Matter of Snowhite v Ashkenazi

[*1] Matter of Snowhite v Ashkenazi 2012 NY Slip Op 51863(U) Decided on September 24, 2012 Supreme Court, Kings County Lewis, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 24, 2012
Supreme Court, Kings County

In the Matter of the Application of Jerry Snowhite by Hannah Bloch, Attorney-in-Fact, , Petitioner,

against

Bithya Ashkenazi, a/k/a Rahmah Bithya Carciente Ashkenazi, Respondent.



7671/11



Plaintiff Attorney: Adam Zoldessy PC

Defense Attorney: AXA Equitable Life Insurance Pro se

Christopher Young - Pro se

State of Pennsylvania - Pro se

Yvonne Lewis, J.

The Petitioner, Jerry Snowhite, moves, via his Attorney-in-Fact, Hannah Bloch, by Notice of Petition pursuant to CPLR § 7510 to confirm the award of the Rabbinical Court Beth Joseph ("Rabbinical Court") dated August 19, 2010, awarding the Petitioner interest in real property allegedly owned by the Petitioner and the Respondent and directing that a Judgment be entered. The Respondent, Bithya Ashkenazi, by her attorney, 1) cross moves to dismiss the proceeding or, in the alternative, vacate the award of the Rabbinical Court and 2) responds in opposition to the Petition to Confirm the Award.

The properties known as "Apartment No. 1" in the building located at 402 Mordechai Elkachi Street, Jerusalem, Israel and 28 W. 37th Street ("28 Tudor Terrace"), Brooklyn, New York are the subject of this proceeding. The Petitioner argues that Mr. Snowhite and Ms. Ashkenazi had a dispute surrounding both properties. In or around August 2010, Mr. Snowhite, represented by Ms. Bloch, and Ms. Ashkenazi signed an Arbitration Agreement and submitted their dispute to the Rabbinical Court. On August 19, 2010, the Rabbinical Court rendered the following Judgment: "(A) The Plaintiff is entitled to one third of the value of the house, after deduction of the mortgage. The Respondent may choose between paying this sum to the Plaintiff or selling the house and dividing the money according to this formula. Should the parties not agree on the value of the house, the Rabbinical Court will appoint an expert [assessor]; (B) The apartment belongs to the Plaintiff and the Respondent in equal portions, and shall be registered in both their names. Until the parties arrange matters between themselves, they shall rent out the apartment at market rates; (C) The other claims of the parties were rejected; (D) Should there be any doubt as to this judgment, the matter shall be decided solely by the Rabbinical Court."

In her cross-motion, Ms. Ashkenazi disputes that Mr. Snowhite ever executed the Power of Attorney to Hannah Bloch. She argues that the Award should be vacated [*2]because it is (i) irrational and (ii) the Rabbinical Court violated her procedural rights under Article 75. She notes that the notary public's name, number, and expiration date on the Durable General Power of Attorney is illegible; Mr. Snowhite's name was misspelled as "Snowwhite" and his signature is substantially different from previous signatures on other documents. Ms. Ashkenazi also avers that Mr. Snowhite's signature or initials do not appear on the first page of the Durable Power of Attorney designating Ms. Bloch as the recipient of the Power of Attorney. She asserts that Ms. Bloch has neither produced an original copy of the form nor has she provided a reason as to why an original copy was not produced. Ms. Ashkenazi takes the position that Ms. Bloch was not acting on behalf of Mr. Snowhite's best interests, but rather her own interests.

Ms. Ashkenazi, by her attorney, seeks to vacate the Award on the grounds that it is irrational: (1) in awarding Ms. Bloch a one-third interest in the Tudor House, because the Rabbinical Court disregarded the deed under which Ms. Ashkenazi was the sole owner of 28 Tudor Terrace, albeit in trust for Mr. Snowhite and Ms. Ashkenazi's daughter, Hindella Snowhite Lambrozo; (2) that the Rabbinical Court should not have acknowledged Ms. Bloch as Mr. Snowhite's Attorney-in-Fact because of the facially deficient Durable Power of Attorney; (3) that the Rabbinical Court allowed Ms. Bloch to present her case without having to submit any corroboration that Mr. Snowhite actually signed the Durable Power of Attorney and (4) that the arbitrators committed prejudicial misconduct by: (a) permitting Bloch to present the petitioner's case without any involvement or appearance by him; (b) preventing Ms. Ashkenazi and her Rabbinical Advocate, Rabbi Shmuel Fried, from hearing Mr. Snowhite present his own case nor allowing a cross-examination; (c) allowing two of three Rabbinic Judges to conduct an ex-parte visit to the Petitioner without prior knowledge of the Respondent; and (d) preventing Respondent from presenting her counterclaims and defenses.

The Petitioner argues that Ms. Ashkenazi's motion to vacate the Award is time-barred pursuant to CPLR § 7511(a) because the proceeding to the arbitration award was made more than 90 days after delivery of the award. ( See Babio v. Westchester County Dept. of Correction, 70 AD3d 683, 684, 892 N.Y.S.2d 878 [2nd Dept. 2010]; McRae v. New York City Transit Auth., 39 AD3d 861, 832 N.Y.S.2d 824 [2nd Dept. 2007]; Pender v. New York State Office of Mental Retardation & Developmental Disabilities, 27 AD3d 756, 810 N.Y.S.2d 920 [2nd Dept. 2006]. Additionally, Ms. Bloch argues that Ms. Ashkenazi did not deny or dispute that she submitted to the Rabbinical Court's jurisdiction and formally accepted its authority. The Petitioner, via Rabbi Eliezer Savitsky's affirmation, denies that there was an ex-parte visit conducted by two of the three Rabbinical Judges. The Petitioner also provided a letter dated December 1, 2011 and signed by the three Rabbinical Judges, that neither of them met with Mr. Snowhite separately. Additionally, the Petitioner asserts that Ms. Ashkenazi and Rabbi Shmuel Fried, had an opportunity to challenge the authenticity of the Durable Power of Attorney during the hearing before the Beit Din and chose not to challenge it.

The Petitioner also provided an affidavit from Roni Shoyfer, the notary public who witnessed Mr. Snowhite execute the Durable General Power of Attorney. Although Mr. Shoyfer does not specifically recall Mr. Snowhite executing the Durable Power of Attorney, he acknowledges that the notary stamp and signature belong to him and, based on long-term custom and practice, Mr. Snowhite and Ms. Bloch presented valid identification, and the misspelling of Mr. Snowhite's name was an inadvertent error. The Petitioner also denies Ms. Ashkenazi's claim that his interest in 28 Tudor Terrace was signed over to Ms. Ashkenazi. He further denies any agreement that the house would be signed over to their daughter. The Petitioner questions Ms. Ashkenazi's inability to locate the letter, challenging the validity of her interest in 28 Tudor Terrace.

In her reply, Ms. Ashkenazi further asserts that there was no basis for the Rabbinical Court to award any interest in 28 Tudor Terrace to Ms. Bloch. She maintains [*3]that the Rabbinical Court advised her to hold off presenting her counterclaims and defenses, but she was never afforded the opportunity and that she was not given the opportunity to confront and cross-examine Mr. Snowhite. Ms. Ashkenazi concludes that since there are factual issues before the Court, the Court should resolve the issues through an evidentiary hearing.

It is well established that judicial confirmation of an arbitration award is a pre-requisite for its entry as a judgment. CPLR § 7514(a). Pursuant to CPLR § 7511(a), a party may make an application to vacate or modify an arbitration award within ninety days after its delivery to him. The losing party does, however, have the option to forgo an application to vacate or modify and oppose the winning party's confirmation of the award (Compare Edelstein v. Greisman, 23 Misc 3d 1115(A), 885 N.Y.S.2d 711 (Sup. Ct. 2009) aff'd, 67 AD3d 796, 888 N.Y.S.2d 179 [2nd Dept. 2009]; Brentnall v. Nationwide Mut. Ins. Co., 194 AD2d 537, 538, 598 N.Y.S.2d 315 [2nd Dept. 1993]; State Farm Mut. Auto. Ins. Co. v. Fireman's Fund Ins. Co., 121 AD2d 529, 504 N.Y.S.2d 24[2nd Dept. 1986], and Alexander, Practice Commentary, McKinney's Cons Laws of NY, Book 7B, Civil Practice Law and Rules § 7510).

In the instant case, Ms. Ashkenazi asserts a violation of her due process rights under CPLR § 7506(c) and has asked this court to vacate the award as a whole or direct a hearing to resolve factual issues. Ms. Ashkenazi has timely opposed the Petitioner's confirmation of the arbitration award. She raised an objection during the process of the arbitration by expressing her concerns regarding the Durable Power of Attorney and requesting that Mr. Snowhite appear at the arbitration hearing to present his own testimony. The Rabbinical Judges instructed Ms. Ashkenazi that her claims would be heard after they conducted a visit with Mr. Snowhite. The Rabbinical Court issued the award without allowing Ms. Ashkenazi to present evidence that was material to the issuance of the award. The Petitioner does not dispute the fact that Ms. Ashkenazi did not have an opportunity to present her case.

"An award made after a consensual arbitration may be vacated by a court pursuant to CPLR 7511 (b) (1) (iii) on only three narrow grounds: if it is clearly violative of a strong public policy, if it is totally or completely irrational, or if it manifestly exceeds a specific, enumerated limitation on the arbitrator's power (see Matter of Erin Constr. & Dev. Co., Inc. v Meltzer, 58 AD3d 729, 729 [2009]; see also Matter of United Fedn. of Teachers, Local 2, AFT, AFL-CIO v Board of Educ. of City School Dist. of City of NY, 1 NY3d 72, 79 [2003]; Matter of Board of Educ. of Arlington Cent. School Dist. v Arlington Teachers Assn., 78 NY2d 33, 37 [1991]; Cifuentes v Rose & Thistle, Ltd., 32 AD3d 816 [2006]; Matter of Rockland County Bd. of Coop. Educ. Servs. v BOCES Staff Assn., 308 AD2d 452, 453 [2003]). Even if the arbitrator misapplies substantive rules of law or makes an error of fact, unless one of the three narrow grounds applies in the particular case, the award will not be vacated pursuant to CPLR 7511 (b) (1) (iii) as exceeding the arbitrator's power (see Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471, 479-480 [2006]; Matter of Silverman [Benmor Coats], 61 NY2d 299, 308 [1984]; Matter of Sprinzen [Nomberg], 46 NY2d 623, 629 [1979]). "An arbitrator is not bound by principles of substantive law or rules of evidence, and may do justice and apply his or her own sense of law and equity to the facts as he or she finds them to be" (Matter of Erin Constr. & Dev. Co., Inc. v Meltzer, 58 AD3d 729, 730 [2009]; see Matter of Silverman [Benmor Coats], 61 NY2d at 308; Matter of MBNA Am. Bank, N.A. v Karathanos, 65 AD3d 688, 689 [2009])." New York Cent. Lines, LLC v. Vitale, 82 AD3d 1244, 1244, 919 N.Y.S.2d 856 [2nd Dept. 2011].

Not allowing Ms. Ashkenazi the opportunity to be heard, to present evidence, or to cross witnesses is a violation of her due process rights pursuant to CPLR § 7506(c), and falls under the auspices of prejudicial misconduct.(See Prof'l Staff Cong./City Univ. of New York v. Bd. of Higher Ed. of City of New York, 39 NY2d 319, [*4]323, 347 N.E.2d 918 (1976) holding that failure to hear pertinent and material evidence is prejudicial misconduct, provided that the evidence is not excluded by the agreement itself; (Bernstein v. Mitgang, 242 AD2d 328, 661 N.Y.S.2d 253 (2nd Dept. 1997), holding that an arbitrators award may be vacated for prejudicial misconduct where there is refusal to hear pertinent and material evidence).

Ms. Ashkenazi alleges that Ms. Bloch never produced Mr. Snowhite at the arbitration hearings, nor did the Rabbinical Court require his presence at the hearings. And while this court notes that at any time, the respondent could have issued a subpoena to compel Mr. Snowhite's presence at the hearing, even absent this issue, Ms. Ashkenazi was entitled to be heard and allowed to present evidence. The Supreme Court, Appellate Division Second Department has previously held that failure to observe statutory procedure is prejudicial. (Mikel v. Scharf, 85 AD2d 604, 444 N.Y.S.2d 690 (2nd Dept. 1981).

The award is irrational if there is no proof to justify it. (New York Cent. Lines, LLC v. Vitale, 82 AD3d 1244, 919 N.Y.S.2d 856 (2nd Dept. 2011) (quoting Matter of Peckerman v. D & D Assoc., 165 AD2d 289, 296 (1st Dept. 1991)). In the case at bar, only the Petitioner's side was presented before the Rabbinical Court. The Respondent has demonstrated that she was denied the right to a full hearing, thus allowing vacatur of the award. Having considered all of the above arguments, the Court finds no prejudice to the Petitioner and hereby grants the Respondent's cross-motion to vacate the award.

This constitutes the decision and order of the court.

E N T E R FORTHWITH

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yvonne lewis, J.S.C.