Beis Din Decisions in Secular Courts

Rabbi Gershon Tannenbaum of The Jewish Press:
In recent months three Beth Din judgments were brought to secular courts. In Federal Court in Brooklyn, the Beth Din judgment was unambiguously upheld, while another Beth Din judgment in State Court was termed “irrational” and “violative of public policy.” A third case, in California, awaits further developments.

A New York State Supreme Court judge overturning a decision by the Beth Din of America has shocked both the rabbinical and civil legal communities. The following are brief descriptions of Beth Din cases fought in secular courts in last few months. These cases, as well any new cases presented, will be closely monitored.

The Case of the Israeli Esrogim
Joel Stashenko, a noted Associated Press writer, reported extensively in the May 5, 2009 issue of the New York Law Journal regarding an Israeli Beth Din decision that was upheld by Eastern Federal District Court Judge Brian Cogan. The case concerned Yaakov Charlop, founder of the popular Esrog Warehouse in Queens who had contracted to purchase esrogim from Betzalel Schwartzman, who represents the renowned Schwartzman Esrogim grown in Israel.

Charlop withheld payment of $66,000 because he claimed that the esrogim were of substandard quality and that he had not agreed to pay for part of the shipment, under a 2005 contract with Schwartzman. He argued further that he was supposed to be the exclusive distributor of Schwartzman esrogim in the United States and that Betzalel Schwartzman, proprietor, had sold esrogim to other dealers here, thus violating the agreement.

In a handwritten agreement by both sides written on the contract, Rabbi Eliezer Stern, a respected scholar and head of the Belzer Beth Din in Bnei Brak, was specified, in the original purchase agreement between Charlop and Schwartzman, as the designated Rav to whom each side would bring any disagreements. Rabbi Stern also issued a hechsher for the esrogim. Charlop claims now that he was unaware at that time that Rabbi Stern was also to serve as the rav ha’machshir (kosher certifier) of the esrogim.

The case was heard in Israel at the Belzer Beth Din, which heard all of the complaints and litigated all the issues. The Beth Din decided against Charlop and ordered him to pay $66,000 to Schwartzman.

Charlop felt that the Beth Din had a conflict of interest because its services as the machshirim (kosher certifiers) of the esrogim predisposed the Beth Din to be partial to Schwartzman. Charlop sought to overturn the Beth Din decision in Israeli secular courts. The lawsuit was withdrawn and resubmitted to Rabbi Stern and the Beth Din for reevaluation. Rabbi Stern ultimately affirmed his initial determination against Charlop.

Charlop then brought the disagreement to Federal Court in the United States, where he represented himself. Schwartzman was represented by Darren Oved, Esq. of Oved and Oved, a leading New York City law firm and the largest law firm in Manhattan’s SoHo neighborhood. Charlop presented his arguments seeking to invalidate the Beth Din decision. Judge Cogan ruled against dismissing the Beth Din decision, writing that, “Respondent cannot use this court to obtain a second bite of the esrog.”

Judge Cogan wrote that it is a “fundamental aspect” of U.S. court policies on arbitration that arbitrators must disclose up front any relationships that could compromise their impartiality. But the judge added that the 2nd U.S. Circuit Court of Appeals has avoided “dogmatic rigidity” when interpreting the impartiality of arbitrators and has rejected efforts to avoid recognition of arbitrators’ rulings when “a complaining party knew or should have known about a relationship involving an arbitrator and a party.”

The motivating concern of these cases, Judge Cogan stressed, is that a litigant should not be allowed to sit back and allow the arbitration proceeding to go forward, hoping for a successful outcome, and then raise the alleged non-disclosure only if he is unhappy with the result.

The contract provided for Rabbi Stern and the Belzer Beth Din to declare the esrogim kosher, which added significantly to their value when distributed in the United States. Judge Cogan maintained that Charlop should have known that Rabbi Stern would receive a fee from Schwartzman for doing so. “Respondent’s argument boils down to his contention that at the time he signed the agreement, he knew it was possible, and allowable, for Rabbi Stern to give the kosher certification, but he did not know, at the time of the arbitration, that it had actually happened,” Judge Cogan wrote.

“That does not matter.” The judge noted that Charlop raised the same non-disclosure argument in Israeli secular court that he advanced before Judge Cogan. “He then withdrew that objection and agreed to resubmit the matter to the very same Rabbi Stern about whom he is now complaining,” Judge Cogan wrote. “There is no doubt that even if respondent originally had a valid complaint of non-disclosure, which I hold he did not, he waived that right by resubmitting the dispute back to Rabbi Stern with full knowledge that Rabbi Stern had been engaged to give the kosher certification.”

Charlop is seeking to appeal Judge Cogan’s ruling, contending that the judge, who ruled from submissions in the case, did not have accurate information about the court proceeding or arbitration in Israel. Charlop argued that he did not adequately get to tell the judge his side of the story. “We were not given the opportunity to represent ourselves,” he said in the interview with Joel Stashenko.

Schwartzman’s attorney, Darren Oved, praised Judge Cogan for weighing and rejecting Charlop’s claims without allowing the Eastern District Court to be used to “raise all the same issues over and over again” that were settled by arbitration (Rabbi Stern’s Beth Din) in Israel. “His [Judge Cogan's] decision was detailed, it was thorough,” Oved said in an interview with Joel Stashenko. “[The judge] went through the law properly.” However, Judge Cogan rejected Schwartzman’s request that Charlop pay his attorney’s fees. Charlap’s “mild opposition” to paying the $66,000 “does not nearly constitute the kind of bad-faith conduct” to merit the award of attorney’s fees, the judge said.

The Case of the Yeshiva Teacher
In the January 9, 2009 issue of The Jewish Star, a weekly in Nassau County, Michael Orbach wrote about a case that came before the New York State Supreme Court in Brooklyn, in which the Court overturned a decision by the Beth Din of America, shocking both the rabbinical and civil legal communities. In a December 18, 2009 decision, Justice Bruce M. Balter of Kings County Supreme Court found that a verdict concerning a teacher at the Hebrew Academy of the Five Towns and Rockaway, rendered by the Beth Din, was “irrational” and “violative of public policy.”

The case concerns Rabbi Nachum Brisman, a popular rebbe at the yeshiva, who was discharged at the end of the 2005 academic year. He had received tenure over the course of the years of his employment, though tenure was canceled school-wide in 2005. The case, presented to a beth din consisting of Rabbi Mordechai Willig of Yeshiva University, Rabbi Steven Pruzansky of Congregation Bnai Yeshurun of Teaneck, and Rabbi Ronald Warburg, found in Rabbi Brisman’s favor and awarded him $50,000 in back pay. The Beth Din also doubled his salary to $100,000, reinstated his tenure, and ruled that any future termination of Rabbi Brisman must go through the Beth Din itself.

Marvin (Moshe) Neiman, Esq., a well-known attorney in the observant community, representing Rabbi Brisman, stressed the nature of the compromise: “It was a good compromise because it made everyone unhappy.” Neiman, quoted in The Jewish Star article, explained that the Beth Din salary award was lower than Rabbi Brisman’s total 2005 compensation, which, according to Neiman, was mainly built through overtime.

While Neiman was confident that HAFTR would honor the Beth Din decision, he sought to confirm the award with the New York State Supreme Court, which is a routine step taken by attorneys after arbitration. The overturning of an arbitration verdict is relatively rare and considered unusual. Justice Balter, however, found that the decision should be voided on the grounds that it was irrational.

Rabbi Michael Broyde, a dayan on the Beth Din of America and professor of law at Emory University, said that given the unusual nature of the move, Justice Balter’s opinion will likely be subject to an appeal and that it would not survive that appeal. The matter is still pending.

The Case of the Sifrei Torah Scrolls
Duke Helfand, writing in the Los Angeles Times on March 9, 2009, reported that a bitter legal fight over the rightful ownership of four Sifrei Torah had spilled over from Beth Din to civil courts in Los Angeles, with the widow of one Orthodox rabbi accusing another of keeping Torah Scrolls lent to him by her deceased husband. The case of Pauker vs. Ohana was scheduled to go before a superior court, complete with accusations of legal misconduct, forgery, and sheer chutzpah. Jewish legal scholars called the public airing of the case highly unusual, noting the strict confidentiality observed by batei din. “Most parties comply with the order of a beth din without bothering to have it confirmed,” said Rabbi Michael Broyde, a Dayan on the Beth Din of America and Professor of Law at Emory University.

The friction over the Sifrei Torah, now in its seventh year, pits the widow of Rabbi Norman Pauker z”l (d. 2002), an Orthodox rabbi from North Hollywood who once owned the scrolls, against his former assistant, Rabbi Samuel Ohana. The late Rabbi Pauker, who was previously a rabbi in Brooklyn and at Temple Judea in Los Angeles, purchased a shul from Rabbi Max Leader, opening Valley Congregation Mishkan Israel around 1975.

The Orthodox congregation had a small Shabbos minyan, about 40 or so regulars, in a rented location in North Hollywood. Rabbi Pauker’s High Holy Days services attracted about 400 people and were held at the Valley Cities Jewish Community Center until he retired in 1996. Rabbi Pauker was the author of The Rabbi Norman Pauker Collection of Jewish Ghetto Posts of World War II.

Rabbi Ohana, now 73, maintains that Rabbi Pauker gave the Torahs to his Sherman Oaks congregation in 1998 after Rabbi Pauker’s own North Hollywood synagogue closed. He said he was surprised when Rebbetzin Rita Pauker began asking for the Scrolls. “I’ll fight to the end,” said Rebbetzin Pauker, who wants to give the Torahs to her husband’s nephews who are Orthodox rabbis. “I want them to go where they belong.”

Rebbetzin Pauker insists that a handwritten agreement between her husband and Rabbi Ohana proves that the Sifrei Torah were only lent to Rabbi Ohana for just two years. Rebbetzin Pauker has been seeking the return of the Sifrei Torah since her husband died. Last year, she took the matter to the Beth Din of the Rabbinical Council of California in Los Angeles, led by Rabbi Abraham Union. Both sides signed an agreement, in English, to abide by the court’s decision.

In January 2009, the Beth Din ruled in Rebbetzin Pauker’s favor, ordering the Torahs be returned within 30 days. Rabbi Ohana did not comply. Instead, he has supposedly sent a letter to a beth din in Jerusalem, claiming that the letter was a procedural appeal to a higher religious body seeking to overturn the Los Angeles Beth Din ruling. This sparked a dispute over that panel’s authority to rule on the matter. Baruch C. Cohen, Esq., noted attorney in Los Angeles and popular Torah activist representing Rebbetzin Pauker, turned to the secular courts to enforce the Los Angeles Beth Din ruling. He asked Superior Court Judge Zaven V. Sinanian to confirm and enforce the Beth Din decision.

Rabbi Ohana denied the validity of the handwritten agreement, saying a copy of his signature was pasted onto it. He is fighting Rebbetzin Pauker’s efforts in civil court. His attorney, G. Scott Sobel, Esq., faulted the Beth Din judgment as “inadequate and mistaken.” Rabbi Ohana is now waiting to hear the outcome of his letter to the Israeli Beth Din. But his strategy has been greeted with some skepticism.

Responding to a recent letter from Rabbi Ohana’s attorney about his appeal, the Los Angeles Beth Din said the court was confident that its decision would stand. “We urge you to spare your client further expense and embarrassment by urging him to comply with the judgment post-haste,” the Beth Din wrote.

Sobel objected, meanwhile, to the issue being taken to civil court while it is under appeal in Jerusalem, calling the step premature. Such a move, Sobel said in a sharply worded e-mail to Pauker’s attorney, is “a bit of chutzpah, to say the least!”

{The Jewish Press/Matzav.com Newscenter}

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