The instant actions are part of the protracted and continuing power struggle that

unfortunately divides the Satmar Chasidic sect, whose world headquarters is located in Williamsburg, Brooklyn, New York. Justice Melvin Barasch, now retired, presided for several years over earlier cases dealing with the Satmar power struggle, until his December 31, 2004 retirement. His case inventory was then assigned to me. In the instant Satmar litigation, what seems like a small army of lawyers has submitted a

plethora of pleadings and documents. Numerous attorneys made several court appearances and conferences in the instant actions.

However, because of two unforeseen, unpredictable and independent events, subsequent to the instant motions and cross-motions having been submitted and argued, I must recuse myself to avoid any appearance of impropriety. First, in December 2006, I joined two other judges in an Article 78 proceeding, to obtain long overdue judicial pay raises. One of the captioned-respondents in our Article 78 proceeding is the New York State Senate. In February 2007, Craig M. Johnson, Esq., an attorney affiliated with a law firm for one of the litigants in the instant Satmar litigation, was elected to the New York State Senate in a special election. Not only is the Hon. Craig M. Johnson a member of the State Senate, but when a judicial pay raise bill, 2007 NY Senate S 5513, came up for a rollcall vote in the State Senate on April 30, 2007, he voted against a judicial pay raise.

Justice Barasch, in his October 22, 2004 decision and order, Application of Congregation Yetev Lev D'Satmar v Kahan, 5 Misc 3d 1023(A), affd 31 AD3d 541 (2d Dept 2006); appeal dismissed 7 NY3d 898 (2006), explained the history of the Chasidic movement, including its founding in 18th century Russia and its spread through the Jewish communities of Eastern Europe. Rabbi Joel Teitelbaum (1887-1979), a Chasidic Jew, was the last Chief Rabbi for the orthodox Jewish community in Satu Mare (St. Mary in English), a Transylvania city located on the Hungarian-Romanian border. After surviving World War II, Rabbi Teitelbaum eventually came to Williamsburg, in Brooklyn, and in 1948 formally incorporated his community as Congregation Yetev Lev D'Satmar, Inc. (CYL). Rabbi Teitelbaum became known as the Satmar Rebbe or the Grand Rabbi or Rebbe of the Satmar community. Under the official CYL bylaws, written in Yiddish, the Grand Rebbe has enormous power and control over the Satmar community. Justice Barasch, at 2, noted that "[a]ll Satmar Chasidim, wherever situated, paid homage to the Grand Rebbe and acknowledged him to be their incontrovertible leader and the sine qua non for being labeled with the appellation Satmar." With the growth of the Williamsburg Satmar community, Rabbi Teitelbaum founded a new Satmar community in Orange County, New York, which was named Kiryas Joel, to honor the [*2]original Grand Rebbe after his death. After the passing of Grand Rabbi Joel Teitelbaum, who had no sons, Rabbi Moses Teitelbaum, Grand Rabbi Joel's nephew, was chosen as the new Satmar Grand Rebbe. Justice Barasch observed, at 3, that Rabbi Moses Teitelbaum "was indisputably imbued with all the authority and command of power that his predecessor enjoyed."

a far-reaching feud erupted between the siblings and their respective

adherents. As the polarization of the two sides escalated, Satmar

Chasidim began to be identified as either Aaronis or Zalis depending

upon to whom they pledged their allegiance.

The polarization has so insidiously divided the two camps to the

point that they each dispute the other side's legitimacy to be identified as

true Satmar Chasidim. Control of the Congregations' synagogues,

cemetery, assets, charitable, educational and religious institutions and

even its corporate name has been hotly contested both in and out of the

judicial forum.

This feud led to extensive litigation over the results of the May 2001 election for the CYL Board of Directors. One faction, headed by Jeno Kahan, supports Rabbi Zalman. The other faction, headed by Berl Friedman, supports Rabbi Aaron. Justice Barasch, at 5, observed that:

Litigation between the parties has unfortunately been mired by an

ugly history. There have been issues of judge shopping and allegations

of violence and bribery. On February 6, 2002, in an effort to prevent

conflicting decisions, Hon. Michael L. Pesce, the then administrative

judge of Kings County directed that all matters involving the Satmar

litigation (Index Nos. 28989/2001, 13224/1990 and 41256/2001) be

assigned to this Court. Justice Pesce's administrative decision was

affirmed by the Second Department in September 2003 (308 AD2d 446).

Justice Barasch, in analyzing CYL's bylaws, at 9, noted that the Rebbe "is the only authority in all matters spiritual," and, concluded, at 11, that there is "no doubt that in every aspect of anything Satmar, the final arbiter is the Grand Rebbe himself. His word is supreme from which there is no appeal. His decision is binding upon every member." Neither Grand Rabbi Moses Teitelbaum, nor his two feuding sons, Rabbi Aaron or Rabbit Zalman submitted any affirmations to Justice Barasch to present their views on the issues before him. Thus, Justice Barasch, after a lengthy analysis of why secular courts are reluctant to interfere with the internal affairs of religious organizations, at 14, declined:

to make any determinations as which factions claims were valid or not. [*3]

in regard to declaring valid or voiding either side's election. As the

Court has determined above, the Grand Rebbe, Rabbi Moses Teitelbaum

is invested with the ultimate authority to determine all matters effecting

Satmar. All petitions, counterclaims are dismissed and all outstanding

motions in all three actions before the Court are denied to the extent

stated herein. As the Grand Rebbe has not given any indication of his

wishes to the contrary, the Court leaves intact the status quo in terms

of day-to-day operations of the Congregation and its institutions until

and unless the Grand Rebbe or any appropriately invested ecclesiastic

tribunal rules otherwise.

Justice Barasch in the "Epilogue" to his decision and order, at 14, noted that:

Throughout the litigation of these actions and pendency of the

motion, there have been many incredible and outrageous attempts by

certain individuals purportedly involved with and/or close to those

involved the factional Satmar dispute to discredit, intimidate and

improperly influence this Court

Expenditure of vast sums of money and the exercise of enormous

power have been the hallmarks of the above fight . . .

With respect to the requested transfer to the Commercial Division, the rules for the Commercial Division are found in 22 NYCRR § 202.70. Pursuant to 22 NYCRR [*4]

§ 202.70 (e), which governs transfers into the Commercial Division, the Friedman faction applied to the Hon. Theodore T. Jones (now a member of the Court of Appeals), then the Administrative Judge for Civil Term, Kings County Supreme Court. Justice Jones did not transfer the instant cases to the Commercial Division. On October 10, 2006, I conducted a conference with attorneys present from seven different law firms, representing various elements of the Friedman and Kahan factions. In the October 10, 2006 minutes, at p. 10, I noted that Justice Jones did not transfer the Satmar litigation to the Commercial Division. I stated, at lines 4 - 18:

Absent any ruling by Judge Jones, it's in this Part . . .

So, your application is denied to transfer to the Commercial

Division . . . I will put this in my order, but reading through the papers,

unless I see something to persuade me otherwise, this is not - - my

opinion on this is that it's not a commercial case, doesn't meet the

parameters, requirements of the Commercial Division.

This deals with the affairs of a religious corporation, which

is certainly not a commercial venture, even though the religious

corporation might have various commercial activities, but the religious

aspect overwhelms all that.

So, it's - - unless Justice Jones rules otherwise, and he has not,

it's going to stay in this Part.

Subsequently, neither Justice Jones, nor his successor as Administrative Judge, Justice Ariel Belen, has ordered, pursuant to 22 NYCRR § 202.70 (e), the transfer of the instant cases to the Commercial Division. Therefore, that portion of the Friedman's faction's cross-motions to transfer the instant litigation to the Commercial Division is denied.

one of the individuals in the Satmar community in terms of leadership,

whether it be the Kahan group or the Friedman group. I am totally

neutral.

I would be very happy if both groups could walk out of here

in the next three minutes and decide among themselves who's in

charge . . . I think we could all be happy, but obviously they haven't.

I believe I can be fair and impartial and apply the rules of law

[that] apply for this case, look at the precedents, look at whatever

decision[s] have been made by prior justices, as well as the Appellate

Division . . . [*5]

So I don't - - I believe that there is no appearance of impropriety

on my part and I see no reason to recuse myself.

However, after the October 10, 2006-conference, two unforseen and unpredictable events occurred. These events give me no choice but to recuse to avoid the appearance of any impropriety on my part.

In late December 2006, I became a petitioner in a Nassau County Supreme Court Article 78 proceeding, EDWARD A. MARON, ARTHUR SCHACK, and JOSEPH DE MARO v SHELDON SILVER, as Speaker of the New York State Assembly, NEW YORK STATE ASSEMBLY, JOSEPH BRUNO, as the Temporary President of the New York State Senate, NEW YORK STATE SENATE, GEORGE PATAKI, as Governor of the State of New York, "JOHN DOE" as the Acting Comptroller of the Sate of New York, and the OFFICE OF COURT ADMINISTRATION, Index Number 21984/06. The venue of this action was subsequently transferred to Albany County Supreme Court, Index Number 4108/07. The caption has been amended to replaced "GEORGE PATAKI, as Governor of the State of New York" with "ELIOT SPITZER, as Governor of the State of New York," and " John Doe' as the Acting Comptroller of the State of New York" with "THOMAS DI NAPOLI as the Comptroller of the State of New York." This action seeks, among other things, a determination that:the Legislatures's 2006-07 appropriation for judicial pay raises were final and complete; judges' compensation has been unconstitutionally diminished in violation of Article VI, § 25(a) of the New York State Constitution; and respondents' improper linkage of judicial salary increases with unrelated legislative initiatives, among other factors, violates the equal protection clause of Article I § 11 of the New York State Constitution.

The Article 78 proceeding, by itself, has nothing to do with the above-captioned cases and are not grounds alone for my recusal. However, in February 2007, Craig M. Johnson, Esq., a Democrat, became the Hon. Craig M. Johnson, by winning in a special election to fill a vacancy in the 7th Senate District, in Nassau County. Senator Johnson, unlike myself and my fellow New York State judges, is not precluded from earning additional income. Mr. Johnson, according to the Office of Court Administration's Attorney Registry, lists Jaspan Hoffman Schlesinger, LLP's Garden City, New York office as his "business address." Mr. Johnson is of-counsel to Jaspan Schlesinger Hoffman, LLP, counsel for one of the parties, United Talmudical Academy Torah V'Yirah, Inc. (UTA), in the instant litigation. Jaspan Schlesinger Hoffman, LLP's website, www.jshllp.com, on the page for Mr. Johnson, states that "Mr. Johnson has been actively involved in numerous matters on behalf of the firm's clients."

It would be improper for me, as a petitioner in a separate action against the New York State Senate, to adjudicate the instant matters because of Senator Johnson's status as a member of one of the respondents in my lawsuit, and working for the firm representing UTA.

To further support my decision to recuse, it is important to present the events of [*6]late April 2007. Senator John De Francisco, Chairman of the Judiciary Committee, introduced 2007 NY Senate Bill S 5313 on April 25, 2007. Originally, all 62 members of the State Senate were sponsors, including Mr. Johnson. Then, the pay raise bill, as reported by Joel Stashenko, in his May 1, 2007 New York Law Journal article, "Senate Passes Raise for Judges But Future of Bill Is in Doubt," was in the words of Chief Judge Judith S. Kaye, "caught, trapped and ensnared in the jaws of Albany politics." Mr. Stashenko reported that

All but one Senate Democrats, who had all agreed to sponsor the

pay raise bill when it was introduced last week, abruptly pulled

their names off the bill yesterday morning. Senate Minority Leader

Malcolm Smith said the Senate has approved some reforms but can

do more, including the adoption of a campaign finance reform bill

that Democratic Governor Eliot Spitzer has been promoting.

While the Senate had enough votes to pass the bill yesterday,

34-24, its abandonment by Senate Democrats put the fate of the measure

in doubt nevertheless. Mr. Spitzer's spokesman Darren Dopp said

following the vote that the governor would veto the bill if it reaches his

desk, and the 33 Senate Republicans are nine votes shy of the 42 votes

necessary to override a veto. Few, if any, of the 29 Democrats are

considered likely to join Republicans in voting to override a veto by

the Democratic governor.

Senator Craig M. Johnson, the attorney affiliated with Jaspan Schlesinger Hoffman, LLP,

where he probably earns income in addition to his Senate salary, was one of the 24 Senators to vote "nay" on S 5313. Further in his May 1, 2007 article, Mr. Stashenko reports:

The pullout of Senate Democrats from sponsoring the bill came

as more than 100 judges gathered in front of the Court of Appeals for

the annual observance of Law Day.

Chief Judge Kaye asked the judges, members of the 13

organizations representing judges in the state court system, to attend

the ceremony in a show of solidarity with her and to demonstrate how

crucial the judiciary believes the pay increase is.

In her speech, she said judges were "shocked and dismayed"

when the state Legislature completed adopting the 2007-08 state

budget on April 1 without including a judicial pay increase.

"No raises for the judges, no retroactivity, not even cost-of-

living increases for no reason that is related to us, or to the merit of

our cause and absolutely nothing that is within our power to change,"

the chief judge told a wind-blown gathering of more than 300 people,

double the normal turnout for Law Day in Albany. "Tell me, does [*7]

anyone wonder why we are upset? Could there be any question as to

why the judges of the New York state courts are upset, distressed,

angered?"

Judge Bellacosa, for a unanimous Court of Appeals, in People v Moreno, 70 NY2d 403, 405 (1987) instructed that "[a]bsent a legal disqualification under Judiciary Law § 14, a Trial Judge is the sole arbiter of recusal." The Court, in Schwartzberg v Kingsbridge Heights Care Center, Inc., 28 AD2d 465, 466 (2d Dept 2006), held that "[i]n the absence of a legal disqualification under Judiciary Law § 14, a trial judge is the sole arbiter of the need for recusal, and his or her decision is a matter of discretion and personal conscience (see People v Moreno, 70 NY2d 403, 405)." In Poli v Gara, 117 AD2d 786, 788-789 (2d Dept 1986), the Court stated that "[t]he question of whether a Judge should recuse himself to avoid an appearance of impropriety is a matter left to the personal conscience of the court (e.g., Matter of Johnson v Hornblass, 93 AD2d 732 [1d Dept 1983]; Casterella v Casterella, 65 AD2d 614 [2d Dept 1978]). See People v Fischer, 143 AD2d 1036 (2d Dept 1988); People v Gallagher, 158 AD2d 469 (2d Dept 1990); Warm v State, 265 AD2d 546 (2d Dept 1999); In re Jimmy H., 274 AD2d 430 (2d Dept 2000); People ex rel. Smulczeski, ex rel. Smulczeski v Smulczeski, 18 AD3d 785 (2d Dept 2005); Independence Party State Committee of the State of New York v Berman, 20 AD3d 423 (2d Dept 2005); Tornheim v Tornheim, 28 AD3d 534 (2d Dept 2006); Montesdeoca v Montesdeoca, 38 AD3d 666 (2d Dept 2007); Kupersmith v Winged Foot Gold Club, Inc. 38 AD3d 847 (2d Dept 2007).

Thus, to avoid any potential appearance of impropriety in the instant cases, with Senator Johnson voting against a judicial pay raise and being affiliated with Jaspan Hoffman Schlesinger, LLP, counsel for UTA, I must recuse myself from this matter. If I were to rule against UTA, part of the Kahan faction, it might be construed as retaliation against the Legislature by an aggrieved judge, who in the words of Chief Judge Kaye on Law Day 2007, asks if there could "be any question as to why the judges of the New York state courts are upset, distressed, angered?" Conversely, if I were to rule for UTA, it could be perceived as an attempt to curry favor with Senator Johnson and his 211 colleagues in the New York State Assembly and Senate. While I am sure I can continue to be fair and impartial in deciding the instant matters before me, in the exercise of discretion and good conscience, and to avoid any speculation as to the rationale for my rulings, it is necessary that I immediately recuse myself.

ORDERED, that I recuse myself from the instant actions, and it is further

ORDERED that all orders to show cause, motions, cross-motions and related pleadings in the instant actions are returned forthwith to the Clerk of the Court. [*8]

This constitutes the Decision and Order of the Court.

ENTER

__________________________

HON. ARTHUR M. SCHACK

J. S. C.