Defendants Reply 2/26/09

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS WILMOS FRIEDMAN, HERMAN KAHAN, ZIGMOND BRACH, JOSE MASRI, ERVIN ROSNER, MORRIS FRIEDMAN, JOSEPH EPSTEIN, HERMAN LANDAU, MOSES SPEILMAN and others similarly situated, Plaintiffs,

Hon. Carolyn E. Demarest

- against Index No.: 33481/08 CYL CEMETERY, INC., CONGREGATION YETEV LEV D’SATMAR, INC., CHEVRE KADISHE D’SATMAR, a Division of CONGREGATION YETEV LEV D’SATMAR OF KIRYAS JOEL, INC., CENTRAL CONGREGATION YETEV LEVD’SATMAR, INC., RABBI EZRIEL GLUCK, JOSEPH WEISS, MOSES WITRIOL, NEW YORK STATE POLICE, DAVID MARKOWITZ, CHAIM ELIEZER GROSS, JOEL KAUFMAN, DAVID ECKSTEIN, ELIAS HOROWITZ, and SHLOMO WERTZBERGER, Defendants.

JOINT REPLY MEMORANDUM OF LAW

COUNSEL FOR THE MOVANTS: SMITH, BUSS & JACOBS, LLP Lead Counsel 733 Yonkers Avenue Yonkers, New York 10704 FISHER & FISHER Co-Counsel One Whitehall street New York, New York 10004-2109 Attorneys for Defendant CONGREGATION YETEV LEV D’SATMAR, INC. (Under leadership of Berl Friedman) Also Attorneys for Defendants CHEVRE KADISHE D’SATMAR, CENTRAL CONGREGATION YETEV LEV D’SATMAR, INC., JOSEPH WEISS, DAVID MARKOWITZ, CHAIM ELIEZER GROSS, JOEL KAUFMAN, ELIAS HOROWITZ, and SHLOMO WERTZBERGER

TARSHIS, CATANIA, LIBERTH, MAHON & MILIGRAM, PLLC Attorneys for Defendant CONGREGATION YETEV LEV D’SATMAR OF KIRYAS JOEL, INC. and DAVID ECKSTEIN, One Corwin Court P.O. Box 1479 Newburgh, New York 12550

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TABLE OF CONTENTS PRELIMINARY STATEMENT .................................................................................................... 1 REPLY ARGUMENT .................................................................................................................... 6 POINT I .......................................................................................................................................... 6 THE KAHAN FACTION HAS FAILED TO ESTABLISH THAT THE PUTATIVE CERTIFICATE HOLDERS HAVE AN INALIENABLE CONTRACT RIGHT TO BURIAL IN THE KJ CEMETERY REGARDLESS OFANY CHANGE IN THEIR MEMBERSHIP STATUS ......................................................................................................................................... 6 A. THE KAHAN FACTION HAS CONCEDED THAT QUESTIONS CONCERNING PLAINTIFFS’ MEMBERSHIP STATUS ARE NON-JUSTICIABLE ......................................... 6 B. THE KAHAN FACTION HAS FAILED TO ESTABLISH THAT MEMBERSHIP IS NOT REQUIRED FOR BURIAL IN THE KJ CEMETERY.................................................................. 9 1. The Evidence Overwhelmingly Establishes That Loss Of Membership In The Congregation Precludes Burial In The KJ Cemetery............................................................ 12 2. Given The Membership Issues Which Lie At The Heart Of This Controversy, The Precedential Authorities Invoked by The Kahan Faction Are Inapposite Herein ................ 19 POINT II ....................................................................................................................................... 24 THE WITHIN CONTROVERSY IS NOT RIPE FOR JUDICIAL DETERMINATION AND PLAINTIFFS CLEARLY LACK STANDING IN THE ABSENCE OF ANY ACTUAL INJURY ........................................................................................................................................ 24 POINT III...................................................................................................................................... 26 PLAINTIFF’S CLAIMS ARE BARRED UNDER THE DOCTRINES OF RES JUDICATA AND/OR COLLATERAL ESTOPPEL........................................................................................ 26 POINT IV...................................................................................................................................... 29 THE KAHAN FACTION’S CLAIM TO POSSESS ACTUAL AUTHORITY TO ISSUE THEIR SELF-CREATED CERTIFICATES IS BASELESS AND IT IGNORES THE FACT THAT THE COURTS EXPRESSLY DECLINED TO ENDORSE EITHER FACTION IN THE PRIOR ELECTION CASE........................................................................................................................ 29 POINT V....................................................................................................................................... 30 NEITHER PLAINTIFFS NOR THE KAHAN FACTION HAS STANDING TO CHALLENGE THE INTERNAL CONVEYANCE OF THE CEMETERY BETWEEN TWO CONGREGATION ENTITIES 30

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POINT VI...................................................................................................................................... 32 PLAINTIFFS ARE NOT ENTITLED TO INJUNCTIVE RELIEF AS THEY SEEK JUDICIAL ENFORCEMENT OF AN EXECUTORY CONTRACT IN A NON-JUSTICIABLE CONTROVERSY AND FAIL TO ESTABLISH ]THAT ANY MEMBER OF THE CONGREGATION HAS BEEN DENIED BURIAL IN THE KJ CEMETERY ........................ 32 CONCLUSION............................................................................................................................. 36

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PRELIMINARY STATEMENT The on-going leadership dispute in the Satmar Hasidic community has been the subject of numerous litigations commencing in 2001 and continuing through the present. The within action is another of the myriad battles currently being waged by two factions within the Satmar community over which of the two sons of their late spiritual leader, Grand Rabbi Moses Teitelbaum, is his rightful successor [i.e., his elder son, Grand Rabbi Aron Teitelbaum, or his younger son, Rabbi Zalman Teitelbaum]. In accordance with the Torah and the wishes of the late Grand Rabbi Moses Teitelbaum, which provides that the elder son is the first in the line of succession, Grand Rabbi Aron Teitelbaum is recognized as the rightful successor of his late father and it is he who is the leader of the worldwide Satmar movement. The younger son, Rabbi Zalman, whose supporters have been labeled “the Kahan faction” in this and other litigations, seeks to wrest the title of Grand Rabbi from his older brother, employing a series of power plays such as that which is evident in the matter at bar. It is truly beyond reasonable cavil that Plaintiffs herein are the Kahan faction, as five of the nine named Plaintiffs herein were actually named as parties in the prior election controversy and they are represented by the same attorneys [i.e., Herzfeld & Rubin, P.C.] who appeared on behalf of the Kahan faction in the election controversy. It is disingenuous and misrepresentative for the Kahan faction to represent otherwise (see, Affirmation of David B. Hamm, Esq., dated February 16, 2009 [“Hamm Affirmation”] at p. 2, n. 1).1

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One need only compare the captions in the election cases (wherein the five Plaintiffs claimed to have been elected to the Kahan Board) with the certificates that they have proffered herein to see that, in fact, Plaintiffs are the Kahan faction. Specifically, Plaintiff Wilmos Friedman was a defendant in the election case prosecuted under index number 41256/01, having been sued under his Hebrew name, Zev Friedman, which is the name reflected on the certificate offered herein (see, Affirmation of Wilmos Friedman, dated December 10, 2008, Exhibit A [“Honorary Member Certificate”]). Plaintiff Herman Kahan was a defendant in the election case prosecuted under index number 41256/01, having been sued under his Hebrew name, Zvi Elimelich Kahan, which is the name reflected on the certificate offered herein (see, Affirmation of Herman Kahan, dated December 10, 2008, Exhibit A [“Honorary Member Certificate”]). Plaintiff Ervin Rosner was a defendant in the election case prosecuted under index number

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With the exception of the two matters currently pending before Your Honor, the prior litigations between the Satmar factions have been dismissed on non-justiciablility grounds, as the adjudication of the claims presented would require impermissible judicial inquiries into religious doctrine (see, Matter of Congregation Yetev Lev D’Satmar, Inc. v. Kahana, 2004 N.Y. Slip Op. 51515(U), at p. 13, supra, aff’d 31 AD3d 541 [2d Dept., 2006], aff’d 9 NY3d 282 [2007]; see also, Congregation Yetev Lev D’Satmar of Kiryas Joel, Inc. v. Congregation Yetev Lev D’Satmar, Inc., 31 AD3d 480 [2d Dept., 2006], aff’d 9 NY3d 297 [2007]; Matter of Meisels, 10 Misc3d 659 [Sup Ct., Kings Co., November 10, 2005]). Such is precisely the conclusion that is mandated in the matter at bar, where we see that the Satmar leadership dispute is now centered upon the Burial Society’s governance and administration of what is undoubtedly the most holy of Satmar institutions, the cemetery in Kiryas Joel [“KJ Cemetery”]. The hallowed nature of the KJ Cemetery stems from the fact that the founder of the Satmar movement, the Grand Rabbi Joel Teitelbaum, is interred there, as is his nephew and successor, Moses Teitelbaum. The Grand Rabbi’s position at the very apex of the Satmar community transcends secular notions of institutional leadership. Indeed, he is not a traditional clergyman hired by a religious congregation. As previously determined by Justice Barasch, upon his extensive analysis of the Grand Rabbi’s hallowed position in the Satmar community, paying homage to the Grand Rabbi (also referred to as the “Grand Rebbe”) and acknowledging him as the movement’s incontrovertible leader is truly existential, as “the sine qua non for being labeled

28989/01, having been sued under his Hebrew name, Israel S. Rosner, which is the name reflected on the certificate offered herein (see, Affirmation of Ervin Rosner, dated December 14, 2008, Exhibit A [“Honorary Member Certificate”]). Plaintiff Herman Landau was a defendant in the election case prosecuted under index number 41256/01, having been sued under his Hebrew name, Yida Hersh Landau, which is the name reflected on the certificate offered herein (see, Affirmation of Herman Landau, dated December 14, 2008, Exhibit A [“Honorary Member Certificate”]). Plaintiff Moses Speilman was a defendant in the election case prosecuted under index number 41256/01, having been sued under his Hebrew name, Sufra Spielman, which is the name reflected on the certificate offered herein (see, Affirmation of Moses Spielman, dated December 14, 2008, Exhibit A [“Honorary Member Certificate”]).

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with the appellation Satmar” (see, Matter of Congregation Yetev Lev D’Satmar, Inc. v. Kahana, 2004 N.Y. Slip Op. 51515(U), at p. 2 [Sup Ct. Kings County Oct. 22, 2004], aff’d 31 AD3d 541 [2d Dept., 2006], aff’d 9 NY3d 282 [2007]). Upon review of the Congregation’s By-Laws, Justice Barasch further found as follows (id. at 10-11): This Article makes it abundantly clear that the entire purpose of the existence of Satmar is to unite like minded individuals in conducting themselves and their lifestyles in a manner that meets with the approbation of the Grand Rebbe. Defiance of the Grand Rebbe would seem to constitute blasphemy and contradict the very purpose for which the sect was founded * * * This leaves no doubt that in every aspect of anything Satmar, the final arbiter is the Grand Rebbe himself. His word is supreme from which there is no appeal. His decision is binding upon every member [emphasis in original].2 As the final resting place for both the founder of the Satmar movement and his successor, the holiness of the KJ Cemetery grounds, and its central importance to the Satmar faith, is incapable of being overstated. As established in the Reply Affidavit of Chaim Gross, President of the Burial Society, if an individual has not: [1] led “a just and righteous life in accordance with the Torah;” and [2] “faithfully followed the teachings of the Satmar Grand Rabbi,” then “Judaic law precludes their burial in the same holy cemetery which holds the remains of the deceased Satmar Grand Rabbis” (see, Reply Affidavit of Chaim Gross, dated February 26, 2009 [“Gross Reply Affidavit”], at ¶ 3). The evidence in this regard is abundant in this record and uncontroverted by the Kahan faction, whose nefarious goals are sought to be advanced by Plaintiffs herein. In fact, in the Kahan faction’s 2004 submissions to Justice Barasch, made in furtherance of their prior unavailing request for judicial intervention in the administration of the KJ 2

The fact that the Grand Rabbi is ultimately “the final arbiter” is of particular moment in this controversy, as the records of the Congregations, dating from 1987, establish that in the event there is any dispute regarding “all issues regarding the cemetery, “[t]he Grand Rabbi will decide the matter” (see, Reply Affidavit of Chaim Gross, dated February 26, 2009 [“Gross Reply Affidavit”], Exhibit A [Minutes of September 22, 1987 meeting]). Accordingly, the dispute which has been manufactured by the Kahan faction with the creation and sale of their so-called “Burial Certificates” should be determined in accordance with the internal mechanism established by these very parties for resolving any dispute involving the KJ Cemetery. Clearly, it was the intention of the parties that any disputes concerning these hallowed grounds should be determined internally, and not by the secular courts.

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Cemetery, the Kahan faction specifically stressed that the Burial Society, as the organization responsible for performing pre-burial, burial and post-burial services, is responsible for “one of the most sacred institutions and practices of the Satmar community” (see, Affirmation of Jeffrey D. Buss, Esq., dated January 26, 2008 [“Buss Affirmation”], at Exhibit I [Letter from Scott Mollen, Esq., counsel for the Kahan faction, dated April 6, 2004]). In this vein, Sol Perlstein, on behalf of the Kahan faction, submitted an Affirmation to Justice Barasch which further represented: “The Congregation * * * does not guarantee burial rights in the Kiryas Joel cemetery to its membership due to the limited space available there and the honor associated with being buried in close proximity to the previous Grand Rebbe” (see, Buss Affirmation, Exhibit I [Perlstein Affirmation] at ¶ 4). Having failed in that prior litigation to win control over the KJ Cemetery, notwithstanding their vacuous claim to have been supported by “[t]he vast majority of the Congregation membership” (see, Buss Affirmation, Exhibit I [Perlstein Affirmation]), the Kahan faction has redoubled its efforts. That is, the Kahan faction has issued its own self-created “Burial Certificates” and requests that this Court ignore the patent ecclesiastical issues and determine that these documents somehow imbue them with a permanent, inalienable right to a future burial in the hallowed ground alongside the founder and spiritual leaders of the Satmar movement. Assuming arguendo that this request for relief is ripe for adjudication (which it clearly is not), the Kahan faction’s present gambit conveniently ignores the fact that only those members of the Satmar Congregation who meet and maintain the specific and rigorous religious standards for membership, may be buried in the KJ Cemetery (see, Gross Reply Affidavit, at ¶ 3).3 Neither

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Significantly, although in moving for dismissal Defendants plainly argued that Plaintiffs’ claims “are not ripe for judicial determination” (Defendants’ Joint Memorandum of Law, dated January 26, 2009), the Kahan faction has

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the valid certificates historically issued, recorded and maintained by the Burial Society, nor the new Certificates created by the Kahan faction in a stark departure from Satmar tradition and practice, engender an inalienable right to be buried in that hallowed ground. As found by Justice Barasch, who rejected the Kahan faction’s demands concerning the KJ Cemetery and was ultimately upheld by both the Appellate Division and the New York State Court of Appeals, determining whether an individual has met and maintained the specific and rigorous religious standards for membership in the Congregation (and thus burial in the KJ Cemetery) “requires ecclesiastical and not secular prowess” (Matter of Congregation Yetev Lev D’Satmar, Inc. v. Kahana, 2004 N.Y. Slip Op. 51515(U), at p. 13, supra, aff’d 31 AD3d 541 [2d Dept., 2006], aff’d 9 NY3d 282 [2007]). Since burial in the KJ Cemetery ultimately must rest upon determinations of membership and/or expulsion, which are clearly religious in nature, it is respectfully submitted that in the words of Justice Barasch, this Court should “decline to don a rabbinical Shtreimal and ecclesiastical garb in order to make those determinations” (Matter of Congregation Yetev Lev D’Satmar, Inc. v. Kahana, 2004 N.Y. Slip Op. 51515(U), at p. 14, supra aff’d 31 AD3d 541 [2d Dept., 2006], aff’d 9 NY3d 282 [2007]).

conveniently ignored this argument in its reply submission (see, Plaintiffs’ Reply Memorandum of Law, dated February 17, 2009). As such, Plaintiffs, who clearly seek what amounts to an advisory opinion regarding future eventualities, wholly fail to explain how the within controversy is ripe for adjudication regardless of the fact that every Plaintiff is alive and no Plaintiff has been denied access to any claimed burial rights.

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REPLY ARGUMENT POINT I THE KAHAN FACTION HAS FAILED TO ESTABLISH THAT THE PUTATIVE CERTIFICATE HOLDERS HAVE AN INALIENABLE CONTRACT RIGHT TO BURIAL IN THE KJ CEMETERY REGARDLESS OF ANY CHANGE IN THEIR MEMBERSHIP STATUS In Point I of its Reply Memorandum of Law, the Kahan faction contends that the within controversy is justiciable. In support, they posit that the controversy may be determined based upon neutral principles of law and the Court “need not delve into any religious issue or criteria in order to determine the issues raised by [the Kahan faction’s] claims” (Plaintiffs’ Reply Memorandum of Law, dated February 17, 2009 [“Reply Memorandum”] at p. 5). The linchpin of the Kahan faction’s argument is the dubious notion that one need not be a member of the Satmar Congregation in order to be buried in the KJ Cemetery and, as such, Plaintiffs hold an inalienable contract right “to be interred in the Cemetery” (Reply Memorandum at p. 5). Therefore, the Kahan faction concludes, the ecclesiastical question of membership need not be determined herein (Reply Memorandum at p. 5). It is respectfully submitted that the Kahan faction’s contentions in this regard, which strive to sublimate the membership issues which lie at the heart of this controversy (as well as the issues concerning the authority to issue the “burial certificates” and otherwise act on behalf of the Congregation in matters relative to the Burial Society), are patently devoid of merit. A.

THE KAHAN FACTION HAS CONCEDED THAT QUESTIONS CONCERNING PLAINTIFFS’ MEMBERSHIP STATUS ARE NON-JUSTICIABLE Initially, it must be noted that to the extent the adjudication of the Kahan faction’s claims

distills to a question of membership, this clearly renders the controversy non-justiciable. Indeed, the Kahan faction, which has not even attempted to argue otherwise, has expressly conceded this truth.

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In Matter of Congregation Yetev Lev D’Satmar, Inc. v. Jacob Kahana (9 NY3d 282 [2007]), the Court of Appeals expressly recognized, in declining to adjudicate the election controversy between the two competing factions [“Election Case”], that the question of membership in a religious society is a core ecclesiastical matter which cannot be resolved by the courts without trenching upon the First Amendment (id., at 287; see also, Park Slope Jewish Ctr. v. Stern, 128 AD2d 847 [2d Dept., 1987], lv. dismissed 70 NY2d 746 [1987]; Kissel v. Russian Orthodix Greek Catholic Holy Trinity Church of Yonkers, 103 AD2d 830 [2d Dept., 1984]; Waller v. Howell, 20 Misc 236 [Sup Ct., Orange Co., 1897]). Indeed, the power to control church membership is ultimately the power to control the church, and it is an area where the courts should not become involved – regardless of whether the church is a congregational church, incorporated or unincorporated, or an hierarchal church (see, Tubiolo v. Abundant Life Church, Inc., 167 NC App 324, app. dismissed 359 NC 326, cert denied 546 US 819 [2005]). In Matter of Congregation Yetev Lev D’Satmar, Inc. v. Jacob Kahana (9 NY3d 282, supra), the Court of Appeals recognized that the election challenge concerning the two competing factions in the Satmar leadership dispute hinged upon the question of whether President Berl Friedman had been expelled from the Congregation (thereby ostensibly opening the door for the Kahan faction to hold their own sham election). Concluding that this presented a non-justiciable membership issue, the Court reasoned, in pertinent part as follows (Matter of Congregation Yetev Lev D’Satmar, Inc. v. Jacob Kahana, 9 NY3d 282, 288, supra): A decision as to whether or not a member is in good standing is binding on the courts when examining the standards of membership requires intrusion into constitutionally protected ecclesiastical matters. Although courts generally have jurisdiction to determine whether a congregation has adhered to its own bylaws in making determinations as to the membership status of individual congregants, here, the Congregation’s bylaws condition membership on religious criteria, including whether a congregant follows the “ways of the torah.” Whether Berl Friedman was expelled from membership of the Congregation

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inevitably calls into question religious issues beyond any membership criteria found in the congregation’s bylaws [citation omitted]. Contrary to petitioner’s position, Berl Friedman’s religious standing within the Congregation is essential to resolution of this election dispute. * * * With such membership issues at the center of this election dispute, matters of an ecclesiastical nature are clearly at issue. These particular issues must be resolved by the members of the congregation, and cannot be determined by this Court. Significantly, early in the proceedings in the matter at bar, counsel for the Kahan faction expressly recognized that the within controversy is non-justiciable to the extent that membership issues are engendered by the competing claims. Indeed, Ed Rubin, Esq., counsel for the Kahan faction, expressly acknowledged that “membership legitimacy” is a non-justiciable question “because of the bylaws phrased the way they are” (see, Transcript of Proceedings, dated December 16, 2008, at pp. 15-16). Mr. Rubin expanded upon this admission by noting that membership is “based upon who is religious or observant or sufficiently something or the other from the point of view of the current administration, and where you have two administrations these questions can’t be resolved * * *” (Transcript of Proceedings, dated December 16, 2008, at p. 16).4 Mindful of the clarity with which the Courts have spoken on this issue, the Kahan faction endeavors to remove the membership question from this controversy by asserting that Plaintiffs have an inalienable contractual and/or property right to burial in the KJ Cemetery upon the future eventuality of their death (Reply Memorandum of Law at 9). As demonstrated below, however, the record clearly establishes that attaining and maintaining membership in the Congregation, which necessarily engenders non-justiciable questions regarding whether the individual has

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Likewise, during this same discussion this Court, clearly mindful of the Court of Appeals’ determination in the Satmar Election Case, gave voice to the truth that undoubtedly it would be impermissible for the Court to determine who is a member of the Congregation and who is not a member (Transcript of Proceedings, dated December 16, 2008, at p. 19).

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followed the Torah and the teachings of the Satmar Grand Rabbi, is a pre-condition to burial in the KJ Cemetery (see, Gross Reply Affidavit, at ¶ 3). B.

THE KAHAN FACTION HAS FAILED TO ESTABLISH THAT MEMBERSHIP IS NOT REQUIRED FOR BURIAL IN THE KJ CEMETERY “Cemeteries maintained by particular religious faiths may restrict burial rights to

members of that faith. Restrictions which impose against the burial of any person who is not, at the time of his death, a member in good standing of the religious organization controlling the cemetery, are enforceable, even as against purchasers of lots” (14 Am Jur 2d, Cemeteries § 38; see also, RCL § 7 – providing that a religious corporation may sell and convey lots in a cemetery for burial purposes, subject to such conditions and restrictions as may be imposed “by the rules and regulations adopted by such corporation; McGuire v. Trustees of St. Patrick’s Cathedral, 54 Hun 207 [1st Dept., 1889], 7 NYS 345, 351-352 – in a case where the church refused burial of the purchaser of burial rights, the appellate court held that: [1] the purchaser merely possessed a revocable license; and [2] the question of whether an individual was in communion with the church at the time of death was “solely for the determination of the church authorities”). “A person who secures the privilege of burial in a cemetery subject to the charge and control of a religious organization takes the right subject to the rules of such organization, which may limit the right of interment to its members or to those who die in communion with it. Even those who are members of the congregation have no right to burial except such as is conferred by the church laws” (14 CJS, Cemeteries § 27; see also, RCL § 7; McGuire v. Trustees of St. Patrick’s Cathedral, 54 Hun 207, 7 NYS 345, 351-352, supra).5

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The Kahan faction’s charge that RCL § 7 does not provide that burial in a private religious cemetery is “subject to the rules, regulations, and traditions of the religion” (Reply Memorandum at 44, n. 5) represents a meaningless, hyper-technical parsing of the statute’s language. That is, while the exact phrase “rules, regulations and traditions of the religion” may not be found within said statute, it is clear that the statute expressly provides that the sale of burial rights by a religious corporation may be “subject to such conditions and restrictions as may be imposed by * * * the

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The McGuire case concerned the denial of burial rights in a religious cemetery to one who had earlier in life purchased a burial lot but was no longer in communion with the church. The court therein expressly concluded that the question of whether an individual was in communion with the church at the time of death was “solely for the determination of the church authorities.” As noted in Waller v. Howell (20 Misc 236, 238 [Sup Ct., Orange Co., 1897]), which has occasion to analyze and apply McGuire (supra), “the right of burial in a lot purchased by the deceased was refused, and no civil right was considered to be involved in the question of communion upon which the right of burial depended” (Waller v. Howell 20 Misc 236, 238, supra).6 Here, the KJ Cemetery is a private religious cemetery that is neither open to the general public nor to individuals who merely subscribe to the Jewish faith. It is an Orthodox Jewish cemetery reserved only for those members of the Satmar sect of Chassidim who have lived their lives in an honorable fashion befitting interment in the same holy ground as the movement’s founder and its supreme spiritual leaders. Contrary to the Kahan faction’s claim that Plaintiffs are “lot owners” (Reply Memorandum at p. 43), the Congregation does not offer identified burial plots for sale to its members, nor does it grant property deeds to any specific cemetery lots (see, Brach v. Congregation Yetev Lev D’Satmar, Inc., CV-93-4606(CPS) [EDNY, Sept. 9, 1993], aff’d 57 F3d 1064 [2d Cir., 1995], cert denied 516 US 1173 [1996] – finding that the KJ Cemetery was a private religious cemetery and, further, that the Congregation “does not offer burial plots for sale and does not allow burial other than as a death benefit to members in good

rules and regulations adopted by such corporation.” As such, the “point” made by the Kahan faction on page 44, n. 5 of its Reply Memorandum amounts to a vacuous exaltation of style over substance. 6 It bears noting that the Waller case was cited by the Second Department in Mays v. Burrell (124 AD2d 714 [2d Dept., 1986]), wherein that court declined to interfere with matters concerning the internal affairs of a church. Moreover, the Waller case was cited by the Kahan faction three times in their brief to the Court of Appeals in the election case (see, 2007 WL 4331720) and four times in their briefs to the Second Department (see, 2005 WL 4715774; 2006 WL 3830871; 2006 WL 3830876).

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standing”).7 Significantly, in defending the litigation in Brach (supra), the Congregation expressly argued that it “does not sell burial plots in the [KJ] cemetery” and, further, no person buried has either “a deed” or “title” to a burial plot (Brach v. Congregation Yetev Lev D’Satmar, Inc., Brief in Opposition to Petition for Writ of Certiorari, 1996 WL 33439181). Given the fact that the Congregation merely offers “a death benefit to members in good standing” (Brach v. Congregation Yetev Lev D’Satmar, Inc., supra), and it clearly has never sold burial plots or conveyed “title” to any such “lot” as contemplated by RCL § 8, the Kahan faction’s reliance upon that statute in pleading their second cause of action is misplaced. Moreover, contrary to the Kahan faction’s contentions, the certificates issued by the Burial Society do not “constitute valid contracts” (Jacobowitz Affirmation at ¶ 19), as pleaded in their first cause of action, and they certainly do not confer any possessory or contractual rights in any particular “cemetery plots,” as claimed in their Reply Memorandum (Reply Memorandum at p. 9).8 Far from constituting a deed or title to cemetery lots, the certificates historically issued in the Satmar community are “Honorary Member Certificates,” which merely establish that at the time of issuance the holder is a “member in our holy association to be entitled to a burial plot for himself after he passes away” so long as he remains a member (and maintains the religious standards of a member) he will be entitled to burial in the KJ Cemetery at a location to be determined by the Burial Society (see, e.g., Affirmation of Moses Spielman, dated December 14, 2008, Exhibit A [“Honorary Member Certificate”]). The Kahan faction cannot alter these immutable ecclesiastical truths by the expedient act of creating their own burial certificates and

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A copy of the Eastern District’s Decision in Brach v. Congregation Yetev Lev D’Satmar, Inc., is annexed as Exhibit E to the Buss Affirmation. 8 In fact, while their Reply Memorandum of Law represents that Plaintiffs have purchased “cemetery plots” in which they have an immediate and inalienable interest “as lot owners” (Reply Memorandum at p. 9, 43), the Kahan faction has already recognized that it is the Burial Society which, upon death, designates the particular place for burial (Affirmation of David B. Hamm, Esq., dated February 16, 2009, at p. 10, n. 6).

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then dubiously arguing that once a certificate is issued the question of membership becomes irrelevant (see, Reply Memorandum at p. 5). 1.

The Evidence Overwhelmingly Establishes That Loss Of Membership In The Congregation Precludes Burial In The KJ Cemetery The Congregation’s “membership” requirements are established in Article 3 of the By-

Laws, and they include, inter alia, [1] Sabbath keeping; [2] non-transgression of the Holy Torah; and [3] education of one’s children in the ways of the Holy Torah (see, Buss Affirmation, Exhibit D [By-Laws]). Further, Article 10 (c) of the By-Laws provides: Members must be expelled from the congregation if the following cases have been determined: a. If he is intentionally desecrating the Sabbath or he intentionally transgresses the commandments, b. If he declines to appear before a Torah Court or abide by its verdict. c. If his wife appears in public with her hair exposed. d. If he works against the interests of the congregation. Clearly, Satmar membership is based upon a profoundly religious test, only a portion of which is explicitly set forth in the By-Laws. The balance is set forth in Judaic law and tradition, as interpreted by the Satmar Grand Rabbi (see, Gross Reply Affidavit, at ¶ 17). As established in the Joint Affirmation of Chaim Gross, Schlomo Wertzberger, David Eckstein and Elias Horowitz, all of whom are members of the Burial Society, membership thus requires an individual to honor the torah and the teachings of the Satmar Grand Rabbi, and to live consistent with those principles (see, Joint Affirmation of Chaim Gross, Schlomo Wertzberger, David Eckstein and Elias Horowitz, dated January 27, 2009 [“Joint Affirmation”] at ¶ 6). According to these esteemed members of the Burial Society, honoring the Torah and the teachings of the Grand Rabbi “is a continuing requirement, and an individual can lose their membership if they fail to live a righteous life, in accordance with the Torah, as interpreted by

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our Grand Rabbi” (Joint Affirmation at ¶ 6).9 Moreover, “[i]f a person is not a bona fide member of the religious organization, they have no right to be buried in the religious organization’s cemetery” (Joint Affirmation at ¶ 7). The standards for attaining and maintaining “membership” in the Congregation are clearly religious in nature, requiring assessments of one’s religiosity and judgments as to whether one lives his life in a “Torah true” fashion. Indeed, such conduct judging is a religious exercise that is inherent in the Satmar way of life. Contrary to the Kahan faction’s contentions, membership in Satmar Chassidim is a privilege, not a property or contract right, and it can be taken away or forfeited based upon the manner in which one lives his life (see, 66 Am Jur 2d, Religious Societies § 19 -- “The relations, rights, and obligations arising from membership in a religious society are to be determined according to the constitution, rules, or bylaws of the society * * * because one who becomes a member of a church is presumed to have voluntarily submitted to all known tenets of congregational discipline, with an implied consent to its government, and is bound by its laws, usages, customs, and principles. Membership in a church is not a property right;” see also, Temple Beth AM v. Tanenbaum, 6 Misc3d 2373 [Dist Ct., Nassau Co., Nov. 1, 2004], 2004 NY Slip Op 24422 -- accord).

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Given the continuing nature of the religious requirements for membership, and the prospect of future expulsion, the Kahan faction’s argument that Plaintiffs were recognized as members in mass mailings which were recently sent by the Congregation (see, Reply Memorandum of Law, Point IV), is truly of no moment herein. First, said mass mailing was sent to some 20,000 individuals across the world, including to both members and non-members who are connected to the Satmar community. Receipt of that mass mailing neither confirms nor establishes membership. More important, even if Plaintiffs were members, or continue to be members at the present time, such does not negate the fact that they remain subject to expulsion, loss of membership and loss of burial privileges in the event they fail to maintain the religious standards for membership. Indeed, in the prior Election Case the Kahan faction claimed that the President of the Congregation, Berl Friedman, a revered elder in the Satmar community, had been expelled for failing to maintain the “religious criteria” for membership (Matter of Congregation Yetev Lev D’Satmar, Inc. v. Jacob Kahana, 9 NY3d 282, 288, supra).

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In fact, the courts have already determined on several occasions that expulsion from the Satmar Congregation is permissible, it is non-reviewable by the secular courts and it results in the loss of access to the KJ Cemetery (see, Brach v. Congregation Yetev Lev D’Satmar, Inc., CV-93-4606(CPS) [EDNY, Sept. 9, 1993], aff’d 57 F3d 1064 [2d Cir 1995], cert denied 516 US 1173 [1996];10 Weinstock v. Congregation Yetev Lev D’Satmar, 5798/92 [Sup Ct., Orange Co., August 24, 1992];11 see also, Matter of Congregation Yetev Lev D’Satmar, Inc. v. Jacob Kahana, 9 NY3d 282, supra ). With reference to the issue of burial in the KJ Cemetery, Article 11 of the By-Laws, entitled “Burial Society” specifically contemplates that burial in the holy KJ Cemetery is contingent upon membership (see, Article 11 [d] – “in the case of death, every member is taxed by 50 cents [emphasis supplied];” Article 11 [h] – referring to the “burial costs of a member who is buried in our cemetery [emphasis supplied]”). As affirmed by Joseph Weiss, the Secretary of the Burial Society who has served the Burial Society for over 30 years, the Burial Society and the Congregation evaluates whether the certificate holder “has continued in membership and observance of the tenants of the Holy torah before such individual’s body could be interred at this most holy site” (Affirmation of Joseph Weiss, dated January 26, 2009 [“Weiss Affirmation”] at ¶ 49). Mr. Weiss clearly establishes that the question of whether an individual may be buried in the KJ Cemetery is not simply one of 10

In Brach (supra), a case wherein a group of dissidents who were expelled after contesting the succession of the late Grand Rabbi Moses Teitelbaum unsuccessfully sought access to the KJ Cemetery, the Congregation specifically argued to the U.S. Supreme Court as follows (Brach v. Congregation Yetev Lev D’Satmar, Inc., Brief in Opposition to Petition for Writ of Certiorari, 1996 WL 33439181): “If this Court were to reverse the decision of the courts below, the District Court would be forced to determine whether Petitioner had the right to contest the succession of the present Rebbe, whether the Satmar Congregation had the right to expel Petitioner under the laws of the Jewish religion and the practices of the Satmar Hasidic community, and questions pertaining to the internal discipline of the Satmar Congregation. These questions cannot be separated from the controversy concerning access to the cemetery.” Clearly, these words and the truths they represent, which squarely contradict the position advocated by the Kahan faction, echo resoundingly herein. 11 A copy of the Decision in Weinstock v. Congregation Yetev Lev D’Satmar (supra), is annexed as Exhibit F to the Buss Affirmation.

14

“verifying payment of all dues, fees, pledges, donations and burial expenses” (Weiss Affirmation at ¶ 49). Indeed, contrary to the Kahan faction’s dubious claim, burial in the KJ Cemetery “is not and never has been automatic” (Weiss Affirmation at ¶ 49). Significantly, Mr. Weiss’s affirmations are corroborated by the Kahan faction’s own moving papers, which contain three published notices, dating from 1987, 1992 and 1998, which expressly and unequivocally establish membership as a criteria for burial in the KJ Cemetery (see, Affirmation of David B. Hamm, Esq., dated December 15, 2008, at Exhibit 11 [Notices]). While the Kahan faction contends that membership at the time a Certificate is issued is all that is required for burial in the KJ Cemetery (see, Reply Memorandum at 5), the evidence overwhelmingly establishes otherwise. Article 10 of the By-Laws, entitled “Rights and Obligations of the Members,” provides that “Members who resign or are expelled from the congregation have no claims against the congregation and all paid contributions, under whatever name they are, shall not be refunded” (Buss Affirmation, Exhibit D [By-Laws]). The record clearly shows that this includes the rescission of any burial certificates issued prior to expulsion (see, Gross Reply Affidavit, Exhibits C-E [Notices concerning termination of membership and consequent loss of burial privileges]). The record contains numerous documents, including documents emanating from Jacob Schonfeld, who was Secretary of the Congregation prior to the schism, and an avid supporter of the Kahan faction following the schism (see, Gross Reply Affidavit at ¶ 20), which establish that the loss of membership renders any Certificates previously issued “null and void” (see, Gross Reply Affidavit, Exhibits B, C, D [Notices concerning termination of membership and consequent loss of burial privileges]).

15

Moreover, these Notices establish that rescission of the Certificates is required because “in no event can a non-member” be buried in the KJ Cemetery (see, Gross Reply Affidavit, Exhibits D). Significantly, some of these documents, which unequivocally memorialize that a loss of one’s membership in the Congregation results in the automatic and concomitant loss of any privilege to be buried in the KJ Cemetery, were submitted by the Kahan faction in connection with the prior litigation involving the KJ Cemetery (see, Gross Reply Affidavit, Exhibits C). At bottom, it is axiomatic that “religious organizations have the First Amendment right to discipline or expel members” (Brach v. Congregation Yetev Lev D’Satmar, Inc., CV-934606(CPS) [EDNY, Sept. 9, 1993], aff’d 57 F3d 1064 [2d Cir 1995], cert denied 516 US 1173 [1996]; see also, Paul v. Watchtower Bible and Trust Society of New York, Inc., 819 F2d 875 [9th Cir., 1987], cert denied 484 US 926 [1988]; Grunwald v. Bornfreund, 696 FSupp 838 [EDNY, 1988]). The denial of religious burial rites to expelled Satmars is thus clearly in accord with RCL § 7 and the common law (see, RCL § 7; 14 Am Jur 2d, Cemeteries § 38; 14 CJS, Cemeteries § 27; see also, McGuire v. Trustees of St. Patrick’s Cathedral, supra). Further, in accord with the wealth of documentation in this record, including the By-Laws of the Congregation, the denial of religious burial rites in the same hallowed ground as the deceased Grand Rabbis represents a known and historical ecclesiastical sanction imposed under Jewish Law upon those who fail to adhere to the Holy Torah (see, Kupperman v. Congregation Nusach Sfard of Bronx, 39 Misc2d 107 [Sup Ct., Bronx Co., 1963]).12

12

For these reasons, the Kahan faction’s equitable estoppel argument, made in Point III of its Reply Memorandum, is patently devoid of merit. Under the By-Laws, as well as the traditions of the Satmar faith, mere payment of a fee to procure the “Honorary Member Certificate” issued by the Burial Society does not engender an inalienable right to burial in the KJ Cemetery. Rather, in order to attain that right it is incumbent upon the holder of said Certificate to

16

Given the foregoing, it is patent that only members who remain in good standing through their lifetimes may be buried in the KJ Cemetery. It is truly absurd for the Kahan faction to suggest otherwise. The KJ Cemetery, being the gravesite of the Satmar movement’s founder, Grand Rabbi Joel Teitelbaum, is “a special place not automatically given” and a “a place of honor” in the Satmar faith (see, Buss Affirmation, Exhibit J [Rabbinical Interpretation of Satmar “Honorary Member Certificate[s]”]). In this vein, it is noted that while the Satmar community has cemeteries in other locations, burial in the KJ Cemetery in close proximity to the movement’s founder constitutes a “place of honor” (Buss Affirmation, Exhibit J [Rabbinical Interpretation]).13 Six of the “Honorary Member Certificate[s]” which have been proffered by the Kahan Faction are valid documents which were issued by the Burial Society and, as represented by Mr. Weiss, those documents “will be honored at the appropriate time pending membership compliance issues” (see, Weiss Affirmation at ¶ 55). It is important to note that unlike the selfcreated Certificates issued by the Kahan Faction, these valid Certificates were issued under the aegis of the KJ Cemetery – not that of the Congregation (see, Affirmation of Zigmond Brach, dated December 9, 2008, Exhibit A [“Honorary Member Certificate”]; Affirmation of Moses Spielman, dated December 14, 2008, Exhibit A [“Honorary Member Certificate”]; Affirmation of Joseph Epstein, dated December 11, 2008, Exhibit A [“Honorary Member Certificate”]; maintain Satmar religious standards for the remainder of his life. Failure to do so can result in expulsion and the concomitant loss of any burial privileges and, under the By-Laws, “[m]embers who resign or are expelled from the congregation have no claims against the congregation and all paid contributions, under whatever name they are, shall not be refunded” (Buss Affirmation, Exhibit D [By-Laws], at Article 10). It is axiomatic that “religious organizations have the First Amendment right to discipline or expel members” (Brach v. Congregation Yetev Lev D’Satmar, Inc., CV-93-4606(CPS) [EDNY, Sept. 9, 1993], aff’d 57 F3d 1064 [2d Cir 1995], cert denied 516 US 1173 [1996]). Adopting the Kahan faction’s equitable estoppel argument would render Article 10 of the By-Laws meaningless and force the Congregation to bury non-believers in their holy cemetery. 13 Notably, even the Kahan faction’s own self-created Certificates contain a phrase which contemplates and anticipates that a final decision regarding burial in the KJ Cemetery must await death [i.e., “[plaintiff] has taken possession of his plot effective immediately and until one hour prior to his death [emphasis in original]” (Affirmation of Morris Friedman, dated December 10, 2008, Exhibit A [“Confirmation Certificate”]).

17

Affirmation of Herman Landau, dated December 14, 2008, Exhibit A [“Honorary Member Certificate”]; Affirmation of Jose Masri, dated December 14, 2008, Exhibit A [“Honorary Member Certificate”]; Affirmation of Ervin Rosner, dated December 14, 2008, Exhibit A [“Honorary Member Certificate”]). Further, these valid Certificates specifically provide that the acceptance of the holder of the certificate as a member in the holy association is made “in accordance with the holy regulations of the holy Congregation Yetev Lev D’Satmar” (id.). Therefore, as expressly contemplated by RCL § 7, the holder remains subject to such conditions and restrictions as may be imposed “by the rules and regulations adopted by” the Congregation (RCL § 7). The fact that the holder remains subject to the Congregation’s rules, including the dispositive and ecclesiastical standards for membership, is evident right on the face of the Certificate. In Exhibit J to the Buss Affirmation, Defendants have presented the Rabbinical interpretation of the import of the Certificates.14 Therein, it is established that the subject Certificates do not confer any inalienable contract or property right to be buried in the KJ Cemetery unless the holder “fulfills the community’s regulations” (Buss Affirmation, Exhibit J [Rabbinical Interpretation]). Further, the Rabbinical opinion stresses (id.): burial [in the KJ Cemetery] is only for those who are deserving according to the regulations of the congregation and the statutes, meaning that it doesn’t contradict the Shulhan Arukh, and treats Judaism and Torah law according to the fundamentals and the perceptions of our holy masters Rabbi Yoel Teitelbaum (May his virtue protect us) and his nephew and replacement Rabbi Moshe Teitelbaum (May his merit shield us), and even someone who already had a membership certificate but went astray will not be given a burial plot in the cemetery [emphasis supplied].” Accordingly, the Rabbinical opinion concludes, the procurer of the Certificate “pays that fee at the behest of that congregation’s burial society, that they will provide him with a burial 14

The Kahan faction has acknowledged that the Certificates written in Hebrew must be construed in accordance with Jewish law (see, Reply Affirmation of David B. Hamm, Esq., February 16, 2009, at p. 10, n. 6; Reply Affirmation of Chaim Jacobowitz, dated February 15, 2009, at p. 15, n. 5).

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plot in accordance with the regard in which they hold him, and also will not allow the internment of someone who did not fulfill all of the congregation’s regulations” (Buss Affirmation, Exhibit J [Rabbinical Interpretation]). Significantly, this evidence has been simply ignored by the Kahan Faction. And finally, it is particularly specious for the Kahan Faction to now claim that the burial of non-members in the KJ Cemetery is permitted (Affirmation of David Hamm, dated February 16, 2009, at ¶ 26), based upon the handwritten minutes of a 1997 meeting (see, Affirmation of Chaim Jacobowitz, dated February 15, 2009 [“Jacobowitz Affirmation”], Exhibit I [Minutes]). The minutes in question merely reflect that under truly exceptional circumstances a person who was not a member at the time of death may nevertheless become “a member after his death in order to be buried in our cemetery” (see, Jacobowitz Affirmation, Exhibit I [Minutes]). Of course, contrary to the Kahan Faction’s distortions, this evidence actually serves to re-affirm the truth that one must be a member in order to be buried in the KJ Cemetery. Indeed, these meeting minutes relied upon by the Kahan faction do not provide for mere payment of the requisite fees. Rather, this evidence clearly and unequivocally establish that one must be accepted as a “member” after his death, thereby ensuring that the applicant was subjected to the requisite religious and ecclesiastical judgments and assessments inherent to the membership issue before being permitted burial in hallowed KJ Cemetery alongside the deceased Grand Rabbis (see, Jacobowitz Affirmation, Exhibit I [Minutes]). 2.

Given The Membership Issues Which Lie At The Heart Of This Controversy, The Precedential Authorities Invoked by The Kahan Faction Are Inapposite Herein The precedents invoked by the Kahan faction in support of its neutral principles of law

analysis are unavailing in light of the membership issues which lie at the heart of their claimed right to be buried in the KJ Cemetery.

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First and foremost, the Second Department’s decision in Schwimmer v. Welz (56 AD3d 541 [2d Dept., 2008]), a case decided by Your Honor and one with which both sides are intimately familiar, is clearly inapposite herein. In Schwimmer (supra), which involves a Satmar educational institution, the ecclesiastical issue of membership in the Congregation was not evident in the limited record on appeal that was presented to the Appellate Division.15 Conversely, as previously established, the inalienable right to burial in the KJ Cemetery which the Kahan faction asks this court to establish herein squarely implicates the non-justiciable issue of whether said individuals, upon their deaths, will be deemed valid members in the Congregation who are worthy of burial in the same cemetery as the late Satmar holy leaders. In short, the membership issue which was absent from the record presented to the Second Department in Schwimmer is patent herein (cf., Schwimmer v. Welz, 56 AD3d 541, supra). Likewise, the Second Department’s recent decision in Merkos L’Inyonei Chinuch, Inc. v. Scharf (___ AD3d ___ [2d Dept., February 3, 2009], 2009 WL 262429), does not support the conclusion that the within controversy is secular in nature. In Merkos (supra), the dispute centered upon the issue of title to real property and the right of possession incident thereto. Although there was a “divisive doctrinal dispute” which may have motivated the property dispute, said dispute could be determined based upon the deeds to the properties and without reference to the doctrinal dispute. Of course, that situation differs markedly from the matter at bar. Indeed, in order to enforce the Kahan Faction’s claims to possess inalienable right to burial in the KJ Cemetery, the courts would have to adjudicate the non-justiciable question of whether said Plaintiffs remained members in good standing of the Congregation (cf., Merkos L’Inyonei Chinuch, Inc. v. Scharf, supra). 15

In Schwimmer (supra at 543-544), the Second Department commenced its analysis of the justiciability issue with the caveat “On the record before us” before then concluding its analysis with a similarly worded caveat [i.e., “on the record presented”].

20

While the Kahan faction styles as “[h]ighly instructive” the Court of Appeals’ decision in Avitzur v. Avitzur (58 NY2d 108 [1983]), said case is also clearly inapposite herein. Indeed, while the Court of Appeals, by a narrow 4-3 majority, did determine to enforce the husband’s agreement to appear before a particular rabbinical arbitration tribunal, in doing so the Court stated that the appearance before the tribunal was “a secular obligation to which [the husband] contractually bound himself” (Avitzur v. Avitzur, 58 NY2d 108, 115, supra). The Court noted that as a consequence of compelling the husband’s mere appearance, “no doctrinal issue need be passed upon, no implementation of a religious duty is contemplated, and no interference with religious authority will result” (Avitzur v. Avitzur, supra at 115). Indeed, the Court stressed that “[c]onsideration of other substantive issues bearing upon plaintiff’s entitlement to a religious divorce * * * is appropriately left to the forum the parties chose for resolving the matter” (id., at 155-116). Contrarily, in the matter at bar the claims raised by the Kahan faction necessarily implicate the ecclesiastical questions regarding future burial in the holy ground of the KJ Cemetery. Had the valid Certificates issued by the Burial Society contained a provision which called for disputes concerning an individual’s worthiness to be buried in the holy ground to be resolved by a particular rabbinical tribunal, and one party refused, the Avitzur case would be compelling precedent to the limited extent that the other party sought to compel appearance before the rabbinical tribunal.16 As it stands, however, the Kahan faction requests that this Court rule on the actual ecclesiastical issues bearing upon the claimed entitlement to a religious interment in the KJ Cemetery. In this manner, therefore, the Kahan faction asks this Court to do

16

In fact, given the Congregation’s internal mechanism for resolution of disputes involving the KJ Cemetery (see, Gross Reply Affidavit, Exhibit A [Minutes of September 22, 1987 meeting]), it could be argued that Avitzur would require that the Kahan faction resolve this dispute in accordance with said internal mechanism.

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what the Court of Appeals in Avitzur expressly determined that it could not do (cf., Avitzur v. Avitzur, supra). And finally, while the Kahan faction may find it “deeply disturbing” that Defendants did not cite to a recent Court of Appeals decision in their Joint Memorandum of Law (see, Reply Memorandum at 15), it is self-evident that said case is truly of no import herein (see, Episcopal Diocese of Rochester v. Harnish, 11 NY3d 240 [2008]). In Episcopal Diocese of Rochester v. Harnish (supra), the question presented was whether a local parish [i.e., All Saints Protestant Episcopal Church] held its real and personal property in trust for the benefit of the diocese and the national church to which it was joined, such that upon the diocese’s decision to dissolve the parish the parish’s property reverted back to the diocese or the national church. The Court found that there was an express trust in favor of the diocese and the national church evident in the diocese’s constitutional documents and, further, that the local parish had agreed to abide by this express trust (Episcopal Diocese of Rochester v. Harnish, 11 NY3d 240, supra). Citing to the Satmar election case (see, Matter of Congregation Yetev Lev D’Satmar, Inc. v. Jacob Kahana, 9 NY3d 282, supra), the Court expressly declined to review the parish’s claims regarding the alleged impropriety of the diocese’s resolution to dissolve the parish, reasoning that the diocese’s resolution “was a nonreviewable ecclesiastical determination [citation omitted]” (Episcopal Diocese of Rochester v. Harnish, supra at 352). Once again, we see that in analyzing the common law the Kahan faction has failed to acknowledge the dispositive membership issue which lies at the heart of the controversy at bar. Indeed, unlike the “trust” issue in Episcopal Diocese of Rochester v. Harnish (supra), which was expressly governed by the constitution of the general church concerning the ownership and

22

control of the hierarchal church’s property, the request for judicial recognition and enforcement of an inalienable right to burial in the KJ Cemetery cannot be determined based upon secular documents and neutral principles of law. Rather, the issue of whether in the eyes of the Congregation the individual Plaintiffs, at their death, had remained members in good standing who are worthy of burial in the KJ Cemetery necessarily implicates ecclesiastical questions. Indeed, the determination to expel members or permit members to be buried in the KJ Cemetery is directly akin to the diocese’s resolution to dissolve the local parish following “serious theological disputes,” which the Court of Appeals expressly found to be non-justiciable in Episcopal Diocese of Rochester v. Harnish (supra). * * * * In sum, the record plainly shows that judicial review of the individual Plaintiffs’ religious standing within the Congregation would be essential to granting the relief sought by the Kahan faction in this dispute. Plaintiffs’ claim to possess inalienable rights to burial in the religious cemetery upon the future eventuality of their deaths necessarily hinges upon ecclesiastical issues concerning the religious standards for membership in the Satmar Congregation. Since these questions cannot be adjudicated based upon neutral principles of law, the action must be dismissed as non-justiciable (see, Matter of Congregation Yetev Lev D’Satmar, Inc. v. Jacob Kahana, 9 NY3d 282, 288, supra).

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POINT II THE WITHIN CONTROVERSY IS NOT RIPE FOR JUDICIAL DETERMINATION AND PLAINTIFFS CLEARLY LACK STANDING IN THE ABSENCE OF ANY ACTUAL INJURY Although in moving for dismissal Defendants plainly argued that Plaintiffs’ claims “are not ripe for judicial determination” (Joint Memorandum of Law at p. 27), the Kahan faction has conveniently ignored this argument in its reply submission (see, Reply Memorandum at pp. 157). Had the Kahan faction addressed this issue, it would have been compelled to acknowledge that a justiciable controversy must involve a present, rather than a hypothetical, contingent or remote, prejudice to plaintiff (see, American Ins. Assn. v. Chu, 64 NY2d 379 [1985], cert denied 474 US 803). The dispute must be real, definite, substantial and sufficiently mature to be “ripe” for adjudication by the judiciary (see, Sokoloff v. Town Sports International, Inc., 6 AD3d 185 [1st Dept., 2004]; Bauer v. Roman Catholic Diocese of Albany, 91 AD2d 730 [3d Dept., 1982]; Park Avenue Clinical Hosp. v. Kramer, 26 AD2d 613 [4th Dept., 1966]). The supreme court is without the jurisdiction to render a declaratory judgment unless the controversy is sufficiently ripe and justiciable (see, CPLR 3001). In this same vein, “the requirement of injury in fact for standing purposes is closely aligned with [the Court’s] policy not to render advisory opinions” (Society of the Plastics Industry, Inc. v. County of Suffolk, 77 NY2d 761, 772, supra). Indeed, the common law clearly instructs that a “court has no inherent power to right a wrong unless thereby the civil, property or personal rights of the plaintiff in the action or the petitioner in the proceeding are effected” (Society of the Plastics Industry, Inc. v. County of Suffolk, supra at 772). Applying these principles herein, it is respectfully submitted that the within controversy is not ripe for judicial determination and Plaintiffs lack standing to pursue their claims since they

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have suffered no actual injury. In this regard, Plaintiffs’ claims present nothing more than hypothetical injury based on pure speculation regarding future events. That is, Plaintiffs are all living and have yet to be denied access to their alleged burial rights by any named Defendant. Moreover, it should be noted that since the Court vacated the temporary restraining order in this action, the Satmar community has managed to bury its dead without any judicial supervision or intervention, including interring 13 individuals in the KJ Cemetery (see, Gross Reply Affidavit at ¶ 5-6). Having ignored this issue in their papers, the Kahan faction wholly fail to explain how the within controversy is ripe for adjudication regardless of the fact that every Plaintiff is alive and no Plaintiff has been denied access to any claimed right to burial or erection of a headstone. It is self-evident that the Kahan faction improperly seeks what amounts to an advisory opinion regarding future eventualities. Accordingly, Plaintiffs’ claims should be dismissed since there is no ripe, justiciable controversy and Plaintiffs have failed to satisfy the requirement of injury in fact for standing purposes.

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POINT III PLAINTIFF’S CLAIMS ARE BARRED UNDER THE DOCTRINES OF RES JUDICATA AND/OR COLLATERAL ESTOPPEL It is well-settled that “following a valid final judgment * * * res judicata bars future litigation between the same parties, or those in privity with them, on the same cause of action [emphasis supplied]” (Ferris v. Cuevas, 118 F3d 122, 126 [2d Cir. 1997], citing Hodes v. Axelrod, 70 NY2d 364, 372 [1987]). That includes any claim that was brought to a final conclusion, all other claims arising out of the same transaction(s) are barred even if they are based on different theories or are seeking a different remedy (Ferris v. Cuevas, 118 F3d 122, 126, supra, quoting O’Brien v. City of Syracuse, 54 NY2d 353, 357 [1981]). In this same vein, the doctrine of collateral estoppel, or issue preclusion, “precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same” (see, Ryan v. New York Tel. Co., 62 NY2d 494, 500 [1984]). The doctrine applies if the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the plaintiff had a full and fair opportunity to litigate the issue in the earlier action (see, Parker v. Blauvelt Volunteer Fire Co., Inc., 93 NY2d 343 [1999]). Significantly, while “[t]he burden rests upon the proponent of collateral estoppel to demonstrate the identicality and decisiveness of the issue, * * * the burden rests upon the opponent to establish the absence of a full and fair opportunity to litigate the issue in the prior action or proceeding” (Ryan v. New York Tel. Co., 62 NY2d 494, 500, 500-501, supra). On the issue of privity, a plaintiff is barred from bringing the same issues in another suit if both suits were controlled by the same person who was asserting the same interests even

26

though he was not a formal party to either suit (see, Ferris v. Cuevas, 118 F3d 122, 126, supra; see also, Watts v. Swiss Bank Corp., 27 NY2d 270, 277 [1970]– wherein the Court of Appeals stated that privity includes, inter alia, “those who control an action although not formal parties to it [and] those whose interests are represented by a party to the action;” Tamily v. General Contracting Corp., 210 AD2d 564 [3d Dept., 1994]– wherein the Court determined that privity exists where a person so controlled the conduct of the prior litigation in which he was interested such that res judicata can be found). In this regard, the Second Circuit in Ferris (supra), found that res judicata prevented the plaintiffs from bringing suit because the same attorney controlled the prior action as well as the second action. In this vein, the court was consistent with its earlier finding of res judicata in Ruiz v. Commissioner of Dept. of Transp. (858 F2d 898, 901 [2d Cir., 1988]), wherein the federal plaintiffs were precluded from bringing a suit arising out of the same issues as a suit brought by state plaintiffs because both parties were represented by the same counsel. Applying these principles herein, it is respectfully submitted that the Court of Appeals has already determined in the Election Case the same issues presented herein – concerning control, membership, election, validation and Congregation authority. Specifically, the Court of Appeals in the Election Case determined that membership status in the Congregation is a nonjusticiable issue. Accordingly, the requirements concerning the identicality and decisiveness of the issues are clearly established herein. Notwithstanding the Kahan faction’s disingenuous evasions herein, it is self-evident that five of the individual Plaintiffs herein were actually named parties in the Election case.17 As

17

Specifically, Plaintiff Wilmos Friedman was a defendant in the election case prosecuted under index number 41256/01, having been sued under his Hebrew name, Zev Friedman, which is the name reflected on the certificate offered herein (see, Affirmation of Wilmos Friedman, dated December 10, 2008, Exhibit A [“Honorary Member Certificate”]). Plaintiff Herman Kahan was a defendant in the election case prosecuted under index number

27

named parties in the Election Case said Plaintiffs can not claim the absence of an opportunity to litigate the issue of the non-justiciability of membership status in the prior action, which is the dispositive issue herein. With regard to the four additional Plaintiffs, Zigmond Brach, Jose Marsi, Morris Friedman and Joseph Epstein, said Plaintiffs have failed to satisfy their burden establishing the absence of a full and fair opportunity to litigate the issue of the non-justiciability of membership status in the prior action. That is, these four Plaintiffs are clearly in privity with the defendants in the Election Case. In fact, Plaintiffs are represented by the same counsel, i.e., Herzfeld & Rubin, P.C., as the defendants in the previous action. As part of the Kahan faction and having the same counsel, their interests were clearly represented therein (see, Ferris v. Cuevas, 118 F3d 122, supra; Watts v. Swiss Bank Corp., 27 NY2d 270, supra; Tamily v. General Contracting Corp., 210 AD2d 564, supra). At bottom, the dispositive issue herein, the non-justiciability of membership status, was previously determined by the Court of Appeals’ decision in the Election Case and Plaintiffs have failed to satisfy their burden to show the absence of a full and fair opportunity to litigate said issue therein. Accordingly, it is respectfully submitted that the doctrines of res judicata and/or collateral estoppel bar the litigation of Plaintiffs’ claims herein.

41256/01, having been sued under his Hebrew name, Zvi Elimelich Kahan, which is the name reflected on the certificate offered herein (see, Affirmation of Herman Kahan, dated December 10, 2008, Exhibit A [“Honorary Member Certificate”]). Plaintiff Ervin Rosner was a defendant in the election case prosecuted under index number 28989/01, having been sued under his Hebrew name, Israel S. Rosner, which is the name reflected on the certificate offered herein (see, Affirmation of Ervin Rosner, dated December 14, 2008, Exhibit A [“Honorary Member Certificate”]). Plaintiff Herman Landau was a defendant in the election case prosecuted under index number 41256/01, having been sued under his Hebrew name, Yida Hersh Landau, which is the name reflected on the certificate offered herein (see, Affirmation of Herman Landau, dated December 14, 2008, Exhibit A [“Honorary Member Certificate”]). Plaintiff Moses Speilman was a defendant in the election case prosecuted under index number 41256/01, having been sued under his Hebrew name, Sufra Spielman, which is the name reflected on the certificate offered herein (see, Affirmation of Moses Spielman, dated December 14, 2008, Exhibit A [“Honorary Member Certificate”]).

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POINT IV THE KAHAN FACTION’S CLAIM TO POSSESS ACTUAL AUTHORITY TO ISSUE THEIR SELF-CREATED CERTIFICATES IS BASELESS AND IT IGNORES THE FACT THAT THE COURTS EXPRESSLY DECLINED TO ENDORSE EITHER FACTION IN THE PRIOR ELECTION CASE In Point II of its Reply Memorandum, the Kahan faction resurrects an argument which was made and rejected by the Court of Appeals in the prior Election Case.18 That is, Plaintiffs invoke section 703(c) of the Not-for-Profit Corporation Law in arguing that since neither of the two competing elections which were conducted in 2001 were validated by the courts in the election case, the composition of the Congregation’s Board, as it existed prior to the 2001 elections, “continues in office until such time as a valid election takes place” (Reply Memorandum at p. 26). Significantly, even if this argument were true, it simply means that the entirety of the last indisputably elected Board, which was elected in the 1994 elections, remains in office. Since the Kahan faction has conveniently failed to identify who they claim the continuing Board members to be, or that these continuing Board members participated in and approved of the Kahan faction’s decision to create their own burial documents, this N-PCL § 703 argument amounts to little more than a curiosity herein. In any event, even if the Kahan faction deemed itself authorized to issue its own burial certificates, such merely engendered a dispute within the Congregation which, in accordance with the Congregation’s resolution, must be decided by the internal mechanism provided therein (see, Gross Reply Affidavit, Exhibit A [Minutes of September 22, 1987 meeting]).

18

In Point III of the Appellants’ Brief filed in the Election Case, the Congregation argued that if the Court determined that the validity of the Kahan faction’s election was non-justiciable, N-PCL § 703 required that the existing board members [i.e., the Board headed by Berl Friedman] remain in office.

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POINT V NEITHER PLAINTIFFS NOR THE KAHAN FACTION HAS STANDING TO CHALLENGE THE INTERNAL CONVEYANCE OF THE CEMETERY BETWEEN TWO CONGREGATION ENTITIES In Point V of its Reply Memorandum, the Kahan faction offers another curiosity to the Court. That is, although the only two causes of action pleaded in the Verified Complaint seek judgment declaring that Plaintiffs and other “class members” have the right to burial in the KJ Cemetery, the Kahan faction now argues in its Point V that the Congregation’s internal conveyance of the cemetery to another Congregation entity must be deemed “void by the Court” (Reply Memorandum at p. 39). Clearly, however, the individual Plaintiffs have no standing to mount any challenge to the subject conveyance. None of the individual plaintiffs has established that he is authorized to represent the interests of the Congregation herein. This rings particularly true where the ostensible challenge to the conveyance is raised within the context of a declaratory judgment action that seeks to vindicate alleged private burial rights. Moreover, while the Kahan faction posits that the Congregation seeks to terminate “plaintiff’s rights as lot owners” by virtue of the internal conveyance (Reply Memorandum at p. 43), this claim is entirely unfounded. Indeed, as previously noted, six of the “Honorary Member Certificate[s]” which have been proffered by the Kahan faction herein are valid documents which were issued by the Burial Society under the aegis of the KJ Cemetery. As represented by Mr. Weiss, those documents “will be honored at the appropriate time pending membership compliance issues” (see, Weiss Affirmation at p. 19). Clearly, the Kahan faction’s challenge to the conveyance of the KJ Cemetery is the proverbial red herring in the context of this action. And finally, to the extent that there exists a dispute concerning the operation and administration of the KJ Cemetery, such must be decided by the Grand Rabbi Aron Teitelbaum

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in accordance with the Congregation’s resolution, (see, Gross Reply Affidavit, Exhibit A [Minutes of September 22, 1987 meeting]).

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POINT VI PLAINTIFFS ARE NOT ENTITLED TO INJUNCTIVE RELIEF AS THEY SEEK JUDICIAL ENFORCEMENT OF AN EXECUTORY CONTRACT IN A NONJUSTICIABLE CONTROVERSY AND FAIL TO ESTABLISH THAT ANY MEMBER OF THE CONGREGATION HAS BEEN DENIED BURIAL IN THE KJ CEMETERY For the reasons heretofore established, the Kahan faction has failed to establish that it is likely to succeed on the merits of either of the two causes of action it has pleaded in this declaratory judgment action. By offering up the “Honorary Member Certificates” which are traditionally issued in connection with the burial of members in the KJ Cemetery, and asking this Court for a judicial declaration that as of this date they have an inalienable contract right to burial in the KJ Cemetery upon their death, regardless of what may occur in the interim, the Kahan faction places the Court squarely in the middle of the Satmar leadership controversy. Indeed, the Kahan faction asks this Court to determine non-justiciable, ecclesiastical issues such as who is a member, whether a member has met the religious requirements for burial in the hallowed ground of the KJ Cemetery, which officers the members should pay their dues to, and who are the authorized officers of the Congregation and the Burial Society. The Kahan faction also asks the Court to forever foreclose the religious questions that are engendered upon a member’s death regarding where that member should be buried and the type and manner of the tombstone to be erected. These determinations are matters exclusively vested in the religious society and are beyond the jurisdiction of the secular courts. Likewise, proof of irreparable harm is completely lacking from the Kahan faction’s papers. Plaintiffs’ previous allegations, first made in 2004 to Justice Barasch, are strikingly similar to the allegations made to this Court. Among the remedies sought by the Kahan faction in 2004 was a declaration that only the Kahan faction had the authority to collect “membership

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dues and burial plot fees” and that Defendants should be enjoined from taking these actions (see Buss Affirmation, Exhibit I [Perlstein Affirmation], p. 10). Of course, by requesting herein a judicial imprimatur for their self-created burial certificates the Kahan faction is essentially seeking that same authority to collect dues and burial plot fees. Although the Kahan faction originally gave voice to their vacuous “concerns” regarding the administration and governance of the KJ Cemetery in 2004, they were denied by Justice Barasch, denied by the Appellate Division, and denied by the Court of Appeals. Although we are now rapidly approaching the fifth full year since the Kahan faction’s initial grab for control of the KJ Cemetery was rebuffed by Justice Barasch, nothing has changed. Indeed, to date no individual has been denied burial in the KJ Cemetery and the KJ Cemetery and the Burial Society continues to operate as it always has. The only thing which has changed on the surface is that the Kahan faction has begun issuing self-created certificates in an effort to incite yet another showdown over the KJ Cemetery. Peering a bit deeper, we see that the Kahan faction’s conduct in this regard is actually more of the same. Justice Ambrosio recently excoriated the Kahan faction’s eighth unsuccessful effort to obtain an injunction which would have recognized the Kahan faction as having control over the day-to-day operations of the Congregation (see, Frankel v Congregation Yetev Lev D’Satmar, 20 Misc3d 1137(A) [Sup Ct., Kings Co., August 22, 2008], 2008 WL 3915798). According to Justice Ambrosio: “The [Kahan faction’s] [i]njunction action is nothing more than another disingenuous attempt by one of the factions to obtain relief which is beyond the reach of the court” (Frankel v Congregation Yetev Lev D’Satmar , supra at p. 5). The matter presently at bar thus marks the Kahan faction’s ninth attempt to improperly use the Courts to gain control over the Congregation.

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As such, rather than present this Court with an actual controversy that is ripe for adjudication, the Kahan faction once again presents religious issues for a secular court’s determination in furtherance of their quest to gain control over the various operations of the Congregation and its institutions. And finally, the Kahan faction’s citation to Pantel v. Workmen’s Circle Arbetter Ring Branch (289 AD2d 917 [3d Dept., 2001]), does not support the award of injunctive relief herein. In Pantel (supra), the court was presented with a fully ripened, justiciable controversy concerning the presence of physical structures [i.e., a bench and foot stones] which were already in place at the plaintiff’s family burial plot. The question presented was whether those structures, which were already present, could remain in place or had to be removed. In affirming the trial court’s award of injunctive relief, thereby permitting the existing structures to remain in place pending the outcome of the litigation, the court stressed that there were questions of fact regarding the defendant’s uneven enforcement of the rules and regulations of the cemetery, as well as the fact that granting injunctive relief “achieves the salutary purpose of maintaining the status quo during the pendency of this litigation” (Pantel v. Workmen’s Circle Arbetter Ring Branch (289 AD2d 917, 919, supra). Conversely, in the matter at bar the Court is not presented with a ripened, justiciable controversy, as there is neither a deceased member who seeks burial nor is there a headstone which is sought to be placed. Moreover, far from being the simple question of whether a tangible, extant object may remain in place, the Kahan faction asks this Court for an advisory opinion as to what would happen if someone holding one of the Kahan faction’s self-created certificates were to pass away. For all of the reasons heretofore stated, this places the court

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squarely in the middle of the Satmar leadership controversy and requests that the Court determine numerous non-justiciable, ecclesiastical issues. In addition, while the status quo in Pantel took the form of maintaining the movant’s bench and footstones which were already physically present, such is certainly not akin to the matter at bar. The status quo herein does not take the form of any tangible physical structure. Moreover, the status quo is not represented by the movants and their self-created burial documents, but by Joseph Weiss -- who has served as the Burial Coordinator for nearly three decades. Under the circumstances, where there is no actual controversy currently before the Court, where the Kahan’s faction’s claims clearly engender non-justiciable ecclesiastical issues, and where the status quo will be upset by granting the provisional remedy requested, the Kahan’s faction’s request for injunctive relief must be denied (cf., Pantel v. Workmen’s Circle Arbetter Ring Branch, supra).

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CONCLUSION For the foregoing reason, and for the reasons previously stated in the Joint Memorandum of Law, it is respectfully requested that the Court deny the Kahan faction’s request for injunctive relief and dismiss the complaint, with costs and disbursements and such other and further relief as the court deems just, proper and appropriate under the circumstances. Dated: New York, New York February 26, 2009

Respectfully submitted, SMITH BUSS & JACOBS

BY:

JEFFREY D. BUSS Lead Counsel 733 Yonkers Avenue Yonkers, New York 10704 FISHER & FISHER Co-Counsel One Whitehall Street New York, New York 10004-2109 Attorneys for Defendant CONGREGATION YETEV LEV D’SATMAR, INC. (Under leadership of Berl Friedman) Also Attorneys for Defendants CHEVRE KADISHE D’SATMAR, CENTRAL CONGREGATION YETEV LEV D’SATMAR, INC., JOSEPH WEISS, DAVID MARKOWITZ, CHAIM ELIEZER GROSS, JOEL KAUFMAN, ELIAS HOROWITZ and SHLOMO WERTZBERGER

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- and TARSHIS, CATANIA,LIBERTH, MAHON & MILLIGRAM, PLLC One Corwin Court P.O. Box 1479 Newburgh, New York 12550 Attorneys for Defendant CONGREGATION YETEV LEV D’SATMAR OF KIRYAS JOEL, INC. and DAVID EKSTEIN

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