SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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In the Matter of the Arbitration of Index No: 503016/2013
Certain Controversies Between,
MOSHE STARK,
Assigned to the Hon.
Petitioner, Carl Landicino, J.S.C.
- against - I.A.S. Part 81
SARA RUBEL a/k/a SARAH RUBEL and
JUMBO ENTERPRISE, CORP.,
Respondents.
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PETITIONER’S MEMORANDUM OF LAW IN OPPOSITION TO RENEW, VACATE, AMEND AND DISMISS; AND IN SUPPORT OF PETITIONER’S
CROSS-MOTION TO DECLARE JUDICIARY LAW § 5 UNCONSTITUTIONAL
Respectfully submitted,
LAW OFFICES OF
SOLOMON E. ANTAR
Office & P.O. Address
26 Court Street – Suite 1200
Brooklyn, New York 11242
Tel: (212) 388-0900
Attorneys for Petitioner
On the Brief:
Leopold Gross, Esq.
9
TABLE OF CONTENTS
Contents Page No.
TABLE OF AUTHORITIES iii
PRELIMINARY STATEMENT 1
STATEMENT OF FACTS 3
ARGUMENT 5
I. RESPONDENTS’ MOTION TO RENEW CANNOT BE BROUGHT AFTER THEIR TIME TO APPEAL EXPIRED AND AFTER THE SECOND DEPARTMENT DISMISSED THEIR APPEAL FOR WANT OF PROSECUTION. 5
A. Respondents’ motion to renew is untimely because it was brought after their time to appeal the judgment has expired. 6
B. Petitioner’s Judgment became final, and not subject to renewal, on August 31, 2015 because Respondents failed to appeal the superseded Judgment. 7
C. Alternatively, the Decision and Order that Respondents seek this Court to reverse constitutes an adjudication on the merits since the Second Department dismissed Respondents’ appeal for want of prosecution. 8
II. THE RECENT SECOND DEPARTMENT DECISION IN LEIFER v. GROSS DID NOT CHANGE THE DECISIONAL LAW IN THE STATE OF NEW YORK. 10
III. CPLR § 5015(A)(2) IS INAPPLICABLE BECAUSE A CHANGE IN LAW DOES NOT CONSTITUTE “NEWLY DISCOVERED EVIDENCE,” AND IF IT DOES, THE LEIFER v. GROSS DECISION MUST NOT HAVE BEEN IN EXISTENCE WHEN THE JUDGMENT WAS ENTERED. 11
A. CPLR § 5015(a)(2) is wholly inapplicable since a change of law does not constitute “newly discovered evidence.” 11
B. Respondents cannot invoke CPLR § 5015(a)(2) because the Second Department’s Decision of Leifer v. Gross was not in existence when the Judgment was entered. 12
IV. JUDICIARY LAW § 5 CANNOT BE INVOKED AS A GROUND TO VACATE THE AWARD BECAUSE IT IS UNCONSTITUTIONAL. 12
A. Judiciary Law § 5 violates the “Establishment Clause” of the First Amendment of the United States Constitution. 13
1. Prong 1 of the Lemon test:
The secular legislative purpose requirement. 14
2. Prong 2 of the Lemon test:
The secular effect requirement. 15
3. As for the standard of review, New York requires a rational nexus between the
statute and its purpose. 17
4. New York courts have repeatedly struck-down Sunday Blue Laws. 18
5. New York courts have in recent years liberally construed Judiciary Law § 5 to
meet current societal values. 19
B. Judiciary Law § 5 violates the “Free Exercise” clause of the First Amendment of the United States Constitution. 21
C. Judiciary Law § 5 violates the “Equal Protection” clause of the Fourteenth Amendment of the United States Constitution and Article 1 § 11 of New York’s Constitution. 22
V. ALTERNATIVELY, AFTER THE ENACTMENT OF THE CPLR, ARBITRATION IS NO LONGER A JUDICIAL PROCEEDING, THUS JUDICIARY LAW § 5 DOES NOT APPLY. 23
VI. ALTERNATIVELY, THE REMEDY FOR VIOLATING JUDICIARY LAW § 5 IS TO REMAND FOR A NEW HEARING. 24
VII. RESPONDENTS HAVE NO GOOD FAITH BASIS TO MAINTAIN THIS MOTION TO RENEW; IT IS FRIVOLOUS WARRANTING SANCTIONS. 24
CONCLUSION 25
TABLE OF AUTHORITIES
Cases
Aish Hatorah New York, Inc. v. Fetman,
45 Misc.3d 1203(A) (Sup. Ct., Kings Co. 2014) 20
Avitzur v. Avitzur,
58 N.Y.2d 108 (1983) 16
Board of Educ. of Kiryas Joel Village School Dist. v. Grumet,
512 U.S. 687 (1994) 14, 16
Bray v. Cox,
38 N.Y.2d 350 (1976) 8
Brody v. Owen,
259 A.D. 720 (2d Dep’t 1940) 10, 20
Cantwell v. Connecticut,
310 U.S. 296 (1940) 13
Capelin v. Klein,
3 N.Y.2d 911 (1957) 24
Clear Blue Water, LLC v. Winston,
23 Misc. 3d 1123(A) (Sup. Ct. Suffolk Co. 2009) 25
Coastal Sheet Metal Corp. v. RJR Mech. Inc.,
85 A.D.3d 420 (1st Dep’t 2011) 12
Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos,
483 U.S. 327 (1987) 17
Cowan v. City of Buffalo,
247 A.D. 591 (4th Dep't 1936) 15, 18, 19, 22
Daniels v. Millar El. Indus., Inc.,
44 A.D.3d 895 (2d Dep’t 2007) 5
Deller v. Mercy Med. Ctr.,
87 A.D.3d 712 (2d Dep’t 2011) 8, 9
Dinallo v. DAL Elec.,
60 A.D.3d 620 (2d Dep’t 2009) 7, 11
Eagle Ins. Co. v. Persaud,
1 A.D.3d 356 (2d Dep’t 2003) 6, 7
Edwards v. Aguillard,
482 U.S. 578 (1987) 14
Estate of Thornton v. Caldor, Inc.,
472 U.S. 703 (1985) 15
Everson v. Board of Education,
330 U.S. 1 (1947) 13
Finder v. Finder,
65 A.D.2d 536 (1st Dep’t 1978) 7, 8
Glicksman v. Bd. of Educ./Cent. School Bd. of Comsewogue Union Free School Dist.,
278 A.D.2d 364 (2d Dep’t 2000) 6
Grossman v. Baumgartner,
17 N.Y.2d 345 (1966) 22
Hauser v. North British & Mercantile Ins. Co.,
206 N.Y. 455 (1912) 22
In re Ayodele Ademoli J.,
57 A.D.3d 668 (2d Dep’t 2008) 12
In re Huie,
20 N.Y.2d 568 (1967) 11
In re Kleinbart,
45 Misc. 3d 1215(A) (Sup. Ct. Kings Co. 2014) 24
Isaacs v. Beth Hamedash Society,
1 Hilt 469 (Common Pleas 1857) affd. 19 NY 584 (1859)) 20
Johnson v. New York City Bd. of Educ.,
249 A.D.2d 370 (2d Dep’t 1998) 7, 8
Jones v. East Meadow Fire Dist.,
21 A.D.2d 129 (2d Dep't 1964) 24
Kapsis v. Peragine,
96 A.D.3d 804 (2d Dep’t 2012) 8
Knickerbocker Ins. Co. v. Gilbert,
28 N.Y.2d 57 (1971) 23
Larkin v. Grendel’s Den, Inc.,
459 U.S. 116 (1982) 16, 21
Larson v. Valente,
456 U.S. 228 (1982) 16
Leblon Consultants, Ltd. v. Jackson China, Inc.,
92 A.D.2d 499 (1st Dept. 1983) 24
Leifer v. Gross,
2016 N.Y. Slip. Op. 04715, 140 A.D.3d 959 (2d Dep’t 2016) 10, 12, 20, 21
Lemon v. Kurtzman,
403 U.S. 602 (1971) 13, 16
Mascia v. Maresco,
39 A.D.3d 504 (2d Dep’t 2007) 25
Matter of Barnes (Council 82, AFSCME, on Behalf of Monroe),
235 A.D.2d 826 (3d Dep’t 1997) 7
Matter of Barnes (Council 82, AFSCME, on Behalf of Monroe),
235 A.D.2d 826, 826 (3d Dep’t 1997) 7
Matter of Eric D.,
162 A.D.2d 1051 (4th Dep’t 1990) 7
McDaniel v. Paty,
435 U.S. 618 (1978) 21
Meisels v. Uhr,
79 N.Y.2d 526 (1992) 16
People v. Abrahams,
40 N.Y.2d 277 (1976) 2, 15, 17, 18
People v. Kramer,
133 Misc.2d 239 (Sup. Ct. Kings Co. 1986) 2, 20
People v. Payne,
89 Misc.2d 99 (Sup. Ct. Westchester Co. 1976) 2, 19, 20
People v. Wells,
153 Misc. 730 (Co. Ct. Rensselaer Co. 1934) 24
People v. Yafee,
3 Misc.3d 367 (Crim. Ct. Kings Co. 2004) 15, 18, 22
Providian Nat. Bank v. McGowan,
179 Misc. 2d 988 (Civ. Ct. Kings Co. 1999), affd as mod, 186 Misc. 2d 553 (App. Term. 2d Dep’t 2000) 25
Reynolds v. United States,
98 U.S. 145 (1878) 21
Sablosky v. Edward S. Gordon Co., Inc.,
73 N.Y.2d 133 (1989) 23
Schacht v. City of New York,
40 Misc.2d 303 (Sup. Ct. N.Y. Co. (1963) 15
Sherbert v. Verner,
374 U.S. 398 (1963) 22
Siegel v. Lewis,
40 N.Y.2d 687 (1976) 23
Stark v. Rubel,
2015 WL 4514953 (Sup. Ct. Kings Co. 2015) 20
Statutes
22 NYCRR § 130-1.1 1, 25
22 NYCRR § 500.9 1
Alcoholic Beverage Control Law § 105-a 15, 18
Civ. Prac. Act, § 1458 23
Const. Art. 1 § 11 1, 13, 23
CPLR § 1012(b) 1
CPLR § 2221(e) 1, 6
CPLR § 3025(b) 1
CPLR § 5015(a)(2 11, 12
CPLR § 7503(a) 1
Establishment Clause of the First Amendment of the United States Constitution 1, 12, 13
Equal Protection Clause of the United States Constitution 1, 12, 22
Executive Law § 71 1
Free Exercise Clause of the First Amendment of the United States Constitution 1, 12, 21
General Business Law § 9 18
Other Authorities
McKinney’s Cons Laws of NY, Book 29, Judiciary Law § 5, Notes of Decisions at 16 20
9
This Memorandum is respectfully submitted by Petitioner MOSHE STARK (“Petitioner”) in opposition to Respondents SARA RUBEL a/k/a SARAH RUBEL and JUMBO ENTERPRISE, CORP.’s (jointly “Respondents”) motion to: (1) renew their prior cross-motion pursuant to CPLR § 2221(e); (2) vacate this Court’s Decision and Order dated July 2, 2015, and Judgment dated July 29, 2015; (3) amend their Cross-Petition in this special proceeding pursuant to CPLR § 3025(b); and (4) vacate the subject arbitration award pursuant to CPLR § 7511. This Memorandum is also submitted by Petitioner in support of his Cross-Motion for a declaratory judgment declaring Judiciary Law § 5 unconstitutional on grounds that Judiciary Law § 5 is violative of: (1) the Establishment Clause of the First Amendment of the United States Constitution; (2) the Free Exercise Clause of the First Amendment of the United States Constitution; (3) the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution; and (4) the Equal Protection Clause of New York’s Constitution (Const. Art. 1 § 11) as arbitrary and capricious[1]; or alternatively remitting the within controversy to the Rabbinical Court of Givas Hamorah pursuant to CPLR § 7503(a); and sanctions for Respondents’ frivolous conduct pursuant to 22 NYCRR § 130-1.1.
PRELIMINARY STATEMENT
This case presents the following two issues: (1) is Judiciary Law § 5, enacted in 1909, constitutional; and (2) does a rational basis underpinning the statute exist?
Judiciary Law § 5 provides that “[a] court shall not be opened, or transact any business on Sunday.” Respondents now invoke Judiciary Law § 5 as grounds to vacate the Beth Din’s arbitration award because the rabbinical arbitrators conducted an arbitration hearing on Sunday.
In recent years, however, New York courts have liberally construed Judiciary Law § 5 and held that “the once inflexible notion upon which section 5 of the Judiciary Law almost certainly is founded that all secular employment must cease with the first coming of Sunday has gradually been eroded over the years.” People v. Payne, 89 Misc.2d 99, 103 (Sup. Ct. Westchester Co. 1976) rev’d on other grounds, 67 A.D.2d 934 (2d Dep’t 1979). New York courts have further held that “Judiciary Law § 5 should be read to meet current societal values and behavior.” People v. Kramer, 133 Misc.2d 239, 242 (Sup. Ct. Kings Co. 1986). As shown below, over the past half-a-century similar anachronistic Sunday Blue Laws have been repeatedly struck from the books and declared unconstitutional.
Judiciary Law § 5 prevents private actors (as opposed to state actors), such as Jews, Muslims[2] and Seventh Day Adventists, who do not use Sunday as their day of rest, from voluntarily submitting controversies to religious arbitral tribunals that convene on Sunday. The New York Legislature cannot, however, seek to “influence” individuals to adopt Christian beliefs by forcing non-Christians to hold Sunday as their day of rest; and thereby prohibit Jews from voluntarily participating in arbitration on Sunday before a private rabbinical tribunal. It is beyond cavil that by forcing private parties to rest on Sunday -- the Christian day of rest -- Judiciary Law § 5 seeks to endorse and promote religious doctrines. New York courts that have examined similar Sunday Blue Laws have held that such Sunday Blue Laws have their origin in, and seek to promote, religion – as Sunday, also called “Lord’s Day,” is the Sabbath for the Christian people. See People v. Abrahams, 40 N.Y.2d 277, 281 (1976) (examining history of Sunday laws and concluding that “these laws are clearly religious in origin being derived from the concise directive of the Old Testament”).
Given that rabbinical arbitral tribunals are private (non-governmental) harmless enterprises, there is no governmental, social, moral or economic purpose to prohibit private parties from voluntarily submitting to arbitration on Sunday. Accordingly, Judiciary Law § 5 -- as applied to private actors -- is arbitrary, capricious and devoid of rhyme or reason.
Alternatively, should this Court deem Judiciary Law § 5 constitutionally sound, the appropriate remedy for violating the statute is to remand the controversy to the arbitrators for a new arbitration hearing to be held on any day other than Sunday.
In any event, since Respondents’ motion to renew and vacate this Court’s prior Decision and Order and Judgment is untimely, this Court does not even have to reach the merits of Respondents’ motion and the constitutionally of Judiciary Law § 5. Respondents’ motion to renew and vacate is untimely because it was brought after their time to appeal the Judgment has expired.
Additionally, the Decision and Order that Respondents seek to vacate is deemed an adjudication on the merits since the Second Department dismissed Respondents’ appeal for failure to timely perfect same. The Second Department’s dismissal of Respondents’ appeal acts as a bar to relitigate all questions that were presented on that appeal.
STATEMENT OF FACTS