In Re Mosdos Chofetz Chaim Inc.

Opinion

22-2926-bk In re Mosdos Chofetz Chaim Inc.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the 2 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 3 6th day of October, two thousand twenty-three. 4 5 Present: 6 DEBRA ANN LIVINGSTON, 7 Chief Judge, 8 JOSÉ A. CABRANES, 9 RICHARD J. SULLIVAN, 10 Circuit Judges. 11 _____________________________________ 12 13 In re Mosdos Chofetz Chaim Inc., 14 15 Debtor. 16 _____________________________________ 17 18 AARON D. GEWIRTZMAN, BENT PHILIPSON, DANIEL 19 ROSENBLUM, JOSEPH GRUNWALD, MARK BLISKO, 20 SHIMON ZAKS and RABBI MAYER ZAKS, 21 22 Plaintiffs-Appellants, 23 24 v. 22-2926 25 26 SAMUEL MARKOWITZ, STEVEN M. GREEN, DANIEL 27 GREEN, YEHUDA BLUMINFELD and YOM T. HENIG, 28 29 Defendants-Appellees. *

* The Clerk of Court is respectfully directed to amend the official case caption as set forth above.

1 30 _____________________________________ 31 32 For Plaintiffs-Appellants: Robert A. Spolzino, Abrams Fensterman, LLP, White 33 Plains, NY. 34 35 For Defendants-Appellees: Michael Levine, Levine & Associates, P.C., Scarsdale, 36 NY; Tracy L. Klestadt, Klestadt Winters Jureller 37 Southard & Stevens, LLP, New York, NY. 38 Appeal from a judgment of the United States District Court for the Southern District of

New York (Halpern, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

Plaintiffs-Appellants Aaron Gewirtzman, Bent Philipson, Daniel Rosenblum, Joseph

Grunwald, Mark Blisko, Shimon Zaks, and Rabbi Mayer Zaks (“Appellants”) appeal from the

October 13, 2022 judgment of the United States District Court for the Southern District of New

York (Halpern, J.) affirming the bankruptcy court’s award of summary judgment in favor of

Defendants-Appellees Samuel Markowitz, Steven Green, Daniel Green, Yehuda Bluminfeld, and

Yom Henig (“Appellees”). On appeal, Appellants assert that the bankruptcy court lacked subject

matter jurisdiction to hear the underlying dispute and to rule on Appellees’ motion for summary

judgment. In addition, Appellants argue that the bankruptcy court erroneously granted summary

judgment in favor of Appellees given the existence of genuine issues of material fact and that it

did so prematurely, before Appellants could conduct sufficient discovery to oppose the motion for

summary judgment. Appellants assert that the district court’s affirmance of the bankruptcy

court’s summary judgment order was erroneous. For the reasons set forth below, we disagree

with each of these contentions. We assume the parties’ familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal.

* * *

2 To determine the scope of a bankruptcy court’s jurisdiction in the post-confirmation

context, we consider whether “the matter has a close nexus to the bankruptcy plan . . . and the plan

provides for the retention of such jurisdiction.” In re Euro-Am. Lodging Corp., 549 Fed. Appx.

52, 54 (2d Cir. 2014) (summary order). Though we have never adopted these inquiries as a

formal test in a published opinion or determined whether they extend to core proceedings, we have

repeatedly cited them as guiding principles for assessing a bankruptcy court’s jurisdiction after a

plan of reorganization has been confirmed. See In re Mosdos Chofetz Chaim Inc., 2023 WL

105715, at *3 (2d Cir. 2023) (summary order); In re DPH Holdings Corp., 448 Fed. Appx. 134,

137 (2d Cir. 2011) (summary order). Here, we need not definitively resolve those questions

because – assuming these inquiries apply – both are satisfied here.

First, the instant litigation affects the bankruptcy court’s ability to enforce its own prior

orders. The bankruptcy court’s issuance of an injunction on May 25, 2021 in a related adversary

proceeding specifically prohibited Rabbi Mayer Zaks and “those acting in active concert or

participation with him” from entering onto or remaining on the property at issue. A-665–69.

And its subsequent contempt and enforcement orders contemplated that those named in the

injunction, including Rabbi Mayer Zaks, had no legal right to enter onto or remain on that property

or any structure located thereupon. Appellants’ present claim that they constitute the entity that

owns the property, Congregation Radin Development Inc. (“CRDI”), is a direct threat to those

prior orders issued by the bankruptcy court. The bankruptcy court’s decision to enforce its prior

orders falls squarely within its “core” jurisdiction, see In re Motors Liquidation Co., 829 F.3d 135,

153 (2d Cir. 2016); In re Millenium Seacarriers, Inc., 419 F.3d 83, 96 (2d Cir. 2005), and was

necessary “to effectuate [the] plan of reorganization[,]” Reese v. Beacon Hotel Corp., 149 F.2d

610, 611 (2d Cir. 1945); see also In re DPH Holdings Corp., 448 Fed. Appx. at 137; In re Gen.

3 Media, Inc., 335 B.R. 66, 73–74 (Bankr. S.D.N.Y. 2005).

Second, the plan of reorganization at issue—that of Mosdos Chofetz Chaim Inc.—contains

broad jurisdictional clauses that clearly encompass the present dispute. For example, the plan

provides that the bankruptcy court retains jurisdiction to “enforce all orders, judgments,

injunctions, and rulings entered in connection with the Case”; “[r]esolve any and all controversies,

suits or issues that may arise in connection with the consummation, interpretation or enforcement

of the Plan”; and “[d]etermine any dispute arising under or related to the Plan.” A-91. These

clauses are broad enough to permit the bankruptcy court to exercise jurisdiction over the present

litigation. Accordingly, the bankruptcy court had subject matter jurisdiction to hear this dispute,

and we affirm the district court’s resolution of this question.

Appellants next argue that the bankruptcy court erroneously granted summary judgment in

favor of Appellees despite the existence of genuine issues of material fact. We review the

bankruptcy court’s order—and the district court’s affirmance of the same—de novo. See In re

Blackwood Assocs., L.P., 153 F.3d 61, 67 (2d Cir. 1998) (“[W]e review a grant of summary

judgment de novo . . . .”); see also In re Anderson, 884 F.3d 382, 387 (2d Cir. 2018) (explaining

that this Court “engage[s] in plenary, or de novo, review of the district court decision[,]” applying

“the same standard of review employed by the district court to the decision of the bankruptcy

court”).

Summary judgment is appropriate where “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter

of law.” Hellstrom v. U.S. Dep’t of Veterans Affs., 201 F.3d 94, 97 (2d Cir. 2000) (internal

quotation marks omitted). While the moving party bears the burden of demonstrating that no

4 genuine factual dispute exists, Vt. Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244

(2d Cir. 2004), the opposing party must respond with “specific facts showing that there is a genuine

issue for trial” if the movant meets its initial burden, Souza v. Exotic Island Enters., Inc., 68 F.4th

99, 108 (2d Cir. 2023) (internal quotation marks omitted). In ruling on a motion for summary

judgment, a court must “examine the evidence in the light most favorable to, and draw all

inferences in favor of, the non-movant.” Lucente v. IBM Corp., 310 F.3d 243, 253 (2d Cir. 2002).

Appellants assert that they submitted sufficient evidence, in the form of fifteen

declarations, to preclude summary judgment. On a motion for summary judgment, “the judge’s

function is not himself to weigh the evidence and determine the truth of the matter but to determine

whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249

(1986). But a court does not err in granting summary judgment where the evidence presented is

“merely colorable” or is “not significantly probative.” Id. at 249–50. Rather, the opposing

party “must offer some hard evidence showing that its version of the events is not wholly fanciful”

in order to survive summary judgment. Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir.

2005) (internal quotation marks omitted). Appellants have not done so here. Their declarations

rely on conclusory assertions that those in attendance at the alleged meetings occurring on May

25, 2021 and September 1, 2021 were “members” of CRDI entitled to vote on matters related to

the organization’s Board of Trustees. But conclusory assertions are insufficient to raise a genuine

issue for trial where a movant has demonstrated that “there is no evidence in the record upon which

a reasonable factfinder could base a verdict in the [opposing party’s] favor.” Id.; see also Major

League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 310 (2d Cir. 2008) (“A party opposing

summary judgment does not show the existence of a genuine issue of fact to be tried merely by

making assertions that are conclusory . . . .”). Having offered no other evidence that the

5 declarants are members of CRDI, Appellants fail to demonstrate the existence of a genuine factual

dispute.

This conclusion is especially appropriate given the lengthy history of litigation between

Appellants and CRDI. Where “no reasonable jury could . . . credit[] [the opposing party’s]

testimony[,]” a court does not err in awarding summary judgment. Jeffreys, 426 F.3d at 551.

Accordingly, the district court properly considered whether a jury would believe Appellants’

declarations, which incredibly asserted that “the same people who have for years been adverse to

and have repeatedly sued CRDI” suddenly became CRDI. SPA-14.

Finally, Appellants argue that the bankruptcy court prematurely, and thus improperly,

granted summary judgment without allowing Appellants to conduct discovery on issues they claim

would have precluded summary judgment. As a general matter, summary judgment is only

proper “if after discovery, the nonmoving party has failed to make a sufficient showing on an

essential element of its case with respect to which it has the burden of proof.” Hellstrom, 201

F.3d at 97 (alterations and internal quotation marks omitted). Before the court determines

whether the opposing party has failed to make such a showing, the opposing party is ordinarily

entitled to an “opportunity to discover information that is essential to his opposition.” Id.

(internal quotation marks omitted). “Only in the rarest of cases may summary judgment be

granted against a plaintiff who has not been afforded the opportunity to conduct discovery.” Id.

But that rare case occurs where the opposing party “proffer[s] no persuasive basis for the

district court to conclude that further discovery would yield” evidence in support of the opposing

party’s claims. Trebor Sportswear Co., Inc. v. Limited Stores, Inc., 865 F.2d 506, 512 (2d Cir.

1989). This is such a case. Appellants have pointed to no basis for concluding that further

discovery would shed light on their claim that the declarants are voting members of CRDI, which

6 is the central issue on which the bankruptcy court granted summary judgment. Accordingly, the

bankruptcy court properly denied Appellants’ request to conduct further discovery, and the district

court properly affirmed the same.

We have considered Appellants’ remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk