Opinion
Index No. 516650/23
02-14-2024
YESHIVA YAGDIL TORAH, RABBI CHAIM GARFINKEL, JOSHUA ZILBERBERG, RABBI YISROEL MOSHE LUBART, MENACHEM GARFINKEL, Petitioners, v. MEILECH NAPARSTEK, MENACHEM M. DENEROWICZ, YEHUDA GOTTESMAN, Respondents.
Unpublished Opinion
PRESENT: HON. PETER P. SWEENEY, Justice.
HON. PETER P. SWEENEY, J.S.C.
The following e-filed papers read herein: NYSCEF Doc Nos.:
Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed 1-2, 9-10
Opposing Affidavits/Answer (Affirmations) 18
Affidavits/ Affirmations in Reply ______
Other Papers: Letters to Court 8, 9, 19
Upon the foregoing papers, petitioners Yeshiva Yagdil Torah, Rabbi Chaim Garfinkel, Joshua Zilberberg, Rabbi Yisroel Moshe Lubart, and Menachem Garfinkel, petition for an order: (1) pursuant to CPLR 7202 (b), barring arbitration, or, in the alternative, (2) pursuant to CPLR 7503 (c), staying arbitration (motion sequence number 1). Respondents Meilech Naparstek, Menachem M. Denderowicz, and Yehuda Gottesman cross-petition for an order: (1) pursuant to CPLR 3211 (a) (1) and (a) (7), dismissing the petition on the ground that the obligation to arbitrate is contained in petitioners corporate documents; and (2) pursuant to CPLR 7503 (a), compelling petitioners to arbitrate, and, if necessary, issuing an order, pursuant to CPLR 7504, issuing an order directing the parties to agree on the selection of a Rabbinical Panel (motion sequence number 2).
The petition (motion sequence number 1) is granted to the extent, that a temporary stay of arbitration is granted pending a hearing/trial pursuant to CPLR 410 to determine respondents' entitlement to arbitration under the Certificate of Amendment to the Certificate of Incorporation of Yeshiva Yagdil Torah that was filed with the Kings County Clerk on October 16, 2020 (2020 Amendment), and, in the event that the 2020 Amendment is found invalid, alternatively, whether Yeshiva Yagdil's amended bylaws from July 2018 contained an arbitration clause. This hearing shall be held in conjunction with the hearings ordered in the related proceedings/actions between the same parties in Yeshiva Yagdil Torah v Naperstek, Supreme Court, Kings County Index No. 531132/22 (Action/Proceeding Number 1) and Yeshiva Yagdil Torah v Naperstek, Supreme Court, Kings County Index No. 533266/22 (Proceeding Number 2). The petition, however, is denied to the extent that petitioners seek to bar or stay arbitration based on statute of limitations grounds.
Although the court may not order a consolidation or joint trial sua sponte, the court has the authority to order that related proceedings be heard on the same day (see Matter of Rostkowski v Baginski, 96 A.D.3d 1066,1066-1067 [2d Dept 2012]; CPLR 602). Given that the validity of the 2020 Amendment is the same in all three proceedings before the court, the parties may find it advisable to move or stipulate to the joint trial of that issue (CPLR 409, 410 and 602; see DU Mtge. Captial, Inc. v Kontogiannis, 110 A.D.3d 522, 523 [2d Dept 2012]). The court notes that counsel for the parties, in letters filed with the court respectively dated June 21, 2023, June 22, 2023, and August 1, 2023 recognize the interrelatedness of the issues in these separate proceedings and that they may be determined in a single hearing.
The portion of respondents' cross petition/motion (motion sequence number 2) seeking dismissal based on CPLR 3211 (a) (1) and (a) (7) is denied. The portion of the cross petition/motion seeking to compel arbitration is granted only to the extent that the above noted hearing/trial pursuant to CPLR 409, 410 will be held to determine the validity of the 2020 Amendment and to determine whether Yeshiva Yagdil's amended bylaws from July 2018 contained an arbitration clause.
As more fully discussed in this court's decision in Proceeding Number 2 (Index No. 533266/22) decided today addressing a prior arbitration demand based on the same arbitration provision of 2020 Amendment that is relied upon in the current arbitration demand, this court finds that the current arbitration demand dated May 17, 2023 is not barred by the statute of limitations. Nevertheless, in view of the preliminary injunction granted in Proceeding Number 2 that enjoins respondents from "pursuing, engaging in or conducting arbitration pending an adjudication of the petition," and the need for hearing to determine the validity of the 2020 Amendment and to determine whether Yeshiva Yagdil's amended bylaws from July 2018 contained an arbitration clause that is discussed in this court's decisions in Action/Proceeding Number 1 and Proceeding Number 2 also decided today, the arbitration requested in the May 17, 2023 arbitration demand is stayed pending the lifting or modification of the injunction and the determinations to be made at the hearing.
Finally, the parties are directed to appear before the undersigned on March 4, 2024, at 3:00 PM, for a conference at which time it will be determined how and when the hearing called for in this matter and the two related matters will proceed.
This constitutes the decision and order of the court.