Schwimmer v Welz

[*1] Schwimmer v Welz 2009 NY Slip Op 51230(U) [24 Misc 3d 1202(A)] Decided on June 15, 2009 Supreme Court, Kings County Demarest, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 15, 2009
Supreme Court, Kings County

Mendel Schwimmer, Individually and as a Member and Trustee on Behalf of United Talmudical Academy of Boro Park, a New York Religious Corporation, Plaintiffs,

against

Aron Welz, a/k/a Robert Welz, Individually and as a Member and Trustee of United Talmudical Academy of Boro Park, a New York Religious Corporation; Keren Habinyan Hachudosh D'Rabeinu Yoel of Satmar BP, a New York Religious Corporation; "XYZ Corp.," an entity believed to own real property in the vicinity of Otisville, New York, the true name of which is unknown to Plaintiff; Milton Markowitz; Luzer Leiberman; Chaim Goldberger; Samuel Lichtman; Naftali Klagsbrun; Sholom Kestenbaum; Mordecai Weiss; and Nuchem Welz, Defendants.



14420/06



Attorney for Plaintiff:

David S. Smith, Esq.

Smith Campbell, LLP

110 Wall Street

New York, NY 10005

Attorneys for Keren Habinyan Hachudosh D'Rabeinu Yoel of Satmar BP

Andrew S. Fisher, Esq.

Fisher & Fisher

One Whitehall Street

New York, NY 10004

Jeffrey Buss, Esq.

Smith Buss & Jacobs, LLP

733 Yonkers Avenue

Yonkers, NY 10704

Attorney for Remaining Defendants

Nicholas Fortuna, Esq.

Allyn & Fortuna LLP

200 Madison Avenue - 5th Floor

New York, NY 10016-3903

Carolyn E. Demarest, J.

Upon the foregoing papers, defendants Aron Welz, a/k/a Robert Welz, individually and as a member and trustee of United Talmudical Academy of Boro Park (Welz), and co-defendants Milton Markowitz, Luzer Leiberman, Chaim Goldberger, Samuel Lichtman, Naftali Klagsbrun, Sholom Kestenbaum, Mordecai Weiss, and Nuchem Welz (collectively with Welz, the individual defendants) jointly move for an order, pursuant to CPLR 7503 (a), staying this action and compelling the arbitration of the first, second, third, fifth, and sixth causes of actions set forth in the amended complaint; or, in the alternative, pursuant to CPLR 3211 (a) (3), dismissing the amended complaint, and/or, pursuant to CPLR 3211 (a) (7), dismissing the first cause of action insofar as asserted against them. Keren Habinyan Hachudosh D'Rabeinu Yoel of Satmar BP, an entity in which Welz serves as a trustee (the corporate defendant), moves for an order, pursuant to CPLR 7503 (a), staying this action and compelling the arbitration of the fourth cause of action set forth in the amended complaint, or, in the alternative, pursuant to CPLR 3211 (a) (3), dismissing the complaint insofar as asserted against it.

BACKGROUND

The Dispute

"This case concerns competing claims to control of the Board of Trustees of the United Talmudic Academy of Boro Park (hereinafter UTA-BP). UTA-BP is a religious corporation which, inter alia, maintains a school in Boro Park, Brooklyn, to provide religious [*2]education to the children of the Satmar community of Chasidic Orthodox Jews. According to the plaintiff Mendel Schwimmer, at all relevant times, he served on UTA-BP's three-member Board of Trustees (hereinafter the Board) with nonparty Chaim Friedman and the defendant Aron Welz, the school's longtime administrator. Schwimmer claims that, on April 7, 2005, he presided over a Board meeting attended by him and Friedman, but not Welz. At the meeting, Schwimmer was elected Board President, and an amended certificate of incorporation was adopted expanding the three-member Board to include six newly-elected members (hereinafter the Schwimmer Board). Three weeks later, Welz held a meeting at which a different nine-member Board allegedly was elected (hereinafter the Welz Board) and a certificate of amendment to the certificate of incorporation . . . and a corporate resolution were adopted, reflecting the new composition of the Board."

(Schwimmer v Welz, 56 AD3d 541, 542-543 [2d Dept 2008]).

The Agreement to Arbitrate

Prior and subsequent to the commencement of this action, Welz and Schwimmer each sought to resolve their dispute by arbitration, as the following chronology of the undisputed facts indicates:[FN1]

May 7, 2006: At Schwimmer's request, the Rabbinical Court "Even Hamishpot" of Monsey, New York (the Rabbinical Court) issued a summons addressed to Welz, as a Board member of UTA-BP, directing him to appear before that court and requesting him to contact the court chambers to schedule a time for a hearing.[FN2] The summons affirmed that Schwimmer was "ready to submit to Din [Jewish Law] immediately."

May 10, 2006: Before Welz was served with the Rabbinical Court summons, Schwimmer (among others) commenced the instant action, seeking, inter alia, a declaration that the Schwimmer Board was the valid, currently appointed Board of Trustees of UTA-BP. In his original verified complaint, Schwimmer stated (in ¶ 1) that he had summoned Welz to arbitration before the Rabbinical Court and that "[i]n the event Welz submits to the [*3]jurisdiction of such Rabbinical Court, plaintiffs consent to the conversion of this action into a special proceeding seeking an injunction pending arbitration pursuant to CPLR 103 (c) and 7502 (c)."

May 11, 2006: Welz was served with the Rabbinical Court summons (Welz Aff., ¶ 16).

May 12, 2006: Welz and his rabbinical attorney, Osher Gruber, appeared, by a telephone conference call, before the Rabbinical Court Judge Moshe Shlomo Gobioff who had issued the summons (Welz Aff., ¶ 17; Welz Reply Aff., ¶ 6). In that appearance, Welz stated that he was unwilling to arbitrate before the subject Rabbinical Court, but offered to arbitrate before one of the five other rabbinical courts he proposed; or absent Schwimmer's agreement to any one of these other rabbinical courts, to resolve the dispute by the "Zebla" rabbinical court, whereby each party selected a rabbinical judge and the two so selected rabbinical judges then appointed the third neutral rabbinical judge to sit on the court to decide the dispute (Welz Aff., ¶ 18).

May 18, 2006: In accordance with the Rabbinical Court's restraining order, the Welz Board passed a resolution prohibiting UTA-BP from selling or mortgaging any of its property for a period of up to four weeks (Welz Aff., Ex. E).

May 28, 2006: Welz, acting on behalf of UTA-BP, extended the Rabbinical Court's restraining order for a three-week period (Welz Aff., Ex. F). In addition, Welz selected Yekusiel Zalmaen Graus[FN3] as his rabbinical judge on the Zebla court (Welz Aff., Ex. F; David Samuel Graus Aff., ¶ 1).

September 15, 2006: By decision and order, this court granted that branch of the cross motion of the individual defendants and the corporate defendant (collectively, the defendants) which sought dismissal of Schwimmer's complaint on the grounds that the instant controversy was non-justiciable, as it involved questions of religion which the court was not competent to answer. The court also held (at page 5) that "Schwimmer clearly does have standing to initiate this action and dismissal is not warranted on that ground as to him."[FN4] [*4]With respect to the potential for having the parties' dispute arbitrated, the court noted (at page 3): "It appears that the parties agree that a rabbinical court is the proper forum to resolve their differences but have been unable to agree on the particular tribunal. An argument has been made, based on [J]ewish law', that in demanding such arbitration, plaintiffs must select from a list of three tribunals proposed by defendants. Plaintiffs have rejected all three of defendants' proposals."

December 6, 2006: This court denied Schwimmer's motion for leave to renew or set aside the September 15th order.

November 2006 - February 2008: Schwimmer separately appealed the September 15th and December 6th orders to the Appellate Division, Second Department. Schwimmer filed his opening appellate brief on February 20, 2007 and his reply appellate brief on February 28, 2008; the defendants filed their responsive appellate brief on January 30, 2008 (Smith Aff., Ex. A).

February 21, 2008: Shortly before Schwimmer's reply appellate brief was due, Rabbinical Judge Gobioff,[FN5] acting for the Rabbinical Court, issued an order directing Schwimmer and Welz to arbitrate before the Zebla rabbinical panel and to sign an arbitration agreement to that effect (Welz Aff., Ex. G). That order provided, in pertinent part: "In the matter of the conflict between the parties, members of the Board of Trustees of the Boro Park Satmar Institutes, the [Rabbinical] Court has decided that the parties must sign arbitration agreements pursuant to the following conditions:

a) Each party must choose an Arbitrator.

b) It has been agreed that the adjutant [the third arbitrator on the Zebla panel] shall be . . . Mordechai Babad . . .

c) The Court will sit for debates at least 4 times a month and the parties[,] their rabbinical pleaders [lawyers], the arbitrators, and the adjutant will comply with this. Should the number of meetings fall short of this in any particular month, the shortfall must be made up during the following month.

d) . . . The phrasing of the arbitration agreement will be as follows: [*5]

Re: Who is entitled to control the management and treasurer's office, and who are the owners, of U.T.A. Boro Park Institutes.

e) Regarding the injunction from summoning [rabbinical] court and the injunction in the Secular Courts — the situation shall remain unchanged, until the two parties sign an arbitration agreement . . ."[FN6]

February 25, 2008: Rabbinical Judge Gobioff also provided Schwimmer and Welz with a proposed form of the arbitration agreement (Gobioff Aff., ¶ 11; Welz Aff, Ex. H). The form arbitration agreement stated that Schwimmer had selected Yitzchok Chaim Zeltenreich and that Welz had selected Yekusiel Zalmen Graus as their respective rabbinical judges, while Mordechai Babad had been appointed as the third and presiding rabbinical judge, on the Zebla court (Welz Aff., Ex. H). The subject matter of the arbitration agreement was expressed as "who has the right to administer and financial management, and who is the owner of the UTA institutions of Boro Park; and also about the injunction which was issued by the summonsing Rabbinical Court as well as the injunction in secular court" (Welz Aff., Ex. H). The form arbitration agreement emphasized that the arbitration: "was entered into via a complete Agav Suder [i.e., supported by consideration] binding procedure, performed with an object that is appropriate for such purpose, effective immediately, before a distinguished Rabbinical Court, in addition to other binding procedures and strengthening methods in a manner that is effective according to the laws of our holy Torah; in manner that's free from the verbal commitment only' or merely assuring' deficiencies, and as strenuous as other binding procedures and documents that are conducted as regulated by our holy sages of blessed memory; nor as a standard form of contract, and everything is solid and established" [emphasis added].

February 28, 2008: On the same day when Schwimmer's counsel filed his reply appellate brief, Schwimmer signed and delivered his arbitration agreement to Rabbinical Judge Gobioff, accompanied by his hand-written cover note, which stated, in relevant part: "We are entitled to other Arbitration Documents when the [Zebla] Rabbinical Court convenes to consider the matter, and this Arbitration Document is only for the purposes of coercing the parties to litigate in Rabbinical Court if they do not agree on the text of the Arbitration Document with the Rabbinical Court"[*6]

Schwimmer also placed an asterisk in the body of his signed arbitration agreement to indicate the place for a hand-written footnote that contained the following additional conditions (the additional conditions): "The signature of one Party without the signature of the other is neither a derogation nor improvement and is considered as null. Similarly, one Party must sign within 30 days after the first signature is made, and every signature on the Arbitration Document assumes that the Rabbinical Court shall consider the case at least 4 times per month"[FN7] (Gobioff Aff., Ex C [emphasis added]).

Post-February 28, 2008: Following receipt of Schwimmer's signed arbitration agreement, Rabbinical Judge Gobioff advised Welz's rabbinical attorney, Osher Gruber, that Schwimmer had signed the arbitration agreement and that Welz needed to sign the arbitration agreement (actually, a counterpart thereof) if he desired to arbitrate (Gobioff Aff., ¶ 14; Gruber Aff., ¶ 14). According to Osher Gruber's affirmation, Rabbinical Judge Gobioff failed to advise him about the additional conditions inserted by Schwimmer in his arbitration agreement, particularly the 30-day signing deadline (Gruber Aff., ¶ 16, Gruber Reply Aff., ¶ 8). In his affirmation, Rabbinical Judge Gobioff is silent as to whether he had specifically advised Osher Gruber, as Welz's rabbinical attorney, of the 30-day signing deadline unilaterally inserted by Schwimmer in his arbitration agreement (Gobioff, ¶ 14).

March 7, 2008: Within the 30-day deadline imposed by Schwimmer, Welz signed and delivered to Yekusiel Zalmaen Graus, the arbitrator selected by Welz for the Zebla court, Welz's counterpart of the arbitration agreement (David Samuel Graus Aff., ¶ 2). Graus' secretary affirms that upon his receipt of Welz's arbitration agreement, he notified all of the parties of that fact (id., ¶ 3).[FN8]

November 12, 2008: Schwimmer won his appeal when the Appellate Division, Second Department issued its decision and order, which reversed, insofar as appealed from, this court's September 15th decision and order, which granted that branch of the defendants' cross motion which was to dismiss the original complaint, pursuant to CPLR 3211 (a) (2), for lack of subject matter jurisdiction. Based on the record before it, the appellate court could not conclude that the action was non-justiciable and held that this court had subject matter jurisdiction over the dispute.

November 26, 2008: Rabbinical Judge Gobioff received from Welz's rabbinical attorney the arbitration agreement signed by Welz (Gobioff Aff., ¶¶ 16-17 & Ex. D).

November 30, 2008: Welz's counsel in this action e-mailed to Schwimmer's counsel [*7]a proposed stipulation to be executed by Schwimmer and Welz merely confirming the substantive terms of the arbitration agreement (including the identity of the rabbinical judges on the Zebla court) previously executed and delivered by each of Schwimmer and Welz (Smith Aff., Ex D).

December 1, 2008: Schwimmer's counsel responded by e-mail to Welz's counsel, denying that the parties had agreed to arbitrate before the Zebla court (Smith Aff., Ex E, cover page). Schwimmer's counsel counter-proposed its own stipulation to be agreed upon by Welz by no later than noon, December 3, 2008 (id). The counter-proposed stipulation contained additional terms beyond those set forth in the previously executed arbitration agreements: a) "In determining any claim in the Arbitration, the [Zebla] Panel shall presume that authority over and governance of [UTA-BP] has remained as it was on May 7, 2006 [shortly prior to Schwimmer's commencement of the instant action] continuously through the date of the Panel's Award. Such presumption shall be unrebuttable" (Smith Aff., Ex. E, Stipulation, ¶ 3).b) The corporate defendant (acting through Welz) must agree to arbitration (id., signature page).c) Each session of the Zebla panel must last seven hours each . . . (id., ¶ 6).d) Unless the Zebla panel rules otherwise, pending the panel's issuance of its final award, Welz and the corporate defendant must agree to a broad injunction prohibiting, among other things, expulsion or suspension of any student from UTA-BP, or refusal to enroll any student in UTA-BP, unless such expulsion, suspension, or refusal to enroll is agreed to in writing by either Schwimmer or non-party Chaim Friedman (the member of the original Board) in addition to Welz (id., ¶ 9). Schwimmer would have the right to apply to the court to hold Welz or the corporate defendant in contempt for violations of the injunction (id., ¶ 10).e) The stipulation must be "so ordered" by this court (id., signature page).

December 3, 2008: Welz did not agree to Schwimmer's stipulation, and served an answer to the original complaint, alleging, inter alia, that the parties had already agreed to arbitrate before the Zebla court (Fortuna Aff., Ex. D, ¶¶ 1 and 25).

December 18, 2008: Schwimmer served his amended complaint, which essentially restated his allegations against Welz made in the original complaint and named the Welz Board members as additional defendants. With respect to arbitration, the amended complaint alleged that the parties did not agree to it because Welz had failed to accept the terms of [*8]Schwimmer's stipulation (Fortuna Aff., Ex. E, ¶ 29).

February 9, 2009: In lieu of answering the amended complaint, the individual defendants served the instant motion to stay this action and compel arbitration before the Zebla court. The corporate defendant moved for substantially the same relief.

April 2, 2009: The court heard oral arguments on the subject motions and reserved decision. At the hearing, the individual defendants' counsel conceded that the existence of the additional arbitration conditions inserted by Schwimmer in his arbitration agreement was not communicated to Welz's rabbinical attorney.

The Refusal to Arbitrate

It is clear from the foregoing recitation that after his victory in the appellate court, Schwimmer has refused to arbitrate with Welz pursuant to the terms of the arbitration agreement which he earlier signed and delivered. Through a counter-proposed stipulation, he sought to materially change the terms of the arbitration agreement by adding a broad injunction to be approved by this court, despite the fact that the court previously denied Schwimmer's request for similar injunctive relief. Schwimmer now contends that he is not bound by the terms of his signed and delivered arbitration agreement because Welz failed to deliver to the Rabbinical Court his signed counterpart of the arbitration agreement within the 30-day deadline unilaterally set by Schwimmer and apparently undisclosed by Gobioff to Welz's rabbinical attorney (Schwimmer Aff., ¶ 4; Gobioff Aff., ¶ 20).

DISCUSSION

It is the policy of this State that arbitration is encouraged and favored as a means of expediting the resolution of disputes and conserving judicial resources (see Matter of Smith Barney Shearson v Sacharow, 91 NY2d 39, 49 [1997]). "New York courts interfere as little as possible with the freedom of consenting parties to submit disputes to arbitration" (id., at 49-50 [internal quotation marks omitted]). "Any doubts as to whether an issue is arbitrable will be resolved in favor of arbitration" (Smith Barney, 91 NY2d at 49-50).

It is well settled that "[a]n arbitration before a[n established] Beth Din [a rabbinical court] is a valid form of alternate dispute resolution, and therefore a Beth Din, by voluntary agreement of the parties, can resolve contractual disputes" (Herzog v Oberlander, 19 Misc 3d 1113 [A], 2008 WL 880184, *7, 2008 NY Slip Op 50669 [U] [Sup Ct, Kings County 2008] [internal citations and internal quotation marks omitted]). Furthermore, an arbitration before a hand-picked Beth Din, in the form of a Zebla panel, is likewise permissible (see Tal Tours (1996), Inc. v Goldstein, 9 Misc 3d 1117 [A], 2005 WL 2514967, *4, 2005 NY Slip Op 51626 [U] [Sup Ct, Nassau County 2005], affd 34 AD3d 786 [2d Dept 2006]).

CPLR 7501 provides: "A written agreement to submit any controversy thereafter arising or any existing controversy to arbitration is enforceable without regard to the justiciable character of the controversy and confers jurisdiction on the courts of the state to enforce it and to enter judgment on an award. In determining [*9]any matter arising under this article, the court shall not consider whether the claim with respect to which arbitration is sought is tenable, or otherwise pass upon the merits of the dispute."

CPLR 7503 (a) provides, in relevant part: "A party aggrieved by the failure of another to arbitrate may apply for an order compelling arbitration. Where there is no substantial question whether a valid agreement was made or complied with, and the claim sought to be arbitrated is not barred by limitation under subdivision (b) of section 7502 [the statute of limitations], the court shall direct the parties to arbitrate. Where any such question is raised, it shall be tried forthwith in said court (emphasis added).

Upon a motion pursuant to CPLR 7503 (a), "[i]t is for the courts to determine whether the parties agreed to submit their disputes to arbitration, if so, whether the particular dispute comes within the scope of their agreement, and finally whether there has been compliance with any condition precedent to access to the arbitration forum" (Matter of County of Rockland [Primiano Constr. Co.], 51 NY2d 1, 5 [1980]). The Court of Appeals cautioned that the third requirement — "any condition precedent to access to the arbitration forum" — must be sharply distinguished from "procedural stipulations that the parties may have laid down to be observed in the conduct of the arbitration proceeding itself — conditions in arbitration, e.g., limitations of time within which the demand for arbitration must be made, or requirements as to parties on whom or as to the manner in which service of the demand for arbitration shall be made" (id. at 8 [emphasis added]). Thus, "questions as to whether there has been compliance with such procedural regulations and, if not, what the consequences shall be, are for resolution by the arbitrator as incidental to the conduct of the arbitration proceeding" (id.; see also Matter of Town of Greenburgh, 125 AD2d 315, 316 [2d Dept 1986]). The Court of Appeals further elaborated on this distinction: "Whether the particular requirement falls within the jurisdiction of the courts or of the arbitrators depends on its substance and the function it is properly perceived as playing — whether it is in essence a prerequisite to entry into the arbitration process or a procedural prescription for the management of that process. Under the first heading will come provisions which in point of time are intended to be preliminary to the institution of any arbitration proceeding and in a precise sense are unrelated to it, e.g., a requirement that before any demand for arbitration can be made the dispute between the parties be referred to the architect or to the partnership — conditions precedent' in the literal meaning of that term. Under the second heading will come provisions relating to the conduct of the arbitration proceeding itself, i.e., requirements or conditions in arbitration, e.g., that the demand be made within a specified [*10]time, or be served in a specified manner or on specified persons.

(Matter of County of Rockland, 51 NY2d at 9 [emphasis added]).

While neither party herein signed the other's arbitration agreement, they each signed and delivered the form arbitration agreement, prepared by Rabbinical Judge Gobioff, in which they each consented to the same three-member rabbinical court and to the same issues to be arbitrated, thus indicating "an express manifestation by each side to have disputes resolved by arbitration" (Matter of Lory Fabrics, Inc. [Dress Rehearsal, Inc.], 78 AD2d 262, 269 [1st Dept 1980]). Furthermore, Schwimmer's active participation in the arbitration process, including (1) his obtaining summons from the Rabbinical Court before commencing the instant action, (2) his signing and delivering an arbitration agreement on the day when his reply appellate brief was due, and (3) his cover note to Rabbinical Judge Gobioff in which he stated that he signed his arbitration agreement in order to compel Welz to arbitrate, manifests to this court a strong preference clearly inconsistent with his present effort to avoid arbitration (see Greenwald v Greenwald, 304 AD2d 790, 791 [2d Dept 2003]).

The issue of whether Welz should have delivered his signed arbitration agreement to Rabbinical Judge Gobioff, rather than to Yekusiel Zalmaen Graus, one of the Zebla rabbinical judges, is a condition in arbitration, not a condition precedent to arbitration, because neither Judge Gobioff's February 21st order nor Schwimmer's conditions specified that Welz must deliver his signed arbitration agreement to Judge Gobioff within a 30-day period. As such, this is "a question exclusively within the province of the arbitrator" (Matter of Board of Educ. of Oneonta City School Dist. [Moore], 229 AD2d 888, 889 [3d Dept 1996]; see Matter of County of Rockland, 51 NY2d at 9, n 2).

The other issue for the arbitrator to determine is whether it was proper for Schwimmer not to provide a copy of his signed arbitration agreement to the Zebla panel, but to deposit his signed arbitration agreement with Rabbinical Judge Gobioff, even though "[t]he signed arbitration agreements are supposed to be sent to the panel hearing the arbitration, not the referring panel" (David Samuel Graus Aff., ¶ 2).[FN9]

Thus, the court finds that there is no substantial question that both Schwimmer and Welz entered into a valid written agreement to arbitrate when they each timely signed and delivered (albeit to the different individuals) their respective agreements to arbitrate. It is within the province of the Zebla rabbinical court to pass upon the two issues identified by the court above to establish the parties' compliance with the Jewish law. Accordingly, the court orders arbitration between Schwimmer and Welz with respect to the claims asserted against [*11]Welz in the first cause of action. Inasmuch as the issues to be decided in this arbitration against Welz are in many respects identical to those to be decided against the remaining individual defendants, the first cause of action insofar as asserted against them is also stayed pending the arbitration of Schwimmer's claims against Welz (see Estate of Castellone v JP Morgan Chase Bank, N.A., 60 AD3d 621 [2d Dept 2009]).

Although parties to litigation which are not parties to an agreement to arbitrate generally cannot be compelled to arbitrate against their will, here, all of the individual defendants, members of the Board represented by Welz, who were not originally joined as parties, have affirmatively moved to compel arbitration of the issues, as to which the Appellate Division has confirmed they are necessary parties. The corporate defendant, Keren Habinyan Hachudosh D'Rabeinu Yoel, has also expressed its willingness to be bound by the determination of the rabbinical arbitration tribunal. Therefore, the court directs that arbitration shall proceed as to all parties with respect to the first cause of action of the amended complaint, seeking a declaratory judgment regarding the composition of the Board of Trustees and management and control of UTA-BP, and as to the fourth cause of action against Keren Habinyan Hachudosh D'Rabeinu Yoel for an accounting and imposition of a constructive trust. Where it is clear that parties have affirmatively and unequivocally agreed to arbitrate a dispute, arbitration may be compelled (Matter of Waldron, 61 NY2d 181, 183 [1984]; God's Battalion of Prayer Pentecostal Church, Inc. v Miele Assoc., LLP, 10 AD3d 671, 672 [2d Dept 2004]).

The remaining causes of action against Welz, such as the declaration of the parties' rights with respect to Welz's employment (the second cause of action), an accounting by Welz to UTA-BP (the third cause of action), and the alleged conversion and misappropriation of UTA-BP's assets by Welz (the fifth and sixth causes of action, respectively), may be beyond the scope of the arbitration agreement. Nevertheless, the determination of the issues in arbitration predominates in the instant action and may either dispose of these related claims or narrow the differences that remain in the action so as "to relieve the courts of an unnecessary burden and to give some impetus to the policy favoring speedy resolution of arbitrable controversies" (Crawford v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 35 NY2d 291, 299 [1974]). Therefore, that branch of the individual defendants' motion which seeks to compel arbitration is granted in all respects, and the instant action is stayed against them with respect to the first, second, third, fifth, and sixth causes of action. The remainder of the individual defendants' motion is denied as moot.

Since the corporate defendant's counsel advised the court in writing that the corporate defendant is prepared to voluntarily submit the issues concerning it to arbitration if the court ordered the individual defendants to arbitrate this matter, arbitration is also ordered with respect to the first and fourth causes of action against the corporate defendant, and the instant [*12]action is so stayed.[FN10]

CONCLUSION

That branch of the motion of the individual defendants to stay this action insofar as asserted against them and to compel arbitration before the Zebla rabbinical court, consisting of Yitzchok Chaim Zeltenreich, Yekusiel Zalmen Graus, and Mordechai Babad, is granted.

Based on the written representation to the court by counsel to the corporate defendant, that branch of the motion of the corporate defendant to stay this action insofar as asserted against it and to compel arbitration before the same Zebla rabbinical court is also granted.

The alternative relief requested in each of the defendants' motions, pursuant to CPLR 3211 (a) (3) and (7), is denied as moot.

The foregoing constitutes the decision and order of the court.

E N T E R,

J. S. C. Footnotes

Footnote 1: In preparing this summary, the court has sought to avoid those issues that could require an evidentiary hearing pursuant to CPLR 7503 (a). With that principle in mind, the court does not address the alternative argument in favor of arbitration advanced by Welz, that of the binding effect of the arbitration provisions contained in the so-called "By-Laws of the School System," in light of Schwimmer's objection to their authenticity in general and their applicability to UTA-BP in particular (Schwimmer Aff., ¶¶ 25-26).

Footnote 2: The court notes that the evidence submitted by the parties on the instant motions primarily consists of documents which have been translated from Hebrew or Yiddish into English and that no objections have been raised with respect to said translations.

Footnote 3: Incorrectly spelled as "Zalmen Groez" in the translation.

Footnote 4: Although the defendants did not appeal this portion of the court's ruling, they now challenge it, by pointing to the Amended Certificate of Incorporation of UTA-BP of April 7, 2005, which provided for Schwimmer to serve only a one-year term and failed to expressly state that he could continue to serve until his successor was elected (Fortuna Reply Aff, ¶¶ 24-25). The subject Amended Certificate of Incorporation, however, expressly perpetuates (in ¶ 5) the effectiveness of all of the remaining terms of the original Certificate, which provides (in ¶ 10) that a trustee shall serve his term "until his successor shall be elected." This is consistent with Not-for-Profit Corporation Law § 703 (c), which likewise provides that "[e]ach director shall hold office until the expiration of the term for which he is elected or appointed, and until his successor has been elected or appointed and qualified" (emphasis added). Thus, the court adheres to its prior ruling that Schwimmer has standing to initiate this action.

Footnote 5: Incorrectly spelled as "Gabayof" in the translation.

Footnote 6: Judge Gobioff's subsequent attempt to recharacterize the effect of the February 21st order as a mere advice to Schwimmer and Welz as to how they could come to an agreement to arbitrate if they voluntarily chose to do so (Gobioff Aff., ¶ 10), is irrelevant because each party has complied with that order by signing and delivering the arbitration agreement prepared by Judge Gobioff.

Footnote 7: The "4 times per month" condition is taken from Judge Gobioff's February 21st order. However, Schwimmer's 30-day signing requirement is not mentioned in the February 21st order.

Footnote 8: David Samuel Graus is the secretary to, and a son of, Yekusiel Zalmaen Graus. The elder Graus has not provided an affirmation to the court.

Footnote 9: Osher Gruber, Welz's rabbinical attorney, likewise affirms that "Welz was under no obligation to provide a copy of the signed arbitration agreement to the Rabbinical Court . . . as it is customary for the signed arbitration agreement to be sent to the panel hearing the dispute, not the panel that referred the dispute" (Gruber Reply Aff., ¶ 9).

Footnote 10: The fourth cause of action also asserts a claim against XYZ Corp., which Schwimmer characterizes as "an entity believed to own real property in the vicinity of Otisville, New York, the true name of which is unknown to Plaintiff." It does not appear that such entity has been served with the complaint, nor has it appeared in this action. The stay of this action against XYZ Corp. is also appropriate at this time. If and when XYZ Corp. is properly identified and is served with the complaint, the propriety of the stay against that entity may be revisited.