Gross v. Ellinson

Gross v Ellinson 2024 NY Slip Op 30906(U) March 18, 2024 Supreme Court, Kings County Docket Number: Index No. 518010/2021 Judge: Francois A. Rivera Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official publication.

FILED: KINGS COUNTY CLERK 03/19/2024 12:29 PM INDEX NO. 518010/2021 NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 03/19/2024

Atfili IAS Term,Part 5:2 of the Supreme Comt of the State of New York, held in and for the County of Kings, at the Courthouse, at Civic Center,Brooklyn, New York, on the 18th day of Match 2024 HONORABLE FRANCOIS A. RIVERA ------------------------------- .--------------- . ------- . ·-- .. ---· -X NOOTIEZEV GROSS, Plaintiff, DECISION AND ORDER Index No. :518010/2021 -against- RIVKAH LEAH ELLTNSON, AVROHOM NOCHUM GROSS, RAIZY TOBY EDELMAN, and YITZCHOK SHOLOM DOV BER GROSS, Defendants. -. ---- .· ----------------. -------------- .. ----... ----------. --------. -X Recitation in accordance with CPLR 2219(a), ofthe papers considered on the joint motion filed ort January 24, 2022, under motion sequence number one, by Rivkah Leah Ellinson, Avrohom Nochum Gross; Raizy Toby Edelman, and Yitzchok Sholom Dov Ber Gross (hereinafter the defendants) for an order pmsuantfo CPLR § 7503(a): [1 J compelling Nootie Zev Gross (hereinafter the plaintiff) to submitto arbitration before the Beth Din of Crown Heights located at 788 Eastern Parkway, Brooklyn, New York 11213 on the underlying issues set forth in the plaintiff's complaint in this action; and [2]. staying this. action pending the outcome. of the arbitration. · -Notice of Motion -Affirmation ofcounsel in support -Affirmation of defendant Gross in support -Affirmations ofthreenonparties in.support Exhibits A-T -Affirmation in opposition -Affirmation in reply Exhibits A-B BACKGROUND Ort July 20, 202 l, plaintiff commenced the irtsta'rlt action for, inter 11,lia, partition by filing a summons, verified complaint,.and notice ofpendency with the-Kings.County Clerk'~ Office (KCCO).

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On September 3, 2021, the defendants interposed and filed a joint verified answer and two counterclaims with the KCC0, The first denominated counterclaim seeks dismissal ofthe verified complaint based on the doctrine ofresjudicata. The second denominated counterclaim seeks a declaratory judgment that the plaintiff has rto interest in the subject property.

On 0ctober4, 2012, plaintiffinterposed and filed a reply to defendants' counterclaims with the KCC0.

On October 5, 2021, the defendants filed a rejection of the plaintiffs reply contending thatitwas untimely.

The verified complaint alleges the following salient facts. The plaintiff and defendants own in fee and possess, as tenants in common~ certain real property, located at located at 409 Crown Street, Brooklyn, New York 11225; Block 129] Lot 50 (hereinafter the property) as set forth in a deed attached to the verified complaint. Plaintiff owns ih fee and possesses an undivided one-fifth part of said premises, and each qefendant owns ih fee and possesses an undivided one-fifth part of said premises. Upon information and belief said property is so situated thatits partition among the parties entitled thereto, according to their respective rights and interests, cannot be had without great prejudice to the owners thereof. That all the paities to this action, upon informatiori and belief, are of full age and sound mind. That no lands other than the aforesaid property are owned by the parties hereto in co111Illon orjointly.

Plaintiffseeks an order: declaring that each party is seized and possesses an undivided one-fifth interest in the subj ectproperty; directing a court-supervised sa:l e ofthe property, a distr.i buticm of the. proceeds pf the .sale; and an accounting between the parties.

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LAW ANDAPPLICATION The defendants have jointly moved for an order pursuantto CPLR § 7503(a): compelling the plaintiff to submit to arbitration before the Beth Din of Crown Heights and staying this action pending the outcome of the arbitration.

The defendants' motion is premised on the followingaHegations of fact On January 17, 2011, the parties' mother, Sarah Faygie Gross; granted the parties equal one...;fifth (115th) parts of the property via deed, which was recorded in the Office of the City Register under CRFN: 2011000052615. On September 15, 2018, Sarah Faygte Gross passed away. Sarah Feygie Gross made a signed writing dated January 1, 2018, in which she indicated he_r wishes with respect to the di vision of her property. A copy of the signed writing is annexed as Exhibit D .. The signed writing stated, among other things, that defendant Yitzchok Sholom Dov Ber Gross and his family have the right to live on the property. In addition, Sarah Faygie Gross, gave defendant Gross (also known as ''ltchie") the option to purchase the property at a discount.

After her death, plaintiff contested the validity of the signed writing and soughtto have the:issue decided. ·The plahltiff and defetidants then agreed to submit all their controversies to bindingarbitration upon all the parties. On December 27, 2018, the parties signed an arbitration agreementto submit all their controversies to arbitration before the Beth Din of Crown Heights (hereinafter ''Beth Din"), located, at 788 Eastern Parkway, Room 210, Brooklyn, New· Yodc 11213. The plaintiff and defendants also verb~lly agreed to submit all their controversies to arbitration 'before the Beth Din of Crown Heights. Ort December :n, 2018, and March 5, 20 l 9 the plaintiff and. defe1idants appeared be:f6te Beth Din and presented their ar$utnents, answers, and positions with respect to their controversies .

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On April 4, 2019, Beth Din submitted its ruling ("ruling"), which provided, inter alia: that the will ofthe mother, Sarah Faygie Gross, regarding the manner of division of the inheritance among the descendants exists and stands, and must be obse1':ved in all its details,. exactly, artd that all the rights g;ranted to her soh R. Yitzchok Sho lorn in regard to the house, are· in force. A copy ofBeth Din Ruling was annexed hereto as Exhibit E.

Plaintifftheteilfter commented the•instantaction seeking, i1iter alia, declaratory judgment, partition, and· an accounting. On August 13, 2021, and August 19, 2021; Beth Din and the Arbitrators sent plaintiff a summons to return to Beth Din. A copy of the Summons to Beth Din was annexed hereto as Exhibit H. Plaintiff has refused to return to Beth Din to arbitrate the underlying dispute. The defendants now seek an order pursuantto CPLR 7503(a)to compel the plaintiff to return to Beth Din arid to submit the instant controversy to arbitration.

On a motion to compel or stay arbitration, a court mtist first determine whether the parties agreed to arbitration and, if so, whether the dispute gen<::rally falls within the scope of their arbitration agreement (see Sisters·ofSi. John the Baptist,. Pi•ovidence ResrConvent v Geraghty Constructor; Inc., 67 NY2d 997, 999 [1986]). "Arbitration is a matter of contract[], 'grounded in agreementoftheparties'" (Matter o/Belzbergv Verus lnvs. Holdings Inc., 21 NY3d 626,630 [20l3], quoting County ofSullivan v Edward L. Nezelek, Inc,, 42NY2<i 12J, 128 [1977]). Thus,.

when deciding whether the parties agreed to. arbitrate a certain matter, ordinary state. law· principles that gov1;:rn the formation c;,f contracts apply (see Mozzachio v Sc:hcmzer, 188 AD3d 873,, 874. [2d D~pt 2020], citi11g First Options ofChicago, Inc. vKaplan,514 US 938,944 [1995]).

In opposition to the motion, the pla:irttiff pointed out the foll owing issues, among others.

First, the.defendants allege that the parties sigri.ed an ag:reenientto arbitrate but did noram1ex the

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There is no dispute that the defendants are seeking to submit to arbitration the issue ofthe disposition of their deceased mother's property as set forth in a writing she executed. Plaintiff's contention is correct. It is against public policy to submit this issue to arbitration. Accordingly, the defendants' motion must be denied.

CONCLUSION The motion filed by defendants Rivkah Leah Ellinson, Avrohqm Nochum Gross, Raizy Toby Edelman, and YitzchokSholom Dov Ber Gross for an order pursuant to CPLR § 7503(a) compelling plairttiffNootie Zev .Gross to submitto arbitration the underlying issues set forth in the plaintiff's complaint and staying this action pending the outcome ofthe arbitration is denied, The foregoing constitutes the decision and order of this Court

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