court procedings

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND - - - - - - - - - - - - - - - - - - - - - - X In the Matter of the Application of: PHILLIP SCHONBERGER concerning the In-ground Burial of the remains of MARTIN MENDELSON, Index No.

Petitioner, 1612/2015 against,

HELLMAN MEMORIAL CHAPELS and STEVEN MENDELSON,

Defendant. - - - - - - - - - - - - - - - - - - - - - - X Trial - Day#1 October 8, 2015

Rockland County Courthouse 1 South Main Street

New City, New York 10956

B E F O R E: HON. VICTOR J. ALFIERI Acting Supreme Court Judge

A P P E A R A N C E S:

BETH B. FINKELSTEIN, PC Attorney for Petitioner 107 North Main Street New City, New York 10956 ALSO BY: FEERICK, LYNCH & MacCARTNEY, PC Attorneys for Petitioner 96 South Broadway South Nyack, New York 10960 BY: DENNIS LYNCH, ESQ. HOLWELL, SHUSTER & GOLDBERG, LLP Attorneys for Defendant 125 Broad Street, 39th Floor New York, New York 10004

BY: BRENDON DeMAY, ESQ. BY: RICHARD HOLWELL, ESQ.

REPORTED BY: AMBER MALKIE FINER, R.P.R. Senior Court Reporter

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Schonberger v Hellman

THE COURT: On the record.

This is Schonberger versus Hellman Memorial et

al.

MS. FINKELSTEIN: Good morning, Judge.

Beth Finkelstein, Law Office of Beth

Finkelstein, 107 North Main Street, New City, New

York for Mr. Schonberger, who is to my left.

MR. LYNCH: Your Honor, Dennis Lynch -

Feerick, Lynch & MacCartney, 96 South Broadway,

South Nyack, New York 10960, co-counsel to my

esteemed counsel here, Beth Finkelstein.

MR. DeMAY: Good afternoon, Your Honor.

Brandon DeMay of Holwell, Shuster & Goldberg,

125 Broad Street, 39th Floor, New York, New York

10004, for the respondent Steven Mendelson.

MR. HOLWELL: Richard J. Holwell of Holwell,

Shuster & Goldberg, 125 Broad Street, for the

respondent Steven Mendelson.

THE COURT: Do you need a Notice of Appearance

for I -- don't think we have one for the Holwell

firm?

MR. DeMAY: I submitted it to the clerk an

hour or so ago.

THE COURT: All right. We'll see everyone

back at 2 o'clock.

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MR. LYNCH: I will not be here at 2:00, but I

will be here tomorrow.

(Whereupon, there is a break in the proceeding

while the Court recessed for lunch.)

THE COURT: This is Schonberger versus Hellman

Memorial. We have appearances.

Please call your first witness.

MS. FINKELSTEIN: Your Honor, we call Rabbi

Sholom Sperlin.

(Whereupon, the witness Sholom Sperlin

ascended the witness stand.)

THE COURT: Good afternoon.

SHOLOM SPERLIN, having been first duly affirmed, wa s

examined and testified as follows:

COURT OFFICER: Have a seat. Get comfortable

with the microphone.

Give your name and address for the record.

THE WITNESS: Sholom Sperlin.

THE COURT: Your address, sir?

THE WITNESS: 487 New Hempstead Road, New

City.

MS. FINKELSTEIN: Good afternoon, Rabbi.

THE COURT: Wait one second.

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Direct - Sperlin - Finkelstein

Sir, you're close to the microphone. That's

good.

Keep your voice up so everyone can hear you.

If an objection is made to a question, please

don't make an answer until I've had an opportunity

to rule on the objection.

If you're not sure, just ask and I'll advise

you whether you can go ahead.

If you don't understand a question, indicate

that. I'll have it clarified for you in some way.

Please allow the attorneys to finish asking

their question before you start making your answer.

I'll advise them, likewise, to allow you to finish

your answer before they ask their next question.

Okay. Go right ahead.

MS. FINKELSTEIN: Thank you, Your Honor.

DIRECT EXAMINATION BY MS. FINKELSTEIN:

Q. Good afternoon, Rabbi.

Rabbi, can you tell us where you attended

rabbinical school?

A. Morristown, New Jersey in 1972/1973.

Q. And are you familiar with the Evergreen Court

Residence for Adults?

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A. Yes, I worked there for three years.

Q. What three years was that, sir?

A. From 2004 at September through 2007.

Q. And in what capacity did you work for the

Evergreen home?

A. Being the rabbi, performing all the religious

services needed.

Q. Now during that time period of 2004 to 2007, can

you describe those religious services that you

provided to the Evergreen residents?

A. Yes.

Every Friday night we gathered all the Jewish

people, who wanted to attend the services, for abou t

45 minutes. Before that we used to light candles

with the ladies. And in the morning, for about an

hour and a half, we used to have services.

Q. When you say in the morning, are you referring to

Shabbos services Saturday morning?

A. Shabbos and all religious holidays.

Q. So let me first discuss. So, you said it -- was

it every Friday night that you had these services f or

45 minutes?

A. Yes.

Q. That occurred during the entire period you were

employed there, from September of '04 to 2007?

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A. Yes.

Q. And did part of that service include reading from

the Torah?

A. Yes. In the morning we used to read from the

Torah and at night it was only from the prayer book .

Q. Was there a special location within the Evergreen

home where these services took place?

A. Yeah, there was a special room that had a Jewish

ark for the Torahs. And we kept all the prayer boo ks

there. And that was the room that we used to do th e

service.

Q. And these prayer books were provided to those

residents that attended these services?

A. Yes, I used to give them out.

Q. Now you said you performed -- we're going to go

back a little bit. I want to know the other

additional services, religious services you provide d

to the Evergreen residents during that time period,

other than the Friday and Saturday services?

A. It was on Channukah - on Hannukah - we used to

light the candles eight -- eight evenings. We used

to gather the people around the menorah. Some of

them lit by themselves. Some of them just observed

and watched.

Q. Now with the lighting of the candles, did you

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include the residents in this participation in thes e

lightings?

A. Yes.

Q. How would you do so?

A. I used to give them the candle. They used to

light. We had several menorahs, 10 or 15, and

whoever wished to light used to light.

Q. So they would volunteer to light the candles?

A. Yes. I would ask them and they said they want to

and they --

Q. And as they would light the candles would there

be any special prayer that they would recite as the y

light?

A. Yes, there's a blessing you say before and a

little song we sing afterwards.

Q. Now, other than the Hannukah holidays, what other

holidays did you provide --

A. There is Pass --

Q. Let me just finish the question, because she

can't report both of us at the same time and I talk

quick enough already.

THE COURT: Yeah, slow down a little bit.

MS. FINKELSTEIN: I know, Your Honor. I

apologize.

Q. So other than the Hannukah holiday, what other

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holidays did you provide services for the residents ?

A. There is Passover.

Q. And what did that consist of?

A. Making a seder.

Q. And what is a seder, sir?

A. A seder is, there are certain things we have to

do the night of the seder to memorialize the exile of

the Jewish people of Egypt. And we eat Matzah. An d

we drink some grape juice. We --

Q. If I just may interrupt.

The seders -- how many nights is Passover?

A. Passover is eight days, but the seders are only

two times, the first two nights, the first two

evenings.

Q. So you would offer the seder services for the

first two evenings of Passover?

A. Yes.

Q. And how would the residents know whether or not

to attend?

A. There used to be a notification that the seder

will take place at this and this time. A matter of

fact, the seder, the whole dining room was

participating, every single one.

Q. How about with regard to the prayers that were

offered during the course of seder, would the whole

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dining room do it is or just certain members?

A. Well, obviously, I used to give it to the people

that could read from the Haggadah. We had it in

English. So, some of the Jewish people used to rea d

it.

Q. Now, in addition to Passover, what other

holidays, religious holidays did you provide servic es

to the residents?

A. Seven weeks after Passover, there is another

holiday. That's when the Torah was given to us.

That's a two-day holiday.

Q. And what is that called, sir?

A. Shavuot.

Q. And what did you do for the residents of

Evergreen?

A. Basically the same that we do Saturday. We do

the prayers, read the Torah.

Q. And would this also involve the participation of

the residents in the reading and prayers?

A. Yes.

Q. Now what other holidays did you provide services

to the residents?

A. After that comes Rosh Hashana, which is the

Jewish new year.

Q. And what did do for the new year?

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A. Well, the main theme of the day is blowing of

shofer, but it also includes many prayers, more tha n

the average Saturday or --

Q. And how long would that service typically take?

A. Close to two hours.

Q. Once again, would the residents participate in

this service?

A. Yes, they would come all to the room and sit

down. And I used to give them the prayer books. A nd

we used to pray together nicely.

Q. When you say you prayed together, there are

certain portions of the service they have to recite

aloud?

A. Yes. I used to make sure to take them all into

the service and I used to give everyone a piece to

say.

Q. And there were certain readings that the

participants read from?

A. Yes, from the prayer book.

Q. And how about songs, were there any specific

songs also recited?

A. Part of the prayers which would go along with a

song, I would try to do it with a song, just to mak e

the people feel more excited.

Q. Now on this holiday Rosh Hashana, is there a two

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part service or just one part?

A. Well, there is part -- we do the this as part of

the service, and then goes the reading of the Torah

and the blowing of the shofer. And in the afternoo n,

another 45 minutes, we do another prayer. And that

is done both days the same thing.

Q. Any other holidays which you also provide

services to the residents?

A. Yes. On Yom Kippur, which is the Day of

Atonement. And then we -- as a matter of fact, I

used to sleep over that night, because I did servic e

at night and in the morning.

Q. And what did that service consist of?

A. Basically it's prayers, because you can't eat.

So the theme of day is just to fast and to do the

prayers.

Q. How long did this fast take?

A. It takes 24 hours.

Q. And is there a special service at the conclusion

of 24 hours?

A. A blowing of the shofer for about 15 seconds.

Q. Other than those holidays, are there any other

holidays --

A. Yes.

Q. -- in which you provide services to the residents

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of Evergreen?

A. Yeah. The following holiday is Succos, which we

just had last week. That is building the Succah, a

little -- a little hut from wood. And that was in

the front of the building. And we used to call in

the people to eat something in the Succah and also to

shake the lulov. You take like a palm tree and som e

kind of citrus lemon and you shake. It's a symbol of

thanking God for all the good that he did for us.

Q. So you said you built -- it would be a succah

that was built and then they would eat in the succa h?

A. Whoever wished to come in, we used to bring into

the succah and give them to eat, especially the men .

Q. And other than that holiday, any other holidays

in which you provided services to the residents?

A. According to the yearly round, I just went

through the whole year.

Q. Now, sir, are you -- were you familiar --

THE COURT: What about Simchat Torah?

THE WITNESS: That's the last days of Succot

is called Simchas Torah.

THE COURT: So that's one and the same

holiday?

THE WITNESS: Yes, it's nine days. The last

two days are -- have a different name.

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THE COURT: Thank you.

Q. And are there special services for Simchat Torah?

A. Yes. We take the Torah, we dance, because we're

happy that we have a very special routine in our

lives.

Q. And what about Purim, do you provide any services

for the residents during the holiday of Purim?

A. Yes.

Q. What do you do for them?

A. On Purim we read the megillah, that's the whole

story that happened back then in Iran and the savin g

of the people, Jewish people.

Q. When you say we -- when you say we, would you

read together with the residents?

A. No, that's something that one reads and everyone

has a prayer book and makes sure to listen to every

word.

Q. Now are you familiar -- were you familiar, during

your employment at the Evergreen, with a resident b y

the name Martin Mendelson?

A. Yes.

MS. FINKELSTEIN: I'm just going to ask that

following four by six photograph be marked for

identification, I guess, as 1.

THE COURT: Number 1.

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MS. FINKELSTEIN: I have provided copies. I

believe you got copies in the packet I provided.

Prior, Your Honor, I provided copies to

Respondents.

(Whereupon, a photograph was marked

Plaintiff's Exhibit 1 for identification.)

THE COURT OFFICER: Show the witness?

MS. FINKELSTEIN: With the Court's permission,

yes.

(Whereupon, the witness looked at a

photograph.)

Q. Rabbi, do you recognize the individual that's

depicted in that photograph.

A. One hundred percent.

Q. Who do you recognize that to be?

A. Mr. Mendelson, Martin Mendelson.

Q. And how do you recognize Martin Mendelson? How

do you know him?

A. He used to come Friday night to the services. I

remember exactly where he used to sit, in the back of

the shul, towards the back, a few rows behind.

Q. And so he would attend that 45-minute service

that you offer on Friday nights?

A. Yes.

Q. Okay. What about that service you offer, which

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is approximately an hour and a half, on Saturday

mornings?

A. He used to come then in the morning as well.

Q. And when he came to each of those services, was

he provided with a book?

A. Yes.

Q. What kind of -- what was the book called?

A. A siddur.

Q. And would -- During the course of the service

would you see him utilizing that?

A. Yes, he used to read from the English. I used to

tell him read a piece on the English side.

Q. Now you recited -- you testified as to many

holidays in which you provided services to the

residents of Evergreen.

Did Mr. Mendelson, the individual depicted in

that photo, did he attend all the services?

A. Yes.

THE COURT: You indicated that he read. And i

think you sort of implied he read a loud to the

entire congregation?

THE WITNESS: Yes.

Q. Could you give me an example of why he would read

a loud?

A. So the other people can hear what he says so they

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also participate in that piece of the prayer.

Q. And the individual who's depicted, that you

identified as Martin Mendelson, that's how he

appeared when you provided services to him in 2004 to

2007?

A. Yes. He used to come down, you know, from his

room. And he used to walk a little slower, because

he had a little bit difficulty with his foot. I

remember always he used to walk in. He used to sit

down in his place, by himself over there.

THE COURT: Was the book that he read from in

English or --

MR. DeMAY: We had both sides. One is

English, one is Hebrew. So, most of the people

only read on the English side.

Q. And, Mr. Mendelson, do you recall if he read the

Hebrew portion or the English portion?

A. The English.

MS. FINKELSTEIN: Your Honor, I would offer

Petitioner's 1 for identification into evidence.

THE COURT: Any objection? Show that to Mr.

DeMay.

MR. DeMAY: No objection, Your Honor.

THE COURT: Okay. Mark that as 1 in evidence.

(Whereupon, Plaintiff's Exhibit 1, previously

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marked for identification, was moved into

evidence.)

Q. So, let me start with the Hannukah holiday. You

indicated that you provided for eight nights you

would light the candles.

Would Mr. Martin Mendelson, who was identified

in the photograph, would he participate in this?

A. Yes, he used to light. I used to give him a

candle. He used to light one of the menorahs.

Q. And when he would light one of the menorahs,

would he recite anything?

A. Yes, in English, there was a prayer and he used

to say that.

Q. Would he do that for the eight nights of

Hannukah?

A. Yes.

Q. So that would have been he lit the eight nights

of Hannukah for the three years while you were ther e?

A. Yes.

Q. Now with regard to Passover, did Mr. Mendelson

participate in your Passover services and seder?

A. Yes, he would, with the whole dining room and him

included.

Q. And what role would he play in the Passover

seder, if you recall?

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A. I would give him a piece of the Haggadah, the

prayer that we say at the seder night.

Q. And is that Haggadah in English or Hebrew?

A. Again, it has a Hebrew side and an English side.

Q. Do you recall if Mr. Mendelson recited any

Hebrew, or was it only English?

A. Only English.

Q. And would this be voluntary, which he would

volunteer to do this reading?

A. Yes, I never forced anyone to come.

Q. And was there a special meal for the Passover?

A. Yes, it was the regular supper, but we had some

Matzah and some grape juice and another few little --

the seder plate it's called. Some bitter herbs tha t

they would --

THE COURT: I have a question for

clarification. I think the attorney meant whether

it was voluntary; in other words, did he recite the

prayer voluntary or did he have to be called on,

something they do in order?

THE WITNESS: Well, I used to give a piece of

prayer to each person who wanted to say. And when

I came to him, he was more than glad to say it.


Q. Now for each of the other holidays, for Rosh

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Hashana, what -- did Mr. Mendelson participate in

those ceremonies and services?

A. Yes.

Q. And what role, if any, did he play?

A. Well, the blowing of the shofer no one could do,

because it's a hard job. That I had to do. But th ey

were more than glad to listen to the shofer. No on e

walked away. And it's like every other time that w e

did service, we used to distribute the pieces to th e

people sitting in the room to say.

Q. And did he recite the prayers?

A. Yes.

Q. And did he volunteer to do so? Did he come

forward to volunteer to do these prayers?

A. Well, they knew I'm going to ask everyone did

they want to say something and most of the time

everyone used to take the prayer book and say it.

Q. But the Rosh Hashana holiday, that was not done

in the cafeteria, correct?

A. No, not in the cafeteria.

Q. Was that done in the synagogue?

A. In the synagogue, yeah.

Q. Yom Kippur, was Mr. Mendelson present for

those -- for that service as well?

A. Yes.

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Q. Could you tell me how that differed the time of

the Yom Kippur service?

A. Well, we used to start about 9:30 until about

11:30 or a quarter to 12. Then we had a break for a

number of hours. And then I came back about from

about 5:00 to 7:00.

Q. And would he been present at both of those

services, Mr. Mendelson?

A. Yes, because in the evening we blow the shofer,

so he liked to participate and hear that.

Q. Now all the other holidays in which you've

indicated, Succot and Simchat Torah, was

Mr. Mendelson present for all of those services as

well.

A. Yes, he always used to come. Whenever there was

anything doing, he looked -- it seemed like he look ed

forward to come.

Q. When you say anything doing, you mean religious

services?

A. Yes.

Q. Did you participate in any other activities or

events at the home, other than religion services?

A. Not that I recall.

Q. Now, did you have any conversation with Martin

outside of the service through these years?

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A. Well, sometimes after people had left and there

was finished, he would come over, ask certain thing s

about Torah, about God, about Moses and something t o

do with the holiday that was that holiday, whatever

it was. He would ask me and he would like very muc h

to listen what I said. And that was basically --

that was basically it.

Q. During your services, did you provide a sermon to

the residents?

A. Yes.

Q. Which was significant to the --

A. Yeah, to the day of the reading of the portion of

that -- of that day. Every Saturday it's a differe nt

portion that we read in the Torah, so I would talk a

little bit about that.

Q. And would Martin ask you questions with regard to

your sermon of the Torah portion for that day?

A. Yes, but not during the reading of the sermon,

the saying of the sermon. A little later on when w e

were finished and people used to basically leave to

lunch or whatever, sometimes he used to hang around

and like to ask me certain things and talk.

Q. So he actually stayed after the services was done

to talk with you?

A. Yes. Not every time, but many times.

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Q. Do you recall him ever having conversations with

you regarding his family or his life?

A. No.

Q. Specifically the conversations were limited to

Jewish beliefs and the faith?

A. Basically, because medically I had nothing to be

able to help him.

Q. What do you mean medically you have nothing --

A. It was no point. He had no point in asking me

anything about medical or other kind of questions

nothing that directly with religion.

Q. And do you recall Martin's roommate?

A. Yes, Mr. Lerner.

MS. FINKELSTEIN: I just ask the following

photograph be marked for identification as

Plaintiff's 2.

THE COURT: Okay. Number 2.

(Whereupon, a photograph was marked


COURT OFFICER: 2 for ID. Show the witness?

MS. FINKELSTEIN: Please.

Q. Rabbi, do you recognize that photograph?


photograph.)

A. Yes, this person is right now with us in our

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nursing home where I work now. I see him every day

because I do some prayers with him every day.

Q. What's his name?

A. Mr. Learner, Chaim Lerner.

Q. Where is that, that you see him every day?

A. In Friedwald Rehabilitation, down the road.

Q. Did you know Mr. Lerner from Evergreen?

A. Yes, I knew him when he was a roommate with

Mr. Mendelson.

Q. And is Mr -- actually, withdrawn.

Do you know how long, that you know of, that

they were roommates, Mr. Mendelson and Mr. Lerner?

A. At least a year. At least a year, maybe a year

and a half.

Q. And that was prior to your departure, a year and

a half when you left, correct?

A. Yes.

Q. So were you aware of how long they stayed

roommates after you left?

A. No, I wouldn't know that.

Q. And would you describe Mr. Lerner as a religious

man?

A. Very religious man. I think that's why they were

put together, because they had something in common.

Q. You indicated you prayed with Mr. Lerner today --

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or not specifically today, but --

A. No, every day. I'm up in his room every day for

a few minutes and we do some prayers.


Plaintiff's 2 for identification into evidence.

THE COURT: Mr. DeMay? Show that photo to Mr.

DeMay.

MR. DeMAY: No objection.

THE COURT: No objection, okay. Mark it in

evidence.



evidence.)

THE COURT OFFICER: 2 in evidence.

MS. FINKELSTEIN: You can hand it back to the

witness.

Q. Would Mr. Lerner and Mr. Mendelson come to

services together while they were --

A. Yes. They didn't walk down together because

Mr. Lerner was much healthier. He could walk

quicker. He used to come separately.

Q. Rabbi, based upon your conversations with

Mr. Mendelson for those several years, do you have

any opinion of how Mr. Mendelson would want to be

buried?

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Cross - Sperlin - DeMay

MR. DeMAY: Objection, Your Honor. Calls for

speculation.

THE COURT: One second, please.

Sustained.

Q. Did you have any conversations with Mr. Mendelson

with regard to souls and after-life during these

conversations you had?

A. No, he never spoke anything regarding that.

Q. Are you aware if Mr. Mendelson fasted during

those years in which you were at Evergreen?

A. Medically, I had no say if he's allowed to fast

or not. Some people are not allowed to fast even

though they're strictly religious. And I know that

from the nursing home I work now, that the doctors do

not allow older patients to fast on that day, becau se

they can jeopardize their health.

Q. Are you aware if Mr. Mendelson fasted while you

were there?

A. I wouldn't know that.

MS. FINKELSTEIN: I have nothing further.

Thank you, Rabbi.

THE COURT: Mr. DeMay.

CROSS-EXAMINATION BY MR. DEMAY:

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You left the Evergreen Court Home in 2007;

that's right?

A. Yes.

Q. And you haven't spoken to Marty since then; is

that right?

A. Right.

Q. You discussed the religious holidays and services

you provided. Do reform Jews also go to temple on

Shabbos?

A. Yes.

Q. And they also participate in Jewish holidays,

correct?

A. Yes.

Q. And reform Jews light Hannukah candles; is that

right?

A. Yes.

THE COURT: Okay. I got to ask you a

question, goyim over here.

What is a reform Jew?

THE WITNESS: Reform Jews are people who --

who reformed certain laws that were given by Moses

orally. Therefore, they feel that certain things

that Orthodox Jewish people do, doesn't have to be

done that way. It can be done differently.

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MS. FINKELSTEIN: Your Honor, I do have two

witnesses who I am going to try to qualify as

experts in Jewish law, who are going to testify

directly to that point, Your Honor.

THE COURT: Does that mean that the reform Jew

or the Orthodox Jew is more religious than one to

the other?

MS. FINKELSTEIN: Judge, I would just object

to this witness with this line of inquiry as I

didn't qualify him as a witnesses with regard to

Judaic law.

THE COURT: He's a rabbi.

MS. FINKELSTEIN: He is a rabbi, but all

different rabbis are equipped to testify with

regard to different scholarly experience as opposed

to others.

THE COURT: Well, then let me ask. Is that

beyond your ability as a rabbi to testify to?

THE WITNESS: To a certain point.

THE COURT: Okay. Next question.

Q. Rabbi, you testified that you thought that Mr.

Lerner and Mr. Mendelson were put together because of

a shared religious belief; is that right?

A. Very possible.

Q. It's very possible, but you don't know?

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A. Well, if they both came every time to shul, to

the synagogue together and they were -- somehow tha t

group who came to shul had a certain connection, th en

it's very possible they were put together because

they share something. They come together to shul

every week. They participated together. They

understand one another very well.

Q. But no one every told you why those two were put

together, right?

A. Well, I never asked, but I assumed that because

they are both coming to shul and they're friendly.

They were very friendly. They used to sit, I think ,

in the same table in the dining room as well, so I

think that was the connection.

Q. Isn't it true that in fact Mr. Mendelson

requested to live in a single room?

MS. FINKELSTEIN: Objection.

A. That I wouldn't know.

THE COURT: Overruled. If you know. You

don't know?

THE WITNESS: I wouldn't know that.

THE COURT: Okay.

Q. And, Rabbi, ever since you left Evergreen Court

you would have no way of knowing Mr. Mendelson's --

whether Mr. Mendelson's religious views or practice s

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Direct - Ullman - Finkelstein

evolved or changed in any way, right?

A. Right.

MR. DeMAY: Thank you, sir.

THE COURT: Any further questions?

MS. FINKELSTEIN: No.

THE COURT: You may step down, sir.

THE WITNESS: Thank you.

(Whereupon, the witness Sholom Sperlin

descended from the witness stand.)

MS. FINKELSTEIN: Judge, may I just see which

witnesses have arrived since I called Rabbi

Sperlin, just to make sure.

THE COURT: Go ahead.

MS. FINKELSTEIN: I just want to check the

witnesses.

(Whereupon, there was a break in the

proceedings.)

MS. FINKELSTEIN: We call Yitzy -- Yitzchak

Ullman, excuse me.

YITZCHAK ULLMAN, having been first duly affirmed, w as


THE COURT OFFICER: State your name and

address for the record.

THE WITNESS: Yitzchok Ullman, 1 Ribier Court,

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Monsey, New York 10952.

THE COURT: Sir, keep your voice up so

everyone can hear you. Stay close to the

microphone.

If an objection is made, don't answer the

question until I make a ruling on the objection.

If you're not sure whether you should answer,

just ask me and I'l l advise you.


that and I'll have it rephrased, read back or

otherwise clarified for you.

Allow the attorney to finish asking their

question before you make your answer. Okay?

THE WITNESS: Okay.

THE COURT: All right. Go right ahead.

MS. FINKELSTEIN: Thank you.


Q. Mr. Ullman, are you familiar with the Evergreen

Court retirement residence?

A. Yes.

Q. And what is your familiarity with it?

A. I was administrator there for a few years.

Q. What years was that, Mr. Ullman?

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A. If I recall correctly, it was about 2001 to the

end of 2005/2006.

Q. And you said you were administrator. What would

your responsibilities be as an administrator?

A. To oversee the operations of the facility, make

sure residents are happy, screen them before they

come in and make sure everyone's needs are met.

Q. And what part of your --

THE COURT: Did you say you screen them?

THE WITNESS: Correct.

THE COURT: What does that mean?

THE WITNESS: Before someone moves in, we

screen them to make sure they're appropriate for

the place.

Q. What does that mean to be appropriate for the

place?

A. That we can meet their needs, that we have

facilities that are needed for them.

Q. Are you a nursing home?

A. No.

Q. Do you provide medical care to residents?

A. No.

Q. So when you say meet the needs, it's a home for

adults?

A. Correct.

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Q. So when you screen, you want to make sure that

they don't need additional services that your

facility does not offer; is that correct?

A. Yes.

Q. Okay. Now, I'm going to draw your attention to

2004. Did you have an opportunity to meet with an

individual called Martin Mendelson, by the name of?

A. Yes.

Q. And how did you first meet Martin Mendelson?

A. He came over from, I believe it was -- the King

David shut down. He came over with his roommate, I

believe, or his friend.

Q. Are you familiar with the King David Manor?

A. Not really.

Q. And who are the owners of the Evergreen Court

residence?

A. The Schonberger family.

Q. And do you know who the owners of the King David

Manor were?

A. I believe it was the Schonberger family as well.

Q. So Mr. Mendelson came to be screened at your

facility?

A. Correct.

Q. And do you know, where did that meeting occur?

A. In the case manager's office.

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Q. And who, if any -- who else was present, if you

recall?

A. Might have been one of the Schonbergers, but I

don't remember.

MS. FINKELSTEIN: Your Honor, I just ask that

the following ten-page document, which is titled

Evergreen Court Retirement Residence be marked for

identification as Plaintiff's 3.

Your Honor, I had previously provided this to

counsel. And I do have the original here, but the

original I would ask to go back to the files

because of health department reasons. But if the

Court wants to examine it, I give the opportunity

to counsel as well.

THE COURT: Let the witness take a look at it.

If it's an exact copy of the original then that

will be fine.

So, you can mark this. This is will be Number

3.

Can we make this an exhibit directly into

evidence?


THE COURT: Okay.

MS. FINKELSTEIN: Your Honor, I have a copy

for you to look on at the same time.

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THE COURT: I actually have a copy.

MS. FINKELSTEIN: Okay.

(Whereupon, a nursing home agreement was

marked Plaintiff's 3 in evidence.)

COURT OFFICER: Three in evidence.

(Whereupon, the witness looked at a document.)

Q. I'm going to ask you to take a moment and if you

can look through each of those pages, sir.

There was an original and a copy provided to

you.


Q. Are they an exact duplicate of the original, sir?

A. They look like it.

Q. Does your handwriting appear on that document?

A. Yes. In other words, it's a sloppy handwriting.

MS. FINKELSTEIN: I'm sorry. There was no

objection. It's in evidence, correct?

COURT OFFICER: In evidence.

MS. FINKELSTEIN: You don't mind if I take

back the original and we don't confuse them and

we'll use the copy.

Q. Sir, if you can just go through the screening

process and how this admission contract was

introduced to Mr. Mendelson when you met with him?

A. Okay. Usually when we -- always whenever a new

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admission comes in, we go over paragraph by paragra ph

with them. We have them sign the admission

agreement. We make a copy and we give it to them.

We ask if they have any questions. We explain item

by item. It's a regulation of the Department of

Health.

Q. And when you say there's a part of a screening

process, is there any medical documentation that yo u

would need from the potential resident to know that

they're appropriate for your level of services in

your home?

A. Yes.

Q. Is that called a DSS 3122?

A. Correct.


the following DSS 3122, dated June 17th, 2004, be

marked for identification as Plaintiff's 4.

Once again, there is an original.

THE COURT: Why don't you show it to Mr.

DeMay. Maybe we can mark it directly into

evidence.

MS. FINKELSTEIN: I have provided one

previously.

THE COURT: Can we mark that directly into

evidence on consent?

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(Whereupon, a Form DSS 3122 was marked

Plaintiff's Exhibit 4 directly no evidence.

THE COURT OFFICER: 4 in evidence. Show to

witness?



Q. Mr. Ullman, do you recognize 4 in evidence?

A. I recognize this type of form.

Q. And is that the DSS 3122 which we discussed that

you get when an individual enters your premises?

A. Yes.

Q. And do you know the name of this DSS 3122, who it

belongs to?

A. Martin Mendelson.

Q. Is that the same individual who you are speaking

with upon the admission on June 17, 2004?

A. Yes.

Q. And could you tell me what this document provides

you with?

A. Just a basic synopsis of the resident's medical

condition.

Q. And did Mr. Mendelson have any cognitive

deficiencies?

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A. I'm not a psychiatrist or psychologist, but none

that appeared to me.

THE COURT: According to the form?

THE WITNESS: One seconds.

Q. According to the form and your interview with

him, your entry?


A. No.

Q. Specifically, there's a section on the form which

states in your opinion, the opinion of the medical

professional who signed it, is the individual's nee ds

met by the support services available in an adult

care facility.

Do you see that on the second page?

A. Yes.

Q. So if someone who had cognitive dysfunction, your

facility would not necessarily be an appropriate

facility for such an individual?

A. No. It would mean it needs another form that it

would state on that form stable to live in such a

facility or not.

Q. That was not the case here?

A. Correct.

Q. Do you recall how long you met with Mr. Mendelson

or how long this admissions screening process took?

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A. Not to him per se. An admission process usually

could take over an hour.

Q. Now, if you look at what's been already marked

into evidence, the agreement, as Petitioner's 3. I f

you can look at that document. If you can go page by

page, if you don't mind.

There's two sections on the first page of this

document and there's a name that appears under

general. Who wrote that name in?

A. That would be me.

Q. That's your handwriting?

A. Yes.

Q. Now, you would read together with or to

Mr. Mendelson each of the provisions, the six

provisions under the first section and eight under

the following section?

A. Yes.

Q. And if he had any questions, would you explain to

Mr. Mendelson?

A. Yes.

Q. Now if you turn to the second page, which the top

indicates financial agreement.

Do you see that, sir?

A. Yes.

Q. Now, there's a monthly rate. What is that?

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A. Sixteen hundred dollars.

Q. Is that the rent?

A. That is the rent, correct.

Q. And then there's a -- it says a weekly rate.

What does that indicate?

A. Usually that would be for someone if they come

another month to prorate them based on the week.

Q. So, the financial obligation of Mr. Mendelson was

$1,600 a month when he entered in 2004?

A. That would be the monthly rate, correct.

Q. Now, if you look at the bottom, it talks about

supplemental services?

A. Correct.

Q. Do you know if Mr. Mendelson was an SSI

recipient?

A. Based on the paperwork, he was not. And based on

the rate that he was charged, he was not as well.

Q. And I'm just going to forward you, if you don't

mind, to the fifth page of the agreement, which the

top indicates supplemental services and supplies.

Do you see that, sir?

A. Yes.

Q. What are the services that are offered at the top

of the page?

A. Dry cleaning, hair grooming, personal toilet

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articles, extraordinary activity supplies and speci al

cultural events.

Q. So evergreen would offer these to all the

residents, correct?

A. Correct.

Q. And -- but he declined?

A. It's most residents decline.

Q. Now if you look at the second category,

transportation, could you please explain what that

is?

A. That's more for people that are on Medicaid that

they wouldn't have to pay for transportation. Bein g

that he wasn't on Medicaid we were offering the

services that we provide, which would be, you know,

scheduled recreation we would not charge for

transportation or to services.

Q. So you were giving transportation, other things,

which would typically have a charge, but you were n ot

charging him?

A. Correct.

Q. Now if you look to the next category, Observance

of Religious Holidays, can you explain what that

section is?

A. Okay. That was a section that we offered for

those that wanted. It was an extra service. We

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charged $75 for like Rosh Hashana meals, Yom Kippur

meals, for services for Passover.

Q. I'm going to break it down because there's two

sections, so there's two separate fees; is that

correct, Mr. Ullman?

A. Correct.

Q. Now if the first one reads Rosh Hashana, Yom

Kippur, two special dinners officiated by a cantor

and a special fast breaking dinner, what does that

mean, sir?

A. Okay. I'm sorry. Your question is about the

special fast breaking thing?

Q. Correct.

A. That was for Yom Kippur, because dinner was a set

time. Every day breakfast lunching and dinner had a

set time. Yom Kippur, you have to wait for sunset,

which was usually later. So, we would hold a meal,

keep it warm and have a waiter on hand so they coul d

serve a meal later than the usual 5 o'clock.

Q. And before that it also says special dinners

officiated by cantor.

Was it a cantor or a rabbi?

A. Correct.

Q. And that was for both Rosh Hashana and Yom

Kippur, correct?

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A. That's correct.

Q. And was that an optional or a mandatory fee that

$75?

A. Very optional.

Q. And when you spoke with Mr. Mendelson

specifically with regard to that section, did he

verbally indicate to you whether or not he wanted t o

exercise that option?

A. I don't remember on that specific time, but I do

know that he, Mr. Martin made his wishes very well

known. And he would run after me, don't forget,

throughout the year, that I paid that $75.00. I wa nt

to come to those meals.

Q. Okay. We'll get to the conversations you may or

may not have had with Mr. Mendelson.

But is this your handwriting or

Mr. Mendelson's which indicates $75 next to Rosh

Hashana and Yom Kippur?

A. Looks like mine.

Q. So if Mr. Mendelson did not want those services,

would you have indicated $75?

A. We used to put a slash through the whole -- the

whole observance part.

Q. So, and based upon your recollection of

Mr. Mendelson, are you aware that he wanted that

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special observance of religious holidays?

A. Yes.

Q. Now, the second section indicates two seders

officiated by a cantor, special meals for eight day s

prepared in accordance with Passover dietary laws.

If you could start at the beginning with the

two seders. That's an additional cost?

A. It was a $75 fee for Passover.

Q. So it was $75 for the High Holy Days and $75 for

Passover, correct?

A. Correct.

Q. And those are special meals?

A. Yes.

Q. And those are also officiated by a cantor or

Rabbi?

A. Correct.

Q. And did Mr. Mendelson indicate to you he wanted

to pay for that service as well?

A. At the time of the agreement, yes.

Q. Now, what's the date of this agreement, sir?

A. June 17th, 2004.

Q. And beneath this, under the supplemental services

and supplies, including the observance of religious

holidays, did Mr. Mendelson sign this document?

A. That's what it looks like.

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Q. And did you sign underneath his signature?

A. Yes.

Q. Now you alluded to the fact you had some

conversations through the years with Mr. Mendelson

with regards to the $75 fee and involving him in

these services.

Could you please tell me about those

conversations?

A. Okay. I apologize for bringing it up earlier,

just because at the time of the agreement they

don't -- I can't remember every conversation that I

had.

But mr. Martin used to come by. I would walk

through the dining room and walk through -- and go

visit everyone in the rooms. And I think probably 10

or 15 times a year every, almost every time I would

see him, he would scream out don't forget about the

$75 I'm paying. I want to come to the -- you know,

to the High Holy Days or to the seder.

Q. And what would you tell Mr. Mendelson?

A. Same answer I tell everyone, sure, of course.

Q. Were you at the Evergreen home when Chaim Lerner

left the home, if you recall?

A. I don't think so.

MS. FINKELSTEIN: I ask the following document

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titled personal data sheet it has a number DSS 2949

be marked for identification as Petitioner's 5.

Once again, Your Honor, I have the original

and I have a copy. I just ask for the original

back.

THE COURT: Okay. You can mark that as 5.

(Whereupon, Form DSS 2949 was marked


Q. I ask you to take those two documents. One has

been marked as Petitioner's 5. If you can compare

them to one another and let me know if they're an

exact duplicate of one another?

THE COURT: First, identify that. What

exactly is that? What is that form?


A. That is a personal data sheet which is used upon

admission, which gives the basic information about

the family or things like that.

THE COURT: Is that with regard to any

particular person?

THE WITNESS: Everybody needs one.

THE COURT: Well, in this case, who is that

form related to?

MR. DeMAY: Martin Mendelson.

Q. Is that a Department of Social Services form

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required to be completed for the residents?

A. Yes.

Q. Do you recognize that form, sir?

A. Yes.

Q. And is that the personal data sheet of Martin

Mendelson?

A. Yes.

Q. Did you have an opportunity to compare the

original and the copy?

A. Yes.

Q. The item that's been marked for identification as

Exhibit 5, is that an exact duplicate of the

original, sir?

A. Yes.

Q. Is this part of the information that you received

from Mr. Mendelson during the screening process and

entry into the Evergreen Court?

A. I don't remember.

Q. Was this part of the file maintained at the

Evergreen Court?

A. It should be. I don't remember the file by

heart.

Q. Does your handwriting appear anywhere on this

document?

A. No.

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Q. Is that DSS 2949 Form a personal data sheet

required by the Department of Social Services to be

in the file of every resident in Evergreen Court?

A. Yes.


Petitioner's 5 for identification into evidence.


THE COURT: Okay. Mark it 5.



evidence.)

THE COURT OFFICER: Do you want this back to

the witness?



Q. Mr. Ullman, if you can take a look at what's been

mark into evidence as Exhibit 5. At the top of the

page it indicates a religion, correct?

A. Yes.

Q. And where does the individual who is doing the

intake of this get that information from?

A. Usually be from the resident.

Q. And what religion is indicated on the personal

data form of Martin Mendelson?

A. Jewish.

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MR. DeMAY: Objection, Your Honor. The

witness has testified he doesn't know anything

about the document.

MS. FINKELSTEIN: There's no objection. The

document is in evidence. He's reading from a

document in evidence, Your Honor.

The time would be have been prior to object.

THE COURT: The objection is overruled.

Q. It indicates under religion, Jewish?

A. Yes.

MS. FINKELSTEIN: I think I might be done,

Judge. If I may look at my notes for one moment?

THE COURT: Take a look. Go ahead.

(Whereupon, there was a pause in the

proceedings.)

MS. FINKELSTEIN: I have nothing. Actually, I

have nothing further.

THE COURT: Okay. Mr. DeMay.

MR. DeMAY: No questions, Your Honor.

THE COURT: Okay, sir. You may step down.


(Whereupon, the witness Yitzchak Ullman


MS. FINKELSTEIN: If I may, Your Honor, just

check if my other witness arrived?

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Direct - Baruch - Finkelstein

THE COURT: Yes.


proceedings.)

MS. FINKELSTEIN: The next witness will be

Rabbi Mordechai Baruch.

(Whereupon, Mordechai Baruch ascended the

witness stand.)

MORDECHAI BARUCH, having been first duly affirmed,

was examined and testified as follows:

THE COURT: Okay. Please, have a seat.

Please, give your name and address for the

record, sir.

THE WITNESS: Mordechai Baruch, 80 Decatur

Avenue, Spring Valley, New York 10977.

THE COURT: I'll tell you what, we're going to

take a break. So, you can step down for now and

we'll take ten minutes.

(Whereupon, the witness Mordechai Baruch


(Whereupon there was a brief recess held.)

(Whereupon, the witness Mordechai Berkell


THE COURT: Sir, stay close to the microphone

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phone so we can hear you. Keep your voice up.

If an objection is made, don't make an answer

until I've had an opportunity to rule on the

objection. Okay.

If you're not sure whether you should then go

ahead and answer, ask me. I'll advise you.

If you don't understand the question, indicate


Allow the attorneys to finish asking their

question before you start your answer. Okay?

THE WITNESS: Okay.

THE COURT: Go right ahead.




A. Good afternoon.

Q. Could you please tell me where you attended

rabbinical school?

A. In France. In Paris, France.

Q. What year was that, if you recall? Let's go this

way. How long have you been practicing as a rabbi?

A. About 37 years.

Q. And are you familiar with the Evergreen Court

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Retirement Residence?

A. Yes.

Q. What, if any, affiliation or involvement do you

have with the Evergreen Court retirement residence?

A. I go there on the New Year and on Succos, the

holiday. And I blow the horn there for the tenants .

And also I bring the lulov and esrog that they shou ld

be able to shake it.

Q. Is this something you voluntarily do?

A. Yes.

Q. Do you get compensated for your services?

A. No, I'm not.

Q. Rabbi, how long have you been offering this for

the residence of the Evergreen Court?

A. About ten years.

Q. And you said you go there twice a year?

A. Yes -- I mean, two times on Rosh Hashana, on the

new year, both days and then two times on the first

days of the Succos holiday.

Q. And specifically let's talk about Rosh Hashana.

You go -- where do you go within the home?

A. Well, as soon as I walk in there is a desk. And

by the desk there is usually a lady. I think her

name is Nicole. And as soon as she sees me she kno ws

I'm coming to blow the horn. So, she gets all the --

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all the people that want to hear the horn. And the n

I explain them the significance of the blowing the

horn.

Q. What is the significance, Rabbi, of blowing the

horn?

A. Well, it says in the bible that we supposed to

blow the horn on the new year to celebrate the new

year and making God a king over -- over all the --

all the nations.

Q. And you said you've been going there for ten

years doing this service?

A. Yes, about.

Q. And on Rosh Hashana it's for once a day for two

days?

A. Yes.

Q. And on Succot what exactly do you do for them?

A. I bring the lulov. It's four different species

of plants. I put them together. And they make a

blessing. And that shows -- I explain to them that

that shows the unity that there is among all the

different type of Jews and people.

Q. Now would you become familiar with some of the

residents because you've been going there ten years ?

A. Yes. Yes. I mean, I can't tell you private

life, but I can tell you if they're involved or

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smiling or willingly and things like that.

MS. FINKELSTEIN: I just ask the witness be

shown what's been previously marked into evidence

as Petitioner's 1. It's a small 4 x 6 photograph.


photograph.)

Q. Rabbi Baruch, do you recognize the individual

depicted in that photograph?

A. Yes.

Q. And who is that, sir?

A. That was -- that was one of the tenants there.

Q. And how long have you known this individual in

the photograph?

A. Well, as long as I've been there. I believe he

was always there.

Q. So for the ten years you've been going to the

Evergreen Court retirement residence you've seen th e

individual in that photograph?

A. Yes.

Q. And would he come on the two days you blow the

shofer for Rosh Hashana?

A. Yes.

Q. And would he also come on Succot?

A. Yes.

Q. Now Succot, how did you conduct that, I guess,

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service or that -- I guess, service?

A. Well, the desk -- the lady by the desk, I think

that's Nicole. She would call the tenants there an d

tell them that the rabbi is here.

One time I was in the dining room. I came a

little late. And I went around the dining room.

Everybody was seating eating their supper. It was

like about five o'clock and everyone wanted to bles s

the lulov.

Q. So you asked people who wanted to be blessed?

A. Yes -- no, they had to bless.

Q. I apologize. You asked the residents to come

forward, anyone who wanted to bless?

A. Yes. That was for the Succot holiday, for the

lulov.

Q. The individual in that photograph, did he come

forward from his meal --

A. Yes.

Q. -- to bless?

A. Not only that, he was very happy and after the --

on Rosh Hashana this past year, a few years ago, he

even blessed me and told me Happy New Year and than k

you very much for coming.

Q. Let's talk about that. That was September 15th

of this year?

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A. Yeah, four weeks ago.


the following four photographs be marked for

identification as Petitioner's 6.

I have already shown them to counsel. I have

a copy for Your Honor to look on as we go along.

THE COURT: Mark them separately then.

(Whereupon, three photographs were marked

Plaintiff's Exhibits 6, 7 and 8 for

identification.)

COURT OFFICER: Show the witness?

MS. FINKELSTEIN: Yes.

(Whereupon, the witness looked at

photographs.)

COURT OFFICER: 6, 7 and 8 for ID.

THE COURT: Sir, if you are asked questions

about any one of photographs individually, please

refer to them by their exhibit number, which I

suppose is on the back -- on the front. It has a

number. Just refer to them by the number or it.

Q. Rabbi, I'm just going to ask you to take a look

at each of those photographs.

First, have you had an opportunity to look at

them?

A. Yes.

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Q. Do you recognize each of those photographs?

A. Yes.

Q. Starting with photograph 6?

A. Yes.

Q. What do you recognize that to be?

A. Okay. Here is my wife, next to me, showing me

the blessing. Showing -- I'm sorry. Showing me wh at

to blow in the siddur, in the book.

Q. And is part of you depicted in that photograph?

A. Yes.

Q. What part?

A. Shofer part.

Q. Are you being blocked by the column there --

A. Yes.

Q. -- on the right-hand side?

Okay. Now, I'm going to ask you to take a

look at photographs 7. Do you recognize that

photograph?

A. Sure.

Q. What do you recognize that to be a photograph of?

A. Of myself and the tenants and my wife next to me.

Q. Now, I ask you the same questions for photograph

8. Do you recognize that?

A. Yes.

Q. What do you recognize that to be?

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A. That's most probably when I just came in. I'm

waiting by the desk that she should get all the

tenants together.

Q. Do these photographs fairly and accurately depict

when you were in Evergreen Court retirement home on

September 15th, 2015?

A. Yes.

Q. And you were there for the purpose of blowing the

shofer for the Jewish holidays?

A. Yes, correct.


Exhibits 6 through 8 for identification into

evidence.


THE COURT: Did he identify Number 8?

MS. FINKELSTEIN: Yes. He said that's when he

was at the desk, Your Honor. In the back of the

paragraph there's a desk, when he first ended.

THE COURT: Okay. Any objection? No

objection. Mark them in evidence.

(Whereupon, Plaintiff's Exhibits 6, 7, and 8,

previously marked for identification, were moved

into evidence.)

THE COURT OFFICER: Show the witness?


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Q. Actually, Rabbi, I'm going to draw your attention

to photograph 8 first, the one you indicated when y ou

just walked in.

A. Yes.

Q. You testified that you would go to the desk and

speak with an individual by the name of Nicole,

correct?

A. Correct.

Q. And does that photograph depict where you would

going initially when you came in?

A. Yes.

Q. And then what would happen or what did happen on

September 15th after you went to the desk?

A. Well, I believe Nicole called the tenants in,

either on the phone or microphone and to tell them

the rabbi is here to bless -- to blow the horn for

the blessing of the new year.

Q. And what is this room that we're looking at,

that's in all three photographs 6 through 8?

A. Over here, that's the hallway -- no. No, not the

hallway. That's where the television is. They hav e

a big room. The television is there.

THE COURT: You've been saying the photographs

were taken on September 15 --

THE WITNESS: September --

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THE COURT: -- is that correct?

THE WITNESS: On the first of the new year,

whatever --

THE COURT: 7 and 8, it's inscribed at the

bottom September 14th, correct?

THE WITNESS: Yeah.

THE COURT: Okay.

Q. Was the first day of Rosh Hashana -- you're

looking at the first day of Rosh Hashana, Rabbi?

A. Yeah. So on the 14th and the 15th.

Q. So you went on both days, the 14th and the 15th;

is that correct?

A. Correct, yes.

Q. And the same procedure was followed on each of

those occasions?

A. Yes.

Q. Now on the -- I'm sorry. I'll draw your

attention to the 14th.

A. Okay.

Q. On the 14th, you went to the desk and saw Nicole?

A. I don't remember who was there, but there was a

lady there. I asked them yes. I tell you yes --

I'll tell you why also, because she called one by o ne

all the patients. She wasn't there right away,

either the first day or the second day and she had

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called -- no, the first day she was there. She

called each one by one. The second day she came a

few minutes after and there was another lady that

called by the -- by the --

Q. The microphone?

A. The microphone, right. But when she came in, she

called each one to make sure whoever wanted to come

could come.

Q. And was the individual who is depicted in

Petitioner's 1 or Plaintiff's 1, was that individua l

present on the first night of Rosh Hashana? I gues s

you said it was the 14th?

A. Yes.

Q. And is he depicted in any of these photographs 6

through 8?

A. Here, it's Number 6.

Q. Where is he in photograph 6? If you can hold

that photograph up so the Court can see it.

A. Here.

Q. You're referring to the back of the head of an

individual on the bottom of the photograph?

A. Yes.

Q. The person in that photograph is the person in

Petitioner's 1 or Plaintiff's 1?

A. Yes.

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THE COURT: That's the back of his head?

THE WITNESS: Yes. Correct. Yeah.

Q. And is he also depicted -- do you see him in

Petitioner's or Plaintiff's 7?

A. I can't see it. I don't see him over there.

Q. How many people gathered for Rosh Hashana on the

14th for your blowing of the shofer?

A. About a dozen people.

Q. Is it the same people every year that come down?

A. Yeah. Here a little less, but usually there's

more. The same people, yes.

Q. The individual in Plaintiff's 1, did he always

come down for the blowing of the shofer?

A. Yes. Yes.

Q. And you said you had some words or exchanged some

words with him on this date?

A. Yes. Usually some are very quiet, some are not,

but he was very willingly and God bless you, Rabbi.

Thank you for coming.

Q. He said that to you --

A. Yes.

Q. -- on the 14th of September?

A. Yes.

Q. Now how long was this procedure of blowing the

shofer and saying the prayers?

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A. About, I would say, ten, fifteen minutes.

Q. And did that individual in the photograph, did he

stay the entire ten, fifteen minutes?

A. Oh, yes. Yes.

Q. Did you have any other conversation with him

after the blowing of shofer was completed?

A. No.

Q. Now, you came back the following day?

A. Yes.

Q. Was he there the following day?

A. No, they informed me that he had passed away.

Q. Now, if you go back to the -- actually,

withdrawn.

If you go back to the last Succot that you

went to the retirement home, not this year, in

2014 --

A. Yes.

Q. -- did you see that individual?

A. Yes.

Q. And did that individual come forward like you

indicated the procedure is to bless?

A. Well, they have to, because to hold it you have

to have both hands and you have to be standing. So ,

you really have to, you know, be able to grab both --

all the species together.

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Q. Explain that to me? Explain the size and what he

has to do?

A. So there is --

THE COURT: When you said to hold it, hold

what?

MS. FINKELSTEIN: That's what I want him to

describe, Your Honor.

A. On Succot, we have to take four different species

of plants. And we have to hold them all together.

One is very long. Another one is like a citrus. A nd

another two are just like plants. We have to hold

them all together and put them together and shuckle

them. So those people, you know, did it and wanted

to do it. And also I made them repeat the blessing

after me.

Q. So the individual in the photograph, Plaintiff's

1, he came forward?

A. Yes.

Q. He held those four species of plants?

A. Correct, yes.

Q. He voluntarily came forward to do so?

A. Yes, by the new year also. Nobody went to get

any patients. They all came on their own.

Q. When he held -- how heavy are these plants, these

four species together?

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A. I don't know. Maybe two-pound, maybe.

Q. And what's the size of them?

A. One is about three feet tall. And the other is

like a citrus round, like the size of a big apple.

And you put all those together.

Q. And you said what would he have to do with those

four species of plants?

A. Take them separate and put them together and

shuckle them.

Q. Okay. Shake them?

A. Yes, shake them.

Q. And what would he do as he shook them?

A. He shake them.

Q. And did he say anything as he shook them?

A. He made the blessing before. That's all.

Q. Did he say the blessing as well?

A. Yeah, sure.

Q. He said it a loud?

A. Yes.

Q. And is that the same procedure he did for the ten

years in which you were there?

A. Yes.

MS. FINKELSTEIN: I have nothing further.

Thank you, Your Honor.


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Cross - Baruch - DeMay


Q. Rabbi, you don't live at Evergreen Court, right?

A. No.

Q. And going back to Plaintiff's Exhibit 1, the

photograph --

A. Right.

Q. -- do you know the name of the person in that

picture?

A. I know Martin, but I don't remember his last

name.

MR. DeMAY: No further questions.

THE COURT: Anything on that?


THE COURT: You may step down.


(Whereupon, the witness Mordechai Baruch


THE COURT: Okay. Your next witness?

MS. FINKELSTEIN: Can I just speak with my

client for one minute.

Rabbi Benjamin Kelsen.

(Whereupon, the witness Benjamin Kelsen


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BENJAMIN KELSEN, having been first duly affirmed,

was examined and testified as follows:

THE COURT: Have a seat.


THE COURT OFFICER: State your name and

address for the record.

THE WITNESS: Sure. Benjamin G. Kelsen,

K-E-L-S-E-N, 122 Rector Court, Bergenfield, New

Jersey 07621.

THE COURT: Sir, keep your voice up so that

everyone can hear.

If you an objection is made to a question,

don't answer until I've had an opportunity to make

a ruling.

If you're not sure whether you should answer,

ask me. I will advise you whether you can go

ahead.



Allow the attorneys to finish asking their

question before you make your answer. Okay?

THE WITNESS: Yes, sir.


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Direct - Kelsen - Finkelstein


Q. Rabbi Kelsen, can you please tell me about your

education?

A. My education started in -- or at least my

post-high school started with year of study in a

rabbinical school in Israel. After which I

matriculated at Yeshiva College, in Manhattan.

I received a BA in history in 1994. I

received rabbinic ordination in 2000. I actually a t

the same time was at the Benjamin Cardoza School of

Law, graduating in 1997.

I'm a member of the bar of the state of New

Jersey, the Federal court system, their District

court of Appeals and the Eastern District of

Pennsylvania as well as the Supreme Court of the

United States.

In 2000, I received my rabbinical ordination

and in 2008 I received the second level of rabbinic al

ordination for certification as a judge in

religious -- in religious courts, in a Beit Din.

Q. Could you please tell me about your rabbinical

and teaching experience?

A. Sure. I served as a Rabbi, a pulpit rabbi for

about nine years. I have --

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Q. Where was that?

A. That was in Teaneck. Teaneck, New Jersey, Bergen

County. I also taught and substituted at Yeshiva

University, both in college as well as the Judaic

studies programs. I've taught at the yeshiva at ID T

and the college of IDT, two programs.

THE COURT: What exactly is IDT?

THE WITNESS: IDT, the company IDT, which is

owned by Mr. Howard Jonas, has associated with it,

they move from floor to floor, but they have a

college program as well as a yeshiva, a talmudic

school, a Judaic studies program associated with

the college, that is in -- it's held in the IDT

corporate headquarters.

And the idea there is they bring in students

to give them a BA and give them internships within

the corporation itself. And this way they're able

to bet get a BA and to do Judaic studies, but also

have that opportunity to get have an internship

hands-on at a large tele-communications company.

THE COURT: What is a pulpit rabbi?

THE WITNESS: A pulpit rabbi is a rabbi who

has a -- technically has a pulpit, who basically

runs a synagogue and handles day-to-day issues in

terms of services, running the service, organizing,

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that type of -- that type of thing. Also dealing

with life cycle events: Birth, deaths, weddings.

And all type of counseling in between. Illnesses

or other types of events that come up during the

life cycle of the congregants.

So I taught in Yeshiva University also at IDT

as I mentioned. And currently I do lecturing,

writing and scholar and residence programs in

different places as they come up.

Q. What does that mean?

A. So, before my wife and I had children, it was a

lot easier for us to get away for a weekend or a we ek

or two.

So, before the children came, we were -- I was

in Scotland, where I was sent by Yeshiva University

to teach for a week in Edinburgh. Florida,

Massachusetts, Ohio, different places, different

communities within the United States for the purpos e

of lecturing on issues of Talmud and Jewish law as

well as the -- as well as the questions of the

interaction between American and secular law and

jurisprudence and how it works together with Jewish

law and the talmudic basis for many of the

foundations of the American judicial system.

Q. I'm just going to ask the following - I have a

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double-sided document. It's three pages. It's a

curriculum vitae of Rabbi Benjamin G. Kelsen, Esq. -

be marked.

I have provided a copy to counsel. I have a

copy for Your Honor as well.

That will be Plaintiff's 9.

THE COURT: All right. Mark that 9.

(Whereupon, a CV was marked Plaintiff's

Exhibit 9 for identification.

THE COURT OFFICER: 9 for ID. Show the

witnesses?



Q. Rabbi Kelsen --

A. Yes.

Q. -- could you please me what that is, Exhibit 9?

A. This is a copy of my curriculum vitae that was

provided to you. It is a combination of my rabbini c

training and certifications as well as my legal

background.

Q. So what you testified to with regard to your

rabbinical and teaching experience, that's all

contained within this document as well?

A. The majority of it is. There are various

articles or speaking engagements which may not be

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included, but those would be in addition to whateve r

is in here.

Q. Sir, have you ever been qualified as an expert in

Jewish law and Talmudic studies?

A. Yes.

Q. Where is that?

A. That was in the New Jersey State Superior Court.

Approximately five years ago was the first time. A nd

that was in a matter pending from Asbury Park, New

Jersey, which ended up in the Superior Court and is

now, I believe, in the Appellate Division, working

its way through the system to the Supreme Court.

MS. FINKELSTEIN: Your Honor, at this point I

would offer Rabbi Benjamin Kelsen as an expert in

Jewish law and Talmudic studies?


THE COURT: No objection. Okay. We will deem

the rabbi as an expert witness and I will accept

his testimony accordingly.

MS. FINKELSTEIN: Your Honor, I just offer his

CV into evidence as well?

THE COURT: I assume that you have no

objection, Mr. DeMay, to the resume?


THE COURT: Okay. Mark it.

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evidence.)

THE COURT OFFICER: 9 in evidence.


Q. Rabbi, you mentioned several terms with your

explanation of your teaching history and educationa l

background.

You talked about Talmudic studies. Could you

please explain that?

A. Sure. The Talmud is a compilation of the

jurisprudence of rabbinical law, of Jewish law,

compiled within the first centuries or so of Common

Era up until about 700 or so when it was finally

closed.

After that, we have commentators throughout

the ages from that period of time up until the

present time on that. But the Talmud itself consis ts

of 24 tractates, the Babylonian Talmud, which is a --

Q. Just slow down a little. The Judge is listening.

A. Yes. The Babylonian Talmud consists of 24

tractates.

Q. What does that mean?

A. Twenty-four sections or 24 volumes, each dealing

with different areas. They're broken down into six

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general categories, including what we would call to rt

law, matrimonial, daily living/daily life, the issu es

of Sabbath, of the holidays and things of that

nature.

And it is essentially a shorthand re --

shorthand record of the discussions and the

deliberations of the rabbis of the Talmudic time in

determining what Jewish law should be or would be i n

those various discussions.

The Jerusalem Talmud was done concurrently in

Israel, in Palestine, Jerusalem at the time, which

was following the -- the Babylonian exile up until

the time of the Roman exile.

And that is a little bit different in format,

although it does contain basically the same -- the

same breakdowns. But it's a little bit different i n

format in that it is formulated more on a decision

basis, rather than the back and forth of the -- and

the decisions after discussions between the various

authorities therein.

So the Jerusalem Talmud basically focuses on

what we call black letter law.

That's the -- that would be the Talmud.

The -- after that period of time, we have

commentators throughout the generations from

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throughout the Jewish world, whether they be in

Spain, Israel, Europe, wherever -- eastern Europe o r

western Europe, whatever it maybe that are

commentators on that.

But the Talmud itself as a work and a -- there

is little bit -- is different than our law books th at

we get from the west, which keep building up every

year. It was closed and finished and sealed. And

then commentators will comment on it.

So, therefore, we have a period of time where

we have deliberations still being recorded, but at a

certain point those deliberations stopped and we mo ve

on to commentators upon those, which are more along

the line of our horn books or something along, you

know, if we can make such a comparison.

Q. So when someone refers to Jewish law, are they

referring to what?

A. Jewish law refers to a very, very large corpus of

information. It would be partly related to -- it

would include - excuse me, Your Honor - both

commandments or biblical law that comes out startin g

from the Five Books of Moses and it would go all th e

way up until decisions that might be made by a

religious court applying the principles from the

Bible as well as the Talmud and the commentators

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after that to this date.

So, that there are decisions that will be made

that have to be applied to common day occurrences o r

practices as technology changes or as the world

changes.

Smart phones didn't exist 2000 years ago. So,

therefore, the principles that we have in the Talmu d,

and that the commentators talk about, and that we

have based upon biblical sources, but that have to be

decided and figured out by later authorities.

So Jewish law itself is something which is

constantly growing and continuing. It's almost lik e

a living breathing sort of entity. But it's a very

wide entity. And is encompasses everything from la ws

of how one should arise in the morning, getting up

from their bed in the morning, to going to sleep at

night, to how the holidays are celebrated, what

things can be done on Sabbath and what cannot be do ne

on Sabbath, marital law, actually what we would cal l

matrimonial law, divorce, marriage, contracts, tort s

as well as a myriad of other areas as well, includi ng

which would be areas such as burial and what to do or

what the laws are for dealing with the passing of a

relative or anything along those lines.

Q. Where is it in Jewish law where it discusses the

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burial of a Jewish person?

A. So, the first time the first time that Jewish law

discusses, the Torah, the Bible, the first Five Boo ks

of Moses discusses the burial, there is a passing

reference to it actually coming up in the portion

that was read this week, which the beginning,

Genesis. There's a passing reference to Cain buryi ng

his brother Abel. That's a little bit of a

discussion there, but it's just sort of in passing.

When we get to the portion in about five or

six weeks or so, we read of Abraham having to deal

with the passing of his wife Sarah.

And from there we gain much of our basics in

terms of Jewish mourning and burial practice, when he

purchases a plot of land to use as the family plot,

so to speak, the Cave of the Machpalah, which is in

Hebron. And that became the family plot where

Abraham and Sarah were buried, Isaac and his wife

Rebecca were buried and Jacob and his wife Leah wer e

buried. That takes place within the Book of Genesi s.

The book of Deuteronomy, which we just

finished not along ago - this past weekend actually -

makes reference to the notion of people passing and

returning -- and returning from whence they came.

So, that the idea of -- that man -- that man -- as we

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read this week man was created from clay from the

earth and then should be returned to the earth.

That would be the biblical portions. There is

also parts of the Leviticus which talks about what

happens when one is exposed to a deceased individua l

in questions of purity and ritual purity and impuri ty

and how one deals with those issues as well.

There is also the question of upon finding a

body in between two cities, upon whom is the

obligation to do the burial and that it is of the

utmost importance to make sure a burial takes place .

So, these are all things that happen within

the Five Books of Moses.

After that, in the Talmud, there are very,

very lengthy discussions in various parts of

different tractates as to where that -- how those

things should be done and what is the process by

which we do that. And then that sort of -- from

there forward.

Q. What does it say within the tractates in the

Talmud?

A. The Talmud basically requires that people be

buried in the ground. It sites the notion that a

person, as we said, as I mentioned a moment or two

ago, in Deuteronomy, that in the same way that man

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was created from the earth, man should be returned to

the earth.

Q. And why is it that he has to be returned to the

earth?

A. The idea being that the -- the idea is that the

body is but a shell for -- or a container, if you

will, for the spirit, for the soul. And that upon

the passing of the individual, the soul returns to

heaven or however we describe that. And the body,

which is the vessel which held it, is returned to t he

ground and treated in a very, very specific manner.

It is washed and purified and wrapped. And

then it returns to the place from -- to the ground.

The idea being it's being returned to where it came

from.

There is also a concept that comes up and is

codified actually by Maimonides, who lived in the

11th century, and was one of the -- was one of thos e

who wrote the first codexes of Jewish law, that

the -- that there is a fundamental belief in Judi - -

within Judaism of the coming of the Messiah. And

when the Messiah does come, that there will be --

whatever it means. And again there is great debate

over it. But there will be what we call the revivi ng

or resuscitating of the dead. In other words, that

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those who passed on will come back and arise again.

So, the idea being that the body is kept in

its form as best as possible. Obviously, we don't do

embalming, but it's kept in whatever form it can be

kept in and is buried in the ground.

Q. Is that the purpose or reason why we don't do

embalming?

A. One of the reasons we don't do embalming is that

embalming was considered to be a pagan ritual,

although, there were those who did some -- that the re

are some indications that there were types of

embalming.

Not necessarily the same way the Egyptians did

it, that we see frequently in museums, but that a

person was washed, cleaned up and then wrapped in

linen, in linen cloths, almost similar, I guess, to

bandages, but also in a larger cloth and then burie d

in the ground. Therefore, the body was in one plac e.

So, we don't do embalming in the way the

Egyptians do it, where they would preserve the

organs and, you know, you can do a facial

recognition now on King Tut or whatever it is. But

we do have similar notions of burying the body to

preserve it, although not in the way that the

Egyptians did. The Egyptians had the idea that the

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bodies would just rise up and walk around.

Within the Jewish tradition, we don't

necessarily have that exact same belief, although,

that's debated upon by some commentators. But

there is the general notion of preserving the body

in some fashion that way.

Q. You indicated that the body is supposed to return

to the earth from which it came, correct?

A. Yes.

Q. So does that also include -- is there Jewish law

with regard to what you can and cannot do to the bo dy

in the lifetime so it can return to the earth from

where it came?

A. Yes. There is a biblical commandment against

making markings on one self. Tattoos, as what we

call them today, is prohibited.

There are Pagan rituals that are referred to.

In fact, in periods of mourning specifically, pagan

rituals at the time very often included ceremonial or

symbolic cutting or markings on one self, of making

markings on one's body or shaving one's head or of

other types of physical manifestations and

demonstrations of the mourning period. Those are

strictly prohibited by the Torah in Leviticus.

And so, therefore, things such as tattoos,

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certain types of piercings and certain types of

other, I guess what they call embellishments and

accouterments are strictly prohibited according to

Biblical law.

Q. Now you talked about all these laws from waking

up in the morning, to the holidays, to the Sabbath,

all the way to death.

Are there some of these laws which are more -

I'm trying to find the proper terminology for it -

more, not important shall I say, but more significa nt

in one's life than others?

MR. DeMAY: Objection.

THE COURT: Grounds?

MR. DeMAY: Significant in one's life is vague

and calls for speculation.

Q. Well, under Talmudic law, Jewish law --

THE COURT: I'm going to overrule the

objection. You can testify to that.

A. I'm not quite sure what -- if you can elaborate

just a little bit.

Q. Are there some -- you indicated there are laws,

Talmudic laws and biblical references with regard t o

burial after someone's death, correct?

A. Yes.

Q. Now, there are also other laws with regard to

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marriage and divorce, correct?

A. Correct.

Q. And is it true that certain Jewish people follow

some of these laws and don't follow others of these

laws?

A. Yes.

MR. DeMAY: Objection, Your Honor. Leading.

THE COURT: Grounds?

MR. DeMAY: Leading, Your Honor.

THE COURT: I'm going to let the question and

answer stand, but don't lead.

MS. FINKELSTEIN: Okay, Your Honor.

Q. Let me go back for a second. I'm going to go in

a round about way.

A. Sure.

Q. Could you please explain to me what the

significance of Rosh Hashana and Yom Kippur are?

A. Sure.

Rosh Hashana and Yom Kippur are the two

periods which -- actually followed up by the holida y

of which we just concluded of Succos, which make up

the High Holiday period, the High Holiday period.

Rosh Hashana is considered as the beginning of

the Jewish new year, which starts on the first day of

Rosh Hashana. And Rosh Hashana and Yom Kippur are

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two days, three days all together really, with the

days in between being included as a period of

repentance.

We begin preparations the month before. And

then on Rosh Hashana and Yom Kippur, which are the

two High Hol -- which are referred to most commonly

as the High Holidays, those are the days that are s et

aside for asking for forgiveness for the sins that

one has done both between man and fellow man as wel l

as between man and God.

And those are the two penultimate days during

the year -- during -- in the Jewish calendar.

Q. And could you explain Yom Kippur?

A. Sure.

Yom Kippur is a fast day. It lasts for 25

hours, give or take, from the night before. It's

sunset of the night -- of the previous night. So,

this year it was on Wednesday. I think Wednesday

sounds right. It was on a Wednesday. So, Tuesday

night it started. It started Tuesday night and end ed

Wednesday night after -- after night fall on

Wednesday night -- on Wednesday night.

That is the day that is spent primarily in the

synagogue. There's usually about an hour break or so

sometime in the afternoon, but not necessarily. An d

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it is dedicated specifically and completely to aski ng

forgiveness from God and for asking to be blessed f or

a prosperous and a good life in the -- in the year to

come.

Q. If you can just talk to me a little bit about

Jewish law and dictating of what happens to a perso n

when they pass?

A. Could you elaborate a little more?

Q. What is supposed to happen to the body once a

Jewish individual dies?

A. Upon the passing of an individual, usually if

it's done, let's say, for example, in a hospital, t he

IV's are tied off.

In order to be able to preserve any of the

fluids from the body, that also are going to be

buried with the body, we don't take out the IV's or

anything like that, because we don't want to dispos e

of any of the human material, blood or whatever els e

separately, or throw it out. That has to be includ ed

with the body. So, the IV's will be tied off and

left in place.

An organization called the Chevra Kadesha, the

Holy Brotherhood or Holy Congregation, will be call ed

in conjunction with the funeral home sometime durin g

the night. Usually a funeral will take place withi n

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24 to 48 hours, depending on when during the day a

person passed and how much time there is to allow f or

the procedures to be carried out.

The Chevra Kadesha, the group that comes, will

then take the body. They will wash the body, clean

it off and prepare it for burial.

Q. That organization, is that like the burial

society?

A. Yes, correct.

Q. So, it's like the Burial Society of Rockland

County here in Rockland?

A. That would be a good example, yes.

Most -- most neighborho -- most communities

have their own burial society which takes care of

that.

So, before it goes to the funnel home, some

places have their own place to carry out these

procedures. Others will do it at the funeral home in

a special area set aside for that.

Q. When you said community, are you referring to the

entire Jewish community or are you referring to

Orthodox, Chasidim, Conservative, Reform?

A. It could include all of them. When I say local

area, I basically would be referring to, let's say,

Rockland County has their own, if not more than one .

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There's one -- there's at least four in Bergen Coun ty

that I'm aware of. Ocean County has at least two.

Brooklyn, I don't even want to try to count. There

is one on the east side of the New York, one on the

west side, one on the lower east side of New York, of

Manhattan.

So local areas will all try to get together

and have their own in order to be able to deal with

members of their own immediate community.

There is nothing precluding -- nothing within

those locals or those local organizations that woul d

be either restrictive or excluding of anybody from

any type of a background or any type of a level of

observance.

Q. Level of observance, if we can just talk about

that for a moment.

A. Sure.

Q. I mentioned Chasidim, Orthodox, Conservative,

Reform. Could you just please explain a little abo ut

the differences?

A. Sure. Of the three that you named, so Orthodox

in general --

In 2014, the Pew Research Organization put

together a study of American Jewry. So, they broke

it down into three main categories: Orthodox,

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Conservative, Reform.

Orthodox being the -- being, for lack of a

better term, and more fundamentalist in terms of

holding and keeping of laws and traditions from the

Bible and Talmud. Conservative Judaism after that

and then the Reform.

The difference in theology is basically

delineated as to whether or not there is a belief i n

the Torah coming directly from God and its

commandments still binding, to Conservative, which

will take a position that it was divinely inspired

writing, dictated to Moses and -- but not necessari ly

written by the hand of God and then as opposed to

Reform, which would suggest, at least according to

much of the writing that comes from the Reform

movement's central committee -- central rabbinic

association, which would have more of a documentary

hypothesis approach, which is that the Torah was

compiled at different times throughout history.

That does not necessarily effect the level of

or the question of observance. It's raises a

question of source -- of the source and weight with

which certain things are given.

So, for example, somebody who was Orthodox

would not carry on the Sabbath outside of -- outsid e

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of their home, unless there's certain circumstances

that were met to create a quasi private area.

Conservative movement, Reform movement would

not necessarily feel bound by such a thing.

Orthodox Judaism will have strict adherence to

the laws of keeping kosher as laid out in the Bible .

Conservative Judaism does also adhere to such a

thing, but Reform Judaism does not necessarily adhe re

to that at the same level and it is more, at least

according to there responsa and their guidance and

memorandum that they've issued, take it more as a

advisory type of opinion that this is what was done ,

but that it is not necessarily -- it is not

necessarily something that is dispositive of a

person's religiosity or observance.

Q. So it's a personal choice? It's not --

A. In Reform, correct.

Q. Now, can you please tell me what it means to be

kosher? Explain that for the record.

A. Essentially keeping kosher comes down to two

separate areas.

One is that there is no mixing of meat and

milk. That means that there will be some period of

time within after one eats meat, let's say, that on e

would have to wait until being able to have somethi ng

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which is dairy.

And the second is regarding the types of meat

that one would eat or -- or fish or things like tha t.

So for meat it would have to be an animal

which has split hooves and chews its cud.

And the Bible goes through several of those

and also points to several animals such as, let's

say, a camel, which may have certain aspects, but

does not fit others and other animals which may

have one or two of the attributes, but does not

have both and that those are prohibited. And the

most common, obviously, is pork as being one of the

standouts.

As far as fish, it would have to be a fish

that has scales and fins.

And birds, which are -- there are birds which

are mentioned in the bible as being kosher. And

for the most part these are birds which are not

predatory in nature: Chicken, you know, and other

types of fowl.

Hawks and Falcons and whatever are prohibited.

So, keeping kosher means basically making sure

that there is no mixing of meat utensils - pots,

silverware, plates, whatever - with the dairy.

Keeping those separate. Waiting a period of time

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in between -- in between meals -- in between

eating -- consuming meat and dairy.

And then also making sure that the things that

a person is actually eating are kosher by nature.

Which would either mean that we know A, where the

animal comes from, but is also under a kosher

certification of some sort, if it's something which

is processed and we're not making on our own.

Q. So, you indicated with Conservative and Reform

Jews, is there any law which indicates that you are

required to maintain a kosher home?

A. The Conservative movement officially maintains

that one is required to keep a kosher home and keep

kosher.

They are -- there's a little bit more laxity

as far as utensil -- the issue of utensils and eati ng

out. While it's still according to the official

position of Conservative movement as put forward by

the Jewish Theological Seminary as well as their

rabbinical arm, they're not as strict on adherence to

utensils, let's say.

So, if one were to go out to a restaurant, one

might order a kosher fish, salmon and according to

the Conservative movement that would probably not b e

as a difficulty.

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They still would require -- they still

officially would talk about a period of time of

waiting as well as some form of certification that

whatever's being eaten has somebody certifying that

it's actually kosher.

The Reform movement encourages the adherence

to tradition, but does not make it officially a

binding requirement, so to speak, to be part of -- to

be considered as a Reform Jew.

Q. So if one is a Reform Jew, I guess, by title

Reform Jew, attends Shabbos services and all holida y

services, but partakes and goes to non-kosher

restaurants, does that make him any less a Jew?

A. Absolutely not.

Q. Is there any law which requires him only to

attend kosher restaurants or kosher meals as a Refo rm

Jew?

A. As a reform -- I mean, the general belief would

be that Jews in general should be fol -- should be

keeping these -- keeping these commandments.

And according to the Reform movement's

responsa and guidelines, it is considered to be

encouraged and admirable to keep up the traditions of

the Jewish faith, but that would not necessarily

impact the question of whether or not one is

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considered to be Jewish or not in the Reform

movement, or in any other movement really.

Q. Is there any law, any Jewish law which requires a

Reform Jew to attend Sabbath services on Fridays an d

Saturdays?

A. There's actually no law anywhere that would

require anyone to attend services.

And the concept of attending services and

praying in a group is something which is brought do wn

and discussed in Talmud as being of benefit.

The idea being that when one prays to God,

while there may be certain merits or certain aspect s

of my individual -- me as an individual that are

missing and that may -- certain merits that may not

make me worthy of some sort of response from the

Divine, but that hopefully the other nine guys who

are in the room would be able to all together

compliment one another in order to be able to creat e

a community which would therefore -- which would ha ve

the merits to be able to come and face the Divine a nd

ask for forgiveness and for whatever else it may be ,

you know, sustenance and health, etc.

There is no -- it's something which is

preferable, but there are many occasions where

obviously it doesn't happen and it can't happen und er

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certain circumstances and --

Q. You say preferable. Is that something that's

preferable within the Orthodox faith?

A. Yes.

Q. And is that something that's preferable, to

attend Friday and Saturday services, in Conservativ e

Judaism?

A. Yes.

Q. Now is that something that's preferable or common

in Reform Judaism?

A. It is preferable. It is encouraged within the --

the Reform movement has, as one of their guidelines ,

so to speak, as being preferable and that clergy

should encourage attendance at services, but that i t

is, again, not something which is dispositive in

nature that would cause one to be excluded from the

community or not part of the community.

THE COURT: It doesn't sound like much is

binding with regard to the Reform?

THE WITNESS: The Reform position essentially

is, is that because they use the documentary

hypothesis theory, meaning that the Torah itself,

the Bible is compiled by different authors at

different times, they have -- they find less

binding -- less binding in modern times than they

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would previously.

They also -- there is also less of a reliance

upon the commentators of the Talmud that follow

thereafter.

So that there is -- while within Orthodox

Judaism and Conservative Judaism there's sort of a

hierarchy of authority such as we would have in our

system, in the secular system of the Supreme Court

having -- being authoritative over everybody, the

Supreme Court of the United States being

authoritative on all courts of land. Something

that was decided by a lower court in California may

be of interest and may be persuasive, but is not

necessarily binding. An Appellate Division ruling

from the Ninth Circuit may not -- may be of

interest to us in the Third Circuit or the First or

whichever circuit we're in. I'm in Jersey, so it's

the Third Circuit. It's not necessarily something

that is going to be authoritative in nature,

although it could be considered to be persuasive.

THE COURT: Is there anything that is

considered sacrosanct, binding in Reform Judaism?

THE WITNESS: The Reform movement itself has a

very vague description thereof. Basically the

Reform movement believes in the concept of the

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Jewish -- of a Jewish tradition and keeping the

Jewish tradition as best as one can, whatever that

sort of language means.

It relies heavily on distinguishing the --

what was previously -- what Orthodox Judaism would

do, let's say, and hold and how that is

distinguished by what they would be doing now in a

modern -- in a modern setting.

So, for example, the Bible has a very, very

strict prohibition against lighting a fire on the

Sabbath. In Orthodox Judaism that has been

extended -- not extended. That's been applied to

electrical devices, electricity, things of that

nature.

In Reform Judaism, the Reform rabbinical body

has issued a responsa years and years ago, almost

decades, that indicated that electricity is not

lighting a fire and, therefore, in their view the

turning off and on of a light or the use of

electronics is not something which would be

problematic because it's not actually lighting a

fire.

Orthodox Judaism would differ from that in its

definition of what exactly is considered to be the

lighting of a fire, what exactly does the word fire

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mean and how do we apply it to incandescent light

bulbs versus LED or something along those lines.

Q. If you can please explain the laws with regard to

the burial of a decedent, a Jewish person who

attended Shabbos services, who attended all the

holidays in each of Orthodox, Conservative and Refo rm

or the general Jewish law, the Talmudic law?

A. Under general Jewish -- I'm sorry.

Q. First under general law?

A. I thought there was objection.

MR. DeMAY: Objection, Your Honor. I thought

the question was vague and ambiguous. I couldn't

follow it.

THE COURT: Can you answer that with a degree

of certainty?

THE WITNESS: I believe I can. I believe I

can.

THE COURT: Okay. Overruled on the objection.

You can answer.


A. The general rules of burial are actually,

interestingly enough, are very, very similar throug h

Orthodox, Conservative and Reform Judaism.

THE COURT: In terms of whether they have a

binding effect or not?

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THE WITNESS: Correct. In terms of how the --

how the preparation for the burial is done and

whether or not a burial is done at all.

For example, you know, one of the -- there's

very, very little difference between any of these

three, for lack of better word, denominations or

movements regarding burial.

In Orthodox tradition the mourn -- not the

mourners themselves, but the people gathered

together at the funeral would physically lower the

casket themselves into the grave and physically,

personally, individually fill the grave.

Conservative Judaism might do something

similar. They might cover the grave -- cover the

casket, but not all the way. And they may have --

And I've seen various variations where they will --

as well as in the Reform movement I've seen, where

they have the casket above ground as traditionally

done in the secular world and mourners will come by

and place a shovel full of dirt on top. After

everybody leaves, then the casket will be lowered

into the ground and then the workers from the

cemetery will then fill it up, fill up the grave.

However, within all three of those traditions

there is still the use of a coffin and burying of

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someone in the ground and keeping that tradition.

Q. And is there in Jewish law, does it discuss

cremation?

A. Yes.

Q. Could you please explain?

A. Sure. The Talmud is one of the first places it

discusses it. It bases it off of biblical

references. But essentially the Talmud talks about

cremation being a pagan custom and that there is a

requirement to bury a body.

In Talmudic times, the bodies were buried, as

I said, just simply wrapped up. In Israel, this is

still the custom that they're wrapped simply in

shrouds and buried in a grave.

In Europe and in United States and over the

centuries where there were more health concerns,

coffins, simple pine boxes with holes drilled in th e

bottom, were utilized. And the body was buried

inside of that casket, which was usually a regular

plain pine box of some sort.

The questions that comes up within the Talmud

about cremation question whether or not there is a

period of mourning allowed for one who's been

cremated, is the -- are the ashes of cremation

permitted to be buried at any point in a Jewish

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cemetery. The Talmud concludes that it cannot be.

There is discussion of what to do if one was

cremated. And this is a question that came up.

Unfortunately, following the holocaust, which was a

question of, unfortunately, just the huge number of

ashes from the crematoria, the question was what to

do with those ashes. Should they be buried or not.

And, ultimately, the decision was made. Some of

them were buried, but not within Jewish cemeteries.

And so the questions that went back and forth were

really post facto, what does one do with that.

But it is clear from all responsa and all

discussions from the Talmud up until -- up until

modern time that within the Orthodox and

Conservative movements cremation is actually

prohibited and not something which is done at all.

Within the Reform movement, the Reform

movement has a 1986 memorandum which goes out --

which was sent out to its membership and had been

updated in the '90s that essentially said that

cremation is not something which is within the

tradition of Jewish law or Jewish practice. And if

someone were to do so, they should be -- or wanted

to have a cremation done, whether the person

themselves wanted to do it and had it as a plan

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written out for the future or if a family member or

whoever is making the decision wanted to do a

cremation, the reform rabbi is strongly urged to

ask them to reconsider to use tradition burial

methods.

It does say that if one -- that if a person

were to be cremated, that does not mean that the

family or the mourners should be turned away. And

that the Reform -- the Reform movement's memorandum

does suggest and strongly advises spiritually the

rabbis and the clergy to make sure that they still

reach out to the family and still try to help

comfort the family.

They lifted a ban on officiating in some

method at a cremation in the mid to late '90s, only

for the purposes, as they say, so as not to turn

anybody away from a religious or spiritual

counselor, guidance or rabbinical leader or figure

during a time of need.

But it was clear from the -- from the responsa

that had been issued by the Reform movement

itself -- and they have a difference in the Reform

movement between responsa, memoranda and essays and

letters and things of that nature, but in their

responsa themselves they strongly encourage keeping

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with Jewish tradition and practice and doing a

burial as has been done for many -- for centuries.

THE COURT: There is no prohibition against

cremation and, in fact, a rabbi could preside over

the ceremony of interment?

THE WITNESS: The language that's brought down

in the Reform movement's responsa is basically

saying cremation is not part of the Jewish

tradition. It is something that should be

discouraged as much as possible. But the approach

that was taken was not to excommunicate or cut off

somebody who had done so, but that rather they

should be strongly encouraged to follow the Jewish

tradition. But in order to make sure or to try to

keep people from being driven away from the

synagogue or from the -- or from religion practice

entirely because the rabbi refused to come and

officiate at a service, their methods and ways have

been outlined in a separate section and pamphlet

that was given out on how to be able to do so.

But even in those cases burial of the ashes

afterwards are prohibited in a Jewish cemetery.

MS. FINKELSTEIN: Judge, I'm just looking at

the time. I don't know how long we're going to go.

It's 28 after.

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THE COURT: We're going to finish with this

witness, because with an expert witness I am

actually allowed to go over time, as much over time

as I need. I just have to inform them, which I'm

going to do right now real quickly. Okay.


proceedings.)

THE COURT: All right. Please continue.

Q. In Jewish tradition and Jewish law, if an

individual cremates a Jewish person when that perso n

has not expressed that desire, is that a sin?

A. Yes.

Q. Based on your expert opinion, if an individual

who for ten, 15 years has attended Friday night

services, Saturday services, every holiday service,

Succot, Rosh Hashana, Yom Kippur, who has lived a

kosher life-style for that amount of time, is that an

individual who would want to follow Jewish law and be

buried in accordance with Jewish faith?

MR. DeMAY: Objection. The question is

improper. It asks the witness to opine on the key

factor in this litigation and goes beyond. It asks

to opine on other facts as well.

MS. FINKELSTEIN: Your Honor, he just went

through the different levels: Conservative,

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Orthodox, Reform. And I'm giving him the level of

observance of an individual.

So based upon an individual who has that level

of observance and that level of practice, is that

an individual who would be consistent with

following the Jewish law in a burial.

THE COURT: Let me have the question read

back, please.

(Whereupon, the requested portion of the

record was read by the court reporter.)

THE COURT: Objection sustained.

Question for you. You indicated that it would

be a sin if the decedent had not asked to be

cremated?

THE WITNESS: Yes.

THE COURT: A sin for whom?

THE WITNESS: The sin would be on the person

who commit -- who did the cremation. It would fall

under the desecration of a dead body or a

desecration of a body.

THE COURT: But if the person had indicated

that he wanted to be cremated, then it wouldn't be

a sin for that person. But what effect would it

have on the decedent?

THE WITNESS: On the decedent it would be --

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the decedent would -- if it was against their will

such as occurred in the holocaust, let's say, so,

that's something which is against their will. And

that's something which would probably not have any

effect on them, you know, in the spiritual sense or

in the religious sense.

For the person doing the cremating, that is a

desecration of the dead. It would be something

considered in violation of the person's wishes,

which is another thing that we would want to do.

In other words, if a person is observant Jew,

who under normal circumstances would have wanted to

be buried, but is not being buried because some SS

officer has decided otherwise, then that would be a

different situation.

THE COURT: Let me ask you this, which may be

a very simplistic question. But in my religion,

Catholic, there's levels of sin, anything from a

venial sin, a mortal sin. And if there's such a

scale in the Jewish religion, would that be a --

what level would that be at?

THE WITNESS: So --

THE COURT: Because you indicated a person who

is Reform can choose to do certain things that an

Orthodox, a more observant Jewish person would not

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be able to do. I think one of them is eating meat

or eating the wrong meat. Where would this lie?

THE WITNESS: Well, so, in Judaism, we do not

have, as does the Catholic faith in terms of venial

versus mortal versus cardinal sins.

There are several items or several things

which would be considered to be set aside or on the

extreme level. Idol worship, killing someone or

being -- or something along those lines would be

considered to be absolutely mortal sins.

Eating on Yom Kippur is considered to be of

the highest level. Engaging in certain illicit

sexual behavior is considered to be on the highest

of levels. After that, everything else is pretty

much within the same general category as being a

sin so to speak.

There may be different punishments prescribed

for them or different types of ramifications, but

we don't really divide them up as does the Catholic

faith in terms of these different types of levels.

The issue of eating out, let's say, that Your

Honor had raised, is not a question of can or

cannot. It's a question of is it considered to

be -- if one were to eat out in a non-kosher

restaurant, not follow the laws of keeping kosher,

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so that person would probably not be considered by

the community to be -- or in general to be

considered Orthodox. They're not keeping to those

laws, although, that is not necessarily definitive,

because it happens from time to time. People are

fallible. We make mistakes.

The Reform movement is much more open in that

regard in that people do things that they shouldn't

necessarily do. And that we do not -- and that

within the Reform movement there is less of an

inclination to say that somebody is no longer to be

part of the community or trusted within the

community, let's say, than in the Orthodox.

Within the Orthodox community or Orthodox

movement, if there was somebody who is known to be

not keeping kosher, other people would not

necessarily eat in their home -- or not probably.

Would definitely not eat in their home. As opposed

to the Reform movement where that would not be an

issue necessarily.

And again, there is movement within the Reform

movement itself. There is movement and discussions

within the Reform movement itself - which was

coming out since the last -- especially since 2014,

when the -- when the, as I mentioned before, the

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Pew research study came out on American Judaism -

to try to move back and reinstate various customs

and various practices back into the Reform movement

and Reform practice.


Q. Rabbi, are there different levels of observance

in the Reform movement, in conservative and Orthodo x?

A. Yes.

Q. So there can be someone who's more religiously

observant as a Reform Jew than someone else?

A. Yes.

Q. And if someone is not a member of a synagogue,

how could you know whether or not they're Reform or

Conservative or Orthodox?

A. You'd be very hard pressed to know that simply by

looking at them. Although, a person whose is

Orthodox most likely would be wearing a yarmulke on

their head, may have sidelocks, may not, maybe

dressing in a way that would be a little bit more

distinctive.

But just by looking at the person, you would

have no way of knowing their level of observance.

Q. Let's talk about Conservative and Reform.

A. The same thing would be true about Conservative

and Reform. Conservative and Reform in general do

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not wear yarmulkes outside of the synagogue or

outside of religious functions. The clothing would

be much more modern and in fashion or in style, let 's

say. And so it would be almost impossible to tell

from just looking at somebody what level of

observance that person would have.

An as example I gave once in a course that I

was teaching was that if one were to see Senator

Joseph Lieberman standing in the senate, one would

not have been able to tell by looking at him if he

was observant or not.

As opposed to Senator Sanders, who has -- who

is also Jewish, but has said he's not observant.

Whereas Senator Lieberman is observant and is avowe d

as an Orthodox Jew and carries on and keeps, as far

as I know, all Orthodox traditions.

Q. And is it also true that someone could change

from Reform Judaism to Conservative Judaism to

Orthodox Judaism throughout one's lifetime?

A. Absolutely.

Q. So if someone was raised Reform, there is no

Jewish law which prohibit him from becoming more

religious and become a Conservative Jew?

A. Absolutely not.

THE COURT: If someone showed up to a

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religious ceremony, like the blowing of the shofer,

a certain holiday without a yarmulke on, would that

indicate anything to you?

THE WITNESS: It depends on the situation. So

for myself, for example, I spend the High Holidays

serving as the Rabbi at NYU Medical Center.

So, very often we have patients who are not in

their best attire, so to speak, and may have

misplaced a yarmulke or something of that nature,

which is why we keep a whole bunch around.

So the fact that a person shows up without a

yarmulke would not necessarily be indicative of

anything.

And it would also depend, I think, and

although I'm not completely familiar with the facts

of this case or the particulars, from -- it would

depend on where you would be and, I think, the

setting.

If you were in a synagogue and somebody showed

up and came in and did not have a yarmulke on, that

might -- and they're in their forties, fifties,

whatever it is, that may be somewhat different than

someone coming in, in a nursing home setting,

trying to make sure they come.

But, again, it would depend on the situation.

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THE COURT: It would be speculation?

THE WITNESS: Speculation.

But again, I would look and -- to be honest, I

actually had this past Rosh Hashana a gentleman who

was -- who was from a very, very fundamental

Chassidic sect, who came for shofer blowing and was

wheeled down by a nurse to come down for the shofer

and did not realize that he did not have a yarmulke

on. It had gotten lost somewhere in the transfer

from the bed to the wheelchair.

THE COURT: Are you available tomorrow for

testimony?

THE WITNESS: If Your Honor needs me to be

available, I'll be available.

THE COURT: Then let's close here.

MS. FINKELSTEIN: Very well, Your Honor.

THE COURT: And tomorrow, let me just take a

look. I have a calendar in the morning. We could

start at 11:30.

MS. FINKELSTEIN: The only concern is the

Sabbath. He has to get back to New Jersey. So is

it definitely a firm starting at 11:30? Is it a

long calendar, Your Honor?

THE COURT: I would probably not have any

conferences unless it's absolutely necessary. That

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would shorten the calendar.

MS. FINKELSTEIN: Because I have another rabbi

also with the same concern.

THE COURT: It does not look as heavy as what

I had over the last couple of days. So, 11 cases.

Let's do it at 11:30.

THE WITNESS: Yeah, I just have to be out by,

you know, 3:00 at the latest.

THE COURT: Yeah, definitely.

Okay. Then we'll see you tomorrow.

You may step down.

THE WITNESS: Thank you, Your Honor.

THE COURT: We'll see everybody tomorrow.



oOo

REPORTER'S CERTIFICATION

I, AMBER MALKIE FINER, do hereby certify that

the foregoing is a true and accurate transcript.

__________________________ AMBER MALKIE FINER, R.P.R. Senior Court Reporter

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INDEX OF WITNESSES

WITNESS DIRECT CROSS REDIRECT RECROSS VOI R DIRE

S SPERLIN 4(F) 25(D)

Y ULLMAN 30(F)

M BARUCH 50(F) 65(D)

B KELSEN 67(F)

EXHIBITS

PLAINTIFF EXHIBIT ID EVD

1 Photograph 14 16

2 Photograph 22 24

3 Nursing home agreement 34

4 Form DSS 3122 36

5 Form DSS 2949 45 47

6, 7 & 8 Three photographs 55 57

9 CV 70 72

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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND - - - - - - - - - - - - - - - - - - - - - - X In the Matter of the Application of: PHILLIP SCHONBERGER concerning the In-ground Burial of the remains of MARTIN MENDELSON, Index No.











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THE COURT: We're ready to proceed.

Did you want to put something on the record?

I think you said you wanted to put something on the

record?

MS. FINKELSTEIN: No, I did not.

THE COURT: Okay. For the record, Rabbi

Kelsen has resumed his position on the witness

stand.

And, Rabbi, I just remind you, you are still

under oath.

Do you understand that?

THE WITNESS: Absolutely, Your Honor. Yes.

THE COURT: Okay. Go right ahead. Your

witness.


CONTINUED DIRECT EXAMINATION BY MS. FINKELSTEIN:

Q. Rabbi Kelsen, if I may go back to the foundation

of Judaism.

What are -- what is the seven foundations of

Judaism?

A. Well, Maimonides had come up with a system

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where -- a codified 13 fundamental principles of

faith that he said he brought it out and drew it ou t

of the Talmud and Bible itself as the fundamental

core beliefs of Judaism.

Q. What are those?

A. So among those we have that there's a belief in

God; the fact that Moses received the Torah from Go d

directly; that there is resurrection of the dead

following the -- following the coming of the Messia h.

Things along those lines.

We can go through all 13, if you like, but

those are the core beliefs.

Q. And does it come from those core beliefs of

Judaism that a Jewish individual should be returned

to the earth, so if the Messiah comes back they can

be resurrected, the body can be resurrected with th e

soul?

A. It's tied into two principles. The Talmud

discusses, when they discuss the concept -- obvious ly

Maimonides didn't codify it into the language. It

wasn't done until several centuries later. But the

Talmud and the commentators on the Talmud basically

tie it into two of the fundamental principles.

The first principles is that -- that one is

required to believe in God. And that if -- and tha t

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from there any violation of a commandment would,

therefore, be a rejection of that fundamental belie f.

The last -- and the second point would be that

on the principle that there is a resurrection of th e

dead at some point when Messiah comes, by destroyin g

the body one is therefore, according to the

commentators, and most totally Rabbi Joseph Caro,

C-A-R-O, who lived in the city of Tzfas, who lived in

the city of Tzfas in northern Israel in about the

13th/14th century. So he codified that and relied on

Maimonides very heavily for that and said, wrote in

his section on life cycle events in his codex of

Jewish law that one who would commit a cremation is

denying two fundamental core principles.

One is the belief in God. Because if God has

told us in the Bible to -- and -- and it is learned

out from other places as well, that one should be

doing a burial in the ground and you're going again st

that, then you are actually denying the existence o r

supremacy of God and God's mastery over all.

In addition to which if you commit -- if one

were to have a cremation done, then the cremation

would be -- would violate -- not violate, but would

show a denial of the second principle that we spoke

of, which was the resurrection of the ever dead.

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If I'm going to destroy the body, then I'm

assuming therefore -- or I'm denying, therefore, th e

concept that God is going to cause a return of thos e

who have pre-deceased the arrival of the Messiah,

because clearly there's no body anymore to be

resurrected.

Q. So there's no body for the soul to return to if

the Messiah comes?

A. Correct.

Q. So by cremating the body - correct me if I'm

wrong - then you're taking away from your belief in

God?

A. You are doing a physical mani -- a definitive and

physical manifestation of a denial of belief in God

and one of the 13 core fundamental principles.

THE COURT: Let me ask you a question --

THE WITNESS: Sure.

THE COURT: -- more importantly as concerns

this case.

Is every Jew, whether they're Reform or

Orthodox aware of this, of this core principle that

as you called it?

THE WITNESS: It's difficult to say what

everybody is aware about obviously.

THE COURT: I know and I understand that --

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THE WITNESS: Right.

THE COURT: -- the defense may have an

objection to this. But I think -- I mean there are

some beliefs -- in my religion, for example, if

you've been to religion class one time, you would

understand certain things.

Is this something that's taught? If someone

was, for example, Bar Mitzvah'd, would this be

something that they would learn during that Bar

Mitzvah proceeding?

MR. DeMAY: The Bar Mitzvah would be a little

different. Most of the time Bar Mitzvah

proceedings focus on the teaching of this young man

how to - or young woman in certain Conservative or

Reform - how to actually chant from the Torah.

THE COURT: I just mentioned that, you know,

as an example. I don't know where it would be

taught. But my question to you really is, would

every Jew have at one point in time in their study

of Judaism and their religion learn of this

principle, this core principle?

MR. DeMAY: In my experience they definitely

would have learned of Maimonides. They would have

learned of Maimonides' 13 principles -- that

Maimonides has these principles.

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And the first, belief in God, I think I can

say without any doubt they are aware of.

And the concept of the resurrection of those

who have pre-deceased the arrival of the Messiah is

something which is taught -- as far as I can tell

it is taught pretty much everywhere.

There may be questions and differences as to

how and in what format its taught and what it

actually means, but for the most part I think that

I can say that people are well aware of it if they

receive any sort of Jewish education.

THE COURT: Okay. Let me ask you this:

During -- and I'm just going to relate to this to

my religion.

THE WITNESS: Please.

THE COURT: And maybe you'll understand why.

Every Sunday we recite the Nicene creed. And

that includes, you know, the resurrection and

mention of the resurrection.

Is there something that if a Jew went to a

service that they also either repeat or

acknowledge --

THE WITNESS: Yes.

THE COURT: -- each service?

THE WITNESS: Yes. The Yigdal, Y-I-G-D-A-L,

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prayer, which is recited both in the morning every

day of the week and is recited on holidays and

Sabbath as well, is a prayer that is put together

from Maimonides's 13 principles.

So, if one is following along in the prayer

book and is looking at the -- at this particular

prayer, it is included -- I've actually checked on

this. It is included in both the -- in all three.

It's included, obviously, in the Orthodox prayer

books, but it is also included in the Conservative

and the Reform. And if you're following along in

any way, whether it been in the English or in the

Hebrew, this concept would come forth therein.

There's also at least two or three other

places that I can think of in the daily prayer

service that, at least twice a day, if not more

than that -- I guess three times a day, we would be

saying and alluding to that in what we call the

Amidah, A-M-I-D-A-H, which is a silent prayer that

has a repetition afterwards by the leader of the

service and is the center piece of each of the

morning, afternoon and evening prayer services.

The second part, the second blessing within

the 18 blessings, paragraphs that make up that

prayer actually says and makes a reference to

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Blessed Art Thou, Oh, Lord, Resurrector of the

Dead.

So it is a concept I think that would be very

hard to find to -- to say that somebody is not

aware of. If there is someone who follows along

and has any sort of educational background and

follows along in their prayer book when they're

there, they would be well aware of this concept.

Q. Rabbi, if I may just follow-up on the judge's

questions.

If an individual attended services every

Friday and Saturday and listened to the reading fro m

the Torah, would that be included? The 13 principl es

and seven days of creation, all these basic

fundamental Jewish principles, is that all included

in there?

A. Yes.

Q. And that would be repeated every service, every

morning and every afternoon?

A. And evening, correct.

Q. As well as on the High Holy Days and other

additional holidays?

A. Correct.

On the High Holidays, in fact, it 's actually

mentioned many more times, because as on the High

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Holidays we're talking about the concept of

repentance and the ability to make up for one's sin s

and be forgiven. So, the concept of the resurrecti on

at the end of this -- whatever this period would be ,

but the beginning of the Messianic period is

mentioned on numerous periods.

THE COURT: The resurrection refers to the

body? I mean, would a person understand that to be

resurrected you would need a body?

THE WITNESS: I mean, it says the resurrection

of the dead.

THE COURT: Which could be the soul, right?

MR. DeMAY: I mean, it's -- for the most part

it seems to be clear from the language it's

referring to --

THE COURT: Corpus?

THE WITNESS: -- the corpus. The returning of

the soul to the corpus. In fact, the Talmud

actually talks about a preference.

I think -- I'm not sure if the Court has ever

seen it, but there's a practice that some people

try to follow - if they can afford to, but it's

obviously not a law, but it's something that people

try to do - to have burial done in Israel.

And it's considered a very big deal to be able

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to afford and have a burial done in Israel, because

the Talmud says -- it's actually a little funny.

The Talmud says that when Messiah comes and there

is going to be the resurrection of the dead, so the

bodies are all going to somehow have to get from

Rockland County to Jerusalem. And so how are they

going to get there? It talks about rolling. You

know, how are they going to do that?

That's why it's preferred to be buried in

Israel, so you're that much closer when the

Messianic period begins.

THE COURT: You said something that may very

well be extremely relevant here. You said

something about the concept of the return of the

soul to the corpus.

Is this something that's understood and

something that any -- no matter which one of the

three branches a Jewish person would be a member

of, would understand that it's a return of the soul

to the corpus so therefore you need the body?

THE WITNESS: I believe that the language

itself is very clear. I can obviously not attest

to what everybody teaches --

THE COURT: I see.

THE WITNESS: -- on their own. But I think

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that if you read the language, it's definitely

within the Conservative movement and definitely

within the Orthodox movement understood that way.

In the Reform movement there is much more of a

concept of, how should we say, of individual

acceptance. In other words, the technical or

official position of the Reform movement is that

there would be a resurrection. However, if a

person were to say that doesn't make any sense to

me, we don't -- the Reform movement wouldn't brand

them a heretic based on that.

THE COURT: I think you did testify yesterday,

because I think it was sort of a -- it was a

question along the lines of how do you tell one

from the other. And you tell -- you can tell by

their -- by their dress.

THE WITNESS: Sometimes.

THE COURT: Sometimes, right. Or the way they

wear their hair.

THE WITNESS: Yes.

THE COURT: Payos and things like that.

How does one choose to become one or the

other? And is there something officially that's

done in making a choice? You know, one day I wake

up and say I'm going to be a member the Reform

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movement, I'm going to be a member of the Orthodox

or Conservative.

THE WITNESS: So, we do not necessarily -- we

do not have any particular ceremony of any sort. A

person, as long as a person is Jewish there is no

issue of them deciding one morning that they've

decided that they're going to be following one or

the other.

Much of the time it is based upon family

tradition. How did the family -- how did you your

parents raise you.

And other times, and increasingly so according

to the Pew research study that was done in 2014

that I referred to yesterday, increasingly as young

people are going off to school and spending time

studying where they come from and studying religion

and studying theology, so we're finding very often

that people are coming to -- coming from wherever

they're coming from are re-affirming or learning or

affirming their beliefs based on the encounters

that they would have on college campus or whenever

they may be or people they meet.

And now that we have people traveling all over

the world and a person from Ohio can go to Harvard

or could go to Columbia and come in contact with

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different people and be can exposed to certain

ideas. A person may say oh, you know what? I

actually decided -- I actually -- you know, that

makes sense to me and I think I'll start doing

that.

Q. You're saying environmental -- environment in the

people they're with could effect the level of their

observance?

A. Absolutely.

Q. So if an individual -- and I don't mean to

interrupt --

THE COURT: No, go ahead.

Q. -- with the next question.

If an individual attended Orthodox services,

led by an Orthodox rabbi, these principles in which

the Judge just asked you about, the principle of

resurrection, the seven days of creation, the

foundation, would that all be included in the sermo n,

in the Torah reading and in the prayers?

A. Absolutely.

THE COURT: Here we have, it seemed to me

anyway, almost like a non-denominational type of

situation, where somebody's in adult facility and

there are services, but I don't think the services

were denoted as Orthodox services, Conservative

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services or Reform?

THE WITNESS: So, there are different nursing

homes in different places. There's one -- there

are plenty in the City. You know, I have family

members who are in the Abramson facility, you know,

Abramson Home for the Aged in Pennsylvania, which

was nondenominational, but there are those that

actually say this is an Orthodox establishment.

This is a place that keeps the laws of kosher,

strict laws of kosher for everybody who is here, at

least within the meals they're serving there. They

would follow the laws of the Sabbath. They might

have an elevator set up along those lines so that

it would stop at each floor, so one does not have

to press any of the buttons.

So, here in Rockland County, I guess, you

would say there may be -- I know when I was -- when

I was first -- I actually, about two years ago, did

an Article 81 certification course. And one of the

people that I was appointed to act as guardian ad

litem for was in a Jewish nursing facility that was

nondenominational. And the chaplain was a woman.

That are other places that I've been doing.

There's the Care-One Facility, rehabilitation

facility in Teaneck, in New Jersey, which has

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Orthodox and run under Orthodox auspices.

THE COURT: You're not familiar with

Evergreen?

THE WITNESS: No.

THE COURT: Okay. Why don't you continue.


Q. Rabbi, so along those lines of the resurrection

and that the body is waiting for the soul to return .

If someone takes away that body, if someone cremate s

that body, what happens to the soul when the Messia h

comes?

A. According to the Talmud, the soul would have

nowhere to go.

Q. For eternity?

A. Correct.

Q. Now we talked -- I know Judge Alfieri had some

questions about the level of sins and he made some

comparisons to different faiths?

THE COURT: I said levels of sins?

MS. FINKELSTEIN: Levels of sins. You were

saying there's a cardinal sin.

THE COURT: Oh, right.

MS. FINKELSTEIN: You cited different level of

sins, or categorized sins, I should say.

Q. If a comparison of sins under Jewish faith, basic

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Jewish faith on principles, fundamental principles

can be made, does, for example, a sin of smoking on

the Sabbath or eating non-kosher food, how does tha t

compare to a sin of cremation of a Jewish body?

A. So it's actually a very interesting question.

The issue would be as follows:

The violation of the Sabbath, let's say, would

be a -- would be considered to be a -- obviously a

sin. According to the Bible it is one for which on e

is -- one would receive the death penalty; although ,

as the Talmud tells us it was never carried out. B ut

there would be requirement for repentance, which is

described as prayer, sacrifices etc. And that is

something we can point at it and say okay, that's

something where you would have a certain prescribed

method in which to be able to do repentance. There

are -- and in and of itself it would be a one-time

action.


proceeding.)

Q. You said in and of itself those are a one-time

action. You may proceed.

A. It would be a one-time action for which somebody

would be able to do repentance.

In fact, we just passed Yom Kippur, a fast

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day. So one of the questions that comes up, for

example, would be if somebody were to break the fas t,

would eat on Yom Kippur. So, does that mean they

shouldn't fast the rest of the day or that they

should continue from that point forward.

The answer is they should continue from that

point further, that one act of eating has its own - -

it's considered a sin. It has to be dealt with.

But, in other words, that you haven't irreparably

harmed your standing -- your standing, for lack of a

better term.

Cremation, because it would be a renunciation,

essentially, of belief in God and belief in the cor e

fundamental principles, so cremation is something

that's kind of you really can't walk back from.

In other words, you can -- a person could come

around and say you know what, I was wrong at that

point. I should not have done that. And that can be

dealt with. And a person can try to do repentance

for that, but that actual act of denial of the --

essentially a denial of God and God's laws and God' s

authority over man would be considered to be what w e

say in transliteration, a kofer b'ikar. I don't kn ow

how you want to translate that, but basically a

renunciator of a fundamental ikar, meaning a

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fundamental principle. So such a person is denying

one of the fundamental principles of faith.

I suppose in theory a person can always do

repentance for something like that, but it's very

difficult to be able to say that they have -- they

have not crossed a -- probably the most major line

that one can cross.

Q. So a person who performs cremation can do

repentance, but for the individual cremated there i s

no coming back from that, correct?

A. There is no coming back from that. Obviously

there are situations that it would be dependent upo n.

If you're talking about a situation in the

holocaust, for example, so that would be a differen t

situation.

A person who puts down in their -- as a choice

of burial that they wish to be cremated, if that's

what they were to put down amongst their will or

their letter of intent of what they would like, wha t

they would like done upon their passing, that would

be something that would be rather hard to come back

from, considering they're not around anymore.

THE COURT: I just wanted to do -- I think

counsel may have touched on this. You may very

well have answered it.

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But are the services the same whether you're

in an Orthodox service, a Reform service or

Conservative?

THE WITNESS: There are several points that

are all going to be the same.

THE COURT: Is resurrection one of them --

THE WITNESS: Yes.

THE COURT: The soul to the body?

THE WITNESS: Yes.

THE COURT: Always the same regardless of

whether you're in a Conservative or Orthodox --

THE WITNESS: Correct. It's not one of those

things that have been changed. It will be in

Yigdal as well as the Amidah. It's there.

Q. Is that a fundamental belief of Judaism?

A. Yes.

Q. That is in Orthodox, Conservative and Reform?

A. Yes.

Q. Thank you.

Once again that same principle is in - as you

said you researched it - in Reform, Conservative an d

Orthodox prayer books?

A. That's correct.

MR. DeMAY: Objection. Leading, Your Honor.

THE COURT: I'm going to allow it. I think

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there's really only one way to ask that question.

A. There have been changes over the years in the

different denominational prayer books, but that

particular point has not been changed.

Q. In your expert opinion, Rabbi - I'll do the

hypothetic question - if an individual passes, an

individual dies, a Jewish person - and I'm going to

provide you with factors - someone who went to

Sabbath services Friday night and Saturday, someone

who chose to reside in a kosher residence, someone

who attended and participated in all holidays, not

just High Holy Days, but all holidays, someone who

chose to have a late meal for purposes of Yom Kippu r

fasting, someone who participated in the Passover

seders, someone who lit the candles and said the

prayers, someone who after services would sit with

the rabbi and discuss the Torah and Moses and God a nd

did not provide any written wishes as to the

disposition of there remains, what would you instru ct

that person to do with the body?

MR. DeMAY: Objection, Your Honor. It's the

same question from yesterday. It's an improper

hypothetical and it's beyond his realm of

expertise.

MS. FINKELSTEIN: Judge, he sat here for two

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days. He can cite to every book. He's an expert.

He's a scholar. And there was no objection by

counsel for his qualifications or qualifying him as

an expert in Jewish law and Talmudic study.

MR. DeMAY: He's an expert on Jewish law.

It's plainly --

MS. FINKELSTEIN: If I may finish?

MR. DeMAY: -- an attempt to render an

expert --

MS. FINKELSTEIN: If I may finish?

He is an expert. And doing so, in not

opposing the expertise, he's entitled to his

opinion on a hypothetical questions. And the whole

foundation has led up to this, Your Honor. You've

asked him pieces of this question and now I'm just

putting this question in its entirety.

MR. DeMAY: It's a plain attempt to have the

expert opine on what the decedent would have done.

MS. FINKELSTEIN: It' a hypothetical.

MR. DeMAY: It's an improper question.

THE COURT: No, the question is what he would

now --

MS. FINKELSTEIN: What opinion he would give.

THE COURT: I'll tell you why I have a problem

with the question. You instruct whom?

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Cross - Kelsen - DeMay

MS. FINKELSTEIN: An individual comes to you

and asks what to do with the remains of an

individual who --

THE COURT: I see. Okay.

MS. FINKELSTEIN: As a rabbi.

THE COURT: I missed that part of the

question.

Do you understand that's the question? In

other words, someone comes to you with all the

qualifications that the attorney just stated on the

record, I've got a decedent -- I've got a decedent

here. This is what his life was like. What should

I do. That's what she's asking.

Q. With no written instructions from the decedent.

What would you do as a rabbi and an expert in this

area of law?


objection. You may answer the question.

A. In such a circumstances I would tell them they

should follow Jewish tradition and do a Jewish buri al

as prescribed by Jewish law.

Q. Why is that, sir?

A. Based upon the hypothetical that you've given,

which I'm going to assume has some bearing based on

the objections, that a person who chooses to live i n

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an Orthodox -- in a Orthodox establishment and who

chooses -- and is showing a -- demonstrating throug h

actions an adherence to Jewish custom and tradition ,

law, faith etc., that such a person would, without

written instructions to the contrary, would be

following through with that in their passing as wel l.

And as such I would say that if that's the case, th ey

would want to be following Jewish law. If they're

following Jewish law in other areas of their life,

then they would want to follow Jewish law in terms of

burial.

Q. With those factors, would it matter if someone is

Orthodox, Conservative or Reform, with the factors I

provided you with?

A. I don't believe so.

Q. Would that change your opinion whatsoever?

A. No.





A. Good afternoon.

Q. When were you engaged to work on this lawsuit?

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A. I actually was never engaged from the strict

concept of engaged. I was contacted last week by t he

Rabbinical Counsel of America's executive director

Rabbi Mark Dratch, D-R-A-T-C-H, and asked if I was

available on Thursday to testify regarding Jewish l aw

in Rockland County.

Q. Are you being paid?

A. No, I have not received any payment. I did have

lunch yesterday, but other than that, I have not

received any payment.

Q. Yesterday, you testified that Jewish law covers a

very, very large corpus of information.

Do you remember that?

A. Yes.

Q. Covering all -- covering the words the Moses all

the way through the doctrine of the present day,

right?

A. Yes. I'm not sure. What's the question?

Q. Do you recall testifying to that?

A. Yes.

Q. And do you recall testifying that that body of

laws is growing and -- it's constantly growing and

continuing?

A. Yes.

Q. And Jewish law is a very wide entity that governs

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even things likes how to wake up in the morning; is

that right?

A. That's correct.

Q. How does Jewish law instruct Jewish people to

wake up in the morning?

A. The first thing would be to wake up in the

morning. There's a prayer that is said, Modeh Ani

M-O-D-E-H, A-N-I, which essentially says - actually

it's pertinent to this - is in English says I thank s

God for -- I thank God for returning the soul to th e

body and essentially resurrecting the individual in

the morning. The idea being that at night the soul

leaves the body and then comes back in the morning.

And so, we thank God for the miracle of being able to

wake up in the morning.

Following that one -- one washes one's hands.

There are several prayers that come after that. An d

there are laws that are brought down on which shoe

goes on first. The right shoes goes on first and

tied first and then the left shoe, things of that

nature.

Q. Those are required under Jewish law?

A. Those are listed -- those are listed in the Codex

of Jewish Law, the Shulchan Aruch, which is written

by Rabbi Joseph Caro, as I indicated earlier, in th e

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13th/14th century.

Q. And that's in the morning. Does Jewish law list

any requirements at nighttime prayer?

A. Yes, it does.

Q. What are those?

A. Those would be -- there's a nighttime prayer.

There's three prayer gatherings during the day or

three prayers that happen during the day; morning,

afternoon and evening.

Each of these corresponds to the time of a

sacrifice would have been brought in ancient times,

in the temple in Jerusalem and since that period of

time has been replaced with prayers following the

destruction of the Temple.

Before going to sleep at night, there's

another prayer that one says and recites before goi ng

to sleep at night, which is the Shema, which is

S-H-E-M-A, whatever it is. But again, that's

something that is said along with several paragraph s

before -- basically before one goes to sleep at

night. And then that's -- I mean, there's a couple

other things in there also, but that's basically th e

gist of it.

Q. What is a tallit?

A. I'm sorry?

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Q. A tallit or a tallis?

A. A tallis is a prayer shawl. It is a -- depending

on where you are, but it's basically a long cloth

with four corners on it upon which one places strin gs

referred to as tzitzis, which are on each corner.

And the Tallis is colloquially referred to as a

prayer shawl.

It's worn during prayer time and it's also

used frequently during burial that a person would b e

wrapped in their tallis when they are buried. But

that part is not necessarily the only way the buria l

can be done. It can be done with other cloth.

Sometimes the tallis is past down from generation t o

generation as a family legacy and heirloom.

Q. What is tefillin?

A. Tefillin are what would be referred to as

phylacteries. They are leather boxes that contain

paragraphs of the Shema's prayer in those boxes.

There is one that goes on the arm and one that goes

on the forehead.

And these come -- these boxes, leather boxes

come with leather straps. And one wraps those stra ps

around one's arm around, around the fingers and put s

the box on one's forehead with the straps that come

down over the shoulders.

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Those originally were intended to be worn

during the -- whenever a person was involved in,

engaged in Torah study or prayer.

And over the last two millennia, it was

determined to be worn during morning services only,

because of the holiness of the words that are insid e.

They're actually written by a scribe. And they hav e

to be written just like in a way very similar to th e

way a Torah scroll a written.

And so because of that and because there is a

concern one would not able to keep the proper minds et

while wearing these, so the time frame of about two

millennia ago that one would wear them was

concentrated to simply during the morning services.

Q. And how long are the leather straps?

A. The leather straps themselves would vary from --

I guess from person to person in general. It's a

very good question. I never actually measured, sat

down, took a tape measure to measure them, but

essentially they are long enough -- on the

phylacteries for the arm, they're long enough to be

wrapped around the forearm seven times and then

around the fingers three times. So with stretching

it out, I guess it would be, I don't know, maybe

five feet, maybe stretching it out a little bit

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perhaps.

The shoulder, the one for its head goes around

the head and then comes down. And on most pairs, i f

you're not buying them for a child to wear and they

haven't been cut, would go down past the waist to

probably approximately mid-thigh length.

Q. And what is a Bar Mitzvah?

A. Bar Mitzvah, depending how you want to discuss

it, a Bar Mitzvah is at the age of 13 for a boy, at

the age of 12 for a girl we are -- they're consider ed

to have reached the age of majority in Jewish law, as

opposed to 18 in secular law, in American law.

And at 13 - your referred to a Bar Mitzvah for

a boy - the person becomes responsible for their ow n

actions, becomes responsible for fulfill ing Jewish

law and carrying out the commandments and is

responsible for their own actions. They be counted

towards a quorum for a prayer service. They can be

relied upon as a witness in a Beit Din. And they

basically reach adulthood within Jewish law. That' s

what a Bar Mitzvah technically is.

There is also very often a party that

accompanies that, which becomes a whole other thing ,

depending on where you are. Some people do a quiet

or very small thing or people can rent boats and

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islands and do whatever else they want to do.

Q. Aside from the party --

A. Right.

Q. -- the Bar Mitzvah is important for a Jewish man,

right?

A. That's correct.

Q. And what is confirmation?

A. Confirmation is actually something which comes

from the Christian faith. Confirmation is somethin g

that the Reform movement began doing maybe 25 years

ago. There was basically the idea of confirming a

person reaching adulthood. It's very often being

done at the age of 16, which was sort of

confirming -- sort of going along with the Sweet 16

sort of thing.

And if one goes back and looks through Reform

movement's discussions, they go back and forth. Th at

was one of the objections to introducing this type of

a ceremony of sorts, but the idea was to create

something that would recognize, I guess, the

maturation of the individual.

Most of the time it's done for girls. It was

originally done for girls because at a Bar Mitzvah

the tradition usually is, at least in the United

States in modern times, is that the young man reads

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the Torah portion from the Torah scroll in front of

the congregation.

Up until the mid '70s or early '70s, the women

did not -- women did not have a similar practice.

Women did not read out of Torah scrolls, so the

confirmation was sort of thrown in as an official

recognition of a young woman reaching majority.

So, it's not really an official religious

thing. It is not put in -- the Reform movement doe s

not recognize it is as an official religious act or

service, but does not necessarily dissuade people o r

discourage people from taking -- doing something to

take -- to mark a young person's maturation and

understanding of their coming of age so to speak an d

their taking their place within the Jewish communit y

as well as becoming required to fulfill the

commandments.

THE COURT: My understanding of confirmation

is it's not a Sweet 16 thing. It's a confirmation

of your faith, your belief in the faith --

THE WITNESS: Correct.

THE COURT: -- your membership of the faith.

THE WITNESS: Right. So within Judaism we

have the Bar Mitzvah or Bat Mitzvah, which happens

regardless of any action. That happens when the

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girl turns 12. Chronologically she's now Bat

Mitzvah. How that is celebrated is -- you know,

has varying customs and ways people will do that.

Sometimes it will be done with a small family

gathering. Other times will be done with a large

party. I think there was an article in the Times

or the Wall Street Journal a couple week ago that

somebody spent a million dollars on his daughter's

Bat Mitzvah. You know, that's -- you know, that's

something that there is a wide range.

Same thing with a Bar Mitzvah. Boy turns --

at the point where the boy turns 13 he is now Bar

Mitzvah. We mark that occasion through various --

either through reading from the Torah scroll or

being called up for a blessing at the Torah or

something else of that nature to do a public

demonstration, but it happens regardless.

The confirmation practice or procedure is put

in place. It was added. Originally, the Reform

movement brought it up because they said a lot of

kids are in public school. Most of the children --

most children from Reform homes and families are in

public school. So, the kids are all turning 16 and

having sweet 16's. And they were being asked what

do we get to do. And the kids are saying our

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ability -- you know to say we had something when we

were 12 is really not the same as a Sweet 16 that

my classmate had. So, they wanted to do have some

sort of a -- of an acknowledgment of that, a

recognition of that sort.

So the confirmation itself has no basis in

religion at the age of 16. It has no basis in

religion of any sort. It's something that the

Reform movement did not discourage people from

doing in terms of just being a reaffirmation or act

of confirmation as Your Honor just indicated of

one's faith and coming of age.

Q. Rabbi, are you familiar with the CCAR?

A. Yes, the Central Conference of American Rabbis.

Q. That's the oldest and largest rabbinical

organization in North America, right?

A. That's what they say on their website, yes.

Q. And they publish -- do you have any reason to

doubt it?

A. No, I have no idea what existed before. I have

no idea if three people got together on Manhattan's

Lower East Side in the 1850's and decided to

establish something. But as far as I know it's the

largest rabbinical conference.

The Pittsburgh platform, which was the main --

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was the first meeting in setting forth of Reform

Judaism principles in 1859. So, I have no reason t o

doubt that that's how long they've been around.

Q. And they publish responsa on issues pertaining to

Judaism and Reform Judaism, right?

A. They do, yes.

Q. And yesterday you testified that CCAR responsa

are definitive statements of Reform Jewish law?

A. They should be, yes. That's -- that's --

that's -- according to the CCAR and the Reform

movement -- the Reform movement's main body the

Hebrew Union College and School of Judaism, which a re

sort of somewhat affiliated, the CCAR responsa are

essentially questions posed and then the answers

given forth for Reform Judaism.

Q. Rabbi, are you familiar with all the filings in

this case?

A. I've seen no filings at all in this case.

Q. So you have not seen the verified petition dated

September 20th --

A. No.

Q. -- 2015?

I'd like to hand you a copy.

A. Okay.

MS. FINKELSTEIN: If I may see it first before

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you hand it up? If I can see what you're handing

up? Before the witness is shown, can I make sure

what's being provided to the witness?

THE COURT: Just mark it for identification.


THE COURT: This is Respondent's A.

(Whereupon, a pleading was marked Defendant's

Exhibit A for identification.)

THE COURT OFFICER: A for ID. Show the

witness?

THE WITNESS: Yes.

MR. DeMAY: Yes, please.


Q. Rabbi, do you have the exhibit in front of you?

A. Yes, I do.

Q. Can you please turn to the --

THE COURT: First of all, could you identify

this? Wait a minute. You're showing me the Order

to Show Cause?

MR. DeMAY: These are the initial pleadings in

this case, Your Honor. It's the initial petition

for an Order to Show Cause.

MS. FINKELSTEIN: Is he providing the initial

one which was actually denied by Your Honor, not

the subsequent fil ing?

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MR. DeMAY: Everything is in here, Your Honor,

including the subsequent filing.

MS. FINKELSTEIN: I would --

THE COURT: All right. I'll take notice of

the fact these are the legal papers filed in these

proceedings. And you have something attached to

it, though I'm not --

MR. DeMAY: Those are the exhibits to the

petition, yes.

MS. FINKELSTEIN: But is it separated, Your

Honor, from which was the initial filing, which

Your Honor did not sign the Order to Show Cause and

then the subsequent filing or is it grouped

together and co-mingled?

Mine appears to be co-mingled. I want to make

sure which one is which. I think that's important.

MR. DeMAY: These are all the case filings in

the case, Your Honor.

THE COURT: Okay. Do you have a question for

the witness?

Q. Rabbi, do you see the fifth page in this document

is the attorney's affirmation in support of

re-hearing and re-argument?

A. Yes. Attorney's affirmation in support of

re-hearing and re-argument, yes.

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MS. FINKELSTEIN: That's what page? In mine

it's the sixth page.

THE WITNESS: Mine is the sixth page as well.

Q. Okay. The sixth page. And then do you see there

are some exhibits to that document, Exhibit A,

Exhibit B?

A. I haven't gotten that far yet. I see they're

written down. Yes, I see Exhibit A marked, B, C.

Q. You can stop at Exhibit C. I'm going to ask you

about Exhibit C.

A. Sure.

Q. Do you see that Exhibit C is an expert of a book

titled, "When a Jew Dies, the Ethnography of a

Bereaved Son," by Samuel C. Heilman?

A. Yes.

Q. Do you see the excerpt beginning at page 232 and

continuing to page 234 from that document?

MS. FINKELSTEIN: Your Honor, I would just

object on the grounds this is not in evidence, Your

Honor. This witness has never seen this document.

I don't know if he's referring to an exhibit that

was in the initial pleadings, which was not

actually signed Your Honor. And he has not moved

it into evidence. So, I would object on those

grounds.

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MR. DeMAY: He's an expert, Your Honor, and

this is the filing in the case.

MS. FINKELSTEIN: Yeah, but it's not in

evidence. You just marked it for identification.

he has not seen this exhibit. This is a five or

six page document. He's not had an opportunity to

read it. And it's not in evidence, so the witness

can't read from or refer to something that's not in

evidence.

MR. DeMAY: It also goes to his expertise.

THE COURT: Well, he's not reading from it.

MS. FINKELSTEIN: He's going to question, I

assume.

THE COURT: Do you want to move it into

evidence?

MR. DeMAY: I don't need to move it into

evidence, but I'm permitted to ask him about the

document. It's a document in the case.


objection.

MS. FINKELSTEIN: Is he asking him to read

from an item in that document?

THE COURT: He's not reading from it.

Q. Rabbi, are you familiar with Professor Heilman?

A. Yes, he's a sociologist at City University -- I

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believe he's now at Queens College, but he was at

City University for awhile and as is noted on the

page here in the little biography about him he is

a -- he holds a -- he did hold a chair. I don't kn ow

if he is holding that chair still, but he was holdi ng

a chair in Jewish Studies and Sociology at City

University of New York.

MS. FINKELSTEIN: I would just object, Your

Honor, because he's actually reading from the

document. Unless you have independent --

THE WITNESS: I have independent knowledge. I

heard him speak and I met him on several occasions.

THE COURT: Overruled on the objection. You

can continue your answer.

A. That's it.

THE COURT: Okay.

Q. Rabbi, do you agree with Professor Heilman's

statement that cremation is anathema to Jewish

tradition, especially after Auschwitz?

A. Yes.

Q. Do you agree with Professor Heilman's statement

that nevertheless, there are surely Jews for whom a ll

these rights and customs are ruins of a Judaism the y

have long since abandoned and to which they refuse to

return in a world where for many religion is no

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longer a matter of fate, but purely one of choice.

These Jews reject a pre-fabricated set of answers a nd

choose to do something else?

MS. FINKELSTEIN: I'll would object to the

form of the question, Your Honor.

MR. DeMAY: He's an expert. I'm allowed to

ask him if he agrees.

THE COURT: Overruled. You can answer the

question.

A. Where are you reading from because it's a long

quote?

Q. It appears at the bottom of page 232 into page

233.

MS. FINKELSTEIN: I would object, Your Honor.

MR. DeMAY: Or have the question read back.

THE COURT: You know, I am going to sustain

that objection. Come over to side bar.

(Whereupon, Ms. Finkelstein, Mr. DeMay and Mr.

Holwell conferred with the Judge at side bar.)

THE COURT: The objection is sustained.

Q. Rabbi, you said you're familiar with Professor

Heilman's work?

A. I haven't read everything he's written, but I

heard him speak on occasion. I attended a couple o f

mini courses that he gave and I've met him at vario us

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functions and occasions over the years.

Q. Approximately how many times have you heard him

speak?

A. Six.

Q. Approximately how many of his events have you

chosen to attend?

A. Three or four.

Q. Why did you attend those events?

A. The topics -- the topics he was discussing at

that time were of interest. They were being given in

a synagogue near where I lived when I was in colleg e,

in rabbinical school. So, he seemed interesting, s o

I went to hear him.

Q. And you went to hear him speak because you value

his opinions, right?

A. No, not necessarily. At the time I'd actually

just heard he held a chair. I did not have any

particular knowledge at that point of him or his

belief system or anything else of that nature. It

seemed like it was an interesting topic and I had

never heard him speak.

Q. After the first time you heard him, you continued

to hear him speak?

A. It was a mini course. So the course itself was,

I believe, four or five lectures over -- it was an

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adult education committee that was done over the

course of several weeks.

So, you know, I went to the first -- I went to

one of these -- one mini course and I was -- that w as

the extent of the four to five times I heard him

speak.

He's also spoken at other events where as a

speaker in -- you know, at a dinner or at a

presentation and he's had a slot -- you know, a slo t

to speak for ten or 15 minutes, whatever it is.

Q. Do you -- in your expert research, you've come

across his writings, correct?

A. I've seen the writings. I don't rely on them and

I don't utilize them.

Q. And even though you are an expert, you might

agree or disagree with his statements, right?

A. I -- he may make a statement that I agree with.

He may make a statement that I do not agree with.

THE COURT: Is that depending on topic or his

opinion?

THE WITNESS: It depends on the topic or

opinion. It depends on -- I mean, if he says the

sky is blue, so that's fine. He may say something

else that I may not agree with.

Q. Do you think Professor Heilman offers valuable

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perspectives on Jewish traditions?


THE COURT: Overruled. You can answer.

A. I do not. I honestly do not believe so. I

believe that based on my experience and in his

readings and his commentaries on -- social

commentaries, his articles that he's written in

newspapers, I believe that he has an agenda driven

approach that colors -- unfortunately colors his

commentary very often or his positions.

Q. So you went to his mini course, right?

A. That's correct.

Q. And you kept going to each event in the mini

course, right?

A. I went to five -- four or five of them.

Q. You didn't stop going, right?

A. No.

Q. Do you consider professor Heilman to be an

expert, even if you disagree with his opinions?


THE COURT: Overruled.

A. An expert in what?

Q. In Jewish traditions?



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A. I would not put -- I would not classify him as an

expert in Jewish tradition or Jewish law.

I think as a sociologist he may have anecdotal

information that may be of -- may be of interest, b ut

I do not know that he's an expert per se in that

he -- I'm not aware of any actual studies that he's

done. Most of the writings that I've come across a re

conjecture based or anecdotal, rather than being

based on any scientific research.

Q. He's a professor at the City University of New

York, right?

A. That is correct.

Q. And he holds the Harold M. Proshansky Chair in

Jewish Studies and Sociology at the City University

of New York; is that right?

A. He did at the time that this was printed. I

don't know if he still does.

Q. Do you believe that Professor Heilman is an

expert in Jewish studies and sociology?

MS. FINKELSTEIN: Objection. He can ask the

question ten different ways, from ten different

sides, the witness has already answered he would

not qualify him as an expert. He said that he

colors his commentaries, that it is conjecture,

anecdotal information.

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He can keep asking him, but the witness has

given him an answer and he's stuck with the answer.

So, I object to any further inquiries or trying to

qualify him as an expert.

MR. DeMAY: On the basis of the rabbi's

designation as an expert, he's permitted to answer

whether he believes that Professor Heilman's chair

qualifies him as an expert on this topic.

THE COURT: It's not expertise that we're

talking about. It's if his writings are

authoritative. That's the criteria.

MR. DeMAY: Yes, I'm permitted to ask that.

THE COURT: Not necessarily the expertise, but

generally authoritative or, quite frankly, the

article or the writing being authoritative is

what's normally -- if you're asking him to speak on

something in particular, the writing has to be

deemed authoritative.

Speaking of which, authoritative that is, I

have to break. The administrative judge is going

to give me a phone call. So we'll break and we'll

come back at 2 o'clock. Okay.

You're good with that?

THE WITNESS: That's fine.

THE COURT: Thank you. Okay. We'll see you

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at 2 o'clock.



(Whereupon, there is a break in the proceeding

while the Court recessed for lunch.)

THE COURT: Rabbi, would you like to resume

your position?

THE WITNESS: Absolutely. Thank you, Your

Honor.




MR. DeMAY: May I just have a minute, Your

Honor?

THE COURT: Sure.


proceedings.)

MR. DeMAY: Good afternoon, Your Honor.


CONTINUED CROSS-EXAMINATION BY MR. DEMAY:

Q. Rabbi, you testified that the CCAR responsa are

definitive statements of Reform Jewish law, right?

A. Yes.

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Q. Are you familiar with CCAR responsa 5766.2?

A. I would have to see it to see if I was familiar

with it. The designation I'm not. I have to take a

look at the actual responsa.

MR. DeMAY: Your Honor, may I approach the

witness with a copy?

THE COURT: Okay.

MR. DeMAY: I'd like to mark this as

Defendant's Exhibit 2.

THE COURT: It's Respondent's B.

(Whereupon, a CCAR document was marked

Defendant's Exhibit B for identification.)

Q. Rabbi, are you familiar with CCAR New American

Reform Responsa 191 titled, "The Ashes of a Couple in

a Single Urn"?

A. I've seen -- I've seen it. I don't have a copy

of it if front of me, but I have seen it.

MR. DeMAY: I'd like to offer a copy of that

responsa as Defendant's Exhibit C.

THE COURT: Is there anything else that you

are going to be offering? You can give them to the

court reporter, if you do. Let her mark it.

MR. DeMAY: For now this is it, Your Honor.

THE COURT: All right. Mark that as C.

(Whereupon a CCAR document was marked as

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Defendant's Exhibit C for identification.)

COURT OFFICER: C is marked for ID.

MR. DeMAY: Your Honor, may I show Exhibit C

to the witness?

THE COURT: Yes, go ahead.


Q. Rabbi, do you have what's been marked as

Defendant's Exhibit C in front of you?

A. Yes, I do.

Q. And is it a copy of the New American Reform

Responsa 191, "The Ashes of a Couple in a Single

Urn"?

A. It appears to be.

Q. Do you see there is a question and an answer?

A. Yes.

Q. And do you see that the first sentence of the

answer is Reform Jewish practice permits cremation?

MS. FINKELSTEIN: Objection, Your Honor. He's

reading from a document not in evidence.

THE COURT: You can read it to yourself.

Q. Do you see where it says that, Rabbi?

A. I do see that, yes.

Q. Do you agree with the statement in CCAR responsa

191, "The Ashes of a couple in a Single Urn," that

Reform Jewish practice permits cremation?

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MS. FINKELSTEIN: Just I would object. He's

not established that this is authoritative, this

responsa and that he's familiar -- he said he's

seen it. Whether or not he's familiar with the

entire responsa.

MR. DeMAY: The rabbi has acknowledge that

CCAR are definitive and authoritative statements,

repeatedly acknowledged.

THE COURT: You want to offer this in evidence

then?

MR. DeMAY: If the Court permits, yes.

THE COURT: All right. Any objection?

MS. FINKELSTEIN: He testified they're

definitive statements in the Reform movement, is

that what you just recited?

MR. DeMAY: Yes.

THE COURT: You can mark it. You're marking

both or just the one?

MR. DeMAY: For now both, Your Honor.

THE COURT: Any objection to either B or C?

Any objection to B or C?

MS. FINKELSTEIN: I'd like to voir dire, Your

Honor, if permitted?

MR. DeMAY: It's Petitioner's expert witness,

Your Honor. They proffered him as an expert.

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MS. FINKELSTEIN: I'm not questioning the

credibility of my witness or the expertise. I'm

specific to these documents, Your Honor.

THE COURT: Well, let's get them identified,

first of all.

What are they?

THE WITNESS: The court officer took them

back.


THE WITNESS: The first one actually, Exhibit

B, I had not seen. This one I have actually seen

before.

THE COURT: But what are they?

THE WITNESS: These are -- Exhibit B is a

printout from the Central Conference of American

Rabbis' Reform movement's rabbinical arm responsa

and it is dealing with the question of what one

should do when a parent requests cremation.

THE COURT: So how are these produced? I

mean, what is the process?

THE WITNESS: The process generally by which

these responsa are produced in terms of having the

conclusions reached you're asking or in terms of

physically --

THE COURT: Well, they're asked questions and

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they give answers or someone submits a question to

them, is that it?

THE WITNESS: Generally speaking, the

questions will come from various -- from many

different sources. Either someone has asked their

rabbi, who submitted it to the -- to higher ups

within the organization. It could be that

somebody -- that a person, an individual submits

the question themselves directly. It could be that

these are things that came up at their national or

annual or bi-annual conferences or discussions that

they thought were of interest, that they thought

they would like to look into and discuss.

THE COURT: Is this a group of rabbis that get

together and answer these questions?

THE WITNESS: There is a -- what they call a

Halacha or a Jewish law committee from the CCAR.

It's a sub-committee, I guess we would call it, of

the general body of the CCAR.

THE COURT: Do rabbis rely on these as a guide

to their conduct?

THE WITNESS: Yes. They look at it. It's --

it definitely would be guiding. In many cases it's

advisory, but they would take it as advisory.

Again within Reform there is a little bit more

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latitude in terms of what the individual will be

doing, but it is considered to be authoritative as

far as the Reform policy.

THE COURT: All right. Okay. Mark them both

in evidence.

(Whereupon, Defendant's Exhibits B and C,

previously marked for identification, were moved

into evidence.)

COURT OFFICER: B and C marked as evidence

handed to the witness.

THE COURT: Which one would you like him to

look at, at this time?

MR. DeMAY: Exhibit C.

THE COURT: C. Okay.


Q. Rabbi, based on the statements in the CCAR

responsa 191, do you agree that Reform Jewish

practice permits cremation?

A. According to what they write, it permits it.

However, it is -- as I testified previously it is

something which is encouraged against -- which they

encourage against.

So, they do not necessarily prohibit it

outright, but it is encouraged against. And that i s

in the second sentence which says that over a decad e

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ago, the committee stated that although we permit

cremation, we would, after the Holocaust, generally

discourage it because of the tragic overtones.

The rest of this goes on to discuss the

question of intermingling of ashes of the husband a nd

wife. And it comes out with the answer that they

cannot be -- that even if they were to do a cremati on

and bury the ashes, they can't exhume the ashes of

one spouse to intermingle them with the other. And

so, therefore, they're talking about doing a burial

and as well as doing the cremation.

Q. Do you agree that Reform Jews would not -- I

mean, strike that. Let me begin.

Would Reform jews regard cremation as a sin?

A. I think that based upon the -- I can't say what

Reform Jews in total would say. I believe that wha t

has been listed or what has been written previously

is that the Reform movement would probably -- the

Reform movement would say as a whole that cremation

is not a -- is not an ideal circumstance and,

although, not banned specifically under their

doctrine, that they would not be in favor.

So to answer your question, I don't know

exactly how they would phrase it themselves. I hav e

to be honest. I think they would not encourage it,

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but I don't know how they would phrase it.

Q. Please look at Defendant's Exhibit B.

A. Sure.


Q. Do you have it in front of you?

A. Yes, I do.

Q. And do you see that it's titled CCAR responsa

5766.2, "When a parent requests cremation"?

A. Yes, I do.

Q. And do you see that this is a six-page document

that has numbered sections one, two, and three?

A. Yes.

Q. And you testified that you're not sure how the

CCAR would phrase whether cremation is a sin, is th at

right, that's what you just testified?

A. That's correct, right.

Q. Do you see section 3A on page three of

Defendant's Exhibit B? Do you see that?

A. Yes, I'm looking at it right now.

Q. Question 3A on page three, do you see that?

Do you agree with the first sentence in

section 3A that the North American Reform Movement

does not regard cremation as a sin?

A. It seems to be that's what they're writing here,

correct.

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Q. You can put that aside.

You testified that Reform Jews believe -- you

testified earlier before lunch that Reform Jews

believe in the 13 core beliefs, right?

A. No, I did not say that. I said there are 13 core

beliefs within Judaism and that they are embodied

within certain prayers.

The Reform movement does not necessarily write

these are the 13 fundamentals principles of faith,

but they also have not removed the prayers that

actually refer to them.

And to the best of my knowledge, as far as I

know, they have not said that they are -- that they

are not accepted.

Q. And one of the 13 core beliefs you mentioned this

morning or this afternoon is resurrection, right?

A. Correct.

Q. Do Reform Jews believe in that core belief?

A. I believe that they believe in the concept of a

resurrection of some form. And they leave it open

since they leave it sort of as an open vague

conclusion as to what exactly that means and are

not -- and are not -- do not hold as a binding beli ef

that one must believe as dogma that the body itself ,

the corpus itself, as the Judge had said, would be

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resuscitated.

But it within the prayers themselves, which

they have not changed, it does refer to that.

Q. Rabbi, do you recall ever reading any articles

stating that among Jews cremation is on the rise?

A. I have seen such articles.

Q. Do you agree with those articles that cremation

is on the rise among Jews?

A. I have no way of being able to confirm or deny

that. I don't know where they got their statistics

from. I'm not an expert in statistics or sociology ,

so I can't tell you.

Q. Have you read an article in Forward Magazine

titled "More Jews Opt for Cremation"?

A. I did see that article when it came out, yes.

Q. Have you read an article in the Jewish Week

titled "Burying the Last Taboo"?

A. I don't recall if I read that article.

Q. Have you read an article in the Chicago Tribune

titled "More Jews Choosing to be Cremated"?

A. No.

Q. Are you aware that in some Jewish congregations

the percentage of Jews choosing cremation ranges fr om

20 to 30 to over 50 percent?

A. I have no idea where those numbers are coming

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from.

Q. Do you agree with that statement?

MS. FINKELSTEIN: Objection, Your Honor. He

just said --

THE COURT: Sustained.

Q. You testified yesterday that Jewish cemeteries

are not permitted under Jewish law to bury the ashe s

of people who have been cremated, right?

A. Correct.

Q. Because Jewish law forbids it, right?

A. Correct.

Q. Isn't it true that, in fact, there are many

Jewish cemeteries that will accept the ashes of

people who have been cremated?

A. I can't tell you what the majority or what many

cemeteries will do. I have said that I know that

there are cemeteries that will section off or creat e

new -- new -- I guess, for lack of a better term, a

new cemetery, new area that's sectioned off in some

fashion, whether it be a fence, a rope, pathway,

driveway, whatever, that where -- that should

somebody wish to have ashes buried, that they would

try to comply with them.

But I have no way of knowing if that's -- the

majority of cemeteries that I've seen do not do tha t.

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But I'm not an expert in the practices of cemeterie s

around the country.

Q. And the cemeteries that do accept the ashes of

cremated remains, rabbis may preside over those

ceremonies?

A. As I indicated yesterday and I believe earlier

today, and it's actually indicated here in the

documents you just gave me, Orthodox and Conservati ve

rabbis would not and Reform rabbis are given leeway

to be able to do so in order, as it says in the

document -- the documents which are being referred to

in the exhibits you just presented, that in order t o

not -- in order to be able to provide comfort and

religious guidance to the bereaved, to those left

behind, the Reform movement would authorize or woul d

not be against a Reform rabbi from officiating in

some capacity.

What that capacity is though is different than

what they would do at a burial that is normally don e.

Q. Are you familiar with Mount Hebron Cemetery in

Queens, New York?

A. Yes, I've been there.

Q. Are you aware that cemetery is a Jewish cemetery?

A. I know that there are -- I know that it's

primarily a Jewish cemetery. I don't know if they

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have anyone not Jewish buried there, but I know it' s

a Jewish cemetery.

Q. Do you know that they have a separate section

specifically reserved for people of the Yiddish

theater in New York City?

A. I've never been to that particular part of the

cemetery, but I wouldn't be surprised. I know that

that cemetery is -- has sections -- it's a very old

cemetery in New York and many societies or synagogu es

or communities would buy large tracts of land as a --

as the synagogue or the communal cemetery.

So, Mount Hebron, there are -- there are areas

for various synagogues, various organizations. I'v e

never actually seen this one for the Yiddish theate r,

but it wouldn't surprise me if they had a section

that was specifically designated -- that had been

purchased by some association of the Yiddish theate r,

whatever that would mean, and that that would be a

place where people had plots or something of the

like.

Q. And Mount Hebron cemetery in Queens accepts

cremated remains, right.

MS. FINKELSTEIN: Objection to the form of

question.

THE COURT: Sustained as to the form.

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Q. Are you aware whether Mount Hebron -- do you

disagree -- strike the question.

Do you disagree that Mount Hebron cemetery

accepts cremated remains?

MS. FINKELSTEIN: Objection to the form of the

question.

THE COURT: You're testifying. Ask him a

question.

Q. Rabbi, do you know whether Mount Hebron cemetery

accepts cremated remains?

A. I have no idea.

Q. At the end of your direct testimony, Rabbi,

counsel for the petitioner asked you a hypothetical

question.


A. Yes.

Q. And the question was along the lines of whether a

person who had particular experiences, if that pers on

had died, whether you would recommend that Jewish l aw

would require the person to be buried.


A. Yes, I do.

Q. And you would give the same answer for any Jewish

person regardless of whether they had engaged in

those behaviors, right?

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A. Yes.

MR. DeMAY: No further questions, Your Honor.

THE COURT: Anything on that?

MS. FINKELSTEIN: Nothing further.

THE COURT: Thank you, Rabbi.




MS. FINKELSTEIN: If I can have a quick break

to talk to my client, to determine what we're going

to do with the remaining --

THE COURT: Take ten.



THE COURT: Are you ready?

MS. FINKELSTEIN: I just had a conversation

with Mr. Holwell out in the hallway. I know his

client is from out of town. I will no objection to

him taking his client out of turn. I want them to

be able to get their client's testimony in today.

I don't know if we're going to go past. I don't

know.

THE COURT: Your client?

MS. FINKELSTEIN: I have two witnesses here.

I have Rabbi Pessin also from the Rockland Burial

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Society. The problem is he had to leave to prepare

his sermon for tonight, so I couldn't keep him here

any longer, Your Honor. And I told Mr. Holwell of

that. And I do intend to call him.

THE COURT: I had hoped that we can conclude

testimony today.

MS. FINKELSTEIN: Especially in light of the

cross-examination of Rabbi Kelsen, specifically

with regard to burial numbers and cremation

numbers. That witness is not qualified, but an

individual who's run the Rockland Burial Society,

and he is a member -- I can't even say the name of

the societies which deal entirely and specifically

with burial for 25 years, Your Honor, that person

is equipped to provide those numbers and answers.

THE COURT: All the witnesses should be

present to testify today.

MS. FINKELSTEIN: He's been sitting here for

two days, Your Honor. And I was not going to call

him. I didn't want to duplicate once Rabbi Kelsen,

but in light of the cross-examination that was just

provided and the numbers that were just submitted,

I feel obligated that I have to produce him.

THE COURT: Well, produce him. Get him here.

Have someone call him.

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MS. FINKELSTEIN: I understand that, but he's

a rabbi and we're getting -- it's 20 to three and

it's on the Sabbath.

MR. HOLWELL: Your Honor, we haven't gotten --

we never even got a statement as to what that rabbi

was going to testify about. It's not -- the only

issues that were raised with the rabbi who was just

on the stand had to do with his knowledge of Jewish

law and his knowledge of burials and he said he

didn't have any. There is nothing in the record on

it one way or the other.

MS. FINKELSTEIN: Actually, I gratuitously

provided a witness list to Mr. Holwell well in

advance. I'm not even obligated to do so. And it

provided a little proffer.

And actually I had a conversation with

Mr. Holwell. I don't know if it was yesterday.

THE COURT: Who is the rabbi that you're

speaking of?

MS. FINKELSTEIN: Rabbi Pessin. He's on the

witness list and he was provided days ago. I gave

that list to Mr. Holwell days ago. We had a

conversation in the hallway about him yesterday.

MR. HOLWELL: Your Honor, can we have a

proffer as to his testimony?

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THE COURT: I beg your pardon?

MR. HOLWELL: Can we have a proffer as to the

rabbi's testimony?

THE COURT: What would he testify to? I mean,

I'd like to have that. Is it absolutely necessary

that we add another day?

MS. FINKELSTEIN: Well, the realty is this,

Your Honor: The cross-examination was focused on

the number in Reform Judaism of cremation and the

percentage of people and what synagogues -- excuse

me and what cemeteries, Jewish cemeteries accept.

This is Rabbi Pessin's job. Rabbi Pessin is

the head of the organization for Rockland County

for burial. When a Jewish person, regardless of

Reform, Conservative, Orthodox, passes, he gets

called in Rockland County to dispose of the body.

He is prepared to testify that there is no

Jewish funeral homes in Rockland County which will

even do cremation.

He also knows the numbers, the percentages of

Reform Jewish that cremate. He's done it. He's a

member of these societies. This is his profession.

This is his expertise, Your Honor.

So I had no intention, based upon the

instruction that you provided me previously. I was

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not going to duplicate expert witnesses and what

they have to offer.

So Rabbi Pessin will be specific with regard

to Jewish burial, cremation, percentages and the

Jewish funeral homes and cemeteries.

MR. HOLWELL: Is this limited to Rockland

County, Your Honor?

MS. FINKELSTEIN: No, actually his membership

his --

THE COURT: Well, the issue is the wishes of

the decedent.

MS. FINKELSTEIN: That's what I've been trying

to focus on, but counsel has deterred that a little

bit by saying all Reform Judaism. We don't even

know if he's a Reform Jew, but they're submitting

these numbers with regard to cremation.

MR. DeMAY: That's not fair, Your Honor.

The petitioner's expert witness opened the

door to where -- which cemeteries can or cannot

accept cremated remains. All we did is follow up

on that.

This rabbi's expert testimony has never been

disclosed. We never received a proffer until just

now. We never received his name until Tuesday

morning, even though the entire purpose of

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adjourning the previous hearing was to allow

petitioner to --

THE COURT: You know --

MS. FINKELSTEIN: He sat here for two days on

the bench.

THE COURT: If there was a directive here,

perhaps, it might be relevant. But I don't see it

relevant to the wishes of the decedent.

I mean, is somebody going to testify that he

took into consideration that there wasn't any place

that will serve people who want to be cremated,

decedent's who want to be cremated and, therefore,

made a choice to either go somewhere else or be

buried or whatever? It's just not relevant.

MS. FINKELSTEIN: No, but Respondent has tried

to introduce evidence as to percentages,

percentages of Reform Jews who are now opting to

show -- you heard him read off five articles from

Chicago, from wherever, about the trend, the trend.

THE COURT: I don't care about trends. I

don't care about what anyone here will do.

MS. FINKELSTEIN: That's refreshing to hear

your Honor.

THE COURT: I care about what this decedent

would do.

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MS. FINKELSTEIN: And that's what we've been

trying to focus on, but there's been a distraction.

So, if that's the Court's position, I understand

that and respect that and agree with it.

THE COURT: I mean, the fact that he may have

been Reform or may have been Orthodox or

Conservative is only one aspect. I just don't see

that it's something that is all consuming with

regard to the issues in this case.

MR. DeMAY: We agree, Your Honor. We don't

agree that much expert testimony is necessary or

relevant.

MS. FINKELSTEIN: I would just like the

opportunity to make a phone call to see if he is

available.

THE COURT: The testimony -- this testimony

here or testimony of --

MS. FINKELSTEIN: Pessin.

THE COURT: -- Rabbi Pessin?

MR. DeMAY: The rabbi that's proffered as the

next witness.

THE COURT: I really don't think it's needed,

honestly.

You know, if something happens later on, then

call him as a rebuttal witness, perhaps, I guess.

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Direct - Mendelsohn - DeMay

And I'll have to give you another day.

Why don't we move on. Do you have another

witness?

MS. FINKELSTEIN: I do, Your Honor. But I did

also speak to Mr. Holwell in the hallway, because I

know that his client is returning. I didn't know

if you wanted to take him out of turn. I was

respecting that.

THE COURT: Do you want to take your client?

MR. HOLWELL: Yes, Your Honor. Mr. Mendelson,

who is from California, has been here a number of

days. It's expensive for him. He does not have a

lot of funds.

THE COURT: Would you like to help him to the

witness stand.

MR. HOLWELL: We would like to put him on the

witness chair, if it's all right with Your Honor.

THE COURT: To what?

MR. HOLWELL: To put him on the stand now.

THE COURT: Yes. Fine. Take him out of

order. It's okay with the petitioner.

MR. HOLWELL: May I walk him to the stand,

Your Honor?

THE COURT: Yes, please.

(Whereupon, the witness Steven Mendelsohn

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STEVEN MENDELSOHN, having been first duly sworn, wa s


THE COURT: Okay. Put your hand down and

state your name and address and spell your first

and last name for the record.

THE WITNESS: My name is Steven Benjamin

Mendelsohn. Steven S-T-E-V-E-N. Mendelsohn,

M-E-N-D-E-L-S-O-H-N.

My address is 1550 Bancroft Avenue, Number

113, San Leandro, California 94577.

THE COURT: Okay. Fine. You heard the

instructions that I gave the other witnesses, sir?

THE WITNESS: I did, sir.

THE COURT: Okay. Fine. Go right ahead.

DIRECT EXAMINATION BY MR. DeMAY:

Q. Good afternoon, Steve.

A. Good afternoon.

Q. You can sit back a little bit.

THE COURT: Let me ask you a question. Did

you have him on your --

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THE COURT: You didn't. All right. Go right

ahead.

Q. You can sit just upright, Steve.

A. Okay.

Q. Steve, what is your relationship to Martin

Mendelson?

A. Martin was my brother.

Q. Did your brother go by the name Martin?

A. He went by the name Martin. And in the family we

occasionally called him Marty. And some of his

friends called him Marty, but Martin or Marty.

Q. How far are you and Marty apart in age?

A. One year.

Q. Who is older?

A. I was.

Q. Do you have any other siblings?

A. No.

Q. As children what was your relationship with Marty

like?

A. It was very good and very close, except for the

time when we were in school and we went to separate

public schools. But except for the time we were in

school, we were together almost all the time. We

played together. All our leisure activities were

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together, our interests in sports, our interest in

playing checkers, our interest in TV comedies and

other things. And I would say it was very close.

Q. Besides one another, did you and Marty have a lot

of playmates?

A. We had some friends in the neighborhood where we

grew up, yes.

Q. Tell us about your parents?

A. Well, our parents were both hard-working people.

My -- my -- my mother was a university graduate. M y

father had several years of university.

My father worked in the haberdashery field,

men's furnishings.

My mother had been, prior to my birth, an

insurance actuary. After my birth, she was a

homemaker until at a certain point she returned to

work to do some accounting on a part-time basis unt il

her death when I was just short of ten and my broth er

was just short of nine.

Q. And after your mother died when you were just

short of ten, how did that affect your relationship

with Marty?

A. Well, I guess in a way we grew closer. A cousin

of ours on our mother's side, our cousin Freeda, ca me

to live with us to help our father with household

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chores and things of that nature that obviously he

could not do and we were too young to do.

We did not get along terribly well with

Freeda. We understood that we needed her, but we d id

not get along very well with her. And I think we

even grew closer together, I am embarrassed to say

now, in our resistence to some of her unreasonable

expectations.

Q. Steve, when did you start walking with a cane?

A. When I was 14 years old.

Q. And before that did Marty help you get around?

A. Yes, he did. I suppose -- I suppose I have to

say to a certain degree he was my eyes. Obviously,

sometimes I went places with other people.

Yes, I would say that was true that prior to

the time, when through learning cane techniques I

became able to go around by myself, that to a very

large degree Marty was my eyes.

Q. What has Marty's death meant to you?

A. It's -- it's -- it's upset me terribly. I

haven't been able to process it yet. I haven't had

the opportunity to process it yet because of the al l

this stuff that's going on. I feel terrible grief.

I feel terrible loneliness.

Marty was my only blood relative. I'm

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fortunate enough to have a loving wife and to be in

the bosom of her family and have, hopefully, some

good friends. But the loss of my brother, who I wa s

very close to, who I spoke to even at the distance of

3,000 miles virtually every Sunday and cared about

very much, it's -- it's pretty devastating to me.

Q. Where did you grow up?

A. We grew up in Brooklyn.

Q. You mentioned your mother died. Is your father

still alive?

A. No. He died on October 7th, 1982, which is just

33 years ago this week.

Q. Was Marty ever married?

A. No.

Q. Did Marty ever have children?

A. No. Not to my knowledge anyway. I think I would

know it if he had.

Q. Did you and Marty have any living aunts, uncles

or grandparents?

A. No. Our nearest living relatives that I know of

would be a second cousin in California. We may hav e

some living first cousins but I've lost track of

them. Neither of us had any knowledge of them over

about the last probably 30 or more years.

Q. Steve, how old are you?

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A. I'm 69.

Q. How old was Marty when he died?

A. Sixty-eight.

Q. Please briefly describe your education?

A. My education is law school. I'm a law school

graduate and I had one further year of post law

school education in academic criminology.

Q. After your one year of postgraduate education,

what was your -- can you please briefly describe yo ur

work history?

A. Yes. I worked for the New York Legal Aid Society

doing appeals work for several years. Then I worke d

for the New York City Division of Criminal Justice

Services helping to administer Federal Criminal

Justice Planning and Reform Funds in New York State .

And then subsequently, through an organization call ed

the Vera, V-E-R-A, Institute of Justice, I became

involved in disability-related employment programs.

And that led to my work of the past 30 years, which

has been in the field of advocacy for legal and

economic advancement for people with disabilities.

I've done a lot of work in the area of funding

of what's called assistive technology, a lot of wor k

actually in understanding how the tax code can be

used to help people with disabilities gain

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opportunities in the world.

THE COURT: Slow down a little bit. I want to

make sure we're getting everything.

A. A lot of work in various aspects of helping to

open up economic and social opportunities for peopl e

with disabilities.

Q. You mentioned you are married. What is your

wife's name?

A. My wife's name is Judy Wilkinson.

Q. When were you married?

A. April 10th, 1992.

THE COURT: I'm sorry. What was the name?

THE WITNESS: W-I-L-K-I-N-S-O-N. Judy with a

Y.

Q. Was Marty at your wedding?

A. Marty was my best man.

Q. Throughout high school, did you and Marty live

together?

A. Yes.

Q. Did you live together while you were in college

and graduate school?

A. Well, during the summers yes, I would come home.

Obviously, I lived in the dormitories at Columbia

while I was in school. I came home for the summers

and I occasionally came home on weekends. So, we

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lived together for those periods of time as well.

Q. How many rooms were in that apartment?

A. Okay. Until 1961, we had, I believe it was a

five room house and we each had our own room.

Then, in 1961, we, together with our father,

moved to a two-room apartment in which -- well,

obviously there were two rooms. And my father and I

shared one room in terms of sleeping accommodations ,

two beds in one room. And my brother slept on the

bed, I guess it was a fold-out couch in the living

room.

Q. And you lived in that arrangement until when?

A. As I say on and off -- well, we all lived there

full-time until 1963. Then, as I say, I went to

school and came home on weekends and holidays.

In 19 -- I left permanently in the fall of

1970 when I first went to study in England and then

returned and got my own apartment.

In the fall of 1973 to the summer of 1974, I

returned there while I was between jobs. And we

lived there then. And I again left in August 1974.

My brother had a brief appeared of about nine

months away living in an apartment of his own. He

returned to my father's apartment just before I

left and he remained there thereafter indefinitely

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and I did not return to live there.

Q. So from about the early '60s to the mid '70s you

lived with your father and your brother in a

two-bedroom apartment full-time or on and off?

A. Yes.

Q. Did Marty graduate from college?

A. He graduated from community college. He had an

Associate of Arts degree.

Q. From which community college?

A. New York Community College.

Q. And in what year did he graduate?

A. 1966.

Q. After he graduated, did he have a job?

A. He did. He worked, from the fall of 1966 until

sometime in 1981, for the New York State Department

of Taxation as a sales tax accountant.

Q. Did he have a job after 1981?

A. Not to my knowledge.

Q. And at some point while he was working, did he

get his own apartment?

A. He got his own apartment briefly, as I say, for

nine months I believe a point in the mid '70s, but he

returned to my father's apartment and lived there

with him until my father's death and thereafter

remained in that apartment for an additional 14

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years.

Q. Throughout the 1960s and 1970s and 1980s, did you

speak with your brother regularly?

A. Oh, yes, always.

Q. How frequently?

A. Well, when we were living together, of course,

every day, but thereafter by phone, either in

conjunction with speaking with my father or

independently. I would say as long as we were both

in New York City, probably two to four times a week

one way or the other.

Q. During those years did you meet to have meals

together?

A. Oh, yes. We would meet to have meals, usually

lunch. Some periods possibly once a month. Some

periods possibly once every two months, but yes.

Q. Did your relationship with your brother ever

undergo any strain?

A. It did. It did.

In the early '70s, my brother began to borrow

sums of money from me, a couple hundred dollars at a

time as loans with promise of repayment. But he

subsequently proved unable to do so and unable to

explain the reasons why he couldn't do so or give a ny

accounting of the use of the money. That,

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admittedly, upset me somewhat. And I suppose I

remained upset with him, although, I don't believe I

was ever not cordial. But I certainly remained ups et

for some time.

After our father died, I decided that whatever

the reasons were, whatever the factors were, that

since we were the only brother each of us had, it

would be wrong and foolish and hurtful to carry any

grudge.

So I made it a point to overcome my feelings

of dismay and to do everything I could to restore o ur

relationship, which I think -- which I think was

successful.

Q. Was there any lasting effect on your

relationship?

A. Not to my knowledge, no.

Q. After Marty's employment ended in 1981, you said

he lived in your father's apartment?

A. Correct.

Q. And did he live alone?

A. He lived alone after my father's death. He did

not like living alone, but he did. The rent was ve ry

cheap. It was a nice apartment. And he lived in i t

for additional about 14 years.

Q. Until about what year?

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A. Until the fall of 1996.

Q. Do you know why Marty left that apartment?

A. Yes, I sort of do.

As I understood it from him and also from

conversations I had with the building superintenden t,

he was robbed in the apartment by some other tenant

in the building. But he was robbed and became very

fearful and literally bolted the apartment, left th e

apartment, left all his belongings.

MS. FINKELSTEIN: Objection. Hearsay, Your

Honor.

THE COURT: One second, please.

MR. DeMAY: It's not being offered for the

truth. It's to establish their relationship.

MS. FINKELSTEIN: He just put 40 years of the

relationship, Your Honor. But he's talking about

conversations with a landlord and conversations

with a brother.

THE COURT: As to the landlord that's hearsay.

That's sustained.

A. He became fearful of living in the apartment.

Q. Did he tell you anything else about how that

incident affected his fear?

MS. FINKELSTEIN: Objection. Calls for

hearsay.

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MR. DeMAY: It goes to state of mind.

MS. FINKELSTEIN: What state of mind? How is

that relevant?

THE COURT: You're talking about Marty's

statement to him.

MR. DeMAY: The decedent's state of mind.

MS. FINKELSTEIN: State of mind about living

in an apartment in the City in the 1980s?

Relevance and hearsay.

MR. DeMAY: Your Honor --

THE COURT: What's the offer?

MR. DeMAY: I'm sorry?

THE COURT: What's the offer on this, offer of

proof?

MR. DeMAY: The state of mind that he was --

he became afraid of living alone and being alone,

Your Honor.

THE COURT: And is this what precipitated

moving into the adult facility?

MR. DeMAY: Ultimately, yes.


THE COURT: Overruled. You can answer. I

think you already answered.

THE WITNESS: Yes, Your Honor.

A. Yes, I mean that's what he said, that he

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basically was fearful of living in his apartment.

MS. FINKELSTEIN: So my objection stands.

He's fearful of living in that apartment, not

living alone. I move to strike.

THE COURT: You can get to that on

cross-examination.

Did he graduate from college, Marty, with a

four-year degree or a two-year degree?

THE WITNESS: Two-year degree.

THE COURT: Two-year degree. Okay. Go right

ahead.

Q. After Marty left that apartment, where did he

live?

A. Okay. I was in England at the time. And even

from there I was calling him. And when he didn't

answer, I became concerned. I enlisted a friend wh o

was a criminal defense lawyer experienced in tracki ng

down witnesses and she found him in the shelter

system.

He had somehow gravitated in the New York City

shelter system. He was living in a shelter at that

time, somewhere I believe in the east twenties.

Q. Do you know where he lived after he went to the

shelter system?

A. Yes, the next --

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THE COURT: What year did you find he was in a

shelter?

THE WITNESS: This was in the fall of 1996.

THE COURT: 1996.

THE WITNESS: Shortly after he left his

apartment.

Q. Did he live anywhere after he left his apartment

and before he entered the shelter system?

A. I cannot -- I cannot say for sure. I do not

know. I do not believe so, but I do not know for

certain.

Q. Do you know where he went after the shelter

system?

A. Yes, I believe he went to some sort of an adult

care facility, East 104th Street, in Brooklyn.

Q. Do you know the name of that facility?

A. I don't recall the name. I'm sure it's in the

records here. I'm sure that it's somewhere in the

records. It's a place that eventually became the

subject of a major scandal. I believe it was close d

by the State as a result of some infractions. I

don't recall what it was.

THE COURT: What year did he live there?

THE WITNESS: He was there from probably about

1997 to maybe '98 or '99. I'm not sure exactly.

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Probably a year or two, maybe three.

MS. FINKELSTEIN: I'm sorry. What were those

years?

THE WITNESS: Late '96 or early '97, I

believe, possibly for one to three years. I don't

recall exactly how long.

Q. Do you know where he lived after that?

A. I believe he went to another adult care home in

Long Island, in Long Beach, if I recall correctly,

which I -- which I now understand from the testimon y

of the past several days was also administered by t he

petitioner or his family.

MS. FINKELSTEIN: Judge, I would object to

this question. He testified he believes. Now he

said it's confirmed based on testimony.

THE WITNESS: That's not what I said.

THE COURT: Wait. Wait, sir. There is no

question before you. If you're not certain, just

indicate that.

THE WITNESS: I'm certain that's where he

lived. What I said I believed was that it was

under the management of the same people, but I'm

quite certain that's where he lived.

THE COURT: All right. Next question.

Q. Do you know the name of that facility?

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A. I don't remember, but I was -- it was in Long

Beach. I visited him there once or twice.

Q. While he lived in the first facility in Brooklyn

and then in the facility on Long Beach, did you

continue to meet with him for meals?

A. It was -- it became hard in Long Beach, because

he did not want to make the trip into Manhattan and

it was difficult for me to get out there. I was ab le

to find friends to -- to drive me out there a coupl e

of times. But he was not able to come into the Cit y

any longer. So, that became very much more

difficult.

Q. What were some of the restaurants you would eat

at when you shared meals with him?

A. Well, in New York we would go to all kinds of

places. We would go to the Carnegie deli. We woul d

go to some restaurants around Columbia, which he ha d

come to like over the years. Places like the V & T ,

like Vic and Tony, Italian restaurant. There was a

Hungarian restaurant called the Green Tree, which w e

both liked until it went out of business in about

1990. We'd go to Chinese restaurants. He very muc h

liked the Carnegie delicatessen. We went there qui te

frequently. He liked other delicatessens too, so

went to Katz's delicatessen or to one or two others .

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Those would be the major ones.

Q. Did Marty regularly eat non-kosher food?

A. Yes. I can't remember him ever having any

special -- any particular interest in whether the

food was kosher or non-kosher or any qualms about

what he ate. He ate various things. He ate variou s

meats, various fishes. Sometimes he had things wit h

butter, sometimes didn't.

You know, with those things, I can't remember

him ever referring to or demonstrating any particul ar

dietary propensities in that regard.

Q. Steve, how long did you live in New York?

A. I lived in New York full-time, with the exception

of one year in England in 1970 to '71, full-time

until 1992 -- 1991, I'm sorry. The fall of 1991.

And thereafter and as a consequence of having

met Judy, my wife, I began to spend a considerable

amount of time in California. And I've lived back

and forth ever since. Most recently we lived in

California full-time, though, since 2008.

Q. And how long did Marty live in New York?

A. Marty lived in New York for his full life time

until he moved to -- to Long Beach.

Q. And starting in 1991, when you began spending,

time in California, did you stay in touch with Mart y?

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A. Oh, yes.

Q. How would you stay in touch with him?

A. As I say, principally by phone and as often as

possible by meeting together for a meal.

Q. How often would you talk with him by phone?

A. I would say probably -- probably once a week,

sometimes twice. I would say maybe an average of 1 .5

times per week.

Q. Were there ever any times when you spoke with

Marty more regularly than one and a half times a

week?

A. Well, later on. Not then, but later on yes.

When we found him in the shelter system, we became

very concerned. And we asked him, we -- we -- we

pleaded with him, almost ordered him to call us

collect every day. He had no means of calling us.

He had no funds and apparently there was no facilit y

available for that. But he callid us collect for a

period of time every day. We asked him to do that

and he did.

Q. Why did you want to speak with him so much?

A. We were worried about him. The shelter system is

a dangerous place from all that I knew. I was

worried about him.

Q. After he left the shelter system, did you still

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speak with him once a week, one and a half times a

week?

A. I would say certainly at least once a week, yeah.

Q. Up until he died?

A. Up until he died. I spoke to him two days before

he died.

Q. Why did you want to speak with him so regularly

up until he died?

A. Well, I loved him. He was my brother. We had

fun things to talk about, interesting things to

talked about, things that we shared. Baseball, a l ot

of about baseball. He was a great baseball fan. S o

am I. We talked about the season.

He was always very interested in what we were

doing, what Judy and I were doing, where we were

going, even what we were eating. He always wanted to

know what we were going to have for dinner that nig ht

or the next night. And talk about -- you know,

sometimes, you know, I had asked him what he was

doing. We would have nice conversations, you know, a

few laughs, tell a few jokes.

We had a lot of little -- we had an interest

in comedies that we liked, particularly Abbott and

Costello. We both liked Abbott and Costello. We

used to exchange those drifts a bit. And it was ve ry

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pleasant.

And just to be reassured that he was all

right, that he was doing okay, it mattered to me a

great deal, yeah.

Q. Did you talk with him on a particular day of the

week?

A. Usually on Sundays. Almost always on Sundays.

Q. Would you call Marty or would Marty call you?

A. Yes, he had no means of calling me so far as I

know. We, on several occasions, offered to give hi m

a cell phone, but he did not want it. So, I called

him on Sundays.

Q. Did the conversations that you had with Marty

ever touch on the subject of death?

A. No, he never wanted to talk about death. The

only time that we ever talked about death was on th e

occasion of our father's death. And I can go into

that, if you want me to.

Q. We'll get to that.

A. All right.

Q. What was the last -- when was the last time you

spoke with Marty?

A. September 13th, 2015.

Q. When did Marty die?

A. September 15th, 2015.

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Q. What was the last thing you said to Marty?

A. I'll talk to you next week, pal, as I always

said.

Q. When you lived in California, did you ever visit

your brother in Spring Valley?

A. Wherever we came to New York, which was twice a

year, I made it a point to come up and visit him.

Usually we got a ride up from our a friend Ann, who

had come to know Marty pretty well over the years.

On a couple of occasions when Ann was not

available, we took the bus up from the Port

Authority.

Q. When was your last visit with Marty?

A. In June, when I was here in June. I was here in

June for a week. I came up to visit him one day.

Q. Generally who participated in your visits with

Marty?

A. Generally myself, Judy and our friend Ann.

Q. And Marty?

A. Of course. Yes, of course.

Q. And what would you generally do during these

visits?

A. We would go out. We would go out to lunch.

Q. And anything else?

A. We would go do a little shopping. He would

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express a need for some items of clothing. We'd go

to Kohl's or Marshall's or both and get him those

pants or some underwear or a pair of shoes, whateve r

he said he wanted or needed.

Q. Where would you go for lunch?

A. A place we always went. I always left the choice

to him and he always chose the same place. He want ed

to go to the Red Lobster.

Q. And what would you get at the Red Lobster?

A. Various things. I would get various fishes. He

would ordinarily, not always, but he would usually

order flounder. On several occasions he would try a

piece of whatever I had.

Q. Including shrimp?

A. Including shrimp.

Q. Can you please describe Marty's personality?

A. Well, Marty's personality was a little bit

furtive. A lot of things he did not like to talk

about and wouldn't talk about.

THE COURT: I'm sorry. I didn't get that.

Did you say furtive?

THE WITNESS: Furtive, yes.

There were a lot of things that he did not

like to talk about and would not talk about very

much.

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And if you questioned him about his reasons

for holding an opinion or doing something or not

doing something, he would just say -- you know, he

would just say that's okay. That's okay.

His personality was he was an anxious person.

I think he had a high degree of anxiety. We both

do, I suppose. He was curious about things. He

was generally curious about a lot of things.

He had been a great reader when we were young.

I fear he, for some reason at some point, he ceased

being such a great reader, although I know he kept

up with the newspaper.

But after a certain point, maybe 20 years ago

or so, he never discussed any other periodicals or

any books that he might have read, whereas when he

was young he had been quite a reader.

He liked to have, I think, fairly brief and --

and fairly, I won't say superficial, but causal,

routine conversations with people. He liked

routine. He liked to say hello to people and chat

with them briefly. He didn't, in my experience,

enjoy any kind of deep revelatory conversations

with people.

What else can I tell you? What more

specifically would you like to know?

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Q. Was he a happy person?

A. No, I fear not. I fear not.

Q. Would you describe your parents as religious?

A. No, anything but. We were secular Jews, I think

is the best way to describe it. We occasionally we nt

to synagogue on the High Holy Days, but we were not

observant. We did not light the Shabbos candles or

observe the Shabbos. We did not have a kosher home .

So, I would say by and large no. They were what I

would call and what would have been understood in t he

context of that time, the fifties or sixties, as ve ry

classic secular or cultural Jews as we were.

Q. Was your family a member of any Jewish temple?

A. No, we did, as I say, on occasion go to temple,

go to one or another of the nearby temples for the --

for the Yom Kippur service. Not all years, but som e

years we did. But we were never members.

Q. As a child was Marty Bar Mitzvah'd?

A. No, he was not. I was, but he was not.

Q. Did Marty ever express to you any regret or

sadness that he was not Bar Mitzvah'd?

A. No. No, he did not.

Q. Growing up, did you or Marty ever attend a

yeshiva school?

A. Not a yeshiva school, but we went to what was

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called Hebrew school. This was after school, after

our regular public school, for one and a half hours a

day, five days a week, Sunday through Thursday.

Well, Sunday in the afternoon, Monday through

Thursday after school from like 5:00 p.m. to 6:30.

And we were there. We did attend that from the fal l

of 1955 until I was Bar Mitzvah'd in April 1959.

THE COURT: What was the purpose of your going

to that? Was that for the Bar Mitzvah?

THE WITNESS: Yes, that was my understanding.

THE COURT: You were Bar Mitzvah'd or no?

THE WITNESS: Yes, I was.

THE COURT: And Marty was --

THE WITNESS: Was not.

THE COURT: Was not?

THE WITNESS: Was not.

THE COURT: That's what I thought you said.

Was there any reason why he wasn't?

THE WITNESS: I can't be certain. I know that

we stopped going, we both stopped going after my

Bar Mitzvah. I also know in both the year before

he would have been Bar Mitzvah'd and the year in

which he would have been Bar Mitzvah's, he lost his

voice for about almost the entirety of the winter.

And although extensive medical testing and

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exploration was done, no cause was ever determined.

THE COURT: Was that permanent?

THE WITNESS: No, he got it back the following

summer and never lost it again, to my knowledge.

Q. So after your Bar Mitzvah you both stopped going

to Hebrew school?

A. That's correct.

Q. And did your -- was your father okay with that?

A. I think so, because if he had wanted us to go, we

would have.

Q. Did Marty ever express to you whether he enjoyed

or appreciated Hebrew school?

A. I think neither one of us did, because we did

everything we could to get out of going. We came u p

with all kind of excuses for our father to let us n ot

go.

One year we even tricked him about daylight

savings time. Convinced him the clocks had been se t

forward, whereas it had actually been setback so th at

we missed a class.

I'm not proud of that, but that's what we did.

Q. Would you describe Marty as an adult as

particularly religious?

A. No. Not in my experience, no.

Q. Why not?

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A. Well, he never talked about religion. He never

expressed religious views. He never invoked the na me

of God. He never spoke of any decisions as being

influenced by religious considerations. I have no

knowledge that he ever made dietary choices based o n

religious considerations.

So, nothing in his discourse or in his

behavior, as I observed it, ever suggested a

religious engagement to any degree.

Q. Do you know whether he ever attended Jewish

services?

A. I know that he sometimes attended services at the

facility. I cannot believe, to my knowledge, that

outside of the facility or prior to entering the

facility that he did so, except when we were

children.

Q. Do you know whether had where Marty lived served

kosher food?

A. It's my understanding that's all it served.

Q. And do any of those change your opinion about

whether Marty was particularly religious?

A. No, I don't think so. Especially because --

well, no. No.

Q. As far as you know was Marty ever a member of any

Jewish temple?

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A. I have no knowledge that he ever was, no.

Q. To your knowledge, did Marty ever purchased or

set aside money for a burial plot?

A. To my knowledge, no.

THE COURT: Did he have a will?

THE WITNESS: No. Not that we know of, no.

Q. To your knowledge, did Marty ever purchase or set

aside money for a head stone?


Q. To your knowledge, did Marty ever read or own any

religious texts, other than what he read at service s?


Q. Did Marty ever tell you that he wore a star of

David?

A. No, he didn't.

Q. Did Marty ever tell you he said Jewish prayers in

the morning?

A. No, he did not.

MS. FINKELSTEIN: Judge, objection. These are

all leading questions. If he wants to ask d what

he did tell him. I've given some latitude here.

THE COURT: As to the form of the question,

sustained.

MS. FINKELSTEIN: Correct.

Q. To your knowledge, did Marty ever say Jewish

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prayers in the morning?

MS. FINKELSTEIN: Objection to form of the

question. Same thing.

MR. DeMAY: It's based on his personal

knowledge, Your Honor.

MS. FINKELSTEIN: No, he's asking for a yes or

no answer. He's leading him.

THE COURT: Overruled. You can answer.

A. No, to my knowledge he did not.

Q. To your knowledge, did Marty ever donate to

Jewish charities or Jewish causes?

MS. FINKELSTEIN: Objection. Same thing.


A. Again, to my knowledge, no.

Q. To your knowledge, did Marty ever visit Israel?

A. No. I know for a fact that he never visited

Israel.

THE COURT: Where are your parents buried?

THE WITNESS: They're buried in Long Island.

The Wellwood Cemetery. They're not buried together

unfortunately.

When my mother died, I don't know the details,

but my father only purchased enough room for her.

And when he died 26 years later, there was no space

in her area, so he had to be laid to rest in a

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another area of the cemetery.

THE COURT: Was that a Jewish cemetery or --

THE WITNESS: Yes.

THE COURT: It was?

THE WITNESS: Yes, sir.

THE COURT: She was buried in a Jewish

cemetery. Was your father?

THE WITNESS: Yes.

Q. To your knowledge, did Marty speak Yiddish?


Q. Aside from Hebrew school as children, to your

knowledge, did Marty regularly communicate in Hebre w?


A. No.

THE COURT: One second.

A. I don't believe he spoke Hebrew.

THE COURT: Sustained as to the form of the

question.

Q. Steve, did Marty -- Steve, to your knowledge, did

Marty own a tallis or prayer shawl?


MR. DeMAY: It's based on his personal

knowledge, Your Honor.

MS. FINKELSTEIN: If he's seen?


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MS. FINKELSTEIN: If he's seen one, Your

Honor, or --

Q. Steve, to your knowledge, did Marty own tefillin?


THE COURT: I assume that's some kind of

religious article?

THE WITNESS: That's the phylacteries, Your

Honor.

THE COURT: What is that?

THE WITNESS: Well, that was testified to this

morning by Rabbi Kelsen, I believe. That was the

bands that one puts around -- the little boxes that

one puts --

THE COURT: Oh, the boxes, yes.

THE WITNESS: -- on the forehead head.

THE COURT: Okay.

Q. Steve, to your knowledge, did Marty ever fast on

High Holidays?

A. Not to my knowledge, no. I have no knowledge

that he did.

THE COURT: Did you ever see him on any of

High Holy Days?

THE WITNESS: No, not since we were children.

Q. Steve, how many years have you been eating meals

with Marty?

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A. Well, all our lives basically.

Q. Roughly, how many meals would you say you've

eaten with Marty?

A. God, probably at least two meals a day, seven

days a week for the first 15, 16 years of our lives .

So thousands literally, maybe ten thousand. I real ly

couldn't say without doing some calculations, but

many thousands.

Q. How many of those meals that you shared with

Marty over the years were kosher?

A. None so far as I know.

Q. When given the opportunity, did Marty eat at

non-kosher restaurants?

A. Yes.

Q. Including when he resided at the Long Island

facility?

A. Well, I can't say where he ate on Long Island.

But I certainly know, as I mentioned, that here he

wanted to go to the Red Lobster, which I understand

is not kosher.

Q. When given the opportunity, did Marty eat

non-kosher food?

A. Yes.

Q. Did Marty ever tell you he ate only kosher food?

MS. FINKELSTEIN: Judge, I would keep

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objecting. He keeps leading the witness this

entire last 15 minutes, Your Honor.

THE COURT: Well, object. And it's sustained,

form the question.

MR. DeMAY: To which question, Your Honor?

MS. FINKELSTEIN: They've all been leading,

but to this last question.

MR. DeMAY: Your Honor, to which question --

THE COURT: The last question. That's what I

had the objection to.

Q. Did Marty ever tell you his opinion of the food

the Evergreen?

A. Yes, he did, frequently.

Q. What was his opinion?

A. He did not like it. It was a thing about

Evergreen that he did liked. He liked pretty much

everything else about it, but he did not like the

food.

Q. Did Marty ever qualify his displeasure with the

food at Evergreen by saying it was --

MS. FINKELSTEIN: Objection to the form of the

question.

A. No, he did not. I'm sorry.

THE COURT: Wait. Wait.

Sustained as to the objection. The answer is

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stricken.

Q. Based on your long relationship with your

brother, do you think you were close enough to Mart y

that he would have told you if he had a religious

awakening?

MS. FINKELSTEIN: Objection, Your Honor. That

calls for speculation. He's asking what Marty

would have done based on a relationship that was

strained for 15 years in the middle of it.

MR. DeMAY: It's his only brother. Counsel's

representation --

THE COURT: Well, I'm sure that he would know

something about his relationship, but religious

awakening?

MS. FINKELSTEIN: I would object to the form

of the question, Your Honor.

MR. DeMAY: They spoke every Sunday.

MS. FINKELSTEIN: Only about things they liked

together, baseball.

THE COURT: Okay. Sustained as to the form of

the question.

THE WITNESS: Not only about things. Mostly

about things.

THE COURT: Did you ever discuss religion with

him?

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THE WITNESS: I discussed with him the fact

of -- of the, you know, various religions exist in

world. And we talked about, for example, what

might be the implications for western democracy of

some of the ideas of Islam or some of the

implications of democracy of other regulation. We

did not specifically discuss our religion.

THE COURT: All right. Let me ask you this:

Could you describe his intellect?

THE WITNESS: Yes.

THE COURT: You describe it.

THE WITNESS: I would describe his intellect

as -- as -- as -- as very good.

THE COURT: He lived in an adult facility at a

young age. Was it because he couldn't exist on the

outside on his own? He needed that assistance?

THE WITNESS: I believe that part of it is he

did not want to live alone. He made that very

clear on many occasions, even while he still was.

And I believe that he felt comfort and security

from his anxieties in -- in being in a somewhat

institutional environment.

THE COURT: I take it that he never served in

the military, for example?

THE WITNESS: No, he did not.

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THE COURT: Okay. And that outside of the

facility, did he have any friends?

THE WITNESS: I'm not aware of any in later

years. When we were children he had friends, you

know, in our neighborhood, our neighbors. But in

later years I could not say.

Q. Steve --

THE WITNESS: He never mentioned any.

Q. Steve, did Marty like to read?

A. At one time as a younger person he liked to read.

Q. What were some texts or books that you saw him

read?

MS. FINKELSTEIN: Objection. Relevance.

THE COURT: Well --

MS. FINKELSTEIN: As a child?

THE COURT: -- I would assume that you

discussed with him?

THE WITNESS: Yes. Well, I can remember, for

example, he read a lot of George Santayana at one

point.

Q. Who is George Santayana?

A. A philosopher, also a novelist. He read a fair

amount of history at varies times, particular New

York City history. He was very interested in Mayor

La Guardia and things of that nature.

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He read some philosophy. He was very

interested in Immanuel Kant. These all go back,

though, to literally when he was a teenager.

In later years he read mostly the New York

Times and then later on apparently the Post. But I

cannot speak to his reading in later years.

THE COURT: You say he read Mein Kampf?

THE WITNESS: No. George Santayana.

Q. Did you say Immanuel Kant?

A. Immanuel Kant. Oh, my goodness, he would never.

Q. Steve, did Marty ever tell you what he wanted for

his remains when he died?

A. No, he did not. He never said a word about it.

Q. If Marty had told you that he wanted to be

buried, what would you have done?

A. I would have done exactly what he wanted.

I've racked my brain over the last period of

time to try to see if I can recollect anything that

would give me a definite insight or competence as t o

what he happened.

If I had the least, the least idea that there

was anything I could put my hand on, I would gladly

do it, just to relieve myself of this terrible

responsibility of deciding.

One thing that I do know is he hated to be

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alone.

Q. Was there ever an instance in which you and Marty

discussed cremation?

A. Yes, in the context of our father.

I told Marty when our father died that all

else being equal, it was my inclination we should

have our father cremated. But Marty reminded me of

some conversations that we had had with him, which I

remembered and which Marty interpreted more strongl y

in favor of burial than I did. But remembering the

conversation and accepting Marty's interpretation, I

certainly agreed, since there was good probability

that our father wanted to be buried, that that was

what we should do and we did.

At that time I told Marty it was my

inclination for myself, while I wasn't absolutely

certain, but it was my inclination for myself that

when my time came I would want to be cremated.

He said nothing at that point about his own

preferences or desires.

Q. Did he express any hostility to your reference

for cremation?

A. No.

Q. Did he express, for himself, any preference for

burial?

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A. No, nothing whatsoever, that I can recall.

THE COURT: I'm sorry. Read back the question

and answer, that long answer with regard to the

father's burial, the conversation that they had.

(Whereupon, the requested portion of the

record was read by the court reporter.)

THE COURT: It sounds to me like he was at

least arguing or discussing in favor of burial for

your father?

THE WITNESS: Absolutely, for our father, yes

and I agreed to that as well.

THE COURT: Did he indicate that he preferred

it over cremation, that Marty himself preferred it

over cremation?

THE WITNESS: No, Your Honor. As I recall the

discussion was simply as to our ability to

determine what our father preferred for himself.

THE COURT: So the conversation centered on

what your father desired?

THE WITNESS: That's correct.

THE COURT: Did he state any philosophical --

philosophically with regard to burial?

THE WITNESS: No, he did not.

THE COURT: I mean -- okay. So the only thing

that he mentioned to you was the conversation that

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and you had had with your father?

THE WITNESS: That's right.

Q. Steve, did you love Marty?

A. Yes.

Q. Did Marty love you?

A. I believe so.

Q. Did Marty love Judy?

A. I think so, yes.

Q. What do you propose to do with Marty's remains?

A. I propose to have Marty's remains cremated.

My reasoning for this is that, as I say, I

believe he would not want to be alone and I believe

he would want to be with me. If I do that, he can be

with me. We can have, you know, eventually

side-by-side urns somewhere.

Q. Is that what you want or what you think Marty

would want?

A. It's what I can best determine what Marty wants.

What I want doesn't matter. No person, of course,

can make any decision that totally excludes their o wn

preferences entirely. I understand that, but I'm

trying my hardest to figure out what Marty would

want. That is my touchstone for my decision.

Q. Has this been an easy decision for you?

A. No, it's one of the hardest decisions of my life.

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Q. Do you believe Marty would be happy that his

ashes will be with yours?


THE COURT: Sustained.

You've heard all the testimony here and the

testimony of the rabbis, particularly the last

rabbi who testified, Rabbi Kelsen.

Has that changed your thinking at all, you

know, knowing what is, I guess you can say,

customary in Jewish tradition, Jewish religion?

THE WITNESS: Your Honor, it hasn't, for two

reasons.

First of all, I think I have some

understanding of what Jewish tradition entails as

well about the adversity of Jewish tradition. But

the testimony that impressed me the most was the

testimony of the first -- the first witness, of the

rabbi who had known Marty at the home and who

mentioned that in that conversations Marty did

not --

MS. FINKELSTEIN: Objection. He's now saying

his opinion of the witness's testimony. He's

giving a summation or argument. I would object

Your Honor.

THE COURT: Well, let me ask you something.

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Do you consider yourself a religious person?

THE WITNESS: Religious person? Not in the

sense of observance, not in the sense of ritual.

THE COURT: How about the belief in the

Messiah returning and the soul with the corpus?

THE WITNESS: I do not know, Your Honor. I

don't claim to know one way or the other. It may

be, it may not be. I have no way of knowing for

sure. I do not deny it or affirm it. I cannot

tell.

THE COURT: I suppose nobody knows for sure,

but hopeful there is a world to follow.

THE WITNESS: Well, we would all be hopeful,

but I have no way to know.

THE COURT: Of course.

THE WITNESS: I can only affirm things that I

can know. I can't guess.

THE COURT: And what about the commandments

themselves of your religion, Jewish religion?

THE WITNESS: Ten commandments?

THE COURT: Well, the commandments, the 13

points and the fact that it's considered to be a

sin to cremate?

THE WITNESS: Well --

THE COURT: If you don't know what Marty would

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have preferred, then how could you know for certain

that a cremation would be the proper and right

thing to do?

THE WITNESS: I can't know for certain. As I

say, the only thing that I can be certain of is

Marty would not want to be alone.

THE COURT: Anything further?

Q. Steve, can you please describe how this delay in

disposing of your brother's s remains has affected

you?

MS. FINKELSTEIN: Objection, Your Honor.

Relevance. Post event.

THE COURT: Sustained on that.

MR. DeMAY: Nothing further, Your Honor.

THE COURT: Thank you. Would you like to take

a few minutes?

MS. FINKELSTEIN: I would. Thank you.

THE COURT: Okay. You can step down. I'll

have the officer or you can take stay where you

are.

THE WITNESS: I'll remain where I am. I'll

just request some water.

THE COURT: They're bringing you a water

bottle.

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Cross - Mendelsohn - Finkelstein

(Whereupon, there was a recess held.)

THE COURT: We're back. Your witness.

CROSS-EXAMINATION BY MS. FINKELSTEIN:

Q. Good afternoon, Mr. Mendelsohn. My name is Beth

Finkelstein. I'm going to ask you a series of

questions.

And I too have a tendency to speak a little

quickly. So, if I do speak quickly and you don't

understand a question that I pose to you, please le t

me know and I'll be happy to slow down or attempt t o

try to slow down.

A. Thank you.

Q. You indicated that you and your brother -- and

your father actually -- withdrawn.

You lived with your parents. Was that in

Brooklyn initially?

A. Yes.

Q. And you described you and your brother having

similar interests in sports and TV, Abbott and

Costello, correct?

A. Among other things, yes.

Q. And from what age did you start attending Hebrew

school four days a week?

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A. The age of nine, fall of 1955.

Q. So you attended Hebrew school from four times a

week -- excuse me. Five times a week?

A. Yes.

Q. Five times a week from age nine to age 13?

A. Correct.

Q. And your brother, who is a year younger than you,

he too attended from age nine?

A. No, age eight to age 12.

Q. And what Hebrew school was that, sir?

A. It was call Yeshiva of Bensonhurst. It was on

79th Street, between 20 and 21st Avenue, in Brookly n.

Q. And was that yeshiva of affiliated with any

synagogue?

A. I believe they had a synagogue there, yes.

Q. What was the name of the synagogue that was

affiliated with the yeshiva that you attended for

five years?

MR. DeMAY: Objection, Your Honor. Misstates

his testimony.

MS. FINKELSTEIN: For four years. I corrected

myself, my math.

MR. DeMAY: He did not attend yeshiva.

MS. FINKELSTEIN: I'm sorry. He just said he

attended Yeshiva of Bensonhurst from age nine to

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13.

THE COURT: Wait a minute, sir. There's no

question before you. There's an objection.

What's your objection?

MR. DeMAY: Counsel misstated the witness's

testimony saying that he attended yeshiva. The

Hebrew school is located inside a yeshiva, but it

is not the same thing as saying that he attended

yeshiva.

MS. FINKELSTEIN: Well, now look who's

testifying. Because I just simply asked the name

of the Hebrew school he attended. He said I

attended Yeshiva of Bensonhurst. So, I said how

many years -- so, did you attend for four years.

MR. DeMAY: That was not the question and that

was not the answer.

THE COURT: Let me have the question.

MS. FINKELSTEIN: There was no testimony it

was inside.

THE COURT: All right. Withdraw the last

question. Ask the question again.

Q. The Yeshiva of Bensonhurst, which you attended

for four years from nine to 13 --

MR. DeMAY: Objection, Your Honor.

THE COURT: Grounds?

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MR. DeMAY: Misstates his testimony.


Q. The Yeshiva of Bensonhurst that you attended five

times a week, from age nine to 13, during those yea rs

what was the name of synagogue that it was affiliat ed

with?

A. I do not remember the name. Forgive me, I do not

know the name.

Q. And is that synagogue that's affiliated with that

yeshiva, is that the synagogue that your parents

would attend the High Holy Days at?

A. We attended High Holy Days, when we did, at

several different synagogues in the neighborhood.

Q. My question specifically, though, was with regard

to the synagogue that's a affiliated with the yeshi va

that you attended five times a week, did you attend

services there as well?

A. We may have, among others.

Q. Do you recall how many times you attended Yom

Kippur services at the synagogue affiliated with

Yeshiva of Bensonhurst?

A. I don't recall attending services at that

synagogue. I'm sure we must have. I don't recall

it. I do recall attending services after my mother

died for the purpose the Yizkor prayer at another

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neighborhood synagogue.

Q. The synagogue that you attended the services at

when you did go with your parents, was the

congregation, did the men and women sit together?

A. I do not know.

Q. You were very specific in your recollection about

dates, about months, about specific conversations,

but you don't remember if the synagogue that you

attended that the women sat with the men?

A. Those are very visual things. No, I do not know

that.

Q. Well, I'm asking only with respect --

A. I don't know. I can't tell you more than I can

remember.

THE COURT: Sir. Sir. Calm down. She's not

trying to attack you.

MS. FINKELSTEIN: At all.

THE COURT: She's just asking you questions to

get information. And that's all we need. That's

an entirely appropriate question that she's asked

you.

THE WITNESS: I'm sorry, sir.

A. I remember sitting with my mother on occasions

and sitting with my father on occasion.

Q. But did your mother and father sit together or

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did you sit as a family when you attended these

services?

A. I believe we sat as a family for the most part.

Q. Now you said something just in response to my

question about Yizkor prayer for your mother when s he

passed.

Can you please explain to me what that is?

A. That is a prayer for the dead, as I understand,

which is to be said on -- on high holidays, four

times as year as I recall, including -- including o n

Yom Kippur and Simchas Torah and Rosh Hashana, if I

remember correctly, among others.

Q. Did your father say that prayer after your mother

passed on those occasions?

A. We went on one occasions that I can remember.

Q. Are you aware if your father went without you to

say Yizkor prayer on those holidays for your mother ?

A. My father did not go to synagogue, to my

knowledge, ever again, except for my Bar Mitzvah.

Q. I didn't get the last part.

A. I do not believe my father went to synagogue, no.

Q. That would be, you said, after you were Bar

Mitzvah'd he never went back?

A. The only time I know of him going to synagogue

after my mother died was for that one Yizkor prayer

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that I remember and for my Bar Mitzvah.

Q. The did your father light a candle in your home

on the anniversary of your mother's death every yea r?

A. No, I don't believe he did.

Q. Now you said your brother did not have a Bar

Mitzvah ceremony?

A. That's correct.

Q. But you are aware in Jewish tradition that when a

boy becomes 13 he automatically becomes Bar Mitzvah ?

Are aware ever that, sir?

A. I understand that.

Q. So when you said your brother wasn't Bar

Mitzvah's, you're referring to the celebratory, the

ceremony that follows?

A. That's correct. I'm referring to the reading of

Torah before the congregation. I'm referring to an y

associated party or festivity, correct.

Q. You had a party after your Bar Mitzvah?

A. Yes.

Q. And where did that party take place?

A. There were two parties. One was in our home and

one in a restaurant in which I do not remember.

Q. And you had a family and friends attend?

A. That's correct.

Q. And that was something your parents organized on

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your behalf, correct?

A. My father. My mother was not living.

Q. I apologize. Your father organized that?

A. Yes.

Q. Now you said at the year that your brother should

have been studying for his Bar Mitzvah he had medic al

condition?

A. He lost his voice, that's correct.

Q. Did he lose his voice completely, sir?

A. Completely. He could only whisper.

Q. So, therefore, he could not recite the prayers

that would be required if a child of age 13 was to

recite in front of the synagogue?

A. I believe that's correct and I believe that's

what we were told was the case, yes.

Q. So you were actually told that the reason that

there was no Bar Mitzvah formalities or ceremony wa s

a medical reason and not a religious one?

A. No, I was never told any reason.

Q. I thought you just said, sir, you recall told?

A. No. I was told that it would be impossible for

him to recite. I was not told that recitation sine

qua non for a Bar Mitzvah.

Q. There was actually a discussion about whether or

not your brother was medically capable of performin g

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the rituals and reading from the Torah aloud?

A. I'm not aware of any discussion. I'm only aware

of what was I was told, which was he could not

recite.

Q. Okay. So your father -- who told you this?

A. My father.

Q. And was this told to you and your brother?

A. I believe so, yes. I mean, I don't know what

conversation my father had with my brother.

Q. In your presence I'm only asking, sir. I can

only ask what you were present for.

A. I believe we were both present, yes.

Q. And this was when you said he couldn't recite,

this was referring to a Bar Mitzvah, correct?

A. Yes.

Q. You said your brother did have a job for some

period of his life, I guess, 1966 to 1981?

A. Correct.

Q. And he worked as an accountant; is that correct?

A. Correct.

Q. So your brother had, would it be fair to say, an

eye for detail?

A. Yes, I would imagine so. Yes.

Q. And if he could tally numbers, he certainly was

an educated individual, correct?

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A. Yes.

Q. You said he liked to read. He was proficient in

reading?

A. Yes.

Q. Now you mentioned during your direct testimony

regarding a period in yours and your brother's life

in which there was actually no communication or

contact from 1970 to 1982?

A. I never said anything such thing. I said there

was a strain in our relationship. I never said the re

was no contact.

Q. I apologize.

A. I never said any such thing.

Q. Okay. So you said in the early 1970s, Marty

began to borrow money from you. You said hundreds of

dollars; is that correct?

A. That's right.

Q. And you were angry at him for a large period of

time?

A. Yes.

Q. And when you said you were angry at him, did

those phone conversations that you had two to four

times a week dimmish during this period of anger?

A. They have may have diminished slightly for a

couple of weeks here and there. We never lost

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contact.

Q. So did the frequency of your phone contact

diminish?

A. Maybe very slightly, but not substantially.

Q. I don't want to talk in those terms, slightly or

substantially. You actually said it was 1.5 meals

you had. So let's talk numbers.

How many times in that period of time, from

the early 1970s until 1982, did you actually speak on

a weekly basis with your brother?

A. Once or twice a week. He was living with my

father and I would speak to both of them.

Q. And that went from two to four times a week down

to one to two times a week, correct?

A. Probably so.

Q. Now you also said it took the death of your

father to try to reconcile or get over the anger yo u

had for your brother?

A. Yes.

Q. Did you ever discuss with your brother the reason

why you were angry with him?

A. Yes, I did.

Q. Did you tell your brother you were disappointed

in him that he didn't return the money to you?

A. Yes, he understood that very well.

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Q. Did you tell your brother maybe he took advantage

of you by all these loans that he never returned?

A. I indicated I thought it was unfair of him. I

indicated I thought it was unfair of him.

Q. Actually, how much money was it that your brother

borrowed and never returned from you -- to you?

A. I will say probably about $1,200, 1,500.

Q. In the 1970s, 1,200, 1,500?

A. Yeah. Yeah.

Q. Do you recall the exact year? You only said the

early 1970s. Do you recall what year that was?

A. It was over a period of time from about 1973 --

'72 or 73 to '75 or '76. It was in increments over

that period of time.

Q. And it took the death of your father to reconcile

with your brother; isn't that fair to say?

A. Well, that was the occasion on which it occurred.

Q. You indicated you felt like it was time to make

amends basically, once your father had passed?

A. I felt that family was more important than

anything else.

Q. Because at that point your brother was really the

only living close relative of yours?

A. Precisely.

Q. I'm sorry?

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A. Precisely.

Q. Now what year was it that your father died again,

'96?

A. 1982.

Q. I'm sorry. '82. And in 1982, you said you

buried him?

A. In Wellwood Cemetery.

Q. Well, had your father purchased a plot prior to

his burial?

A. No, he had not.

Q. Now do you recall conversations with regard your

mother's burial Wellwood Cemetery?

A. No, I do not have any recollection of any

conversations. I was not even able to attend her

funnel. It was believed at that time the children

should not attend.

Q. Who believed, the Jewish faith?

A. Whoever my father was talking to for advice. I

cannot say. Whoever my father was getting advice

from said it was not good for children to go.

Q. And was your father consulting with a rabbi or a

cantor?

A. I do not know who he was consulting with.

Q. I just want to go back for one moment.

You testified that even though you reconciled

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with your brother back in 1982, it certainly had a

lasting effect on your relationship with your

brother, correct?

A. No, I did not say that at all.

Q. I'm sorry. I have those words.

A. I said nothing of the sort.

Q. So there was no continuing --

A. I said it had no lasting effect. The

relationship was restored.

Q. There were no difficulties or strain between you

and your brother after that?

A. No.

Q. So your father did not have a plot?

A. Did not.

Q. So who went to the cemetery to purchase the plot

for the burial?

A. I did.

Q. And what steps, once your father passed, did you

have to take in order to have him buried?

A. I had to make arrangements with a funeral home.

He had a funeral, which, I say, we decided -- we

thought was in accordance with his wishes. And we

had a -- a -- obviously a rabbi who delivered a

proper eulogy, which I wrote, because the rabbi

didn't know my father. My father, I don't believe,

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knew any rabbis. I wrote the eulogy. The rabbi

expressed his appreciation that the family would do

that. And we had a proper funeral for him.

Q. So, do you recall what funeral home it was or was

it in a synagogue that you had the funnel?

A. It was in Brooklyn. I -- I think it may have

been called Gaulick(ph), something like Gaulick. I t

was in Brooklyn. I do not recall the exact name.

Q. And in the process of preparing for the funeral,

did you have more than one session with the rabbi i n

discussing your fathers eulogy?

A. We had one.

Q. And did you discuss the prayers that were going

to be delivered during the course of the funeral wi th

the rabbi?

A. I believe -- I don't believe we discussed it. I

believe I regarded that as being within the rabbi's

discretion.

Q. Did Marty or Martin have conversations with the

rabbi as to what prayers he would like to be

delivered during the funeral?

A. No, I don't believe he did.

Q. Now was the funeral actually took place in the

funeral home or was it a grave side?

A. It was in a funeral home and then an additional

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brief ceremony at the grave site.

Q. So you contracted with a rabbi to deliver the

eulogy and perform the funeral in the home, correct ?

A. Correct.

Q. And then you also contracted with that rabbi to

follow the body to the cemetery in Long Island from

Brooklyn, correct?

A. Yes. Although, I'm trying to remember now for

certain if it was the same rabbi or a different

rabbi. I can't honestly say for sure at this point .

I believe it was the same rabbi, yes.

Q. Well, we can just say a rabbi?

A. Yes.

Q. So you also contracted with a rabbi to follow

your father's remains to the cemetery, which is a

Jewish cemetery, correct?

A. Absolutely.

Q. Actually there are some very religious sections

of that cemetery as well?

A. I understand there are.

Q. You paid for a proper Jewish burial with the

rabbi at the grave, correct?

A. Yes.

Q. So was there additional prayers that were

rendered or delivered upon the grave of your father ?

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A. I believe there may have been some. I believe

there were certain words said. Many things were sa id

in Hebrew which I couldn't follow. I never learned

enough Hebrew to follow them, but yes.

Q. Did the rabbi provide you with papers or

literature so you could follow along with the praye r

and service at the grave side?

A. No.

Q. Oh, I apologize. You're right.

A. No. Unless it had been in braille, it would not

have done me any good.

Q. I apologize.

Do you know if he provided Marty with any

literature to follow along?

A. I don't recall. I can't say for sure, but I

don't recall that he did. I think Marty would have

read them to me or told me about it if he had.

Q. Did he follow Jewish ritual at the burial of your

father?

A. As far as I know.

Q. Did you sit shiva for your father?

A. To a degree, yes. I mean not to -- I don't

recall if we sat the entire eight days. We

certainly, you know, welcomed to our apartment anyo ne

who wanted to come or cared to come. I was not

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living at home at the time, but I spent time there

with my brother during that week.

Q. Could you please explain for the court what shiva

is?

A. Shiva is a practice whereby the friends and

family and other well wishers of the deceased and

other family come to -- to pay their respects over an

eight day period. It's a solemn event. The family

sits in their home. Things are done like, you know ,

mirrors are turned inward, things of that nature.

And some other thing are done. I'm not obviously a n

expert on the ritual, but it's a way of giving a

period of time to mourn and remember the dead perso n

and to grieve together as a community.

Q. And so at the time that your father passed, it

was your brother that where was residing with your

father only, correct?

A. That's correct.

Q. Did your brother. To the best of your knowledge,

prepare that home for sitting shiva?

A. No, we just sat there.

Q. You sat there. Did you sleep over in that home

or you left each evening?

A. I may have slept over one or two nights. I think

we sat in there probably three or four days.

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Q. Your brother Martin sat for three or four days,

respecting Jewish tradition and Jewish laws?

A. I sat too. Again, I believe that's what our

father would have wanted.

Q. It was Martin who actually convinced you to

follow this tradition because it would have been wh at

your father wanted, correct?

A. We made a joint decision. He had -- the

conversations that we all had about my father's

wishes, he interpreted those conversations more

strongly than I did. I accepted his interpretation .

THE COURT: What do you mean by that, he

interpreted the conversation more strongly?

THE WITNESS: That is --

THE COURT: And by the way, let me add

something to that question. Was this the same

conversation wherein the father asked to be buried

as opposed to cremated?

THE WITNESS: Well, our father never

specifically -- our father never specifically asked

to be buried. We had a conversation in which he

said, you know, he thought cremation was not a good

thing. People shouldn't do it. And, you know, I

interpreted that as a fairly general statement,

probably reflecting his feelings for himself that

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it wasn't a good thing and people should not do it.

But Marty interpreted that as being a very

personal statement on his part. And I accepted it,

because Marty could well be right.

Q. So his statement --

THE COURT: You used the world strongly, he

strongly argued for the shiva for example.

THE WITNESS: No. No. He didn't strongly

argue for any shiva, no. He strongly argued for

the burial. Nobody argued for the shiva. We

decided to sit there for a couple of days. Anyone

who wanted to come, we would be grateful for their

support.

Q. Did you announce at the funeral the days and the

location of where you would be sitting shiva, so

people would know where to come?

A. I don't recall. It was a very small funeral, sad

to say. Many of my father's contemporaries had

already passed away. He had a very small circle.

There were only a few people there and I think they

were aware one way or the other.

Q. Your statement just now that your father thought

cremation was not a good thing and people shouldn't

do it. So, that statement wasn't just applying to

him. He was applying it to people as a whole,

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correct?

A. Well, that's the way I interpreted it. And as

such, obviously, it certainly reflect what he wante d

for himself. And Marty felt it was a very personal

statement on his part, what he wanted for himself.

Q. But that statement not just says -- sir, would

you agree, it not just says his personal opinion

about what he would want, but his opinion about

cremation as a whole, correct?

A. I think that's fair, yes. Mmm.

Q. And it was based upon that statement that Marty

determined that you must bury him in a Jewish funer al

and Jewish cemetery?

A. We both determined.

Q. Now I'm going to bring you to the fall of 1996?

A. Yes.

Q. You were in England at the time?

A. Correct.

Q. And how long of a period of time did you go

without speaking to your brother before you found o ut

that he was in a shelter?

A. I was calling my brother from England every week,

much as I would call him here. On the second week

when he didn't answer the phone, I became concerned .

Obviously, one week he might be out, who knows. Bu t

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the second week when he didn't answer the phone, I

became concerned. So, I didn't worry too much abou t

one week. But by the second week when he didn't

answer, I called back a few times and he didn't

answer, I became concerned, very concerned.

Q. Did your brother know your phone number in

England?

A. Yes, he did. But he -- I believe -- I'm not

sure. I think he did. I certainly told it to him.

I can't tell whether he wrote it down or remembered

it or didn't, but I told him.

Q. How long were you in England?

A. We were in England for, let's see, from the end

of September to mid-January of '97.

Q. So would it be fair to say that your brother was

in a shelter for two weeks and he did not call you?

A. I don't know when my brother went into the

shelter exactly.

Q. But at least two weeks that you know that you

were attempting to contact him and you said you wou ld

speak to him on a weekly basis, correct?

A. That's right.

Q. So it's fair to say there's at least two weeks

your brother was living in a shelter and he did not

call you to tell you where he was?

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A. I don't know where he was living. I don't know

if he was in a shelter or on the street. I have no

idea where he was. I never found out where he was.

Q. Fair enough. So let me rephrase my question.

So you know for at least two weeks in 1996

your brother was either homeless on the street or i n

a shelter and he did not call you?

A. Well, apparently, yes. But I also know in the

shelter he couldn't call me either. He had no mone y

to call me. That's why he had to call collect.

Q. That's very interesting. So, let me rephrase

that question.

So, there were two weeks that you know your

brother was either homeless or in a shelter that he

did not call you collect?

A. I don't know. Well, no, we hadn't instructed him

to call collect at that time. It was only later wh en

we got back to New York and we asked him to call

collect. We had not asked him to do that at any ti me

before that. We never thought it of it coming up a s

an issue because I called him regularly.

Q. You said your brother -- or you feel your brother

moved into an adult because he was afraid to be

alone. That was your statement, correct, sir?

A. That's my belief, yes.

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Q. And how old was your brother when he first moved

into the first adult home, you said, in Brooklyn?

A. It was 1997, as I believe. He would have been

50.

Q. And what type of facility was that?

A. I can't be too precise. Some sort of facility he

was directed to or sent to or moved to by whichever

social service agency that ran the shelter. It was

called Ambassador. I believe that was the Ambassad or

Hotel. It was on East 104th Street in Brooklyn.

Q. And the Ambassador Hotel, that was a kosher

facility, correct?

A. I do not know.

Q. And are you sure that that location was in

Brooklyn?

A. Yes.

Q. Did you ever go visit him at that facility?

A. No, I did not go visit him at that facility.

Q. He was there from one to possibly three years and

you never visited him there?

A. He did not want to be visited there. He was able

to come into Manhattan still on occasion, which he

preferred to do and which he did.

Q. Understood. But you never actually went and saw

his room or his possessions, correct?

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A. No, that's correct.

Q. You never saw the facility -- excuse me.

You never visited the facility and the

conditions -- to learn of the conditions of the

facility?

A. He did not want me to and I respected his

privacy.

Q. Do you know why he did not want you to visit with

him at the facility?

A. No, I do not.

Q. Earlier with your attorney, you were asked to

describe your brother. And I'm just trying to find

that section. Is it fair to say your brother was a

private person?

A. Yes.

Q. He liked to be alone or to himself?

A. It depends what you mean by alone. He liked to

be with people. But in terms of his inner thoughts ,

I would say yes, if that's what you mean.

Q. He didn't like to interact with many people?

A. He did like to interact with many people, but not

necessarily on a great intimacy basis. But he like d

to talk to people. I don't recall him enjoying, yo u

know, a lot of intimacy with people. He certainly

liked to talk to people in general, casually

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superficially, in a friendly way. He was friendly.

Q. So what you believe was the ambassador, you said

he was there from one to three years. And your

recollection is that was in Brooklyn; is that

correct?

A. Yes.

Q. Now he left the Ambassador and then he went to

another home?

A. One in Long Beach, yes.

Q. Is that the King David Manor?

A. I believe so, yes.

Q. And that -- are you aware that that is also a

kosher facility?

A. I understand that now, yes. I had no information

then one way or the other.

Q. And you indicated that you would visit him one to

two times, was it? How often, a year, a week? Wha t

was that?

A. No, the King David Manor I was only able to get

out there a couple of times. Once again we talked on

the phone regularly. But I was only able to get ou t

there a couple times. I had no one readily availab le

to drive out there at that time. It was hard to ge t

to, so I did not go out there more than -- I think I

went out there twice.

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Q. And you were living in New York City at the time,

sir?

A. Yes.

Q. And when you said you would go out there, would

you actually visit with him within inside the

facility?

A. No, again, he would come out and we would go to

some restaurant, you know, near the boardwalk area.

Q. So you also never -- therefore, you would never

have gone into his personal room or personal space?

A. That's correct.

Q. You did say that he chose frequently Katz's Deli?

A. Katz's is one of the places we went to.

Q. Was that his recommendation or yours?

A. Mutual agreement. Sometimes -- sometimes it was

his preference. Sometimes I would suggest a

preference. It varied.

Q. Where --

A. The Carnegie was his favorite. He liked the

Carnegie very much.

Q. Where was your brother living when you moved to

California to be with your wife in LA?

A. We moved permanently in 2008. At that time, of

course, he was already at Evergreen.

Q. But you indicated in 1991 --

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A. He was living -- he was still living in Brooklyn

in what had been his and my father's apartment, the n

his apartment.

Q. Let me finish the question, sir.

I just want to understand what you meant by in

1991, you started spending time in California.

What does that mean, started spending time in

California?

A. I divided my residential time between New York

and California, living in California for the most

part, but spending some amount of time, several wee ks

to a month or two in New York each year, maintainin g

my apartment here in New York.

Q. When you would come to New York for those months,

you only visited your brother once?

A. No, that's not correct.

Q. I thought I said when he was in Long Island, at

the King David Manor, you visited him once or --

A. He wasn't in Long Island. He was in Brooklyn

then. He was still in Brooklyn then. And I would

see him at least once -- once a month, probably onc e

a month, maybe once every sex weeks, something of

that nature.

Q. He went to Brooklyn?

A. No, he was already in Brooklyn. He lived in

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Brooklyn.

Q. I'm sorry. What was the year he went to

Brooklyn?

A. He was born and raised in Brooklyn.

Q. No, sir. That's not what I meant.

I meant, when did he -- when I say Brooklyn, I

apologize, I'm referring to the Ambassador?

A. As far as I know the fall of 1996.

Q. And so you said he was there one to three years?

A. Or the spring of '97. I can't tell. Late '96 or

early '97.

Q. Now --

THE COURT: Do you know how he got -- did he

choose the King David facility?

THE WITNESS: I have no information on how he

got there, Your Honor.

Q. Now there came point in time when your brother

chose the Evergreen Court Residence for Adults,

correct?

A. I don't know that he chose it. I just know that

he -- one day he was not there and the next day he

was. I don't know the circumstances of how he came

to be there, except he was. There that's all I kno w.

Q. So your brother never discussed with you the fact

that he was going to move his residence?

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A. No.

Q. And so twice he never discussed -- he never

discussed that he was going to move to -- choose Ki ng

David and he never discussed with you he was going to

choose the Evergreen?

A. He told me he would be leaving King David, but he

didn't know where or exactly when.

Q. I just want to jump back for one quick moment.

When you said that you heard about your

brother in a shelter, and you were concerned becaus e

he didn't like to be alone, he might have been

homeless, did you offer for your brother to come li ve

with you?

A. Yes, I certainly suggested the possibility. He

did not want to do that.

Q. So rather than choosing to live with you, he

chose to be alone in a shelter?

A. I can't answer the question that way. I had a

very tiny apartment. I don't know what his

considerations in that decision might have been.

Q. But in the conversations you talk -- let's talk a

little bit about the conversations, the phone

conversations you had. They were frequent, at leas t

once a week, right, sir?

A. Yes.

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Q. You said you both loved baseball. That was a

strong topic of conversation?

A. That's correct.

Q. Does he have a particular team that he's a fan

of?

A. He was a Giants fan when we were younger.

Q. And you?

A. I was a Dodgers fan.

Q. Okay.

A. Brooklyn versus New York. We had a lot of fun

with that.

Q. I figured you were a Dodgers from being in

Brooklyn.

Now, and he always expressed interest in what

you were doing and Judy was doing, your travels, yo ur

meals?

A. Correct.

Q. But did he talk to you at all about what he was

doing on a daily basis?

A. Not in great detail. He talked, you know, about

reading the newspaper, about, you know, going

downstairs sitting in the TV room, about going

outside sitting on a bench, things of that nature.

And on occasion he mentioned going to services.

Q. Did he share, did he tell you that he chose a

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roommate at the Evergreen facility?

A. He told me at a certain point that he had a

roommate. Subsequently, he told me that he did not

want a roommate. In fact, he had paid extra to get a

single room.

Q. Let me just step back.

Did he talk you about when he was thinking of

getting a room?

A. No, he never said he was thinking about getting a

roommate. He told me that he had a roommate.

Q. So, he only told you after the fact, once he had

roommate, that he did have a roommate?

A. Yes.

Q. And did you know the roommate that -- he chose

this roommate, did you know that?

A. No, I have no information about how the roommate

came to be.

Q. Did you know he had an option of the single or

double and he chose a double with this gentleman

Chaim Lerner?

A. No, I only later, when he requested a single, he

had to pay more for it.

Q. Did he ever tell you about Chaim Lerner?

A. Yes, he mentioned it. He said he was a nice guy.

Q. Did he also tell you he was an Orthodox Jew?

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A. Yes.

Q. And that they lived together until Chaim Lerner

left the facility?

A. He told me that his roommate had left. He said

he did not know why or where he was going.

Q. And then did he tell you he chose, rather than

have another roommate and not be alone, he chose to

live alone at that point?

A. He chose to have a single room, but he was -- he

chose to have a single room.

Q. He chose to have a single room when he had the

option of having someone live with him, correct?

A. I suppose.

Q. And --

A. But -- I'm sorry.

Q. In exchange for a single room, he actually had to

pay additional funds to additional money to have no

roommate?

A. That's correct.

Q. And he paid those moneys?

A. That's correct.

Q. Did you -- did he tell you that he attended

services every Shabbos on Friday night, which took 45

minutes, with an Orthodox rabbi?

A. He mentioned on occasion that he attended

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services. He did not specifically say when or how

often. I certainly knew that he attended on High

Holidays. I didn't know exactly when or how often he

attended generally.

Q. Did you know he attended them every Friday night

with Rabbi Sperlin?

A. No, I did not.

Q. Did you know he attended them every Saturday

morning for an hour and a half with Rabbi Sperlin?

A. No, I did not.

Q. Did you know that he actually would stay after

the services were completed and he would discuss th e

sermon, the Torah, Moses, different religious topic s

with Rabbi Sperlin?

A. No, it would not surprise me. After any event he

participated in or lecture he would stay and want t o

talk to whoever was presenting it.

Q. Did he ever discuss these sermons with you or

lessons or teachings with you that he did every

Friday and every Saturday?

A. No. Actually, no, he did not.

Q. Did he tell you that he also participated in

every other religious ceremony and holiday while

living in the Evergreen Court facility?

A. He told me that he enjoyed the holidays

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relatively speaking, yes. He said he enjoyed the

holidays.

Q. Did he tell you that he actually he recited

prayers aloud for each of these holidays in

accordance with Jewish tradition?

A. No, he didn't.

THE COURT: Was your father's apartment rent

controlled?

THE WITNESS: It was -- let me see, it would

have been rent controlled, yes. We got it in 1960.

THE COURT: Okay. So leaves a rent controlled

apartment. And he goes to King David from there?

THE WITNESS: Via the shelter system and via

the Ambassador.

THE COURT: He chose a religious place to

live, a place that I suppose has religious

services?

THE WITNESS: Well, I don't know, Your Honor,

if he chose it.

THE COURT: The King David?

THE WITNESS: I don't know if he chose it or

he was sent there by Social Services. I have no

way to know.

THE COURT: He paid money to attend the

services at Evergreen. Did you know that he paid

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extra money to attend those services? It was

written right into the contract?

THE WITNESS: I saw that in the contract. I

did not know that before.

THE COURT: And he even attended those

services up to the day before he died, on the 14th

of September.

Also he argues very -- it seems that he argues

very strongly that your father should be buried,

putting you in mind of a conversation that was

held.

Is it likely that your brother may have

changed his mind about certain things? As opposed

to be an agnostic, so to speak, that he may have

chosen a more religious path as he came closer to

the end of his life.

THE WITNESS: I can only speculate on that. I

have no way of answering that question. Anything

is possible. But he did not share that, if that

was the case.

Q. Did he tell you that he would say the prayers in

front of a room full of people; someone who has

anxiety, say prayers in front of a room full of

people on Passover seder?

A. No, he did not.

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Q. Did he tell you he would stand up and light the

candles on the menorah in front of a room full of

people at the Hannukah celebration?

A. He did mention lighting the candles, yes.

Q. Did he tell you he would recite prayers out loud;

someone who suffered from anxiety would light praye rs

allowed and say them aloud in front of a room full

people?

A. No, he didn't specifically mention prayers.

Q. And did he tell you that he volunteered for all

of this?

A. I don't know what you mean by volunteered.

Q. Meaning, there was no obligation on behalf of

your brother to say these prayers, to light the

candles, to do all the symbolism, do everything for

all the holidays. He chose, he stepped forward and

chose to do all these rituals in accordance with

Jewish tradition and beliefs.

Did he tell you that?

A. Well, I mean if he did them, he did them.

Obviously, no one forced him, but he didn't

specifically say that. No, it wouldn't have been a n

issue. Who would ever suggest that he was forced?

Q. Now you said that -- well, you said that when

your brother passed that - let me just read your

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words - you racked your brain --

Well this is all because you said he never

gave you instructions on what to do with his remain s,

correct?

A. Correct.

Q. He never told you what to do with his body upon

his death?

A. Correct.

Q. Now, you're an attorney. You're an attorney for

how many years?

A. I was admitted to the bar in 1972.

Q. And you never prepared a will on behalf of your

brother so there would be no confusion as to what t o

do upon his death?

A. I don't practice. I don't prepare wills for

anyone. I didn't prepare a will for myself. I don 't

practice law.

Q. Okay. Let me rephrase the question. I can

understand that. You're a public advocate, I know,

for the disabled.

As an attorney, a scholar, someone who went to

Columbia Law School, did you recommend to your

brother that maybe he should seek out legal counsel

so -- because he never discussed his wishes with yo u.

So, there would be no confusion, did you ever sugge st

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to him, Marty, please prepare a will?

MR. DeMAY: Objection, Your Honor. Form of

the question.

MS. FINKELSTEIN: I'll rephrase.

THE COURT: I was going to allow it. You know

what she's talking about, sir?

A. I believe I suggested to him that it would be

wise for anyone, him, me, anyone, to have their

affairs in order. Whenever I would even attempt to

broach that subject, he would change the subject.

Whenever I would mention to him the sad news of the

passing of some friend of ours, he would change the

subject.

Q. He never discussed with you his practicing of

Jewish religion? He never discussed that with you,

correct?

A. Not in the sense you mean. He discussed doing

certain things, as I say, going to services or

lighting candles or enjoying the seder, but, no, no t

in terms of religious practice.

Q. And you previously said he was aware of your

secular beliefs, correct?

A. , yes, certainly.

Q. Is it possible that he didn't share his faith in

God and how he was following Jewish tradition becau se

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he knew of your beliefs? You're the older brother.

He knew of that and maybe that's a reason he didn't

share that with you, sir?

A. No, he never -- he never hesitated to share his

disagreements with me about anything and he knew I

wouldn't be censorious.

Q. Well, not disagreements. He never shared with

you his life at Evergreen or King David. It was

basically a superficial conversation about baseball ?

A. That is not correct. We talked about many

things.

Q. Okay. Well, let me just --

You stated that - and I express my condolences

to you for the loss of your brother - once he passe d,

you racked your brain to see if he gave anything --

if he gave any indication what he wanted, correct?

A. Yes.

Q. When he passed, did you call anyone at Evergreen

to see if they had any conversation with your broth er

about what he wanted to do with --

A. Before I could have a chance to call anyone, I

received a phone call from the owner of the -- of t he

Evergreen, demanding that I bury my brother in

accordance with in-ground Jewish burial tradition a nd

making certain accusations, which I will not repeat

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in this courtroom.

Q. Did you call Evergreen to find out maybe who he

was friends with?

A. Yes, I did. Yes, I did. And I was actually told

that his two friends were one woman who was hard of

hearing, apparently schizophrenic, and another

gentleman who was delusional. I can look up their

names if you want me to.

Q. Isn't it true, sir, that when you were notified

about your brother's passing, you didn't take time to

think about what to do with his remains; you

immediately informed them to cremate your brother a nd

send him to California?

A. No, that is not true.

Q. So that initial conversation you had with those

individuals that notified you, you did not tell the m

to cremate him?

A. Hang on a minute. You said that I didn't take

any time to think. Believe me, I thought a lot ove r

the years of what would happen if one of us

pre-deceased the other, which one would pre-decease ,

what would happen.

Q. That wasn't my question, sir, respectfully.

My question was when he passed, you said you

racked your brain -- let me just finish the questio n,

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sir and I'll give you ample opportunity to answer.

You stated when he passed, you racked your brain to

see if he gave you any indication. This is when he

passed?

A. I did.

Q. However, isn't it true that when you were called

by that first individual, notifying you that your

brother had passed, you said cremate my brother and

send him to California?

A. I do not recall being able to say anything when I

was called by the first individual. I recall only

being in shock and not being able to say much of

anything.

Q. Os is it possible, because you were in shock,

that you actually told the first person who told yo u

about your brother's passing, to cremate him?

A. I cannot say what I said or didn't say. I was in

shock.

Q. Did you ask that individual, give me some time, I

don't know what to do?

A. I asked Mr. Schonberger to giver me some time,

yes.

Q. No, that's not what I was saying.

A. He was the first person I ever talked to on the

subject.

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Q. No, that's not what I'm saying, sir.

MR. DeMAY: Let the witness answer.

THE COURT: First of all, let him finish his

answer.

MR. DeMAY: The whole line of questioning is

getting to the point of badgering about what he did

and what he said when he heard his brother died.

THE COURT: It's getting into a communication,

which I'd like to avoid.

Did you finish your answer? If you haven't,

go ahead.

A. I asked Mr. Schonberger to give me time to think.

I listened to him carefully. I said I need time to

think and he would not let me. And he said somethi ng

which I'll not repeat in this courtroom.

Q. Sir, I understand that and I was respect that,

but weren't you notified --

A. And once he said that --

Q. Let me finish my question.

Weren't you notified three days before your

conversation with Mr. Schonberger about a

authorities?

A. No, absolutely not. I spoke to Mr. Schonberger

at most two, three hours after I had the first

inkling of my brother's death.

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Q. My question is, Mr. Schonberger didn't tell you

about your brother's death?

A. No, he didn't.

Q. So I'm concentrating only on the conversation you

had with that first individual, that first

representative, before you had any conversation wit h

Mr. Schonberger. That conversation.

Do you recall that conversation you had?

A. I have no -- I have only the recollection of

being shocked. I recall speaking to two officials of

the nursing home, asking about Marty, asking the

circumstances of his death, asking what had happene d,

asking about his friends, if I could talk to any of

his friends.

Q. Were those -- the first person you spoke to, do

you recall, was it a member of law enforcement?

A. No, the first person was a social worker. I can

get her name. Again, I can check my notes. Social

worker, who reached me by phone at about 11:30 a.m.

Eastern Time on the morning of 15th, which I gather

was about four hours after Marty died.

Q. And when do you recall is the first time you told

anyone to cremate your brother's remains?

A. When I talked to the funeral home several hours

later.

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Q. So several hours. So several hours -- you said

what was the time of the call from social worker,

sir?

A. About 11:30.

Q. 11:30?

A. Your time.

Q. 11:30. Was that a.m. or p.m., sir?

A. A.m.

Q. And that was on the 15th?

A. On the 15th.

Q. That would be the day he passed, sir?

A. Yes.

THE COURT: Was that your California time or

New York time?

MS. FINKELSTEIN: He said New York time.

THE COURT: Did he say that?

MS. FINKELSTEIN: Yeah.

Q. Did you say New York time?

A. Yes, 11:30 eastern time.

Q. And you said that the first one was a social

worker that called, right?

A. Yes.

Q. The next call you received was from whom?

A. I made some calls. I called. First of all, I

called the doctor. I talked to the doctor to try t o

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ascertain the medical circumstances of my brother's

death. Dr. -- I forgot his name. I then called ba ck

the home. I talked to possibly Carrie or Nancy. I

don't remember which. Maybe both. I asked again t he

circumstances and details. They told me how Marty

had been found. I got all those details. I asked

about his effects. If there were any mementoes,

anything I could have to remember him by. They sai d

only clothes and his cane. I said can I at least

have his cane.

Q. And that was provided to you by Mr. Schonberger,

wasn't it?

A. Yes, it was.

MR. DeMAY: Let the witness finish, please.

THE COURT: Let him finish his answer.

A. Subsequently, I called the police. The detective

who had responded to the call was not in, but I lef t

a message for her. And then subsequently at some

point the funeral home called me and we talked. At

that time I did say yes, it was my -- it was my

desire at that point to have my brother's remains

cremated.

How Mr. Schonberger found out about this, I

don't know. But it was very shortly thereafter tha t

he called me and began to harangue me about --

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Q. Okay. I'm going to concentrate on the time where

you finally called -- you said you called the funer al

home?

A. No, they called me.

Q. Okay. So, it was the conversation with the

funeral home that you told them to cremate your

brother's remains?

A. That is correct.

Q. And that would be Hellman's Funeral Home, sir?

A. That's correct.

Q. And you said that was a few hours later. Do you

recall eastern time what time that was during that

conversation?

A. I'm guessing, that would have been 4:00 or 5:00

p.m. eastern time.

Q. So when you said you racked your brain to decide

if Marty gave you any indication, that was done in

those four and a half to five hours?

A. I've often thought what would happen if he

pre-deceased me, what would happen if I pre-decease d

him. Obviously, it was intensified to the nth degr ee

in those hours, but it's not the first time I thoug ht

about the question.

THE COURT: How much further do you have?

MS. FINKELSTEIN: I just -- not long at all.

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THE COURT: I've indicated I'm taking an extra

15 minutes. Do you have redirect?

MR. DeMAY: Little, if any, Your Honor.

THE WITNESS: There is maybe one thing we

should redirect on.

THE COURT: All right. Go ahead.

Q. But even though through all those years you

thought about it, as an attorney understanding the

importance of having things documented, you thought

about it, you never had the conversation with your

brother and you never got from him what he wanted t o

do upon his death?

A. Wherever I tried to raise any question - he was

touchy about such matters - he would immediately

change the subject. I tried on numerous occasions.

Q. So as you sit here today, your brother gave you

no indication, intentionally gave you no indication

as to what to do with his remains upon death?

MR. DeMAY: Object to the form of the

question.

MS. FINKELSTEIN: Well, he said he avoided the

topic, Your Honor.

THE COURT: No. On those grounds, overruled.

You can answer.

A. I can't -- I can't say intentionally. I believe

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my brother was fearful to discuss anything touching

upon death, because, like I say, whenever I mention ed

to him or tried to mention to him some person who h e

had known or might have been close to once died, he

immediately would change the subject. He didn't wa nt

to talk about death under any circumstances.

Q. So, as you sit here today, I ask that same

question. As you sit here today, your brother neve r

told you what his wishes were for the disposition o f

his body upon his death?

A. That is correct.

Q. And your brother also never discussed with you

religion?

A. That is correct.

Q. Despite the fact that he was observing Jewish

religion on a weekly basis, daily basis and that is

where he resided?

MR. DeMAY: Objection. Misstates the

testimony.


objection. I think that one could construe that

from the testimony we've had.

You may answer, sir.

A. If that's religious as you claim, then that's

correct.

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Q. Sir, do you believe in God?

MR. DeMAY: Objection, Your Honor. Completely

irrelevant. What's relevant is Marty's wishes.

MS. FINKELSTEIN: Well, exactly. That's

what's relevant and he's putting his wishes --

MR. DeMAY: Objection, Your Honor.

MS. FINKELSTEIN: If I may respond to your

objection?

THE COURT: Wait. Wait. Let's not

disintegrate into an argument here.

Sustained on the objection.

You know, I guess most judges like to settle

cases. I like to settle cases. Okay. Because

making a decision, that's a forced resolution. But

when you can settle a case, it's a resolution that

both sides agree on.

Is it likely -- I'll get back to what I asked

you before. Is it likely that your brother, near

the time of his death, changed his beliefs, maybe

became more God-fearing, so to speak, and maybe

would want to have a burial in the Jewish tradition

as opposed to a cremation?

And I say that because of the evidence of

attending the services, paying to attend the

services right up until the day he died and

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choosing certain things that are consistent with

the Jewish religion, whether Reform or

Conservative, but consistent with the Jewish

religion.

THE WITNESS: Your Honor, I can't -- I can't

answer. Anything is possible. But I, I don't even

know if, even assuming my brother had a religious

relation, that he in his own mind would interpret

that to having implications for the manner of his

disposition. I don't know that -- he didn't read

talmud so far as I know.

THE COURT: How about -- sir, how about

looking at it as a religious insurance policy? If

he's buried in the Jewish tradition, then in the

Jewish tradition the corpus meets the soul.

They're together. You have a whole body when the

Messiah returns.

And maybe you're right. Maybe you're wrong.

Maybe there's a hereafter. Maybe there's not. But

to me, what skin is it off your nose to bury

instead of cremate?

THE WITNESS: Well, the one thing I know for

sure is he didn't want to be alone.

MS. FINKELSTEIN: Can I interpose something,

Your Honor, if I may speak?

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My client has always suggested, has never said

where -- he can controls where he buries his

brother. They've suggested --

THE WITNESS: That's not what your client

said.

THE COURT: You know. You don't see what, you

know, we see in the courtroom, what I see from his

advantage point.

I've had many cases this month. I've been on

trial. And there were more people in this

courtroom yesterday, there was even more than there

are today, who apparently care enough about the

case and, I assume, enough about your brother to be

here to watch the proceedings that are going on.

So obviously he's not alone.

THE WITNESS: Did they even know my brother or

is this just being politicized?

THE COURT: These are people from the

community and people that -- many people who are

here know him from the home.

You wanted to say something.

MS. FINKELSTEIN: Your Honor, I know that his

fear is that -- his concern is for his brother to

be alone. That's what he expressed. That was what

his expression was during the conference we had.

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And now that we know -- a proposal here. Now

that we know where his parents are both buried, in

the same Jewish cemetery, according to Jewish law,

perhaps his fear of his brother being alone, it

won't be if his brother is buried in the same

cemetery as his parents, near his mother. I

know --

THE WITNESS: He can't be near them. There's

no room.

MS. FINKELSTEIN: I know, sir. I know you

said that. I know, sir.

THE WITNESS: I didn't say it. It's true.

MS. FINKELSTEIN: No. No. No. I know it's

true. I'm not questioning that, sir.

But what I'm saying is the father is not near

the mother because there was no room. But he's in

the same cemetery, same Jewish cemetery.

Is there the possibility of a resolution to

bury Martin in the same cemetery as his parents? I

don't know. That's what I'm just proposing to

resolve it.

THE COURT: Loo, we have other witnesses, I

suppose, that are going to have to come back anyway

on -- let me make sure.

MS. FINKELSTEIN: Tuesday?

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THE COURT: On Monday.

MS. FINKELSTEIN: Monday is a holiday.

THE COURT: So Tuesday. We'll come back at

11 o'clock -- 11:30 again. That's a good time to

start. I get everything done in the morning.

And give some thought. And maybe we can have

a conference before we start.

THE WITNESS: Your Honor, may I appear here by

phone?

THE COURT: Yes.

You're going to go back to California?

THE WITNESS: I have to.

MR. HOLWELL: I take it, Your Honor, we're

punished with this witness?

THE WITNESS: No, I'd like to ask confer with

counsel for one second.

THE COURT: You can step down, sir. I have

the court officer coming for you.

(Whereupon, the witness Steven Mendelsohn


THE COURT: The witness will then participate

by phone on Tuesday.

MS. FINKELSTEIN: We have no objection.

THE COURT: See you all Tuesday at 11:30.

MS. FINKELSTEIN: They wanted to confer with

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counsel. We're just going to give him privacy, if

he wants to put anything on the record.

THE COURT: Oh yeah, that's fine.


THE COURT: Mr. DeMay?

MR. DeMAY: We are ready to adjourn. We have

no redirect and we ask that the witness to be

excused.

THE COURT: So we'll see you all, and your

client by telephone, on Tuesday, at 1:130.

MR. DeMAY: Thank you, Your Honor.

oOo





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INDEX OF WITNESSES

WITNESS DIRECT CROSS REDIRECT RECROSS VOI R DIRE

B KELSEN 114(F) 135(D)

S MENDELSOHN 182(D) 226(F)

EXHIBITS

DEFENDANT EXHIBIT ID EVD

A Pleading 148

B CCAR document 160 165

C CCAR document 160 165

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND - - - - - - - - - - - - - - - - - - - - - - X In the Matter of the Application of:

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PHILLIP SCHONBERGER concerning the In-ground Burial of the remains of MARTIN MENDELSON, Index No.











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283


THE COURT: You wanted to talk to your client

about the possibility of calling the petitioner?

MR. DeMAY: That's right, Your Honor.

We understand from Ms. Finkelstein that she

does not intend to call any witnesses. And if that

is the case, then we do not intend to call

Mr. Schonberger adversely.

THE COURT: So you're not going to call the

petitioner?

MR. DeMAY: Correct.

THE COURT: Where are we now? Do we have any

other witnesses? I guess --

MS. FINKELSTEIN: The only thing that was left

on the record, when we were here on Friday, was the

question of Mr. Mendelsohn wanted any redirect,

because he made some representations from the

witness stand, if you recall. They were going to

break to discuss that.

MR. DeMAY: No redirect, Your Honor.

Where it stands now is that, before the

proceeding started petitioner requested

post-hearing briefing. We agreed post-hearing

briefing would be helpful to the court and we're

prepared to do the briefing as quickly as possible.

We would request briefs be submitted as soon

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as possible, as soon as a transcript is available.

We can prepare a brief by Friday, or whenever the

Court pleases.

THE COURT: What I'd like to do, because of

the nature of the case, is to have everything in

hand by close to business on Thursday. So, I'd

like to start writing on Friday.

MR. DeMAY: We can to that, Your Honor.

MS. FINKELSTEIN: I just want to turn to your

stenographer.

(Whereupon, there was a discussion held off

the record.)

THE COURT: Do you need the transcript?

MR. DeMAY: We believe we need the transcript,

Your Honor.

THE COURT: You need it too?

MR. DeMAY: Yes, Your Honor. As soon as it's

available, within 36 hours we can submit a brief.

THE COURT: All right. We can do that. I'll

know when you received it, because I'l l get a copy

of it myself. So I guess we'll have to leave it at

that.

So memos to follow within 36 hours.

MR. LYNCH: Judge, make it 48 hours, if

possible.

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THE COURT: All right. 48 hours.

Anything else we need to do today?

MR. DeMAY: Not from Respondent, Your Honor.

THE COURT: All right. Good luck.


MR. DeMAY: Thank you, Your Honor.


You did speak to your client, because he was

expecting we were going to call him?

MR. HOLWELL: Yes, I spoke to him in the

hallway, Your Honor.

THE COURT: Okay.

oOo





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