Sieger v. Union of Orthodox Rabbis of the United States & Canada
New York Supreme Court refuses to dismiss claims against Rabbis participating in a Rabbinical Court

The text of the decision follows -

IA PART 28

Justice Schoenfeld SIEGER v. UNION OF ORTHODOX RABBIS OF THE UNITED STATES AND CANADA, INC. - In this action plaintiff Helen Chayie Sieger asserts fourteen causes of action against defendants the Union of Orthodox Rabbis of the United States and Canada, Inc. a/k/a Agudas Horabonim ("UOR"); Hersh Meir Ginsberg a/k/a Zvi Meir ("Ginsberg "); Aryeh Ralbag ("Ralbag"); Haim Kraus ("Kraus"); Elimelech Zalman Lebowitz ("Lebowitz"); Solomon B. Herbst ("Herbst"); and Beth Din Zedek of America - Ein Moshe ("Beth Din").

Plaintiff asserts the following numbered causes of action against the following defendants:

1. Intentional Infliction of Emotional Distress: Ginsberg, Ralbag, Kraus and Lebowitz;
2. "Absolute" Negligence : Ginsberg;
3. Negligent Infliction of Emotional Distress: Ginsberg, Ralbag, Kraus and Lebowitz ; 4. Same;
4. Negligent Infliction of Emotional Distress: UOR;
5. Fraud : UOR, Ginsberg, Ralbag, Kraus, and Lebowitz;
6. Tortious Interference with Contract: Ginsberg , Ralbag, Kraus, and Lebowitz;
7. Defamation: Ginsberg, Ralbag, Kraus, Lebowitz, and Herbst ;
8. Injurious Falsehoods: UOR, Ginsberg, Ralbag, Kraus, and Lebowitz;
9. Defamation : UOR, Ginsberg, Ralbag, Kraus, and Lebowitz;
10. Clergy Malpractice: Herbst;
11. Breach of Fiduciary Duties: Herbst and Beth Din;
12. Breach of Contract: Herbst and Beth Din ;
13. Aiding and Abetting Causes of Action 1-10: Herbst and Beth Din.

UOR, Ginsberg, Ralbag, Kraus and Lebowitz (collectively, "the UOR defendants") now move, pursuant to CPLR 3211(a)(7), to dismiss the complaint. As indicated above, the eleventh through fourteenth causes of action are not asserted against movants. For the reasons set forth herein, the motion is granted as to the causes of action for negligence (#2), fraud (#6), and injurious falsehood (#9) and is denied as to the remaining causes of action.

The complaint alleges as follows: Plaintiff, an Orthodox Jew, is a member of the Hasidic community in Brooklyn , NY where she operates a health care business. A civil divorce action is pending between plaintiff and her husband, non-party Chaim Sieger, in Supreme Court, Kings County.

To be divorced under Jewish law, a couple must obtain a Get, which resolves certain terms of the divorce. On September 2, 1997 plaintiff received a letter from Ginsberg stating that Chaim Sieger had requested that plaintiff participate in a "Beth Din" arbitration, to be conducted by the UOR, to resolve certain issues in the couple's divorce. Plaintiff refused to submit to the Beth Din arbitration because, she believed , the UOR defendants had a reputation for corrupt conduct. Instead, the parties agreed to a Zabla, another type of arbitration procedure permitted by Jewish law, in which plaintiff and Chaim Sieger would both name one arbitrator (a "borer "), and those two arbitrators would then select a third arbitrator. The parties would also each select one advocate (a "toein") to represent them in the arbitration. The Zabla would, thus, have been more independent of the UOR. Plaintiff consented to have the UOR defendants act in an administrative capacity only in order to organize the Zabla, and that she did not consent to their participation in an ordinary Beth Din arbitration. Cplt. ¶36.

Plaintiff named Rabbi Moshe Tendler (later replaced by Rabbi Ayreh N. Rabinowitz) to be her arbitrator (borer) in the Zabla, and she named Rabbi Mendel Epstein to be her advocate (toein). Tendler and Epstein informed Ginsberg that plaintiff had consented to accept a Get from Chaim Sieger and resolve the terms of the divorce through the Zabla arbitration. The UOR confirmed plaintiff's election of the Zabla arbitration in a letter dated October 5, 1997. Cplt. ¶40.

Chaim Sieger then paid the UOR defendants a $50,00 0 bribe to have them issue a Heter Meah Rabonim (a "Heter") against plaintiff. Cplt ¶¶4, 55. A Heter "is a license designed exclusively to permit a husband to enter into a polygamous marriage as a consequence of his wife's mental incapacity or misconduct and upon which a special get [sometimes termed a "Heter Get"] is based. Cplt. ¶4. The UOR defendants were preparing the Heter, dated November 30, 1997, while still discussing the Zabla arbitration with plaintiff. On December 26, 1997, Chaim Sieger's civil divorce attorney notified plaintiff that the UOR had issued the Heter, thereby granting a religious divorce and, thus, that there was nothing to arbitrate at a Zabla.

The Heter falsely states the following: (1) plaintiff "is not fit to live with and have sexual relations with," because while still living with her husband plaintiff did not attend the Mikva, a ritual bath, after menstruation; (2) plaintiff did not respond to summonses from defendants and, thus, an order of contempt was issued against her; (3) plaintiff refused to accept a Get from Chaim Sieger unless he gave her all his possessions and money; (4) plaintiff slandered Chaim Sieger in public; (5) plaintiff "turned her house into an ' insane asylum' " and is unable to care for her children; and (6) plaintiff denied Sieger cohabitation. Cplt. ¶45-57.

Defendants published the contents and existence of the Heter to third parties within the Jewish community in New York City and Israel even before plaintiff was notified of its existence. Plaintiff learned of the Heter from other members of her Hasidic community. In January 1998, Rabbi Rabinowitz questioned defendant Ralbag about the Heter. Ralbag told Rabbi Rabinowitz that the Heter Get was in escrow with the UOR defendants and that plaintiff was entitled to obtain a copy. The Heter Get contained all of the allegations and conclusions set forth in the Heter, including the fraudulent and defamatory accusations against plaintiff . Cplt. ¶63.

On numerous occasions defendants refused to give plaintiff a copy of the Heter . On June 6, 1998, plaintiff finally received a copy of the Heter from an Israeli Rabbi.

Movants argue that the complaint should be dismissed on three separate grounds: (1) the First Amendment to the United States Constitution bars judicial resolution of the issues raised in the complaint ; (2) everything the defendants did is privileged because their actions were taken as part of a rabbinical arbitration, which is quasi-judicial; and (3) the allegations in the complaint do not state causes of action.

I. The First Amendment

The idea that church and state should be separated is deeply embedded in the foundations of this country. The Free Exercise Clause states , in part, that "[c]ongress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof". US Constitution, First Amendment. The First Amendment "embraces two concepts , freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society." Cantwell v. Connecticut, 310 US 296, 303-04 (1939).

Thus, there are times when it is appropriate and necessary for courts to decide matters "touching upon religious concerns." Avitzur v. Avitzur, 58 NY2d 108, 111 (1983). In Employment Division, Department of Human Resources of Oregon v. Smith, 494 US 872 (1989), the court held that "religious freedom" was not a defense to a charge of possession of peyote, an illegal drug. "[T]he right of free exercise does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).' " Id. at 879.

Avitzur, supra, held that courts are not foreclosed from settling a dispute between a husband and wife pursuant to a Ketubah, the Jewish marriage contract, despite the religious nature of the Ketubah. "[G]ranting the religious character of the Ketubah, it does not necessarily follow that any recognition of its obligations is foreclosed to the courts." 58 NY2d at 113. Courts are permitted to resolve disputes that may involve some religious aspects as long as "neutral principles of law" can be applied. Id. at 114-15.

In the instant case, plaintiff's claims can, in fact, be resolved by applying neutral principles of law rather than by applying religious doctrine. Defendants' argument that the nature of plaintiff's claims is so intertwined with religious doctrine that a secular court is barred from exercising jurisdiction is not supported in the cases. In Presbyterian Church of the United States v. Mary Elizabeth Blue Hill Presbyterian Church, 393 US 440, 449 (1969) (state court could not dispose of property subject to a dispute between local churches and a national church organization by interpreting religious doctrine), cited by defendants, the court held that civil courts may not "resolve ecclesiastical questions." However, the instant case does not require an interpretation of religious doctrine and practice; rather, it requires an adjudication of whether defendants violated plaintiff's secular rights. "Certainly, where clergy members are charged with intentional torts, liability may be imposed." Gallas v. Greek Orthodox Archdiocese of North and South America, 154 Misc 2d 494, 499 (Sup Ct, NY County 1991). Plaintiff's complaint alleges common law torts and a breach of contract, not violations of Jewish law. The complaint's claims will survive or be dismissed based upon whether they satisfy the criteria imposed by New York secular law. Religious doctrine will only come into play by providing a context for understanding the significance to Orthodox Jews of such customs as a Mikva; religious doctrine will not provide the rules of substantive law.

Defendants also rely on Klagsbrun v. Va'ad Harabonim of Greater Monsey, 53 F Supp 2d 732 (DNJ 1999). In that case, put very simply, an Orthodox Jewish man (the "Husband") sued a council of Rabbis for defamation because they published a statement accusing him of bigamy after he was civilly divorced, refused to grant his wife a get, and remarried (he claimed to have received a special dispensation to do so). The court dismissed the case because adjudicating it would have required interpreting, inter alia, whether plaintiff "engaged in bigamy within the meaning of the Orthodox Jewish faith." Id. at 742. The instant defendants argue that plaintiff 's defamation claims similarly depend on interpreting such religious doctrines as the obligation to go to a "Mikva".

Klagsbrun is distinguishable on several grounds. There, the Rabbi's publication , which is entirely reprinted in the opinion, accused the husband, to the extent that it is defamatory , of various religious transgressions. The publication at issue here allegedly included such statements as that plaintiff "turned her house into an 'insane asylum'" and is unable to care for her children. Such accusations are secular in nature. A court would have to consult religious doctrine to determine whether a man was a bigamist within the meaning of the Orthodox Jewish faith, but would not have to consult religious doctrine to determine whether a woman had turned her house into an "insane asylum." Furthermore , Klagsbrun was simply a defamation action. Id. at 734. The instant complaint contains numerous causes of action. At its heart is the accusation that after agreeing to plaintiff's demand for a Zabla, the UOR defendants turned around and took a $50,000 bribe to issue Chaim Sieger a Heter Get declaring plaintiff insane and which was widely published. The Establishment Clause was not intended to shield bribery and harassment. Interestingly, in Klagsbrun, the Rabbis published the material at issue after meeting with the husband and arguing the merits of the dispute. Thus, all that a court could decide was who was "correct," which would have required inquiring into religious doctrine. Here, the UOR defendants issued the Heter Get without a meeting, indeed , without a procedure (i.e. without due process) of any kind. Plaintiff should, at least in response to a motion to dismiss, be allowed to proceed to the disclosure stage to attempt to flesh out her claim that defendant's procedure, with its drastic effects on plaintiff's personal life, was tainted by bribery and bad faith. Also, issuance of the Heter Get implied that the UOR defendants had followed legitimate procedure in determining that plaintiff was mentally incapacitated. In Klagsbrun, the husband was challenging defendants' conclusions, not their procedure.

Of final note, in Klagsbrun the plaintiff argued that the court would only have to determine issues of fact. Id. at 742. The court agreed, but said that "resolution of the factual disputes would require this court to inquire into religious doctrine and practice ." Ibid. Perhaps a better approach would have been to declare that whether the husband (who was not a secular "bigamist") was a "bigamist" under religious law was a question of opinion, which is not actionable , and the resolution of which would require religious inquiry. Here, the question of whether the Heter Get was the result of $50,000 in bribe money transcends religious boundaries.

II . Privilege

Defendants contend that a Heter is a quasi-judicial proceeding and that statements made therein are, thus, absolutely privileged. "The doctrine of immunity ... is based upon considerations of public policy and is intended to secure the unembarrassed and efficient administration of justice and public affairs." 43A NY Jur 2d, Defamation and Privacy,

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