Opinion
No. 26403/08.
2012-04-25
PARKWAY TRADING GROUP CORP., Plaintiff, v. Yehuda BLESOFSKY and Scholom Dov Ber Raskin, Defendants.
Leslie Perez, Esq. of Wenig Saltiel & Johnson LLP, for Defendant Scholom Dov Ber Raskin.
JACK M. BATTAGLIA, J.
Recitation in accordance with CPLR 2219(a) of the papers submitted on the motion of defendant Scholom Dov Ber Raskin for an order, pursuant to CPLR 3211, dismissing the Complaint as against him:
-Notice of Pre–Answer Motion to Dismiss
Affirmation in Support
Exhibits A–L
-Affirmation in Reply
Exhibits A–B
This action arises out of an alleged Contract of Sale dated February 20, 2008 between plaintiff Parkway Trading Group Corp. as “Purchaser” and defendant Yehuda Blesofsky as “Seller” with respect to real property located at 328 Kingston Avenue, Brooklyn, and an alleged Agreement between defendant Blesofsky and defendant Scholom Dov Ber Raskin dated May 4, 1999, granting defendant Raskin a right of first refusal as to purchase of the property.
The Complaint purports to allege three causes of action arising out of the failure of defendant Blesofsky to convey the Kingston Avenue property to Plaintiff. As defendant Raskin contends on this motion, only the First Cause of Action, seeking specific performance of the Contract of Sale, alleges a basis for relief as against defendant Raskin. According to the court's Civil Case Management database, defendant Blesofsky has appeared by counsel, but no answer on his behalf is included among the papers submitted on this motion.
With this pre-answer motion, defendant Raskin seeks an order, pursuant to CPLR 3211(a)(5) and (a)(7), dismissing the Complaint as against him based upon various determinations of the Rabbinical Court of Yeshiva Beth Joseph (“Beth Din”). Although the Notice of Pre–Answer Motion to Dismiss dated September 1, 2011 also requests attorney's fees, the request is not supported either legally of factually in the papers submitted, and will not be addressed further in this Decision and Order. Similarly, although CPLR 3211(a)(7) is an appropriate vehicle for defendant Raskin's “mootness” contention ( see Organization of Staff Analysts v. City of New York, 277 A.D.2d 23 [1st Dept 2000] ), here the contention is based only on the Beth Din determinations that are the basis of the “arbitration and award” ground provided by 3211(a)(5). CPLR 3211(a)(7) will not, therefore, be addressed further.
The original return date for this motion was October 24, 2011, but it was adjourned three times for various reasons, including settlement negotiations. The order providing for the last adjournment stated, “Plaintiff Parkway shall submit a copy of the opposition papers to the motion on the return date.” Plaintiff did not appear on the return date, nor has a copy of its opposition been submitted.
The Court notes in the first instance that defendant Raskin submits several documents, including copies of the alleged Contract of Sale dated February 20, 2008 and Agreement dated May 4, 1999, that are not acknowledged or otherwise authenticated, or supported by the affidavit or affirmation of a person with knowledge, or otherwise rendered admissible in evidence. ( See Prince, Richardson on Evidence § 9–101 et seq. [11th ed. Farrell]; Cheul Soo Kang v. Violante, 60 AD3d 991, 991 [2d Dept 2011]; John Deere Ins. Co. v. GBE/Alasia Corp., 57 AD3d 620, 621–22 [2d Dept 2008]; NYCTL 1998–2 Trust v. Santiago, 30 AD3d 572, 573 [2d Dept 2006].) Attachment to an attorney's affirmation does not suffice. ( See IRB Brasil Resseguros S.A. v. Portobello International Limited, 84 AD3d 637, 637–38 [1st Dept 2011].) These documents are not necessary, however, to resolution of this motion.
Among the grounds specified in CPLR 3211(a)(5) for dismissal of one or more causes of action are “arbitration and award” and collateral estoppel. “The determination of [a] Din Torah [ i.e., “a tribunal composed of three rabbis rendering a determination of disputes in strict accordance with Jewish law”] [is] in the nature of a common-law award in arbitration ... and acts as a bar to relitigating essentially the same issue that was decided thereby.” ( See Berman v. Shatnes Laboratory, 43 A.D.2d 736, 737 [2d Dept 1973] [citing CPLR 3211(a)(5) ].) Generally, “[t]he question of whether to accord preclusive effect to a prior determination depends ... on a number of factors ... including ... the fullness and fairness of the parties' opportunity to litigate the issue at bar” ( see Altamore v. Friedman, 193 A.D.2d 240, 246 [2d Dept 1993]; see also H.R. Neumann Assoc. v. New Eagle, Inc., 6 Misc.3d 1027[A], 2005 N.Y. Slip Op 50217[U] [Civil Court, Kings County 2005].)
Here, defendant Raskin relies on English translations of a Judgment dated November 9, 2008, a subsequent Judgment that is dated only in accordance with the Hebrew calendar, and a Clarification of Verdict dated February 24, 2011. The proceedings leading to the 2008 determination were only between defendant Raskin and Blesofsky. A short-form order dated May 7, 2009 of Hon. Sylvia O. Hinds–Radix marks off the calendar a prior motion by defendant Raskin “as the parties are going to Beth Din.” No other agreement to arbitrate is submitted. The Court will assume, however, in the absence of opposition that an enforceable agreement to arbitrate was made that binds Plaintiff, whose counsel's signature appears on the May 7, 2009 order. ( See Todtman, Young, Tunick, Nachamie, Hendler, Spizz & Drogin, P.C. v. Richardson, 247 A.D.2d 318, 318–19 [1st Dept 1998] .)
Neither the English translation of the Judgment dated November 9, 2008 nor that of the subsequent undated Judgment is admissible since neither is accompanied by “an affidavit of the translator stating his qualifications and that the translation is accurate.” ( SeeCPLR 2101[b]; Martinez v. 123–16 Liberty Ave. Realty Corp., 47 AD3d 901, 902 [2d Dept 2008].) The second Judgment is accompanied by a Translator Certification that shows nothing more than the translator's conclusion that he is qualified.
The Clarification of Verdict dated February 24, 2011 is accompanied by an appropriate Certificate of Accuracy, but, like the 2008 Judgment, it is not accompanied by a copy of the original document in Hebrew. The English translation must be considered a copy, and, without a further showing, its admission as evidence would violate the best evidence rule. ( See Schozer v. William Penn Life Ins. Co., 84 N.Y.2d 639, 643–44 [1994].) Where a party relies upon a foreign-language document, the other party is entitled to the opportunity to obtain its own translation of the original, at least where there is no showing that the other party is already in possession of the original or a copy.
Even considering, however, the Clarification of Verdict, there is no evidence before the Court that the proceedings before the Beth Din should be considered concluded in a manner that resolves the dispute between Plaintiff and defendant Raskin. The Clarification provides that defendant Raskin may exercise a right of first refusal during a 45–day period “from the date that the vendor is able to transfer into the hand of [Mr. Raskin] the Deed Free and Clear,” and that “[i]f there will be any doubt regarding the verdict the matter will be determined solely by the Rabbinical Court.”
Although an arbitration award need not be confirmed to be given preclusive effect ( see Spasiano v. Provident Mut. Life Ins. Co., 2 AD3d 1466, 1467 [4th Dept 2003] ), in order to qualify as a basis for dismissal pursuant to CPLR 3211(a)(5), there should be “a final and definite award upon the subject matter submitted” ( seeCPLR 7511[b][1][iii].) Unlike CPLR 3211(a)(4), which allows dismissal when “there is another action pending between the same parties for the same cause of action in a court of any state or the United States,” there is no provision for dismissal during the pendency of an arbitration proceeding. Indeed, even as to other pending judicial proceedings, “the court need not dismiss upon this ground but may make such order as justice requires” ( seeCPLR 3211[a][4].) The alternatives to dismissal would include a stay. ( See Flintkote Co. v. American Mut. Liab. Ins. Co., 103 A.D.2d 501, 507–08 [2d Dept 1984], aff'd67 N.Y.2d 857 [1986].)
Here, a stay of this action seems appropriate under the court's general authority to grant one ( seeCPLR 2201.) As noted above, there are significant evidentiary gaps in the record on this motion. Perhaps most importantly, there is no written agreement to arbitrate by Plaintiff that would, presumably, show the issues submitted by Plaintiff to the Beth Din. Although defendant Raskin asserts in reply that Plaintiff has commenced an Article 75 proceeding in this court to confirm the second Judgment of the Beth Din, the proceeding cannot be found in the Civil Case Management Database or E–Courts.
Defendant Raskin's motion is granted only to the extent that this action is stayed pending further order of this Court.