yiddish. The word contract
4 actually appears in the Yiddish form.
5 It is also clear, Your Honor, from
6 Joseph Weiss's affirmation in opposition
7 paragraph 55 where Mr. Weiss concedes that at
8 least six of the certificates of the members
9 are valid certificates and would entitle them
10 to burial, membership issues aside.
11 I am going to get to the membership
12 issues. I will get to that. But most
13 importantly it was proven very clearly by the
14 defendant's course of conduct because Your
15 Honor there is no answer to Exhibit 34K of
16 our reply. Exhibit 34K constitutes seven of
17 hundreds of certificates which can be
18 adduced, certificates of people, the
19 certificates were signed by Chaim Jacobwitz
20 on behalf of the congregation and those
21 certificates actually resulted in the burial
22 of people in the cemetary and the erection
23 of headstones.
24 They picked one of them and say it
25 was a false certificate because the date on

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1 the certificate was wrong.
2 Your Honor, how do they prove that?
3 They adduce a picture of the grave
4 stone on the cemetary plot in which that
5 person is buried which means that the person
6 was, in fact, buried on the basis of that
7 certificate and a headstone was erected on
8 his grave.
9 So, clearly, these certificates
10 have been honored all the way through the
11 years, right up until this past August.
12 Status quo has been thrown around here as a
13 term. I am not going to dwell on it. It is
14 very clear that with regards to burial in
15 this cemetary, the status quo was until they
16 started this unfortunate effort at securing
17 money from the members of congregation
18 inappropriately. The status quo was that
19 people were buried on the basis of
20 certificates issued by the respective
21 congregation based upon payment to that
22 congregation only.
23 Now let's talk about membership.
24 We submitted evidence demonstrating that
25 membership is not required at the time of

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1 death. Membership can be obtained after
2 death. As a matter of fact, people can be
3 buried even though they were not members at
4 death, they can be buried the cemetary.
5 THE COURT: Can they be buried if
6 they left the faith.okay.
7 MR. HAMM: No. Everybody agrees
8 to that. That is not the issue before the
9 Court.
10 Let's talk about what the issue is
11 before the Court. Plaintiffs are members,
12 there is no question of that in my view.
13 They claim that members may be thrown out on
14 the basis or their having not met whatever
15 requirements exist.
16 But who is going to throw them out?
17 Who has the power today to throw out a member
18 of Satmar for membership in the congregation?
19 In the old days, the old grand
20 rabbi could, we know that. There is no grand
21 rabbi to date who has that kind of universal
22 acceptance.
23 Even though they say there is 75 /
24 25 split, I don't know where they get the
25 number from. It is made out of thin air.

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1 There is no eccestial.
2 THE COURT: Couldn't the two
3 gentlemen that were the sons of the Rabbi
4 Titlebaum do that? Couldn't they do that?
5 MR. HAMM: If they wanted to get
6 together and decide that an individual, even
7 separately, that an individual has, in fact,
8 left the faith and, therefore, not be
9 permitted to be buried that would be
10 possible. Nevertheless that is a remote
11 possibility. It has no application to our
12 plaintiffs because none of our plaintiffs
13 have left the faith. None of them is
14 Buddhist, none are of zionists. They are all
15 here all Sarmar. They all want to protect
16 their contract rights.
17 Who else can throw them out of the
18 congregation?
19 Well, under the bylaws after a
20 committee has met, the officers can throw
21 them out. So it says in the bylaws, but as
22 to that I would like to quote paragraph 13 of
23 Mr. Buss's affirmation in support of the
24 second cross motion, paragraph 13 says:
25 The simple fact is that no Court

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1 can presently recognize any person as a
2 authorized officers of the congregation.
3 Why is that? Because of the 2001
4 elections were not validated, neither one of
5 them.
6 If that is the case, no one can
7 throw my plaintiffs out of membership in the
8 congregation. So that the threat that my
9 contract, my plaintiffs' contracts will be
10 somehow nullified because they will be
11 expelled from membership. It is a fiction.
12 There is no one that can do that today.
13 Let's talk about disability, if the
14 Court, please. If Your Honor pleases let's
15 talk about what the Court of Appeals did and
16 did not say in the prior Satmar cases.
17 We know for certain that it did not
18 say that everything Satmar is nonjudiciable.
19 We didn't need them to tell us that.
20 The Court of Appeals said it very
21 clearly at the same time they said Bell
22 Friedman expulsion from Satmar resulted in a
23 inability to determine which of the 2001
24 elections were valid.
25 They also said that Bello Friedman,

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1 Bello Friedman's signature and transfer of
2 the cemetary was justationable.
3 They could determine it on neutral
4 principles of law. The Court of Appeals
5 determined it was an invalid transfer based
6 on the statutory principle that there is a
7 requirement that it be in the best interest
8 of the congregation and it was not.
9 THE COURT: That was the actual
10 transfer of real property?
11 MR. HAMM: Correct.
12 And the Court of Appeals was very
13 clear in order to tell that it didn't matter,
14 it was Bello Friedman, the same guy as to
15 whose qualifications the Court said with
16 respect to the elections, it didn't matter
17 who transferred it because that transfer was
18 not in the best interest of the congregation.
19 THE COURT: Uh-huh.
20 MR. HAMM: Now this principle of
21 cutting away the peripheral eccalastical
22 matter in order to get to the heart of
23 something decidable under neutral principles
24 of law is part of the long established
25 tradition of the Court of Appeals and, as a

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1 matter of fact, there is a case directly on
2 view, on point as in this case. In Alexsau
3 there was not only a contract used in a
4 religious ceremony, it was part of the Jewish
5 wedding ceremony to read a battuta. The very
6 purpose to effectuate it. It is a Jewish
7 religious divorce. Everybody knew it. No
8 question that was its purpose. And yet the
9 Court of Appeals stripped away the source,
10 the contracts, a religious ceremony and
11 stripped what the arbitration clause was
12 intended to accomplish, a Jewish get, an
13 eccalistical issue and said we're going to
14 look at the statement in the contract. You
15 are going to go to a bethune. Boom, go to a
16 bethune.
17 THE COURT: That is consistent
18 with a long line of cases which the bethune
19 as an arbitration tribunal, that is to say
20 the decisions have been enforced as
21 arbitration awards and approved and
22 confirmed. Once it is in a contract that is
23 not a problem.
24 MR. HAMM: Well, that is good
25 because we have a contract, which should not

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1 be a problem.
2 THE COURT: But there is no
3 bethune in there.
4 MR. HAMM: No, if there isn't that
5 would be an interesting issue.
6 THE COURT: That would change the
7 whole case.
8 MR. HAMM: We won't have a case if
9 that -- both sides will accept the bethune.
10 That issue is not before the Court. How we
11 say religious feelings going to a religious
12 court instead of going to a bethune.
13 THE COURT: But it does
14 distinguish it.
15 MR. HAMM: Not at all. The
16 bethune is for a specific purpose, that is to
17 effectuate a religious divorce.
18 Nevertheless, I am going to pars out the
19 purpose for going to a bethune and look
20 squarely to the bethune, even if the result
21 is a religious result, even if it would
22 determine eccalastical issues. We are not
23 going to determine that.
24 We are looking at the four squares
25 of our contract. (A) we are members; (B) we

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1 are entitled to burial under the contract.
2 Eccalastical issues in our case,
3 they are totally speculative. The
4 speculation at some point one of our
5 plaintiffs may have been dismembered, taken
6 out of membership is an issue, which is not
7 something that is before the Court.
8 Even if it were true no one has the
9 right to throw them out, no one has the power
10 to throw them out and the issue before the
11 Court is (a) the contract that says we are
12 entitled to burial.
13 Episcopal of the Court has parsed
14 through a contract. There were different
15 issue. Some clauses of that contract could
16 not be enforced and involve eccalistical
17 matters, yet the Court went to the specific
18 provision in the contract which provided for
19 the property rights.
20 THE COURT: It also involved
21 property rights, per se.
22 MR. HAMM: Well, yes, Your Honor
23 the burial rights also involved at the least
24 an easment of property in the cemetary.
25 There is a case called Beyondo,

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1 which says at 102 A.D. 2nd the fact is that
2 our rights under this contract should not be
3 interfered with, whether it is a contract
4 right or any other contract. Our right to
5 come before the Court to make sure our
6 contract rights are not interfered with do
7 not depend on real property.
8 They depend whether we have a right
9 under the contract and we certainly do.
10 I do want to touch on a couple of
11 little points. I don't think they are
12 critical, but I pointed out before the
13 defendant has not been sued here for damages.
14 There is no money damages sought here.
15 The right to sue against a village
16 or a member of the village, protective
17 agency, whatever it may be is and can be
18 maintained, whether all that is being sought
19 is a preliminary injunction. We're seeking
20 one against Monroe County suggests that very
21 strongly.
22 THE COURT: You would be seeking a
23 permanent injunction?
24 MR. HAMM: For sure. We are not
25 seeking summary judgment. We are here to

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1 seek maintenance of the status quo as it
2 existed right up to August, 2008 as proven
3 clearly by 34K, Exhibit 34K.
4 Those seven samples of certificates
5 issued by the congregation which were, in
6 fact, enforced were, in fact, recognized and
7 people were, in fact, buried, in fact, buried
8 with Joseph Weiss, who dug the ground and the
9 stones were, in fact, put up by Joseph Weiss,
10 the stone maker and they are in the cemetary.
11 THE COURT: Now the question there
12 is you have no indication that you have been
13 deprived of your rights.
14 MR. HAMM: Let's talk about this.
15 I think the indication is very clear, which
16 was the affidavits were submitted in support
17 of the original motion. You have people with
18 letters, who not only received letters
19 directly from 160 Rodney Street threatening
20 unless they come forward with their
21 certificates and obtain new ones. It clearly
22 meant of additional funds, arbitrary amounts
23 for burial rights. They would lose their
24 burial rights.
25 THE COURT: Mr. Hamm, how do you

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1 address Rabbi Gluck, Mr. Israel Gluck?
2 He says he is in charge and he
3 honors all of these certificates and the fact
4 that one rabbi says I am the only who has the
5 right to do so.
6 MR. HAMM: Rabbi Ezriel Gluck has
7 always maintained that position. That is why
8 Israel Gluck has been thrown out of the
9 burial society and is no longer in charge and
10 Joseph Weiss dictates who would be accepted
11 and who would not be accepted.
12 We have no problem with Rabbi
13 Gluck. We have no interest in excluding
14 anybody from the cemetary period. We have no
15 problems with people who have certificates
16 from KJ burial rights. We have no problem
17 even with the people of the Central
18 Congregation stating the certificates coming
19 forward that they be buried.
20 THE COURT: Well, Rabbi Book said
21 each congregation is issuing their own
22 certificates. When people die, they process
23 it.
24 MR. HAMM: That was the case right
25 up to August, 2008. At that point Joseph

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1 Weiss presuming to act instead of Rabbi Gluck
2 stating now he is in charge of the burial
3 society, he came forward and told people we
4 will not honor the certificates issued by the
5 congregation. You must purchase new
6 certifications from 163 Rodney Street or you
7 will not be buried in the cemetary.
8 THE COURT: He might say whatever
9 he wants to say. I realize there is a bit of
10 dispute here as to who has what authority.
11 As a practical matter it is Rabbi Gluck who
12 makes the decision. That was his
13 representation.
14 MR. HAMM: I wish it were true,
15 but Joseph Weiss is the gatekeeper of the
16 cemetary. He physically prevents people from
17 putting up headstones. He told people we
18 will prevent you from being buried in our
19 cemetary.
20 THE COURT: Let's say he says
21 those things, but if Rabbi Gluck looks at the
22 text of the headstone and says, okay, we're
23 accepting this, how does Mr. Weiss have any
24 authority to contradict it?
25 MR. HAMM: I don't know, but he

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1 has.
2 THE COURT: Had these people been
3 prevented? Other than the incident you
4 referred to, it seems to be undisputed that
5 that particular stone was not authorized.
6 You are saying it was authorized.
7 MR. HAMM: Absolutely. Rabbi
8 Gluck said it was authorized.
9 THE COURT: He doesn't say so in
10 his long affidavit.
11 MR. HAMM: He absolutely does.
12 THE COURT: Where does he say
13 that?
14 MR. HAMM: I have to find Rabbi
15 Gluck's affirmation. He absolutely says
16 that. There is no question that Rabbi Gluck
17 says that.
18 MR. KLATSKY: May I address this?
19 THE COURT: You'll have an
20 opportunity.
21 MR. HAMM: I am sorry. Reply
22 affirmation.
23 THE COURT: Of?
24 MR. HAMM: Rabbi Israel Gluck.
25 THE COURT: Wait a second here.

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1 MR. HAMM: I am sorry. Here's the
2 statement which you made was not with respect
3 to the burial.
4 THE COURT: Just a second. Here,
5 unfortunately, all of these affirmations are
6 separate so it is difficult to figure out
7 which affirmations are in support of which
8 positions.
9 MR. HAMM: Your Honor, this color
10 back.
11 THE COURT: It is your back.
12 MR. KLATSKY: That is my back.
13 THE COURT: Just a second.
14 MR. HAMM: If you look at
15 paragraph seven and eight, especially
16 paragraph eight.
17 THE COURT: Okay, all right.
18 Where it says it is his responsibility to
19 approve the language. All right.
20 MR. HAMM: Yes, paragraph eight.
21 THE COURT: So he is saying Donald
22 Schleisenger had proved it.
23 MR. HAMM: And the Schwartz's
24 those were, in fact, the stones that Joseph
25 Weiss prevented from putting up.

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1 THE COURT: All right.
2 MR. HAMM: The problem here that
3 neither the certificates nor Rabbi Gluck nor
4 any other authority other than the Central
5 Congregation, Joseph Weiss and Mr. Kaufman
6 and their followers are being recognized to
7 provide a basis for burial and erection of
8 headstones in the cemetary. That is what is
9 happening on the ground. And the basis upon
10 which they do that is simply physical control
11 over the gates, physical control over the
12 machines, which open graves. That's it. It
13 has nothing to do with authority over the
14 cemetary.
15 The congregation owns the cemetary.
16 It certainly should own this cemetary. We
17 will prove that it does own the cemetary and
18 this is being done notwithstanding the
19 ownership by this congregation and the burial
20 rights as forth in the certificates, which we
21 are trying to enforce and we're trying to
22 prevent them from interfering with.
23 Any question concerning rightness
24 of the issue, I mean affidavits here
25 including Mr. Kastenbaum's affidavit in which

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1 he was virtually forced at gunpoint -- not at
2 gunpoint -- at absolute under threat of
3 absolute prevention of being buried unless he
4 paid $9,000 to Kaufman & Weiss on behalf of
5 the Central Congregation. That affirmation
6 is in our reply papers. He was buried after
7 he paid that money. Then he stopped the
8 check. I don't know what happened after
9 that.
10 But the bottom line is, Your Honor,
11 there is absolutely a threat to the
12 plaintiffs to prevent them from being buried
13 notwithstanding the congregational ownership
14 of the cemetary and their contract rights to
15 burial.
16 THE COURT: Is it your
17 understanding now I gather that is your
18 contention, that it's the -- that Weiss and
19 the congregation of which he is a part is
20 seeking to collection a kind of surcharge on
21 the certificates. Is that what you are
22 saying?
23 MR. HAMM: They are trying to
24 impose an arbitrary number in order to permit
25 those people who are congregants and already

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1 paid for their burial rights to 152 Rodney
2 Street in order to permit them to be buried.
3 Sort of like we will not interfere with your
4 cemetary if you pay "X" amount of money. We
5 will not break the glass windows of your
6 store if you pay "X" amount.
7 THE COURT: What you are saying is
8 the Brooklyn Congregation is seeking to
9 abstract a fee on the members of Kiryas Joel,
10 Inc?
11 MR. HAMM: The other way around.
12 We are saying the congregation at the
13 original headquarters at 152 Rodney and 163.
14 152 is the original congregation and thee
15 members are members in 152.
16 THE COURT: Let's keep it simple.
17 It's both of them based in Brooklyn, no?
18 MR. HAMM: Yes, across the street
19 from each other.
20 THE COURT: Oh, I thought one of
21 them was based up in Kiryas Joel?
22 MR. HAMM: The basic congregation
23 is K.J. Congregation, which is in Kiryas
24 Joel, Inc..
25 THE COURT: Right.

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1 MR. HAMM: They have a satellite
2 congregation at 163 Rodney Street.
3 THE COURT: The point I am trying
4 to get to is there are two congregations,
5 correct?
6 MR. HAMM: Correct.
7 THE COURT: Each congregation can
8 authorize burial in this cemetary?
9 MR. HAMM: In the past they have
10 always been able to authorize burial in the
11 cemetary?
12 THE COURT: Your position is the
13 people based upstate in Kiryas Joel are
14 preventing the Brooklyn congregants from
15 exercising their own rights, which would
16 derive from their own congregation, is that
17 what you are saying?
18 MR. HAMM: They were derived from
19 the congregation. Many of the plaintiffs
20 were derived before there were two
21 congregations in Brooklyn. Yes, they are
22 trying to prevent them from being buried in
23 the congregation cemetary notwithstanding the
24 recognition that we are members and
25 notwithstanding they honored the same

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1 certificates throughout the years right up to
2 August, 2008.
3 THE COURT: Let's talk about the
4 fees they are exercising to impose. They are
5 up there. You are saying they have physical
6 control of the cemetary because they are
7 there and you are down here.
8 MR. HAMM: Joseph Weiss has
9 exerted physical control over the locks and
10 keys.
11 THE COURT: Rabbi Gluck is based
12 here.
13 MR. HAMM: Rabbi Gluck, he was
14 based up there. He was until very recently
15 an officer in K.J. Congregation. I
16 understand they have taken him out. He was
17 in the K.J. Congregation. He was a very
18 honest and practical person who wanted to
19 keep the cemetary out of the fight. That was
20 his great sin.
21 THE COURT: Is it not correct that
22 there is some adjustments paid over the years
23 in the costs that is authorized under the
24 bylaws? You pay 50 cents and you may need
25 more at the time of the burial, I presume

32
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1 depending on the cost of actually doing it.
2 MR. HAMM: The matter in which
3 this is carried out no one is disputing the
4 of the monies paid for the right to be buried
5 in the cemetary.
6 In fact, one of the exhibits shows
7 in Mr. Weiss's handwriting how the fees paid
8 by our plaintiffs and other members are split
9 up. It shows a certain amount goes to the
10 congregation and a certain amount goes to the
11 burial society to cover expenses of burial.
12 THE COURT: But the actual
13 determination it should be is paid at the
14 time of burial, is it not?
15 MR. HAMM: We're not dealing with
16 the costs of burial.
17 THE COURT: If you have a contract
18 and you have a right to be buried, it seems
19 to me your real issue is they are extracting
20 from Brooklyn congregants additional fees
21 after they bought their certificates when
22 ever they bought their certificates in?
23 MR. HAMM: Right.
24 THE COURT: No one has be declined
25 burial, isn't that true?

33
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1 MR. HAMM: The threat has been
2 made a number of times. There are well
3 affirmed affirmations in the papers, unless
4 there would be additional fees paid of an
5 arbitrary amount. Those fees, Your Honor,
6 are not fees for the preparing of the body.
7 This is all included as burial costs. As a
8 matter of fact, that is recited in the bylaws
9 concerning that.
10 THE COURT: What exhibit is the
11 bylaws?
12 MR. HAMM: Exhibit 10.
13 THE COURT: Ten to your original?
14 MR. HAMM: Yes, that's right.
15 Let's take a look.
16 THE COURT: I am having trouble
17 finding it. All right, here we go. Okay. I
18 got it.
19 I have been looking at it. I see
20 it. But I am looking a the provisions of the
21 bylaws and the description contained therein
22 regarding burial society. I see it is a
23 rather complicated process here and certain
24 rules have to be reserved, correct?
25 MR. HAMM: Oh yes, Your Honor,

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1 many of them religious in nature. We have no
2 interest in having the Court determining
3 which are proper or not proper.
4 THE COURT: I wouldn't presume to
5 do it. That is not the issue.
6 MR. HAMM: Absolutely, no one
7 disputes the burial society rights. Nobody
8 suggests the person entitled to be buried in
9 the cemetary would be required to be a member
10 of the congregation and the bylaws also
11 pursuant to the religious requirement in the
12 Satmar.
13 The issue is are we entitled to
14 burial. That is what they are raising. That
15 is what they are interfering with. They are
16 insisting we get their contract.
17 THE COURT: I think we have an
18 issue in the manner which you contend. Of
19 course, this headstone issue does appear to
20 be disputed as fact.
21 The question in my mind is whether
22 we are talking about additional fees or an
23 outright refusal to burial and what that is
24 based on.
25 MR. HAMM: I am sorry, Your Honor,

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1 if the fees that are required for payment to
2 the burial society are agreed upon in advance
3 between the congregation and the burial
4 society. As a matter of fact, the number of
5 agreement meetings held one of which was a
6 meeting attended by Rabbi Gluck and its
7 statements are in one of the exhibits. I
8 don't know if I can find the list. I will
9 try and get that for you.
10 But beyond that the sheets
11 containing Joseph Weiss's personal written
12 statements or the counsel with respect to the
13 plaintiffs and other members of the
14 congregation, he lists the names of the
15 people, the amount paid to the congregation
16 for the certificates and the percentage which
17 has to be credited towards the burial
18 society. That is all listed. Those numbers
19 are presented in advance. Our right to
20 burial is there.
21 Now whatever incidental costs may
22 exist, that is not the issue. They are
23 requiring us to pay 3,000, 6,000, 9,000
24 30,000, I understand recently for the right
25 to be buried and erect a tombstone in the

36
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1 cemetary even though we have those rights
2 based upon certificates issued with the
3 congregation and permits that are issued by
4 the congregation.
5 The fact that no one has physically
6 been prevented for burial yet, they
7 threatened absolutely to do so.
8 THE COURT: Isn't that one person
9 whose making those threats?
10 MR. HAMM: Letters had been issued
11 at 163.
12 THE COURT: The building didn't do
13 anything. There is a person who did that.
14 MR. HAMM: Joseph Weiss, Kaufman,
15 the Central Congregation sent out these
16 letters.
17 THE COURT: There are individuals
18 who do these things.
19 MR. HAMM: Absolutely, but if the
20 Central Congregation is prevented by allowing
21 these people to do this by this Court, it
22 would probably stop if the village official
23 was instructed to allow us to proceed with
24 our burials in accordance with our contract
25 than they wouldn't be interfered.

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1 THE COURT: Wouldn't you have to
2 go to the burial society, Rabbi Gluck would
3 have to approve and determine where the
4 burial was going to be?
5 MR. HAMM: Yes, Your Honor. I
6 have no problem with that in terms of there
7 is no issue really.
8 THE COURT: What if Rabbi Gluck
9 was presented with some certification of
10 felony conviction of the deceased, would he
11 have a authority to say this person doesn't
12 qualify?
13 MR. HAMM: Not Rabbi Gluck.
14 THE COURT: Who would?
15 MR. HAMM: It could be made by the
16 Grand Rabbi, if they had a Grand Rabbi. It
17 could be made by the officers if, in fact,
18 they had the authority to do so recognizable
19 in court.
20 In the absence, it would have to be
21 each of the Grand Rabbis coming forward and
22 saying this person can or cannot be buried or
23 both sets of officers saying this person
24 cannot be buried.
25 If that happened, this person would

38
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1 not be entitled to be buried. But that is
2 not the issue.
3 THE COURT: You mean because that
4 scenario hasn't taken place?
5 MR. HAMM: Not just that it has
6 never taken place. The likelihood of that
7 taking place would be virtually nil. It
8 would be like a meteor falling on our
9 property if we have to worry about issues far
10 afield.
11 THE COURT: Okay, go ahead, Mr.
12 Hamm.
13 MR. HAMM: I want to cover a
14 couple issues. The rightness issue has been
15 clearly addressed. It is something beyond
16 the reach of the parties, which would Rabbi
17 occur which would prevent the Court's order
18 from being effectuated. That is not the
19 situation here.
20 The situation is they are
21 preventing the congregation from acting as it
22 is suppose to, to enforce our contracts. The
23 standing issue is we are the ones threatened
24 by the loss of our contract rights. I don't
25 think there should be an issue as the Society

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1 of Plastics Incorporated, a Court of Appeals
2 case indicates, when a claim is germane to
3 its purpose. The order is germane to the
4 people making the claim. They are entitled
5 to get a declaration.
6 We are seeking here a preliminary
7 injunction leading to a permanent injunction.
8 But right now even if there are issues of
9 fact, even if there is some question as to
10 whether Mr. Rabbi Gluck or Mr. Weiss is
11 really the person who is in charge, that does
12 not prevent us from getting our preliminary
13 injunction. That is what the CPLR means in
14 6312. We are entitled to it on the basis of
15 the arguments we have presented.
16 We have covered the basis for a
17 preliminary injunction and respectfully, Your
18 Honor, we believe we have. This is
19 jusdiciable. The contract right is
20 jusdiciable right and their rights to though
21 in eccalistical issues by saying our
22 congregation may be eliminated. It does not
23 mean our contract claim is not judiciable.
24 It means their defense is nonjudiciable.
25 Unless you have questions.

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1 THE COURT: No.
2 Mr. Rubin.
3 MR. RUBIN: Yes.
4 THE COURT: There is a separate
5 issue about whether the motions are alive.
6 What I think I would like to do is address
7 the threshold question first. But you can
8 state the nature of this cross motion.
9 MR. RUBIN: Well, the nature of
10 the cross motion was also for preliminary
11 injunction to prevent the CYL meaning CYL
12 Cemetary Inc. and the persons purporting to
13 act in its name and its behalf from
14 exercising incidents of ownership with
15 respect to the cemetary.
16 When we were first here a couple of
17 months ago one of my adversaries, Mr. Fisher
18 made the point that no one had challenged the
19 2006 transfer of the cemetary from
20 Congregation Yetev to CYL Cemetary Inc. We
21 certainly felt that that was not a situation
22 that was going to continue. We filed a cross
23 claim to put the cemetary back where it
24 belongs in Congregation Yetev.
25 In support of that yos claim we

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1 filed a motion for injunction. It is that
2 transfer which permits the CYL defendants by
3 waiving deeds around in the village authority
4 and police it to act as owners and effecuate
5 the threats made by Joseph Weiss and K.J.
6 Fashion in the congregation to exercise
7 physical dominion and control over that
8 property.
9 THE COURT: Hasn't this already
10 bun litigated?
11 MR. RUBIN: What we are talking
12 about here is an attempt to undo the fact
13 that the Court should undo the second
14 transfer effectuated to frustrate the result
15 of the first attempt to a transfer. You had
16 a 2000 transfer of 50 percent. It was
17 litigated in the Court of Appeals and held
18 that that transfer should not be sustained.
19 The Appellate Division mandated title be put
20 back.
21 THE COURT: Wasn't it done?
22 MR. RUBIN: The way before it was
23 done a new deed was filed and that was the
24 nature of the cross claim to CYL Cemetary
25 Inc., this newly formed corporation, this was

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1 done 7 days or so and directed the first
2 transfer be undone and title of the cemetary
3 be transferred to the congregation.
4 So in a transparent transfer to CYL
5 Cemetary Inc., by the time of the Court of
6 Appeals, the Appellate Division had been
7 correct unbeknownst to the Court of Appeals
8 and not part of the record in that case the
9 cemetary had been transferred again.
10 We simply want the second transfer
11 reversed title to the cemetary, put back
12 where the Appellate Division and Court of
13 Appeals have clearly said it belongs and an
14 injunction simply to prevent further
15 transfers to again evade enforcement of the
16 judicial decrees recording the fact Yetev Lev
17 is the proper title owner of that cemetary.
18 We don't ask for any relieve for
19 control of Yetev Lev. As such, we realize
20 that would get us in to eccalastical and
21 nonjudiciable territory.
22 As Mr. Hamm pointed out and we
23 pointed out by companion decision, the same
24 day as the Friedman election decision holding
25 that certain issues were eccalistical and

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1 nonjudiciable. That is all we want and to
2 prevent monkey business from taking place
3 with respect to the title of the cemetary.
4 THE COURT: Are you contending it
5 was in violation of the court orders?
6 MR. RUBIN: Regardless, under the
7 principles established in the decisions in
8 those cases, I am saying, yes, that order was
9 either in violation or an evasion of the
10 court orders or further acts attempting to
11 precisely those goals, which the Court of
12 Appeals has already held do not constitute a
13 legitimate justification for transferring the
14 title to the asset in question, which is the
15 cemetary and the cross claim simply seeks to
16 reverse that transfer.
17 I know that despite two sets of
18 papers put in opposition and reply under the
19 cross motion, there is no attempt to defend
20 the second transfer on the merits. There is
21 no response to the new corporation that were
22 identified. The only attach is on the
23 opposed nonjudiciality, which in the face of
24 Supreme Court, Orange County thought it was
25 judiciable. Certainly, the Court of Appeals,

44
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1 which reversed and then affirmed the
2 Appellate Division they gathered and this
3 Court, at least with respect to the property
4 rights issue may be prepared to recognize
5 this is indeed judiciable.
6 THE COURT: Mr. Rubin, what I need
7 to understand is you brought this cross
8 motion during under another action.
9 MR. RUBIN: The cross claim of
10 this action, the Clerk gets a separate fee,
11 but it is not a different action; it is the
12 same action.
13 THE COURT: It's against Burrell
14 Friedman?
15 MR. RUBIN: No, I am not sure if
16 Burrell Friedman is in the original caption.
17 THE COURT: That is why I am
18 taking note of that.
19 MR. RUBIN: As I pointed out the
20 CPLR expressly authorizes additional
21 defendants on a cross claim so we merely
22 added four additional defendants.
23 THE COURT: Has this been served?
24 MR. RUBIN: It has. I don't
25 believe the Answer time has not yet run.

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1 THE COURT: I will not entertain
2 this now. I do see responses. It seems
3 premature. If there is a reason to consider
4 it, perhaps, it is appropriate, but not right
5 now. We're dealing with the underlying
6 matter.
7 MR. RUBIN: The request of the
8 preliminary injunction in aid of that cross
9 claim runs against the individuals and
10 corporations in addition to the four
11 additional defendants, who are already before
12 the Court. Most of the defendants on the
13 cross claim, all of the corporate defendants
14 and many of the individual defendants are
15 here now.
16 THE COURT: Mr. Rubin, I don't
17 think you are understanding what I am saying.
18 This is premature to address this without
19 full pleadings and without fully developed
20 record at the moment you want me to address
21 this. I could sever your cross claim and let
22 it proceed to address it now in the posture
23 of the original case. I am not doing it
24 right now.
25 Now I know there has been responses

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1 to this, but I don't think the responses I
2 recall was a claim that it was premature. I
3 think it is premature. But let's address the
4 underlying issues here and we'll move on to
5 the next party's attorneys. I am not going
6 to permit you to continuing arguing this
7 we're going to deal with the underlying
8 original action.
9 First, if it is appropriate or
10 necessary to sever it, I will do that.
11 MR. RUBIN: I don't want to
12 address that further, but I do want to
13 address something else.
14 THE COURT: What?
15 MR. RUBIN: As Your Honor knows
16 there are competing administrations to the
17 congregation.
18 In opposition to Mr. Hamm's
19 presentation you can be sure the other side's
20 congregational position as it were will be
21 fully addressed and fully aired for the
22 benefit of the Court and I simply wanted to
23 address the congregation's position with
24 respect to Mr. Hamm's motion and the issues
25 it raises.
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1 THE COURT: Aren't you supporting
2 Mr. Hamm's motion?
3 MR. RUBIN: In chief I am.
4 THE COURT: That's fine. I think
5 we can move on to someone who took a
6 different position if it is appropriate and
7 necessary.
8 Mr. Klatsky, Mr. Vider, you are
9 jointing with Mr. Rubin?
10 MR. VIDER: That's correct.
11 THE COURT: So Mr. Klatsky for
12 Rabbi Gluck you wanted to intervene in the
13 prior argument.
14 MR. KLATSKY: Thank you, Your
15 Honor.
16 Your Honor stated a few minutes ago
17 that Rabbi Gluck is the one who has the final
18 authority whether someone was buried. That
19 was the case up to August of 2008. It was
20 long disputed that Rabbi Gluck was the head
21 of the burial society. Before this dispute,
22 he used his personal authority that all of
23 the members, ordinary members who have burial
24 certificates that they acquired from the
25 congregations, respective congregations that

48
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1 they belong to would be buried subject to
2 verification that they did, in fact, hold a
3 valid burial certificate.
4 Rabbi Gluck says anybody who holds
5 a valid burial certificate is going to be
6 buried in the cemetary regardless of factual
7 disputes from competing organizations. That
8 is, in fact, what he was able to enforce up
9 to August of this year when the defendants in
10 this case using the fact that cemetary is
11 physically located in Kiryas Hills the
12 ability of not just the town authorities, but
13 also the state police up there by a
14 combination of force and the use of their
15 control of local authorities it started
16 preventing people from actually exercising
17 the rights of burial that they inquired from
18 the original Brooklyn Congregation.
19 THE COURT: You are saying this
20 was from what date?
21 MR. KLATSKY: Starting in August.
22 It was August they sent out a notice from the
23 Shadow Congregation, 163 Rodney Street saying
24 that certificates issued by the original one
25 will no longer be honored and people want to

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1 be buried in the cemetary are going to have
2 to buy new certificates from 163. They
3 actually attempted to prevent somebody from
4 being buried unless they came up with money
5 as Mr. Hamm described.
6 THE COURT: I am a little puzzled.
7 I have the affirmations of Rabbi Gluck and I
8 perceive from what he said that he was in
9 charge and then he has been able to authorize
10 the burial of both members of both
11 congregations.
12 Now you are telling me that is not
13 true. I am not quite clear on what his
14 position is.
15 MR. KLATSKY: At the last
16 appearance the Court heard oral arguments by
17 a person who was first denied burial and they
18 came up with additional money and started
19 with 163 Rodney and Joseph Weiss.
20 THE COURT: So you would support
21 an injunction against the demand by the
22 Brooklyn -- no by the Kiryas Joel
23 Congregation of additional fees for burial,
24 that it is a straight congregation that
25 should determine additional costs if there

50
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1 are anyone.
2 MR. KLATSKY: The issue is not
3 about the moment.
4 THE COURT: It does sound it is
5 about the money honestly.
6 MR. KLATSKY: The issue is the
7 certificate from 163 is not a certificate you
8 must buy one. That is the real issue, not
9 the money.
10 THE COURT: That is exactly before
11 me. If that is really what this is about,
12 which congregation is going to control the
13 cemetary and why and how that's a different
14 issue, it looks to me like it is money. Your
15 contention is it seems to me not yours per
16 se, but Mr. Hamm's without any legitimacy
17 whatsoever the Kiryas Joel, Inc. Congregation
18 has undertaken to demand from the members of
19 the Brooklyn Congregation additional fees to
20 be paid for the rights pursuant to the
21 certificates to be buried. It seems that it
22 is the money issue that, perhaps, are using
23 this to take control, but it is the money.
24 MR. KLATSKY: There are
25 nonmonetary ways of interference. If the

51
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1 Court issues an injunction, it should be any
2 type of interference holds a valid
3 certificate as long as that person is in good
4 standing in the congregation that they belong
5 to that is what was done in the past. That
6 is status quo. Gluck stated the status quo
7 should be preserved.
8 THE COURT: Mr. Klatsky, let me
9 clarify something with you. I put great
10 stock in the affirmations that have been
11 submitted by Rabbi Gluck. It looks like he
12 is the one person who really should have the
13 authority to be making these decisions. He
14 seems to be charged with that authority
15 goinge back fifty years from the Grand Rabbi.
16 I see lip service being paid around here if
17 this authority is not compromised and he is
18 acting consistently as the original charge of
19 the burial society.
20 MR. KLATSKY: The continuation of
21 past practices and allowing Rabbi Gluck that
22 resolves the position.
23 THE COURT: The positions may be
24 that the congregations are jockeying for
25 different positions, but if Rabbi Gluck does.

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1 MR. KLATSKY: Everybody should be
2 prevented from Rabbi Gluck thing continuing
3 to be done the way it was done during the
4 course of dispute.
5 THE COURT: I assume Rabbi Gluck
6 is not a young person.
7 MR. KLATSKY: He is 87 years old.
8 THE COURT: When Rabbi Gluck is no
9 longer a person acting in this position, how
10 will his successor be selected?
11 MR. KLATSKY: That I could not
12 answer. That will have to be addressed when
13 Rabbi Gluck ceases from being the head of the
14 burial society. The bylaws do provide for
15 it. It is not before the Court.
17 Mr. Buss, are you deferring to Mr.
18 Fisher?
19 MR. BUSS: Just to minimize the
20 amount of time.
21 THE COURT: That is fine. You
22 represent the same clients so one of you will
23 address that. All right.
24 Mr. Fisher.
25 MR. FISHER: Let me get rid of

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1 some of the sideshow issues. Rabbi Gluck
2 whether he was once a head of the burial
3 society is no longer in the Satmar community.
4 It was declared to be retic. If Your Honor
5 wants to get in to the business of
6 ecclastical or whether or not the
7 congregation he claims owns this society and
8 controls burial society prefer to recognize
9 him as herogat.
10 THE COURT: Who decided he is
11 herogat?
12 MR. FISHER: KY.
13 THE COURT: Is that the
14 congregation he was a member of?
15 MR. FISHER: Yes.
16 THE COURT: You say without any
17 question. Is there some documentation to
18 that affect?
19 MR. FISHER: There is, Your Honor.
20 We haven't put it before the Court.
21 In fact, in discussing this within
22 the congregation that provision for the
23 argument, most of the leaders reminded Rabbi
24 Gluck is inheritor.
25 THE COURT: What did he do?

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1 MR. FISHER: Frankly, it never
2 concerned me. It is a religious thing.
3 I can certainly find out. I
4 believe Mr. Mahon can address this.
5 MR. MAHON: In the last election
6 they had in 2008 he was not formerly elected
7 in November, 2007. He was formally expelled
8 by Grand Rabbi. He submitted documentation
9 to the Israeli Court.
10 One of the key tenants of Satmar,
11 they are Anti Zion. By a vote of the
12 Congregation Board.
13 THE COURT: This was in November
14 of 2007?
15 MR. MAHON: Correct.
16 THE COURT: Before the
17 commencement of this action?
18 MR. MAHON: That is right.
19 MR. FISHER: In any event, let me
20 take care of this headstone issue that Mr.
21 Hamm made much a do about. Rabbi Gluck in
22 his affirmation, which you have before you
23 also stated that February 12 that the
24 headstone has been erected so that headstone
25 is no longer an issue for anyone. Everybody

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1 who is in the Satmar cemetary, frankly, was
2 buried because they had a right to be buried.
3 A decision was made to bury them. There is
4 nobody whose body is lying around, certainly
5 none of the plaintiffs, which was an issue
6 Your Honor was concerned about.
7 THE COURT: Yes, it did concern
8 me.
9 Now I see the real issue has to do
10 with the extraction by your congregation of
11 fees from other congregations in order to
12 effectuate their rights.
13 MR. FISHER: First of all, it is
14 not extraction of fees of extortion of the
15 fees or anything other of a carrying out the
16 precepts of the bylaws.
17 If you want to be buried in the
18 Satmar Cemetary, everything you owe to the
19 congregation has to be settled up before you
20 can be buried.
21 THE COURT: We know this. This is
22 no secret.
23 The issue here has to do with that
24 the congregation is going to decide what is
25 owed to whom.
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1 What I have heard from the other
2 side is that and what I heard and what I see
3 in Rabbi Gluck's affirmation is that
4 everybody gets treated the same. Everybody
5 of the Satmar members presumptively unless
6 ex-communicated in some way by their own
7 congregation.
8 MR. FISHER: Or by their own
9 actions.
10 THE COURT: This always becomes
11 whose making that call.
12 But the question I have for you is
13 how does the Kiryas Joel, Inc. Congregation
14 become entitled to tell the Brooklyn
15 congregation and those members of the
16 Brooklyn congregation were presumed to be in
17 good standing, that in order to be entitled
18 to be buried in the cemetary they now have to
19 pay additional fees?
20 MR. FISHER: We are the Brooklyn
21 Congregation. It is the Grand Rabbi of El
22 Satmar. It is not of him picking and
23 choosing. Others are sitting at the table.
24 He is the Grand Rabbi.
25 THE COURT: You are saying there

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1 is no dispute?
2 MR. FISHER: Even if it is a
3 dispute, it's non secular issue, who is the
4 Grand Rabbi in charge. We keep going around
5 in circles. There is nothing new to this
6 argument. There is nothing new to Mr. Hamm.
7 There are a few things I would like
8 to point out to the Court so we have a fresh
9 record.
10 Mr. Hamm makes the argument nobody
11 can throw their members out of the
12 congregation. If he is right, there is
13 nobody can validate them as members.
14 So Your Honor can't reach that
15 point.
16 I don't think anybody would make an
17 argument that to be buried in the Satmar
18 Cemetary you have to be a member of the
19 Satmar at the time you die.
20 The question of whether you are a
21 member of Satmar is beyond the reach of this
22 Court.
23 THE COURT: Let me just ask you:
24 Do the members who do support and I forgot
25 Zellman.
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1 MR. FISHER: Aaron.
2 THE COURT: I can't remember.
3 MR. FISHER: I have to walk out
4 into the street after this, Judge.
5 THE COURT: Well, all right. Now
6 I've forgotten the question I was about to
7 ask you. Go ahead with your argument.
8 MR. FISHER: None of the
9 plaintiffs have died. None of the plaintiffs
10 argues that they have been asked for any
11 money as a precondition to being buried in
12 Satmar Cemetary.
13 THE COURT: I remembered my
14 question. Do the members of the community
15 over which Aaron as Grand Rabbi presides, do
16 they have to pay the additional fee to get
17 the certificate too?
18 MR. FISHER: Every member of
19 Satmar on the day of reckoning pays what is
20 owed to the Congregation, every member.
21 THE COURT: I am talking about the
22 certificates, which seems to be the focal
23 point of this and not necessarily fees that
24 are due at the time of burial? Do you
25 understand my question?
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1 MR. FISHER: I believe I do. The
2 answer is, yes.
3 THE COURT: The Aaron adherence
4 also?
5 MR. FISHER: Pay.
6 THE COURT: Have to pay to get a
7 piece of paper that says you have the right
8 to be buried?
9 MR. FISHER: Yes.
10 THE COURT: It is the same amount
11 for everybody?
12 MR. FISHER: To the best of my
13 knowledge and not only are you required to
14 make that payment, but if you then die and
15 die owing to the Congregation, they can
16 refuse your burial for that reason.
17 If you abandon the faith. Even if
18 you were a member of the congregation at the
19 time when you purchased this honorary
20 membership certificate and you leave the
21 faith, you are not entitled to be buried.
22 THE COURT: What is the
23 significance of the certificate?
24 MR. FISHER: The purpose of the
25 certificate is on a given day it establishes

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1 a future possibility that you could be buried
2 in the cemetary.
3 There are any number of reasons why
4 you may not be buried, including space,
5 leaving the faith, being ex-communicated,
6 deciding to be buried some place else, not
7 paying your money to the congregation.
8 THE COURT: Why would anybody buy
9 a certificate?
10 MR. FISHER: As a way of
11 contributing to the Congregation and on the
12 day that you die it says you conformed to the
13 beliefs of the Congregation. It is an honor.
14 THE COURT: It says it guarantees
15 no secure guarantees.
16 MR. FISHER: You will be
17 considered.
18 THE COURT: Can somebody without a
19 certificate have a right to be buried there?
20 MR. FISHER: Without a
21 certificate?
22 THE COURT: Yes.
23 MR. FISHER: There may be
24 situations where somebody might be buried
25 there.
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1 THE COURT: It is a prerequisite.
2 MR. FISHER: It is made by the
3 Burial Society.
4 THE COURT: You are not answering
5 my question. What does the certificate
6 really mean?
7 Now I guess you represent it is
8 just honorary. There is no entitlement. Now
9 I am asking you the converse. Do you have to
10 have the certificate to be considered?
11 MR. FISHER: Yes.
12 THE COURT: You do?
13 MR. FISHER: Yes.
14 THE COURT: It is a precondition?
15 MR. FISHER: Yes.
16 THE COURT: The people who already
17 have the certificates?
18 MR. FISHER: Yes.
19 THE COURT: Do they have the
20 right?
21 MR. FISHER: If they meet the
22 other conditions for burial at the time they
23 die.
24 THE COURT: And everybody has to
25 meet those conditions, which is eccalastical

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1 issue. I understand that.
2 MR. FISHER: Yes.
3 THE COURT: My situation has to do
4 with the certificates, the complaints the
5 plaintiff's are making. You have to turn in
6 your certificate or your existing certificate
7 is no good. You have to purchase another
8 one.
9 MR. FISHER: No. If you got a
10 certificate, bring it in, we want to verify
11 it.
12 THE COURT: They paid for it.
13 MR. FISHER: We know there are
14 certificates that are being issued
15 improperly. We know that. So what the
16 parties who sought the verification did is
17 tried to avoid future confusion as to whether
18 or not somebody has a valid certificate or
19 not. That's all they tried to do. They
20 established a deadline for doing that. They
21 said if it can't be established that you have
22 a valid certificate, there is a possibility
23 that you might be denied burial.
24 No one has been denied burial. No
25 one.
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1 THE COURT: Okay.
2 Now what about the money? If the
3 certificate is found to be valid, does the
4 certificate holder still have to pay more
5 money?
6 MR. FISHER: I think Mr. Mahon
7 can better address that than I can.
8 THE COURT: Okay, go ahead, Mr.
9 Mahon.
10 MR. MAHON: The answer to that
11 somebody is paid up in their dues, the dues
12 can vary depending how far you are. Places
13 of honor in terms of being closer to the
14 Grand Rabbi and places where you are much
15 further away. Everybody has to pay in terms
16 of all dues being current and actual expenses
17 of burial.
18 THE COURT: I understand that.
19 You are really not answering my question.
20 I heard from Mr. Fisher the
21 certificate is a precondition to the burial
22 with the understanding the fees have to be
23 paid. That is across the board.
24 My question is, does that
25 certificate get recognized without the

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1 payment of additional fees if it is valid?
2 MR. MAHON: The answer to that is
3 yes. It is a long standing certificate that
4 Chevre Kadishe already issued probably around
5 2003 or 4.
6 Another faction started publishing
7 their own certificates. They were never
8 recognized for 50 years. That was the reason
9 for different certificates, which was valid
10 and which was not. That is part of the
11 reason that gave rise to this entire lawsuit.
12 It is certificates issued by Chevre Kadishe
13 that has always been honored.
14 There has never been an occasion,
15 not one, that a Chevre Kadishe has never been
16 honored.
17 MR. FISHER: That takes us back
18 further. There are eccalistical issues that
19 have to be made and can only be answered when
20 that person passes away.
21 If there is any disputes, there is
22 an internal methodology that has been there
23 from day one to resolve those issues.
24 Mr. Hamm can talk all he wants that
25 they are not reaching eccalistical issues.

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1 Every time you turn the page is the
2 membership one, whether the terms and
3 conditions of the bylaws have been met and
4 whether the conditions for burial are met.
5 this is why the Court of Appeals moved away
6 from this case of Avaram case.
7 THE COURT: Is that contained in
8 the papers?
9 MR. HAMM: It is not annexed.
10 THE COURT: A citation is not
11 going to help me as I sit here.
12 Does somebody have a copy?
13 MR. FISHER: I know the case. I
14 don't have a copy.
15 THE COURT: I am sure you are well
16 prepared. I would like to refresh myself on
17 the subject.
18 (Document produced.)
19 THE COURT: This is from 1983.
20 This is okay. Go ahead.
21 MR. FISHER: 58 New York 2d, 108.
22 It is a 1983 case. There, Your Honor, there
23 was a contract that existed that required the
24 parties to go to a rabbinical arbitration to
25 vest in.
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1 The Court simply said in that case
2 a contractual, a secular contractual
3 obligation to do that, I believe the husband
4 was contractually found himself. The Court
5 said you agreed go to Bethsa. It didn't
6 decide any of the issues leaving them to the
7 Bethsa. The Court found it would be more
8 appropriately and the best way that the
9 parties has chosen. That is all the case
10 stands for.
11 So here if there is Bethsa in that
12 it is resorted to. It is under the
13 congregational bylaws. If you are going to
14 send a case anywhere, send it to Bethsa. If
15 you are going to try this case, you will wind
16 up in eccalistical issues.
17 THE COURT: Are you suggesting I
18 have authority to send it to bethune in the
19 absence of a contractual agreement that might
20 be an act of eccalistical determination
21 itself?
22 MR. FISHER: It is a long
23 complicated answer. The answer is maybe.
24 If there is any evidence to
25 indicate anywhere in the record that any of

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1 the parties submitted themselves to a bethune
2 during any time, then I think the Court can
3 state the parties agreed to follow the
4 bethune and, maybe, you could do that.
5 THE COURT: Is there any?
6 MR. FISHER: I do not know. The
7 Satmar Rabbinical Courts have issued certain
8 rulings. I can't tell you off the top of my
9 head. I just would have to research that,
10 Your Honor.
11 But the point of the matter is
12 this, whether or not you have the authority
13 on the present record to send this case to
14 bethune, what you certainly can do on the
15 face of the record is to recognize the fact
16 that every issue in this case is bound up in
17 the issues in the Satmar community and they
18 are nonjudiciable despite the fact Mr. Hamm
19 is passionately arguing that his client's
20 present rights have been impeded.
21 The fact of the matter is they are
22 simply asking for an advisory opinion of this
23 Court.
24 None of them have past away. There
25 is simply no reason for injunctive relieve by

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1 this Court at all.
2 I also point out that Mr. Hamm made
3 reference twice there was a check issued to
4 pay for burial and then the check was stopped
5 payment on. The last time I looked at the
6 Penal statute, I think a crime may have been
7 committed by doing that.
8 If they knowingly and willingly
9 issued that check and then stopped payment, I
10 believe that is a critical act.
11 THE COURT: You may want to take a
12 walk across the street to Mr. Hynes' office.
13 MR. FISHER: If I say it loud
14 enough, maybe, the walls will listen. I
15 think it is entirely unreasonable to rely on
16 their own criminal act. There is nothing
17 more than an attempt here on the part of the
18 Sarmar supporters to find a new and, perhaps,
19 creative way to say the same things that we
20 have been saying to the Court since 2000.
21 Your Honor has been familiar with
22 this case for a very, very long time. I am
23 sure that you recognize the weaknesses in
24 their arguments. Perhaps, the Congregation
25 didn't follow the niceties of doing their

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1 verifications in the way that would please
2 everyone, but it doesn't change the fact that
3 these eccalastical acts on the part of a
4 religious organization seeking to enforce its
5 own religious rights.
7 Mr. Mahon, you want to supplement
8 that argument?
9 MR. MAHON: Yes, just to keep in
10 mind I rim the KR Congregation. I will try
11 not to repeat myself, but there are a couple
12 of points I want to address.
13 THE COURT: Let me make sure you
14 call it the Congregation.
15 MR. MAHON: I call it the KJ.
16 THE COURT: Kiryas Joel, Inc.
17 MR. MAHON: One of the points I
18 wanted to at the outset state is there is one
19 Congregation called Congregation Yetev Lev
20 Satmar Inc. In that one congregation that
21 encompasses all of Satmar. There may be
22 other separately incorporated sub-sets of
23 that Congregation, but the K.J Congregation
24 comes under the umbrella of one congregation.
25 Even before the KJ people or KJ Congregation,

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1 just to avoid, there is one Congregation.
2 For that one Congregation there is a
3 competition in terms of who is the Grand
4 Rabbi. It just so happens the Grand Rabbi,
5 who we contend is the one Titlebaum, who also
6 happens to be the Rabbi up in K.J. I want to
7 avoid that confusion from the outset.
8 THE COURT: There is an
9 affirmation the prior Grand Rabbi, who was
10 also Kadishe Joel.
11 MR. MAHON: The father of Zellman
12 and Aaron was Moses.
13 THE COURT: Before his death he
14 authorized the oversight of these two groups
15 by these two sons. There is that
16 representation.
17 Do you accept that?
18 MR. MAHON: We accept having really
19 happened in the last years of his life Moses
20 Titlebaum was debilitated by Alzheimer's and
21 dementia disease.
22 What happened is Wilmos Friedman
23 was a friend of the Grand Rabbi, a close
24 confidante of his, the Grand Rabbi. He
25 wholeheartedly believed people who were

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1 around his father, who saw him and controlled
2 visits by family members and also controlled
3 what documentation was issued under his name.
4 There is proof of documentation that has been
5 forged, unauthorized cut and pasted together.
6 To answer your question we believe
7 Grand Rabbi Aaron, who is the oldest son, has
8 great significance in this faith, not Rabbi
9 Zellman. Rabbi Aaron is the true successor.
10 It was always the desire of his father. That
11 is our position as to who should be the
12 successor. I know he is --
13 You are not going to decide that
14 issue today.
15 THE COURT: Did he have a
16 daughter?
17 MR. MAHON: I did want to clarify.
18 There is one thing to clarify. There may be
19 different incorporated entities in different
20 parts of the Satmar community.
21 Your Honor, what strikes me more
22 than anything else, I know it has been
23 alluded to, we have a true dictcotomy. We
24 have two competing burial societies. We have
25 competing boards, competing board members,

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1 competing expulsion decrees or directors,
2 whether it is Friedman Rabbi Gluck.
3 We also have competing president.
4 And, finally, we have competing
5 Grand Rabbis.
6 I also want to dispel the mystery
7 about these certificates. You asked a lot of
8 questions last time what are we talking
9 about. These certificate, the ones that have
10 been issued for 50 years are call honorary
11 member certificates. They are not secular
12 documented. Not contracts. They are
13 religious documents for burial in a private
14 religious cemetary on private property.
15 Casting aside years of history
16 others started to print their own
17 certificates that caused a lot of stir.
18 Bring in your certificates. We
19 want to make sure you don't have one of the
20 newly minted ones and you have one that has
21 been recognized for years. That is what
22 started the whole thing. It is really as
23 simple as that.
24 I want to comment on Rabbi Gluck.
25 Take a look at the affirmation of Joseph

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1 Weiss, who attacks an affidavit that Rabbi
2 Gluck had given in 2005. He says two things
3 diametrically opposite.
4 In 2005, I don't make a decision on
5 my own and all of the different
6 determinations I consult with the Board, I
7 also consult with all of the leaders of the
8 Burial Society.
9 Now in 2009 he says, I do it
10 myself. I don't, don't talk to anybody. I
11 have unilateral authority of who is buried,
12 what the monument says and what plot is
13 chosen.
14 I also want to point out Rabbi
15 Gluck is an elderly man. He is pushing 90.
16 For the last 30 years, Joseph Weiss, the
17 person who even before this dispute has been
18 the contact person that everyone know in the
19 community.
20 THE COURT: Are you saying Mr.
21 Weiss has the authority even before the death
22 of the prior Grand Rabbi?
23 MR. MAHON: Yes, Your Honor.
24 THE COURT: Is there an election
25 to that position?
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1 You call it the head. It looks
2 like president is the title.
3 MR. MAHON: Then we get pulled
4 back in to the whole election dispute.
5 If you look at the election, yes,
6 there were prior ones. You would see Rabbi
7 Gluck and Joseph Weiss's name.
8 As I mentioned earlier, Grand Rabbi
9 Aaron Titlebaum did dispel Rabbi Gluck. He
10 was expelled. That happened in 2007, even
11 before this litigation started.
12 There is a request for injunctive
13 relieve, a fear of what may happen in the
14 future as we sit here today and make these
15 arguments. I defy Mr. Hamm or anybody to
16 show nobody has been denied burial based on
17 these certificates that have been used for 50
18 years. That is really the bottom line.
19 THE COURT: Now Kiryas Joel, Inc.?
20 MR. NICHOL: Donald Nichol.
21 I had hoped we'd be stipulated out.
22 That apparently wasn't in the cards.
23 I want to make sure you have our
24 papers. We have a motion and reply.
25 THE COURT: Motion?

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1 MR. NICHOL: To dismiss against
2 the Safety Director.
3 The only complaint he responded to
4 is the gatekeeper, who has the keys, the one
5 we work with tells us who is who and what is
6 what. We call the State Police and we
7 thought it was appropriate. That's the only
8 thing we did.
9 We should not be enjoined from
10 enforcing the law within the community.
11 If you see in my papers I indicated
12 we have qualified immunity. It would have to
13 be proven we intentionally violated rights.
14 If I had some way of knowing who is
15 right here, I might have not qualified.
16 THE COURT: It is Mr. Nichol.
17 MR. NICHOL: Yes, Your Honor.
18 THE COURT: I guess my question is
19 whether you or your client is in any way
20 involved in the Satmar Congregation on either
21 side or any side and so Mr. Moisha.
22 MR. NICHOL: In the caption it is
23 Moses.
24 THE COURT: Moses Witrial.
25 MR. NICHOL: Spelled with a "W".

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1 THE COURT: Moses Witrial is not a
2 member of Satmar Congregation.
3 MR. FISHER: He is, he is
4 appointed by the governmental official, the
5 mayor.
6 We have a secular government that
7 is an actual New York Village Government that
8 runs everything by the book, has law
9 enforcement laws, rules, regulations just
10 like any local government.
11 When the citizen has a complaint,
12 they call the Office of Public Safety and we
13 respond to the complaint.
14 THE COURT: I think you can
15 imagine where I am going with this. That is
16 you, as part of the governing organization or
17 structure of the Kiryas Joel, Inc. community,
18 are not necessarily part of that community.
19 Is this a secular government over religious
20 community?
21 MR. NICHOL: Yes, there is a
22 secular government of New York that governs
23 Brooklyn.
24 THE COURT: There are a lot of
25 different congregations in Brooklyn.

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1 MR. NICHOL: It is like any other
2 members are mostly Satmar.
3 MR. FISHER: The village holds
4 elections. There is an elected government.
5 THE COURT: I don't know that I
6 have to reach that issue at all. I think my.
7 We'll see. All right. Are we
8 finished with that? You wish to reply?
9 MR. HAMM: Yes, if I may.
10 THE COURT: Briefly, please.
11 MR. HAMM: Very briefly.
12 In terms of the different
13 certificates, which have been referred to,
14 Your Honor will see that the so called good
15 certificates, the six which even Mr. Weiss
16 concedes are proper certificates were all
17 signed by congregational officers.
18 In fact, it says right on the front
19 of the certificate that it is signed by
20 members of the Board of Trustees of the
21 Congregation.
22 THE COURT: I don't think that is
23 disputed.
24 MR. HAMM: Well, it is disputed
25 because it is asserted that the certificates

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1 are actually issued by the Burial Society.
2 In fact, the officers who signed
3 those original certificates were signed by
4 officers of the congregation.
5 The only distinction with respect
6 to the certificates issued more recently it
7 is in the form. Substantively, they are
8 identical. They provide for the same
9 contract rights.
10 I want to make clear honorary
11 member certificate honorary is the adjective
12 of member. It is not the adjective of
13 certificate. The certificate is a solid
14 contract. It says so on its face. It is
15 supported by 34K of our Exhibit 34K, which
16 was the proposal. It is a form proposal for
17 the purchase of the certificate.
18 It says you are getting a contract.
19 If you pay in full you are getting a contract
20 for burial.
21 Now there was question raised
22 concerning and Your Honor is absolutely
23 correct concerning the establishment of Rabbi
24 Aaron as the Rabbi of K.J and rabbi Solomon
25 as the Rabbi in Brooklyn.

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1 In fact, that Rabbi Solomon was the
2 Rabbi in Brooklyn was something
3 congratulatory announcement was signed by
4 Exhibit 20. It was signed by amongst many
5 others Bella Friedman. It was very clear
6 that Solomon was made the Rabbi in Brooklyn.
7 I am not interested here though in
8 getting in to the issues before Rabbi Aaron
9 and Rabbi Zellman. That is not being
10 presented here.
11 What we are presenting is a
12 certificate which entitles us to burial.
13 There was a statement that is inapplicable.
14 THE COURT: You raised it in your
15 original argument and we had that
16 conversation. We don't need a
17 recapitulation.
18 MR. HAMM: Very good.
19 The suggestion is there is no issue
20 before the Court because none of the
21 plaintiffs have died.
22 Pardon me. There are many people
23 in identical positions. They were approached
24 and from whom was demanded full payments for
25 the certificates which speaks for itself.

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1 There is no requirement that the plaintiffs
2 die before they come in to court. It is very
3 difficult to do that. They have to be buried
4 in 24 hours. Everybody know that.
5 The notion we can't start an action
6 to prevent people from extorting money from
7 these contracts because we aren't dead yet
8 would make a mockery to our rights to the
9 contracts, which have been issued to us.
10 The suggestion that Rabbi Gluck
11 contradicted himself in affidavits is wrong.
12 Your Honor is welcome to look at the two
13 affidavits side by side. You will see there
14 is no conflict whatsoever.
15 The fact is that Rabbi Gluck has
16 always conferred with each of the respective
17 Congregations with respect to the member of
18 that congregation and that person is then
19 buried in a place in the cemetary determined
20 by Rabbi Gluck, that he has been the person
21 to decide where in the cemetary.
22 We are not disputing his continued
23 authority to do that. We are not saying we
24 are entitled to a specific place in the
25 cemetary.
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1 What we are seeking to do is
2 enforce our contract rights.
3 The statement about Rabbi Gluck not
4 being a member, Your Honor, there is not one
5 document that I know of before the Court
6 which shows he has been expelled even by
7 their Grand Rabbi.
8 As I said before, their Grand Rabbi
9 expulsion is not the expulsion of the prior
10 Grand Rabbi because there is no Grand Rabbi
11 today who can be recognized as the absolute
12 authority of Satmar. It doesn't exist. It
13 used to, but it doesn't. There was once one
14 Congregation. It isn't so any more. There
15 is a K.J Congregation Inc. and Congregation
16 Yetev Satmar Inc. There are competing boards.
17 No one is disputing the K.J.
18 Congregation or the election of its officers.
19 There were separates officers elected there.
20 The question is now whether we are fearing
21 what my happen in the future.
22 Your Honor, that fear was instilled
23 by actions which have already been taken.
24 Those actions have been to interfere with the
25 rights of members, members in good standing,

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1 who have contract rights and have already
2 paid the amounts required under the contract
3 and their rights to be buried has been
4 interfered with.
5 The result we are looking for is
6 simply to have the status quo anti August,
7 2008, which is that each Congregation will
8 issue certificates, each Congregation will
9 attest to the amounts that are required to be
10 paid with respect to their respective dues
11 for their own congregants.
12 On that basis, the people will be
13 buried in the cemetary and have a headstone
14 erected.
15 We want no interference, either the
16 K.J. Doing that or our people doing that.
17 That is what we want. Nothing further.
18 We would like that as preliminary
19 injunction.
20 In terms of the word, there was
21 confusion. Our interest is not to
22 specifically identify 152 Rodney Street as
23 the source for the only legitimate
24 certificates.
25 We simply seek to have all

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1 certificates recognized based on the
2 respective congregations, which the
3 congregant belongs.
4 MR. RUBIN: Your Honor, you have
5 two cross motions.
6 THE COURT: I don't think I need
7 to hear this.
8 MR. RUBIN: By the other side.
9 THE COURT: The motions to dismiss
10 have been all addressed.
11 MR. RUBIN: The cross motion to
12 dismiss the cross claim.
13 THE COURT: That I will deal with
14 separately. I know there was opposition
15 filed.
16 I am prepared to make a decision on
17 this matter. I have had an opportunity to
18 review these papers, to examine the case law,
19 to review the bylaws and I see enormous
20 disagreement about certain facts relating to
21 the religious observances of the community
22 known as the Satmar Community.
23 I have just heard opposing
24 positions taken as to whether there is one
25 Grand Rabbi or two Grand Rabbis and who owns

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1 what.
2 I have affirmations from a person
3 who, I guess, at one time was the President
4 of the Burial Society and now I am learning
5 that prior to the commencement of this action
6 that individual, he was a member of the
7 Kiryas Joel, Inc. Congregation is and has
8 been -- I forget what word you used -- but I
9 would say ex-communicated in some manner.
10 I can see there is absolutely no
11 possibility of addressing the issues before
12 me without having to deal with eccalastical
13 determinations.
14 It is apparent from the bylaws,
15 which is really the only authority that would
16 provide any neutral principles of law that
17 the burial society has certain functions that
18 it must adhere to, certain observances and
19 standards applicable in the religion in the
20 Satmar Community, that determinations are
21 made at the time of death as to eligibility
22 for burial from that cemetary at all and the
23 bylaws contain an Article Three instructions
24 as to quote how to determine membership which
25 does require eccalastical determinations,

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1 which from the arguments made today and from
2 reviewing the totality of the affidavits and
3 the arguments, it clearly is something that
4 must be determined at the time of death.
5 So it is not possible to render
6 affirmative decisions on behalf of the
7 plaintiffs here. I must deny the preliminary
8 injunction.
9 This is a nonjudiciable controversy
10 as I perceive it.
11 I rely upon the decisions of my
12 colleagues here, Michael Ambrosio, who
13 addressed this repeatedly and Appellate
14 Divisions that have been previously litigated
15 giving rise to the Court of Appeals decision,
16 which was cited very recently by the Court of
17 Appeals, again, in the Episcopal Dioceses of
18 Rochester against David Harnish, reported at
19 11 New York 3rd, 340 and decided in October
20 of 2008.
21 But there was a finding there that
22 there were certain issues that could be
23 determined relating to the ownership of
24 church property and premised upon neutral
25 principles of law.
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1 As to the ownership of real estate,
2 it is recognized that neutral principles of
3 law may be applied by the Court. This is not
4 one of those issues.
5 The Court of Appeals reiterated
6 that in that case. It was a determination
7 that the parish was entertaining. A
8 determination made upon the canons of the
9 Episcopal Church and by the authority of the
10 hierarchy of the Episcopal Church. That
11 determination was deciding the Yetev Satmar
12 Inc., as one of the many predecessor
13 litigations of this dispute .
14 It is very clear the controversy
15 involves the ongoing control and plaintiff is
16 the Grand Rabbi.
17 There is no way I can see this
18 Court of making this determination, sad as it
19 is. As you all agree, a Secular Court is not
20 the proper forum.
21 Congregation Yetev Satmar against
22 Farrell Friedman and Isaac Rosenberg and
23 David Howard and Samuel Obinlander.
24 Apparently, this has been filed.
25 MR. RUBIN: Yes, based upon the

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1 defendants who moved and additional
2 defendants who have not yet appeared.
3 THE COURT: I am not going to
4 address that. I am going to sever the cross
5 claim.
6 MR. RUBIN: Sever. Thank you.
7 THE COURT: Hold in abeyance
8 regarding that matter. I think it has been
9 inadequately addressed in the papers I have.
10 I am not sure what should be done about it.
11 Mr. Fisher, you did address it.
12 Somebody did. Mr. Buss may have.
13 MR. BUSS: We made preliminary
14 notice against the congregation's authority
15 because they didn't have authority to hold
16 themselves as officers.
17 We did say in the papers if the
18 Court were so inclined we would request an
19 opportunity to address the merits, one of the
20 many, many issues in there as to whether or
21 not this is the proper venue, which is really
22 Article 15 seeking to deal with title to real
23 estate.
24 THE COURT: In Orange County that
25 it should be dismissed or removed to Orange

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1 County is your position.
2 Well, you might want to address
3 Mr. Rubin. It seems I could not adjudicate
4 in a Brooklyn Court when the property is
5 located upstate.
6 MR. RUBIN: First of all, there
7 were two motions. One was on standing, which
8 was lack of authority. That was the same
9 tactic in the previous cemetary litigation
10 and subject of denial on the same basis by
11 the Appellate Division, which is part of the
12 reply affidavit, Exhibit A.
13 THE COURT: So you want a further
14 opportunity to argue?
15 MR. RUBIN: Appellate Courts took
16 the position since we are not going to be
17 able to decide who the actual administrator
18 of the Congregation is, we are going to
19 ignore the fact or accept the fact there are
20 two competing, each hiring their own counsel
21 and we'll decide it on the merits. I
22 understand so far that it is impossible.
23 I urge the Court to adhere to that
24 principle and deny the motion on --
25 THE COURT: I am going to stop

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1 this. The venue issue is significant.
2 MR. RUBIN: There is no motion.
3 THE COURT: We'll adjourn. I'll
4 hear you further.
5 MR. RUBIN: There is a motion
6 served by all of these defendants, two
7 motions, in fact, articulating two grounds
8 for dismissal of the cross claim.
9 The other one that it is
10 nonjudiciable. That is simply clearly wrong.
11 That is addressed in our reply papers.
12 THE COURT: Mr. Rubin, I don't
13 think you hear me. I will put off that
14 issue.
15 MR. RUBIN: I am fine with that.
16 THE COURT: If you don't concede
17 that the subject of venue belongs in the
18 county where the property is located. You
19 are asking me to make that decision.
20 MR. RUBIN: Had we commenced as a
21 separate action we would have commenced it
22 here.
23 Procedurally, all corporate parties
24 were already before this Court. I accept
25 whatever determination the Court wants to

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1 make in that posture. I concede it would not
2 have been initially commenced here.
3 THE COURT: Yes. I am not sure I
4 have the authority to make the decision on
5 the merits, which you want me to do, which I
6 don't know if I can do that.
7 MR. RUBIN: Venue is not
8 judiciable.
9 THE COURT: I am not so sure.
10 MR. FISHER: You heard Mr. Rubin,
11 there are defendants who have not answered.
12 There may be.
13 THE COURT: I am severing Index 75
14 057/09. I am dismissing the original case
15 Index 334781 of '08.
16 I think we'll adjourn this until --
17 Not everyone has appeared here on
18 this motion?
19 MR. BUSS: No.
20 THE COURT: I don't know if they
21 have been served with the motion.
22 MR. BUSS: We're not aware.
23 MR. VIDER: Everyone had to be
24 served. They had to be served by substitute
25 service because they avoided services under

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1 CPLR. They were served February 16, which
2 gives -- it was filed February 16, which
3 means they have 40 days from then to answer.
4 THE COURT: All right. So we're
5 not there yet. We have to put this over.
6 I alert you, your motions have to
7 be served on all of the parties, not the
8 original process, but the motions, all of
9 these parties have a right to know what is
10 going on with the lawsuit.
11 I am not so sure they have been
12 served. So I alert you if you wish to
13 proceed with your motions, to make sure all
14 of the named parties who have been served are
15 served with the motion and we will put this
16 over.
17 MR. RUBIN: A May date. April is
18 wiped out because of the Passover holidays.
19 THE COURT: I think we'll put it
20 on beyond the middle of May. I am expecting
21 to be away.
22 MR. RUBIN: That is fine.
23 THE COURT: The 20th of May --
24 27th. Let's make it not a Wednesday. So 21st
25 or 28th of May.
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1 MR. FISHER: The 28th is better
2 for me.
3 THE COURT: It is adjourned to
4 5/28 if everyone that is available who is
5 interested.
6 MR. RUBIN: 9:45.
7 MR. FISHER: I am told the 28th is
8 eve of Shavuas.
9 THE COURT: I have to invite you
10 to suggest a date because I don't know all of
11 the holidays that apply.
12 MR. RUBIN: Two days before that,
13 26th, Tuesday.
14 THE COURT: Is anything else
15 scheduled for the 26th of May? 25th, I
16 think, is Memorial Day. All right 26th then
17 is fine.
18 MR. HAMM: Your Honor, may I
19 clarify something for the record. I just
20 wanted to make sure it was clear that the
21 claims by the plaintiffs, the motion for
22 preliminary injunction have been denied. All
23 of the claims of plaintiffs have been
24 dismissed.
25 THE COURT: Yes.

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1 MR. HAMM: The balance of the case
2 has been severed.
3 THE COURT: The cross claims which
4 is a brand new action unrelated to the
5 original.
6 MR. HAMM: That is fine.
7 Will an order be issued?
8 THE COURT: I am sure you will be
9 going to the Appellate Division. You submit
10 to me some type of order.
11 If you want to get an appealable
12 order, perhaps, you can submit it to me on
13 notice, of course. You will get it faster.
14 Annex the minutes of the decision, maybe, not
15 the total argument you don't need, but my
16 decision and that will be an appealable
17 order.
18 MR. HAMM: Thank you.
19 REPORTER'S CERTIFICATION
20 I hereby certify that the foregoing is a
21 true and accurate transcript of the
22 proceedings.
23 _______________________
MARGARET BREITFELLER,RPR
24 OFFICIAL COURT REPORTER
25

Cemetery Transcript 3/12/09

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1

1 SUPREME COURT OF THE STATE OF NEW YORK

15 B E F O R E : HONORABLE CAROLYN E.DEMAREST,

21 Attorneys for the Defendants-

2 CO-COUNSEL WITH SMITH, BUSS & JACOBS, LLP

5 Attorneys for the Defendant -

8 Attorney for Defendant - RABBI EZRIEL GLUCK

1 COURT CLERK: Part N motion

2 calendar, numbers one through five on the

3 motion calendar, Friedman, et al versus CWL

6 MR. HAMM: May it, please, the

7 Court, my name is David Hamm. I am with

8 Herzfeld & Rubin. I am here on behalf of

10 MR. RUBIN: Edward Rubin, along

11 with my colleague, Mr. Vider to Congregation

12 Yetev Lev D'Satmar and Chevre Kadishe, Inc.,

13 THE COURT: You are actually a

15 MR. RUBIN: Correct.

16 THE COURT: Yes, sir.

17 MR. VIDER: Israel Vider as

18 co-counsel to Edward Rubin for Congregation

19 Yetev Lev D'Satmar and Chevre Kadishe.

20 MR. KLATSKY: James Klatsky for

21 Rabbi Ezriel Gluck.

22 THE COURT: Spell the last name.

23 MR. KLATSKY: Gluck G-L-U-C-K.

24 THE COURT: G-L-U-C-K. All right.

1 MR. BUSS: Jeffrey Buss of Smith,

2 Buss and Jacobs. My firm represents

3 defendants: CYL CEMETARY, CONGREGATION YETEV

4 LEV D'SATMAR,CHEVRE KADISHE SATMAR, SATMAR,

5 CENTRAL CONGREGATION YETEV, JOSEPH WEISS,

6 DAVID MARKOWITZ, CHAIM GROSS, JOEL KAUFMAN,

7 ELIAS HOROWITZ AND SHLOMO WERTZBERGER.

8 THE COURT: Okay.

9 MR. FISHER: Edward Fisher, Fisher

10 & Fisher for the same parties that Mr. Buss

12 THE COURT: Okay, thank you.

13 MR. MAHON: Richard M. Mahon,

14 attorney for defendant, Congregat Yetev Lev

15 D'Satmar of Kiryas Joel, Inc.

16 MR. NICHOL: Donald Nichol. I am

17 the village attorney. I am representing the

18 Director of Public Safety, Moses Witrial.

19 THE COURT: Okay. I thought this

20 had been discontinued. Well, I guess it is

21 discontinued against the police, the State

22 police, but that is not who you represent;

24 MR. NICHOL: Correct.

25 THE COURT: It is the village.

1 MR. NICHOL: I represent the

2 Director of Public Safety.

3 THE COURT: Okay. We have a lot

4 of papers here. I know the primary issue,

5 which probably should just be addressed right

6 up front, has to do with the original motion

7 which was for a preliminary injunction, which

8 would necessarily address the underlying

9 merits of this matter and cross motion to

11 I know we argued the preliminary

12 injunction matter a few times.

13 I don't know if there is anything

14 you want to add to prior arguments Mr. Hamm,

15 I think you have been here many times before.