Opinion
Index No. 534888/2023
06-27-2024
In the Matter of the Application of Morris Tenenbaum, Israel Tyberg and Denise Davis Roz, Petitioners, v. Briendy Melnicke, Respondent.
Graubard Miller, New York City (Elaine M. Reich of counsel), for Petitioner Morris Tenenbaum Lentz & Gengaro LLP, West Orange, N.J. (David W. Lentz of counsel), for Petitioner Israel Tyberg The Bernstein Law Firm, Miami, FL (Elaine M. Reich of counsel), for Petitioner Denise Davis Roz Herrick, Feinstein LLP, New York City (Scott E. Mollen and Darlene Fairman of counsel), for Respondent
Unpublished Opinion
Graubard Miller, New York City (Elaine M. Reich of counsel), for Petitioner Morris Tenenbaum
Lentz & Gengaro LLP, West Orange, N.J. (David W. Lentz of counsel), for Petitioner Israel Tyberg
The Bernstein Law Firm, Miami, FL (Elaine M. Reich of counsel), for Petitioner Denise Davis Roz
Herrick, Feinstein LLP, New York City (Scott E. Mollen and Darlene Fairman of counsel), for Respondent
Aaron D. Maslow, J.
HON. AARON D. MASLOW, Justice.
The following numbered papers were used on the petition and cross-motion: NYSCEF Document Numbers 1-65.
Upon the foregoing papers, having heard oral argument, and due deliberation having been had, the within matter, an Article 75 proceeding to confirm what is described as an arbitration award of Rabbi Y.M. Blasbalg dated December 23, 2022 , is determined as follows.
The document signed by Rabbi Blasbalg bears the Jewish date of 29 Kislev 5783, corresponding to the secular date of December 23, 2022.
This special proceeding concerns an intrafamily dispute over the substantial assets of the deceased Michael Tenenbaum (Michael) and his wife Pola Tenenbaum (Pola). In December 1989, prior to their deaths, they created the Michael and Pola Tenenbaum Trust (Trust) as a means to dispose of their assets and provide for their children and their families, i.e., the descendants of Michael and Pola. Much of their assets were comprised of interests in nursing homes and the realty leased to nursing homes, and the profits therefrom. The Trust was an integral component of their testamentary plan, which included a will. The Trust encompassed five equal subtrusts, one for each of their five children: Morris Tenenbaum (Morris), Rachel Bergman (Rachel), Bella Davis (Bella), Helen Sieger (Helen), and Briendy Melnicke (Briendy). Each of the siblings was a Trustee under the Trust and the subtrusts. Of the original Trustees, only Morris and Briendy are still alive. Rachel passed away in 2012 and appointed her son-in-law Israel Tyberg (Israel) as her successor Trustee. Bella passed away in 2015 and appointed her daughter Denise Davis Roz (Denise) as her successor Trustee. Helen passed away in 2011, estranged from her family, and did not appoint a successor Trustee. Morris, Israel, and Denise are the petitioners herein, and referred to in some of the papers as "Side A." Briendy is the respondent herein, and referred to in some of the papers as "Side B." (See NYSCEF Doc Nos. 1, petition ¶¶ 4-9; 15, Melnicke aff ¶¶ 4-13.)
Side B also includes Briendy's husband. According to Respondent Briendy Melnicke, "Blasbalg required my husband to sign the Compromise Agreement even though he has no role in either the Trust or the Estate because Blasbalg's position was that, according to Jewish law, a husband must sign any financial agreements by his wife" (NYSCEF Doc No. 15, Melnicke aff ¶ 25).
Pola died in 1996, and Michael in 2003. Michael's will was admitted to probate in the Kings County Surrogate's Court, and letters testamentary were issued appointing the siblings as the fiduciaries of their father's (Michael) estate (Estate). As his sole surviving children, Morris and Briendy are the Estate's only remaining co-Executors. (See NYSCEF Doc No. 15, Melnicke aff ¶¶ 10, 12.)
Since Michael's death, numerous disputes have arisen between Morris and the survivors of Israel and Bella, and Briendy, over the millions of dollars in assets left by Michael. A host of legal proceedings in Kings County Surrogate's Court have been stayed since 2008. The Court is aware of at least one action involving the assets which was filed in Supreme Court, Kings County: Sieger v Melnicke (Kings County Index No. 503558/2013) (see NYSCEF Doc No. 23, Reich aff). By now the descendants of Michael and Pola number into the hundreds, a substantial number of them being affected by the legal wrangling over the inheritance left for them by Michael. (See NYSCEF Doc Nos. 1, petition ¶ 8; 15, Melnicke aff ¶ 36.) As a result of the litigation, the Trustees were compelled to file an accounting with the Surrogate's Court, which engendered further disputations concerning paying an accounting firm's bills (see NYSCEF Doc No. 15, Melnicke aff ¶¶ 13-19).
While the intended formal role of Rabbi Y.M. Blasbalg is disputed herein, it is undisputed that in late 2018 (one of the signatures is dated October 31, 2018, and the other, November 1, 2018), Morris and Briendy, each acting on behalf of their "side," signed a document entitled "The Compromise Agreement," in which a role was ascribed to Rabbi Blasbalg to assist the parties in arriving at a resolution to their longstanding dispute over the testamentary assets of Michael, a dispute which had torn apart the family. It is Rabbi Blasbalg's December 23, 2022 "Decision and Final Order" that forms the subject of the instant special proceeding.
The Compromise Agreement started off with the following:
With regards the "Inheritance" that includes, as specified below, the "Estate of Michael Tennebaum[ ]" together with the "Michael and Pola Tennenbaum Trust u/a 1989":
Agreed upon between the following parties:
1) Rabbi Matisyohu Mordechai (Morris) Tennenbaum including all other with legal interests in the "Inheritance" (as defined below) ("Side A")
2) Rabbi Meir (Michael) and Mrs. Breindel (Breindy[ ]) Melnicke ("Side B")
After many years of legal proceedings with regards to the "inheritance" left by the deceased Rabbi Michoel and Paula Tenebaum ob"m , which include all assets of the "Estate of Michael Tennebaum" together with the "Michael and Pola Tennenbaum Trust u/a/ 1989" ("Inheritance"); both sides have agreed to the following compromise that will allow both parties to end all their legal actions and claims against each other;
Therefore both above parties have agreed as follows:(NYSCEF Doc No. 3, compromise agreement at 1.)
The proper spelling is "Tenenbaum."
Ms. Melnicke spells her first name "Briendy."
The term "ob'm" means "of blessed memory."
The document then prescribed terms which provided for Side A to pay Side B $12,100,000, net of all taxes and expenses in exchange for Side B surrendering all of their legal interests in the Inheritance; a $5,000,000 down payment to be placed in escrow; and a neutral trust and tax accountant to "resolve" tax issues under the agreement (see id. at ¶¶ 1-3).
The first mention of an arbitrator in the Compromise Agreement is as follows:
This Agreement obligates both parties, in accordance to Jewish law and U.S. Law. Both sides understand that this is just an outline of the Agreement accepted by the parties. It is self-understood that after both sides sign on this Agreement it will be given over to their respective legal advisors to rewrite this Agreement in proper legal form in order to submit to the Court for approval. However, should this effort by both legal teams not be resolved within 60 days from the signing of this Agreement, both parties hereby agree for the agreed upon Arbitrator (see item 10) to appoint a neutral lawyer of his selection to finalize the Agreement for submission to Court. To assist in the effort of resolving the contract on time, both sides agree to submit their differences and arguments to the "Arbitrator" (defined in paragraph 10) for quick resolution. (Id. ¶ 4.)
Further provisions included a deadline (seven days) for the "legal version of this Agreement" to be submitted to the Court; that Side B would have no further claims against the Inheritance once payment has been made; that Side B would be indemnified for defending any claims made by the Sieger Family or the government; that Side A would be indemnified for any expense in defending claims made by the children or grandchildren of Side B; and that there would be a staggered payment plan for payments made to Side B (see id. ¶¶ 5-9).
The other "arbitration" provision appears in paragraph 10 and it forms the crux of the within dispute over Rabbi Blasbalg's December 23, 2022 determination:
Should there remain thereafter any differences between the two parties, both parties have agreed to present their differences to Rabbi y. m. blasbalg[ ], who will be the chosen Arbitrator between the parties, and both sides have agreed to accept his decision as final. Signature of this document will be as valid as the signing of an arbitration agreement according to Jewish Law and U.S. Law.
a) Such Arbitrator will have the right to define and comprehend all details of this agreement according to his will and understandings, and his decision and opinion will be final. (Id. ¶ 10.)
So in original.
Respondent argues that this paragraph refers to the legal version of the Compromise Agreement to be completed by the parties' legal advisers, when and if a final settlement is approved by the Surrogate's Court, assuming that Rabbi Blasbalg was to arbitrate as opposed to mediate (see NYSECF Doc No. 14, Resp mem law at 3-4). Petitioners maintain that Rabbi Blasbalg was to arbitrate "any differences" between the two "Sides," whenever they would arise (see NYSCEF Doc No. 8, Pet mem law 2).
A settlement agreement was submitted to Surrogate's Court on August 18, 2020, according to Petitioners (see NYSCEF Doc No. 1, petition ¶ 14). However, Surrogate's Court did not act on it and, with the passage of time, the parties again argued over how the Inheritance dispute was to be resolved (see id. ¶ 16).
On April 27, 2021 (document bears the Jewish date of 15 Iyar 5781 ), following discussions with the disputants, Rabbi Blasbalg prepared a "Decision." This document embodied more detailed terms with respect to the financial provisions in the Compromise Agreement. (See NYSCEF Doc No. 8, Blasbalg Apr. 27, 2021 decision.)
Per the Chabad calendar conversion platform, 15 Iyar 5781 was equivalent to April 27, 2021 in the secular calendar (see https://www.chabad.org/calendar/view/day.asp?mode=j&tdate=04%2F27%2F2021 [last accessed June 26, 2024]).
Further disputes arose (see NYSCEF Doc No. 1, petition ¶ 19), and that leads us to what is denoted by Rabbi Blasbalg as his "Decision and Final Order" bearing the Jewish date of 29 Kislev 5783, corresponding to the secular date of December 23, 2022.
Rabbi Blasbalg's December 23, 2022 determination noted that Surrogate's Court had not yet reviewed the stipulation of settlement submitted in 2020. He reviewed the provisions of his prior, April 27, 2021 determination, and noted that thereafter counsels for the two "sides" had raised objections to it. By this time there were unresolved IRS issues. Rabbi Blasbalg determined that the Compromise Agreement was still in effect. However, he also determined that the $12,100,000 to be paid to Briendy Melnicke's "side" should be increased by $1,500,000. He specified terms as to how this would be implemented.
This special proceeding was commenced by Petitioners Tenenbaum, Tyberg, and Roz on November 29, 2023, with the filing by Petitioners of a notice of petition accompanied by a petition and various exhibits (Motion Seq. 1); they seek CPLR Article 75 confirmation of Rabbi Blasbalg's December 23, 2022 decision, describing it as an "arbitration award" (NYSCEF Doc No. 7, notice of petition at 1). In response, Respondent Melnicke cross-moved to deny the petition and vacate the arbitration award; this is Motion Seq. 2 (see NYSCEF Doc No. 13, notice of cross-motion at 1).
As an initial matter, Petitioners argued before the Court during oral argument that their petition's allegations should be deemed unopposed since Respondent's cross-motion was untimely. They cite to CPLR 7511 (a)'s 90-day deadline for vacating or modifying an arbitration award. They rely on 1000 Second Ave. Corp. v Rose Trust (171 A.D.2d 429, 430 [1st Dept 1991]), which stated, "While an aggrieved party may wait to challenge an award until the opposing party has moved for its confirmation, it does not extend the time in which the aggrieved party may move to vacate or modify the award." Reliance on 1000 Second Ave. Corp. is misplaced. There, the party who sought to vacate the arbitration award failed to petition within the 90-day deadline, but notably there had been no petition to confirm filed by the other party: "Respondents never moved to confirm the arbitration award" (id. at 430).
As provided for in CPLR 7510, the statute of limitations for confirmation of an arbitration award is one year after its delivery. Indeed, it would make no sense to preclude someone who opposes a filed petition to confirm an arbitration award from seeking to vacate the award merely because a petition to vacate was not filed within 90 days. In effect, that would prohibit a party from ever opposing a filed petition to confirm unless one filed their own petition to vacate. Mere opposition to a petition to confirm would not suffice. This could not have been the intention of the drafters of the CPLR. It is only common sense that if a petition to confirm (which has a longer statute of limitations of a year) is filed, the opposing party has a right to oppose it, which naturally would include the requested relief of seeking to have the award vacated. Second Department case law is consistent with this interpretation of CPLR Article 75's provisions: "Contrary to Moloney's contention, the fact that the plaintiff failed to move within 90 days to vacate the award does not preclude him from seeking vacatur in opposition to Moloney's motion to confirm the award (see Matter of Brentnall v Nationwide Mut. Ins. Co., 194 A.D.2d 537, 538 [1993]; Karlan Constr. Co. v Burdick Assoc. Owners Corp., 166 A.D.2d 416 [1990]; State Farm Mut. Auto. Ins. Co. v Fireman's Fund Ins. Co., 121 A.D.2d 529 [1986])" (Jurcec v Moloney, 164 A.D.3d 1431 [2d Dept 2018]). Therefore, this Court considers Respondent's cross-motion.
This Court is dismayed by Petitioners' failure to mention this Second Department case law. "Counsel have an affirmative obligation to advise the court of adverse authorities, though they are free to urge their reconsideration (see Code of Professional Responsibility, DR 7-106, subd. [B], par. [1], EC 7-23; see, also, Thode, The Ethical Standard for the Advocate, 39 Texas L.Rev. 575, 585-586; Uviller, Zeal and Frivolity: The Ethical Duty of the Appellate Advocate to Tell the Truth About the Law, 6 Hof.L.Rev. 729)" (Matter of Cicio v City of New York, 98 A.D.2d 38, 40 [2d Dept 1983]; see Rules of Prof Conduct [22 NYCRR 1200.0] rule 3.3 [a] [2]).
Aside from the timeliness issue, Petitioners advance the following arguments basically:
• A valid contract, which contained an arbitration provision, was entered into.
• Rabbi Blasbalg's December 23, 2022 order was a final one, resolving the issues in dispute.
• Respondent agreed that Rabbi Blasbalg would resolve any dispute as an arbitrator, and waived any argument as to bias or failure to take an oath.(See generally NYSCEF Doc Nos. 8, Pet mem law; 60, Pet reply mem law.)
Respondent makes the following arguments:
• There was no agreement to arbitrate.
• The final determination is advisory and, therefore, cannot be confirmed.
• Rabbi Blasbalg failed to comply with New York law governing valid arbitration proceedings.
• Rabbi Blasbalg's partiality disqualified him.
• It is against New York public policy to arbitrate entitlement to a decedent's estate.(See generally NYSCEF Doc No. 14, Resp mem law.)
It is the last point advanced by Respondent Melnicke which the Court will now address. Recently, in Matter of Glassman v Cohen (213 A.D.3d 850 [2d Dept 2023]), it was held as follows:
The New York State Constitution grants the Surrogate's Court jurisdiction over "all actions and proceedings relating to the affairs of decedents, probate of wills, administration of estates and actions and proceedings arising thereunder or pertaining thereto" (NY Const, art VI, § 12 [d]; see Matter of Askin, 113 A.D.3d 72, 77 [2013]). By statute, the Surrogate's Court "exercise[s] full and complete general jurisdiction in law and in equity to administer justice in all matters relating to estates and the affairs of decedents" (SCPA 201 [3]). The provisions of the Surrogate's Court Procedure Act apply to any trust created by the will of a domiciliary (see id. § 1501 [1] [a]). The probate of a will and the distribution of an estate "cannot be the subject of arbitration," and "any attempt to arbitrate such issue is against public policy" (Matter of Berger, 81 A.D.2d 584, 584 [1981] [internal quotation marks omitted]; see Matter of Swislocki [Spiewak], 273 A.D. 768, 768 [1947]; see also Island Territory of Curacao v Solitron Devices, Inc., 489 F.2d 1313, 1321 [2d Cir 1973]). Here, contrary to the petitioner's contention, the record clearly demonstrates that the petitioner was attempting to compel arbitration of disputes related to the distribution of Selma Glassman's estate, including a trust created by her will, none of which is arbitrable (see Matter of Berger, 81 A.D.2d at 584). Accordingly, the Supreme Court properly, in effect, denied the petition and dismissed the proceeding. (213 A.D.3d at 852.)
This principle enunciated by the Court - that a dispute related to the distribution of an estate is not arbitrable as a matter of public policy - was reaffirmed in Matter of Sassouni (224 A.D.3d 693 [2d Dept 2024]). In the latter case, the decedent placed his share of a corporation in a testamentary trust. Objections were filed to judicial settlement of the trust account by the petitioner, who contended that any objections had to be arbitrated per an arbitration clause contained within the shareholders agreement governing the corporation. Surrogate's Court denied the petitioner's motion because, among other reasons, the dispute was not arbitrable, citing to Matter of Glassman.
Moreover, although Matter of Glassman was a recent decision, the rule that affairs of decedents cannot be arbitrated derives from a 1947 decision of the First Department in Matter of Swislocki [Spiewak] (273 AD 768, 768 [1st Dept 1947]), which, in turn, was cited to in Matter of Berger (81 A.D.2d 584 [2d Dept 1981] [disputes in interpreting "will" could not be determined by rabbinical tribunal]). Trial courts have applied the rule in a fair number of cases (e.g. Matter of Kalikow, 13 Misc.3d 1222 [A], 2006 NY Slip Op 51942[U] [Sur Ct, Nassau County 2006]; Milnes v Salomon, Smith Barney, Inc., 2002 NY Slip Op 50507[U] [Sur Ct, Broome County 2002]; Matter of Charny [Gliksman], 2002 WL 107175 [Sup Ct, Kings County Jan. 9, 2002, No. 748/01] [default in responding to petition to confirm vacated]); Matter of Jacobovitz (58 Misc.2d 330 [Sur Ct, Nassau County 1968]); Matter of Kabinoff [Kabinoff] (19 Misc.2d 15 [Sup Ct, Kings County 1957]).
Even if property is attempted to be transferred by a writing of the decedent which might not qualify as a will under estate law, it was held that its validity cannot be arbitrated (see Gross v Ellinson, 2024 NY Slip Op 30906[U] [Sup Ct, Kings County 2024] ["defendants seek to compel arbitration based on a signed writing allegedly issued by the decedent which they refer to as a will"]).
In the case at bar, it is quite clear that the inter vivos trust created by Michael and Pola Tenenbaum was the main feature of a testamentary plan to dispose of the huge financial empire created by Michael as a result of his involvement in the nursing home industry. This is borne out by the statement of Elaine M. Reich, counsel for Petitioner Morris Tenenbaum, who, in an affirmation submitted to the Court in Sieger v Melnicke (Kings County Index No. 503558/2013), wrote: "The Estate proceedings should not be decoupled from the Trust proceedings. As Justice Brennan noted in the Nassau County Action [ Sieger v Melnicke, Nassau County Index No. 6336/2005], 'the record suggests that the various trusts created by the parties' parents may well have constituted part of a [single] larger testamentary plan" (NYSCEF Doc No. 23, Reich aff ¶ 30). Matters relating to the Trust belonged in Surrogate's Court, claimed Reich: "Plaintiffs' filing is thus nothing more than a thinly veiled attempt at forum shopping in order to circumvent the Surrogate's Court, whose jurisdiction over the Trust was first invoked by Helen and already has been exercised by that Court" (id. ¶ 31).
In a decision of Surrogate's Court, Kings County, in Sieger v Melnicke (Index No. 346/2004) (transferred from Supreme Court, Nassau County), the Court noted that the five children of Michael Tenenbaum were both trustees of the Trust and executors of his will and trustees of any testamentary trusts (see NYSCEF Doc No. 17, Kings County Sur Ct decision & order at 2-3). This would indicate that Michael treated both the Trust and testamentary devises as one joint testamentary plan. Moreover, the Surrogate noted the existence of a dispute as to whether "certain assets belonged to the Estate, to the Trust, or to the parties in their individual capacity" (id. at 6-7). Certainly, if there is any question of commingling of assets from the testamentary devise to the Trust, or from the Trust to the testamentary devises, the proper forum for this to be determined lies with the Surrogate's Court, not an arbitrator. The Surrogate also noted that "the parties have unnecessarily interwoven their disputes in the administration of the Trust and Estate" (id. at 8). And that evidences that the disputes over Trust assets and testamentary assets cannot be separated, making it imperative that the public policy enunciated in Matter of Glassman v Cohen be applied here so as to vest in Surrogate's Court all matters relating to Michael and Pola Tenenbaum's property transferred via trust or by will. If indeed the disputes were reposed in the arbitration forum of Rabbi Blasbalg - a contention denied by Respondent Melnicke - they cannot remain there according to New York law. The intertwining of trust and estate assets compels the adjudication of the parties' disputes in court.
Nothing herein should be construed as preventing, or even discouraging, parties who dispute a mixed trust-estate testamentary plan from seeking religious guidance in an attempt to mediate a settlement subject to Surrogate's Court confirmation. This appears to have been the initial intent of the parties herein, per the October 25, 2018 email from Elaine M. Reich, attorney for Morris Tenenbaum, who wrote: Morris advises as follows: this would not be a binding arbitration. Morris sees bringing in the Rabbi as an attempt at peacemaking. Rabbi Blasbalg was recommended by Rabbi Shaul Alter, a son of the previous Grand Rabbi of Gur. Hi[s] fee is the cost of a business class ticket, round trip from Israel, and $500 per day. (NYSCEF Doc No. 24, Oct. 15, 2018 email from Reich to Pear.)
The Compromise Agreement itself begins with the sentence, "With regards the 'Inheritance' that includes, as specified below, the 'Estate of Michael Tennebaum' together with the 'Michael and Pola Tennenbaum Trust u/a 1989'" (supra at 2). The word "Inheritance" is used no less than 16 times, indicative of how the trust assets were integral components of what the late Michael Tenenbaum intended to leave his survivors upon his demise.
Rabbi Blasbalg acknowledged that the intrafamily dispute involved the "Trust Agreement dated December 26, 1989 made by Michael and Paula Tenenbaum (the 'Trust') and the Estate of Reb. Michael Tenenbaum (the 'Estate')" and then proceeded to discuss financial details for closing out the dispute, without separating any components relating to the Trust from those of the Estate (see NYSCEF Doc No. 4, Blasbalg Apr. 27, 2021 decision). The same holds true in Rabbi Blasbalg's December 2022 decision (see NYSCEF Doc No. 2, Blasbalg Dec. 23, 2022 decision).
The merger of issues arising from the Trust and the Estate is similar to the situation encountered by Hon. Justice Edgar Walker of this Court in Bauer v Bauer (2014 WL 3360106 [Sup Ct, Kings County, July 3, 2014, No. 507082/13]):
On January 12, 2012, the parties, all siblings, agreed to submit a dispute between them involving (a) the distribution and dissolution of monies and real estate holdings and (b) the proceeds of life insurance policies, stocks, bonds and "other assets or investments of Gertrude Bauer, wills, trusts, etc." to a panel of three arbitrators. The parties agreed that the arbitrators would make their decision or award based upon Torah Law ("Din") or compromise ("Psharah").
Indisputably, the Award includes a distribution of Gertrude Bauer's estate which is not an arbitrable controversy. See Matter of Berger, 81 A.D.2d 584; Matter of Swislocki (Spiewak), 273 A.D. 768. While an award which is valid in part may be sustained to the extent that it is proper, this does not apply where the valid and invalid portions are inextricably intertwined. See Matter of Brisman v. Hebrew Academy of Five Towns & Rockaway, 70 A.D.3d 935; Johnston v. Johnston, 161 A.D.2d 125. Here, contrary to petitioner's contention, the provisions for the distribution of money and real properties in the Award are inextricably intertwined with the Estate of Gertrude Bauer. For example, the Award provides that unless otherwise specified in the order, "any Property transferred pursuant to this Order shall be transferred free and clear from all securitized liens or mortgages (including but not limited to any mortgage recorded in the name of or for the benefit of Gertrude Bauer)." The Award provides for the distribution of real property to each party and, depending upon the relative value of that property, the receipt or payment of monies between the parties. Therefore, if a property were encumbered by a mortgage which is part of Gertrude Bauer's estate and the cancellation thereof voided, the relative value of the distribution to each party would be skewed. Also, any provision for the cancellation of liens or mortgages involving third parties not a part of the arbitration is beyond the authority of the arbitrators and, therefore, must be vacated. See CPLR § 751 l(b)(l)(iii).(Bauer v Bauer, 2014 WL 3360106, *1.)
Like Justice Walker, this Court is bound to deny the petition to confirm and to grant the cross-motion to vacate.
This Court truly understands the reasons for engaging a rabbinical authority to help resolve an internal family dispute which has been plaguing the Tenenbaum family for about 20 years. Often times, religiously observant families desire to have internal family disputes resolved in accordance with religious guidelines. This Court takes cognizance of Rabbi Blasbalg's entreaty that
Perhaps better estate planning - providing in advance for arbitration in a manner which does not contravene the public policy objection - might have prevented the present predicament (see Matter of Kalikow, 58 A.D.3d 846 [2d Dept 2009]). And, according to one commentator, there might be room for dina d'malchuta dina (the law of the land is the law) to be accounted for alongside Jewish law in estate planning (see K. Eli Akhavan, Basic Principles of Estate Planning Within the Context of Jewish Law, 25 Prob & Prop 60 [July-Aug. 2011]).
In order to provide proper honor for the souls of Michael and Paula Tenenbaum, and for the benefit of the parties and their descendants, the undersigned again asks that all of the parties forget the past and bring an end to all of their disputes in a pleasant way and with mutual respect. As our sages have said, the Almighty did not find a vessel to hold blessing other than peace. (NYSCEF Doc No. 2, Blasbalg Dec. 23, 2022 decision).
However, as the Rabbi mentioned, there are descendants involved. They are not parties to the litigation, yet their interests are affected. In the Surrogate's Court, this would be considered. As was stated in Milnes,
The reason for this rule is simple, any dispute over the assets of a decedent's estate necessarily involves more than just a plaintiff and defendant. Instead it involves the testator as well as all the beneficiaries and persons interested in the estate, who may be infants, incapacitated persons, unknown persons, charities or creditors of the decedent. In Matter of Kabinoff, supra, it was held that arbitration was not permitted because the matter involved the computation of the share of an infant in the estate and also the rights of creditors of the estate. It is the unique responsibility of the Surrogate to consider the effect upon all these persons of any resolution of a dispute over estate assets and to see to it that the interests of all the beneficiaries of the estate are protected.
The Surrogate's Court also has the responsibility to carry out the intent of the testator.
"In the case of a will, the voice of the man who made it is stilled, the hand that signed and sealed it is powerless and dead, and it is one of the greatest of the many responsibilities placed upon the courts to see to it that this silent evidence of his desire with regard to his property and estate should be made effective and should be carried out "according to his intention," undisturbed by the clamor of conflicting litigants." Snyder v. Snyder, 120 Pa.Super. 132, 182 A. D65 at 71 (2d Dept.1918); Warren's Heaton on Surrogate Courts, vol. 11, § 187.01(4), p. 187-19.
The Surrogate has broad powers of supervision and inquiry in order to protect the persons interested in an estate and to see to it that the testator's intent is effectuated. The New York Constitution, Article 6 § 12 specifies that the Surrogate's Court has jurisdiction over "all actions and proceedings relating to the affairs of decedents, probate of wills, administration of estates and actions or proceedings arising thereunder or pertaining thereto..." (Emphasis added). The Constitutional mandate is carried out by SCPA § 201(3) which says: "The court shall continue to exercise full and complete general jurisdiction in law and in equity to administer justice in all matters relating to estates and the affairs of decedents..."(2002 NY Slip Op 50507[U] *8.)
This Court is bound by the case law devolving exclusive jurisdiction over testamentary asset disputes in Surrogate's Court and finds that it is applicable to the instant dispute.
All other issues raised by the parties are deemed academic in light of this Court's determination that the subject dispute was not arbitrable.
The parties withdrew requests for attorney's fees.
Accordingly, IT IS HEREBY ORDERED AND ADJUDGED that
(1) Petitioners Morris Tenenbaum, Israel Tyberg, and Denise Davis Roz's petition (Motion Seq. 1) is DENIED;
(2) Confirmation of the "Decision and Final Order" of Rabbi Y.M. Blasbalg dated 29 Kislev 5783, corresponding to the secular December 23, 2022, is DENIED to the extent it is considered an arbitration award by certain parties herein;
(3) Respondent Briendy Melnicke's cross-motion (Motion Seq. 2) is GRANTED;
(4) The "Decision and Final Order" of Rabbi Y.M. Blasbalg dated 29 Kislev 5783, corresponding to the secular December 23, 2022, is VACATED to the extent it is considered an arbitration award by certain parties herein;
(5) All issues relating to the disposition of assets in the Michael and Pola Tenenbaum Trust and the Estate of Michael Tenenbaum shall be resolved in Surrogate's Court, Kings County, and not through arbitration; and
(6) Respondent Briendy Melnicke, residing at 1637 50th Street, Brooklyn, New York 11204, shall recover from Petitioners Morris Tenenbaum, residing at 1524 53rd Street, Street, Brooklyn, New York 11219; Israel Tyberg, residing at 1535 47th Street, Brooklyn, New York 11219; and Denise Davis Roz, residing at 97 Cedarhurst Avenue, Apt. 3G, Cedarhurst, New York 11516, costs and disbursements as allowed by law in an amount to be taxed by the Clerk, and let Respondent Briendy Melnicke have execution thereof.