Author Archives for Avrohom Gefen

Appellate Court Affirms Decision Allowing Disinterment

In April 2010, I blogged on a case  in which a Supreme Court judge in Queens County permitted the non-Jewish spouse of a deceased Jewish man to exhume his body from a Jewish cemetery for reburial in what the judge termed a “non-denominational” cemetery, St. Elizabeth. The decedent was buried in the family plot next to his father. His mother and sister opposed the exhumation, claiming he wanted to be buried in accordance with Jewish Law.

On March 29, 2011 the Appellate Divsion, Second Department affirmed the decision, holding that:

 In the absence of consent by, among others, the parents of the deceased, a court may grant permission to disinter upon a showing of good and substantial reasons . . . Here, the testimony presented at the hearing supports the Supreme Court’s conclusion that the decedent’s paramount concern was that he be buried alongside the petitioner, which was not possible in the Mount Carmel Cemetery due to both the petitioner’s religious affiliation and the lack of available space. Under these circumstances, the Supreme Court properly determined that the petitioner demonstrated good and substantial reasons to disinter the remains of the decedent. (Emphasis added).

When Being Lubavitch is Not Enough

A judge in Brooklyn ruled that a Rabbi’s unsworn affirmation, as well as a transcript of his deposition testimony, which was affirmed but not sworn to, was not admissible as evidence.

The judge acknowledged that under CPLR 2309, “[A]ny person who, for religious or other reasons, wishes to use an affirmation as an alternative to a sworn statement may do so.”  The judge noted, however, that “to be effective such an affirmation must be made before a notary public or other authorized official.”(CPLR 2309).

The judge also made the following observation with regard to the limits of the idea of “judicial notice”:

As a court sitting in Brooklyn, this Court is certainly aware of the sizeable Lubavitch communities and their relationships to the Chasidic movement within Orthodox Judaism. (See generally Merkos L’Inyonei Church, Inc. v Sharf, 11 Misc 3d 1062 [A], 2006 NY Slip Op 50365 [U], * 2- * 4 [Sup Ct, Kings County 2006].) The names chosen by Defendants, “United Lubavich, Inc.” and “Lubavitcher School Chabad,” suggest that they situate themselves among those communities. One might assume, moreover, that as a teacher at a Lubavitch school, Rabbi Reinetz shares religious and ethical beliefs shared by the Lubavitch communities. But the scope of judicial notice is at best limited in matters of religion. (See Baxter v McDonnell, 155 NY 83, 93 [1898]; Matter of Ingham v Town of Dickinson, 192 AD2d 813, 814 [3d Dept 1993]; Baird v Grace Church of Millbrook, 197 AD 272, 274 [2d Dept 1921] ["The canons and customs of a religious denomination must be proved as matters of fact."].) Even more suspect would be the ascribing of particular religious or ethical beliefs to an individual because of association with a religious community or organization.

A complete copy of the decision can be found here.

COURT OF APPEALS SAYS STOLI PERMITTED UNDER NEW YORK LAW

The New York State Court of Appeals issued a decision today interpreting New York Insurance Law to permit what are known as Stranger Oriented Life Insurance transactions (also known as “STOLI” or “SOLI”). In a typical STOLI transaction, an elderly individual is approached by an investor with the following proposal: The individual takes out an insurance policy on himself, usually for millions of dollars. The premiums, of course, are usually far more than the individual can afford to pay for any length of time. The investor pays the individual a lump sum, typically several hundered thousand dollars and the individual immediately transfers ownership of the policy to the investor, which usually establishes a trust to own the policy.  The investor/trust continues to pay the premiums, wagering that the individual will soon die and that the amount collected under the policy will exceed the premiums paid to the insurer and the lump sum paid the the individual.

Prior decisions from lower courts held that such transactions were not permitted under interpretations of NY Insurance Law and were void as against public policy as “wagering on the life of another,” when the insurance was procured by the individual solely with the intent to transfer or sell the policy to a third-party.

Additional post to follow.

Agreements To Arbitrate In Bais Din: Get It In Writing!

A recent decision from a New York State Supreme Court illustrates the importance of following proper procedure when arbitrating in Bais Din. In that case, a homeowner’s insurance company sued a Bais Yaakov school, alleging that work done to expand the school building had damaged their insured’s property, requiring the insurance company to pay substantial claims to its insured.

According to the facts in the decision:

Beth Jacob began construction to expand its building at 98-100 Lawrence Street, Brooklyn, New York, in late March or early April 2006. In mid-October 2006 Rabbi Michael Levi (Levi) was served with a summons to appear on behalf of Beth Jacob at the Beis Din Zedek Rabbinical Court of the Central Rabbinical Congress of the United States and Canada (Beis Din). The proceeding was initiated by Rabbi Aharon Zaberman and Eli Baumwolspiner. According to Beth Jacob, the parties appeared before the Beis Din on October 22, 2006. Levi asserts, in his affidavit, that Eli Baumwolspiner, Zaberman, and Levi signed an agreement to have the case heard by the Beis Din, after which the three-member panel of the Beis Din heard the parties’ arguments. While Levi contends that the Beis Din did not require Beth Jacob to pay any money to Baumwolspiner, and permitted the construction to continue, there are no documents submitted on this motion regarding the parties’ agreement to arbitrate, or the Beis Din’s determination. The Baumwolspiner’s maintain that they merely sought the Beis Din’s assistance in preventing further damage, but did not submit the issue of payment for the damages to the Beis Din for consideration.

The property owner’s insurance company, Tower Insurance, paid its insured for the damage and then sued the Bais Yaakov. The school argued that the court should “compel arbitration (in the Beis Din) on the ground that plaintiff’s subrogors are bound by their agreement to arbitrate, and Tower stands in their shoes.”

The insurance company argued that there was no agreement or contract binding the parties to adjudicate their claims before Bais Din.  The court agreed, noting that:

Beth Jacob has produced no written agreement to arbitrate, either from prior to the parties’ appearance at the Beis Din, or dating from that appearance. An agreement to arbitrate must be in writing in order to be enforced. CPLR 7501. Furthermore, that writing must make it clear what issues are to be arbitrated, and make the parties’ intention to arbitrate the dispute unequivocal.

The upshot is that parties who are in Bais Din should be certain that the agreement to arbitrate, as well as the scope of the arbitration, are well documented. To protect their authority, Batai Dinim should not proceed with a hearing unless and until all parties enter in such written agreements.

The Satmar Saga Continues

In yet another Satmar lawsuit, this one involving control of the cemetary where the previous Rebbe is buried, Justice Victor J. Alfieri ruled that the parties are required to arbitrate the dispute before a Bais Din (Beth Din). The judge based his decision on a provision in the Congregation’s bylaws stating that “a member of the Congregation shall [or "must", depending on the varying interpretations from the Yiddish] be expelled if that member declines to appear before a Rabbinical Court [alternatively, "submit to a Din Torah"].”

The Court stated that “since the Congregation’s bylaws are a secular corporate document adopted by its members pursuant to New York State law,this Court finds that the Congregation and its members adopted the Rabbinical Court, i.e., the Din Torah (Rabbinical Court proceeding) as the alternative dispute resolution between and among members of its congregation. As such, this Court finds that the parties are required to arbitrate the within action before the Rabbinical Court. ” A copy of the decision is available here.

I am not sure that the judge realizes the implications of this decision. As I understand it, this means that any individuals who consider themseleves members of the Satmar congregation are legally obligated to arbitrate every dispute, even those not involving control of the Congregation or its assets. If, for example, two Satmar individuals have a business dispute and one of them sues in court, the court could compel arbitration instead. Am I reading this wrong?

The Importance of Custom, Usage and Course of Conduct in Jewish Monetary Law

This week’s Parsha email from the Bais HaVaad Institute of Talmudic Law includes a brief discussion of the concept that Jewish Law recognizes the accepted business of the time a place and place in which a transaction occurs.

In Choshen Mishpat 201:1-2, the concept of situmta is explained. A situmta was a kind of mark placed on a barrel of wine by a customer indicating his irrevocable agreement to the purchase of the barrel. That was the prevalent custom in the wine industry back then, similar to the way saying “mazel and bracha” finalizes a sale in the New York diamond trade. While making a situmta should have no real halachic significance because it is not one of the methods of acquiring an object recognized by the Torah, in reality, it has a great deal of significance. In fact, a customer who makes a situmta actually becomes the halachic owner of the barrel!

The concept of situmta is probably the best example that can be brought to illustrate the importance that Jewish monetary law places on the prevailing understandings and customs of the marketplace. A situmta creates halachic ownership solely because that is how people think of it. The Torah understands that any marketplace transaction is fundamentally shaped by the underlying assumptions and operating principles of the people who are making the transaction. Therefore, if the custom is to consider a situmta to be legally binding, then it is as if the Torah says, ‘So be it.’

Court allows non-Jewish widow to transfer body of Jewish husband to non-Jewish cemetery

A Supreme Court judge in Queens County permitted the non-Jewish spouse of a deceased Jewish man to exhume his body from a Jewish cemetery for reburial in what the judge termed a “non-denominational” cemetery, St. Elizabeth. The decedent was buried in the family plot next to his father. His mother and sister opposed the exhumation, claiming he wanted to be buried in accordance with Jewish Law.

The decedent’s spouse acknowledged that she had signed an authorization for the interment of her husband “whom I know to be a member of the Jewish faith” in the plot owned by Calvin Herskowitz, her husband’s father. However, she testified that at that time she was emotionally distraught and grieving over the sudden, unexpected death of her husband, and did not know that the plot could not accommodate her remains so that she could be buried with her husband.

To determine the decedent’s level of commitment to Judaism, the judge heard testimony from friends and relatives. Among other interesting parts of the decision in Eirand-Herskowitz vs. Mt. Carmel Cemetery Association, the judge stated that: “Although it is not the function of this court to sit in judgment of anyone’s choice in the manner in which he/she chooses to practice or observe his/her faith, the court finds that these occasional, isolated acts of religious observance do not unequivocally constitute and support the fact that Jamie actively practiced his Jewish faith.” The judge also found that: “as the proposed final resting place for his remains, St. Elizabeth Cemetery is nondenominational, there is no evidence to show that his burial there will offend his Jewish faith.”

As far as I know, Jewish law permits the exhumation of remains only under very narrow circumstances. Removing the remains to a non-Jewish cemetery (even one that is non-denominational) is certainly not one of these circumstances. Did the relative’s attorneys make a fatal mistake by failing to have an expert in Jewish law (i.e. a Rabbi) testify that the exhumation most certainly would offend the decedent’s Jewish faith?

Comments welcome.

Update 4/8/11 — the decision was affirmed on appeal.  Our follow-up post can be read here.  SE

Heter Iska arbitration rights forfeited by defendant’s participation in litigation

The Appellate Division, Second Department affirmed a decision of the lower court that denied defendant Eli Weinstein’s motion to compel arbitration. The parties had signed a Heter Iska that contained an arbitration clause. (Although not mentioned in the decision, presumably it required the parties to go to Bais Din).

1 1/2 years after the litigation started, Weinstein, the defendant in the case, moved to compel arbitration based on the Heter Iska. He claimed that “he had not retained a copy of the Iska Contract and had ‘completely forgotten that it contained an arbitration provision.’”

The court held that a “defendant in an action who has the right to arbitrate a claim may forfeit or waive that right by acts inconsistent with the intention to arbitrate,” and found that “under these circumstances, Weinstein’s conduct evinced an intent over an extended period of time to litigate, rather than to arbitrate… Accordingly, the Supreme Court properly denied Weinstein’s motion to compel arbitration and stay the actions.”

The decision can be found here.

Neither court indicated that there was anything wrong with the Heter Iska or the arbitration clause. Rather, the decision was based on Weinstein’s failure to timely assert his right to arbitrate by first litigating for 1 1/2 years.

The decision also does not indicate how Weinstein “refreshed his recollection” of the arbitration clause since he claimed he did not keep a copy of the Heter Iska. A copy may have been produced by his adversaries in the course of discovery. If that was the case, and if Weinstein moved to compel arbitration as soon as he was reminded of the clause, than the court’s decision may be incorrect. As noted in the decision, the reason that a party may be found to have waived the right to arbitrate is to prevent a defendant from using the courtroom “as a convenient vestibule to the arbitration hall so as to allow a party to create his own unique structure combining litigation and arbitration.” If that was clearly not Weinstein’s intent, then maybe he didn’t waive or forfeit his right to arbitrate at all.

Brooklyn Judge Decides Couple Should Share Mitzvah

Judge Matthew D’Emic in Kings County Supreme Court (Brooklyn) decided in E.S. v S.S., 2010 NY Slip Op 50299(U) that a divorcing Orthodox Jewish couple should donate some of their marital property to charity and share equally in the Mitzvah. The judge wrote as follows:

C. EQUITABLE DISTRIBUTION

The parties have little. Nevertheless, whatever they have must be distributed. Therefore, any jewelry is awarded to the party in possession. The 2000 Buick Century is directed to be sold and the proceeds, if any, equally divided. If the car cannot be sold in its present condition it is to be donated to charity and the mitzvah equally divided.

Appellate Division reverses decision and order that vacated Beth Din award

The New York Appellate Division, Second Department, reversed an order of the New York Supreme Court that vacated an arbitration award by the Beth Din of America.

The Supreme Court order vacated the award of the Beth Din which reinstated a tenured teacher at a salary greater than that agreed upon in the teacher’s contract. The court found, among other things, that the award ran counter to public policy. The Supreme Court decision can be accessed here.

The Appellate court reversed the decision finding that “. . .Supreme Court incorrectly granted that branch of HAFTR’s cross petition which was to vacate the arbitration award, since the petitioner demonstrated that he was a tenured teacher at HAFTR and, as such, had certain rights, including the right to have his employment terminated only for cause, barring emergent financial circumstances not at issue here…In response, HAFTR failed to rebut this showing by demonstrating the applicability of any of the statutorily enumerated grounds for vacatur of the award.”

The Appellate court also held that the $100,000 annual salary designated in the award was not irrational because “HAFTR concedes in its brief, the petitioner’s average annual compensation during his last seven years at HAFTR was greater than $100,000. It was, therefore, not irrational for the panel of arbitrators to set the petitioner’s future annual salary at $100,000.” As reported on January 21, 2009 in the Jewish Week, with overtime the teacher was earning $118,000 at the time he was let go, plus health insurance and a pension.

The Appellate Division decision can be found here.

Prisoner’s “Free Exercise Clause” claim fails despite New York City’s failure to provide her with a rabbi at 3:30 am.

The New York Law Journal yesterday reports a decision from the U.S. District Court for the Southern District of New York. A Jewish inmate in NYC sued the city of New York because a Department of Corrections officer forced her to remove her “religious headdress” (?) prior to taking an intake photo at a prison facility. Her underlying constitutional claim arose under the Free Exercise Clause of the Constitution under which the plaintiff asserted that the municipal custom or practice of removing a religious head covering before intake photographs were taken impinged upon her religious freedom and was not “reasonably related to legitimate penological interests.” After a trial, the Court granted judgment to the City, finding that legitimate penological interests were served by the DOC’s reasonable procedure for photographing detainees. A Department of Corrections official testified that pictures without headgear were necessary, among other reasons, to identify escapees. The decision after trial is here: http://ny.findacase.com/research/wfrmDocViewer.aspx/xq/fac.%5CFDCT%5CSNY%5C2009%5C20090420_0000389.SNY.htm/qx

The plaintiff then moved to amend the judgment or for a new trial, claiming “the Court provided an incomplete analysis of the Free Exercise Clause” in its Opinion by failing to “provide[] an analysis of [plaintiff's] right to confer with a religious advisor.” Apparently, when the plaintiff was being processed at the prison facility at 3:30 am she requested the presence of a rabbi. Prison officials were unable to locate a rabbi in the building at that time, removed the prisoner’s head covering and and continued to process. The court denied the motion for procedural reasons but also added that it would have been denied on the merits as well, because while the City “does not dispute that plaintiff had the right to consult with a religious advisor while incarcerated, and the Court agrees that such consultation is an important aspect of religious expression… Plaintiff cites no case, however, for the proposition that the Free Exercise Clause requires defendant to provide access to a religious advisor within a certain period of time or to delay prison administration while a religious advisor is obtained. The Court concludes that defendant’s alleged policy of providing religious advisors during business hours and in emergencies is “reasonably related to legitimate penological interests.” Neither decision reveals what the plaintiff was arrested for. For those who subscribe to the NYLJ, you can read the decision here:
http://nycourts.law.com/CourtDocumentViewer.asp?view=Document&docID=121061