Zaks v. Mosdos Chofetz Chaim, Inc. (In re Mosdos Chofetz Chaim Inc.)
| Decision Date | 30 March 2023 |
| Docket Number | 22-CV-3371 (CS) |
| Parties | In re MOSDOS CHOFETZ CHAIM INC., Debtor. v. MOSDOS CHOFETZ CHAIM INC., CHOFETZ CHAIM INC., CONGREGATION RADIN DEVELOPMENT INC., and RABBI ARYEH ZAKS, Appellees. RABBI MAYER ZAKS, Appellant, |
| Court | U.S. District Court — Southern District of New York |
Julie Pechersky Plitt, Oxman Law Group, PLLC Counsel for Appellant
Michael Levine, Levine & Associates, P.C., Tracy Klestadt, Klestadt Winters Jureller Southard & Stevens LLP Counsel for Appellees
The instant appeal concerns the March 23, 2022 Order entered by Judge Robert D. Drain of the United States Bankruptcy Court for the Southern District of New York, finding Rabbi Mayer Zaks (“Appellant”) in contempt of court and imposing compensatory sanctions in the underlying adversary proceeding captioned Congregants of Mosdos Chofetz Chaim Inc. v. Mosdos Chofetz Chaim, Inc., No. 21-BK-7023 (Bankr. S.D.N.Y. 2021). (A-431 to A-434 (“Contempt Order”).)[1]
For the following reasons, the Contempt Order is AFFIRMED.
I assume the parties' familiarity with the underlying proceedings and recite only the facts relevant to the disposition of this matter.[2]
“The instant appeal, like the many that preceded it, is yet another part of a long-running quarrel between two rabbis - brothers, no less - regarding the transfer of real property located at 1-50 Kiryas Radin Drive, Spring Valley, New York 10977 [(the “Property”)].” Zaks, 2022 WL 4387450, at *1. The Contempt Order under appeal stems from Appellant's conduct at an evidentiary hearing held on Appellees' second motion to enforce the Bankruptcy Court's order enjoining Appellant and others from entering onto or remaining on the Property (the “Injunction”).[3] On December 2, 2021, at the first of three hearings on the second enforcement motion, (A-64 to A-282), the Bankruptcy Court found “clear and convincing proof” that Appellant and others continued to violate the Injunction, (id. at 204:25). Nevertheless, the Bankruptcy Court adjourned the hearing to permit them to try to establish the “impossibility defense to contempt.” (Id. at 207:16-18.)
On February 2, 2022, the Bankruptcy Court issued a notice that the continuation of the December hearing would take place on February 7, 2022 via Zoom. (Bankr. ECF No. 161.) On February 6, 2022, Appellant's counsel wrote to the Bankruptcy Court indicating that he was never made aware that the February 7, 2022 hearing had apparently originally been scheduled for February 3, 2022 prior to its adjournment to February 7. (A-285.) Appellant reasoned that because “no prior notice was given whatsoever with regard to an exact adjourned date” at the conclusion of the December 2 hearing or thereafter, due process required “the continued hearing presently set for February 7, 2022 be further adjourned.” (Id.) He also stated that further discovery was required before the hearing could resume. (Id.)
On February 7, after Appellant's counsel requested a last-minute change in the time of the hearing and failed to appear at the scheduled hour, the Court summarized the persistent issues he experienced with Appellant and others also in contempt of the Injunction:
The record is clear that the alleged contemnors here have tried the Court's patience repeatedly throughout this matter. I was reminded of that again in rereading the transcript of the December 2 hearing in which certain alleged contemnors, who had submitted declarations and were required to testify refused to testify until the Court said it would hold them separately in contempt, and the repeated, and I believe willful, technical problems raised by counsel for the alleged contemnors and the alleged contemnors in the taking of their testimony first, including having people in the room besides counsel and the witness; second, in having counsel and the witness testify from one laptop and repeatedly doing it in a way that was inaudible. I believe there had not been one hearing in the litigation here which began in May of 2021 where the alleged contemnors have not asked for an adjournment, and often done so at the last minute, with no basis for it. (A-287 to A-308 at 4:23-5:13.) After the hearing was delayed to ensure Appellant and Appellant's counsel's attendance, the Bankruptcy Court granted Appellant's application to adjourn the hearing to permit Appellant's counsel time to prepare his witnesses. (See id. at 18:8 21.) In doing so, Judge Drain emphasized the following points to Appellant's counsel:
At the March 4, 2022 Zoom hearing, ( )), Appellant testified as a witness, (see id. at 113:9). Immediately before his testimony, his counsel informed Judge Drain that the Sabbath would begin around 5:30 p.m. that night and requested to adjourn the hearing two hours in advance of that. (Id. at 109:14-16). The Bankruptcy Court rejected Appellant's counsel's request, stating, (Id. at 109:17-19.)
Prior to the hearing, Appellant had submitted declarations constituting his direct testimony pursuant to the Bankruptcy Court's procedures. (See id. at 110:14-113:8.) During the hearing, Appellant repeatedly interrupted the proceedings in an attempt to supplement his direct testimony:
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