Category Archives for Court Decisions

Decision on liability for unauthorized autopsy

The Nassau County Supreme Court recently issued a decision in Freiman v. County of Nassau dismissing plaintiff’s complaint and granting summary judgment to the defendants.  Plaintiff alleged that an autopsy was performed in violation of the decedent’s religious beliefs.  According to the decision, the defendants established that the Medical Examiner had performed a toxicology screening by extracting blood and fluids by way of a needle, without making an incision, a procedure that the decedent’s spouse had consented to when she requested that the Medical Examiner forego an autopsy.

We’ve also added a link to the case on our Decisions of Interest page, which we plan to update regularly as we come across decisions to share.

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).

Delegating credit matters to employees may obligate business owners

My co-blogger, Avrohom Gefen, recently won an interesting case, Felix Storch Inc. vs. Martinucci Desserts USA Inc., that was published yesterday in the New York Law Journal.  The case was decided on January 31, 2011.

The reported facts are as follows.  Plaintiff, Felix Storch, sold commercial refrigerator units to Martinucci Desserts on credit.  Martinucci went out of business without having paid for the units.  The issue at trial was whether there was a personal guarantee by Mario Sclafani, Martinucci’s owner, to pay for the units in the event that Martinucci was unable to pay.

The signed credit application contained the following phrase: “The undersigned further agrees to personally guarantee any sum or sums of money which purchaser now owes or shall owe at any time.”  However, Sclafani claimed that although he knew the units were purchased on credit, he had never seen the application and that the signature on the application was not his.

In rejecting defendant’s argument, the Court wrote:

Sclafani’s defense was that the signature was not his. He stated that he did not handle any credit matters. Instead, he referred all credit matters to “the girls in the office.” Yet, he knew he received the Plaintiff’s units on credit. Defendant cannot escape his obligations by such a self-serving scheme whereby he denies his obligations while admitting he left it to “his girls” to do what was necessary. And, in this case, there is no question his staff signed the credit application, including the guarantee, on his behalf and returned it to the Plaintiff. Business owners who relinquish such unfettered authority to manage and complete their credit applications must assume the liability for what is completed on their behalf. Plaintiff had every expectation to rely upon the application received by telefax from Defendant’s office. Although the signatures are not an exact match (the Court does not profess to be a handwriting expert), it is clear that the affixed signature so closely resembled that of the Defendant that it was, at a minimum, signed on his behalf by, according to his testimony, the “girls in the office.” Defendant’s self-serving denial was insufficient to persuade this Court otherwise. (Emphasis added.)

The full text of the decision can be read here.

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?

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.

Comment on Avrohom’s post, Zargary v. City of New York

This was initially a comment to Avrohom’s post, Prisoner’s “Free Exercise Clause” claim fails despite New York City’s failure to provide her with a rabbi at 3:30 am. It grew into its own post.

My initial take is that the court is conflating two issues — 1) whether a prisoner in general is entitled under the free exercise clause to consult with religious clergy, and 2) whether a prisoner has a specific right to object and/or consult with clergy when being directed to do something the prisoner believes is religiously prohibited.

The first is a general question of affirmative religious rights. The second is whether or under what specific circumstances someone’s free exercise rights may be impinged, and whether the prisoner then has the right to consult on an urgent and time-sensitive basis.

The court’s failure to make the distinction is evident in this passage:

Even if plaintiff had advanced an independent claim of municipal liability based on defendant’s failure to provide a rabbi, the claim would have failed on the merits. Defendant does not dispute that plaintiff had the right to consult with a religious advisor while incarcerated (see Def.’s Br. 2), and the Court agrees that such consultation is an important aspect of religious expression. See Griffin v. Coughlin, 743 F. Supp. 1006, 1027 (N.D.N.Y. 1990). 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” under the standard articulated in Turner v. Safley, 482 U.S. 78, 89 (1987). The City’s failure to provide plaintiff with a rabbi at 3:30 a.m., or to suspend the intake process until a rabbi was available, was not a violation of her Free Exercise rights.

The Griffin case, which can be read here, concerned prisoners’ rights to have private meetings with clergy. Once you posit that prisoners do have the right, the question then becomes what should be considered reasonable under the circumstances. Likewise, Turner dealt with general prison rules on marriage and correspondence – also no apparent question of immediacy, but of general religious rights.

Following that logic, the court should have then addressed whether it was reasonable under the circumstances to allow the prisoner to speak to a rabbi. It should be relevant what she was arrested for and whether she was dangerous or uncooperative. It should be relevant whether she could have been held without being photographed for several hours. It may be reasonable under most circumstances to allow religious consultations only during business hours or during emergencies, but as a general matter, at 3:00 a.m. the corrections officers are not demanding that a prisoner do something he or she believes violates a religious prohibition. Pointing at precedent that approved of general rules on non-urgent issues does not address the question here.

Something tells me that the court sees head covering as no big deal anyway. If so, that’s not an appropriate call for the court to make. Would they say the same if a prisoner hadn’t eaten in three days and wanted to consult as to whether it was permissable to eat food that was not kosher?

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