final 770 appeal 2010

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PRELIMINARY STATEMENT

This appeal arises from a case concerning real property located on Eastern

Parkway in Brooklyn, specifically 770 and 784-788 Eastern Parkway. Both the

lower court and this Court have held that Respondents Agudas Chassidei Chabad

of United States (Agudas) and Merkos LInyonei Chinuch, Inc. (Merkos) have

all rights in these properties. Yet, Agudas and Merkos remain without possession

of a significant portion of their own property (the Synagogue Space or the

Premises).

There are three critical facts that set the stage for this appeal. First, the

lower court (Harkavy, J.) explicitly held that Appellant Congregation Lubavitch,

Inc. (CLI) was in possession of the Synagogue Space.1

He wrote:

The evidence in this case also demonstrates that CLI was and

is in possession of the synagogue space at 770 and 784-788

Eastern Parkway to the exclusion of Merkos and Agudas, and

that Merkos and Agudas have established entitlement to

possession of that space.

(R. 81-82) This Court affirmed that decision, stating, the evidence was sufficient

to establish CLIs occupancy of the premises to the exclusion of the plaintiffs.

(R. 89)

1The lower court previously held that Agudas and Merkos are the owners and have all rights to

the property located at 770 and 784-88 Eastern Parkway, including the synagogue space located

therein. (R. 371-382)

asimovrants.blogspot.com

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Second, the lower courts judgment (the Judgment), as affirmed by this

Court, unequivocally directed CLI to deliver possession of the Synagogue

Space to Agudas and Merkos, the true owners of the property. (R. 83) Third, CLI

has never delivered (or purported to deliver) the Synagogue Space to Merkos and

Agudas. Those acting in concert with CLI admit that they remain in possession to

this day. (R. 145-147)

How does one explain this state of affairs? It is because CLI, along with

individuals and a Congregation that are one and the same as CLI, have used (and

abused) the courts to avoid giving possession of the Synagogue Space to its

rightful owners. To date, Appellants have avoided the consequences of the

Judgment, as well as this Courts prior determination, by identifying itself one way

at one point in time, and then taking a contradictory position later, depending on

the exigencies of the immediate situation. The result has been a monumental

injustice, as Agudas and Merkos have been kept at bay and forbidden from the use,

occupancy and enjoyment of what is indisputably their property.

After years of successful gamesmanship, CLIs abuse of the system

seemingly came to an end when the lower court recognized Appellants sleight-of-

hand for what it is, and granted Agudas and Merkos the proper and just relief --

possession and control of the property that is undeniably theirs but which has been


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used and occupied to their exclusion. The instant appeal is nothing less than a

request that this Court sanction more years of abuse of the legal system by

allowing Appellants gamesmanship to continue unabated. Agudas and Merkos

respectfully ask this Court to reject that effort, as did the lower court, and affirm

the lower courts determinations, finally putting an end to this regrettable and

monumentally unjust state of affairs.

COUNTER-STATEMENT OF QUESTIONS PRESENTED

1. Did the lower court properly amend the caption and Judgment to add

the Congregation and the Gabboim as parties to the action?

Yes. The lower court properly amended the caption and Judgment to reflect

the factual determinations made in the Judgment and affirmed by this Court on

appeal, that the Congregation and CLI are one and the same, represented by the

Gabboim, and that they were absent from the action in name only.

2. Can Appellants appeal the lower courts decision to hold in abeyance

the motion for sanctions brought by Agudas and Merkos?

No. A decision to hold a motion in abeyance is not ripe for appellate review.

3. Did the lower court properly deny Appellants cross-motions for

sanctions?

Yes. The lower court properly denied the cross-motion which was devoid of

all merit.


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COUNTER-STATEMENT OF FACTS

Plaintiff-Respondent Agudas is a corporation formed under the religious

corporation law of New York in 1940 for the purposes of carrying out the goals of

the Lubavitch Chasidic movement.(R. 321, 67-68) It is the umbrella organization

for the worldwide Lubavitch movement through which the leadership of the

movement historically operated. (Id.) The Agudas certificate of incorporation

provides that one of the corporations purposes is, to establish, maintain and

conduct a place of worship in accordance with the Chasidic ritual for its

members, their families and friends and to acquire real and personal property to

house its activities. (R.187) In accordance therewith, in 1940, Agudas purchased

the property at 770 Eastern Parkway, Brooklyn, New York. (R. 75) This property

became the home of the central synagogue of the Lubavitch movement as well as

the movements worldwide headquarters. (R. 67, 75) As previously established by

the court below (R. 77) and affirmed by this Court (R. 88), Agudas has title to, and

is thus the fee owner of, the property located at 770 Eastern Parkway. (R. 74-75,

76-77)

Plaintiff-Respondent Merkos is a New York not-for-profit corporation that

was formed in 1942. (R. 187-188) Merkos has, since its inception, operated as the

education arm of the Chabad-Lubavitch Chasidic movement with over 2,500


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affiliated centers in more than 65 countries. (Id.) These centers provide an array of

services in their respective communities, ranging from, but not limited to, schools,

adult education, youth clubs, synagogues and campus activities. (Id.) Merkos also

maintains it own publishing division which disseminates educational and religious

books and other printed materials. (Id.) As previously established by the court

below (R. 77) and affirmed by this Court (R. 88), Merkos has title to, and is the fee

owner of, the premises known as 784 Eastern Parkway a/k/a 784-788 Eastern

Parkway, Brooklyn, New York. (R.75-75, 76-77)

770 Eastern Parkway has been, since 1940, the home of the central

synagogue of the worldwide Lubavitch movement (the Synagogue or

Synagogue Space) (R. 75) As a result of expansion efforts, today only a portion

of the Synagogue is physically situated within this address. (R. 76) The balance of

the Synagogue is physically situated within the buildings owned by Merkos (784-

788 Eastern Parkway). (Id.)

The congregation that worshipped at the Synagogue from 1940 -- an

unincorporated religious association -- operated under the name Congregation

Lubavitch Agudas Chassidei Chabad. (R. 91) Nevertheless, in 2004, an entity

calling itself Congregation Lubavitch, Inc. (CLI) appeared in this action, (an action

that was originally commenced by Merkos and concerned the removal of a

commemorative plaque from the outside wall of the Synagogue), and sought to


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intervene on the basis that it (CLI) was a necessary party and had the exclusive

right to determine the merits of the dispute regarding the plaque. (R. 362-370) CLI

sought, inter alia, a declaratory judgment that it had the right to control the

internal affairs of our Synagogue. (R. 369) CLI claimed in papers submitted to the

lower court that the trustees of CLI, and not Merkos (and, impliedly, not Agudas2),

were the only persons entitled to make decisions regarding the affairs, operations

and maintenance of the Synagogue. (R. 362-370)

Merkos denied that CLI has any legal or equitable right, title or interest in or

to its property located at 784-788 Eastern Parkway, or any part thereof, including,

but not limited to, the Synagogue. (R. 1106-1107, 324) However, based on CLIs

claim that it had rights to occupy and control the Synagogue, the lower court

ordered that CLI be joined as a party to the action. (R. 324-325, 373) Agudas, as

the owner of 770 Eastern Parkway (which is home to the other portion of the

Synagogue), was also added to the action at the same time as a necessary and

indispensible party plaintiff. (Id.) Accordingly, a supplemental summons and

amended complaint were served. (R. 325, 1057)

2At the time that CLI sought to intervene, Agudas was not yet a party to the action.


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A. The Court Proceedings Below

As amended, the action sought a judicial determination with respect to

Merkos rights, as well as the rights of Agudas, to the Premises, and in particular,

to the Synagogue. (R. 206) This is because CLI had intervened in the action by

claiming that it had rights superior to those of Merkos and Agudas, with respect to

the operation and control of the Synagogue.(R. 199)

In an order and judgment dated March 13, 2006, the lower court (Harkavy,

J.) granted Respondents cross-motion for summary judgment, finding,inter alia,

that Merkos and Agudas were the fee owners of the Premises, and that CLI has no

right, title, or interest in the Premises. (R. 371-382) Based on that order,

Respondents then sought to have CLI ejected from the Premises. A bench trial was

ordered to determine, whether Merkos and Agudas, as owners, may eject CLI and

the congregation operating the synagogue from [the Premises]. (R. 77)

Knowing that they were on the brink of losing possession and control of the

Synagogue, however, CLI abandoned its earlier position -- used to justify its

intervention -- that it was the Congregation and had the right to control the

Premises. Instead, CLI argued the exact opposite -- that it is not the Congregation

and that it does not occupy the Premises. (R. 78) Justice Harkavy noted this about-

face in the Judgment: CLI did not then contend, as it does now, that it is only a


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management company, separate and distinct from the congregation/synagogue

itself. (R. 79)

Specifically, at trial, CLI put forth the following factual arguments: (i) that it

does not occupy the space; (ii) that it does not control the space; (iii) that it is a

mere shell corporation; (iv) that the unincorporated Congregation controlled the

Premises, not CLI; and (v) that it was merely a management company for the

Premises. (R. 78-80) Despite its efforts, however, CLI could not avoid the reality

that CLI and the Congregation are one and the same and that CLI had intervened in

the case on that basis. (R. 79-82) Based on the evidence adduced at trial, Justice

Harkavy found, among other things, as follows:

The evidence in this case establishes that the Congregation, by the

Gabboim3

acted and continue to act through CLI. The evidence in

this case also demonstrates that CLI was and is in possession of the

synagogue space at 770 and 784-788 Eastern Parkway to the

exclusion of Merkos and Agudas, and that Merkos and Agudas

have established entitlement to possession of that space.

(R. 81-82)

Justice Harkavy addressed CLIs contentions and found CLIs revisionist

claim -- that it is different from the Gabboim and Congregation -- not credible,

flatly contradicted by the evidence, or simply belied by the evidence to the

3Gabbai is a Hebrew word for the individuals who are elected to manage and run a synagogue.

(R. 286-287) The plural of Gabbai in Hebrew is Gabboim.


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contrary. (R. 79-80) Simply put, Justice Harkavy saw CLIs assertion concerning

its true identity to be nothing more than a shell game. Justice Harkavy then granted

Agudas and Merkos an order of ejectment against CLI, the Gabboim and the

Congregation (the Judgment) (R. 74-86) Specifically, the Judgment awarded

Agudas and Merkos, immediate possession of the Premises, and required that

CLI, the Gabboim and the Congregation deliver immediate possession of same

to Respondents. (R. 82-84)

B. The Appeal of the Judgment

CLI appealed from the Judgment issued by Justice Harkavy. In a decision

dated February 3, 20094

(R. 87) this Court affirmed the Judgment. Specifically,

this Court held:

That there was no dispute the Merkos and Agudas were the owners

in fee of the real property;

CLI had no right to occupy the Premises owned by Merkos and Agudas;

The evidence established CLIs occupancy of the premises to the

exclusion of Merkos and Agudas, warranting Justice Harkavys

Judgment in their favor against CLI.

(R. 87-89)

4This Court issued two decisions in this case on February 3, 2009, one which affirmed as

modified the Judgment, the other which affirmed various other lower court rulings which had

been appealed by CLI. (R. 87-93)


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Along with affirming the Judgment, this Court made one modification. It

deleted from three specifically identified decretal paragraphs references to the

Gabboim and the Congregation. Specifically, this Court ordered as follows:

ORDERED that the judgment is modified, on the law, by deleting

from the third, fifth, and sixth decretal paragraphs thereof the words

which is that congregation presently occupying a portion of 770

and 784-788 Eastern Parkway, Brooklyn, New York, purporting to

be Congregation Lubavitch, whose trustees (gabboim) included, as

of June 13, 1996, Zalman Lipskier, Yehuda Blesofsky, Menachem

Gerlitsky, and Yosef Losh.

(R. 88) The explanation given for the modification was because, neither [the

Gabboim nor Congregation] is a party to this action. (R. 89) With the

modification, this Court then held, as so modified, the judgment is affirmed. (Id.)

Notably, CLI did not appeal this Courts affirmance of the Judgment. Nor

did CLI seek to reargue, modify and/or clarify this Courts decision.

Accordingly, the Judgment, as affirmed, contains the following undisturbed

findings of fact made by Justice Harkavy:

That when CLI moved to intervene in the prior action, the Gabboim

referred to CLI as the Congregation and made reference to the

Synagogue as its synagogue. (R. 79)

In its original Verified Answer, CLI equated itself with the

Congregation. (Id.)

CLIs entire argument in support of its successful application to

intervene was premised on equating itself with the Congregation.

Between May 2005 and December 2006, Zalman Lipskier, who is

both a Gabbai of the Congregation and a Trustee of CLI, submitted


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various affirmations to the court in which he repeatedly equated CLI

with the Congregation and referred to the two interchangeably. (Id.)

Respondents were granted immediate possession of the Premises,

and CLI is required to deliver possession of the Premises to

Respondents. (R. 82-83)

C. The Motion For Contempt

By December, 2009, two years after the date of the Judgment, and nine

months after the Judgment had been affirmed by this Court, CLI had failed to

deliver possession of the Premises, as it was ordered to do. Accordingly,

Respondents sought to have the lower court hold CLI in contempt for its willful

failure to abide by the Courts mandate. (R.61-73)

In response, CLI once again claimed that it does not use, occupy or possess

any physical space in the Premises. (R. 147, 105) But this same specious claim

had been previously made by CLI to this Court, and flatly rejected when this Court

affirmed the Judgment. (See R. 89, the evidence was sufficient to establish CLIs

occupancy of the premises to the exclusion of the plaintiffs.)

After oral argument before the lower court (Bayne, J.)5

(which was held

simultaneous with oral argument on Respondents motion to amend the caption),

the Court declined to rule at that time on the merits of the motion for contempt.

5When Respondents sought contempt against CLI, Justice Harkavy had retired, and the Hon.

Bernadette Bayne, J.S.C. was assigned the case.


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Rather, the lower court decided to hold the motion for contempt in abeyance in

order to give CLI one last chance to comply with the previous order. (R. 13)

D. The Motion to Amend the Caption

In March, 2010, Agudas and Merkos also asked the court below to issue an

order amending the caption to add the Gabboim and the Congregation. This was

based primarily on the factual findings, affirmed by this Court, which clearly

established: (i) that CLI and the Congregation are one and the same and were

represented by the Gabboim, (ii) that the Congregation was the intended subject of

the litigation and participated fully in the litigation and that (iii) therefore, neither

the Gabboim nor the Congregation would be prejudiced by such amendment.

Respondents motion also sought, upon amendment of the caption, to have the

Judgment amended accordingly, to reflect the Gabboim and the Congregation as

named parties. (R. 346-357)

In support of their motion, Agudas and Merkos referred to evidence which

established beyond a doubt that: (i) the Gabboim intervened in the case below in

the name of CLI, but acting on behalf of the Congregation as the real party in

interest, and (ii) the Congregation was at all times fully and fairly represented by

the Gabboim -- who are also the Trustees of CLI -- in all aspects of the

proceedings below. These facts were compellingly demonstrated by the trial

testimony of one of the CLIs Trustees/Gabboim, Zalman Lipskier:


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Q: Congregation Lubavitch, Inc. [CLI] actually came to the Court

and asked to be added as a party of this lawsuit, right?

A: We, the Gabboim, came and asked for it. The name Congregation

Lubavitch, Inc. [CLI] was used in the [court] papers, that is our

legal name, as I told [you].

Q: Was the decision to join this lawsuit made by the Trustees [of

CLI]?

A: It was made by the Gabboim.

Q: Was it made by the Trustees?

A: The Gabboim are also the Trustees of Inc. [CLI].

Q: So it was made by you, by the group of Gabboim with their

Gabbai hat on, or with the Trustee of CLI hat on?A: I dont change hats. The Gabboim made a decision and went

ahead with it. When the lawyer wrote the wording, however,

they wrote it up. They used Inc. [CLI] for the reason

probably because thats our legal name. We didnt come to say

we are Inc. [CLI]. We came to say we are the Gabboim of

a Shul [synagogue] and we want to start a [court] case or

answer on a [court] case.

(R. 389-390)

CLI opposed the motion to amend the caption and Judgment, but failed to

devote one word of its submissions to responding to the evidence proffered by

Respondents. After hearing oral argument, including how CLIs shell game was

being used once again to try to defeat Merkos and Agudass right to possession of

the Premises, the lower court (Bayne, J.) granted the motion in its entirety,

amending both the caption and Judgment to reflect the reality of the case -- that the

Congregation and the Gabboim have undeniably been the real parties in interest


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throughout the litigation and have participated in every aspect of the case by their

proxy and nominee, CLI. (R. 13-14) This Court should affirm the lower courts

clear-eyed determination.

ARGUMENT

I.

THE LOWER COURT PROPERLY GRANTED

THE MOTION TO AMEND THE CAPTION

The court below properly permitted the caption to be amended to add the

Gabboim and the Congregation as parties.

A court may permit amendment of a caption to reflect the name of another

defendant where, as here, the unnamed entities were the subjects of the lawsuit,

knew or should have known of the existence of the litigation against them, and

would not be prejudiced thereby. See Rodriguez v. Dixie N.Y.C., Inc., 26 A.D.3d

199 (1st

Dept. 2006); National Refund and Utility Services, Inc. v. Plummer Realty

Corp., 22 A.D.3d 430 (1st

Dept. 2005); Fink v. Regent Hotel, Ltd., 234 A.D.2d 39

(1st

Dept. 1996) (It is well settled that an application to amend the caption should

be granted where the designated entity was the intended subject of the lawsuit,

knew or should have known of the existence of the litigation against it, and will not

be prejudiced thereby).


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Also relevant is CPLR 3025(c), which provides: The court may permit

pleadings to be amended before or after judgment to conform them to the

evidence and CPLR 1003, which states that parties may be added at any stage

of the action by leave of court. Indeed, amendments to conform the pleadings to

the proof should be freely granted absent prejudice or surprise resulting from the

delay. Bryant v Broadcast Music, Inc., 60 A.D.3d 799, 800 (2d Dept. 2009),

quoting Alomia v New York City Tr. Auth., 292 A.D.2d 403, 406 (2d Dept. 2002).

The determination whether to grant such leave is within the courts discretion, and

the exercise of that discretion will not be lightly disturbed.See Surgical Design

Corp. v Correa, 31 A.D.3d 744 (2d Dept. 2006); Comsewogue Union Free School

Dist. v Allied-Trent Roofing Sys., Inc., 15 A.D.3d 523 (2d Dept. 2005); Leonardi v

City of New York, 294 A.D.2d 408 (2d Dept. 2002).

The evidence in this case established conclusively that the Congregation,

although not named as such, was the intended subject of the lawsuit, knew about

the existence of (indeed, affirmatively sought to participate in) the lawsuit, and

cannot claim any prejudice since it was the party that actually participated in the

action. In short, CLI, the Congregation and the Gabboim, as those terms have been

used in this lawsuit by the Appellants, are one and the same. Precisely because the

record before Justice Bayne amply supported that conclusion, the Order appealed

from was proper and should be affirmed.


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In assessing CLIs arguments on this appeal it should be recalled that CLI

was not initially named as a defendant in the case. Rather, CLI affirmatively came

into court and sought (successfully) to intervene in the action. (R. 253-255). The

trial testimony of Zalman Lipskier, Gabbai/Trustee of the Congregation and CLI,

shows why Justice Harkavy (and Respondents) were justified in believing

throughout this lawsuit that CLI was the Congregation.

As Gabbai Lipskier testified, when CLI appeared in the action, it was

actually the Gabboim who had decided to seek to intervene in this matteron behalf

of the Congregation. But the attorneys for the Gabboim chose to use the name

CLI:

Q: Congregation Lubavitch, Inc. [CLI] actually came to the Court

and asked to be added as a party of this lawsuit, right?

A: We, the Gabboim, came and asked for it. The name

Congregation Lubavitch, Inc. [CLI] was used in the papers, that

is our legal name, as I told [you].

Q: Was the decision to join this lawsuit made by the Trustees

[of CLI]?



A: The Gabboim are also Trustees of, Inc. [CLI].


Gabbai hat on, and with the Trustee of CLI hat on?

A: I dont change hats. The Gabboim made a decision and went

ahead with it. When the lawyer wrote the wording, however,

they wrote it up. They used Inc.[CLI] for the reason probably


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because thats our legal name. We didnt come to say we are Inc.

[CLI]. We came to say we are the Gabboim of a Shul

[synagogue] and we want to start a [court] case or answer on

a [court] case.

(R. 389-390, emphasis added) In short, the Gabboim of the Congregation made a

decision to appear in the case, and did so in the guise of CLI.

Additional testimony from Gabbai Lipskier proves that CLI and the

Congregation are one and the same and that the actions taken in this case, while

nominally in the name of CLI, were in fact taken for CLI and the Congregation:

A: All the Gabboim [of the Congregation] are also officers of CLI

(Congregation Lubavitch, Inc.) because thats part of the its

like one of our tools that the Gabboim use.

(R. 383-384)

A: I do everything as a Gabbai, an elected Gabbai of the people

[the Congregation]. I use CLI for things that I need to. If I need

a hammer to build a wall, I get a hammer. CLI is my hammer. .. . its just a tool. I use CLI for the purpose of banking, etc.

buying and processing donations and etc. and buying items to

get [a] tax deduction.

(R. 385-386)

Q: So the actions that you have taken in this lawsuit, they have

been as representative of the Congregation; is that what

youre saying?

A: As representative of the Congregation, yes.

(R. 387, emphasis added)


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Q: Is it your position that the actions that the Gabbai takes

through CLI are actions that are taken for the benefit of the

Congregation at 770?

A: Obviously, I am using a tool for the Congregation. Its my

tool to function as a Gabboim of the Congregation.

Q: Are the actions that the Gabboim take through CLI, actions

that are taken for the benefit of the Congregation at 770?

A: I would say so, yes.


Q: The Gabboim are the same people that are the trustees of CLI?

A: I said that ten times.

(R. 392)

After trial, Justice Harkavy could not have been clearer in explaining that the

evidence demonstrated that CLI and the Congregation were one and the same, and

that this was a fact that was apparent from the time CLI sought to intervene in the

case:

In their affirmation in support of CLIs motion to intervene,

affirmed December 19, 2004, three of the gabboim (trustees),

Zalman Lipskier, Menachem Gerlitsky and Avram Holzberg,

refer to CLI as the Congregation and make reference to the

synagogue as its synagogue.


Congregation/synagogue. In fact, CLIs entire argument in

support of its motion to intervene was premised uponequating itself with the Congregation, and that as such it was

a necessary and indispensable party.

The various affirmations of Zalman Lipskier, affirmed May 23,


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2005, January 5, 2005, and December 19, 2006, also repeatedly

equate CLI with the Congregation and refer to the two

interchangeably.


These findings by Justice Harkavy are especially important in light of this

Courts earlier decision. As noted above, when Justice Harkavys original decision

was appealed, this Court made changes to three specific decretal paragraphs but

otherwise affirmedJustice Harkavy. (R. 88, as so modified, the judgment is

affirmed.) Where, as here, this Court expressly modified the Judgment on the

law, the consequence is that the factual findings are left undisturbed.See Estate of

Liberman, 6 N.Y.2d 525 (1959); see also CPLR 5712(c). Accordingly, in

reviewing the record of this case, Justice Bayne had before her the evidence

mentioned above as well as the above-quoted findings by Justice Harkavy --

findings that had been affirmed by this Court.

There is still more evidence of record which was before Justice Bayne that

supports the conclusion that CLI and the Congregation are the same and, therefore,

further supports the lower courts granting of Respondents motion to amend. For

instance, CLIs Certificate of Incorporation (which was admitted in evidence at

trial) is about as good a source document as there can be concerning the identity of

CLI. (R. 393-398) It states that CLI is the legal successor to the Congregation. As

explained by Justice Harkavy after trial:


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The Certificate of Incorporation of Congregation Lubavitch,

Inc., states that the corporation was formed to succeed and

continue the work of the unincorporated Orthodox Jewish

religious congregation known as Congregation Lubavitch

and located at 770 Eastern Parkway, Brooklyn, New York.

The Certificate further states that [t]he activities of Congregation

Lubavitch since its founding in 1940 has been and will continue

to be such things as conducting religious services and

organizing religious community gatherings.

The membership of the corporation was listed as the same as

that of the predecessor unincorporated synagogue, namely

those who regularly attend religious services at 770 Eastern

Parkway and who support the synagogue financially.

The certificate also states that five certain individuals, who

were elected by the membership of the synagogue as its duly

authorized gabboim (or trustees), were to be the directors

of the corporation.

(R. 78-79, 279-283)

Accordingly, the Trustees of CLI (who are also the Gabboim of the

Congregation) were at all times representing the interests of the Congregation in

the court below. This was confirmed by the trial testimony of CLIs representative,

Gabbai Lipskier: Q: Are the actions that the Gabboim take through CLI, actions

that are taken for the benefit of the Congregation at 770? A: I would say so,

yes. (R. 388)

Still further evidence also shows that Justice Harkavy and Respondents

correctly believed that the Congregation was part of the action below. For


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example, in a letter (admitted into evidence at trial) signed by Mr. Lipskier, (a

Trustee of CLI and Gabbai of the Congregation), he wrote to the Members of

Congregation Lubavitch 7706

that Respondents were attempting to evict the

congregation led by the gabboim from the shul [synagogue] in 770. Further, he

urged the members to stand steadfast in defending the congregations right to

remain in control of the shul in 770. (R. 399) In yet another letter from the

Gabboim (also admitted into evidence at trial), it is stated that, [w]e [the

Gabboim] will vigorously defend against this action to evict the congregation from

770. (R. 400) Thus, it is uncontestable that the Gabboim and the Congregation

(for which the Gabboim act) always understood that the Congregation was a party

to the lawsuit and that, if CLI lost the case below, it was the Congregation that

would be ejected from the Synagogue.Id.

As noted above, an application to amend the caption should be granted

where the designated entity was the intended subject of the lawsuit, knew or should

have known of the existence of the litigation against it, and will not be prejudiced

thereby. See Fink v. Regent Hotel, Ltd., 234 A.D.2d at 41. The testimony of Gabbai

Lipskier quoted above on pages 16-18 establishes conclusively that the

Congregation was the intended subject of this lawsuit as it was the party that chose

6Congregation Lubavitch 770 is a name the Congregation uses for itself. (R. 317)


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to intervene in the case and did so in the guise of CLI.7

The rest of the evidence

discussed above confirms that CLI and the Congregation are one and the same.

Indeed, as held in the Judgment, and affirmed by this Court, The evidence in this

case establishes that the Congregation, by the Gabboim, acted and continue to act

through CLI. (R. 81)

As to the second issue, the Congregation -- which is the same as CLI --

cannot possibly contend that it did not know about a lawsuit into which it

affirmatively interjected itself. And, its own documents stated that an adverse

decision would mean that the Congregation would be ejected from the Synagogue.

(R. 399-401)

As to the third issue, the Gabboim and Congregation cannot claim prejudice

when they have participated fully in the underlying lawsuit. To the extent it can be

said that the Congregation and Gabboim were absent from the case, they were

absent in name only. Accordingly, there was no prejudice to the Congregation or

the Gabboim when the lower court amended the caption to reflect this undisputable

fact.

7 For example, according to Gabbai Lipskier, the attorneys chose to use the name CLI, because

CLI is the Congregations legal name. (R. 389)


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In sum, the lower court properly granted Respondents request to amend the

caption. See Rodriguez v. Dixie N.Y.C., Inc., 26 A.D.3d 199.8

II.

THE LOWER COURT PROPERLY GRANTED

THE MOTION TO AMEND THE JUDGMENT

Given that the Gabboim and the Congregation knowingly participated in the

entirety of the legal proceedings, for the reasons just explained, it was proper for

Justice Bayne to permit the caption to be amended to reflect that reality. She was

likewise justified in amending the Judgment.

A Judgment may be amended pursuant to CPLR 2001, 5019, as well as

under the inherent power of the court. See Stansky v. Mallon, 133 A.D.2d 392 (2d

Dept. 1987) (Courts have the inherent power to modify their own judgments and

orders when it serves the interests of justice).

8Appellants quote extensively (App. Br. 12-14) from a portion of the transcript of the beginning

of oral argument of the motion, at which time the lower court was probing Respondents counsel

concerning the basis for their motion. It is difficult to know what they believe they will

accomplish by doing so when it is so clear that they have omitted the portions of the transcript in

which counsel explained its position, and obviously to the satisfaction of the court because she

ruled in favor of Respondents.

Even worse, Appellants misrepresent the record when they state on page 15 of their Brief that

Respondents counsel allegedly said that the claims against certain defendants were never

adjudicated when counsel actually said that claims were not adjudicated against them as

defendants. (R. 41:12) That distinction makes all the difference in a situation in which this

Court had focused specifically on which parties were the named defendants.


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While ordinarily, CPLR 5019 contemplates the correction of ministerial

mistakes, even errors of substance are correctable where, as here, there is clear and

compelling support for such change. Woolfalk v. New York City Housing Authority,

36 A.D.3d 444 (1st

Dept. 2007); Siegel, New York Practice, 4th

ed., 420. As

shown above, the record unquestionably supports amendment of the Judgment to

reflect the reality that the Gabboim, in their capacity as representatives of the

Congregation, fully participated in the legal proceedings, in all but name, and did

so by choice.

In addition to the statutory authority, the court below had the inherent

authority to modify the Judgment in the interests of justice.See Stansky v. Mallon,

supra. Here, justice compelled the lower court to modify the Judgment to reflect

the reality of what transpired and avoid prolongation of the shell game that has

been played to great success by the Congregation, Gabboim and CLI. Simply put,

they have had their day in court and there is no need to prolong these proceedings

any further.

Based on the record, upon the caption correctly being amended, the

Judgment was properly amended to conform to the evidence.


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III.

APPELLANTS ARGUMENTS IGNORE THE INDISPUTABLE

EVIDENCE AND ARE WITHOUT MERIT

Sections I and II of this brief discuss the relevant evidence and case law and

establish that Justice Baynes decision was correct. It is no accident that

Appellants brief contains no discussion of the evidence. Appellants undoubtedly

realize that they have no response to the evidence itself; it is irrefutable.

Accordingly, they seek to have the Court focus on extraneous arguments. It is

those arguments to which Agudas and Merkos now turn.

A. Appellants Law of the Case Argument Fails

As just discussed, Agudas and Merkos did not initially name the Gabboim

and the Congregation as defendants because CLI intervened and led them to

believe that the Gabboim, Congregation and CLI were all the same. The absence of

the Congregation and Gabboim as named defendants, however, caused this Court

to delete specific references to the Gabboim and the Congregation in three decretal

paragraphs of the Judgment. The explanation given for the modification was

because, neither [the Gabboim nor Congregation] is a party to this action. (R. 89)

Other than this change, this Court affirmed the Judgment. (R. 88, as so modified,

the judgment is affirmed.)


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This Courts decision, that a judgment could not be entered against parties

not actually named as defendants, was consistent with relevant landlord-tenant law.

See 90 N.Y. Jur.2d Real Property - Possessory Actions 409 (2009) (Omitting an

occupant as defendant will result in not binding that occupant by the judgment.);

see also RPAPL 631 (Where the complaint demands judgment for the

immediate possession of the property, if the property is actually occupied, the

occupant shall be made defendant in the action). The obvious remedy to cover the

parties who had not been formally named as defendants was to formally name

them. That is exactly what Agudas and Merkos did.

According to Appellants, however, because the Gabboim and Congregation

were not initially named as defendants (which, as explained, was due to their own

deception), they cannot now be named as defendants. The argument is wrong

because it is based on a false premise. The premise of CLIs argument is its

contention that this Court supposedly held that the congregation presently

located at 770 Eastern Parkway is not CLI. (App. Br. 18)

There are two responses to this argument. The first is that it is at odds with

this Courts prior holding. Contrary to Appellants contention, this Court said:

The evidence was sufficient to establish CLIs occupancy of the premises to the

exclusion of the plaintiffs . . . . (R. 89)


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Second, Justice Harkavy found CLI and the Congregation to be one and

the same (R. 81); a finding that was affirmed by this Court.

Thus, the law of the case here operated against Appellants. It supported

Justice Baynes decision to permit the complaint to be amended and remedy the

defect that formed the basis for this Courts earlier decision with respect to the

Gabboim and the Congregation not having been formally named.

B. Appellants Rely On Case Law That Is Irrelevant

To The Facts Of This Case

Appellants contend that Smith v. Garo Enterprises, Inc., 60 A.D.3d 751 (2d

Dept. 2009) is controlling case law (App. Br. 22). That decision, however, is not

relevant to the facts of this appeal.

In Smith v. Garo Enterprises, Inc., the Court rejected a request that a

pleading and judgment be amended to add a new party, finding that the plaintiff

was seeking to add entirely new defendants who had not been served. Id. at 752

(A plaintiff may not invoke CPLR 305(c) to proceed against an entirely new

defendant, who was not served.)

Here, the Gabboim and Congregation are hardly entirely new defendants.

Rather, as acknowledged under oath by CLIs own witness, Gabbai Lipskier, as

expressly found by Justice Harkavy, and as affirmed by this Court, [t]he evidence

in this case establishes that the Congregation, by the Gabboim, acted and continue


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to act through CLI. (R. 81) On this point, based on the record (see, e.g. R. 362-

370, 387), there can be no honest dispute and, indeed, none has been raised.

As noted above, CLIs Trustees intervened in the case with the intent that it

was the Gabboim, as representatives of the Congregation, who were intervening

using their legal name CLI. Everything they did during the course of the case

was done as a representative of the Congregation, according to the sworn and

unambiguous testimony of CLIs own witness, Gabbai Lipskier: Q: So the actions

that you have taken in this lawsuit, they have been as representative of the

Congregation, is that what youre saying? A: As representative of the

Congregation, yes. (R. 387)

Moreover, as reflected by their own contemporaneous written

communications, the Gabboim and the Congregation (for which the Gabboim

acted), always understood that if CLI lost the lawsuit, the Gabboim and the

Congregation would be ejected from the Synagogue. (R. 399-401) Thus, unlike

the party that plaintiff sought to add in Smith v. Garo Enterprises, Inc., the

Gabboim and Congregation knowingly and intentionally participated in the

litigation, and fully understood that they would be affected by a judgment of

eviction.

Accordingly, CLIs argument that Smith is somehow controlling, fails.

Smith is simply irrelevant to the facts of the instant matter.


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C. Appellants Laches Argument Is Without Merit

Appellants argue that Respondents (i) failure to add the Gabboim and the

Congregation as parties in 2006, (ii) failure to appeal this Courts affirmance of the

Judgment, and (iii) waiting thirteen months after the affirmance to bring to motion

to amend the caption and Judgment, all violate the doctrine of laches. (App. Br. 28-

30) None of these arguments has merit.

Appellants first argument ignores the facts. What Agudas and Merkos knew

in 2006 is that CLI had affirmatively requested that it be added to this lawsuit on

the ground that it was the party allegedly in possession and control and of the

Synagogue Space. Not only did CLI appear and intervene in the action, but CLI

then proceeded to lead Respondents (and the trial court) to believe that CLI was

the Congregation. Justice Harkavy could not have been clearer in explaining that

the evidence demonstrated that CLI and the Congregation were one and the same.

He said:

In their affirmation in support of CLIs motion to intervene, affirmed

December 19, 2004, three of the gabboim (trustees), Zalman Lipskier,

Menachem Gerlitzky and Avram Holzberg, refer to CLI as the

Congregation and make reference to the synagogue as its

synagogue.


Congregation/synagogue. In fact, CLIs entire argument in support

of its motion to intervene was premised upon equating itself with the


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Congregation, and that as such it was a necessary and indispensable

party.

The various affirmations of Zalman Lipskier, affirmed May 23, 2005,

January 5, 2005, and December 19, 2006, also repeatedly equate CLIwith the Congregation and refer to the two interchangeably.

(R. 79)

There was, accordingly, every reason for Agudas and Merkos (and Justice

Harkavy) to believe that a judgment against CLI would be effective against the

Congregation and Gabboim as well, and that these parties need not be added.

Indeed, the fact that the Judgment was written so as to specifically cover all three

parties, vindicated the Respondents view that the Gabboim and Congregation

were one and the same as CLI and, thus, did not have to be named separately.

Moreover, the Congregation and the Gabboim cannot claim laches when they

were, in any event, participating fully in the lawsuit.

Appellants second argument is that Agudas and Merkos failed to appeal this

Courts decision. The argument makes no sense. Why would Agudas and Merkos

appeal this Courts affirmance of the Judgment of eviction that was in their favor?

Yes, this Court also ordered a change to specific language in three decretal

paragraphs in Justice Harkavys decision. But, as already discussed multiple

times, that decision was based on the fact that the Congregation and the Gabboim


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had not been named formally as parties. It was a defect that could be remedied (as

it now has been) and gave no grounds for appeal.

Appellants third argument is that Agudas and Merkos are barred from

seeking relief against the Gabboim and Congregation because they supposedly did

not do so until thirteen months after this Courts affirmance of the Judgment.

Appellants are wrong about the timeline.

Notice of Entry of this Courts decision was served on May 7, 2009, giving

CLI until June 6, 2009 to appeal the decision. (R. 963) After CLI failed to seek

such relief, Agudas and Merkos then provided CLI time to comply with this

Courts order to deliver possession of the Premises to them. By November, 2009,

when CLI had failed to do so, Respondents served the Judgment on CLI and

prepared to seek contempt. (Id.) Passage of time, without more, does not support a

defense of laches. See Kraker v. Roll, 100 A.D.2d 424 (2d Dept. 1984) (Mere

inaction does not constitute the inequitable conduct that would support a laches

defense) (internal citations omitted).

Moreover, Appellants cannot really expect the Court to take seriously a

contention that CLI, the Gabboim and the Congregation believed that Agudas and

Merkos had given up on their rights concerning the Synagogue Space after years of

litigation to obtain possession of their property. Anyone familiar with the history

of this lawsuit knew that Agudas and Merkos were going to pursue their rights


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further if CLI did not voluntarily deliver possession of the Synagogue Space, as it

was ordered to do. To claim otherwise is to put ones head in the sand.

If Agudas and Merkos are not permitted to pursue their claims against the

Gabboim and Congregation -- the parties that CLI says are the ones in possession

of the Synagogue Space --they will have lost the right to control real property that

the trial court and this Court have held is their undisputed property. The prejudice

and gross inequity of such a result is obviously enormous. Compare that with the

claimed prejudice of the Gabboim, that they expended money in the upkeep of the

Synagogue Space. That prejudice (money) can easily be remedied were the

Court to hold that it is proper to do so (which Agudas and Merkos do not concede

would be proper).9

D. Proposed Pleadings Were Unnecessary

And, In Any Event, Were Served

Appellants argue that the lower court should be reversed because a proposed

amended complaint was not included in Respondents moving papers, citing 84

N.Y. Jur.2d, Pleading, 264 (2010) (App. Br. 30). However, in the very same

9The other claimed prejudice (App. Br. 30) is that some new Gabboim were elected in May

2009 without Agudas and Merkos having formally warned them that they might be the subject of

a lawsuit. Where is the prejudice? Would they not have run for the position of Gabbai had theythought that they might be subject to a lawsuit? If so, there is nothing to stop them from

resigning their positions. But more realistically, anyone familiar with the facts of this lawsuit

should reasonably be considered to be on notice that they risked being the subject of a lawsuit if

CLI did not voluntarily deliver possession of the Synagogue Space. In any event, no affidavit

was submitted below by Appellants on this point.


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N.Y. Jur.2d paragraph relied on by Appellants, the treatise also states that this rule

need not be strictly applied where, for example, the proposed amendment is purely

formal and the parties and the court are advised of the terms of the proposed

pleading. See Id. Moreover, in those cases in which a motion to amend is denied

for lack of a proposed amended pleading, the decision is without prejudice to its

being renewed on papers that include the proposed pleading.See Goldner Trucking

Corp. v. Stoll Packing Corp., 12 A.D.2d 639 (2d Dept. 1960); see also Bridges v.

725 Riverside Drive, Inc., 119 A.D.2d 789 (2d Dept. 1986).

Here, Respondents moving papers made clear the limited nature of the

proposed amendment to the pleadings -- adding the names of the Gabboim and the

Congregation to the caption of the action. Specifically, the Notice of Motion stated

that Agudas and Merkos sought an order, deeming the caption and all prior

proceedings in this action amended nunc pro tunc. (R. 316) Further,

Respondents moving papers explained as follows:

Given that the Gabboim, acting on behalf of the Congregation,

always intended to be the party appearing in the action, at all

times viewed themselves as being involved in the litigation

[a]s representative of the Congregation, understood that they

and the Congregation were subject to being ejected if CLI lost,

and fully participated in all aspects of the case, to the extent itcan be said that the Congregation and Gabboim were absent

from the case, they were absent in name only. In every other

meaningful way, they were present and fully participated in

the lawsuit.


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Accordingly, there can be no prejudice to the Congregation or

the Gabboim by having the caption deemed amended,nunc pro

tunc, to reflect this undisputable fact.

(R. 336)

Because it is clear that Respondents motion sought to add the Gabboim and

the Congregation as named parties to the caption, by having the caption deemed

amended, there was no genuine need to provide proposed amended pleadings, and

the lower court correctly recognized such by granting Respondents motion. In any

event, even ifarguendo a proposed amending pleading was required, it was

provided with Respondents reply papers. (R. 1077)

E. An Affidavit Of Personal Knowledge Of The Facts

Was Submitted By Respondents

Appellants also claim that it was an error for the lower court to grant

Respondents motion because only an attorneys affirmation was submitted in

support of the motion. In support of its argument, Appellants cite Clark v. Foley,

240 A.D.2d 458 (2d Dept. 1997). In that case, however, the issue was not that only

an attorney affirmation was submitted, but that the attorney had no personal

knowledge of the facts, [and] did not persuasively explain why the allegations

of the [proposed] amended complaint were not contained in the original complaint,

nor did the plaintiff provide an affidavit demonstrating the merits of her proposed

amendment. Id. (See also, App. Br. 32-33)


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Clark v. Foley is inapposite to the case at bar. Here, Respondents moving

and reply papers contained an attorneys affirmation which, significantly, was

given by a person with personal knowledge of the events described in the affidavit,

provided a lengthy, detailed explanation for why the Congregation and Gabboim

were not initially named as parties and, why Respondents motion was meritorious

(supported, when necessary, by documentary evidence). (See, generally, R. 319-

340, 943-969) Indeed, the basis for the proposed amendment was the history of the

court proceedings in the case, with the attorney who participated in all of those

proceedings being someone who clearly had personal knowledge of the facts and

circumstances of those proceedings. CLIs assertion is nothing more than a make-

weight argument of no merit.

F. Appellants Due Process Argument Is A Red-Herring

CLI claims that due process considerations required that once joined to the

action, the Gabboim and the Congregation should not have been added to the

Judgment because they never had the opportunity to establish their right to use,

occupy and manage the Central Lubavitcher Synagogue. (App. Br. 37) The fatal

flaw in this argument, however, is that it ignores the reality that the Congregation

and the Gabboim, from day one, orchestrated the motion to intervene (R. 390) and

fully and fairly participated in the litigation via their proxy, CLI. (R. 389-390)


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New York courts recognize that in proper circumstances, although a party

has not been formally named or appeared in an action, the party may nevertheless

be bound by its outcome. See USF&G v. Maggiore, 299 A.D.2d 341 (2d Dept.

2002).

In USF&G v. Maggiore, this Court held that, although two insurance

companies were not named in the summons and complaint, were not served with

process, had not filed answers, and had not filed a motion to intervene, they had

each informally participated in the action and affirmatively sought relief from the

court, thus making them subject to the courts jurisdiction. In the same way, the

Gabboim and the Congregation, having participated in all aspects of the case, may

be bound by the outcome.

In Rene v. Singh, 3 Misc.3d 131(A) (App. Term 2004), the plaintiff, who

was injured at the address 140 6th

Avenue, brought suit, naming Harry Singh d/b/a

Punjab Mobile, and G.A.S.S. % L.K.F. Partners, Ltd. as defendants in the action.

An appearance in the action was made by 140 6th Ave., Inc. i/s/h/a [incorrectly

sued herein as] Harry Singh d/b/a Punjab Mobile, G.A.S.S. i/s/h/a G.A.S.S. %

L.K.F. Partners, Ltd., and L.K.F. Partners, Ltd. i/s/h/a G.A.S.S. % L.K.F. Partners,

Ltd. and litigated the case for three years. After the statute of limitations on the

claim ran, however, Harry Singh d/b/a Punjab Mobile and G.A.S.S. % L.K.F.

Partners, Ltd. moved for summary judgment -- suddenly dropping 140 6th

Ave.,


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Inc. from its papers -- on the grounds that they did not own, manage, maintain or

control the subject premises -- 140 6th

Avenue. The plaintiff cross-moved to have

140 6th

Ave., Inc. added as a defendant, which cross-motion was granted and

affirmed. In doing so, the court recognized that 140 6th

Ave., Inc. had participated

in the case, though under a different name, and should therefore be added to the

caption. See also Rubino v. City of New York, 145 A.D.2d 285 (1st

Dept. 1989)

(When a party participates in a lawsuit on the merits, he indicates his intention to

submit to the court's jurisdiction over the action); Rose Ocko Foundation, Inc. v.

Lebovits, 259 A.D.2d 685, 690 (2d Dept. 1999) (same).

Here, CLI, the Congregation and the Gabboim have used similar

gamesmanship with the courts, changing names when convenient. CLI intervened

in this action claiming that it represented the interests of the Congregation, and the

Trustees of CLI were the only persons entitled to make decisions regarding the

affairs, operations and maintenance of the synagogue. (R. 324) CLIs witness,

Gabbai Lipskier, testified at length that the name CLI was merely a tool of the

Gabboim (R. 383-384), who always acted on behalf of the Congregation, including

in this litigation (R. 387-388), and that the moniker CLI was used in the motion

to intervene by the Gabboim on behalf of the Congregation because it is the legal

name used by the Gabboim and Congregation. (R. 389-390) CLI then proceeded


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to litigate the action as if it were the Congregation and Gabboim, making

arguments on their behalf and even informing members of the Congregation in

writing that Respondents were seeking to evict the Congregation through the

action. (R. 399-401)

Yet, once the litigation was not going their way, a new argument was

advanced that CLI is merely a shell entity with no real presence or control over the

Premises, and is separate and distinct from the Congregation and Gabboim.

In reality, however, the Congregation and Gabboim fully participated in the

action via their nominee, CLI, through judgment and appeal, and cannot now avoid

the consequences of their participation in the litigation.See Rene v. Singh, supra.;

Rose Ocko Foundation, Inc. v. Lebovits, supra. The Congregation and Gabboim

had a full and fair opportunity to raise all of their issues and there is, accordingly,

no reason why on the facts of this case the lower court could not add the Gabboim

and Congregation to the Judgment.

CLI seizes on a single sentence in this Courts decision -- [w]hether [a

community] trust exists in favor of the congregation is not before us, as the

congregation is not a party to the action (R. 93) -- as alleged support for its lack of

due process argument. This is too thin a reed on which to base such argument. The

language merely reflects this Courts determination that, because the Congregation


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and Gabboim were not named parties to the action, the Court would not make a

determination on that appeal regarding their legal rights.See 90 N.Y. Jur.2d Real

Property - Possessory Actions 409 (2009) (Omitting an occupant as defendant

will result in not binding that occupant by the judgment.)

CLIs reliance on Greater New York Export House, Inc. v. Hurtig, 239 A.D.

183 (1st

Dept. 1933) to support its due process argument is misplaced. In that case,

the parties were being added to the judgment in a different capacity than

originally named in the action. (App. Br. 40) Any claim that the individuals who

are the Gabboim were not previously in this case in their capacity as the Gabboim -

- representatives of the Congregation -- is false and belied by the testimony of

CLIs own witness, Gabbai Lipskier:

Q: Was the decision to join this lawsuit made by the Trustees

[of CLI]?



A: The Gabboim are also Trustees of Inc. [CLI]


Gabbai hat on, and with the Trustee of CLI hat on?

A: I dont change hats. The Gabboim made a decision and

went ahead with it. When the lawyer wrote the wording,

however, they wrote it up. They used Inc. [CLI] for thereason probably because thats our legal name. We didnt

come to say we are Inc. [CLI] We came to say we are the

Gabboim of a Shul [synagogue] and we want to start a

case or answer on a case.


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(R. 390) (Emphasis added)

Thus, according to CLIs trial witness, Gabbai Lipskier, the individuals who

make up the Gabboim do not change hats -- i.e., act in a different capacity.

When they act, they act on behalf of the Congregation which, Lipskier confirmed,

is precisely what they did in this litigation, from the very beginning when they

successfully sought to intervene. On the unique facts of this case, there is no honest

and legitimate due process argument.

IV.

NO APPEAL LIES FROM THE LOWER COURTS

DECISION TO HOLD IN ABEYANCE

RESPONDENTS MOTION FOR CONTEMPT

At the same time that Justice Bayne granted Agudass and Merkoss motion

to amend the complaint and the Judgment, she held in abeyance their motion to

find CLI in contempt for failing to surrender the premises as was required by

Justice Harkavys Judgment. (The motion by Plaintiffs to punish by contempt is

held in abeyance. (R. 13)) CLI seeks to have that decision reversed. The request

should be denied because this issue is not ripe for appeal.

Under CPLR 5511, only an aggrieved party may appeal. Justice Bayne

held her decision in abeyance with the result that there is no ruling adverse to CLI.

Indeed, at this point, it is impossible to know in whose favor the decision will be


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on the contempt motion. Because CLI is not an aggrieved party, it does not have

standing to appeal Justice Baynes decision to hold the motion in abeyance.

Likewise, CPLR 5701 provides an enumerated list of determinations from

which an appeal may be taken to the Appellate Decision as of right. A decision to

hold a motion in abeyance is not included as an appealable decision. That is

eminently sensible, as no determination has been made on the merits of the motion.

In effect, appealing now would be the equivalent of appealing a pending motion

that is sub judice.10

Case law further supports that a decision to hold a motion in abeyance is not

appealable. InAcunto v. Stewart Ave. Gardens, LLC, 26 A.D.3d 305 (2d Dept.

2006), the order appealed from did not decide the plaintiff's motion to dismiss the

fifth through ninth affirmative defenses, but instead held it in abeyance pending a

determination by the Workers' Compensation Board. The Second Department held

that holding a motion in abeyance was not appealable as of right.See also

Abrahamsen v. Brockway Glass Co., Inc., 119 A.D.2d 612 (2d Dept. 1986) (The

order holding the underlying motions in abeyance, pending service and receipt of a

report, did not determine those motions and therefore is not appealable as of

right).

10Appellants assertion that the lower courts decision to defer was somehow an attempt to

coerce CLI is unfounded, and Appellants provide no evidence of such.


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This Court should decline to hear this part of the appeal because it is not yet

ripe for appellate review.

V.

THE LOWER COURT PROPERLY DENIED

CLIS REQUEST FOR SANCTIONS

CLI has also appealed from the denial of its cross-motion for sanctions.

(App. Br. 54) The most significant aspect of this argument is that it demonstrates

as clearly as any other part of this appeal how far Appellants will go in making

completely meritless arguments.

CLI sought relief under 22 NYCRR 130-1.1 (Part 130), which provides

sanctions for conduct that is completely without merit in law and cannot be

supported by a reasonable argument for an extension, modification or reversal of

existing law. Id. The determination of whether or not to impose sanctions lies

within the discretion of the trial court. See Maceno v. Dutrevil, 77 A.D.3d 888 (2d

Dept. 2010).

Under the facts of this case, Justice Bayne granted Respondents motion to

amend. For the reasons set forth above, that decision was the correct one and

should be affirmed on appeal. But even were this Court to disagree with Justice

Bayne on the merits, her decision in favor of Agudas and Merkos is sufficient,


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standing alone, to negate any contention that Respondents argument was

completely without merit.

The CPLR gave Appellants the right to appeal Justice Baynes decision

granting the motion to amend. But any reasonable party would have realized that

there is no possible basis for prevailing on an appeal of a denial a Part 130 motion

when the lower court also rules against you on the merits of the underlying motion.

The fact that Appellants included this argument on appeal is as troubling as it is

telling.

Justice Bayne properly exercised her discretion to deny CLIs Part 130

request for sanctions. The appeal of that decision is ludicrous and should be

denied.

CONCLUSION

For the reasons stated above, the order appealed from should be affirmed in

its entirety and the Court should grant such other and further relief as it deems just

and appropriate.

Dated: New York, New York

December 13, 2010


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