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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS: CIVIL TERM : PART COM1

 

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-----------------------------------------X WILMOS FRIEDMAN,

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Plaintiff,

33481/08

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- against -

OSC

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CYL CEMETARY, INC., CONGREGATION

 

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YETEV LEV D'SATMAR,INC., CHEVRE KADISHE D'SATMAR, A DIVISION OF

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CONGRFEGATION YETEV LEV D'SATMAR,INC.,CONGREGATION YETEV

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LEV D'SARMAR OF KIRYAS JOEL,INC., CENTRAL CONGREGATION YETEV LEV

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D'SATMAR, INC., RABBI EZRIEL GLUCK, JOSEPH WEISS, MOSES WITRIOL, DAVID

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MARKOWITZ, CHAIM E LIEZEF GROSS, JOEL KAUFMAN, DAVID EKSTEIN, ELIAS

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HOROWITZ and SHLOMO WERTZBERGER,

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Defendants .

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-----------------------------------------X 360 Adams Street

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Brooklyn, New York March 12, 2009

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B

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F O R

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:

HONORABLE CAROLYN E.DEMAREST, Justice

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A

P

P E A

R A N C E S:

 
 

Attorneys for the Plaintiff

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HERZFELD & RUBIN 40 Wall Street

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New York, New York 10005

By:

DAVID B. HAMM, ESQ.

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Attorneys for the Defendants- CYL CEMETARY, CONGREGATION YETEV LEV D'SATMAR,

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CHEVRE KADISHE SATMAR, SATMAR, CENTRAL CONGREGATION YETEV, JOSEPH WEISS, DAVID MARKOWITZ, CHAIM GROSS,

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JOEL KAUFMAN, ELIAS HOROWITZ and SHLOMO WERTZBERGER SMITH, BUSS & JACOBS, LLP

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500 Fifth Avenue New York, New York 10110

 

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By: JEFFREY D. BUSS,, ESQ.

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A

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P E A

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A N C

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S

:

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CO-COUNSEL WITH SMITH, BUSS & JACOBS, LLP FISHER & FISHER, ESQ.

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1 Whitehall Street New York, New York 10004

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Attorneys for the Defendant - CONGREGATION YETEV D'SATMAR and CHEVRE KADISHE

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ISRAEL VIDER, ESQ. 1507 Avenue M

 

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Brooklyn, New York 11230

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Attorney for Defendant - RABBI EZRIEL GLUCK JAMES KLATSKY,ESQ.

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185 Madison Avenue New York, New York 10016

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Attorney for the Defendant -

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CONGREGATION YETEV D'SATMAR EDWARD RUBIN, ESQ.

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444 Madison Avenue New York, New York 10022

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Attorney for the Defendant -

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YETEV LEV D'SATMAR OF KIRYAS JOEL RICHARD M. MAHON,II, ESQ.

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1 Corwin Court Newburgh, New York 12550

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Attorney for Defendant -

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DIRECTOR OF PUBLIC SAFETY, MOSES WITRIOL JACOBOWITZ & GUBITS, LLP

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158 Orange Avenue Walden, New York 12586

 

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Margaret Breitfeller,RPR Official Court Reporter

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Proceedings

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COURT CLERK:

Part N motion

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calendar, numbers one through five on the

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motion calendar, Friedman, et al versus CWL

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Cemetary, et al condensed.

 

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Counsel, appearances.

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MR. HAMM:

May it, please, the

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Court, my name is David Hamm.

I am with

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Herzfeld & Rubin.

I am here on behalf of

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plaintiffs.

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MR. RUBIN:

Edward Rubin, along

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with my colleague, Mr. Vider to Congregation

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

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THE COURT:

You are actually a

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defendant?

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MR. RUBIN:

Correct.

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THE COURT:

Yes, sir.

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MR. VIDER: Israel Vider as

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co-counsel to Edward Rubin for Congregation

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Yetev Lev D'Satmar and Chevre Kadishe.

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MR. KLATSKY:

James Klatsky for

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Rabbi Ezriel Gluck.

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THE COURT:

Spell the last name.

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MR. KLATSKY:

Gluck G-L-U-C-K.

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THE COURT:

G-L-U-C-K. All right.

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Okay. Because.

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Proceedings

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MR. BUSS:

Jeffrey Buss of Smith,

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Buss and Jacobs. My firm represents

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defendants: CYL CEMETARY, CONGREGATION YETEV

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LEV D'SATMAR,CHEVRE KADISHE SATMAR, SATMAR,

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CENTRAL CONGREGATION YETEV, JOSEPH WEISS,

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DAVID MARKOWITZ, CHAIM GROSS, JOEL KAUFMAN,

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ELIAS HOROWITZ AND SHLOMO WERTZBERGER.

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THE COURT:

Okay.

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MR. FISHER:

Edward Fisher, Fisher

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& Fisher for the same parties that Mr. Buss

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represents.

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THE COURT:

Okay, thank you.

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MR. MAHON:

Richard M. Mahon,

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attorney for defendant, Congregat Yetev Lev

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D'Satmar of Kiryas Joel, Inc.

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MR. NICHOL:

Donald Nichol. I am

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the village attorney. I am representing the

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Director of Public Safety, Moses Witrial.

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THE COURT:

Okay. I thought this

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had been discontinued. Well, I guess it is

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discontinued against the police, the State

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police, but that is not who you represent;

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correct?

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MR. NICHOL:

Correct.

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THE COURT:

It is the village.

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Proceedings

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MR. NICHOL:

I represent the

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Director of Public Safety.

 

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THE COURT:

Okay.

We have a lot

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of papers here. I know the primary issue,

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which probably should just be addressed right

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up front, has to do with the original motion

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which was for a preliminary injunction, which

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would necessarily address the underlying

 

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merits of this matter and cross motion to

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dismiss.

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I know we argued the preliminary

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injunction matter a few times.

 

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I don't know if there is anything

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you want to add to prior arguments Mr. Hamm,

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I think you have been here many times before.

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I heard you argue. I know what your position

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is.

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Is there any change or anything you

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have to add to your argument.

 

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MR. HAMM:

Yes, Your Honor.

I in

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would like to be able to address the matter

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in a comprehensive way because at the last

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occasion, I did not have before the Court a

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response to the cross motion to dismiss,

 

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which included not only arguments based on

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Proceedings

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factual matter, evidence in support of our

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motion for preliminary injunction and against

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their motion to dismiss and also legal issues

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they had raised in their opposition papers,

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which we responded in our reply memorandum of

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law.

I would like to address those if it

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please the Court.

 

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THE COURT:

Let's begin with

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plaintiff then.

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MR. HAMM:

There are thousands of

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facts in the papers before the Court and just

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as many fictions. I am not going to address

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that unless the Court has a specific question

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on specific facts.

I am going to limit my

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argument to the facts for legal reasons.

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I do that for three legal reasons:

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CPLR-6312(c) even if there is a

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real issue of fact, it does not indotate a

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preliminary injunction, even if there is a

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real relevant issue of fact.

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I am not talking about

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75/25 percent. A relative issue of fact that

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does not prevent a preliminary injunction.

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Certainly under 7211, if there is a

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relative issue of fact, a dismissal would not

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Proceedings

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be warranted.

 

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And, third, another important

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statutory provision under C.P.L. 901 I do not

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need nine named plaintiffs. I don't need

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five.

I need one.

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THE COURT:

But you don't have a

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certified class.

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MR. HAMM:

Not yet.

If that is an

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issue I would point to our cases in the

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memorandum law is that you can get a class

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action preliminary injunction notwithstanding

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there has been a class certification, a

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protection of the class is still something

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which the Court can provide for, even though

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a motion for class certification has not yet

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been presented or granted.

 

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Among the cases we're against

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Monroe County, which we mentioned also

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because it applies as well to the question of

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whether we can bring a preliminary injunction

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with respect to a party who is an official or

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county official or village official in this

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case.

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But I want to talk about the law.

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I want to speak specifically about two facts,

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Proceedings

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which I think should be undisputed, except

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that my adversary seems to dispute

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everything.

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One is that the plaintiffs are

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members of the congregation. Now I said that

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not only because they say they are members

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and not only because Saul Bilsky, the last

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the Vice President prior to the 2001

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elections says their members and not only

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because the certificates themselves specify

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that they are members, but also because the

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defendants in sending out from 163 Robbie

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Street various letters threatening to throw

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them out of membership necessarily inherently

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admit that right now they are members of the

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congregation.

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The claim, there was a claim that

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five of the plaintiffs had been thrown out.

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They pointed to Exhibits G and H in the

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original opposition papers. My copies of D

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and H say nothing of the sort.

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If Your Honor looks at copies of D

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and H, they mention my client's name. I

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would really like you to know that.

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THE COURT:

What, what are you

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Proceedings

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referring to?

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MR. HAMM:

The opposition and

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cross motion.

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THE COURT:

Okay.

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MR. HAMM:

There are a number of

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statements made in there. Five of the

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plaintiffs that had been thrown out of

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membership. It said five or six submissions

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in there. The only evidence pointed to was

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Exhibits G and H attached to Mr. Buss's

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affirmation.

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THE COURT:

Oh, I see.

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MR. HAMM:

My copies of G & H do

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not have my client's names in there. They

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throw out certain individuals, but not my

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clients. So if Your Honor's copy of that

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says something else.

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THE COURT:

Well, I am trying to

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find a copy to which you refer.

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Unfortunately, I know you are referring to

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the submission in support of the cross motion

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for dismissal in which there were multiple

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individual affirmations.

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MR. HAMM:

Well, I received it

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like this in rubber bands with no backs.

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Proceedings

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THE COURT:

I didn't receive it

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much differently. I don't exactly know.

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MR. HAMM:

Exhibit G & H to Mr.

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Buss's affirmation.

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THE COURT:

To Mr.

Buss's

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affirmation, all right. That will help. Now

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you are saying that G and H do not contain a

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certificate of your clients.

 

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MR. HAMM:

Does not mention that

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my clients have been thrown out of the

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congregation. That is what they were cited

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to, for that purpose in the motion papers.

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THE COURT:

Okay, go on.

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MR. HAMM:

All right.

So they are

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members, Your Honor.

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And the second important point that

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I want to make concerning that is that the

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plaintiffs have certificates entitling them

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to burial in the cemetary.

 

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Now I say that not only because it

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is clear from the face of the certificates,

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it expressly says they have the right to

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burial.

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It is also clear from Exhibit 34H,

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which was submitted without reply, 34H I am

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Proceedings

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sorry.

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THE COURT:

No, no, just go.

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MR. HAMM:

Surely.

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Exhibit 34H was a proposal.

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THE COURT:

This is your original

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Order to Show Cause?

 

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MR. HAMM:

No, this is the second

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document we submitted. We submitted a total

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of two affirmations.

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THE COURT:

Right.

I have your

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reply and it is your affidavit.

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MR. HAMM:

This is annexed to the

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affidavit.

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THE COURT:

What number?

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MR. HAMM:

34H.

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THE COURT:

I see what you did.

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34 has multiple sub-exhibits.

 

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MR. HAMM:

And H is the one I am

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referring to.

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THE COURT:

I see.

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MR. HAMM:

That exhibit was a

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standard form solicitation for the purchase

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of a burial plot.

Standard form and it too

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made very clear that once that burial

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certificate was issued, that was a contract.

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Proceedings

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It uses that term.

 

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In fact, it uses it in the

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translation from Yiddish. The word contract

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actually appears in the Yiddish form.

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It is also clear, Your Honor, from

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Joseph Weiss's affirmation in opposition

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paragraph 55 where Mr. Weiss concedes that at

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least six of the certificates of the members

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are valid certificates and would entitle them

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to burial, membership issues aside.

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I am going to get to the membership

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issues.

I will get to that.

But most

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importantly it was proven very clearly by the

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defendant's course of conduct because Your

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Honor there is no answer to Exhibit 34K of

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our reply. Exhibit 34K constitutes seven of

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hundreds of certificates which can be

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adduced, certificates of people, the

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certificates were signed by Chaim Jacobwitz

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on behalf of the congregation and those

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certificates actually resulted in the burial

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of people in the cemetary and the erection

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of headstones.

 

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They picked one of them and say it

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was a false certificate because the date on

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Proceedings

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the certificate was wrong.

 

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Your Honor, how do they prove that?

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They adduce a picture of the grave

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stone on the cemetary plot in which that

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person is buried which means that the person

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was, in fact, buried on the basis of that

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certificate and a headstone was erected on

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his grave.

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So, clearly, these certificates

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have been honored all the way through the

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years, right up until this past August.

 

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Status quo has been thrown around here as a

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term.

I am not going to dwell on it.

It is

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very clear that with regards to burial in

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this cemetary, the status quo was until they

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started this unfortunate effort at securing

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money from the members of congregation

 

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inappropriately. The status quo was that

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people were buried on the basis of

 

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certificates issued by the respective

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congregation based upon payment to that

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congregation only.

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Now let's talk about membership.

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We submitted evidence demonstrating that

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membership is not required at the time of

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Proceedings

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death. Membership can be obtained after

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death.

As a matter of fact, people can be

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buried even though they were not members at

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death, they can be buried the cemetary.

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THE COURT:

Can they be buried if

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they left the faith.okay.

 

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MR. HAMM:

No.

Everybody agrees

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to that.

That is not the issue before the

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Court.

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Let's talk about what the issue is

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before the Court. Plaintiffs are members,

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there is no question of that in my view.

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They claim that members may be thrown out on

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the basis or their having not met whatever

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requirements exist.

 

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But who is going to throw them out?

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Who has the power today to throw out a member

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of Satmar for membership in the congregation?

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In the old days, the old grand

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rabbi could, we know that. There is no grand

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rabbi to date who has that kind of universal

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acceptance.

 

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Even though they say there is 75 /

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25 split, I don't know where they get the

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number from.

It is made out of thin air.

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Proceedings

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There is no eccestial.

 

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THE COURT:

Couldn't the two

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gentlemen that were the sons of the Rabbi

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Titlebaum do that? Couldn't they do that?

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MR. HAMM:

If they wanted to get

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together and decide that an individual, even

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separately, that an individual has, in fact,

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left the faith and, therefore, not be

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permitted to be buried that would be

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possible. Nevertheless that is a remote

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possibility. It has no application to our

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plaintiffs because none of our plaintiffs

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have left the faith.

None of them is

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Buddhist, none are of zionists. They are all

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here all Sarmar. They all want to protect

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their contract rights.

 

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Who else can throw them out of the

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congregation?

 

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Well, under the bylaws after a

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committee has met, the officers can throw

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them out.

So it says in the bylaws, but as

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to that I would like to quote paragraph 13 of

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Mr. Buss's affirmation in support of the

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second cross motion, paragraph 13 says:

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The simple fact is that no Court

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Proceedings

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can presently recognize any person as a

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authorized officers of the congregation.

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Why is that?

Because of the 2001

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elections were not validated, neither one of

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them.

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If that is the case, no one can

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throw my plaintiffs out of membership in the

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congregation. So that the threat that my

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contract, my plaintiffs' contracts will be

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somehow nullified because they will be

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expelled from membership. It is a fiction.

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There is no one that can do that today.

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Let's talk about disability, if the

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Court, please. If Your Honor pleases let's

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talk about what the Court of Appeals did and

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did not say in the prior Satmar cases.

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We know for certain that it did not

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say that everything Satmar is nonjudiciable.

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We didn't need them to tell us that.

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The Court of Appeals said it very

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clearly at the same time they said Bell

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Friedman expulsion from Satmar resulted in a

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inability to determine which of the 2001

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elections were valid.

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They also said that Bello Friedman,

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Proceedings

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Bello Friedman's signature and transfer of

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the cemetary was justationable.

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They could determine it on neutral

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principles of law. The Court of Appeals

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determined it was an invalid transfer based

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on the statutory principle that there is a

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requirement that it be in the best interest

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of the congregation and it was not.

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THE COURT:

That was the actual

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transfer of real property?

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MR. HAMM:

Correct.

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And the Court of Appeals was very

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clear in order to tell that it didn't matter,

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it was Bello Friedman, the same guy as to

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whose qualifications the Court said with

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respect to the elections, it didn't matter

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who transferred it because that transfer was

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not in the best interest of the congregation.

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THE COURT:

Uh-huh.

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MR. HAMM:

Now this principle of

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cutting away the peripheral eccalastical

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matter in order to get to the heart of

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something decidable under neutral principles

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of law is part of the long established

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tradition of the Court of Appeals and, as a

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Proceedings

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matter of fact, there is a case directly on

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view, on point as in this case.

In Alexsau

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there was not only a contract used in a

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religious ceremony, it was part of the Jewish

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wedding ceremony to read a battuta. The very

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purpose to effectuate it. It is a Jewish

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religious divorce. Everybody knew it. No

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question that was its purpose. And yet the

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Court of Appeals stripped away the source,

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the contracts, a religious ceremony and

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stripped what the arbitration clause was

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intended to accomplish, a Jewish get, an

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eccalistical issue and said we're going to

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look at the statement in the contract. You

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are going to go to a bethune.

Boom, go to a

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bethune.

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THE COURT:

That is consistent

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with a long line of cases which the bethune

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as an arbitration tribunal, that is to say

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the decisions have been enforced as

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arbitration awards and approved and

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confirmed.

Once it is in a contract that is

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not a problem.

 

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MR. HAMM:

Well, that is good

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because we have a contract, which should not

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Proceedings

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be a problem.

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THE COURT:

But there is no

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bethune in there.

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MR. HAMM:

No, if there isn't that

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would be an interesting issue.

 

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THE COURT:

That would change the

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whole case.

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MR. HAMM:

We won't have a case if

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that -- both sides will accept the bethune.

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That issue is not before the Court.

How we

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say religious feelings going to a religious

12

court instead of going to a bethune.

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THE COURT:

But it does

 

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distinguish it.

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MR. HAMM:

Not at all.

The

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bethune is for a specific purpose, that is to

17

effectuate a religious divorce.

 

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Nevertheless, I am going to pars out the

19

purpose for going to a bethune and look

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squarely to the bethune, even if the result

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is a religious result, even if it would

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determine eccalastical issues. We are not

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going to determine that.

 

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We are looking at the four squares

25

of our contract.

(A) we are members; (B) we

20

Proceedings

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are entitled to burial under the contract.

2

Eccalastical issues in our case,

3

they are totally speculative. The

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speculation at some point one of our

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plaintiffs may have been dismembered, taken

6

out of membership is an issue, which is not

7

something that is before the Court.

8

Even if it were true no one has the

9

right to throw them out, no one has the power

10

to throw them out and the issue before the

11

Court is (a) the contract that says we are

12

entitled to burial.

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Episcopal of the Court has parsed

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through a contract. There were different

15

issue. Some clauses of that contract could

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not be enforced and involve eccalistical

17

matters, yet the Court went to the specific

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provision in the contract which provided for

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the property rights.

20

THE COURT:

It also involved

21

property rights, per se.

22

MR. HAMM:

Well, yes, Your Honor

23

the burial rights also involved at the least

24

an easment of property in the cemetary.

25

There is a case called Beyondo,

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Proceedings

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which says at 102 A.D. 2nd the fact is that

2

our rights under this contract should not be

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interfered with, whether it is a contract

4

right or any other contract. Our right to

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come before the Court to make sure our

6

contract rights are not interfered with do

7

not depend on real property.

 

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They depend whether we have a right

9

under the contract and we certainly do.

10

I do want to touch on a couple of

11

little points. I don't think they are

12

critical, but I pointed out before the

13

defendant has not been sued here for damages.

14

There is no money damages sought here.

15

The right to sue against a village

16

or a member of the village, protective

17

agency, whatever it may be is and can be

18

maintained, whether all that is being sought

19

is a preliminary injunction. We're seeking

20

one against Monroe County suggests that very

21

strongly.

22

THE COURT:

You would be seeking a

23

permanent injunction?

24

MR. HAMM:

For sure.

We are not

25

seeking summary judgment. We are here to

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Proceedings

1

seek maintenance of the status quo as it

2

existed right up to August, 2008 as proven

3

clearly by 34K, Exhibit 34K.

4

Those seven samples of certificates

5

issued by the congregation which were, in

6

fact, enforced were, in fact, recognized and

7

people were, in fact, buried, in fact, buried

8

with Joseph Weiss, who dug the ground and the

9

stones were, in fact, put up by Joseph Weiss,

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the stone maker and they are in the cemetary.

11

THE COURT:

Now the question there

12

is you have no indication that you have been

13

deprived of your rights.

14

MR. HAMM:

Let's talk about this.

15

I think the indication is very clear, which

16

was the affidavits were submitted in support

17

of the original motion. You have people with

18

letters, who not only received letters

19

directly from 160 Rodney Street threatening

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unless they come forward with their

21

certificates and obtain new ones. It clearly

22

meant of additional funds, arbitrary amounts

23

for burial rights. They would lose their

24

burial rights.

25

THE COURT:

Mr. Hamm, how do you

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Proceedings

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address Rabbi Gluck, Mr. Israel Gluck?

2

He says he is in charge and he

3

honors all of these certificates and the fact

4

that one rabbi says I am the only who has the

5

right to do so.

6

MR. HAMM:

Rabbi Ezriel Gluck has

7

always maintained that position. That is why

8

Israel Gluck has been thrown out of the

9

burial society and is no longer in charge and

10

Joseph Weiss dictates who would be accepted

11

and who would not be accepted.

12

We have no problem with Rabbi

13

Gluck. We have no interest in excluding

14

anybody from the cemetary period. We have no

15

problems with people who have certificates

16

from KJ burial rights. We have no problem

17

even with the people of the Central

18

Congregation stating the certificates coming

19

forward that they be buried.

20

THE COURT:

Well, Rabbi Book said

21

each congregation is issuing their own

22

certificates. When people die, they process

23

it.

24

MR. HAMM:

That was the case right

25

up to August, 2008. At that point Joseph

24

Proceedings

1

Weiss presuming to act instead of Rabbi Gluck

2

stating now he is in charge of the burial

3

society, he came forward and told people we

4

will not honor the certificates issued by the

5

congregation. You must purchase new

6

certifications from 163 Rodney Street or you

7

will not be buried in the cemetary.

8

THE COURT:

He might say whatever

9

he wants to say.

I realize there is a bit of

10

dispute here as to who has what authority.

11

As a practical matter it is Rabbi Gluck who

12

makes the decision. That was his

13

representation.

14

MR. HAMM:

I wish it were true,

15

but Joseph Weiss is the gatekeeper of the

16

cemetary. He physically prevents people from

17

putting up headstones. He told people we

18

will prevent you from being buried in our

19

cemetary.

20

THE COURT:

Let's say he says

21

those things, but if Rabbi Gluck looks at the

22

text of the headstone and says, okay, we're

23

accepting this, how does Mr. Weiss have any

24

authority to contradict it?

25

MR. HAMM:

I don't know, but he

25

Proceedings

1

has.

2

THE COURT:

Had these people been

3

prevented? Other than the incident you

4

referred to, it seems to be undisputed that

5

that particular stone was not authorized.

6

You are saying it was authorized.

 

7

MR. HAMM:

Absolutely. Rabbi

8

Gluck said it was authorized.

 

9

THE COURT:

He doesn't say so in

10

his long affidavit.

11

MR. HAMM:

He absolutely does.

12

THE COURT:

Where does he say

13

that?

14

MR. HAMM:

I have to find Rabbi

15

Gluck's affirmation. He absolutely says

16

that. There is no question that Rabbi Gluck

17

says that.

18

MR. KLATSKY:

May I address this?

19

THE COURT:

You'll have an

20

opportunity.

21

MR. HAMM:

I am sorry.

Reply

22

affirmation.

23

THE COURT:

Of?

24

MR. HAMM:

Rabbi Israel Gluck.

25

THE COURT:

Wait a second here.

26

Proceedings

1

MR. HAMM:

I am sorry.

Here's the

2

statement which you made was not with respect

3

to the burial.

4

THE COURT:

Just a second. Here,

5

unfortunately, all of these affirmations are

6

separate so it is difficult to figure out

7

which affirmations are in support of which

8

positions.

9

MR. HAMM:

Your Honor, this color

10

back.

11

THE COURT:

It is your back.

12

MR. KLATSKY:

That is my back.

13

THE COURT:

Just a second.

14

MR. HAMM:

If you look at

15

paragraph seven and eight, especially

16

paragraph eight.

17

THE COURT:

Okay, all right.

18

Where it says it is his responsibility to

19

approve the language. All right.

 

20

MR. HAMM:

Yes, paragraph eight.

21

THE COURT:

So he is saying Donald

22

Schleisenger had proved it.

 

23

MR. HAMM:

And the Schwartz's

24

those were, in fact, the stones that Joseph

25

Weiss prevented from putting up.

 

27

Proceedings

1

THE COURT:

All right.

2

MR. HAMM:

The problem here that

3

neither the certificates nor Rabbi Gluck nor

4

any other authority other than the Central

5

Congregation, Joseph Weiss and Mr. Kaufman

6

and their followers are being recognized to

7

provide a basis for burial and erection of

8

headstones in the cemetary. That is what is

9

happening on the ground. And the basis upon

10

which they do that is simply physical control

11

over the gates, physical control over the

12

machines, which open graves. That's it. It

13

has nothing to do with authority over the

14

cemetary.

15

The congregation owns the cemetary.

16

It certainly should own this cemetary. We

17

will prove that it does own the cemetary and

18

this is being done notwithstanding the

19

ownership by this congregation and the burial

20

rights as forth in the certificates, which we

21

are trying to enforce and we're trying to

22

prevent them from interfering with.

23

Any question concerning rightness

24

of the issue, I mean affidavits here

25

including Mr. Kastenbaum's affidavit in which

28

Proceedings

1

he was virtually forced at gunpoint -- not at

2

gunpoint -- at absolute under threat of

3

absolute prevention of being buried unless he

4

paid $9,000 to Kaufman & Weiss on behalf of

5

the Central Congregation. That affirmation

6

is in our reply papers. He was buried after

7

he paid that money. Then he stopped the

8

check. I don't know what happened after

9

that.

10

But the bottom line is, Your Honor,

11

there is absolutely a threat to the

12

plaintiffs to prevent them from being buried

13

notwithstanding the congregational ownership

14

of the cemetary and their contract rights to

15

burial.

16

THE COURT:

Is it your

17

understanding now I gather that is your

18

contention, that it's the -- that Weiss and

19

the congregation of which he is a part is

20

seeking to collection a kind of surcharge on

21

the certificates. Is that what you are

22

saying?

23

MR. HAMM:

They are trying to

24

impose an arbitrary number in order to permit

25

those people who are congregants and already

29

Proceedings

1

paid for their burial rights to 152 Rodney

2

Street in order to permit them to be buried.

3

Sort of like we will not interfere with your

4

cemetary if you pay "X" amount of money. We

5

will not break the glass windows of your

6

store if you pay "X" amount.

7

THE COURT:

What you are saying is

8

the Brooklyn Congregation is seeking to

9

abstract a fee on the members of Kiryas Joel,

10

Inc?

11

MR. HAMM:

The other way around.

12

We are saying the congregation at the

13

original headquarters at 152 Rodney and 163.

14

152 is the original congregation and thee

15

members are members in 152.

16

THE COURT:

Let's keep it simple.

17

It's both of them based in Brooklyn, no?

18

MR. HAMM:

Yes, across the street

19

from each other.

20

THE COURT:

Oh, I thought one of

21

them was based up in Kiryas Joel?

22

MR. HAMM:

The basic congregation

23

is K.J. Congregation, which is in Kiryas

24

Joel, Inc

25

THE COURT:

Right.

30

Proceedings

1

MR. HAMM:

They have a satellite

2

congregation at 163 Rodney Street.

3

THE COURT:

The point I am trying

4

to get to is there are two congregations,

5

correct?

6

MR. HAMM:

Correct.

7

THE COURT:

Each congregation can

8

authorize burial in this cemetary?

9

MR. HAMM:

In the past they have

10

always been able to authorize burial in the

11

cemetary?

12

THE COURT:

Your position is the

13

people based upstate in Kiryas Joel are

14

preventing the Brooklyn congregants from

15

exercising their own rights, which would

16

derive from their own congregation, is that

17

what you are saying?

18

MR. HAMM:

They were derived from

19

the congregation. Many of the plaintiffs

20

were derived before there were two

21

congregations in Brooklyn. Yes, they are

22

trying to prevent them from being buried in

23

the congregation cemetary notwithstanding the

24

recognition that we are members and

25

notwithstanding they honored the same

31

Proceedings

1

certificates throughout the years right up to

2

August, 2008.

3

THE COURT:

Let's talk about the

4

fees they are exercising to impose. They are

5

up there. You are saying they have physical

6

control of the cemetary because they are

7

there and you are down here.

8

MR. HAMM:

Joseph Weiss has

9

exerted physical control over the locks and

10

keys.

11

THE COURT:

Rabbi Gluck is based

12

here.

13

MR. HAMM:

Rabbi Gluck, he was

14

based up there. He was until very recently

15

an officer in K.J. Congregation. I

16

understand they have taken him out. He was

17

in the K.J. Congregation. He was a very

18

honest and practical person who wanted to

19

keep the cemetary out of the fight. That was

20

his great sin.

21

THE COURT:

Is it not correct that

22

there is some adjustments paid over the years

23

in the costs that is authorized under the

24

bylaws? You pay 50 cents and you may need

25

more at the time of the burial, I presume

32

Proceedings

1

depending on the cost of actually doing it.

2

MR. HAMM:

The matter in which

3

this is carried out no one is disputing the

4

of the monies paid for the right to be buried

5

in the cemetary.

 

6

In fact, one of the exhibits shows

7

in Mr. Weiss's handwriting how the fees paid

8

by our plaintiffs and other members are split

9

up.

It shows a certain amount goes to the

10

congregation and a certain amount goes to the

11

burial society to cover expenses of burial.

12

THE COURT:

But the actual

13

determination it should be is paid at the

14

time of burial, is it not?

15

MR. HAMM:

We're not dealing with

16

the costs of burial.

17

THE COURT:

If you have a contract

18

and you have a right to be buried, it seems

19

to me your real issue is they are extracting

20

from Brooklyn congregants additional fees

21

after they bought their certificates when

22

ever they bought their certificates in?

23

MR. HAMM:

Right.

24

THE COURT:

No one has be declined

25

burial, isn't that true?

33

Proceedings

1

MR. HAMM:

The threat has been

 

2

made a number of times. There are well

3

affirmed affirmations in the papers, unless

4

there would be additional fees paid of an

5

arbitrary amount. Those fees, Your Honor,

6

are not fees for the preparing of the body.

7

This is all included as burial costs.

As a

8

matter of fact, that is recited in the bylaws

9

concerning that.

10

THE COURT:

What exhibit is the

 

11

bylaws?

12

MR. HAMM:

Exhibit 10.

13

THE COURT:

Ten to your original?

14

MR. HAMM:

Yes, that's right.

 

15

Let's take a look.

16

THE COURT:

I am having trouble

 

17

finding it.

All right, here we go.

Okay.

I

18

got it.

19

I have been looking at it.

I see

20

it.

But I am looking a the provisions of the

21

bylaws and the description contained therein

22

regarding burial society.

I see it is a

 

23

rather complicated process here and certain

24

rules have to be reserved, correct?

25

MR. HAMM:

Oh yes, Your Honor,

 

34

Proceedings

1

many of them religious in nature. We have no

2

interest in having the Court determining

3

which are proper or not proper.

4

THE COURT:

I wouldn't presume to

5

do it.

That is not the issue.

6

MR. HAMM:

Absolutely, no one

7

disputes the burial society rights. Nobody

8

suggests the person entitled to be buried in

9

the cemetary would be required to be a member

10

of the congregation and the bylaws also

11

pursuant to the religious requirement in the

12

Satmar.

13

The issue is are we entitled to

14

burial. That is what they are raising. That

15

is what they are interfering with. They are

16

insisting we get their contract.

17

THE COURT:

I think we have an

18

issue in the manner which you contend. Of

19

course, this headstone issue does appear to

20

be disputed as fact.

 

21

The question in my mind is whether

22

we are talking about additional fees or an

23

outright refusal to burial and what that is

24

based on.

25

MR. HAMM:

I am sorry, Your Honor,

35

Proceedings

1

if the fees that are required for payment to

2

the burial society are agreed upon in advance

3

between the congregation and the burial

4

society.

As a matter of fact, the number of

5

agreement meetings held one of which was a

6

meeting attended by Rabbi Gluck and its

7

statements are in one of the exhibits. I

8

don't know if I can find the list.

I will

9

try and get that for you.

10

But beyond that the sheets

11

containing Joseph Weiss's personal written

12

statements or the counsel with respect to the

13

plaintiffs and other members of the

14

congregation, he lists the names of the

15

people, the amount paid to the congregation

16

for the certificates and the percentage which

17

has to be credited towards the burial

18

society. That is all listed. Those numbers

19

are presented in advance. Our right to

20

burial is there.

21

Now whatever incidental costs may

22

exist, that is not the issue.