Update on Bayside Cemetery Litigation - December 4, 2011
Dear Bayside Cemetery Litigation Friends and Supporters:
It has been quite a while since I wrote an update on my efforts to get the situation and conditions at Bayside Cemetery remediated and to force Congregation Shaare Zedek to restore the misappropriated cemetery monies they were responsible for (and admitted to mismanaging) and to honor the hundreds (maybe thousands) of perpetual care contracts that they sold over many years. Again, the amount of missing money in question here is between $5 million to $10 million – a lot of money to disappear! Sums like this are what books and movies are made about!
The cases of Lucker et al vs. Congregation Shaare Zedek, Bayside Cemetery and Community Association of Jewish At-Risk Cemeteries (“Lucker”) as well as Leventhal vs. Congregation Shaare Zedek, Bayside Cemetery and Community Association of Jewish At-Risk Cemeteries (“Leventhal”) continue. It has now been over 4 years since the Lucker case was originally filed. And it has been 10 months since the Leventhal case was filed.
To date, the Lucker case has weaved through Federal Court and is now in NY Supreme Court with a venue destination to be changed and the Leventhal case is in NY Supreme Court.
Before I update you on the legal cases, I want to encourage you to read the recent press reports about Bayside Cemetery and the court documents for the Lucker and Leventhal cases.
In the videos on the front page of my website you will see news about some disrespectful grave desecration and neglect at Bayside Cemetery as well as a blatant lack of accountability shown by Congregation Shaare Zedek – truly some unacceptable conduct and actions!
Go to www.baysidecemeterylitigation.com and look at the new videos on the front page of the website (from WABC, WPIX and from a cemetery visitor).
Also read the recent press reports in the Article Archive http://site.baysidecemeterylitigation.com/Article_Archive.html
And read the recent legal case documents in http://site.baysidecemeterylitigation.com/About_the_Litigation.html.
Now to news about the court cases…
As a person who has never been involved in a legal dispute before, the excruciatingly slow pace of the legal system has been a learning experience for me. Also new to me is the lack of timeliness, thoroughness, accuracy, accountability and general common sense in some of the processes within our legal system. It used to be a citizen could rely on the letter of the law and inherent fairness but perhaps not always the spirit of the law. But in this case, it appears that I can’t even rely on the letter or fairness of the law.
Shockingly on September 15, 2011, after the Lucker case sat stagnating in her court’s docket for two years, Judge Debra James granted defendants’ motion to dismiss in the Lucker case.
Her dismissal was predicated on her determination of a lack of standing by the several plaintiffs – although very oddly Judge James was silent on the specifics on my personal standing status – a standing status which unarguably exists for me which she herself acknowledged in the ruling by stating that administrators of an estate have standing.
However, Judge James made several serious and obvious mistakes in her decision – all extraordinarily appealable – which are inherently simple and obvious mistakes and oversights and seem to have evolved from her lack of careful review of the documents submitted in the case despite her having almost two years to do so. Judge James seemed to miss cited legal precedent that prior legal representatives of deceased people have standing in cases like this one and Judge James completely missed the fact the I possess letters of administration (which were filed with the Lucker case) from Connecticut Probate Court to represent my deceased grandmother’s contractual interests for perpetual care at Bayside Cemetery. See the document at:
It’s impossible for the judge to say that I don’t have legal standing when the Probate Court specifically appointed me to represent my deceased grandmother’s interests at Bayside Cemetery. For the purposes of the case with these probate papers, I am my grandmother.
The judge also makes several statements in her ruling that are not consistent with legal rules that require, in a motion to dismiss, consideration to be limited to information and statements contained solely within the “Four Corners” of the complaint – the “Four Corners” principal is a foundational legal concept. Yet the judge makes statements about how the NY State Attorney General has standing to pursue this matter on behalf of plaintiffs, that the NY AG has begun an investigation, and the NY AG is overseeing negotiations to find a sustainable solution to the maintenance of Bayside Cemetery. It is nonsensical to contemplate what relevance the actions of the NY AG have to do with my grandmother’s legal rights as the beneficiary of a perpetual care contract with Congregation Shaare Zedek. In addition, the court’s statements and the reliance on the NY AG by the judge are not within the four corners of the complaint and may have bled into her thinking from statements made by defendants – statements which the judge has not validated through discovery or received on the record.
In fact, subsequent to her decision, my attorney Michael Buchman questioned the statements in the decision with the NY State Attorney General’s office as there was concern that the defendant was making statements on and off the record to the court that the NY AG was supportive and seemingly endorsing certain negotiations between Congregation Shaare Zedek and the NY AG’s office. Apparently the NY AG reacted very negatively to Congregation Shaare Zedek’s actions and the NY AG contacted a defendant attorney and demanded that the defendants retract statements made to the judge and the court about the NY AG’s support of the matter. This drama resulted in the defendant’s attorney writing a highly unusual letter to Judge James dated October 10, 2011 retracting their misrepresentative statements from filed documents about the NY AG’s support:
Of course, since the judge had already made her decision, this retraction of statements made on the record are of little consolation other than proving, once again, the lengths to which Congregation Shaare Zedek will go to obfuscate and fabricate the facts and issues in their neglect of Bayside Cemetery and their misappropriation of the cemetery’s funds.
My attorney, Michael Buchman, then wrote the following letter to Judge James to inquire about her position given the misrepresentations made to her by the defendants. But to date he has received no response from the court:
http://site.baysidecemeterylitigation.com/uploads/Hon._James_Letter_10-11-2011.pdf
In the above letter, my attorney Michael Buchman concludes that “[a failure to right this wrong by defendants would] make these morally bankrupt and admittedly culpable Defendants free to continue to steal and lie with impunity. And it would impose a grave injustice upon Plaintiffs while sending the wrong message to other entities managing perpetual care funds in the State of New York”.
Also, keep in mind that the NY State AG has been investigating the Bayside Cemetery matter for almost seven (7) years – through the Spitzer, Cuomo and now Schneiderman administrations with no conclusions and no civil or criminal actions taken. It is unreasonable for a law enforcement agency to fail to take action for a significant financial crime of the theft of between $5-10 million. Why does the NY AG continue to do nothing? I must speculate that it must be a result of political influence from parties involved with the congregation or the NY UJA because the NY AG has investigated and resolved hundreds of matters in the past 7 years, many of which involved a lot less money than the issues at Bayside Cemetery. I, and some reporters, have submitted Freedom of Information requests to the NY AG about this matter and our requests have repeatedly been denied with the statement that this is an ongoing investigation – ongoing for 7 years?
So, what’s going on with the Lucker case given this erroneous court decision? On October 27, 2011 a Notice of Appeal Preargument Statement was filed to notify the court that an appeal will be filed for the dismissal and the reasons why we believe the decision was wrong. You can read this appeal notification at:
It is important to note that no decision has been made on the Motion to Dismiss on the Leventhal case yet. Judge James should find it difficult to rule that Leventhal doesn’t have standing considering Plaintiff Leventhal was the actual purchaser of the perpetual care contract with Congregation Shaare Zedek. But with the way the various courts have been handling the Bayside Cemetery matter to date, it appears that anything is possible – regardless of facts or common sense. It does make me wonder why a case that is so straight forward has been so difficult – is it all about politics versus the law? How much political influence does Congregation Shaare Zedek and Bayside Cemetery have? Enough power to allow this gross miscarriage of justice to continue apparently.
It is clearly distressing to be on the receiving end of a judicial error and then have to incur significant additional time, effort and expense to file an appeal for an erroneous decision.
For some public comments about Judge Debra James from attorneys who allegedly interacted with her on legal cases in her court, read here. Not a very flattering array of commentary:
http://www.therobingroom.com/newyork/Judge.aspx?ID=552#10282
http://www.therobingroom.com/newyork/JudgeDetail.aspx?ID=552
We as plaintiffs now have a number of months to draft and perfect our appeal and we will work hard to prepare and file the necessary documents.
So the Lucker case now moves to the NY State Court of Appeals… the third court this straight forward case finds itself in.
In a recent judicial decision in US District Court, Judge Jed Rakoff ruled on a case of a completely different kind but he made a statement which I think has great applicability in this case about Bayside Cemetery and how Judge James failed to properly handle this case and rule with thoroughness and diligence. Judge Rakoff said “An application of judicial power that does not rest on facts is worse than mindless, it is inherently dangerous. […] If [the court’s actions] does not rest on facts – cold, hard, solid facts, established either by admissions or by trials – it serves no lawful or moral purpose and is simply an engine of oppression.”
In the Lucker case, I feel that the court has acted irresponsibly and carelessly and I am confident that I will prevail on appeal. The mere fact that Judge James ignored my definitive appointment as a legal representative for my deceased grandmother is evidence enough but the appeal will detail more of the judge’s errors and omissions.
In addition, we wait impatiently for a decision in the Leventhal case – a case where standing is undeniable with a plaintiff who directly purchased a perpetual care contract from Congregation Shaare Zedek.
This experience is teaching me many things, one of which I hope is that good things come to those who wait. But I had no idea it would take this long nor make me jump over this many hurdles to right such an obvious wrong. As the 1990 song by the band EMF cried repeatedly … Unbelievable!
Respectfully,
John Lucker
Plaintiff
Lucker et al vs. Congregation Shaare Zedek, Bayside Cemetery, and Community Association for Jewish At-Risk Cemeteries
www.baysidecemeterylitigation.com
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