“Whoever maliciously procures any process in a civil action to be served on Saturday, upon any person who keeps Saturday as holy time, and does not labor on that day, or serves upon him any process returnable on that day, or maliciously procures any civil action to which such person is a party to be adjourned to that day for trial, is guilty of a misdemeanor.” This section has been construed to extend to religious holidays. The defendant argued that “the entire period between Yom Kippur and Sukkos is considered to be a holy period” and that service was therefore defective.
The court recognized Yom Kippur as a holy day and stated that it was “sensitive to Mr. Englander’s religious beliefs, including his professed belief that the entire period between Yom Kippur and Sukkos is a holy period.” The court went on to say “However, the day after Yom Kippur is not generally recognized as a religious holiday. Therefore, General Business Law §13 cannot be extended to cover the day after Yom Kippur, and service of the summons and motion in this action on that day was valid and proper.”
The court explained in a footnote that: “Taking Englander’s argument to its logical extreme, he would have the Court defer any action on any day when any individual subjectively determined that day to be a religious holiday. Such is not and cannot be the law; otherwise, an individual could declare every day a religious holiday and always be immune from the Court’s power.” Here is a link to the full decision.

The initial ruling however, which effectively blocked FHA lawsuits regarding Mezuzos for individuals who are already owners or tenants, spurred several jurisdictions to enact laws prohibiting condo or co-op rules restricting the display of religious signs or symbols on doorposts. This allows individuals in those jurisdictions to bring lawsuits alleging violation of these laws.

In an article in today’s New York Law Journal, Benjamin Weinstock, Esq. notes that the Seventh Circuits later decision still leaves gaps in the rights of plaintiffs with post-occupancy claims regarding Mezuzos and that waiting for states or municipalities to pass laws prohibiting rules restricting the display of religious signs or symbols on doorposts is highly inefficient.

Mr. Weinstock proposes using The Religious Land Use and Institutionalized Persons Act (RLUIPA) and The Religious Freedom Restoration Act (RFRA) as the basis for a cause of action in Mezuzah cases. Under RLUIPA, if the ability to use real property for religious practice is “substantially burdened” or circumscribed by even a facially neutral land use regulation, the regulation is invalid. The RFRA prohibits federal laws and practices that substantially burden religious practice. Both of these statutes, however, apply only to governmental regulation and not to private parties. Recognizing this limitation, Mr. Weinstock suggests that the U.S. Supreme Court decision in Shelley v. Kraemer could support the application of RLUIPA and RFRA even to private actions. In that case, a private land conveyance prohibited occupation by “people of the Negro or Mongolian Race”.  The Supreme Court held that although this did not violate the Equal Protection Clause of the 14th Amendment, which does not apply to private conduct, if a court were to enforce the racially restrictive covenant, it would convert a private covenant into State action. Mr. Weinstock argues that the same reasoning should be applied in Mezuzah cases; if a court were to enforce rules restricting placement of Mezuzos the restriction would become a state action, implicating RLUIPA and RFRA.

While Mr. Weinstock’s idea is creative, he does not explain how this would work on a practical level. Seemingly, this extension of RLUIPA and RFRA would be only be possible where a co-op or condo board is seeking to enforce the rule in court. By Mr. Weinstock’s reasoning, courts should not enforce such regulations because doing so would convert the private regulation to a state action, thereby violating RLUIPA and RFRA. Mr. Weinstock does not explain, however, how this novel approach allows a plaintiff to bring an action to overturn a Mezuzah-restrictive regulation. A court, in dismissing such an action based on RLUIPA and RFRA would not need to rule on the validity and/or enforcement of the regulation. I would think that the case could be dismissed simply on the grounds that RLUIPA and RFRA do not apply to this private party action.

Posted with permission of the Journal of Talmudic Law & Finance and the Bais HaVaad Institute of Talmudic Law

“And Moshe was afraid” – in addition to the Peshat that he feared the temporal consequences of the discovery of his vigilante execution of the Egyptian, Rashi cites a Medrash that what worried him was the realization that Israel contained “villains, informers – he said ‘now, perhaps they are not worthy of redemption’”.

The topic of Mesirah in the modern era is a very fraught area of Halachah. On the one hand, Shas and Poskim have traditionally condemned Mosrim in the most drastic terms: they are included (along with apikorsim and those who have sinned and caused others to sin) in the list of those who suffer for an extended duration in Hell,[1] are worse than apostates,[2] and cannot (at least according to some opinions) ritually slaughter animals,[3] or write Sifre Torah[4] or Gittin.[5] And, of course, they may be killed “anywhere, even in contemporary times” after being duly warned, if they are threatening to inform. But on the other hand, it is clear that much of the Halachic literature on the topic was written in the context of regimes that were vastly more ruthless, brutal and unprincipled than modern Western democracies, and of Jewish communities that had much more autonomy and capability of internal regulation than today’s post-Enlightenment diffuse and acculturated ones.

We cannot hope to provide a systematic, comprehensive perspective on this topic in the brief span of this essay; we shall merely briefly discuss some basic questions in this area.

It is crucial to understand that the literature on Mesirah really comprises two very different strands of Halachah. First, a Moser is a Mazik; although the harm caused is indirect, indirect harm is still prohibited, and the Poskim explain that the ex-post-facto liability is due to Mesirah falling under the rubric of Garmi.[6] Additionally, the Gemara considers a Moser to be a Rodef (hence the aforementioned license for his extra-judicial execution);[7] as Rosh explains: “they have no mercy on him – today they take some [of his property], and tomorrow all of it, and in the end they torture his soul and kill him in order that he confess, perhaps he has more property, and so [the informer] is a Rodef, whom it is permitted to kill to save [the victim]“.[8]

Some therefore argue that in the context of civilized societies, the aspect of Rodef may no longer apply,[9] but Mesirah may still be considered a tort and therefore prohibited, and the Moser still held liable for his Hezek.

Conversely, it is unclear whether the tort aspect of Mesirah holds where the loss suffered by the victim is considered legitimate, such as where he is actually liable for the money taken from him according to native Halachah or the principle of Dina De’Malchusa Dina. While Mesirah may still be prohibited, for various reasons, ab initio, there may be no ex post facto liability.[10]

A related question is whether Jews may cooperate with the secular criminal justice system in the apprehension, prosecution and punishment of Jewish criminals. The Gemara relates that R. Elazar b. Shimon helped the government catch Jewish thieves, who were then executed, and while his colleagues disapproved, he defended his conduct;[11] various Poskim have inferred from this passage that cooperation with the criminal justice system is permitted even where it can result in the death of the criminal.[12]

Footnotes:

[1] Rosh Ha’Shanah 17a, and see Shach CM 388:53.

[2] Shach ibid. and #62.

[3] Shach ibid., citing Shulchan Aruch YD 2:9.

[4] Shach ibid., citing Shulchan Aruch YD 281:3.

[5] Even Ha’Ezer Siman 123: Get Pashut #7 s.v. le’inyan mumar u’malshin, and Yeshuos Ya’akov (short) #9, cited in Pis’chei Teshuvah #4.

[6] The reasons for this are quite subtle and not entirely clear, and well beyond the scope of this essay; see Tosafos Bava Kama 22b s.v. zos omeres, Rosh ibid. Ch. 9 Siman 13 and Bava Basra Ch. 2 Siman 17, Mordechai Bava Kama remez 119, Kuntres Dina D’Garmi of Ramban, and Resp. Terumas Ha’Deshen I:315.

[7] Bava Kama 117a.

[8] Rosh Bava Kama ibid. end of Siman 27.

[9] See, e.g., Aruch Ha’Shulchan CM 388:7, Resp. Tzitz Eliezer 19:52:5:1, Pis’chei Choshen (Nezikin) Ch. 4 n. 1

[10] This question is discussed by many Poskim, including: Maharam Mirzburk, as codified by Rema (CM 388:12), Resp. Maharashdam CM end of #55, Resp. Divrei Rivos #83, Resp. Mahari Ibn Lev 2:54, Shach 388:20.

[11] Bava Metzia 83b.

[12] Resp. of Rashba: New Responsa From Manuscript #345 (cited in Beis Yosef CM end of siman 388), III:393 (cited in Beis Yosef siman 2 mechudash 2, V:238, Resp. of Maharam Shick CM #50, R. Broyde’s paper, and Rabbi J. David Bleich, “Jewish Law and the State’s Authority to Punish Crime”, in Contemporary Halachic Problems Vol. IV Ch. IV pp. 62-91. But see R. Avrohom Noach Taplin, Nehorai (5767, p. 822), who argue vigorously that other Rishonim forbid such cooperation. See also the responsa of major contemporary Poskim on the topic of reporting child abusers to the authorities in “Kuntres Dam Re’echa”, Yeshurun Volume 15 p. 734.

We’ve also added a link to the case on our Decisions of Interest page, which we plan to update regularly as we come across decisions to share.

On March 29, 2011 the Appellate Divsion, Second Department affirmed the decision, holding that:

 In the absence of consent by, among others, the parents of the deceased, a court may grant permission to disinter upon a showing of good and substantial reasons . . . Here, the testimony presented at the hearing supports the Supreme Court’s conclusion that the decedent’s paramount concern was that he be buried alongside the petitioner, which was not possible in the Mount Carmel Cemetery due to both the petitioner’s religious affiliation and the lack of available space. Under these circumstances, the Supreme Court properly determined that the petitioner demonstrated good and substantial reasons to disinter the remains of the decedent. (Emphasis added).

Wednesday, March 30th, 2011
5:00 pm – 7:00 pm, reception to follow

CLE credit available

To Be or Not to Be: The Convergence of Halacha, Law and
Medicine in Matters of Death and Dying

We live in an era in which cost-cutting in hospitals is now having a major impact on the health care provided to patients nearing the end of life, and we are seeing a shift away from the concept of patient autonomy toward the position that medical professionals should have the legal authority to make ethical and moral decisions regarding whether to provide care to patients at high risk of dying. The new ideology of “quality of life” has also resulted in an increase in disputes within families over what health care decisions should be made for those no longer capable of communicating their wishes. We are thus starting to see a sharp increase in litigation over these issues as society veers away from the traditional perspective of the sanctity of human life.

Members of the Agudath Israel of America legal network have been involved in a number of high profile cases in which the question of whether to provide a patient with a feeding tube or other life support has been battled out in courtrooms. This workshop will be based on some of those actual cases and will provide all participants with a solid understanding of the basic legal issues and arguments involved in these life-and-death cases. Our goal is to sensitize all those attending to this sort of litigation and provide enough information so that those interested in taking on such cases directly will have the know-how to do so.

Acted out in a mock trial followed by a Q & A

Participants

Judge: The Honorable Martin E. Ritholtz, Justice, New York Supreme Court, Queens County

Practitioner: Mark J. Kurzmann,
Principal, Kurzmann Law Offices, P.C.

Moderator and Practitioner:
Jonathan J. Rikoon, Partner, Debevoise & Plimpton LLP

Rabbinic Authority: Rabbi Zvi Ausch shlita,
Yoshev Rosh Bais Horaah d’ Karlsburg

Medical Authority: Dr. Leon Zacharowicz MD MA, Diplomate, American Board of Psychiatry and Neurology

Medical Authority: Dr. Harold Bronheim MD, Professor of Psychiatry and Medicine, Board Certified in Medicine, Psychiatry, Geriatrics, Psychiatry of the Medically Ill, and Pain

To RSVP, please click here. For more
information, please contact Rivka Levenson

at 212-797-9000 ext. 335 or e-mail legalservices@agudathisrael.org

Location

Offices of Debevoise & Plimpton LLP
919 Third Avenue
(at 55th Street)
35th Floor Conference Center
New York, NY 10022

Please bring a photo ID to gain access through building security

CLE Debevoise & Plimpton LLP has been accredited by the New York State and California State Continuing Legal Education Boards as a provider of continuing legal education. The program is being planned with the intention that its attendees qualify for 2 General CLE credit hours for their participation.

The reported facts are as follows.  Plaintiff, Felix Storch, sold commercial refrigerator units to Martinucci Desserts on credit.  Martinucci went out of business without having paid for the units.  The issue at trial was whether there was a personal guarantee by Mario Sclafani, Martinucci’s owner, to pay for the units in the event that Martinucci was unable to pay.

The signed credit application contained the following phrase: “The undersigned further agrees to personally guarantee any sum or sums of money which purchaser now owes or shall owe at any time.”  However, Sclafani claimed that although he knew the units were purchased on credit, he had never seen the application and that the signature on the application was not his.

In rejecting defendant’s argument, the Court wrote:

Sclafani’s defense was that the signature was not his. He stated that he did not handle any credit matters. Instead, he referred all credit matters to “the girls in the office.” Yet, he knew he received the Plaintiff’s units on credit. Defendant cannot escape his obligations by such a self-serving scheme whereby he denies his obligations while admitting he left it to “his girls” to do what was necessary. And, in this case, there is no question his staff signed the credit application, including the guarantee, on his behalf and returned it to the Plaintiff. Business owners who relinquish such unfettered authority to manage and complete their credit applications must assume the liability for what is completed on their behalf. Plaintiff had every expectation to rely upon the application received by telefax from Defendant’s office. Although the signatures are not an exact match (the Court does not profess to be a handwriting expert), it is clear that the affixed signature so closely resembled that of the Defendant that it was, at a minimum, signed on his behalf by, according to his testimony, the “girls in the office.” Defendant’s self-serving denial was insufficient to persuade this Court otherwise. (Emphasis added.)

The full text of the decision can be read here.

The judge acknowledged that under CPLR 2309, “[A]ny person who, for religious or other reasons, wishes to use an affirmation as an alternative to a sworn statement may do so.”  The judge noted, however, that “to be effective such an affirmation must be made before a notary public or other authorized official.”(CPLR 2309).

The judge also made the following observation with regard to the limits of the idea of “judicial notice”:

As a court sitting in Brooklyn, this Court is certainly aware of the sizeable Lubavitch communities and their relationships to the Chasidic movement within Orthodox Judaism. (See generally Merkos L’Inyonei Church, Inc. v Sharf, 11 Misc 3d 1062 [A], 2006 NY Slip Op 50365 [U], * 2- * 4 [Sup Ct, Kings County 2006].) The names chosen by Defendants, “United Lubavich, Inc.” and “Lubavitcher School Chabad,” suggest that they situate themselves among those communities. One might assume, moreover, that as a teacher at a Lubavitch school, Rabbi Reinetz shares religious and ethical beliefs shared by the Lubavitch communities. But the scope of judicial notice is at best limited in matters of religion. (See Baxter v McDonnell, 155 NY 83, 93 [1898]; Matter of Ingham v Town of Dickinson, 192 AD2d 813, 814 [3d Dept 1993]; Baird v Grace Church of Millbrook, 197 AD 272, 274 [2d Dept 1921] ["The canons and customs of a religious denomination must be proved as matters of fact."].) Even more suspect would be the ascribing of particular religious or ethical beliefs to an individual because of association with a religious community or organization.

A complete copy of the decision can be found here.

Prior decisions from lower courts held that such transactions were not permitted under interpretations of NY Insurance Law and were void as against public policy as “wagering on the life of another,” when the insurance was procured by the individual solely with the intent to transfer or sell the policy to a third-party.

Additional post to follow.

Teshurat Shai (R. Solomon Leib Tabak, Hungary, 1832-1908), chapter 159 (cited by Pitchei Choshen, Hilchot Yerushah, Chapter 1, fn 4), addressed the following situation.  A man died survived by a son and four daughters.  Pursuant to local law, the decedent’s estate was divided equally among his five children.  Some time later, one of the daughters and her husband learned that the decedent’s son was the sole halachic heir, as the decedent apparently made no halachically valid provisions to ensure that his daughters received portions of the estate.

Since the decedent’s death, however, the the value of the real estate that the daughter and her husband believed was their inheritance had appreciated.  Some of the property had been sold.  The daughter and her husband had collected income and paid all expenses associated with the property.

R. Tabak rejected the daughter’s argument that her brother had in effect gifted property to his sisters when he consented to the division of the estate between himself, a yoresh, and his four sisters, who were not yorshim.  R. Tabak wrote that the brother may have consented because he believed that local law controlled (which would be an erroneous application of dina demalchuta dina, as discussed in an earlier post).  Citing Maharik and Rashdam, R. Tabak wrote that in circumstances where the controlling halachot are commonly misunderstood, transfers are presumed to be prompted by a misunderstanding rather than by an intent to give a gift.  This principle applies even if the transferor did not affirmatively claim he never intended the transfer to be a gift.

R. Tabak therefore ruled that the original distribution of the estate was invalid, and that the property held by the sister had to be returned to her brother.  Furthermore, wrote R. Tabak, she had to pay her brother all of the income produced by the property since the distribution.  Even the income produced by the property after she had sold it had to be returned, since the sale of any real estate was invalid.  Property that had been sold and couldn’t be recovered had to paid for at its current appreciated value, not its value at the time of the decedent’s death.

R. Tabak wrote that the sister was entitled to reimbursement for expenses associated with the property, as well as for any of the decedent’s debts she had paid.

While this ruling may appear to be harsh, it is logical and not necessarily surprising.  Since according to halacha it is impossible to illegally convert real estate to one’s own possession, the brother remained the owner following the decedent’s death and was entitled to all of the income as well as the appreciation of the real estate.  His sister’s illegal or mistaken management of the property essentially created something similar to a constructive trust, where she held the property for her brother’s benefit, and was simply entitled to reasonable reimbursements for debts and expenses paid on her brother’s behalf.

It is also clear that another solution was possible.  If (and this is sometimes a big if) at the later date the yoresh is willing and capable, he can consent to an equal distribution upon his understanding that he is entitled to the entire estate.

This fact pattern has no doubt repeated itself many times over, even among people who strictly follow halacha in the course of their daily lives.  The failure to properly plan an estate according to halacha can lead to the realization many years or even decades after a legal distribution that the estate’s beneficiaries have been withholding property from the yoresh without adequate consent.  According to the Teshurat Shai’s teshuvah, not only must the property be returned, but all income and appreciation associated with real estate — even if sold — must be disgorged.

While this post is not intended to be halachic advice, one who was a beneficiary of an estate in similar circumstances should consult with a competent posek or dayan as to any outstanding obligations to the yorshim and, if necessary, for advice on obtaining proper halachic consents.

Needless to say, proper planning could avoid repeating the problem for the next generation.