NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1306-18T4
GERALD VESHNEFSKY, a/k/a CHAIM VESHNEFSKY, and RUTH VESHNEFSKY,
Plaintiffs-Respondents,
v.
AARON ZISOW,
Defendant-Appellant/ Cross-Respondent,
and
JEWISH LEARNING CENTER OF MONMOUTH COUNTY, INC.,
Defendant-Respondent/ Cross-Appellant. ______________________________
Argued February 6, 2020 – Decided July 27, 2020
Before Judges Nugent and DeAlmeida.
On appeal from the Superior Court of New Jersey, Chancery Division, Ocean County, Docket No. C- 000150-17. Larry S. Loigman argued the cause for appellant/cross- respondent Aaron Zisow.
Sam Maybruch argued the cause for respondent/cross- appellant Jewish Learning Center of Monmouth County (Arbus, Maybruch & Goode, LLC, attorneys; Sam Maybruch and Matthew Goode, on the brief).
David C. Steinmetz argued the cause for respondents (Steinmetz, LLC, attorneys; David C. Steinmetz, on the brief).
PER CURIAM
This appeal by defendant Rabbi Aaron Zisow and cross-appeal by
defendant Jewish Learning Center of Monmouth County, Inc. (JLC) require us
to decide whether an arbitration award, twice supplemented, should be upheld
as the trial court ordered, or set aside. The award and its amendments were
rendered by a Bais Din—a Rabbinical Court that also serves as an arbitral
tribunal—in favor of plaintiffs, Rabbi Gerald Veshnefsky and Ruth Veshnefsky.
For the reasons that follow, we affirm the award but vacate the trial court's
attorney's fee award and remand that issue for further consideration.
I.
The genesis of the parties' dispute is a March 2016 agreement (Agreement)
among Rabbi Veshnefsky, JLC, and the Kollel—an organization of students who
devote themselves to the study of Jewish religious doctrine and prayer—of
A-1306-18T4 2 Western Monmouth County (Kollel). Rabbi Veshnefsky was JLC's original
registered agent and spiritual leader. He drafted JLC's by-laws and was the
Secretary of JLC's Board of Directors. Rabbi Zisow was the Kollel's spiritual
leader. He superseded Rabbi Veshnefsky as the spiritual leader of JLC.
The Agreement declares the Kollel will "assume responsibility,
leadership, and ownership of the JLC, and commits itself to the financial plan
described herein for Rabbi and Rebbitzen Veshnefsky." The terms of the
Agreement also provide "[a] grand total of $275,000.00 will be re-paid to Rabbi
and Rebbitzen Veshnefsky, or on their behalf, as reimbursement for debts
incurred on behalf of the JLC, loans to the JLC, and unpaid salary . . . ." In
addition, the Agreement requires payment for balances on Rabbi Veshnefsky's
credit cards, which the Rabbi had used to "fund" JLC related expenses. To
secure the debt, the Agreement requires that "all [JLC] investment property and
the piece annexed out to the investment property will have a lien on it for the
above payment." Following are the relevant portions of the Agreement
concerning arbitration of disputes:
6. Any disputes as to the interpretation of this Agreement shall be submitted to Rabbi Chaim Leiter for determination. All parties agree to abide by any psak (decision) issued by Rabbi Leiter. ....
A-1306-18T4 3 After all of the above terms are agreed to by all parties and the Board of [D]irectors, all parties will forego any claim they may have, both in bais din and in civil court. We, the undersigned, as of the date shown at the top of this Agreement, agree to all of the above conditions and statements. We represent that we have the necessary authority, on behalf of our respective organizations, to enter into this Agreement and to bind each organization to it.
JLC's Board's officers, including the president, Dr. Theodore Lidsky,
signed the Agreement on behalf of JLC. Rabbi Zisow signed the Agreement on
behalf of the Kollel. Not long afterward, a dispute erupted when the check Rabbi
Zisow tendered as the first payment to Rabbi Veshnefsky was returned for
insufficient funds. Rabbi Veshnefsky has been paid nothing since.
In accordance with the Agreement, the parties submitted their dispute to
Rabbi Lieter. On April 11, 2016, Rabbi Lieter informed the parties their dispute
appeared to go beyond the interpretation of their Agreement. The following
week, Rabbi Veshnefsky, Ruth Veshnefsky, and Rabbi Zisow entered into an
"Agreement to Submit to Arbitration" (The Arbitration Contract). Rabbi Zisow
signed the Arbitration Contract without specifying whether he was doing so as
an officer or agent of either JLC or the Kollel.
The parties agreed by the terms of the Arbitration Contract "to submit to
binding arbitration all the controversies (claims and counterclaims) between the
A-1306-18T4 4 undersigned Parties, including without limitation fulfillment of agreement
regarding [JLC] and all related issues." The parties agreed "that the controversy
be heard and determined by Arbitrator of Vaad Hadayanim Rabbinical Court[.]"
The Arbitration Contract further provided:
[T]he Arbitrator may make his award based upon Din Torah, compromise, settlement, or any other way he wishes to reach a decision; that the Arbitrator shall be empowered to issue such intermediate decisions or orders as he deems necessary; that no transcript nor recording of the proceeding need be made; that the Parties waive the right to cross-examination except under the procedures set by the Arbitrator; that the Arbitrator may follow any procedure as they decide; that the Arbitrator may determine evidentiary issues; that the Arbitrator shall be empowered to issue subpoenas for witnesses and the production of documents; that the arbitration may be conducted in whole or in part in a language other than English; that hearings may be held on Sundays and other legal holidays; that it shall be the decision of the Arbitrator as to whether a matter is related to the dispute or not; that the award of Arbitrator shall be in writing and shall be signed by the Arbitrator and need not be acknowledged or notarized to be confirmed or enforced; that the Arbitrator need not explain to the Parties or to anyone else the reasons for their decision.
WE understand that we have the right to be represented by attorneys and/or other advisors in the arbitration at any time, but that any Party may elect to proceed without an attorney, and the Parties shall have the right to argue for themselves before the Arbitrator. The Parties hereby waive formal notice of the time and place of the arbitration proceeding and consent that the
A-1306-18T4 5 arbitration be held and commence with the jurisdiction of the Arbitrator to continue until a final award be made. The Parties agree that the Arbitrator shall have the right to hear testimony and evidence without the presence of a Party if the Party does not attend a scheduled hearing. In the event that after an award is made a dispute between the Parties arises as to the interpretation of the award, compliance of the Parties, or if a Party motions for reargument due to their claim of a judicial error or new evidence etc., the Parties agree that the Arbitrator shall have binding jurisdiction on the matters, and the Parties authorize the Arbitrator to add to, amend, change, or clarify a decision, to the extent permitted by law. In the event that a Party does not abide by and perform any award or decision rendered by the Arbitrators or seeks to vacate such decision or award, the Parties authorize the Arbitrators to award additional fees and legal costs.
In addition, the parties agreed to "faithfully abide by and perform any
interim or final award or decision rendered by the Arbitrator."
On April 18, 2016, the Rabbinical Court of Lakewood issued the
following decision:
On the matter of controversies that came before us between the parties: party A is Mr. and Mrs. Chaim Veshnefsky (the plaintiffs); Party B is Mr. A[a]ron [Zisow] (the defendant), with regard to ownership of JLC and the related. After hearing the arguments of the parties and an analysis of their statements and deliberations amongst us, the following Rabbinical Court Ruling was issued by us:
1. The sale of JLC is in effect and Mr. A[a]ron [Zisow] is required to fulfill all that he obligated himself in the
A-1306-18T4 6 executed agreement. Those amounts that are past due are to be paid by him immediately.
2. In addition to the listed amounts, Mr. A[a]ron [Zisow] owes Mr. Chaim [Veshnefsky] the sum of $35.00.
3. In the event there are any differences of opinion on any accounts, it is upon the two parties to prove their claims before Mr. Simon Shicha of Lakewood to determine, and the Rabbinical Court will consult Mr. Simon [Shicha]. His fee shall be equally shared by the two parties.
4. It is upon Mr. Chaim [Veshnefsky] to act within his ability for the sake of harmony in the Manalapan community, and to refrain from interjecting himself in any negotiations with the owners there about the new arrangements there.
Neither Rabbi Zisow nor JLC objected to the award. Nor did they comply
with it. About a year later, on May 9, 2017, the Rabbinical Court of Lakewood
clarified its ruling. The written clarification states in pertinent part:
1. Pursuant to a certain Agreement between the parties, the change of management and directorship of the Jewish Learning Center of Monmouth County Inc. (JLC) from the Plaintiff to the Defendant is valid and binding. The Defendant, as the Manager and Director of the Jewish Learning Center of Monmouth County Inc. is obligated to fulfill all of his obligations as per the Agreement.
2. According to the payment schedule in the Agreement, the Defendant as the Manager and Director of the Jewish Learning Center of Monmouth County Inc. is obligated to pay the Plaintiff a total of one
A-1306-18T4 7 hundred twenty four thousand six dollars and twenty one cents ($124,006.21) as of June 1, 2017. This is also a personal obligation on the Defendant.
3. As per the Agreement, the Defendant, as the Manager and Director of the Jewish Learning Center of Monmouth County, Inc. shall execute a mortgage in favor of the Plaintiff . . . against the property known as 130 Pinebrook Road, Manalapan, NJ together with the piece annexed thereto.
During the year following the Rabbinical Court's issuance of its
clarification, Rabbi Zisow and JLC neither objected to nor complied with the
Rabbinical Court's ruling. On June 14, 2018, the Rabbinical Court issued a third
ruling. The initial award and first modification had been issued by three
members of the Rabbinical Court. One of the members died prior to the
Rabbinical Court's June 14, 2018 ruling. During the week preceding the ruling,
Rabbi Simcha Roth, apparently representing Rabbi Zisow, objected to the matter
proceeding further in the absence of the now-deceased member of the Rabbinical
Court.
Rabbi Roth suggested the two current members of the Rabbinical Court
had merely assisted the third, who had passed. Rabbi Roth wrote in an email
their assistance of the now-deceased member "doesn't in any way give you the
powers to continue adjudication of this matter." The Rabbi added: "In fact, the
arbitration agreement does not provide for any substitution of arbitrators in the
A-1306-18T4 8 event of incapacitation or death." The Rabbi ended the email by informing the
Rabbinical Court, "[m]y client is prepared to immediately proceed and
adjudicate the issues before a mutually agreeable Bis Din."
One of the two remaining members of the Rabbinical Court corrected
Rabbi Roth. In a responsive email, the Rabbinical Court member stated: "Your
interpretation of the English Arbitration Agreement is not only incorrect it is
also irrelevant. The Shtar Barurin refers to the three Dayanim by name and it
empowers the remaining Dayanim, in the event that one of the Dayanim are no
longer able to serve." In response, Rabbi Roth requested a copy of the Shtar
Barurin. The Rabbinical Court member complied with the request and Rabbi
Roth thanked him.
The parties have provided in the appellate record a translation of the
Hebrew Arbitration Contract. It provides, in part, that the three judges of the
Rabbinical Court:
may reach a decision even if they heard one of the parties without the other's presence; that should one of the parties evade appearance before the court the court may proceed with the case, hear arguments and evidence, question witnesses and decide the case even in that party's absence; that the court's jurisdiction shall remain in force until its decision has been fully implemented; that the court may resolve any dispute that may arise over the decision's implementation, or over its interpretation; the court may also rule in the
A-1306-18T4 9 event that one party should raise arguments or evidence to reverse its decision; similarly, should the decision (for whatever reason) not resolve all of the topics that were related to the case, the court may resolve these later; that the decision shall follow the opinion of the majority of judges, and the majority may reach a decision even should one judge be removed from the case, and even should one judge be undecided . . . .
The Rabbinical Court's third ruling stated:
On April 18, 2016 the Bais Din (Rabbinic Arbitration Panel) issued its ruling in regards to the disputes between Gerald Veshnefsky and Ruth Veshnefsky (Plaintiff) and Aaron Zisow (Defendant) in regards to their contractual agreements in connection with the Jewish Learning Center of Monmouth County Inc. and associated matters. We clarified our ruling on May 9, 2017. To date, Zisow continues to refuse to abide by our rulings. Pursuant to the Agreement to Arbitrate that provides continued jurisdiction on this matter we issue the following ruling:
ARBITRATION RULING
1. Our ruling dated April 18, 2016 and its clarification dated May 9, 2017 remain in full force and effect against both JLC and Zisow.
2. In addition to the security set forth in Paragraph 3 of our clarification dated May 9, 2017, both Zisow and JLC are directed to grant Plaintiff a mortgage upon any and all real property that each may own.
3. Zisow and JLC shall pay Plaintiff for any attorneys fees . . . whether previously incurred and that may be incurred in the future.
A-1306-18T4 10 4. As Plaintiff’s proceedings were commenced in the Superior Court of New Jersey for the purpose of enforcing our rulings, Plaintiff’s conduct was in accordance with the Agreement to Submit to Arbitration.
Meanwhile, in July 2017, Rabbi Veshnefesky and Ruth Veshnefesky filed
a Chancery Division action seeking to confirm the Rabbinical Court's decision.
They moved to proceed summarily. Rabbi Zisow and JLC, represented by the
same attorney, filed an answer and counterclaim. Defendants asserted, among
other defenses, that Rabbi Zisow had no personal liability; the arbitrators failed
to notify defendants of the proposed clarification of the award, and in any event,
the clarification was untimely; and, the arbitrators exceeded the scope of their
authority. In opposition to plaintiffs' motion to proceed summarily, Rabbi Zisow
signed and submitted a certification in which he averred, among other things,
that he signed the Arbitration Contract "only in my capacity as an officer of the
[JLC] and not as an individual."
In its counterclaim, JLC asserted that during negotiation of the
Agreement, Rabbi Veshnefsky made false representations concerning the
financial condition and operations of JLC. JLC also asserted that after signing
the Agreement, Rabbi Veshnefsky engaged in misconduct that made enforcing
A-1306-18T4 11 the Agreement inequitable. It sought equitable relief, invalidation of the
Agreement, and damages.
In January 2018, the trial court granted plaintiffs' motion to dismiss
defendants' counterclaim. Rabbi Zisow and JLC were still represented by the
same attorney. JLC did not contend Rabbi Zisow had no authority to bind the
JLC to the Arbitration Contract, nor did JLC contend it did not participate in the
arbitration. Rather, according to the transcript of oral argument on the motion,
defendants challenged the timeliness of the modifications of the initial award
and argued the facts underlying the counterclaim were not arbitrated because
they did not come to light until after the April 2016 arbitration proceeding.
The trial court subsequently granted summary judgment to plaintiffs and
entered an order confirming the Rabbinical Court's April 2016, May 2017, and
June 2018 awards. The trial court held Rabbi Zisow and JLC jointly and
severally liable for the arbitration award. The court directed JLC to execute a
mortgage to secure payment of the debt.
In granting summary judgment, the court rejected JLC's argument—made
by new counsel for JLC—that Rabbi Zisow had no authority to bind JLC and
therefore JLC had no knowledge of the arbitration while it was being conducted.
In doing so, the court noted a certification of JLC's former president, Theodore
A-1306-18T4 12 Lidsky, contradicted JLC's position. Moreover, a certification by JLC's current
president, Brian Paul, reflected only his "understanding" of past events rather
than his personal knowledge of those events. The court determined Rabbi Zisow
had the apparent authority to bind JLC, and JLC ratified its representation by
Rabbi Zisow before the Rabbinical Court.
Citing the language in the Arbitration Contract vesting continuing
jurisdiction in the Rabbinical Court in the event of a dispute between the parties
concerning the interpretation of the award, compliance, or request for
reargument, the court determined the parties vested the arbitrators with
continued authority to clarify their decision in the event disputes arose. The
trial court further determined that the parties' understanding of the Rabbinical
Court's continued involvement was born out by their behavior. Last, the court
determined the Arbitration Contract empowered the arbitration tribunal to
enforce its award.
Concerning the counterclaims, the trial court found that the broad
language of the Arbitration Contract, in which the parties agreed "to submit to
binding arbitration all controversies (claims and counterclaims)," conferred the
Rabbinical Court with the authority to determine any counterclaims asserted by
Rabbi Zisow and JLC. Because the counterclaims asserted in their Chancery
A-1306-18T4 13 Division answer fell within the scope of the matters to be arbitrated, the trial
court dismissed defendants' counterclaims.
The court also determined plaintiffs were not required to amend their
Chancery Division complaint with respect to the June 2018 Rabbinical Court's
clarification of its decision. When the court granted summary judgment to
plaintiffs, it also dismissed JLC's motion for reconsideration of its counterclaim.
This appeal followed.
II.
On appeal, Rabbi Zisow groups several arguments under his first point
heading that the trial court erred in granting summary judgment. He argues the
trial court's determination he had actual or implied authority to bind JLC was
made on an inadequate record, in the face of disputed material facts, and without
affording him adequate discovery. He argues the trial court should have heard
evidence relevant to the counterclaim, notwithstanding the counterclaim had
been dismissed, "if only as an offset to his claim." And he argues the trial court
erred by awarding plaintiffs' counsel fees.
In his second point heading, Rabbi Zisow argues the trial court should not
have confirmed the arbitration award. He contends the two post-award
modifications were untimely under New Jersey's version of the Uniform
A-1306-18T4 14 Arbitration Act (Arbitration Act), N.J.S.A. 2A:23B-1 to -36, no notice was
provided to defendants concerning the second modification, and "nothing in the
arbitration award . . . shows that the issues raised in the counterclaim were
presented to, or acted upon by, the arbitration panel." 1 Rabbi Zisow also argues
the JLC did not agree to arbitrate the dispute before the Rabbinical Court of
Lakewood and he did not agree to the third modification after one of the three
panel members died.
JLC argues the trial court erred by dismissing its motion for
reconsideration of its counterclaim. Acknowledging the issue of Rabbi Zisow's
authority to bind the JLC to arbitration was not raised in opposition to plaintiffs'
initial motion to dismiss the counterclaim, JLC nonetheless argues, "upon
receiving the certification of Mr. Paul in connection with the motion for
reconsideration, the trial court . . . should have ruled that there was a question
of fact . . . and . . . conducted a hearing to determine whether the JLC had . . .
authorized the arbitration before the Vaad." JLC also argues—for the first
1 Although the Arbitration Contract provides the parties submit themselves to the jurisdiction of the New Jersey Courts "for any action or proceeding to confirm or enforce a decree of the Arbitrators pursuant to N.J.S.A. 2A:24 -1 et seq.," that statute "shall only apply to an arbitration or dispute arising from a collective bargaining agreement or collectively negotiated agreement." N.J.S.A. 2A:24-1.1. The parties do not dispute the Arbitration Act applies to their Arbitration Contract. A-1306-18T4 15 time—the arbitration clause is invalid because it does not fairly apprise the
parties of their right to file suit in the Superior Court. JLC reiterates the trial
court improperly granted plaintiffs' summary judgment in the face of "dueling
certifications."
Opposing defendants' appeal, plaintiffs argue there was no question
concerning Rabbi Zisow's authority to bind JLC to the Arbitration Contract.
They point out that the Rabbi filed a certification "in which Zisow swore under
the penalty of perjury that he signed the arbitration agreements on behalf of the
JLC." Thus, according to plaintiffs, absent a subsequent certification by Rabbi
Zisow alleging "he committed perjury, or explain[ing] that the [certification]
was filed under some kind of duress," no genuinely disputed issue of material
fact existed.
Plaintiffs add that a competent certification from JLC's former president
confirms Rabbi Zisow was authorized to bind JLC. In contrast to this competent
certification, Mr. Paul's certification was incompetent because it was not based
on his personal knowledge.
Plaintiffs last argue the plain language of the Arbitration Contract
demonstrates the parties vested the arbitration tribunal with the power to decide
the issues it decided in its initial award and also its subsequent modifications.
A-1306-18T4 16 III.
A.
Our resolution of the issues raised by the appeal and cross-appeal is
guided by well-established principles concerning the arbitration of disputes.
"The goal of arbitration is to bring the parties' issues to a final resolution, 'in a
speedy, inexpensive, expeditious, and perhaps less formal manner' than full-
blown litigation in court culminating in a lengthy trial." Curran v. Curran, 453
N.J. Super. 315, 321 (App. Div. 2018) (quoting Minkowitz v. Israeli, 433 N.J.
Super. 11, 132 (App. Div. 2013)). New Jersey statutory and case law as well as
their federal counterparts express a "strong preference to enforce arbitration
agreements. . . ." Hirsch v. Amper Fin. Servs., LLC, 215 N.J. 174, 186 (2013).
In fact, arbitration is recognized as a "favored method for resolving disputes."
Garfinkel v. Morristown Obstetrics & Gynecology Assocs., P.A., 168 N.J. 124,
131 (2001). To that end, agreements relating to arbitration should "be read
liberally to find arbitrability if reasonably possible." Jansen v. Salomon Smith
Barney, Inc., 342 N.J. Super. 254, 257 (App. Div.).
For these reasons, "unless it may be said with positive assurance that the
arbitration clause is not susceptible of an interpretation that covers the asserted
dispute," the matter is arbitrable. Waskevich v. Herold Law, P.A., 431 N.J.
A-1306-18T4 17 Super. 293, 298 (App. Div. 2013) (citation omitted). "Courts have generally
read the terms 'arising out of' or 'relating to' [in] a contract as indicative of an
'extremely broad' agreement to arbitrate any dispute relating in any way to the
contract. . . ." Griffin v. Burlington Volkswagen, Inc., 411 N.J. Super. 515, 518
(App. Div. 2010) (quoting Angrisani v. Fin. Tech. Ventures, L.P., 402 N.J.
Super. 138, 149 (App. Div. 2008)).
After January 1, 2005, the Arbitration Act "governs an agreement to
arbitrate whenever made with the exception of an arbitration between an
employer and a duly elected representative of employees under a collective
bargaining agreement or collectively negotiated agreement." N.J.S.A. 2A:23B-
3(c). Certain terms of the Arbitration Act may be "varied or waived by
contract." Fawzy v. Fawzy, 199 N.J. 456, 469 (2009) (citing N.J.S.A. 2A:23B-
4); see also Kernahan v. Home Warranty Adm'r of Fla., Inc., 236 N.J. 301, 324
(2019). If parties do not contractually vary the terms of the Arbitration Act,
then its terms govern the arbitration proceeding. Kimm v. Blisset, LLC, 388
N.J. Super. 14, 28 (App. Div. 2006).
The Arbitration Act vests an arbitrator with broad authority. The authority
includes determining "whether a condition precedent to arbitrability has been
fulfilled and whether a contract containing a valid agreement to arbitrate is
A-1306-18T4 18 enforceable." N.J.S.A. 2A:23B-6(c). The Arbitration Act also authorizes the
arbitrator to "issue orders for provisional remedies, including interim awards, as
the arbitrator finds necessary to protect the effectiveness of the arbitration
proceeding and to promote the fair and expeditious resolution of the controversy,
to the same extent and pursuant to the same conditions as if the controversy were
the subject of a civil action. . . ." N.J.S.A. 2A:23B-8(b)(1).
The Arbitration Act provides the parameters of the arbitration process,
N.J.S.A. 2A:23B-15, including that the arbitration be conducted "in such manner
as the arbitrator considers appropriate for a fair and expeditious disposition of
the proceeding[,]" and authorizes the arbitrator to "hold conferences with the
parties to the arbitration proceeding before the hearing, and, among other
matters, determine the admissibility, relevance, materiality, and weight of any
evidence." N.J.S.A. 2A:23B-15(a). Under the Arbitration Act, the arbitrator
sets "a time and place" for the hearing, may adjourn the hearing, and "may hear
and decide the controversy upon the evidence produced [by a party] although a
party who was duly notified of the arbitration proceeding did not appear."
N.J.S.A. 2A:23B-15(c).
The Arbitration Act authorizes a court to vacate an arbitration award if:
(1) the award was procured by corruption, fraud, or other undue means;
A-1306-18T4 19 (2) the court finds evident partiality by an arbitrator; corruption by an arbitrator; or misconduct by an arbitrator prejudicing the rights of a party to the arbitration proceeding;
(3) an arbitrator refused to postpone the hearing upon showing of sufficient cause for postponement, refused to consider evidence material to the controversy, or otherwise conducted the hearing contrary to section 15 of this act, so as to substantially prejudice the rights of a party to the arbitration proceeding;
(4) an arbitrator exceeded the arbitrator's powers;
(5) there was no agreement to arbitrate, unless the person participated in the arbitration proceeding without raising the objection pursuant to subsection c. of section 15 of this act not later than the beginning of the arbitration hearing; or
(6) the arbitration was conducted without proper notice of the initiation of an arbitration as required in section 9 of this act so as to substantially prejudice the rights of a party to the arbitration proceeding.
[N.J.S.A. 2A:23B-23(a)(1) to (6).]
Because the decision to vacate or confirm an arbitration award is a
decision of law, our review is de novo. Manger v. Manger, 417 N.J. Super. 370,
376 (App. Div. 2010). Nevertheless, the scope of our de novo review is
"narrow," Fawzy, 199 N.J. at 470, and "is informed by the authority bestowed
on the arbitrator by the Arbitration Act." Manger, 417 N.J. Super. at 376.
A-1306-18T4 20 From the judiciary's perspective, once parties contract for binding arbitration, all that remains is the possible need to: enforce orders or subpoena issued by the arbitrator, which have been ignored, N.J.S.A. 2A:23B- 17(g); confirm the arbitration award, N.J.S.A. 2A:23B- 22; correct or modify an award, N.J.S.A. 2A:23B-24, and in very limited circumstances, vacate an award N.J.S.A. 2A:23B-23. If not for this limitation on judicial intervention of arbitration awards, "the purpose of the arbitration contract, which is to provide an effective, expedient, and fair resolution of disputes, would be severely undermined."
[Curran, 453 N.J. Super. at 321 (quoting Minkowitz, 433 N.J. Super. at 134).]
Generally, "errors of law or fact made by the arbitrators are not
correctable." Selective Ins. Co. v. Nat'l Cont'l Ins. Co., 385 N.J. Super. 62, 67
(App. Div. 2006) (citing Tretina Printing, Inc. v. Fitzpatrick & Assocs., Inc.,
135 N.J. 349, 357-58 (1994)). "[T]he judiciary has no role in the determination
of any substantive issues that the parties have agreed to arbitrate." Curran, 453
N.J. Super. at 321.
In the matter before us, intertwined with the foregoing principles are those
applicable to our review of a trial court's disposition of a controversy on
summary judgment. Appellate courts "review[] an order granting summary
judgment in accordance with the same standard as the motion judge." Bhagat
v. Bhagat, 217 N.J. 22, 38 (2014) (citations omitted). Our function is not "to
A-1306-18T4 21 weigh the evidence and determine the truth of the matter but to determine
whether there is a genuine issue for trial." Brill v. Guardian Life Ins. Co. of
Am., 142 N.J. 520, 540 (1995) (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249 (1986)); accord R. 4:46-2(c).
When applying this standard, courts bear in mind that "'unsubstantiated
inferences and feelings' are not sufficient to support or defeat a motion for
summary judgment." Petersen v. Twp. of Raritan, 418 N.J. Super. 125, 132
(App. Div. 2011) (quoting Oakley v. Wianecki, 345 N.J. Super. 194, 201 (App.
Div. 2001)). Nor are "'[b]are conclusions in the pleadings, without factual
support in tendered affidavits . . . .'" Ibid. (alteration in original) (quoting U.S.
Pipe & Foundry Co. v. Am. Arbitration Ass'n, 67 N.J. Super. 384, 399-400 (App.
Div. 1961)). Rather, a party must support or oppose a summary judgment
motion with competent evidence, including certifications "made on personal
knowledge, setting forth only facts which are admissible in evidence to which
the affiant is competent to testify. . . ." R. 1:6-6.
B.
We first address Rabbi Zisow's and JLC's arguments that genuine issues
of material fact precluded the trial court from determining Rabbi Zisow was
authorized to represent JLC. We disagree that either defendant established a
A-1306-18T4 22 genuinely disputed issue of material fact concerning that issue. The motion
record's undisputed evidence was to the contrary.
When defendants answered the complaint, Rabbi Zisow certified that
when he "signed the agreement to arbitrate, that was only in my capacity as an
officer of the [JLC] and not as an individual." He certified this was a true
statement, and he further certified his awareness "that if any of the foregoing
statements made by me are willfully false, I am subject to punishment." Rabbi
Zisow submitted no certification in opposition to plaintiffs' summary judgment
motion disavowing his previous certification or explaining the apparent
inconsistency between the certification he filed after answering the complaint
and the position he later asserted in the trial court.
Rabbi Zisow's certified representation he signed the Arbitration Contract
on behalf of JLC is confirmed by Theodore Lidsky, JLC's president from 2012
through 2017. In the certification he submitted in support of confirmation of the
arbitration award, Mr. Lidsky averred: "In April, 2016 [d]efendant Aaron Zisow
by then also a Director of the JLC who was operating the day-to-day functions
of the JLC, with my knowledge and permission entered into agreement to
arbitrate to resolve the dispute as a representative of the JLC, before a Bais Din,
to wit, Rabbinical Court of Lakewood Vaad Hadayanim."
A-1306-18T4 23 Rabbi Zisow and the JLC contend the certification of Brian Paul, president
of the JLC in 2018, presented a genuinely disputed issue of material fact as to
Rabbi Zisow's role in the arbitration proceedings. However, Paul's certification
was not competent evidence on the motion record. His certification did not
establish he was attesting to facts based upon personal knowledge which would
have been admissible in evidence. R. 1:6-6. His certification does not even
address Rabbi Zisow's certification, which on its face contradicts Mr. Paul's
averments.
Rabbi Zisow notes that during oral argument his attorney "proffered" that
Theodore Lidsky was ill and he should be permitted to obtain discovery
concerning Mr. Lidsky's medical condition. Rabbi Zisow also points out the
Lidsky certification was submitted with plaintiffs' reply papers, not in the
original papers.
These arguments are unpersuasive. First, a "proffer" is not competent
evidence on a summary judgment motion. Petersen, 418 N.J. Super. at 132.
Next, the mere fact of an illness does not establish an impairment of one's
memory or, for that matter, any other reason bearing on one's competence to file
a certification. Last, and perhaps most important, Rabbi Zisow made no effort
on the motion record to disavow his previous certification. We thus find no
A-1306-18T4 24 error in the trial court's determination, and our de novo review does not lead us
to the conclusion that summary judgment was improvidently granted.
C.
Rabbi Zisow's arguments that the trial court should have considered the
counterclaims warrant little discussion. The Arbitration Contract by its terms
encompassed counterclaims. Moreover, it provided that "if a Party motions for
reargument due to their claim of . . . new evidence . . . the Parties agree that the
Arbitrator shall have binding jurisdiction on the matters, and the Parties
authorize the Arbitrator to add to, amend, change, or clarify a decision, to the
extent permitted by law." Thus, the Arbitration Contract provided for resolution
by the arbitration tribunal of counterclaims, including counterclaims based on
new evidence. Defendants have not explained how they discovered the alleged
basis for a counterclaim, when they discovered it, or why they could not have
presented it to the arbitration tribunal in the years following the tribunal's initial
decision. Considering those circumstances, the trial court did not err by refusing
to consider the counterclaim.
For the same reasons, we reject JLC's arguments the trial court erred by
dismissing their counterclaim and denying their reconsideration motion. JLC
also appears to argue the trial court erred by dismissing its counterclaims and
A-1306-18T4 25 denying the reconsideration motion because there was a factual dispute as to
whether Rabbi Zisow represented JLC during the arbitration proceedings. We
have previously addressed that issue and there is no need to revisit it.
JLC also attempts to raise for the first time, in the context of its arguments
about its counterclaim, that the Arbitration Contract was invalid because it did
not adequately inform JLC of its right to seek relief in Superior Court. It is well
settled that "our appellate courts will decline to consider questions or issues not
properly presented to the trial court when an opportunity for such a presentation
is available 'unless the questions so raised on appeal go to the jurisdiction of the
trial court or concern matters of great public interest.'" Nieder v. Royal Indem.
Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co., Inc. v. Summer,
58 N.J. Super. 542, 548 (App. Div. 1959). We thus decline to consider the issue.
D.
Rabbi Zisow next argues the arbitration tribunal exceeded its authority by
issuing two untimely rulings following its initial award. It is evident from the
broad language in the Arbitration Contract—both the English version and the
translated Hebrew version—the parties fully intended to have the Rabbinical
Court retain jurisdiction until all matters concerning their dispute were resolved.
Moreover, the Rabbinical Court's third ruling can be fairly characterized as an
A-1306-18T4 26 enforcement ruling following Rabbi Zisow's persistent and longstanding refusal
to abide by the parties' Agreement and the Rabbinical Court's decision. We also
note that if Rabbi Zisow's argument concerning the timeliness of the Tribunal's
second and third rulings were accepted, the Tribunal's initial decision would
remain intact and Rabbi Zisow would be personally and solely liable to
plaintiffs.
IV.
We have considered the parties' remaining challenges to the trial court's
decisions and the Rabbinical Court's rulings and have found them to lack
sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).
In addition to his arguments challenging the trial court's substantive
rulings concerning arbitration, Rabbi Zisow challenges the court's ruling
concerning the award of attorney's fees to plaintiffs. We agree the matter must
be remanded on that issue.
We reject Rabbi Zisow's argument plaintiffs are not entitled to counsel
fees. The Arbitration Contract specifically provides "[i]n the event that a Party
does not abide by and perform any award or decision rendered by the Arbitrators
or seeks to vacate such decision or award, the Parties authorize the Arbitrators
to award additional fees and legal costs." To the contrary, he has attempted to
A-1306-18T4 27 avoid its decisions by refusing to comply with them, implicitly disavowing a
certification he filed with the trial court, and taking conflicting position s
concerning his relationship to and representation of the JLC. JLC, too, has
refused to fulfill its contractual commitments to plaintiffs, as determined and
enforced by the Rabbinical Court.
Nonetheless, plaintiffs' certification in support of the fee application was
deficient. Counsel making an application for fees and costs must comply with
R. 4:42-9(b), which requires an affidavit addressing the factors enumerated in
RPC 1.5(a). Scullion v. State Farm Ins. Co., 345 N.J. Super. 431, 439 (App.
Div. 2001). Plaintiffs' counsel did not comply with these requirements. Rather,
he submitted a certification attesting to the lump sum fees his firm charged
plaintiffs. Accordingly, we vacate that part of the trial court's final order that
awarded counsel fees to plaintiffs and remand the matter for consideration by
the trial court after plaintiffs submit a proper fee application and defendants
have been afforded an opportunity to respond. Plaintiffs may include the fees
incurred for opposing this appeal.
Affirmed in part, vacated in part, and remanded for further proceedings
consistent with this decision. We do not retain jurisdiction.
A-1306-18T4 28