decision 11.10.09

8/14/2019 Decision 11.10.09

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SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ORANGE

PRESENT:

HON, JOSEPH G. OWEN,

SUPREME COURT JUSTICE

To commence the statutory time

period of appeals as of right (CPLR

5513[a]), you are advised to serve a

copy of this order with notice of

entry upon all parties.

x

In the Matter of the Complaint of

DAIS YOEL OHEL FEIGE, a religious corporation

and Zalman Waldman, Bernard Tyranuer and

Meyer Deutsche, individually and as Officers and Directors

thereof,

Plaintiffs,

-against-

CONGREGATION YETEV LEV D 'SATMAR,

Defendant,

for a judgment enjoining interference with the

use of real property and other relief.

SHORT FORM ORDER

Index No. 4075/04

Motion Date: 11/09/09

Cal. No, 1 & 2The following papers have been read, in this action, inter alia, to compel the determination of

claims to real property, on (A) plaintiffs' post-judgment and post-appeal motion, without any stated

basis, for an order "preliminarily" requiring defendants to re-connect water and electric services; and (B)

defendants' cross motion for certain "declarations" and new directives:

Order to Show Cause-Affumation of Zalman W aldman, dated

October 7, 2009-Exhibits

Notice of cross Motion-Affirmation of Richard M . Mahon., II,

Esq., dated October 29, 2009-Affirmation of David Ekstein,

dated October 29, 2009-Affirmation of Yida Weinstock, dated

October 29, 2009

Reply Affirmation of Michael H. Sussman, Esq., dated

November 5, 2009-Affirmation of Zalman W aldmanfundatedj-Rxhibits

Upon the forgoing papers, it is hereby ORDERED that both the motion and the cross motion are

denied,

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8/14/2019 Decision 11.10.09


Bais l'ael Ohel Feige v Congregation Y ete p L e v ,ndex No. 4075/04age 2

This action was tried in June 2007. On January 22, 2008, the Court rendered a lengthy written

decision, after which a final judgment was entered on February 14, 2008. Pursuanf to that judgment

several clear and unequivocal directives were made, including without limitation the imposition of a

permanent injunction restraining plaintiffs from using the subject premises, located in the Village of

Kiryas Joel, as a non-conforming unlawful house of worship, "pending any appropriate municipal

application and determination" (Ju4nnent, entered Pebruary 14, 2008, p. 3).

Plaintiffs appealed this judgment to the Appellate Division, Second Department. On September

22, 2009 the Appellate Division rendered a determination which, although modifying the Court to some

degree, substantively affirmed the above-referenced injunction. Plaintiffs have now been directed, both

within a final judgment from this Court and by the Appellate Division, Second Department, to stop using

the subject premises as a non-conforming house of worship pending an appropriate municipal application

and determination. This directive would seem to be clear.

Apparently not to plaintiffs. They now bring a post-judgment, post-appeal motion, using the

same 2004 index number as this disposed action and without any attempt to state the "grounds therefor"

(CPLR 2214 [a]), seeking a positive "preliminary" injunction directing defendants to re-connect their

water and electric service to allow for continued use of the premises as a house of worship. Defendants

exacerbate the situation by "cross moving", pursuant to CP1,17_3001', for certain declarations. Not once

in this flurry of purportedly exigent motions do any of the parties question the procedural propriety of the

relief requested. They appear to be under the erroneous belief that this long-disposed proceeding will

continue as indefinitely as their eternal feud with one another.

W hile alleging that plaintiffs are disobeying the injunction, defendants neither move for contem pt nor

bring any other judicially recognized post judgment application. Rather, they effectively seek a declaratory

judgment, as well as entirely new directives never granted by the original decision and judgment. CP L' R 300 1

authorizes the Court, in a declam atory judgment action, to "render a declaratory judgment hav ing the effect of a finaljudgment ... "emphasis supplied]). The Court is at a loss to understand how the February 14, 2008 judgment,

after being substantively affirmed by the Appellate Division, could be any m ore final,

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8/14/2019 Decision 11.10.09


O . JOSEPH G. OWEN

PREME COURT JUSTICE

Bais Y oel Ohel Feige v Congregat ion Y etev L ev,ndex No. 4075/04age 3

The Village of Kiryas Joel is a community in which religion and state are so intertwined as to be

virtually indistinguishable. This Court, however, is without authority to intervene in ecclesiastical

matters (see, Congregation Y etev Lev D'Satrnar, Inc. v Kahana, 9 NY3d 282, 287). Unfortunately, as the

parties are ostensibly unable to differentiate between the two, it is seemingly impossible to ever resolve

their "legal" issues. Rather, they engage in an endless cycle of seeking judicial intervention and then

ignoring court mandates, invoicing whichever authority is viewed as paramount at the time.

Notwithstanding this observation, the legal directives made in this disposed action are

unequivocal. Plaintiffs have been using the subject premises as a "non-conforming, unlawful house of

worship" (February 14, 2008 judgment, p. 2). Plaintiffs are to stop doing so until appropriate municipal

applications and determinations are made (February 14, 2008 judgment, p. 3). That judgment, as

modified by the Appellate Division, Second Department; stands.

If plaintiffs want to "preliminarily require" defendants to do something different, they must

effectuate the predicate for a preliminary injunction, i.e. to commence an appropriate action or

proceeding by filing and procuring a new index number ( s e e , CPLR 304; 306-a; 6301 & 6311). If

defendants desire "declarations", they must likewise effectuate the predicate for a declaratory judgment,

i.e. to commence an appropriate action by filing and procuring a new index number ( s e e , CPL R 304; 306-.

a; 3001). This matter remains disposed.

ENTER

Dated: November 9, 2009

Goshen, New York

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8/14/2019 Decision 11.10.09


Bois Y oe' Ohel beige v C ongregation Y etev L ev,ndex No. 4075/04

APPEARANCES:

O S T R E R . R O S E N W A S S E R , L L P

Co-Attorneys for Plaintiffs

11 I M ain Street

P.O. Box 509

Chester, New York 10918

SUSSMAN & WATKINS

Co-Attorneys for Plaintiffs

55 M ain Street—Suite 6

P.O. Box 1005

Goshen, New York 10924

TARSFLI S , CATA NI A, I A:BERTH, MA HON

& MILLIGRAM, PLLC

Attorneys for Defendants

P . O . Box 1479

Newburgh, New York 12551

SO/ SO 39 Vd E M O f N O H VOETHSP8 9:TT 6003/0T/TT

decision 11.10.09

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