Court Procedings

1
SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ROCKLAND
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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.
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Trial - Day#1
October 8, 2015
Rockland County Courthouse
1 South Main Street
New City, New York 10956
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1 1
B E F O R E:
HON. VICTOR J. ALFIERI

Acting Supreme Court Judge
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A P P E A R A N C E S:
BETH B. FINKELSTEIN, PC
Attorney for Petitioner
107 North Main Street
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ALSO BY: FEERICK, LYNCH & MacCARTNEY, PC

Attorneys for Petitioner
96 South Broadway
South Nyack, New York 10960
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BY:
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DENNIS LYNCH, ESQ.

HOLWELL, SHUSTER & GOLDBERG, LLP
Attorneys for Defendant
125 Broad Street, 39th Floor
New York, New York 10004
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2 2
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BY:
BY:
BRENDON DeMAY, ESQ.

RICHARD HOLWELL, ESQ.
REPORTED BY:
AMBER MALKIE FINER, R.P.R.

Senior Court Reporter
Schonberger v Hellman
1
THE COURT:
This is Schonberger versus Hellman Memorial et
On the record.
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,
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South Nyack, New York 10960, co-counsel to my
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esteemed counsel here, Beth Finkelstein.
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MR. DeMAY:
Good afternoon, Your Honor.
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Brandon DeMay of Holwell, Shuster & Goldberg,
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125 Broad Street, 39th Floor, New York, New York
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10004, for the respondent Steven Mendelson.

MR. HOLWELL:
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Richard J. Holwell of Holwell,
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Shuster & Goldberg, 125 Broad Street, for the
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respondent Steven Mendelson.

THE COURT:
1 9
Do you need a Notice of Appearance
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for I -- don't think we have one for the Holwell
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firm?
2 2
MR. DeMAY:
2 3
hour or so ago.
2 4
THE COURT:
2 5
I submitted it to the clerk an
All right.
back at 2 o'clock.
We'll see everyone
MR. LYNCH:
will be here tomorrow.

(Whereupon, there is a break in the proceeding
while the Court recessed for lunch.)

THE COURT:
I will not be here at 2:00, but I
Memorial.
This is Schonberger versus Hellman
We have appearances.
Please call your first witness.
MS. FINKELSTEIN:
Sholom Sperlin.
(Whereupon, the witness Sholom Sperlin
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1 1
Your Honor, we call Rabbi
ascended the witness stand.)

THE COURT:
1 2
Good afternoon.
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1 4
1 5
SHOLOM SPERLIN, having been first duly affirmed, was

examined and testified as follows:
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COURT OFFICER:
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1 8
Have a seat.
Get comfortable
with the microphone.
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Give your name and address for the record.
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THE WITNESS:
2 1
THE COURT:
2 2
THE WITNESS:
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Sholom Sperlin.
Your address, sir?
487 New Hempstead Road, New
City.
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MS. FINKELSTEIN:
2 5
THE COURT:
Good afternoon, Rabbi.
Wait one second.
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.
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I'll have it clarified for you in some way.

Please allow the attorneys to finish asking
1 1
1 2
their question before you start making your answer.
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I'll advise them, likewise, to allow you to finish
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your answer before they ask their next question.
1 5
Okay.
Go right ahead.
1 6
MS. FINKELSTEIN:
Thank you, Your Honor.
1 7
1 8
DIRECT EXAMINATION BY MS. FINKELSTEIN:
1 9
2 0
Q.

Rabbi, can you tell us where you attended
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2 2
rabbinical school?
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A.
Morristown, New Jersey in 1972/1973.
2 4
Q.
And are you familiar with the Evergreen Court
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Residence for Adults?

1
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.
services needed.
Q.
you describe those religious services that you
Being the rabbi, performing all the religious
Now during that time period of 2004 to 2007, can
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provided to the Evergreen residents?
1 1
A.
Yes.
1 2
Every Friday night we gathered all the Jewish
1 3
people, who wanted to attend the services, for about
1 4
45 minutes.
1 5
with the ladies.
1 6
hour and a half, we used to have services.
1 7
Q.
1 8
Shabbos services Saturday morning?
1 9
A.
Shabbos and all religious holidays.
2 0
Q.
So let me first discuss.
2 1
it every Friday night that you had these services for
2 2
45 minutes?
2 3
A.
Yes.
2 4
Q.
That occurred during the entire period you were
2 5
employed there, from September of '04 to 2007?
Before that we used to light candles

And in the morning, for about an
When you say in the morning, are you referring to
So, you said it -- was

1
A.
Yes.
Q.
And did part of that service include reading from
the Torah?
A.
Torah and at night it was only from the prayer book.
Q.
home where these services took place?
A.
ark for the Torahs.
Yes.
In the morning we used to read from the
Was there a special location within the Evergreen
Yeah, there was a special room that had a Jewish

And we kept all the prayer books
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there.
And that was the room that we used to do the
1 1
service.
1 2
Q.
1 3
residents that attended these services?
1 4
A.
Yes, I used to give them out.
1 5
Q.
Now you said you performed -- we're going to go
1 6
back a little bit.
1 7
additional services, religious services you provided
1 8
to the Evergreen residents during that time period,
1 9
other than the Friday and Saturday services?
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A.
2 1
light the candles eight -- eight evenings.
2 2
to gather the people around the menorah.
2 3
them lit by themselves.
2 4
and watched.
2 5
Q.
And these prayer books were provided to those
I want to know the other
It was on Channukah - on Hannukah - we used to

We used
Some of
Some of them just observed
Now with the lighting of the candles, did you

1
include the residents in this participation in these
lightings?
A.
Yes.
Q.
How would you do so?
A.
I used to give them the candle.
light.
whoever wished to light used to light.
Q.
So they would volunteer to light the candles?
A.
Yes.
They used to
We had several menorahs, 10 or 15, and
I would ask them and they said they want to
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and they --
1 1
Q.
1 2
be any special prayer that they would recite as they
1 3
light?
1 4
A.
1 5
little song we sing afterwards.
1 6
Q.
1 7
holidays did you provide --
1 8
A.
There is Pass --
1 9
Q.
Let me just finish the question, because she
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can't report both of us at the same time and I talk
2 1
quick enough already.
And as they would light the candles would there
Yes, there's a blessing you say before and a
Now, other than the Hannukah holidays, what other
2 2
THE COURT:
2 3
MS. FINKELSTEIN:
I know, Your Honor.
apologize.
2 4
2 5
Yeah, slow down a little bit.
Q.
So other than the Hannukah holiday, what other

1
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.
we drink some grape juice.
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Q.
And we eat Matzah.
And
We --
If I just may interrupt.

The seders -- how many nights is Passover?
1 1
1 2
A.
Passover is eight days, but the seders are only
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two times, the first two nights, the first two
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evenings.
1 5
Q.
1 6
first two evenings of Passover?
1 7
A.
Yes.
1 8
Q.
And how would the residents know whether or not
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to attend?
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A.
2 1
will take place at this and this time.
2 2
fact, the seder, the whole dining room was
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participating, every single one.
2 4
Q.
2 5
offered during the course of seder, would the whole
So you would offer the seder services for the
There used to be a notification that the seder

A matter of
How about with regard to the prayers that were

1
dining room do it is or just certain members?
A.
that could read from the Haggadah.
English.
it.
Q.
holidays, religious holidays did you provide services
to the residents?
A.
Well, obviously, I used to give it to the people

We had it in
So, some of the Jewish people used to read
Now, in addition to Passover, what other
Seven weeks after Passover, there is another
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holiday.
That's when the Torah was given to us.
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That's a two-day holiday.
1 2
Q.
And what is that called, sir?
1 3
A.
Shavuot.
1 4
Q.
And what did you do for the residents of
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Evergreen?
1 6
A.
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the prayers, read the Torah.
1 8
Q.
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the residents in the reading and prayers?
2 0
A.
Yes.
2 1
Q.
Now what other holidays did you provide services
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to the residents?
2 3
A.
2 4
Jewish new year.
2 5
Q.
Basically the same that we do Saturday.
We do
And would this also involve the participation of
After that comes Rosh Hashana, which is the
And what did do for the new year?
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1
A.
Well, the main theme of the day is blowing of
shofer, but it also includes many prayers, more than
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.
down.
Yes, they would come all to the room and sit

And I used to give them the prayer books.
And
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we used to pray together nicely.
1 1
Q.
1 2
certain portions of the service they have to recite
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aloud?
1 4
A.
1 5
the service and I used to give everyone a piece to
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say.
1 7
Q.
1 8
participants read from?
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A.
Yes, from the prayer book.
2 0
Q.
And how about songs, were there any specific
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songs also recited?
2 2
A.
2 3
song, I would try to do it with a song, just to make
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the people feel more excited.
2 5
Q.
When you say you prayed together, there are
Yes.
I used to make sure to take them all into
And there were certain readings that the
Part of the prayers which would go along with a
Now on this holiday Rosh Hashana, is there a two
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1
part service or just one part?
A.
the service, and then goes the reading of the Torah
and the blowing of the shofer.
another 45 minutes, we do another prayer.
is done both days the same thing.
Q.
services to the residents?
A.
Well, there is part -- we do the this as part of
And in the afternoon,

And that
Any other holidays which you also provide
Yes.
On Yom Kippur, which is the Day of
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Atonement.
And then we -- as a matter of fact, I
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used to sleep over that night, because I did service
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at night and in the morning.
1 3
Q.
And what did that service consist of?
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A.
Basically it's prayers, because you can't eat.
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So the theme of day is just to fast and to do the
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prayers.
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Q.
How long did this fast take?
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A.
It takes 24 hours.
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Q.
And is there a special service at the conclusion
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of 24 hours?
2 1
A.
A blowing of the shofer for about 15 seconds.
2 2
Q.
Other than those holidays, are there any other
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holidays --
2 4
A.
Yes.
2 5
Q.
-- in which you provide services to the residents
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1
of Evergreen?
A.
just had last week.
little -- a little hut from wood.
the front of the building.
the people to eat something in the Succah and also to
shake the lulov.
kind of citrus lemon and you shake.
thanking God for all the good that he did for us.
Yeah.
The following holiday is Succos, which we

That is building the Succah, a
And that was in
And we used to call in
You take like a palm tree and some

It's a symbol of
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Q.
So you said you built -- it would be a succah
1 1
that was built and then they would eat in the succah?
1 2
A.
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the succah and give them to eat, especially the men.
1 4
Q.
1 5
in which you provided services to the residents?
1 6
A.
1 7
through the whole year.
1 8
Q.
Whoever wished to come in, we used to bring into
And other than that holiday, any other holidays
According to the yearly round, I just went
Now, sir, are you -- were you familiar --
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THE COURT:
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THE WITNESS:
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2 2
2 3
2 4
2 5
What about Simchat Torah?

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.
two days are -- have a different name.
The last
13

THE COURT:
Thank you.
Q.
And are there special services for Simchat Torah?
A.
Yes.
happy that we have a very special routine in our
lives.
Q.
for the residents during the holiday of Purim?
A.
Yes.
Q.
What do you do for them?
1 0
A.
On Purim we read the megillah, that's the whole
1 1
story that happened back then in Iran and the saving
1 2
of the people, Jewish people.
1 3
Q.
1 4
read together with the residents?
1 5
A.
1 6
has a prayer book and makes sure to listen to every
1 7
word.
1 8
Q.
1 9
your employment at the Evergreen, with a resident by
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the name Martin Mendelson?
2 1
A.
2 2
We take the Torah, we dance, because we're
And what about Purim, do you provide any services
When you say we -- when you say we, would you
No, that's something that one reads and everyone
Now are you familiar -- were you familiar, during
Yes.
MS. FINKELSTEIN:
I'm just going to ask that
2 3
following four by six photograph be marked for
2 4
identification, I guess, as 1.
2 5
THE COURT:
Number 1.
14

MS. FINKELSTEIN:
I have provided copies.
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:
MS. FINKELSTEIN:
Show the witness?

With the Court's permission,
yes.
(Whereupon, the witness looked at a
1 0
photograph.)
1 1
1 2
Q.
Rabbi, do you recognize the individual that's
1 3
depicted in that photograph.
1 4
A.
One hundred percent.
1 5
Q.
Who do you recognize that to be?
1 6
A.
Mr. Mendelson, Martin Mendelson.
1 7
Q.
And how do you recognize Martin Mendelson?
1 8
do you know him?
1 9
A.
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remember exactly where he used to sit, in the back of
2 1
the shul, towards the back, a few rows behind.
2 2
Q.
2 3
that you offer on Friday nights?
2 4
A.
Yes.
2 5
Q.
Okay.
How
He used to come Friday night to the services.
And so he would attend that 45-minute service
What about that service you offer, which
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1
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
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would you see him utilizing that?
1 1
A.
1 2
tell him read a piece on the English side.
1 3
Q.
1 4
holidays in which you provided services to the
1 5
residents of Evergreen.
Yes, he used to read from the English.
I used to
Now you recited -- you testified as to many
Did Mr. Mendelson, the individual depicted in
1 6
1 7
that photo, did he attend all the services?
1 8
A.
Yes.
THE COURT:
1 9
You indicated that he read.
And i
2 0
think you sort of implied he read a loud to the
2 1
entire congregation?
THE WITNESS:
2 2
2 3
Q.
2 4
a loud?
2 5
A.
Yes.
Could you give me an example of why he would read
So the other people can hear what he says so they
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1
also participate in that piece of the prayer.
Q.
identified as Martin Mendelson, that's how he
appeared when you provided services to him in 2004 to
2007?
A.
room.
he had a little bit difficulty with his foot.
remember always he used to walk in.
1 0
And the individual who's depicted, that you
Yes.
He used to come down, you know, from his
And he used to walk a little slower, because
He used to sit
down in his place, by himself over there.

THE COURT:
1 1
Was the book that he read from in
English or --
1 2
MR. DeMAY:
1 3
We had both sides.
1 4
English, one is Hebrew.
1 5
only read on the English side.

Q.
1 7
Hebrew portion or the English portion?
1 8
A.
2 0
2 1
2 2
One is
So, most of the people
1 6
1 9
And, Mr. Mendelson, do you recall if he read the
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.
2 3
MR. DeMAY:
No objection, Your Honor.
2 4
THE COURT:
Okay.
2 5
(Whereupon, Plaintiff's Exhibit 1, previously
Mark that as 1 in evidence.
17

1
marked for identification, was moved into
evidence.)
Q.
So, let me start with the Hannukah holiday.
indicated that you provided for eight nights you
would light the candles.
You
Would Mr. Martin Mendelson, who was identified
in the photograph, would he participate in this?
A.
candle.
Yes, he used to light.
I used to give him a
He used to light one of the menorahs.
1 0
Q.
And when he would light one of the menorahs,
1 1
would he recite anything?
1 2
A.
1 3
to say that.
1 4
Q.
1 5
Hannukah?
1 6
A.
Yes.
1 7
Q.
So that would have been he lit the eight nights
1 8
of Hannukah for the three years while you were there?
1 9
A.
Yes.
2 0
Q.
Now with regard to Passover, did Mr. Mendelson
2 1
participate in your Passover services and seder?
2 2
A.
2 3
included.
2 4
Q.
2 5
seder, if you recall?
Yes, in English, there was a prayer and he used
Would he do that for the eight nights of
Yes, he would, with the whole dining room and him
And what role would he play in the Passover
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1
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?
1 0
A.
Yes, I never forced anyone to come.
1 1
Q.
And was there a special meal for the Passover?
1 2
A.
Yes, it was the regular supper, but we had some
1 3
Matzah and some grape juice and another few little --
1 4
the seder plate it's called.
1 5
they would -THE COURT:
1 6
Some bitter herbs that
I have a question for
1 7
clarification.
I think the attorney meant whether
1 8
it was voluntary; in other words, did he recite the
1 9
prayer voluntary or did he have to be called on,
2 0
something they do in order?

THE WITNESS:
2 1
Well, I used to give a piece of
2 2
prayer to each person who wanted to say.
2 3
I came to him, he was more than glad to say it.

THE COURT:
2 4
2 5
Q.
And when
Thank you.
Now for each of the other holidays, for Rosh
19

1
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.
were more than glad to listen to the shofer.
walked away.
did service, we used to distribute the pieces to the
That I had to do.
But they
No one
And it's like every other time that we
1 0
people sitting in the room to say.
1 1
Q.
And did he recite the prayers?
1 2
A.
Yes.
1 3
Q.
And did he volunteer to do so?
1 4
forward to volunteer to do these prayers?
1 5
A.
1 6
they want to say something and most of the time
1 7
everyone used to take the prayer book and say it.
1 8
Q.
1 9
in the cafeteria, correct?
2 0
A.
No, not in the cafeteria.
2 1
Q.
Was that done in the synagogue?
2 2
A.
In the synagogue, yeah.
2 3
Q.
Yom Kippur, was Mr. Mendelson present for
2 4
those -- for that service as well?
2 5
A.
Did he come
Well, they knew I'm going to ask everyone did
But the Rosh Hashana holiday, that was not done
Yes.
20

1
Q.
Could you tell me how that differed the time of
the Yom Kippur service?
A.
11:30 or a quarter to 12.
number of hours.
about 5:00 to 7:00.
Q.
services, Mr. Mendelson?
A.
Well, we used to start about 9:30 until about

Then we had a break for a
And then I came back about from
And would he been present at both of those
Yes, because in the evening we blow the shofer,
1 0
so he liked to participate and hear that.
1 1
Q.
1 2
indicated, Succot and Simchat Torah, was
1 3
Mr. Mendelson present for all of those services as
1 4
well.
1 5
A.
1 6
anything doing, he looked -- it seemed like he looked
1 7
forward to come.
1 8
Q.
1 9
services?
2 0
A.
Yes.
2 1
Q.
Did you participate in any other activities or
2 2
events at the home, other than religion services?
2 3
A.
Not that I recall.
2 4
Q.
Now, did you have any conversation with Martin
2 5
outside of the service through these years?
Now all the other holidays in which you've
Yes, he always used to come.
Whenever there was
When you say anything doing, you mean religious
21

1
A.
Well, sometimes after people had left and there
was finished, he would come over, ask certain things
about Torah, about God, about Moses and something to
do with the holiday that was that holiday, whatever
it was.
to listen what I said.
that was basically it.
Q.
the residents?
He would ask me and he would like very much

And that was basically --
During your services, did you provide a sermon to
1 0
A.
Yes.
1 1
Q.
Which was significant to the --
1 2
A.
Yeah, to the day of the reading of the portion of
1 3
that -- of that day.
1 4
portion that we read in the Torah, so I would talk a
1 5
little bit about that.
1 6
Q.
1 7
your sermon of the Torah portion for that day?
1 8
A.
1 9
the saying of the sermon.
2 0
were finished and people used to basically leave to
2 1
lunch or whatever, sometimes he used to hang around
2 2
and like to ask me certain things and talk.
2 3
Q.
2 4
to talk with you?
2 5
A.
Every Saturday it's a different
And would Martin ask you questions with regard to
Yes, but not during the reading of the sermon,

A little later on when we
So he actually stayed after the services was done
Yes.
Not every time, but many times.
22

1
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.
able to help him.
Q.
What do you mean medically you have nothing --
A.
It was no point.
Basically, because medically I had nothing to be
He had no point in asking me
1 0
anything about medical or other kind of questions
1 1
nothing that directly with religion.
1 2
Q.
And do you recall Martin's roommate?
1 3
A.
Yes, Mr. Lerner.

MS. FINKELSTEIN:
1 4
I just ask the following
1 5
photograph be marked for identification as
1 6
Plaintiff's 2.
1 7
THE COURT:
Okay.
1 8
(Whereupon, a photograph was marked

1 9
2 0
COURT OFFICER:
2 1
MS. FINKELSTEIN:
2 2
Q.
2 for ID.
Show the witness?
Please.
Rabbi, do you recognize that photograph?

2 3
photograph.)
2 4
2 5
Number 2.
A.
Yes, this person is right now with us in our
23

1
nursing home where I work now.
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.
1 0
Q.
I see him every day
And is Mr -- actually, withdrawn.

Do you know how long, that you know of, that
1 1
1 2
they were roommates, Mr. Mendelson and Mr. Lerner?
1 3
A.
1 4
and a half.
1 5
Q.
1 6
a half when you left, correct?
1 7
A.
Yes.
1 8
Q.
So were you aware of how long they stayed
1 9
roommates after you left?
2 0
A.
No, I wouldn't know that.
2 1
Q.
And would you describe Mr. Lerner as a religious
2 2
man?
2 3
A.
2 4
put together, because they had something in common.
2 5
Q.
At least a year.
At least a year, maybe a year
And that was prior to your departure, a year and
Very religious man.
I think that's why they were
You indicated you prayed with Mr. Lerner today --
24

1
or not specifically today, but --
A.
a few minutes and we do some prayers.
No, every day.
I'm up in his room every day for
MS. FINKELSTEIN:
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.
1 0
1 1
1 2
1 3
evidence.)
1 4
THE COURT OFFICER:
1 5
MS. FINKELSTEIN:
2 in evidence.
You can hand it back to the
witness.
1 6
1 7
Q.
Would Mr. Lerner and Mr. Mendelson come to
1 8
services together while they were --
1 9
A.
2 0
Mr. Lerner was much healthier.
2 1
quicker.
2 2
Q.
2 3
Mr. Mendelson for those several years, do you have
2 4
any opinion of how Mr. Mendelson would want to be
2 5
buried?
Yes.
They didn't walk down together because

He could walk
He used to come separately.
Rabbi, based upon your conversations with
25
Cross - Sperlin - DeMay

MR. DeMAY:
Objection, Your Honor.
Calls for
speculation.
THE COURT:
Sustained.
One second, please.
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
1 0
those years in which you were at Evergreen?
1 1
A.
1 2
or not.
1 3
though they're strictly religious.
1 4
from the nursing home I work now, that the doctors do
1 5
not allow older patients to fast on that day, because
1 6
they can jeopardize their health.
1 7
Q.
1 8
were there?
1 9
A.
2 0
2 1
2 2
Medically, I had no say if he's allowed to fast

Some people are not allowed to fast even
Are you aware if Mr. Mendelson fasted while you
I wouldn't know that.

MS. FINKELSTEIN:
I have nothing further.
Thank you, Rabbi.

THE COURT:
Mr. DeMay.
2 3
2 4
2 5
And I know that
CROSS-EXAMINATION BY MR. DEMAY:
26

1
Q.

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
1 0
Shabbos?
1 1
A.
Yes.
1 2
Q.
And they also participate in Jewish holidays,
1 3
correct?
1 4
A.
Yes.
1 5
Q.
And reform Jews light Hannukah candles; is that
1 6
right?
1 7
A.
1 8
Yes.
THE COURT:
Okay.
I got to ask you a
1 9
question, goyim over here.
2 0
What is a reform Jew?
2 1
THE WITNESS:
Reform Jews are people who --
2 2
who reformed certain laws that were given by Moses
2 3
orally.
2 4
that Orthodox Jewish people do, doesn't have to be
2 5
done that way.
Therefore, they feel that certain things
It can be done differently.
27

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
1 0
didn't qualify him as a witnesses with regard to
1 1
Judaic law.
1 2
THE COURT:
He's a rabbi.
1 3
MS. FINKELSTEIN:
He is a rabbi, but all
1 4
different rabbis are equipped to testify with
1 5
regard to different scholarly experience as opposed
1 6
to others.
THE COURT:
1 7
Well, then let me ask.
Is that
beyond your ability as a rabbi to testify to?
1 8
1 9
THE WITNESS:
2 0
THE COURT:
To a certain point.
Okay.
Next question.
2 1
Q.
Rabbi, you testified that you thought that Mr.
2 2
Lerner and Mr. Mendelson were put together because of
2 3
a shared religious belief; is that right?
2 4
A.
Very possible.
2 5
Q.
It's very possible, but you don't know?
28
1
A.
Well, if they both came every time to shul, to
the synagogue together and they were -- somehow that
group who came to shul had a certain connection, then
it's very possible they were put together because
they share something.
every week.
understand one another very well.
Q.
together, right?
They come together to shul
They participated together.
They
But no one every told you why those two were put
1 0
A.
1 1
they are both coming to shul and they're friendly.
1 2
They were very friendly.
1 3
in the same table in the dining room as well, so I
1 4
think that was the connection.
1 5
Q.
1 6
requested to live in a single room?
A.
Objection.
That I wouldn't know.

THE COURT:
1 9
They used to sit, I think,
Isn't it true that in fact Mr. Mendelson
MS. FINKELSTEIN:
1 7
1 8
Well, I never asked, but I assumed that because
Overruled.
If you know.
You
don't know?
2 0
2 1
THE WITNESS:
2 2
THE COURT:
I wouldn't know that.

Okay.
2 3
Q.
And, Rabbi, ever since you left Evergreen Court
2 4
you would have no way of knowing Mr. Mendelson's --
2 5
whether Mr. Mendelson's religious views or practices
29
Direct - Ullman - Finkelstein

1
evolved or changed in any way, right?
A.
Right.
MR. DeMAY:
Thank you, sir.
THE COURT:
Any further questions?
MS. FINKELSTEIN:
THE COURT:
THE WITNESS:
(Whereupon, the witness Sholom Sperlin
1 0
No.
You may step down, sir.

Thank you.
descended from the witness stand.)

MS. FINKELSTEIN:
Judge, may I just see which
1 1
witnesses have arrived since I called Rabbi
1 2
Sperlin, just to make sure.
1 3
THE COURT:
1 4
MS. FINKELSTEIN:
1 5
1 6
1 7
1 8
1 9
Go ahead.
I just want to check the
witnesses.
(Whereupon, there was a break in the
proceedings.)
MS. FINKELSTEIN:
We call Yitzy -- Yitzchak
Ullman, excuse me.
2 0
2 1
2 2
YITZCHAK ULLMAN, having been first duly affirmed, was

2 3
THE COURT OFFICER:
2 4
address for the record.
2 5
THE WITNESS:
State your name and
Yitzchok Ullman, 1 Ribier Court,
30

Monsey, New York 10952.
THE COURT:
Sir, keep your voice up so
everyone can hear you.
microphone.
Stay close to the
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'll advise you.
1 0
that and I'll have it rephrased, read back or
1 1
otherwise clarified for you.

Allow the attorney to finish asking their
1 2
question before you make your answer.
1 3
1 4
THE WITNESS:
1 5
THE COURT:
1 6
MS. FINKELSTEIN:
Okay?
Okay.
All right.
Go right ahead.
Thank you.
1 7
1 8
1 9
2 0
Q.
Mr. Ullman, are you familiar with the Evergreen
2 1
Court retirement residence?
2 2
A.
Yes.
2 3
Q.
And what is your familiarity with it?
2 4
A.
I was administrator there for a few years.
2 5
Q.
What years was that, Mr. Ullman?
31

1
A.
If I recall correctly, it was about 2001 to the
end of 2005/2006.
Q.
your responsibilities be as an administrator?
A.
sure residents are happy, screen them before they
come in and make sure everyone's needs are met.
Q.
And you said you were administrator.
What would
To oversee the operations of the facility, make
And what part of your -THE COURT:
1 0
THE WITNESS:
1 1
THE COURT:
1 2
THE WITNESS:
Did you say you screen them?

Correct.
What does that mean?
Before someone moves in, we
1 3
screen them to make sure they're appropriate for
1 4
the place.
1 5
Q.
What does that mean to be appropriate for the
1 6
place?
1 7
A.
1 8
facilities that are needed for them.
1 9
Q.
Are you a nursing home?
2 0
A.
No.
2 1
Q.
Do you provide medical care to residents?
2 2
A.
No.
2 3
Q.
So when you say meet the needs, it's a home for
2 4
adults?
2 5
A.
That we can meet their needs, that we have
Correct.
32

1
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.
2004.
individual called Martin Mendelson, by the name of?
A.
Yes.
Q.
And how did you first meet Martin Mendelson?
1 0
A.
He came over from, I believe it was -- the King
1 1
David shut down.
1 2
believe, or his friend.
1 3
Q.
Are you familiar with the King David Manor?
1 4
A.
Not really.
1 5
Q.
And who are the owners of the Evergreen Court
1 6
residence?
1 7
A.
The Schonberger family.
1 8
Q.
And do you know who the owners of the King David
1 9
Manor were?
2 0
A.
I believe it was the Schonberger family as well.
2 1
Q.
So Mr. Mendelson came to be screened at your
2 2
facility?
2 3
A.
Correct.
2 4
Q.
And do you know, where did that meeting occur?
2 5
A.
In the case manager's office.
Now, I'm going to draw your attention to
Did you have an opportunity to meet with an
He came over with his roommate, I
33

1
Q.
And who, if any -- who else was present, if you
recall?
A.
don't remember.
Might have been one of the Schonbergers, but I
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
1 0
counsel.
And I do have the original here, but the
1 1
original I would ask to go back to the files
1 2
because of health department reasons.
1 3
Court wants to examine it, I give the opportunity
1 4
to counsel as well.
THE COURT:
1 5
But if the
Let the witness take a look at it.
1 6
If it's an exact copy of the original then that
1 7
will be fine.
So, you can mark this.
1 8
1 9
2 0
2 1
This is will be Number
3.
Can we make this an exhibit directly into
evidence?
2 2
MR. DeMAY:
No objection.
2 3
THE COURT:
Okay.
2 4
MS. FINKELSTEIN:
2 5
Your Honor, I have a copy
for you to look on at the same time.
34

1
THE COURT:
I actually have a copy.
MS. FINKELSTEIN:
(Whereupon, a nursing home agreement was
Okay.
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
1 0
you.
1 1
1 2
Q.
Are they an exact duplicate of the original, sir?
1 3
A.
They look like it.
1 4
Q.
Does your handwriting appear on that document?
1 5
A.
Yes.
In other words, it's a sloppy handwriting.
MS. FINKELSTEIN:
1 6
objection.
1 7
I'm sorry.
There was no
It's in evidence, correct?
1 8
COURT OFFICER:
1 9
MS. FINKELSTEIN:
In evidence.
You don't mind if I take
2 0
back the original and we don't confuse them and
2 1
we'll use the copy.
2 2
Q.
Sir, if you can just go through the screening
2 3
process and how this admission contract was
2 4
introduced to Mr. Mendelson when you met with him?
2 5
A.
Okay.
Usually when we -- always whenever a new
35

1
admission comes in, we go over paragraph by paragraph
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.
by item.
Health.
Q.
process, is there any medical documentation that you
would need from the potential resident to know that
We explain item
It's a regulation of the Department of
And when you say there's a part of a screening
1 0
they're appropriate for your level of services in
1 1
your home?
1 2
A.
Yes.
1 3
Q.
Is that called a DSS 3122?
1 4
A.
Correct.
1 5
MS. FINKELSTEIN:
1 6
the following DSS 3122, dated June 17th, 2004, be
1 7
marked for identification as Plaintiff's 4.
1 8
Once again, there is an original.
1 9
THE COURT:
2 0
DeMay.
2 1
evidence.
2 2
2 3
Why don't you show it to Mr.
Maybe we can mark it directly into
MS. FINKELSTEIN:
I have provided one
previously.
2 4
THE COURT:
Can we mark that directly into
2 5
evidence on consent?
36

1
MR. DeMAY:
MS. FINKELSTEIN:
(Whereupon, a Form DSS 3122 was marked
Plaintiff's Exhibit 4 directly no evidence.

THE COURT OFFICER:
Thank you.
4 in evidence.
Show to
witness?
MS. FINKELSTEIN:
Please.
Q.
Mr. Ullman, do you recognize 4 in evidence?
1 0
A.
I recognize this type of form.
1 1
Q.
And is that the DSS 3122 which we discussed that
1 2
you get when an individual enters your premises?
1 3
A.
Yes.
1 4
Q.
And do you know the name of this DSS 3122, who it
1 5
belongs to?
1 6
A.
Martin Mendelson.
1 7
Q.
Is that the same individual who you are speaking
1 8
with upon the admission on June 17, 2004?
1 9
A.
Yes.
2 0
Q.
And could you tell me what this document provides
2 1
you with?
2 2
A.
2 3
condition.
2 4
Q.
2 5
deficiencies?
Just a basic synopsis of the resident's medical
And did Mr. Mendelson have any cognitive
37

1
A.
I'm not a psychiatrist or psychologist, but none
that appeared to me.
THE COURT:
THE WITNESS:
Q.
him, your entry?
According to the form?

One seconds.
According to the form and your interview with
A.
No.
Q.
Specifically, there's a section on the form which
1 0
states in your opinion, the opinion of the medical
1 1
professional who signed it, is the individual's needs
1 2
met by the support services available in an adult
1 3
care facility.
Do you see that on the second page?
1 4
1 5
A.
Yes.
1 6
Q.
So if someone who had cognitive dysfunction, your
1 7
facility would not necessarily be an appropriate
1 8
facility for such an individual?
1 9
A.
2 0
would state on that form stable to live in such a
2 1
facility or not.
2 2
Q.
That was not the case here?
2 3
A.
Correct.
2 4
Q.
Do you recall how long you met with Mr. Mendelson
2 5
or how long this admissions screening process took?
No.
It would mean it needs another form that it
38

1
A.
Not to him per se.
An admission process usually
could take over an hour.
Q.
into evidence, the agreement, as Petitioner's 3.
you can look at that document.
page, if you don't mind.
Now, if you look at what's been already marked

If
If you can go page by
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?
1 0
A.
That would be me.
1 1
Q.
That's your handwriting?
1 2
A.
Yes.
1 3
Q.
Now, you would read together with or to
1 4
Mr. Mendelson each of the provisions, the six
1 5
provisions under the first section and eight under
1 6
the following section?
1 7
A.
Yes.
1 8
Q.
And if he had any questions, would you explain to
1 9
Mr. Mendelson?
2 0
A.
Yes.
2 1
Q.
Now if you turn to the second page, which the top
2 2
indicates financial agreement.

Do you see that, sir?
2 3
2 4
A.
Yes.
2 5
Q.
Now, there's a monthly rate.
What is that?
39

1
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.
another month to prorate them based on the week.
Q.
$1,600 a month when he entered in 2004?
Usually that would be for someone if they come
So, the financial obligation of Mr. Mendelson was
1 0
A.
That would be the monthly rate, correct.
1 1
Q.
Now, if you look at the bottom, it talks about
1 2
supplemental services?
1 3
A.
Correct.
1 4
Q.
Do you know if Mr. Mendelson was an SSI
1 5
recipient?
1 6
A.
1 7
the rate that he was charged, he was not as well.
1 8
Q.
1 9
mind, to the fifth page of the agreement, which the
2 0
top indicates supplemental services and supplies.
Based on the paperwork, he was not.
And based on
And I'm just going to forward you, if you don't
Do you see that, sir?
2 1
2 2
A.
Yes.
2 3
Q.
What are the services that are offered at the top
2 4
of the page?
2 5
A.
Dry cleaning, hair grooming, personal toilet
40

1
articles, extraordinary activity supplies and special
cultural events.
Q.
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
So evergreen would offer these to all the
1 0
is?
1 1
A.
1 2
they wouldn't have to pay for transportation.
1 3
that he wasn't on Medicaid we were offering the
1 4
services that we provide, which would be, you know,
1 5
scheduled recreation we would not charge for
1 6
transportation or to services.
1 7
Q.
1 8
which would typically have a charge, but you were not
1 9
charging him?
2 0
A.
Correct.
2 1
Q.
Now if you look to the next category, Observance
2 2
of Religious Holidays, can you explain what that
2 3
section is?
2 4
A.
2 5
those that wanted.
That's more for people that are on Medicaid that

Being
So you were giving transportation, other things,
Okay.
That was a section that we offered for

It was an extra service.
We
41

1
charged $75 for like Rosh Hashana meals, Yom Kippur
meals, for services for Passover.
Q.
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
I'm going to break it down because there's two
1 0
mean, sir?
1 1
A.
1 2
special fast breaking thing?
1 3
Q.
Correct.
1 4
A.
That was for Yom Kippur, because dinner was a set
1 5
time.
1 6
set time.
1 7
which was usually later.
1 8
keep it warm and have a waiter on hand so they could
1 9
serve a meal later than the usual 5 o'clock.
2 0
Q.
2 1
officiated by cantor.
Okay.
I'm sorry.
Your question is about the
Every day breakfast lunching and dinner had a

Yom Kippur, you have to wait for sunset,
So, we would hold a meal,
And before that it also says special dinners
Was it a cantor or a rabbi?
2 2
2 3
A.
Correct.
2 4
Q.
And that was for both Rosh Hashana and Yom
2 5
Kippur, correct?
42

1
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 to
exercise that option?
A.
I don't remember on that specific time, but I do
1 0
know that he, Mr. Martin made his wishes very well
1 1
known.
1 2
throughout the year, that I paid that $75.00.
1 3
to come to those meals.
1 4
Q.
1 5
may not have had with Mr. Mendelson.
And he would run after me, don't forget,
Okay.
I want
We'll get to the conversations you may or
But is this your handwriting or
1 6
1 7
Mr. Mendelson's which indicates $75 next to Rosh
1 8
Hashana and Yom Kippur?
1 9
A.
Looks like mine.
2 0
Q.
So if Mr. Mendelson did not want those services,
2 1
would you have indicated $75?
2 2
A.
2 3
whole observance part.
2 4
Q.
2 5
Mr. Mendelson, are you aware that he wanted that
We used to put a slash through the whole -- the
So, and based upon your recollection of
43

1
special observance of religious holidays?
A.
Yes.
Q.
Now, the second section indicates two seders
officiated by a cantor, special meals for eight days
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
1 0
Passover, correct?
1 1
A.
Correct.
1 2
Q.
And those are special meals?
1 3
A.
Yes.
1 4
Q.
And those are also officiated by a cantor or
1 5
Rabbi?
1 6
A.
Correct.
1 7
Q.
And did Mr. Mendelson indicate to you he wanted
1 8
to pay for that service as well?
1 9
A.
At the time of the agreement, yes.
2 0
Q.
Now, what's the date of this agreement, sir?
2 1
A.
June 17th, 2004.
2 2
Q.
And beneath this, under the supplemental services
2 3
and supplies, including the observance of religious
2 4
holidays, did Mr. Mendelson sign this document?
2 5
A.
That's what it looks like.
44

1
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,
1 0
just because at the time of the agreement they
1 1
don't -- I can't remember every conversation that I
1 2
had.
But mr. Martin used to come by.
1 3
I would walk
1 4
through the dining room and walk through -- and go
1 5
visit everyone in the rooms.
1 6
or 15 times a year every, almost every time I would
1 7
see him, he would scream out don't forget about the
1 8
$75 I'm paying.
1 9
to the High Holy Days or to the seder.
2 0
Q.
And what would you tell Mr. Mendelson?
2 1
A.
Same answer I tell everyone, sure, of course.
2 2
Q.
Were you at the Evergreen home when Chaim Lerner
2 3
left the home, if you recall?
2 4
A.
2 5
And I think probably 10
I want to come to the -- you know,
I don't think so.

MS. FINKELSTEIN:
I ask the following document
45

1
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.
back.
I just ask for the original
THE COURT:
(Whereupon, Form DSS 2949 was marked
You can mark that as 5.
Okay.
Q.
I ask you to take those two documents.
One has
1 0
been marked as Petitioner's 5.
1 1
them to one another and let me know if they're an
1 2
exact duplicate of one another?

THE COURT:
1 3
First, identify that.
exactly is that?
1 4
If you can compare
What
What is that form?
1 5
1 6
A.
That is a personal data sheet which is used upon
1 7
admission, which gives the basic information about
1 8
the family or things like that.

THE COURT:
1 9
particular person?
2 0
2 1
THE WITNESS:
2 2
THE COURT:
Everybody needs one.

Well, in this case, who is that
form related to?
2 3
MR. DeMAY:
2 4
2 5
Is that with regard to any
Q.
Martin Mendelson.
Is that a Department of Social Services form
46

1
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?
1 0
A.
Yes.
1 1
Q.
The item that's been marked for identification as
1 2
Exhibit 5, is that an exact duplicate of the
1 3
original, sir?
1 4
A.
Yes.
1 5
Q.
Is this part of the information that you received
1 6
from Mr. Mendelson during the screening process and
1 7
entry into the Evergreen Court?
1 8
A.
I don't remember.
1 9
Q.
Was this part of the file maintained at the
2 0
Evergreen Court?
2 1
A.
2 2
heart.
2 3
Q.
2 4
document?
2 5
A.
It should be.
I don't remember the file by
Does your handwriting appear anywhere on this
No.
47

1
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.
MS. FINKELSTEIN:
Petitioner's 5 for identification into evidence.
MR. DeMAY:
THE COURT:
Okay.
Mark it 5.
1 0
1 1
evidence.)
THE COURT OFFICER:
1 2
Do you want this back to
the witness?
1 3
1 4
MS. FINKELSTEIN:
Please.
1 5
1 6
Q.
Mr. Ullman, if you can take a look at what's been
1 7
mark into evidence as Exhibit 5.
1 8
page it indicates a religion, correct?
1 9
A.
Yes.
2 0
Q.
And where does the individual who is doing the
2 1
intake of this get that information from?
2 2
A.
Usually be from the resident.
2 3
Q.
And what religion is indicated on the personal
2 4
data form of Martin Mendelson?
2 5
A.
Jewish.
At the top of the
48

MR. DeMAY:
The
witness has testified he doesn't know anything
about the document.

MS. FINKELSTEIN:
There's no objection.
document is in evidence.
document in evidence, Your Honor.
The
He's reading from a
The time would be have been prior to object.
THE COURT:
The objection is overruled.
Q.
It indicates under religion, Jewish?
1 0
A.
Yes.
1 1
1 2
MS. FINKELSTEIN:
Judge.
I think I might be done,
If I may look at my notes for one moment?
1 3
THE COURT:
1 4
(Whereupon, there was a pause in the
1 5
Take a look.
Go ahead.
proceedings.)
1 6
MS. FINKELSTEIN:
1 7
have nothing further.
I have nothing.
Actually, I
1 8
THE COURT:
Okay.
1 9
MR. DeMAY:
No questions, Your Honor.
2 0
THE COURT:
Okay, sir.
2 1
THE WITNESS:
2 2
(Whereupon, the witness Yitzchak Ullman
2 3
2 4
2 5
Mr. DeMay.
You may step down.
Thank you.

MS. FINKELSTEIN:
If I may, Your Honor, just
check if my other witness arrived?
49
Direct - Baruch - Finkelstein

1
THE COURT:
Yes.
proceedings.)
MS. FINKELSTEIN:
The next witness will be
Rabbi Mordechai Baruch.

(Whereupon, Mordechai Baruch ascended the
witness stand.)
1 0
MORDECHAI BARUCH, having been first duly affirmed,

was examined and testified as follows:
1 1
1 2
THE COURT:
1 3
Please, give your name and address for the
1 4
1 5
1 6
1 7
Okay.
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
1 8
take a break.
1 9
we'll take ten minutes.
2 0
2 1
Please, have a seat.
So, you can step down for now and
(Whereupon, the witness Mordechai Baruch

2 2
(Whereupon there was a brief recess held.)
2 3
(Whereupon, the witness Mordechai Berkell
2 4
2 5

THE COURT:
Sir, stay close to the microphone
50

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
that.

Allow the attorneys to finish asking their
question before you start your answer.
1 0
1 1
THE WITNESS:
1 2
THE COURT:
1 3
MS. FINKELSTEIN:
Okay?
Okay.
Go right ahead.
1 4
1 5
1 6
1 7
Q.
1 8
A.
Good afternoon.
1 9
Q.
Could you please tell me where you attended
2 0
rabbinical school?
2 1
A.
In France.
2 2
Q.
What year was that, if you recall?
2 3
way.
2 4
A.
About 37 years.
2 5
Q.
And are you familiar with the Evergreen Court
In Paris, France.
Let's go this
How long have you been practicing as a rabbi?
51

1
Retirement Residence?
A.
Yes.
Q.
What, if any, affiliation or involvement do you
have with the Evergreen Court retirement residence?
A.
holiday.
And also I bring the lulov and esrog that they should
be able to shake it.
Q.
Is this something you voluntarily do?
1 0
A.
Yes.
1 1
Q.
Do you get compensated for your services?
1 2
A.
No, I'm not.
1 3
Q.
Rabbi, how long have you been offering this for
1 4
the residence of the Evergreen Court?
1 5
A.
About ten years.
1 6
Q.
And you said you go there twice a year?
1 7
A.
Yes -- I mean, two times on Rosh Hashana, on the
1 8
new year, both days and then two times on the first
1 9
days of the Succos holiday.
2 0
Q.
2 1
You go -- where do you go within the home?
2 2
A.
2 3
by the desk there is usually a lady.
2 4
name is Nicole.
2 5
I'm coming to blow the horn.
I go there on the New Year and on Succos, the

And I blow the horn there for the tenants.
And specifically let's talk about Rosh Hashana.
Well, as soon as I walk in there is a desk.
And
I think her
And as soon as she sees me she knows

So, she gets all the --
52

1
all the people that want to hear the horn.
And then
I explain them the significance of the blowing the
horn.
Q.
horn?
A.
blow the horn on the new year to celebrate the new
year and making God a king over -- over all the --
all the nations.
What is the significance, Rabbi, of blowing the
Well, it says in the bible that we supposed to
1 0
Q.
And you said you've been going there for ten
1 1
years doing this service?
1 2
A.
Yes, about.
1 3
Q.
And on Rosh Hashana it's for once a day for two
1 4
days?
1 5
A.
Yes.
1 6
Q.
And on Succot what exactly do you do for them?
1 7
A.
I bring the lulov.
1 8
of plants.
1 9
blessing.
2 0
that shows the unity that there is among all the
2 1
different type of Jews and people.
2 2
Q.
2 3
residents because you've been going there ten years?
2 4
A.
2 5
life, but I can tell you if they're involved or
It's four different species
I put them together.
And they make a
And that shows -- I explain to them that
Now would you become familiar with some of the
Yes.
Yes.
I mean, I can't tell you private
53

1
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.
1 0
Q.
And who is that, sir?
1 1
A.
That was -- that was one of the tenants there.
1 2
Q.
And how long have you known this individual in
1 3
the photograph?
1 4
A.
1 5
was always there.
1 6
Q.
1 7
Evergreen Court retirement residence you've seen the
1 8
individual in that photograph?
1 9
A.
Yes.
2 0
Q.
And would he come on the two days you blow the
2 1
shofer for Rosh Hashana?
2 2
A.
Yes.
2 3
Q.
And would he also come on Succot?
2 4
A.
Yes.
2 5
Q.
Now Succot, how did you conduct that, I guess,
Well, as long as I've been there.
I believe he
So for the ten years you've been going to the
54

1
service or that -- I guess, service?
A.
that's Nicole.
tell them that the rabbi is here.
Well, the desk -- the lady by the desk, I think

She would call the tenants there and
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.
like about five o'clock and everyone wanted to bless
the lulov.
It was
1 0
Q.
So you asked people who wanted to be blessed?
1 1
A.
Yes -- no, they had to bless.
1 2
Q.
I apologize.
1 3
forward, anyone who wanted to bless?
1 4
A.
1 5
lulov.
1 6
Q.
1 7
forward from his meal --
1 8
A.
Yes.
1 9
Q.
-- to bless?
2 0
A.
Not only that, he was very happy and after the --
2 1
on Rosh Hashana this past year, a few years ago, he
2 2
even blessed me and told me Happy New Year and thank
2 3
you very much for coming.
2 4
Q.
2 5
of this year?
Yes.
You asked the residents to come
That was for the Succot holiday, for the
The individual in that photograph, did he come
Let's talk about that.
That was September 15th
55

1
A.
Yeah, four weeks ago.

MS. FINKELSTEIN:
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.)
1 0
1 1
COURT OFFICER:
Show the witness?
1 2
MS. FINKELSTEIN:
1 3
(Whereupon, the witness looked at
Yes.
photographs.)
1 4
1 5
COURT OFFICER:
1 6
THE COURT:
6, 7 and 8 for ID.
Sir, if you are asked questions
1 7
about any one of photographs individually, please
1 8
refer to them by their exhibit number, which I
1 9
suppose is on the back -- on the front.
2 0
number.
It has a
Just refer to them by the number or it.
2 1
Q.
Rabbi, I'm just going to ask you to take a look
2 2
at each of those photographs.

First, have you had an opportunity to look at
2 3
2 4
them?
2 5
A.
Yes.
56

1
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.
the blessing.
to blow in the siddur, in the book.
Q.
And is part of you depicted in that photograph?
1 0
A.
Yes.
1 1
Q.
What part?
1 2
A.
Shofer part.
1 3
Q.
Are you being blocked by the column there --
1 4
A.
Yes.
1 5
Q.
-- on the right-hand side?
Here is my wife, next to me, showing me
Okay.
1 6
Showing -- I'm sorry.
Showing me what
Now, I'm going to ask you to take a
1 7
look at photographs 7.
Do you recognize that
1 8
photograph?
1 9
A.
Sure.
2 0
Q.
What do you recognize that to be a photograph of?
2 1
A.
Of myself and the tenants and my wife next to me.
2 2
Q.
Now, I ask you the same questions for photograph
2 3
8.
Do you recognize that?
2 4
A.
Yes.
2 5
Q.
What do you recognize that to be?
57

1
A.
waiting by the desk that she should get all the
tenants together.
Q.
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?
1 0
1 1
A.
That's most probably when I just came in.
I'm
Do these photographs fairly and accurately depict
Yes, correct.
MS. FINKELSTEIN:
1 2
Exhibits 6 through 8 for identification into
1 3
evidence.
1 4
MR. DeMAY:
1 5
THE COURT:
Did he identify Number 8?
1 6
MS. FINKELSTEIN:
Yes.
He said that's when he
1 7
was at the desk, Your Honor.
1 8
paragraph there's a desk, when he first ended.
1 9
2 0
2 1
THE COURT:
objection.
Okay.
In the back of the
Any objection?
No
Mark them in evidence.
(Whereupon, Plaintiff's Exhibits 6, 7, and 8,
2 2
previously marked for identification, were moved
2 3
into evidence.)
2 4
THE COURT OFFICER:
2 5
MS. FINKELSTEIN:
Show the witness?

Please.
58

1
Q.
Actually, Rabbi, I'm going to draw your attention
to photograph 8 first, the one you indicated when you
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
1 0
going initially when you came in?
1 1
A.
Yes.
1 2
Q.
And then what would happen or what did happen on
1 3
September 15th after you went to the desk?
1 4
A.
1 5
either on the phone or microphone and to tell them
1 6
the rabbi is here to bless -- to blow the horn for
1 7
the blessing of the new year.
1 8
Q.
1 9
that's in all three photographs 6 through 8?
2 0
A.
2 1
hallway.
2 2
a big room.
2 3
2 4
2 5
Well, I believe Nicole called the tenants in,
And what is this room that we're looking at,
Over here, that's the hallway -- no.

That's where the television is.
No, not the

They have
The television is there.
THE COURT:
You've been saying the photographs
were taken on September 15 -THE WITNESS:
September --
59

1
THE COURT:
THE WITNESS:
-- is that correct?
On the first of the new year,
whatever --
THE COURT:
7 and 8, it's inscribed at the
bottom September 14th, correct?
THE WITNESS:
THE COURT:
Yeah.
Okay.
Q.
Was the first day of Rosh Hashana -- you're
looking at the first day of Rosh Hashana, Rabbi?
1 0
A.
Yeah.
So on the 14th and the 15th.
1 1
Q.
So you went on both days, the 14th and the 15th;
1 2
is that correct?
1 3
A.
Correct, yes.
1 4
Q.
And the same procedure was followed on each of
1 5
those occasions?
1 6
A.
Yes.
1 7
Q.
Now on the -- I'm sorry.
1 8
attention to the 14th.
1 9
A.
Okay.
2 0
Q.
On the 14th, you went to the desk and saw Nicole?
2 1
A.
I don't remember who was there, but there was a
2 2
lady there.
2 3
I'll tell you why also, because she called one by one
2 4
all the patients.
2 5
either the first day or the second day and she had
I asked them yes.
I'll draw your
I tell you yes --
She wasn't there right away,
60

1
called -- no, the first day she was there.
She
called each one by one.
few minutes after and there was another lady that
called by the -- by the --
Q.
The microphone?
A.
The microphone, right.
called each one to make sure whoever wanted to come
could come.
Q.
The second day she came a
But when she came in, she
And was the individual who is depicted in
1 0
Petitioner's 1 or Plaintiff's 1, was that individual
1 1
present on the first night of Rosh Hashana?
1 2
you said it was the 14th?
1 3
A.
Yes.
1 4
Q.
And is he depicted in any of these photographs 6
1 5
through 8?
1 6
A.
Here, it's Number 6.
1 7
Q.
Where is he in photograph 6?
1 8
that photograph up so the Court can see it.
1 9
A.
Here.
2 0
Q.
You're referring to the back of the head of an
2 1
individual on the bottom of the photograph?
2 2
A.
Yes.
2 3
Q.
The person in that photograph is the person in
2 4
Petitioner's 1 or Plaintiff's 1?
2 5
A.
Yes.
I guess
If you can hold
61

1
THE COURT:
THE WITNESS:
That's the back of his head?

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.
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?
1 0
A.
Yeah.
1 1
more.
1 2
Q.
1 3
come down for the blowing of the shofer?
1 4
A.
Yes.
1 5
Q.
And you said you had some words or exchanged some
1 6
words with him on this date?
1 7
A.
1 8
but he was very willingly and God bless you, Rabbi.
1 9
Thank you for coming.
2 0
Q.
He said that to you --
2 1
A.
Yes.
2 2
Q.
-- on the 14th of September?
2 3
A.
Yes.
2 4
Q.
Now how long was this procedure of blowing the
2 5
shofer and saying the prayers?
I don't see him over there.
Here a little less, but usually there's
The same people, yes.
The individual in Plaintiff's 1, did he always
Yes.
Yes.
Usually some are very quiet, some are not,
62

1
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.
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.
1 0
Q.
Was he there the following day?
1 1
A.
No, they informed me that he had passed away.
1 2
Q.
Now, if you go back to the -- actually,
1 3
withdrawn.
Yes.
If you go back to the last Succot that you
1 4
1 5
went to the retirement home, not this year, in
1 6
2014 --
1 7
A.
Yes.
1 8
Q.
-- did you see that individual?
1 9
A.
Yes.
2 0
Q.
And did that individual come forward like you
2 1
indicated the procedure is to bless?
2 2
A.
2 3
to have both hands and you have to be standing.
2 4
you really have to, you know, be able to grab both --
2 5
all the species together.
Well, they have to, because to hold it you have

So,
63

1
Q.
Explain that to me?
has to do?
A.
Explain the size and what he
So there is -THE COURT:
When you said to hold it, hold
what?
MS. FINKELSTEIN:
describe, Your Honor.
A.
of plants.
That's what I want him to
On Succot, we have to take four different species

And we have to hold them all together.
1 0
One is very long.
Another one is like a citrus.
And
1 1
another two are just like plants.
1 2
them all together and put them together and shuckle
1 3
them.
1 4
to do it.
1 5
after me.
1 6
Q.
1 7
1, he came forward?
1 8
A.
Yes.
1 9
Q.
He held those four species of plants?
2 0
A.
Correct, yes.
2 1
Q.
He voluntarily came forward to do so?
2 2
A.
Yes, by the new year also.
2 3
any patients.
2 4
Q.
2 5
four species together?
We have to hold
So those people, you know, did it and wanted

And also I made them repeat the blessing
So the individual in the photograph, Plaintiff's
Nobody went to get
They all came on their own.
When he held -- how heavy are these plants, these
64

1
A.
I don't know.
Maybe two-pound, maybe.
Q.
And what's the size of them?
A.
One is about three feet tall.
like a citrus round, like the size of a big apple.
And you put all those together.
Q.
four species of plants?
A.
shuckle them.
And the other is
And you said what would he have to do with those
Take them separate and put them together and
1 0
Q.
Okay.
1 1
A.
Yes, shake them.
1 2
Q.
And what would he do as he shook them?
1 3
A.
He shake them.
1 4
Q.
And did he say anything as he shook them?
1 5
A.
He made the blessing before.
1 6
Q.
Did he say the blessing as well?
1 7
A.
Yeah, sure.
1 8
Q.
He said it a loud?
1 9
A.
Yes.
2 0
Q.
And is that the same procedure he did for the ten
2 1
years in which you were there?
2 2
A.
2 3
2 4
2 5
Shake them?
That's all.
Yes.
MS. FINKELSTEIN:
I have nothing further.

THE COURT:
Mr. DeMay.
65
Cross - Baruch - DeMay

1
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?
1 0
A.
I know Martin, but I don't remember his last
1 1
name.
1 2
MR. DeMAY:
No further questions.
1 3
THE COURT:
Anything on that?
1 4
MS. FINKELSTEIN:
1 5
THE COURT:
1 6
THE WITNESS:
1 7
(Whereupon, the witness Mordechai Baruch
1 8
You may step down.

Thank you.
1 9
THE COURT:
2 0
MS. FINKELSTEIN:
2 1
No.
Okay.
Your next witness?

Can I just speak with my
client for one minute.
2 2
Rabbi Benjamin Kelsen.
2 3
(Whereupon, the witness Benjamin Kelsen
2 4
2 5
66
1
BENJAMIN KELSEN, having been first duly affirmed,

was examined and testified as follows:
THE COURT:
THE WITNESS:
THE COURT OFFICER:
address for the record.
1 0
Sure.
State your name and
Benjamin G. Kelsen,
K-E-L-S-E-N, 122 Rector Court, Bergenfield, New

Jersey 07621.
THE COURT:
1 1
1 2
Thank you.
THE WITNESS:
Have a seat.
Sir, keep your voice up so that
everyone can hear.

If you an objection is made to a question,
1 3
1 4
don't answer until I've had an opportunity to make
1 5
a ruling.
If you're not sure whether you should answer,
1 6
1 7
ask me.
1 8
ahead.
1 9
2 0
2 1
2 2
I will advise you whether you can go
that.

Allow the attorneys to finish asking their
question before you make your answer.
2 3
THE WITNESS:
2 4
THE COURT:
2 5
Yes, sir.
Go right ahead.
Okay?
67
Direct - Kelsen - Finkelstein

1
Q.
Rabbi Kelsen, can you please tell me about your
education?
A.
post-high school started with year of study in a
rabbinical school in Israel.
matriculated at Yeshiva College, in Manhattan.
My education started in -- or at least my
After which I
I received a BA in history in 1994.
1 0
received rabbinic ordination in 2000.
I actually at
1 1
the same time was at the Benjamin Cardoza School of
1 2
Law, graduating in 1997.

I'm a member of the bar of the state of New
1 3
1 4
Jersey, the Federal court system, their District
1 5
court of Appeals and the Eastern District of
1 6
Pennsylvania as well as the Supreme Court of the
1 7
United States.
In 2000, I received my rabbinical ordination
1 8
1 9
and in 2008 I received the second level of rabbinical
2 0
ordination for certification as a judge in
2 1
religious -- in religious courts, in a Beit Din.
2 2
Q.
2 3
and teaching experience?
2 4
A.
2 5
about nine years.
Could you please tell me about your rabbinical
Sure.
I served as a Rabbi, a pulpit rabbi for

I have --
68

1
Q.
Where was that?
A.
That was in Teaneck.
County.
University, both in college as well as the Judaic
studies programs.
and the college of IDT, two programs.
I also taught and substituted at Yeshiva
THE COURT:
THE WITNESS:
Teaneck, New Jersey, Bergen
I've taught at the yeshiva at IDT
What exactly is IDT?

IDT, the company IDT, which is
owned by Mr. Howard Jonas, has associated with it,
1 0
they move from floor to floor, but they have a
1 1
college program as well as a yeshiva, a talmudic
1 2
school, a Judaic studies program associated with
1 3
the college, that is in -- it's held in the IDT
1 4
corporate headquarters.
1 5
And the idea there is they bring in students
1 6
to give them a BA and give them internships within
1 7
the corporation itself.
1 8
to bet get a BA and to do Judaic studies, but also
1 9
have that opportunity to get have an internship
2 0
hands-on at a large tele-communications company.
2 1
THE COURT:
2 2
THE WITNESS:
And this way they're able
What is a pulpit rabbi?

A pulpit rabbi is a rabbi who
2 3
has a -- technically has a pulpit, who basically
2 4
runs a synagogue and handles day-to-day issues in
2 5
terms of services, running the service, organizing,
69

1
that type of -- that type of thing.
Also dealing
with life cycle events:
And all type of counseling in between.
or other types of events that come up during the
life cycle of the congregants.
Birth, deaths, weddings.

Illnesses
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.
1 0
Q.
1 1
A.
So, before my wife and I had children, it was a
1 2
lot easier for us to get away for a weekend or a week
1 3
or two.
So, before the children came, we were -- I was
1 4
1 5
in Scotland, where I was sent by Yeshiva University
1 6
to teach for a week in Edinburgh.
1 7
Massachusetts, Ohio, different places, different
1 8
communities within the United States for the purpose
1 9
of lecturing on issues of Talmud and Jewish law as
2 0
well as the -- as well as the questions of the
2 1
interaction between American and secular law and
2 2
jurisprudence and how it works together with Jewish
2 3
law and the talmudic basis for many of the
2 4
foundations of the American judicial system.
2 5
Q.
Florida,
I'm just going to ask the following - I have a
70

1
double-sided document.
curriculum vitae of Rabbi Benjamin G. Kelsen, Esq. -
be marked.
I have provided a copy to counsel.
It's three pages.
It's a
I have a
copy for Your Honor as well.
That will be Plaintiff's 9.
THE COURT:
(Whereupon, a CV was marked Plaintiff's
All right.
Mark that 9.
Exhibit 9 for identification.
THE COURT OFFICER:
1 0
9 for ID.
Show the
witnesses?
1 1
1 2
MS. FINKELSTEIN:
Please.
1 3
1 4
Q.
Rabbi Kelsen --
1 5
A.
Yes.
1 6
Q.
-- could you please me what that is, Exhibit 9?
1 7
A.
This is a copy of my curriculum vitae that was
1 8
provided to you.
1 9
training and certifications as well as my legal
2 0
background.
2 1
Q.
2 2
rabbinical and teaching experience, that's all
2 3
contained within this document as well?
2 4
A.
2 5
articles or speaking engagements which may not be
It is a combination of my rabbinic
So what you testified to with regard to your
The majority of it is.
There are various
71

1
included, but those would be in addition to whatever
is in here.
Q.
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.
that was in a matter pending from Asbury Park, New
Sir, have you ever been qualified as an expert in
And
1 0
Jersey, which ended up in the Superior Court and is
1 1
now, I believe, in the Appellate Division, working
1 2
its way through the system to the Supreme Court.
1 3
MS. FINKELSTEIN:
Your Honor, at this point I
1 4
would offer Rabbi Benjamin Kelsen as an expert in
1 5
Jewish law and Talmudic studies?
1 6
MR. DeMAY:
1 7
THE COURT:
No objection.
Okay.
We will deem
1 8
the rabbi as an expert witness and I will accept
1 9
his testimony accordingly.
2 0
MS. FINKELSTEIN:
2 1
2 2
2 3
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?
2 4
MR. DeMAY:
No objection.
2 5
THE COURT:
Okay.
Mark it.
72

evidence.)
THE COURT OFFICER:
MS. FINKELSTEIN:
9 in evidence.
Thank you.
Q.
Rabbi, you mentioned several terms with your
explanation of your teaching history and educational
background.
You talked about Talmudic studies.
Could you
1 0
please explain that?
1 1
A.
1 2
jurisprudence of rabbinical law, of Jewish law,
1 3
compiled within the first centuries or so of Common
1 4
Era up until about 700 or so when it was finally
1 5
closed.
Sure.
The Talmud is a compilation of the
After that, we have commentators throughout
1 6
1 7
the ages from that period of time up until the
1 8
present time on that.
1 9
of 24 tractates, the Babylonian Talmud, which is a --
2 0
Q.
Just slow down a little.
2 1
A.
Yes.
2 2
tractates.
2 3
Q.
2 4
A.
Twenty-four sections or 24 volumes, each dealing
2 5
with different areas.
But the Talmud itself consists
The Judge is listening.
The Babylonian Talmud consists of 24
They're broken down into six
73

1
general categories, including what we would call tort
law, matrimonial, daily living/daily life, the issues
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 in
those various discussions.
1 0
The Jerusalem Talmud was done concurrently in
1 1
Israel, in Palestine, Jerusalem at the time, which
1 2
was following the -- the Babylonian exile up until
1 3
the time of the Roman exile.
1 4
And that is a little bit different in format,
1 5
although it does contain basically the same -- the
1 6
same breakdowns.
1 7
format in that it is formulated more on a decision
1 8
basis, rather than the back and forth of the -- and
1 9
the decisions after discussions between the various
2 0
authorities therein.
2 1
2 2
But it's a little bit different in
So the Jerusalem Talmud basically focuses on

what we call black letter law.
2 3
That's the -- that would be the Talmud.
2 4
The -- after that period of time, we have
2 5
commentators throughout the generations from
74

1
throughout the Jewish world, whether they be in
Spain, Israel, Europe, wherever -- eastern Europe or
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 that
we get from the west, which keep building up every
year.
then commentators will comment on it.
It was closed and finished and sealed.
And
1 0
So, therefore, we have a period of time where
1 1
we have deliberations still being recorded, but at a
1 2
certain point those deliberations stopped and we move
1 3
on to commentators upon those, which are more along
1 4
the line of our horn books or something along, you
1 5
know, if we can make such a comparison.
1 6
Q.
1 7
referring to what?
1 8
A.
1 9
information.
2 0
would include - excuse me, Your Honor - both
2 1
commandments or biblical law that comes out starting
2 2
from the Five Books of Moses and it would go all the
2 3
way up until decisions that might be made by a
2 4
religious court applying the principles from the
2 5
Bible as well as the Talmud and the commentators
So when someone refers to Jewish law, are they
Jewish law refers to a very, very large corpus of

It would be partly related to -- it
75

1
after that to this date.

So, that there are decisions that will be made
that have to be applied to common day occurrences or
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 Talmud,
and that the commentators talk about, and that we
have based upon biblical sources, but that have to be
1 0
decided and figured out by later authorities.

So Jewish law itself is something which is
1 1
1 2
constantly growing and continuing.
It's almost like
1 3
a living breathing sort of entity.
But it's a very
1 4
wide entity.
1 5
of how one should arise in the morning, getting up
1 6
from their bed in the morning, to going to sleep at
1 7
night, to how the holidays are celebrated, what
1 8
things can be done on Sabbath and what cannot be done
1 9
on Sabbath, marital law, actually what we would call
2 0
matrimonial law, divorce, marriage, contracts, torts
2 1
as well as a myriad of other areas as well, including
2 2
which would be areas such as burial and what to do or
2 3
what the laws are for dealing with the passing of a
2 4
relative or anything along those lines.
2 5
Q.
And is encompasses everything from laws
Where is it in Jewish law where it discusses the
76

1
burial of a Jewish person?
A.
discusses, the Torah, the Bible, the first Five Books
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.
his brother Abel.
discussion there, but it's just sort of in passing.
So, the first time the first time that Jewish law
There's a passing reference to Cain burying

That's a little bit of a
1 0
When we get to the portion in about five or
1 1
six weeks or so, we read of Abraham having to deal
1 2
with the passing of his wife Sarah.

And from there we gain much of our basics in
1 3
1 4
terms of Jewish mourning and burial practice, when he
1 5
purchases a plot of land to use as the family plot,
1 6
so to speak, the Cave of the Machpalah, which is in
1 7
Hebron.
1 8
Abraham and Sarah were buried, Isaac and his wife
1 9
Rebecca were buried and Jacob and his wife Leah were
2 0
buried.
2 1
And that became the family plot where
That takes place within the Book of Genesis.

The book of Deuteronomy, which we just
2 2
finished not along ago - this past weekend actually -
2 3
makes reference to the notion of people passing and
2 4
returning -- and returning from whence they came.
2 5
So, that the idea of -- that man -- that man -- as we
77

1
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.
also parts of the Leviticus which talks about what
happens when one is exposed to a deceased individual
in questions of purity and ritual purity and impurity
and how one deals with those issues as well.

There is also the question of upon finding a
There is
body in between two cities, upon whom is the
1 0
obligation to do the burial and that it is of the
1 1
utmost importance to make sure a burial takes place.

So, these are all things that happen within
1 2
1 3
the Five Books of Moses.

After that, in the Talmud, there are very,
1 4
1 5
very lengthy discussions in various parts of
1 6
different tractates as to where that -- how those
1 7
things should be done and what is the process by
1 8
which we do that.
1 9
there forward.
2 0
Q.
2 1
Talmud?
2 2
A.
2 3
buried in the ground.
2 4
person, as we said, as I mentioned a moment or two
2 5
ago, in Deuteronomy, that in the same way that man
And then that sort of -- from
What does it say within the tractates in the
The Talmud basically requires that people be

It sites the notion that a
78

1
was created from the earth, man should be returned to
the earth.
Q.
earth?
A.
body is but a shell for -- or a container, if you
will, for the spirit, for the soul.
the passing of the individual, the soul returns to
heaven or however we describe that.
And why is it that he has to be returned to the
The idea being that the -- the idea is that the
And that upon
And the body,
1 0
which is the vessel which held it, is returned to the
1 1
ground and treated in a very, very specific manner.

It is washed and purified and wrapped.
1 2
And
1 3
then it returns to the place from -- to the ground.
1 4
The idea being it's being returned to where it came
1 5
from.
1 6
There is also a concept that comes up and is
1 7
codified actually by Maimonides, who lived in the
1 8
11th century, and was one of the -- was one of those
1 9
who wrote the first codexes of Jewish law, that
2 0
the -- that there is a fundamental belief in Judi --
2 1
within Judaism of the coming of the Messiah.
2 2
when the Messiah does come, that there will be --
2 3
whatever it means.
2 4
over it.
2 5
or resuscitating of the dead.
And
And again there is great debate
But there will be what we call the reviving

In other words, that
79

1
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.
embalming?
A.
embalming was considered to be a pagan ritual,
Is that the purpose or reason why we don't do
One of the reasons we don't do embalming is that
1 0
although, there were those who did some -- that there
1 1
are some indications that there were types of
1 2
embalming.
1 3
Not necessarily the same way the Egyptians did
1 4
it, that we see frequently in museums, but that a
1 5
person was washed, cleaned up and then wrapped in
1 6
linen, in linen cloths, almost similar, I guess, to
1 7
bandages, but also in a larger cloth and then buried
1 8
in the ground.
1 9
Therefore, the body was in one place.
So, we don't do embalming in the way the
2 0
Egyptians do it, where they would preserve the
2 1
organs and, you know, you can do a facial
2 2
recognition now on King Tut or whatever it is.
2 3
we do have similar notions of burying the body to
2 4
preserve it, although not in the way that the
2 5
Egyptians did.
But
The Egyptians had the idea that the
80

1
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.
there is the general notion of preserving the body
in some fashion that way.
But
Q.
to the earth from which it came, correct?
A.
Yes.
1 0
Q.
So does that also include -- is there Jewish law
1 1
with regard to what you can and cannot do to the body
1 2
in the lifetime so it can return to the earth from
1 3
where it came?
1 4
A.
1 5
making markings on one self.
1 6
call them today, is prohibited.
1 7
You indicated that the body is supposed to return
Yes.
There is a biblical commandment against

Tattoos, as what we
There are Pagan rituals that are referred to.
1 8
In fact, in periods of mourning specifically, pagan
1 9
rituals at the time very often included ceremonial or
2 0
symbolic cutting or markings on one self, of making
2 1
markings on one's body or shaving one's head or of
2 2
other types of physical manifestations and
2 3
demonstrations of the mourning period.
2 4
strictly prohibited by the Torah in Leviticus.
2 5
Those are
And so, therefore, things such as tattoos,
81

1
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.
up in the morning, to the holidays, to the Sabbath,
all the way to death.

Are there some of these laws which are more -
Now you talked about all these laws from waking
I'm trying to find the proper terminology for it -
1 0
more, not important shall I say, but more significant
1 1
in one's life than others?
1 2
MR. DeMAY:
Objection.
1 3
THE COURT:
Grounds?
1 4
MR. DeMAY:
Significant in one's life is vague
and calls for speculation.
1 5
1 6
Q.
Well, under Talmudic law, Jewish law -THE COURT:
1 7
objection.
1 8
I'm going to overrule the
You can testify to that.
1 9
A.
I'm not quite sure what -- if you can elaborate
2 0
just a little bit.
2 1
Q.
2 2
Talmudic laws and biblical references with regard to
2 3
burial after someone's death, correct?
2 4
A.
Yes.
2 5
Q.
Now, there are also other laws with regard to
Are there some -- you indicated there are laws,
82

1
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:
Leading.
THE COURT:
Grounds?
MR. DeMAY:
Leading, Your Honor.
1 0
THE COURT:
I'm going to let the question and
answer stand, but don't lead.
1 1
MS. FINKELSTEIN:
1 2
Okay, Your Honor.
1 3
Q.
1 4
a round about way.
1 5
A.
Sure.
1 6
Q.
Could you please explain to me what the
1 7
significance of Rosh Hashana and Yom Kippur are?
1 8
A.
1 9
Let me go back for a second.
I'm going to go in
Sure.
Rosh Hashana and Yom Kippur are the two
2 0
periods which -- actually followed up by the holiday
2 1
of which we just concluded of Succos, which make up
2 2
the High Holiday period, the High Holiday period.
2 3
Rosh Hashana is considered as the beginning of
2 4
the Jewish new year, which starts on the first day of
2 5
Rosh Hashana.
And Rosh Hashana and Yom Kippur are
83

1
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 set
aside for asking for forgiveness for the sins that
one has done both between man and fellow man as well
1 0
as between man and God.

And those are the two penultimate days during
1 1
1 2
the year -- during -- in the Jewish calendar.
1 3
Q.
And could you explain Yom Kippur?
1 4
A.
Sure.
1 5
Yom Kippur is a fast day.
It lasts for 25
1 6
hours, give or take, from the night before.
1 7
sunset of the night -- of the previous night.
1 8
this year it was on Wednesday.
1 9
sounds right.
2 0
night it started.
2 1
Wednesday night after -- after night fall on
2 2
Wednesday night -- on Wednesday night.
2 3
It's
So,
I think Wednesday
It was on a Wednesday.
So, Tuesday
It started Tuesday night and ended
That is the day that is spent primarily in the
2 4
synagogue.
There's usually about an hour break or so
2 5
sometime in the afternoon, but not necessarily.
And
84

1
it is dedicated specifically and completely to asking
forgiveness from God and for asking to be blessed for
a prosperous and a good life in the -- in the year to
come.
Q.
Jewish law and dictating of what happens to a person
when they pass?
A.
Could you elaborate a little more?
Q.
What is supposed to happen to the body once a
If you can just talk to me a little bit about
1 0
Jewish individual dies?
1 1
A.
1 2
it's done, let's say, for example, in a hospital, the
1 3
IV's are tied off.
1 4
Upon the passing of an individual, usually if
In order to be able to preserve any of the
1 5
fluids from the body, that also are going to be
1 6
buried with the body, we don't take out the IV's or
1 7
anything like that, because we don't want to dispose
1 8
of any of the human material, blood or whatever else
1 9
separately, or throw it out.
2 0
with the body.
2 1
left in place.
That has to be included
So, the IV's will be tied off and
2 2
An organization called the Chevra Kadesha, the
2 3
Holy Brotherhood or Holy Congregation, will be called
2 4
in conjunction with the funeral home sometime during
2 5
the night.
Usually a funeral will take place within
85

1
24 to 48 hours, depending on when during the day a
person passed and how much time there is to allow for
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.
society?
A.
Yes, correct.
1 0
Q.
So, it's like the Burial Society of Rockland
1 1
County here in Rockland?
1 2
A.
That organization, is that like the burial
That would be a good example, yes.

Most -- most neighborho -- most communities
1 3
1 4
have their own burial society which takes care of
1 5
that.
So, before it goes to the funnel home, some
1 6
1 7
places have their own place to carry out these
1 8
procedures.
1 9
a special area set aside for that.
2 0
Q.
2 1
entire Jewish community or are you referring to
2 2
Orthodox, Chasidim, Conservative, Reform?
2 3
A.
2 4
area, I basically would be referring to, let's say,
2 5
Rockland County has their own, if not more than one.
Others will do it at the funeral home in
When you said community, are you referring to the
It could include all of them.
When I say local
86

1
There's one -- there's at least four in Bergen County
that I'm aware of.
Brooklyn, I don't even want to try to count.
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.
Ocean County has at least two.

There
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.
1 0
There is nothing precluding -- nothing within
1 1
those locals or those local organizations that would
1 2
be either restrictive or excluding of anybody from
1 3
any type of a background or any type of a level of
1 4
observance.
1 5
Q.
1 6
that for a moment.
1 7
A.
Sure.
1 8
Q.
I mentioned Chasidim, Orthodox, Conservative,
1 9
Reform.
2 0
the differences?
2 1
A.
2 2
in general --
2 3
Level of observance, if we can just talk about
Could you just please explain a little about
Sure.
Of the three that you named, so Orthodox
In 2014, the Pew Research Organization put
2 4
together a study of American Jewry.
So, they broke
2 5
it down into three main categories:
Orthodox,
87

1
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.
and then the Reform.
Conservative Judaism after that
The difference in theology is basically
delineated as to whether or not there is a belief in
the Torah coming directly from God and its
1 0
commandments still binding, to Conservative, which
1 1
will take a position that it was divinely inspired
1 2
writing, dictated to Moses and -- but not necessarily
1 3
written by the hand of God and then as opposed to
1 4
Reform, which would suggest, at least according to
1 5
much of the writing that comes from the Reform
1 6
movement's central committee -- central rabbinic
1 7
association, which would have more of a documentary
1 8
hypothesis approach, which is that the Torah was
1 9
compiled at different times throughout history.
2 0
That does not necessarily effect the level of
2 1
or the question of observance.
2 2
question of source -- of the source and weight with
2 3
which certain things are given.
2 4
2 5
It's raises a
So, for example, somebody who was Orthodox

would not carry on the Sabbath outside of -- outside
88

1
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 adhere
to that at the same level and it is more, at least
1 0
according to there responsa and their guidance and
1 1
memorandum that they've issued, take it more as a
1 2
advisory type of opinion that this is what was done,
1 3
but that it is not necessarily -- it is not
1 4
necessarily something that is dispositive of a
1 5
person's religiosity or observance.
1 6
Q.
So it's a personal choice?
1 7
A.
In Reform, correct.
1 8
Q.
Now, can you please tell me what it means to be
1 9
kosher?
2 0
A.
2 1
separate areas.
It's not --
Explain that for the record.
Essentially keeping kosher comes down to two
One is that there is no mixing of meat and
2 2
2 3
milk.
That means that there will be some period of
2 4
time within after one eats meat, let's say, that one
2 5
would have to wait until being able to have something
89

1
which is dairy.
And the second is regarding the types of meat
that one would eat or -- or fish or things like that.
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
1 0
have one or two of the attributes, but does not
1 1
have both and that those are prohibited.
1 2
most common, obviously, is pork as being one of the
1 3
standouts.
1 4
1 5
1 6
And the
As far as fish, it would have to be a fish

that has scales and fins.
And birds, which are -- there are birds which
1 7
are mentioned in the bible as being kosher.
And
1 8
for the most part these are birds which are not
1 9
predatory in nature:
2 0
types of fowl.
Chicken, you know, and other
2 1
Hawks and Falcons and whatever are prohibited.
2 2
So, keeping kosher means basically making sure
2 3
that there is no mixing of meat utensils - pots,
2 4
silverware, plates, whatever - with the dairy.
2 5
Keeping those separate.
Waiting a period of time
90

1
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
1 0
Jews, is there any law which indicates that you are
1 1
required to maintain a kosher home?
1 2
A.
1 3
that one is required to keep a kosher home and keep
1 4
kosher.
The Conservative movement officially maintains
They are -- there's a little bit more laxity
1 5
1 6
as far as utensil -- the issue of utensils and eating
1 7
out.
1 8
position of Conservative movement as put forward by
1 9
the Jewish Theological Seminary as well as their
2 0
rabbinical arm, they're not as strict on adherence to
2 1
utensils, let's say.
2 2
While it's still according to the official
So, if one were to go out to a restaurant, one
2 3
might order a kosher fish, salmon and according to
2 4
the Conservative movement that would probably not be
2 5
as a difficulty.
91

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.
1 0
Q.
1 1
Reform Jew, attends Shabbos services and all holiday
1 2
services, but partakes and goes to non-kosher
1 3
restaurants, does that make him any less a Jew?
1 4
A.
Absolutely not.
1 5
Q.
Is there any law which requires him only to
1 6
attend kosher restaurants or kosher meals as a Reform
1 7
Jew?
1 8
A.
1 9
be that Jews in general should be fol -- should be
2 0
keeping these -- keeping these commandments.
2 1
So if one is a Reform Jew, I guess, by title
As a reform -- I mean, the general belief would
And according to the Reform movement's
2 2
responsa and guidelines, it is considered to be
2 3
encouraged and admirable to keep up the traditions of
2 4
the Jewish faith, but that would not necessarily
2 5
impact the question of whether or not one is
92

1
considered to be Jewish or not in the Reform
movement, or in any other movement really.
Q.
Reform Jew to attend Sabbath services on Fridays and
Saturdays?
A.
require anyone to attend services.
1 0
1 1
Is there any law, any Jewish law which requires a
There's actually no law anywhere that would
And the concept of attending services and

praying in a group is something which is brought down
and discussed in Talmud as being of benefit.
The idea being that when one prays to God,
1 2
while there may be certain merits or certain aspects
1 3
of my individual -- me as an individual that are
1 4
missing and that may -- certain merits that may not
1 5
make me worthy of some sort of response from the
1 6
Divine, but that hopefully the other nine guys who
1 7
are in the room would be able to all together
1 8
compliment one another in order to be able to create
1 9
a community which would therefore -- which would have
2 0
the merits to be able to come and face the Divine and
2 1
ask for forgiveness and for whatever else it may be,
2 2
you know, sustenance and health, etc.
2 3
There is no -- it's something which is
2 4
preferable, but there are many occasions where
2 5
obviously it doesn't happen and it can't happen under
93

1
certain circumstances and --
Q.
preferable within the Orthodox faith?
A.
Yes.
Q.
And is that something that's preferable, to
attend Friday and Saturday services, in Conservative
Judaism?
A.
Yes.
Q.
Now is that something that's preferable or common
You say preferable.
Is that something that's
1 0
in Reform Judaism?
1 1
A.
1 2
the Reform movement has, as one of their guidelines,
1 3
so to speak, as being preferable and that clergy
1 4
should encourage attendance at services, but that it
1 5
is, again, not something which is dispositive in
1 6
nature that would cause one to be excluded from the
1 7
community or not part of the community.
1 8
1 9
2 0
It is preferable.
THE COURT:
It is encouraged within the --
It doesn't sound like much is
binding with regard to the Reform?

THE WITNESS:
The Reform position essentially
2 1
is, is that because they use the documentary
2 2
hypothesis theory, meaning that the Torah itself,
2 3
the Bible is compiled by different authors at
2 4
different times, they have -- they find less
2 5
binding -- less binding in modern times than they
94

1
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
1 0
Supreme Court of the United States being
1 1
authoritative on all courts of land.
1 2
that was decided by a lower court in California may
1 3
be of interest and may be persuasive, but is not
1 4
necessarily binding.
1 5
from the Ninth Circuit may not -- may be of
1 6
interest to us in the Third Circuit or the First or
1 7
whichever circuit we're in.
1 8
the Third Circuit.
1 9
that is going to be authoritative in nature,
2 0
although it could be considered to be persuasive.
2 1
2 2
2 3
THE COURT:
Something
An Appellate Division ruling
I'm in Jersey, so it's
It's not necessarily something
Is there anything that is
considered sacrosanct, binding in Reform Judaism?

THE WITNESS:
The Reform movement itself has a
2 4
very vague description thereof.
Basically the
2 5
Reform movement believes in the concept of the
95

1
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
1 0
strict prohibition against lighting a fire on the
1 1
Sabbath.
1 2
extended -- not extended.
1 3
electrical devices, electricity, things of that
1 4
nature.
In Orthodox Judaism that has been

That's been applied to
In Reform Judaism, the Reform rabbinical body
1 5
1 6
has issued a responsa years and years ago, almost
1 7
decades, that indicated that electricity is not
1 8
lighting a fire and, therefore, in their view the
1 9
turning off and on of a light or the use of
2 0
electronics is not something which would be
2 1
problematic because it's not actually lighting a
2 2
fire.
2 3
Orthodox Judaism would differ from that in its
2 4
definition of what exactly is considered to be the
2 5
lighting of a fire, what exactly does the word fire
96

1
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 Reform
or the general Jewish law, the Talmudic law?
A.
Under general Jewish -- I'm sorry.
Q.
First under general law?
1 0
A.
I thought there was objection.

MR. DeMAY:
1 1
1 2
the question was vague and ambiguous.
1 3
follow it.
THE COURT:
1 4
I thought
I couldn't
Can you answer that with a degree
of certainty?
1 5
THE WITNESS:
1 6
I believe I can.
I believe I
can.
1 7
1 8
THE COURT:
1 9
You can answer.

THE WITNESS:
2 0
Okay.
Overruled on the objection.
Thank you.
2 1
A.
2 2
interestingly enough, are very, very similar through
2 3
Orthodox, Conservative and Reform Judaism.
2 4
2 5
The general rules of burial are actually,
THE COURT:
In terms of whether they have a
binding effect or not?
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1
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
1 0
together at the funeral would physically lower the
1 1
casket themselves into the grave and physically,
1 2
personally, individually fill the grave.
1 3
Conservative Judaism might do something
1 4
similar.
1 5
casket, but not all the way.
1 6
And I've seen various variations where they will --
1 7
as well as in the Reform movement I've seen, where
1 8
they have the casket above ground as traditionally
1 9
done in the secular world and mourners will come by
2 0
and place a shovel full of dirt on top.
2 1
everybody leaves, then the casket will be lowered
2 2
into the ground and then the workers from the
2 3
cemetery will then fill it up, fill up the grave.
2 4
2 5
They might cover the grave -- cover the

And they may have --
After
However, within all three of those traditions

there is still the use of a coffin and burying of
98

someone in the ground and keeping that tradition.
Q.
cremation?
A.
Yes.
Q.
Could you please explain?
A.
Sure.
discusses it.
references.
cremation being a pagan custom and that there is a
1 0
1 1
And is there in Jewish law, does it discuss
The Talmud is one of the first places it

It bases it off of biblical
But essentially the Talmud talks about
requirement to bury a body.

In Talmudic times, the bodies were buried, as
1 2
I said, just simply wrapped up.
1 3
still the custom that they're wrapped simply in
1 4
shrouds and buried in a grave.
1 5
In Israel, this is
In Europe and in United States and over the
1 6
centuries where there were more health concerns,
1 7
coffins, simple pine boxes with holes drilled in the
1 8
bottom, were utilized.
1 9
inside of that casket, which was usually a regular
2 0
plain pine box of some sort.
2 1
And the body was buried
The questions that comes up within the Talmud
2 2
about cremation question whether or not there is a
2 3
period of mourning allowed for one who's been
2 4
cremated, is the -- are the ashes of cremation
2 5
permitted to be buried at any point in a Jewish
99

1
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.
And, ultimately, the decision was made.
them were buried, but not within Jewish cemeteries.
Should they be buried or not.

Some of
1 0
And so the questions that went back and forth were
1 1
really post facto, what does one do with that.
1 2
But it is clear from all responsa and all
1 3
discussions from the Talmud up until -- up until
1 4
modern time that within the Orthodox and
1 5
Conservative movements cremation is actually
1 6
prohibited and not something which is done at all.
1 7
Within the Reform movement, the Reform
1 8
movement has a 1986 memorandum which goes out --
1 9
which was sent out to its membership and had been
2 0
updated in the '90s that essentially said that
2 1
cremation is not something which is within the
2 2
tradition of Jewish law or Jewish practice.
2 3
someone were to do so, they should be -- or wanted
2 4
to have a cremation done, whether the person
2 5
themselves wanted to do it and had it as a plan
And if
100

1
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.
that the Reform -- the Reform movement's memorandum
And
1 0
does suggest and strongly advises spiritually the
1 1
rabbis and the clergy to make sure that they still
1 2
reach out to the family and still try to help
1 3
comfort the family.
1 4
They lifted a ban on officiating in some
1 5
method at a cremation in the mid to late '90s, only
1 6
for the purposes, as they say, so as not to turn
1 7
anybody away from a religious or spiritual
1 8
counselor, guidance or rabbinical leader or figure
1 9
during a time of need.
2 0
But it was clear from the -- from the responsa
2 1
that had been issued by the Reform movement
2 2
itself -- and they have a difference in the Reform
2 3
movement between responsa, memoranda and essays and
2 4
letters and things of that nature, but in their
2 5
responsa themselves they strongly encourage keeping
101

1
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
1 0
discouraged as much as possible.
1 1
that was taken was not to excommunicate or cut off
1 2
somebody who had done so, but that rather they
1 3
should be strongly encouraged to follow the Jewish
1 4
tradition.
1 5
keep people from being driven away from the
1 6
synagogue or from the -- or from religion practice
1 7
entirely because the rabbi refused to come and
1 8
officiate at a service, their methods and ways have
1 9
been outlined in a separate section and pamphlet
2 0
that was given out on how to be able to do so.
2 1
2 2
2 3
But the approach
But in order to make sure or to try to
But even in those cases burial of the ashes

afterwards are prohibited in a Jewish cemetery.
MS. FINKELSTEIN:
2 4
the time.
2 5
It's 28 after.
Judge, I'm just looking at
I don't know how long we're going to go.
102

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.
going to do right now real quickly.
Okay.
proceedings.)
THE COURT:
I just have to inform them, which I'm
Q.
All right.
Please continue.
In Jewish tradition and Jewish law, if an
1 0
individual cremates a Jewish person when that person
1 1
has not expressed that desire, is that a sin?
1 2
A.
Yes.
1 3
Q.
Based on your expert opinion, if an individual
1 4
who for ten, 15 years has attended Friday night
1 5
services, Saturday services, every holiday service,
1 6
Succot, Rosh Hashana, Yom Kippur, who has lived a
1 7
kosher life-style for that amount of time, is that an
1 8
individual who would want to follow Jewish law and be
1 9
buried in accordance with Jewish faith?
2 0
MR. DeMAY:
Objection.
The question is
2 1
improper.
2 2
factor in this litigation and goes beyond.
2 3
to opine on other facts as well.
2 4
2 5
It asks the witness to opine on the key
MS. FINKELSTEIN:
It asks
Your Honor, he just went
through the different levels:
Conservative,
103

1
Orthodox, Reform.
observance of an individual.
And I'm giving him the level of
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.
1 0
THE COURT:
Let me have the question read
back, please.
(Whereupon, the requested portion of the
record was read by the court reporter.)
1 1
THE COURT:
Objection sustained.
1 2
Question for you.
You indicated that it would
1 3
be a sin if the decedent had not asked to be
1 4
cremated?
1 5
THE WITNESS:
1 6
THE COURT:
1 7
THE WITNESS:
Yes.
A sin for whom?
The sin would be on the person
1 8
who commit -- who did the cremation.
1 9
under the desecration of a dead body or a
2 0
desecration of a body.
2 1
THE COURT:
It would fall
But if the person had indicated
2 2
that he wanted to be cremated, then it wouldn't be
2 3
a sin for that person.
2 4
have on the decedent?
2 5
THE WITNESS:
But what effect would it
On the decedent it would be --
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1
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.
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.
considered in violation of the person's wishes,
1 0
1 1
And
It would be something
which is another thing that we would want to do.

In other words, if a person is observant Jew,
1 2
who under normal circumstances would have wanted to
1 3
be buried, but is not being buried because some SS
1 4
officer has decided otherwise, then that would be a
1 5
different situation.
1 6
THE COURT:
Let me ask you this, which may be
1 7
a very simplistic question.
1 8
Catholic, there's levels of sin, anything from a
1 9
venial sin, a mortal sin.
2 0
scale in the Jewish religion, would that be a --
2 1
what level would that be at?
2 2
THE WITNESS:
2 3
THE COURT:
But in my religion,
And if there's such a
So -Because you indicated a person who
2 4
is Reform can choose to do certain things that an
2 5
Orthodox, a more observant Jewish person would not
105

1
be able to do.
or eating the wrong meat.
I think one of them is eating meat
THE WITNESS:
Where would this lie?
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.
being -- or something along those lines would be
1 0
1 1
Idol worship, killing someone or
considered to be absolutely mortal sins.

Eating on Yom Kippur is considered to be of
1 2
the highest level.
1 3
sexual behavior is considered to be on the highest
1 4
of levels.
1 5
much within the same general category as being a
1 6
sin so to speak.
1 7
Engaging in certain illicit
After that, everything else is pretty
There may be different punishments prescribed
1 8
for them or different types of ramifications, but
1 9
we don't really divide them up as does the Catholic
2 0
faith in terms of these different types of levels.
2 1
The issue of eating out, let's say, that Your
2 2
Honor had raised, is not a question of can or
2 3
cannot.
2 4
be -- if one were to eat out in a non-kosher
2 5
restaurant, not follow the laws of keeping kosher,
It's a question of is it considered to
106

1
so that person would probably not be considered by
the community to be -- or in general to be
considered Orthodox.
laws, although, that is not necessarily definitive,
because it happens from time to time.
fallible.
They're not keeping to those
People are
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
1 0
within the Reform movement there is less of an
1 1
inclination to say that somebody is no longer to be
1 2
part of the community or trusted within the
1 3
community, let's say, than in the Orthodox.
1 4
Within the Orthodox community or Orthodox
1 5
movement, if there was somebody who is known to be
1 6
not keeping kosher, other people would not
1 7
necessarily eat in their home -- or not probably.
1 8
Would definitely not eat in their home.
1 9
to the Reform movement where that would not be an
2 0
issue necessarily.
2 1
As opposed
And again, there is movement within the Reform
2 2
movement itself.
There is movement and discussions
2 3
within the Reform movement itself - which was
2 4
coming out since the last -- especially since 2014,
2 5
when the -- when the, as I mentioned before, the
107

1
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.
THE COURT:
Thank you.
Q.
Rabbi, are there different levels of observance
in the Reform movement, in conservative and Orthodox?
A.
Yes.
Q.
So there can be someone who's more religiously
1 0
observant as a Reform Jew than someone else?
1 1
A.
Yes.
1 2
Q.
And if someone is not a member of a synagogue,
1 3
how could you know whether or not they're Reform or
1 4
Conservative or Orthodox?
1 5
A.
1 6
looking at them.
1 7
Orthodox most likely would be wearing a yarmulke on
1 8
their head, may have sidelocks, may not, maybe
1 9
dressing in a way that would be a little bit more
2 0
distinctive.
You'd be very hard pressed to know that simply by

Although, a person whose is
But just by looking at the person, you would
2 1
2 2
have no way of knowing their level of observance.
2 3
Q.
Let's talk about Conservative and Reform.
2 4
A.
The same thing would be true about Conservative
2 5
and Reform.
Conservative and Reform in general do
108

1
not wear yarmulkes outside of the synagogue or
outside of religious functions.
be much more modern and in fashion or in style, let's
say.
from just looking at somebody what level of
observance that person would have.
The clothing would
And so it would be almost impossible to tell
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
1 0
not have been able to tell by looking at him if he
1 1
was observant or not.

As opposed to Senator Sanders, who has -- who
1 2
1 3
is also Jewish, but has said he's not observant.
1 4
Whereas Senator Lieberman is observant and is avowed
1 5
as an Orthodox Jew and carries on and keeps, as far
1 6
as I know, all Orthodox traditions.
1 7
Q.
1 8
from Reform Judaism to Conservative Judaism to
1 9
Orthodox Judaism throughout one's lifetime?
2 0
A.
Absolutely.
2 1
Q.
So if someone was raised Reform, there is no
2 2
Jewish law which prohibit him from becoming more
2 3
religious and become a Conservative Jew?
2 4
A.
2 5
And is it also true that someone could change
Absolutely not.
THE COURT:
If someone showed up to a
109

1
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,
1 0
1 1
which is why we keep a whole bunch around.

So the fact that a person shows up without a
1 2
yarmulke would not necessarily be indicative of
1 3
anything.
1 4
And it would also depend, I think, and
1 5
although I'm not completely familiar with the facts
1 6
of this case or the particulars, from -- it would
1 7
depend on where you would be and, I think, the
1 8
setting.
1 9
If you were in a synagogue and somebody showed
2 0
up and came in and did not have a yarmulke on, that
2 1
might -- and they're in their forties, fifties,
2 2
whatever it is, that may be somewhat different than
2 3
someone coming in, in a nursing home setting,
2 4
trying to make sure they come.
2 5
But, again, it would depend on the situation.
110

1
THE COURT:
THE WITNESS:
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.
1 0
It had gotten lost somewhere in the transfer
THE COURT:
Are you available tomorrow for
testimony?
THE WITNESS:
1 3
1 4
Speculation.
from the bed to the wheelchair.
1 1
1 2
It would be speculation?
If Your Honor needs me to be
available, I'll be available.
1 5
THE COURT:
1 6
MS. FINKELSTEIN:
1 7
THE COURT:
1 8
look.
1 9
start at 11:30.
2 0
Then let's close here.

Very well, Your Honor.
And tomorrow, let me just take a
I have a calendar in the morning.
MS. FINKELSTEIN:
The only concern is the
2 1
Sabbath.
2 2
it definitely a firm starting at 11:30?
2 3
long calendar, Your Honor?
2 4
2 5
We could
He has to get back to New Jersey.
THE COURT:
So is
Is it a
I would probably not have any
conferences unless it's absolutely necessary.
That
111
1
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.
Let's do it at 11:30.
THE WITNESS:
So, 11 cases.
Yeah, I just have to be out by,
you know, 3:00 at the latest.

THE COURT:
Yeah, definitely.
1 0
Okay.
1 1
You may step down.
1 2
THE WITNESS:
1 3
THE COURT:
1 4
1 5
Then we'll see you tomorrow.

We'll see everybody tomorrow.
1 6
1 7
oOo
1 8
1 9
2 0
2 1
REPORTER'S CERTIFICATION
I, AMBER MALKIE FINER, do hereby certify that
the foregoing is a true and accurate transcript.
2 2
2 3
2 4
2 5
__________________________
112
INDEX OF WITNESSES
WITNESS
DIRECT
S SPERLIN
4(F)
Y ULLMAN
30(F)
M BARUCH
50(F)
B KELSEN
67(F)
CROSS
REDIRECT
RECROSS
VOIR DIRE
25(D)
65(D)
1 0
EXHIBITS
1 1
1 2
PLAINTIFF
EXHIBIT
ID
EVD
1 3
Photograph
14
16
1 4
Photograph
22
24
1 5
Nursing home agreement
34
1 6
Form DSS 3122
36
1 7
Form DSS 2949
45
47
Three photographs
55
57
CV
70
72
1 8
1 9
2 0
2 1
2 2
2 3
2 4
2 5
6, 7 & 8
9

COUNTY OF ROCKLAND
- - - - - - - - - - - - - - - - - - - - - - X
Index No.
Petitioner,
1612/2015
against,
MENDELSON,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - X
Trial - Day#2
October 9, 2015
1 South Main Street
1 0
1 1
B E F O R E:

1 2
1 3
1 4
1 5
1 6
1 8

96 South Broadway
1 9
BY:
1 7
DENNIS LYNCH, ESQ.

2 0
2 1
2 2
2 3
2 4
2 5
BY:
BY:
BRENDON DeMAY, ESQ.

REPORTED BY:

114

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:
THE COURT:
Okay.
No, I did not.

For the record, Rabbi
Kelsen has resumed his position on the witness
stand.
1 0
And, Rabbi, I just remind you, you are still
1 1
under oath.
1 2
1 3
Do you understand that?
1 4
THE WITNESS:
1 5
THE COURT:
Absolutely, Your Honor.

Okay.
Go right ahead.
Yes.
Your
witness.
1 6
MS. FINKELSTEIN:
1 7
1 8
1 9
CONTINUED DIRECT EXAMINATION BY MS. FINKELSTEIN:
2 0
2 1
Q.
Rabbi Kelsen, if I may go back to the foundation
2 2
of Judaism.
What are -- what is the seven foundations of
2 3
2 4
Judaism?
2 5
A.
Well, Maimonides had come up with a system
115

1
where -- a codified 13 fundamental principles of
faith that he said he brought it out and drew it out
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 God
directly; that there is resurrection of the dead
following the -- following the coming of the Messiah.
1 0
Things along those lines.

We can go through all 13, if you like, but
1 1
1 2
those are the core beliefs.
1 3
Q.
1 4
Judaism that a Jewish individual should be returned
1 5
to the earth, so if the Messiah comes back they can
1 6
be resurrected, the body can be resurrected with the
1 7
soul?
1 8
A.
1 9
discusses, when they discuss the concept -- obviously
2 0
Maimonides didn't codify it into the language.
2 1
wasn't done until several centuries later.
2 2
Talmud and the commentators on the Talmud basically
2 3
tie it into two of the fundamental principles.
2 4
2 5
And does it come from those core beliefs of
It's tied into two principles.
The Talmud
It
But the
The first principles is that -- that one is

required to believe in God.
And that if -- and that
116

1
from there any violation of a commandment would,
therefore, be a rejection of that fundamental belief.
The last -- and the second point would be that
on the principle that there is a resurrection of the
dead at some point when Messiah comes, by destroying
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
1 0
13th/14th century.
1 1
Maimonides very heavily for that and said, wrote in
1 2
his section on life cycle events in his codex of
1 3
Jewish law that one who would commit a cremation is
1 4
denying two fundamental core principles.
1 5
So he codified that and relied on
One is the belief in God.
Because if God has
1 6
told us in the Bible to -- and -- and it is learned
1 7
out from other places as well, that one should be
1 8
doing a burial in the ground and you're going against
1 9
that, then you are actually denying the existence or
2 0
supremacy of God and God's mastery over all.
2 1
In addition to which if you commit -- if one
2 2
were to have a cremation done, then the cremation
2 3
would be -- would violate -- not violate, but would
2 4
show a denial of the second principle that we spoke
2 5
of, which was the resurrection of the ever dead.
117

If I'm going to destroy the body, then I'm
assuming therefore -- or I'm denying, therefore, the
concept that God is going to cause a return of those
who have pre-deceased the arrival of the Messiah,
because clearly there's no body anymore to be
resurrected.
Q.
the Messiah comes?
A.
Correct.
1 0
Q.
So by cremating the body - correct me if I'm
1 1
wrong - then you're taking away from your belief in
1 2
God?
1 3
A.
1 4
physical manifestation of a denial of belief in God
1 5
and one of the 13 core fundamental principles.
So there's no body for the soul to return to if
You are doing a physical mani -- a definitive and
1 6
THE COURT:
1 7
THE WITNESS:
1 8
THE COURT:
1 9
2 0
Let me ask you a question -Sure.

-- more importantly as concerns
this case.
Is every Jew, whether they're Reform or
2 1
Orthodox aware of this, of this core principle that
2 2
as you called it?
2 3
THE WITNESS:
2 4
2 5
It's difficult to say what
everybody is aware about obviously.

THE COURT:
I know and I understand that --
118

1
THE WITNESS:
THE COURT:
Right.
-- the defense may have an
objection to this.
some beliefs -- in my religion, for example, if
you've been to religion class one time, you would
understand certain things.
But I think -- I mean there are
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
1 0
1 1
Mitzvah proceeding?
MR. DeMAY:
The Bar Mitzvah would be a little
1 2
different.
1 3
proceedings focus on the teaching of this young man
1 4
how to - or young woman in certain Conservative or
1 5
Reform - how to actually chant from the Torah.
1 6
Most of the time Bar Mitzvah
THE COURT:
I just mentioned that, you know,
1 7
as an example.
1 8
taught.
1 9
every Jew have at one point in time in their study
2 0
of Judaism and their religion learn of this
2 1
principle, this core principle?
2 2
I don't know where it would be
But my question to you really is, would
MR. DeMAY:
In my experience they definitely
2 3
would have learned of Maimonides.
They would have
2 4
learned of Maimonides' 13 principles -- that
2 5
Maimonides has these principles.
119

1
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
1 0
I can say that people are well aware of it if they
1 1
receive any sort of Jewish education.
1 2
THE COURT:
Okay.
Let me ask you this:
1 3
During -- and I'm just going to relate to this to
1 4
my religion.
1 5
THE WITNESS:
1 6
THE COURT:
1 7
Every Sunday we recite the Nicene creed.
1 8
that includes, you know, the resurrection and
1 9
mention of the resurrection.
2 0
Please.
And maybe you'll understand why.
And
Is there something that if a Jew went to a
2 1
service that they also either repeat or
2 2
acknowledge --
2 3
THE WITNESS:
2 4
THE COURT:
2 5
THE WITNESS:
Yes.
-- each service?
Yes.
The Yigdal, Y-I-G-D-A-L,
120

1
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's included, obviously, in the Orthodox prayer
It is included in both the -- in all three.
1 0
books, but it is also included in the Conservative
1 1
and the Reform.
1 2
any way, whether it been in the English or in the
1 3
Hebrew, this concept would come forth therein.
1 4
And if you're following along in
There's also at least two or three other
1 5
places that I can think of in the daily prayer
1 6
service that, at least twice a day, if not more
1 7
than that -- I guess three times a day, we would be
1 8
saying and alluding to that in what we call the
1 9
Amidah, A-M-I-D-A-H, which is a silent prayer that
2 0
has a repetition afterwards by the leader of the
2 1
service and is the center piece of each of the
2 2
morning, afternoon and evening prayer services.
2 3
The second part, the second blessing within
2 4
the 18 blessings, paragraphs that make up that
2 5
prayer actually says and makes a reference to
121

1
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.
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.
1 0
Q.
If there is someone who follows along
Rabbi, if I may just follow-up on the judge's
questions.
If an individual attended services every
1 1
1 2
Friday and Saturday and listened to the reading from
1 3
the Torah, would that be included?
1 4
and seven days of creation, all these basic
1 5
fundamental Jewish principles, is that all included
1 6
in there?
1 7
A.
Yes.
1 8
Q.
And that would be repeated every service, every
1 9
morning and every afternoon?
2 0
A.
And evening, correct.
2 1
Q.
As well as on the High Holy Days and other
2 2
additional holidays?
2 3
A.
2 4
2 5
The 13 principles
Correct.
On the High Holidays, in fact, it's actually
mentioned many more times, because as on the High
122

1
Holidays we're talking about the concept of
repentance and the ability to make up for one's sins
and be forgiven.
at the end of this -- whatever this period would be,
but the beginning of the Messianic period is
mentioned on numerous periods.
So, the concept of the resurrection
THE COURT:
The resurrection refers to the
body?
resurrected you would need a body?
1 0
1 1
I mean, would a person understand that to be
THE WITNESS:
I mean, it says the resurrection
of the dead.
1 2
THE COURT:
Which could be the soul, right?
1 3
MR. DeMAY:
I mean, it's -- for the most part
1 4
it seems to be clear from the language it's
1 5
referring to --
1 6
THE COURT:
1 7
THE WITNESS:
Corpus?
-- the corpus.
1 8
the soul to the corpus.
1 9
actually talks about a preference.
2 0
The returning of
In fact, the Talmud
I think -- I'm not sure if the Court has ever
2 1
seen it, but there's a practice that some people
2 2
try to follow - if they can afford to, but it's
2 3
obviously not a law, but it's something that people
2 4
try to do - to have burial done in Israel.
2 5
And it's considered a very big deal to be able
123

1
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.
going to get there?
know, how are they going to do that?
And so how are they
It talks about rolling.
That's why it's preferred to be buried in
1 0
Israel, so you're that much closer when the
1 1
Messianic period begins.
1 2
You
THE COURT:
You said something that may very
1 3
well be extremely relevant here.
1 4
something about the concept of the return of the
1 5
soul to the corpus.
1 6
You said
Is this something that's understood and
1 7
something that any -- no matter which one of the
1 8
three branches a Jewish person would be a member
1 9
of, would understand that it's a return of the soul
2 0
to the corpus so therefore you need the body?
2 1
THE WITNESS:
I believe that the language
2 2
itself is very clear.
2 3
to what everybody teaches --
2 4
THE COURT:
2 5
THE WITNESS:
I can obviously not attest
I see.
-- on their own.
But I think
124

1
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.
official position of the Reform movement is that
there would be a resurrection.
person were to say that doesn't make any sense to
In other words, the technical or
However, if a
1 0
me, we don't -- the Reform movement wouldn't brand
1 1
them a heretic based on that.
1 2
THE COURT:
I think you did testify yesterday,
1 3
because I think it was sort of a -- it was a
1 4
question along the lines of how do you tell one
1 5
from the other.
1 6
their -- by their dress.
1 7
THE WITNESS:
1 8
THE COURT:
1 9
And you tell -- you can tell by
Sometimes.
Sometimes, right.
Or the way they
wear their hair.
2 0
THE WITNESS:
Yes.
2 1
THE COURT:
2 2
How does one choose to become one or the
Payos and things like that.
2 3
other?
And is there something officially that's
2 4
done in making a choice?
2 5
up and say I'm going to be a member the Reform
You know, one day I wake
125

1
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.
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
1 0
tradition.
1 1
parents raise you.
1 2
How did the family -- how did you your
And other times, and increasingly so according
1 3
to the Pew research study that was done in 2014
1 4
that I referred to yesterday, increasingly as young
1 5
people are going off to school and spending time
1 6
studying where they come from and studying religion
1 7
and studying theology, so we're finding very often
1 8
that people are coming to -- coming from wherever
1 9
they're coming from are re-affirming or learning or
2 0
affirming their beliefs based on the encounters
2 1
that they would have on college campus or whenever
2 2
they may be or people they meet.
2 3
And now that we have people traveling all over
2 4
the world and a person from Ohio can go to Harvard
2 5
or could go to Columbia and come in contact with
126

1
different people and be can exposed to certain
ideas.
actually decided -- I actually -- you know, that
makes sense to me and I think I'll start doing
that.
A person may say oh, you know what?
Q.
people they're with could effect the level of their
observance?
A.
Absolutely.
1 0
Q.
So if an individual -- and I don't mean to
1 1
interrupt -THE COURT:
1 2
1 3
You're saying environmental -- environment in the
Q.
No, go ahead.
-- with the next question.
1 4
If an individual attended Orthodox services,
1 5
led by an Orthodox rabbi, these principles in which
1 6
the Judge just asked you about, the principle of
1 7
resurrection, the seven days of creation, the
1 8
foundation, would that all be included in the sermon,
1 9
in the Torah reading and in the prayers?
2 0
A.
2 1
Absolutely.
THE COURT:
Here we have, it seemed to me
2 2
anyway, almost like a non-denominational type of
2 3
situation, where somebody's in adult facility and
2 4
there are services, but I don't think the services
2 5
were denoted as Orthodox services, Conservative
127

1
services or Reform?
THE WITNESS:
So, there are different nursing
homes in different places.
There's one -- there
are plenty in the City.
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,
You know, I have family
1 0
strict laws of kosher for everybody who is here, at
1 1
least within the meals they're serving there.
1 2
would follow the laws of the Sabbath.
1 3
have an elevator set up along those lines so that
1 4
it would stop at each floor, so one does not have
1 5
to press any of the buttons.
They
They might
1 6
So, here in Rockland County, I guess, you
1 7
would say there may be -- I know when I was -- when
1 8
I was first -- I actually, about two years ago, did
1 9
an Article 81 certification course.
2 0
people that I was appointed to act as guardian ad
2 1
litem for was in a Jewish nursing facility that was
2 2
nondenominational.
2 3
That are other places that I've been doing.
2 4
There's the Care-One Facility, rehabilitation
2 5
facility in Teaneck, in New Jersey, which has
And one of the
And the chaplain was a woman.
128

Orthodox and run under Orthodox auspices.
THE COURT:
You're not familiar with
Evergreen?
THE WITNESS:
No.
THE COURT:
MS. FINKELSTEIN:
Okay.
Why don't you continue.

Thank you.
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 cremates
1 0
that body, what happens to the soul when the Messiah
1 1
comes?
1 2
A.
1 3
nowhere to go.
1 4
Q.
For eternity?
1 5
A.
Correct.
1 6
Q.
Now we talked -- I know Judge Alfieri had some
1 7
questions about the level of sins and he made some
1 8
comparisons to different faiths?
According to the Talmud, the soul would have
1 9
THE COURT:
I said levels of sins?
2 0
MS. FINKELSTEIN:
You were
saying there's a cardinal sin.
2 1
2 2
THE COURT:
2 3
MS. FINKELSTEIN:
Oh, right.
You cited different level of
sins, or categorized sins, I should say.
2 4
2 5
Levels of sins.
Q.
If a comparison of sins under Jewish faith, basic
129

1
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 that
compare to a sin of cremation of a Jewish body?
A.
The issue would be as follows:
So it's actually a very interesting question.
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 one
1 0
is -- one would receive the death penalty; although,
1 1
as the Talmud tells us it was never carried out.
1 2
there would be requirement for repentance, which is
1 3
described as prayer, sacrifices etc.
1 4
something we can point at it and say okay, that's
1 5
something where you would have a certain prescribed
1 6
method in which to be able to do repentance.
1 7
are -- and in and of itself it would be a one-time
1 8
action.
And that is
There
1 9
2 0
proceeding.)
2 1
Q.
2 2
action.
2 3
A.
2 4
would be able to do repentance.
2 5
But
You said in and of itself those are a one-time

You may proceed.
It would be a one-time action for which somebody
In fact, we just passed Yom Kippur, a fast
130

1
day.
So one of the questions that comes up, for
example, would be if somebody were to break the fast,
would eat on Yom Kippur.
shouldn't fast the rest of the day or that they
should continue from that point forward.
So, does that mean they
The answer is they should continue from that
point further, that one act of eating has its own --
it's considered a sin.
But, in other words, that you haven't irreparably
It has to be dealt with.
1 0
harmed your standing -- your standing, for lack of a
1 1
better term.
Cremation, because it would be a renunciation,
1 2
1 3
essentially, of belief in God and belief in the core
1 4
fundamental principles, so cremation is something
1 5
that's kind of you really can't walk back from.

In other words, you can -- a person could come
1 6
1 7
around and say you know what, I was wrong at that
1 8
point.
1 9
dealt with.
2 0
for that, but that actual act of denial of the --
2 1
essentially a denial of God and God's laws and God's
2 2
authority over man would be considered to be what we
2 3
say in transliteration, a kofer b'ikar.
2 4
how you want to translate that, but basically a
2 5
renunciator of a fundamental ikar, meaning a
I should not have done that.
And that can be
And a person can try to do repentance
I don't know
131

1
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.
repentance, but for the individual cremated there is
So a person who performs cremation can do
1 0
no coming back from that, correct?
1 1
A.
1 2
there are situations that it would be dependent upon.
1 3
There is no coming back from that.
Obviously
If you're talking about a situation in the
1 4
holocaust, for example, so that would be a different
1 5
situation.
1 6
A person who puts down in their -- as a choice
1 7
of burial that they wish to be cremated, if that's
1 8
what they were to put down amongst their will or
1 9
their letter of intent of what they would like, what
2 0
they would like done upon their passing, that would
2 1
be something that would be rather hard to come back
2 2
from, considering they're not around anymore.
2 3
THE COURT:
I just wanted to do -- I think
2 4
counsel may have touched on this.
2 5
well have answered it.
You may very
132

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:
THE WITNESS:
THE COURT:
THE WITNESS:
THE COURT:
1 0
Is resurrection one of them -Yes.

The soul to the body?
Yes.
Always the same regardless of
whether you're in a Conservative or Orthodox --
1 1
THE WITNESS:
1 2
Correct.
It's not one of those
1 3
things that have been changed.
1 4
Yigdal as well as the Amidah.
It will be in
It's there.
1 5
Q.
Is that a fundamental belief of Judaism?
1 6
A.
Yes.
1 7
Q.
That is in Orthodox, Conservative and Reform?
1 8
A.
Yes.
1 9
Q.
Thank you.
2 0
Once again that same principle is in - as you
2 1
said you researched it - in Reform, Conservative and
2 2
Orthodox prayer books?
2 3
A.
That's correct.
2 4
MR. DeMAY:
Objection.
Leading, Your Honor.
2 5
THE COURT:
I'm going to allow it.
I think
133

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.
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
In your expert opinion, Rabbi - I'll do the
1 0
who chose to reside in a kosher residence, someone
1 1
who attended and participated in all holidays, not
1 2
just High Holy Days, but all holidays, someone who
1 3
chose to have a late meal for purposes of Yom Kippur
1 4
fasting, someone who participated in the Passover
1 5
seders, someone who lit the candles and said the
1 6
prayers, someone who after services would sit with
1 7
the rabbi and discuss the Torah and Moses and God and
1 8
did not provide any written wishes as to the
1 9
disposition of there remains, what would you instruct
2 0
that person to do with the body?
2 1
MR. DeMAY:
2 2
same question from yesterday.
2 3
hypothetical and it's beyond his realm of
2 4
expertise.
2 5
MS. FINKELSTEIN:
It's the
It's an improper
Judge, he sat here for two
134

1
days.
He can cite to every book.
He's a scholar.
counsel for his qualifications or qualifying him as
an expert in Jewish law and Talmudic study.
MR. DeMAY:
It's plainly --
And there was no objection by
He's an expert on Jewish law.
MS. FINKELSTEIN:
MR. DeMAY:
He's an expert.
If I may finish?
-- an attempt to render an
expert --
1 0
MS. FINKELSTEIN:
If I may finish?
1 1
He is an expert.
And doing so, in not
1 2
opposing the expertise, he's entitled to his
1 3
opinion on a hypothetical questions.
1 4
foundation has led up to this, Your Honor.
1 5
asked him pieces of this question and now I'm just
1 6
putting this question in its entirety.
1 7
1 8
MR. DeMAY:
And the whole

You've
It's a plain attempt to have the
expert opine on what the decedent would have done.
1 9
MS. FINKELSTEIN:
2 0
MR. DeMAY:
It's an improper question.
2 1
THE COURT:
No, the question is what he would
2 2
now --
2 3
MS. FINKELSTEIN:
2 4
THE COURT:
2 5
It' a hypothetical.
What opinion he would give.
I'll tell you why I have a problem
with the question.
You instruct whom?
135
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.
MS. FINKELSTEIN:
THE COURT:
Okay.
As a rabbi.
I missed that part of the
question.
Do you understand that's the question?
In
other words, someone comes to you with all the
1 0
qualifications that the attorney just stated on the
1 1
record, I've got a decedent -- I've got a decedent
1 2
here.
This is what his life was like.
1 3
I do.
That's what she's asking.
What should
1 4
Q.
With no written instructions from the decedent.
1 5
What would you do as a rabbi and an expert in this
1 6
area of law?
THE COURT:
1 7
objection.
1 8
You may answer the question.
1 9
A.
In such a circumstances I would tell them they
2 0
should follow Jewish tradition and do a Jewish burial
2 1
as prescribed by Jewish law.
2 2
Q.
Why is that, sir?
2 3
A.
Based upon the hypothetical that you've given,
2 4
which I'm going to assume has some bearing based on
2 5
the objections, that a person who chooses to live in
136

1
an Orthodox -- in a Orthodox establishment and who
chooses -- and is showing a -- demonstrating through
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 well.
And as such I would say that if that's the case, they
would want to be following Jewish law.
following Jewish law in other areas of their life,
If they're
1 0
then they would want to follow Jewish law in terms of
1 1
burial.
1 2
Q.
1 3
Orthodox, Conservative or Reform, with the factors I
1 4
provided you with?
1 5
A.
I don't believe so.
1 6
Q.
Would that change your opinion whatsoever?
1 7
A.
No.
With those factors, would it matter if someone is
1 8
MS. FINKELSTEIN:
1 9
THE COURT:
Thank you.
Mr. DeMay.
2 0
2 1
2 2
2 3
Q.
2 4
A.
Good afternoon.
2 5
Q.
When were you engaged to work on this lawsuit?
137

1
A.
I actually was never engaged from the strict
concept of engaged.
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 law
in Rockland County.
Q.
Are you being paid?
A.
No, I have not received any payment.
lunch yesterday, but other than that, I have not
I was contacted last week by the
1 0
received any payment.
1 1
Q.
1 2
very, very large corpus of information.
I did have
Yesterday, you testified that Jewish law covers a
Do you remember that?
1 3
1 4
A.
Yes.
1 5
Q.
Covering all -- covering the words the Moses all
1 6
the way through the doctrine of the present day,
1 7
right?
1 8
A.
Yes.
1 9
Q.
Do you recall testifying to that?
2 0
A.
Yes.
2 1
Q.
And do you recall testifying that that body of
2 2
laws is growing and -- it's constantly growing and
2 3
continuing?
2 4
A.
Yes.
2 5
Q.
And Jewish law is a very wide entity that governs
I'm not sure.
What's the question?
138

1
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.
morning.
M-O-D-E-H, A-N-I, which essentially says - actually
it's pertinent to this - is in English says I thanks
1 0
God for -- I thank God for returning the soul to the
1 1
body and essentially resurrecting the individual in
1 2
the morning.
1 3
leaves the body and then comes back in the morning.
1 4
And so, we thank God for the miracle of being able to
1 5
wake up in the morning.
The first thing would be to wake up in the

There's a prayer that is said, Modeh Ani
The idea being that at night the soul
Following that one -- one washes one's hands.
1 6
1 7
There are several prayers that come after that.
And
1 8
there are laws that are brought down on which shoe
1 9
goes on first.
2 0
tied first and then the left shoe, things of that
2 1
nature.
2 2
Q.
Those are required under Jewish law?
2 3
A.
Those are listed -- those are listed in the Codex
2 4
of Jewish Law, the Shulchan Aruch, which is written
2 5
by Rabbi Joseph Caro, as I indicated earlier, in the
The right shoes goes on first and
139

1
13th/14th century.
Q.
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.
And that's in the morning.
Does Jewish law list
Each of these corresponds to the time of a
1 0
1 1
sacrifice would have been brought in ancient times,
1 2
in the temple in Jerusalem and since that period of
1 3
time has been replaced with prayers following the
1 4
destruction of the Temple.
1 5
Before going to sleep at night, there's
1 6
another prayer that one says and recites before going
1 7
to sleep at night, which is the Shema, which is
1 8
S-H-E-M-A, whatever it is.
1 9
something that is said along with several paragraphs
2 0
before -- basically before one goes to sleep at
2 1
night.
2 2
other things in there also, but that's basically the
2 3
gist of it.
2 4
Q.
What is a tallit?
2 5
A.
I'm sorry?
But again, that's
And then that's -- I mean, there's a couple
140

1
Q.
A tallit or a tallis?
A.
A tallis is a prayer shawl.
on where you are, but it's basically a long cloth
with four corners on it upon which one places strings
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
It is a -- depending
used frequently during burial that a person would be
1 0
wrapped in their tallis when they are buried.
1 1
that part is not necessarily the only way the burial
1 2
can be done.
1 3
Sometimes the tallis is past down from generation to
1 4
generation as a family legacy and heirloom.
1 5
Q.
What is tefillin?
1 6
A.
Tefillin are what would be referred to as
1 7
phylacteries.
1 8
paragraphs of the Shema's prayer in those boxes.
1 9
There is one that goes on the arm and one that goes
2 0
on the forehead.
2 1
But
It can be done with other cloth.
They are leather boxes that contain
And these come -- these boxes, leather boxes
2 2
come with leather straps.
And one wraps those straps
2 3
around one's arm around, around the fingers and puts
2 4
the box on one's forehead with the straps that come
2 5
down over the shoulders.
141

1
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 inside.
They're actually written by a scribe.
to be written just like in a way very similar to the
way a Torah scroll a written.
And they have
And so because of that and because there is a
1 0
1 1
concern one would not able to keep the proper mindset
1 2
while wearing these, so the time frame of about two
1 3
millennia ago that one would wear them was
1 4
concentrated to simply during the morning services.
1 5
Q.
And how long are the leather straps?
1 6
A.
The leather straps themselves would vary from --
1 7
I guess from person to person in general.
1 8
very good question.
1 9
down, took a tape measure to measure them, but
2 0
essentially they are long enough -- on the
2 1
phylacteries for the arm, they're long enough to be
2 2
wrapped around the forearm seven times and then
2 3
around the fingers three times.
2 4
it out, I guess it would be, I don't know, maybe
2 5
five feet, maybe stretching it out a little bit
It's a
I never actually measured, sat
So with stretching
142

1
perhaps.
The shoulder, the one for its head goes around
the head and then comes down.
And on most pairs, if
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
1 0
the age of 12 for a girl we are -- they're considered
1 1
to have reached the age of majority in Jewish law, as
1 2
opposed to 18 in secular law, in American law.
1 3
And at 13 - your referred to a Bar Mitzvah for
1 4
a boy - the person becomes responsible for their own
1 5
actions, becomes responsible for fulfilling Jewish
1 6
law and carrying out the commandments and is
1 7
responsible for their own actions.
1 8
towards a quorum for a prayer service.
1 9
relied upon as a witness in a Beit Din.
2 0
basically reach adulthood within Jewish law.
2 1
what a Bar Mitzvah technically is.
2 2
They be counted
They can be
And they
That's
There is also very often a party that
2 3
accompanies that, which becomes a whole other thing,
2 4
depending on where you are.
2 5
or very small thing or people can rent boats and
Some people do a quiet
143

1
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 something
1 0
that the Reform movement began doing maybe 25 years
1 1
ago.
1 2
person reaching adulthood.
1 3
done at the age of 16, which was sort of
1 4
confirming -- sort of going along with the Sweet 16
1 5
sort of thing.
1 6
There was basically the idea of confirming a

It's very often being
And if one goes back and looks through Reform
1 7
movement's discussions, they go back and forth.
1 8
was one of the objections to introducing this type of
1 9
a ceremony of sorts, but the idea was to create
2 0
something that would recognize, I guess, the
2 1
maturation of the individual.
2 2
Most of the time it's done for girls.
That
It was
2 3
originally done for girls because at a Bar Mitzvah
2 4
the tradition usually is, at least in the United
2 5
States in modern times, is that the young man reads
144

1
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 does
1 0
not recognize it is as an official religious act or
1 1
service, but does not necessarily dissuade people or
1 2
discourage people from taking -- doing something to
1 3
take -- to mark a young person's maturation and
1 4
understanding of their coming of age so to speak and
1 5
their taking their place within the Jewish community
1 6
as well as becoming required to fulfill the
1 7
commandments.
1 8
THE COURT:
My understanding of confirmation
1 9
is it's not a Sweet 16 thing.
2 0
of your faith, your belief in the faith --
2 1
THE WITNESS:
2 2
THE COURT:
2 3
THE WITNESS:
It's a confirmation
Correct.
-- your membership of the faith.
Right.
So within Judaism we
2 4
have the Bar Mitzvah or Bat Mitzvah, which happens
2 5
regardless of any action.
That happens when the
145

1
girl turns 12.
Mitzvah.
has varying customs and ways people will do that.
Sometimes it will be done with a small family
gathering.
party.
or the Wall Street Journal a couple week ago that
somebody spent a million dollars on his daughter's
Bat Mitzvah.
1 0
1 1
Chronologically she's now Bat
How that is celebrated is -- you know,
Other times will be done with a large
I think there was an article in the Times
You know, that's -- you know, that's
something that there is a wide range.

Same thing with a Bar Mitzvah.
Boy turns --
1 2
at the point where the boy turns 13 he is now Bar
1 3
Mitzvah.
1 4
either through reading from the Torah scroll or
1 5
being called up for a blessing at the Torah or
1 6
something else of that nature to do a public
1 7
demonstration, but it happens regardless.
1 8
We mark that occasion through various --
The confirmation practice or procedure is put
1 9
in place.
It was added.
Originally, the Reform
2 0
movement brought it up because they said a lot of
2 1
kids are in public school.
2 2
most children from Reform homes and families are in
2 3
public school.
2 4
having sweet 16's.
2 5
do we get to do.
Most of the children --
So, the kids are all turning 16 and

And they were being asked what
And the kids are saying our
146

1
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.
sort of a -- of an acknowledgment of that, a
recognition of that sort.
So, they wanted to do have some
So the confirmation itself has no basis in
religion at the age of 16.
It has no basis in
religion of any sort.
Reform movement did not discourage people from
It's something that the
1 0
doing in terms of just being a reaffirmation or act
1 1
of confirmation as Your Honor just indicated of
1 2
one's faith and coming of age.
1 3
Q.
Rabbi, are you familiar with the CCAR?
1 4
A.
Yes, the Central Conference of American Rabbis.
1 5
Q.
That's the oldest and largest rabbinical
1 6
organization in North America, right?
1 7
A.
That's what they say on their website, yes.
1 8
Q.
And they publish -- do you have any reason to
1 9
doubt it?
2 0
A.
2 1
no idea if three people got together on Manhattan's
2 2
Lower East Side in the 1850's and decided to
2 3
establish something.
2 4
largest rabbinical conference.
2 5
No, I have no idea what existed before.
I have
But as far as I know it's the
The Pittsburgh platform, which was the main --
147

1
was the first meeting in setting forth of Reform
Judaism principles in 1859.
doubt that that's how long they've been around.
Q.
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.
So, I have no reason to
And they publish responsa on issues pertaining to
They should be, yes.
That's -- that's --
1 0
that's -- according to the CCAR and the Reform
1 1
movement -- the Reform movement's main body the
1 2
Hebrew Union College and School of Judaism, which are
1 3
sort of somewhat affiliated, the CCAR responsa are
1 4
essentially questions posed and then the answers
1 5
given forth for Reform Judaism.
1 6
Q.
1 7
this case?
1 8
A.
I've seen no filings at all in this case.
1 9
Q.
So you have not seen the verified petition dated
2 0
September 20th --
2 1
A.
No.
2 2
Q.
-- 2015?
I'd like to hand you a copy.
2 3
2 4
2 5
Rabbi, are you familiar with all the filings in
A.
Okay.
MS. FINKELSTEIN:
If I may see it first before
148

1
you hand it up?
If I can see what you're handing
up?
what's being provided to the witness?
Before the witness is shown, can I make sure
THE COURT:
Just mark it for identification.
MS. FINKELSTEIN:
THE COURT:
(Whereupon, a pleading was marked Defendant's
This is Respondent's A.
Exhibit A for identification.)
THE COURT OFFICER:
A for ID.
Show the
witness?
1 0
1 1
THE WITNESS:
Yes.
1 2
MR. DeMAY:
1 3
Yes, please.
1 4
Q.
Rabbi, do you have the exhibit in front of you?
1 5
A.
Yes, I do.
1 6
Q.
Can you please turn to the -THE COURT:
1 7
1 8
this?
1 9
to Show Cause?
2 0
First of all, could you identify
Wait a minute.
MR. DeMAY:
You're showing me the Order
These are the initial pleadings in
2 1
this case, Your Honor.
2 2
for an Order to Show Cause.
2 3
MS. FINKELSTEIN:
It's the initial petition
Is he providing the initial
2 4
one which was actually denied by Your Honor, not
2 5
the subsequent filing?
149

MR. DeMAY:
Everything is in here, Your Honor,
including the subsequent filing.
MS. FINKELSTEIN:
THE COURT:
I would --
All right.
I'll take notice of
the fact these are the legal papers filed in these
proceedings.
it, though I'm not --
And you have something attached to
MR. DeMAY:
Those are the exhibits to the
petition, yes.
MS. FINKELSTEIN:
1 0
But is it separated, Your
1 1
Honor, from which was the initial filing, which
1 2
Your Honor did not sign the Order to Show Cause and
1 3
then the subsequent filing or is it grouped
1 4
together and co-mingled?

Mine appears to be co-mingled.
1 5
sure which one is which.
1 6
MR. DeMAY:
1 7
I want to make
I think that's important.
These are all the case filings in
the case, Your Honor.
1 8
THE COURT:
1 9
Okay.
Do you have a question for
the witness?
2 0
2 1
Q.
Rabbi, do you see the fifth page in this document
2 2
is the attorney's affirmation in support of
2 3
re-hearing and re-argument?
2 4
A.
2 5
re-hearing and re-argument, yes.
Yes.
Attorney's affirmation in support of
150

MS. FINKELSTEIN:
That's what page?
In mine
it's the sixth page.
THE WITNESS:
Okay.
Mine is the sixth page as well.
Q.
The sixth page.
And then do you see there
are some exhibits to that document, Exhibit A,
Exhibit B?
A.
written down.
Q.
I haven't gotten that far yet.
I see they're
Yes, I see Exhibit A marked, B, C.
You can stop at Exhibit C.
I'm going to ask you
1 0
about Exhibit C.
1 1
A.
Sure.
1 2
Q.
Do you see that Exhibit C is an expert of a book
1 3
titled, "When a Jew Dies, the Ethnography of a
1 4
Bereaved Son," by Samuel C. Heilman?
1 5
A.
Yes.
1 6
Q.
Do you see the excerpt beginning at page 232 and
1 7
continuing to page 234 from that document?
1 8
MS. FINKELSTEIN:
Your Honor, I would just
1 9
object on the grounds this is not in evidence, Your
2 0
Honor.
2 1
I don't know if he's referring to an exhibit that
2 2
was in the initial pleadings, which was not
2 3
actually signed Your Honor.
2 4
it into evidence.
2 5
grounds.
This witness has never seen this document.
And he has not moved
So, I would object on those
151

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.
six page document.
read it.
can't read from or refer to something that's not in
evidence.
This is a five or
He's not had an opportunity to
And it's not in evidence, so the witness
1 0
MR. DeMAY:
It also goes to his expertise.
1 1
THE COURT:
Well, he's not reading from it.
1 2
MS. FINKELSTEIN:
He's going to question, I
assume.
1 3
THE COURT:
1 4
Do you want to move it into
evidence?
1 5
MR. DeMAY:
1 6
I don't need to move it into
1 7
evidence, but I'm permitted to ask him about the
1 8
document.
It's a document in the case.
THE COURT:
1 9
objection.
2 0
MS. FINKELSTEIN:
2 1
Is he asking him to read
from an item in that document?
2 2
THE COURT:
2 3
He's not reading from it.
2 4
Q.
Rabbi, are you familiar with Professor Heilman?
2 5
A.
Yes, he's a sociologist at City University -- I
152

1
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.
if he is holding that chair still, but he was holding
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.
1 0
Unless you have independent --
THE WITNESS:
1 1
I have independent knowledge.
heard him speak and I met him on several occasions.
1 2
THE COURT:
1 3
Overruled on the objection.
You
can continue your answer.
1 4
1 5
I don't know
A.
That's it.
THE COURT:
1 6
Okay.
1 7
Q.
Rabbi, do you agree with Professor Heilman's
1 8
statement that cremation is anathema to Jewish
1 9
tradition, especially after Auschwitz?
2 0
A.
Yes.
2 1
Q.
Do you agree with Professor Heilman's statement
2 2
that nevertheless, there are surely Jews for whom all
2 3
these rights and customs are ruins of a Judaism they
2 4
have long since abandoned and to which they refuse to
2 5
return in a world where for many religion is no
153

1
longer a matter of fate, but purely one of choice.
These Jews reject a pre-fabricated set of answers and
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.
1 0
A.
Where are you reading from because it's a long
1 1
quote?
1 2
Q.
1 3
233.
It appears at the bottom of page 232 into page
1 4
MS. FINKELSTEIN:
I would object, Your Honor.
1 5
MR. DeMAY:
Or have the question read back.
1 6
THE COURT:
You know, I am going to sustain
1 7
that objection.
Come over to side bar.
(Whereupon, Ms. Finkelstein, Mr. DeMay and Mr.
1 8
Holwell conferred with the Judge at side bar.)
1 9
THE COURT:
2 0
The objection is sustained.
2 1
Q.
Rabbi, you said you're familiar with Professor
2 2
Heilman's work?
2 3
A.
2 4
heard him speak on occasion.
2 5
mini courses that he gave and I've met him at various
I haven't read everything he's written, but I

I attended a couple of
154

1
functions and occasions over the years.
Q.
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
Approximately how many times have you heard him
1 0
that time were of interest.
They were being given in
1 1
a synagogue near where I lived when I was in college,
1 2
in rabbinical school.
1 3
I went to hear him.
1 4
Q.
1 5
his opinions, right?
1 6
A.
1 7
just heard he held a chair.
1 8
particular knowledge at that point of him or his
1 9
belief system or anything else of that nature.
2 0
seemed like it was an interesting topic and I had
2 1
never heard him speak.
2 2
Q.
2 3
to hear him speak?
2 4
A.
2 5
I believe, four or five lectures over -- it was an
So, he seemed interesting, so
And you went to hear him speak because you value
No, not necessarily.
At the time I'd actually

I did not have any
It
After the first time you heard him, you continued
It was a mini course.
So the course itself was,
155

1
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 was
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 slot
1 0
to speak for ten or 15 minutes, whatever it is.
1 1
Q.
1 2
across his writings, correct?
1 3
A.
1 4
I don't utilize them.
1 5
Q.
1 6
agree or disagree with his statements, right?
1 7
A.
1 8
He may make a statement that I do not agree with.
Do you -- in your expert research, you've come
I've seen the writings.
And even though you are an expert, you might
I -- he may make a statement that I agree with.
THE COURT:
1 9
I don't rely on them and
Is that depending on topic or his
opinion?
2 0
THE WITNESS:
2 1
It depends on the topic or
2 2
opinion.
2 3
sky is blue, so that's fine.
2 4
else that I may not agree with.
2 5
Q.
It depends on -- I mean, if he says the

He may say something
Do you think Professor Heilman offers valuable
156

1
perspectives on Jewish traditions?
MS. FINKELSTEIN:
THE COURT:
I do not.
Objection.
Overruled.
You can answer.
A.
I honestly do not believe so.
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
1 0
commentary very often or his positions.
1 1
Q.
So you went to his mini course, right?
1 2
A.
That's correct.
1 3
Q.
And you kept going to each event in the mini
1 4
course, right?
1 5
A.
I went to five -- four or five of them.
1 6
Q.
You didn't stop going, right?
1 7
A.
No.
1 8
Q.
Do you consider professor Heilman to be an
1 9
expert, even if you disagree with his opinions?
2 0
MS. FINKELSTEIN:
2 1
THE COURT:
Objection.
Overruled.
2 2
A.
An expert in what?
2 3
Q.
In Jewish traditions?
2 4
MS. FINKELSTEIN:
2 5
THE COURT:
Objection.
Overruled.
157

1
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, but
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.
conjecture based or anecdotal, rather than being
based on any scientific research.
Most of the writings that I've come across are
1 0
Q.
1 1
York, right?
1 2
A.
That is correct.
1 3
Q.
And he holds the Harold M. Proshansky Chair in
1 4
Jewish Studies and Sociology at the City University
1 5
of New York; is that right?
1 6
A.
1 7
don't know if he still does.
1 8
Q.
1 9
expert in Jewish studies and sociology?
2 0
He's a professor at the City University of New
He did at the time that this was printed.
Do you believe that Professor Heilman is an
MS. FINKELSTEIN:
Objection.
He can ask the
2 1
question ten different ways, from ten different
2 2
sides, the witness has already answered he would
2 3
not qualify him as an expert.
2 4
colors his commentaries, that it is conjecture,
2 5
anecdotal information.
He said that he
158

1
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
1 0
talking about.
It's if his writings are
1 1
authoritative.
That's the criteria.
1 2
MR. DeMAY:
Yes, I'm permitted to ask that.
1 3
THE COURT:
Not necessarily the expertise, but
1 4
generally authoritative or, quite frankly, the
1 5
article or the writing being authoritative is
1 6
what's normally -- if you're asking him to speak on
1 7
something in particular, the writing has to be
1 8
deemed authoritative.
1 9
Speaking of which, authoritative that is, I
2 0
have to break.
The administrative judge is going
2 1
to give me a phone call.
2 2
come back at 2 o'clock.
So we'll break and we'll

Okay.
2 3
You're good with that?
2 4
THE WITNESS:
2 5
THE COURT:
That's fine.
Thank you.
Okay.
We'll see you
159

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.
1 0
1 1
1 2
THE COURT:
Mr. DeMay.
1 3
MR. DeMAY:
May I just have a minute, Your
Honor?
1 4
1 5
THE COURT:
Sure.
1 6

proceedings.)
1 7
1 8
MR. DeMAY:
Good afternoon, Your Honor.
1 9
THE COURT:
Go right ahead.
2 0
2 1
CONTINUED CROSS-EXAMINATION BY MR. DEMAY:
2 2
2 3
Q.
Rabbi, you testified that the CCAR responsa are
2 4
definitive statements of Reform Jewish law, right?
2 5
A.
Yes.
160

1
Q.
Are you familiar with CCAR responsa 5766.2?
A.
I would have to see it to see if I was familiar
with it.
look at the actual responsa.
The designation I'm not.
I have to take a
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.
1 0
THE COURT:
It's Respondent's B.
1 1
(Whereupon, a CCAR document was marked

Defendant's Exhibit B for identification.)
1 2
1 3
Q.
1 4
Reform Responsa 191 titled, "The Ashes of a Couple in
1 5
a Single Urn"?
1 6
A.
1 7
of it if front of me, but I have seen it.
1 8
1 9
2 0
Rabbi, are you familiar with CCAR New American
I've seen -- I've seen it.
MR. DeMAY:
I don't have a copy
I'd like to offer a copy of that
responsa as Defendant's Exhibit C.

THE COURT:
Is there anything else that you
2 1
are going to be offering?
2 2
court reporter, if you do.
You can give them to the

Let her mark it.
2 3
MR. DeMAY:
For now this is it, Your Honor.
2 4
THE COURT:
All right.
2 5
(Whereupon a CCAR document was marked as
Mark that as C.
161

Defendant's Exhibit C for identification.)
COURT OFFICER:
C is marked for ID.
MR. DeMAY:
to the witness?
THE COURT:
Your Honor, may I show Exhibit C
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.
1 0
Q.
And is it a copy of the New American Reform
1 1
Responsa 191, "The Ashes of a Couple in a Single
1 2
Urn"?
1 3
A.
It appears to be.
1 4
Q.
Do you see there is a question and an answer?
1 5
A.
Yes.
1 6
Q.
And do you see that the first sentence of the
1 7
answer is Reform Jewish practice permits cremation?

MS. FINKELSTEIN:
1 8
He's
reading from a document not in evidence.
1 9
THE COURT:
2 0
You can read it to yourself.
2 1
Q.
Do you see where it says that, Rabbi?
2 2
A.
I do see that, yes.
2 3
Q.
Do you agree with the statement in CCAR responsa
2 4
191, "The Ashes of a couple in a Single Urn," that
2 5
Reform Jewish practice permits cremation?
162

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.
entire responsa.
Whether or not he's familiar with the
MR. DeMAY:
The rabbi has acknowledge that
CCAR are definitive and authoritative statements,
repeatedly acknowledged.
THE COURT:
You want to offer this in evidence
1 1
MR. DeMAY:
If the Court permits, yes.
1 2
THE COURT:
All right.
1 3
MS. FINKELSTEIN:
1 0
then?
Any objection?
He testified they're
1 4
definitive statements in the Reform movement, is
1 5
that what you just recited?
1 6
MR. DeMAY:
Yes.
1 7
THE COURT:
You can mark it.
1 8
You're marking
both or just the one?
1 9
MR. DeMAY:
For now both, Your Honor.
2 0
THE COURT:
Any objection to either B or C?
2 1
2 2
Any objection to B or C?
MS. FINKELSTEIN:
2 3
Honor, if permitted?
2 4
MR. DeMAY:
2 5
Your Honor.
I'd like to voir dire, Your
It's Petitioner's expert witness,
They proffered him as an expert.
163

MS. FINKELSTEIN:
I'm not questioning the
credibility of my witness or the expertise.
specific to these documents, Your Honor.

THE COURT:
Well, let's get them identified,
first of all.
What are they?
THE WITNESS:
1 0
I'm
The court officer took them
back.
THE WITNESS:
The first one actually, Exhibit
1 1
B, I had not seen.
1 2
before.
1 3
THE COURT:
1 4
THE WITNESS:
This one I have actually seen
But what are they?

These are -- Exhibit B is a
1 5
printout from the Central Conference of American
1 6
Rabbis' Reform movement's rabbinical arm responsa
1 7
and it is dealing with the question of what one
1 8
should do when a parent requests cremation.
1 9
2 0
2 1
THE COURT:
So how are these produced?
mean, what is the process?

THE WITNESS:
The process generally by which
2 2
these responsa are produced in terms of having the
2 3
conclusions reached you're asking or in terms of
2 4
physically --
2 5
THE COURT:
Well, they're asked questions and
164

1
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.
rabbi, who submitted it to the -- to higher ups
within the organization.
somebody -- that a person, an individual submits
the question themselves directly.
Either someone has asked their
It could be that
It could be that
1 0
these are things that came up at their national or
1 1
annual or bi-annual conferences or discussions that
1 2
they thought were of interest, that they thought
1 3
they would like to look into and discuss.
1 4
1 5
1 6
THE COURT:
Is this a group of rabbis that get
together and answer these questions?

THE WITNESS:
There is a -- what they call a
1 7
Halacha or a Jewish law committee from the CCAR.
1 8
It's a sub-committee, I guess we would call it, of
1 9
the general body of the CCAR.
2 0
THE COURT:
2 1
to their conduct?
2 2
THE WITNESS:
Do rabbis rely on these as a guide
Yes.
They look at it.
It's --
2 3
it definitely would be guiding.
In many cases it's
2 4
advisory, but they would take it as advisory.
2 5
Again within Reform there is a little bit more
165

1
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.
1 0
THE COURT:
1 1
Which one would you like him to
look at, at this time?
1 2
1 3
MR. DeMAY:
Exhibit C.
1 4
THE COURT:
C.
1 5
Okay.
1 6
Q.
1 7
responsa 191, do you agree that Reform Jewish
1 8
practice permits cremation?
1 9
A.
2 0
However, it is -- as I testified previously it is
2 1
something which is encouraged against -- which they
2 2
encourage against.
2 3
Rabbi, based on the statements in the CCAR
According to what they write, it permits it.
So, they do not necessarily prohibit it
2 4
outright, but it is encouraged against.
And that is
2 5
in the second sentence which says that over a decade
166

1
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 and
wife.
cannot be -- that even if they were to do a cremation
and bury the ashes, they can't exhume the ashes of
one spouse to intermingle them with the other.
And it comes out with the answer that they
And
1 0
so, therefore, they're talking about doing a burial
1 1
and as well as doing the cremation.
1 2
Q.
1 3
mean, strike that.
Do you agree that Reform Jews would not -- I

Let me begin.
Would Reform jews regard cremation as a sin?
1 4
1 5
A.
1 6
Reform Jews in total would say.
1 7
has been listed or what has been written previously
1 8
is that the Reform movement would probably -- the
1 9
Reform movement would say as a whole that cremation
2 0
is not a -- is not an ideal circumstance and,
2 1
although, not banned specifically under their
2 2
doctrine, that they would not be in favor.
2 3
I think that based upon the -- I can't say what

I believe that what
So to answer your question, I don't know
2 4
exactly how they would phrase it themselves.
2 5
to be honest.
I have
I think they would not encourage it,
167

1
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.
1 0
Q.
And do you see that this is a six-page document
1 1
that has numbered sections one, two, and three?
1 2
A.
Yes.
1 3
Q.
And you testified that you're not sure how the
1 4
CCAR would phrase whether cremation is a sin, is that
1 5
right, that's what you just testified?
1 6
A.
That's correct, right.
1 7
Q.
Do you see section 3A on page three of
1 8
Defendant's Exhibit B?
1 9
A.
Yes, I'm looking at it right now.
2 0
Q.
Question 3A on page three, do you see that?
Do you see that?
Do you agree with the first sentence in
2 1
2 2
section 3A that the North American Reform Movement
2 3
does not regard cremation as a sin?
2 4
A.
2 5
correct.
It seems to be that's what they're writing here,
168

1
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.
beliefs within Judaism and that they are embodied
within certain prayers.
I said there are 13 core
The Reform movement does not necessarily write
No, I did not say that.
these are the 13 fundamentals principles of faith,
1 0
but they also have not removed the prayers that
1 1
actually refer to them.
1 2
And to the best of my knowledge, as far as I
1 3
know, they have not said that they are -- that they
1 4
are not accepted.
1 5
Q.
1 6
morning or this afternoon is resurrection, right?
1 7
A.
Correct.
1 8
Q.
Do Reform Jews believe in that core belief?
1 9
A.
I believe that they believe in the concept of a
2 0
resurrection of some form.
2 1
since they leave it sort of as an open vague
2 2
conclusion as to what exactly that means and are
2 3
not -- and are not -- do not hold as a binding belief
2 4
that one must believe as dogma that the body itself,
2 5
the corpus itself, as the Judge had said, would be
And one of the 13 core beliefs you mentioned this
And they leave it open
169

1
resuscitated.
But it within the prayers themselves, which
they have not changed, it does refer to that.
Q.
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.
Rabbi, do you recall ever reading any articles
I have no way of being able to confirm or deny
1 0
that.
I don't know where they got their statistics
1 1
from.
I'm not an expert in statistics or sociology,
1 2
so I can't tell you.
1 3
Q.
1 4
titled "More Jews Opt for Cremation"?
1 5
A.
I did see that article when it came out, yes.
1 6
Q.
Have you read an article in the Jewish Week
1 7
titled "Burying the Last Taboo"?
1 8
A.
I don't recall if I read that article.
1 9
Q.
Have you read an article in the Chicago Tribune
2 0
titled "More Jews Choosing to be Cremated"?
2 1
A.
No.
2 2
Q.
Are you aware that in some Jewish congregations
2 3
the percentage of Jews choosing cremation ranges from
2 4
20 to 30 to over 50 percent?
2 5
A.
Have you read an article in Forward Magazine
I have no idea where those numbers are coming
170

1
from.
Q.
Do you agree with that statement?

MS. FINKELSTEIN:
He
just said --
THE COURT:
Sustained.
Q.
are not permitted under Jewish law to bury the ashes
of people who have been cremated, right?
A.
Correct.
1 0
Q.
Because Jewish law forbids it, right?
1 1
A.
Correct.
1 2
Q.
Isn't it true that, in fact, there are many
1 3
Jewish cemeteries that will accept the ashes of
1 4
people who have been cremated?
1 5
A.
1 6
cemeteries will do.
1 7
there are cemeteries that will section off or create
1 8
new -- new -- I guess, for lack of a better term, a
1 9
new cemetery, new area that's sectioned off in some
2 0
fashion, whether it be a fence, a rope, pathway,
2 1
driveway, whatever, that where -- that should
2 2
somebody wish to have ashes buried, that they would
2 3
try to comply with them.
2 4
2 5
You testified yesterday that Jewish cemeteries
I can't tell you what the majority or what many

I have said that I know that
But I have no way of knowing if that's -- the

majority of cemeteries that I've seen do not do that.
171

1
But I'm not an expert in the practices of cemeteries
around the country.
Q.
cremated remains, rabbis may preside over those
ceremonies?
A.
today, and it's actually indicated here in the
documents you just gave me, Orthodox and Conservative
rabbis would not and Reform rabbis are given leeway
And the cemeteries that do accept the ashes of
As I indicated yesterday and I believe earlier
1 0
to be able to do so in order, as it says in the
1 1
document -- the documents which are being referred to
1 2
in the exhibits you just presented, that in order to
1 3
not -- in order to be able to provide comfort and
1 4
religious guidance to the bereaved, to those left
1 5
behind, the Reform movement would authorize or would
1 6
not be against a Reform rabbi from officiating in
1 7
some capacity.
1 8
What that capacity is though is different than
1 9
what they would do at a burial that is normally done.
2 0
Q.
2 1
Queens, New York?
2 2
A.
Yes, I've been there.
2 3
Q.
Are you aware that cemetery is a Jewish cemetery?
2 4
A.
I know that there are -- I know that it's
2 5
primarily a Jewish cemetery.
Are you familiar with Mount Hebron Cemetery in
I don't know if they
172

1
have anyone not Jewish buried there, but I know it's
a Jewish cemetery.
Q.
specifically reserved for people of the Yiddish
theater in New York City?
A.
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 synagogues
1 0
or communities would buy large tracts of land as a --
1 1
as the synagogue or the communal cemetery.
Do you know that they have a separate section
I've never been to that particular part of the
So, Mount Hebron, there are -- there are areas
1 2
1 3
for various synagogues, various organizations.
1 4
never actually seen this one for the Yiddish theater,
1 5
but it wouldn't surprise me if they had a section
1 6
that was specifically designated -- that had been
1 7
purchased by some association of the Yiddish theater,
1 8
whatever that would mean, and that that would be a
1 9
place where people had plots or something of the
2 0
like.
2 1
Q.
2 2
cremated remains, right.
2 3
2 4
2 5
I've
And Mount Hebron cemetery in Queens accepts
MS. FINKELSTEIN:
Objection to the form of
question.
THE COURT:
Sustained as to the form.
173

1
Q.
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.
Are you aware whether Mount Hebron -- do you
Q.
Rabbi, do you know whether Mount Hebron cemetery
1 0
accepts cremated remains?
1 1
A.
I have no idea.
1 2
Q.
At the end of your direct testimony, Rabbi,
1 3
counsel for the petitioner asked you a hypothetical
1 4
question.
1 5
1 6
A.
Yes.
1 7
Q.
And the question was along the lines of whether a
1 8
person who had particular experiences, if that person
1 9
had died, whether you would recommend that Jewish law
2 0
would require the person to be buried.

2 1
2 2
A.
Yes, I do.
2 3
Q.
And you would give the same answer for any Jewish
2 4
person regardless of whether they had engaged in
2 5
those behaviors, right?
174
1
A.
Yes.
MR. DeMAY:
No further questions, Your Honor.
THE COURT:
Anything on that?
MS. FINKELSTEIN:
THE COURT:
THE WITNESS:
Nothing further.
Thank you, Rabbi.

Thank you.

MS. FINKELSTEIN:
If I can have a quick break
1 0
to talk to my client, to determine what we're going
1 1
to do with the remaining --
1 2
THE COURT:
Take ten.
1 3
MS. FINKELSTEIN:
1 4
1 5
THE COURT:
1 6
MS. FINKELSTEIN:
Thank you.
Are you ready?

I just had a conversation
1 7
with Mr. Holwell out in the hallway.
1 8
client is from out of town.
1 9
him taking his client out of turn.
2 0
be able to get their client's testimony in today.
2 1
I don't know if we're going to go past.
2 2
know.
2 3
THE COURT:
2 4
MS. FINKELSTEIN:
2 5
I know his
I will no objection to
I want them to
I don't
Your client?
I have two witnesses here.
I have Rabbi Pessin also from the Rockland Burial
175
1
Society.
his sermon for tonight, so I couldn't keep him here
any longer, Your Honor.
that.
And I told Mr. Holwell of
And I do intend to call him.

THE COURT:
The problem is he had to leave to prepare
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
1 0
numbers.
1 1
individual who's run the Rockland Burial Society,
1 2
and he is a member -- I can't even say the name of
1 3
the societies which deal entirely and specifically
1 4
with burial for 25 years, Your Honor, that person
1 5
is equipped to provide those numbers and answers.

THE COURT:
1 6
1 7
That witness is not qualified, but an
All the witnesses should be
present to testify today.
1 8
MS. FINKELSTEIN:
1 9
two days, Your Honor.
2 0
him.
2 1
but in light of the cross-examination that was just
2 2
provided and the numbers that were just submitted,
2 3
I feel obligated that I have to produce him.
2 4
2 5
He's been sitting here for

And I was not going to call
I didn't want to duplicate once Rabbi Kelsen,
THE COURT:
Well, produce him.
Have someone call him.
Get him here.
176
1
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.
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
1 0
didn't have any.
1 1
it one way or the other.
1 2
It's not -- the only
There is nothing in the record on
MS. FINKELSTEIN:
Actually, I gratuitously
1 3
provided a witness list to Mr. Holwell well in
1 4
advance.
1 5
provided a little proffer.
1 6
1 7
1 8
1 9
2 0
I'm not even obligated to do so.
And it
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
2 1
witness list and he was provided days ago.
2 2
that list to Mr. Holwell days ago.
2 3
conversation in the hallway about him yesterday.
2 4
2 5
MR. HOLWELL:
We had a
Your Honor, can we have a
proffer as to his testimony?
I gave
177
1
THE COURT:
MR. HOLWELL:
I beg your pardon?

Can we have a proffer as to the
rabbi's testimony?
THE COURT:
What would he testify to?
I'd like to have that.
that we add another day?
MS. FINKELSTEIN:
I mean,
Is it absolutely necessary
Well, the realty is this,
Your Honor:
The cross-examination was focused on
the number in Reform Judaism of cremation and the
1 0
percentage of people and what synagogues -- excuse
1 1
me and what cemeteries, Jewish cemeteries accept.
1 2
This is Rabbi Pessin's job.
Rabbi Pessin is
1 3
the head of the organization for Rockland County
1 4
for burial.
1 5
Reform, Conservative, Orthodox, passes, he gets
1 6
called in Rockland County to dispose of the body.
1 7
When a Jewish person, regardless of
He is prepared to testify that there is no
1 8
Jewish funeral homes in Rockland County which will
1 9
even do cremation.
2 0
He also knows the numbers, the percentages of
2 1
Reform Jewish that cremate.
2 2
member of these societies.
2 3
This is his expertise, Your Honor.
2 4
2 5
He's done it.
He's a
This is his profession.
So I had no intention, based upon the

instruction that you provided me previously.
I was
178
1
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:
County, Your Honor?

MS. FINKELSTEIN:
No, actually his membership
his -THE COURT:
1 0
1 1
Is this limited to Rockland
Well, the issue is the wishes of
the decedent.
MS. FINKELSTEIN:
1 2
That's what I've been trying
1 3
to focus on, but counsel has deterred that a little
1 4
bit by saying all Reform Judaism.
1 5
know if he's a Reform Jew, but they're submitting
1 6
these numbers with regard to cremation.
We don't even
1 7
MR. DeMAY:
That's not fair, Your Honor.
1 8
The petitioner's expert witness opened the
1 9
door to where -- which cemeteries can or cannot
2 0
accept cremated remains.
2 1
on that.
All we did is follow up
This rabbi's expert testimony has never been
2 2
2 3
disclosed.
We never received a proffer until just
2 4
now.
2 5
morning, even though the entire purpose of
We never received his name until Tuesday
179
1
adjourning the previous hearing was to allow
petitioner to --
THE COURT:
MS. FINKELSTEIN:
You know -He sat here for two days on
the bench.
THE COURT:
If there was a directive here,
perhaps, it might be relevant.
relevant to the wishes of the decedent.
But I don't see it
I mean, is somebody going to testify that he
1 0
took into consideration that there wasn't any place
1 1
that will serve people who want to be cremated,
1 2
decedent's who want to be cremated and, therefore,
1 3
made a choice to either go somewhere else or be
1 4
buried or whatever?
1 5
MS. FINKELSTEIN:
It's just not relevant.

No, but Respondent has tried
1 6
to introduce evidence as to percentages,
1 7
percentages of Reform Jews who are now opting to
1 8
show -- you heard him read off five articles from
1 9
Chicago, from wherever, about the trend, the trend.
2 0
2 1
2 2
2 3
2 4
2 5
THE COURT:
I don't care about trends.
don't care about what anyone here will do.

MS. FINKELSTEIN:
That's refreshing to hear
your Honor.
THE COURT:
would do.
I care about what this decedent
180
1
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.
that it's something that is all consuming with
regard to the issues in this case.
1 0
MR. DeMAY:
I just don't see
We agree, Your Honor.
We don't
1 1
agree that much expert testimony is necessary or
1 2
relevant.
1 3
MS. FINKELSTEIN:
I would just like the
1 4
opportunity to make a phone call to see if he is
1 5
available.
1 6
1 7
THE COURT:
The testimony -- this testimony
here or testimony of --
1 8
MS. FINKELSTEIN:
1 9
THE COURT:
-- Rabbi Pessin?
2 0
MR. DeMAY:
The rabbi that's proffered as the
2 1
2 2
2 3
2 4
2 5
Pessin.
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.
181
Direct - Mendelsohn - DeMay

1
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.
if you wanted to take him out of turn.
respecting that.
THE COURT:
MR. HOLWELL:
1 0
I didn't know
I was
Do you want to take your client?

Yes, Your Honor.
Mr. Mendelson,
1 1
who is from California, has been here a number of
1 2
days.
1 3
lot of funds.
1 4
1 5
1 6
1 7
It's expensive for him.
THE COURT:
MR. HOLWELL:
1 9
MR. HOLWELL:
2 0
THE COURT:
2 3
We would like to put him on the
witness chair, if it's all right with Your Honor.

THE COURT:
2 2
Would you like to help him to the
witness stand.
1 8
2 1
He does not have a
order.
To what?
To put him on the stand now.
Yes.
Fine.
Take him out of
It's okay with the petitioner.
MR. HOLWELL:
May I walk him to the stand,
Your Honor?
2 4
THE COURT:
Yes, please.
2 5
(Whereupon, the witness Steven Mendelsohn
182

STEVEN MENDELSOHN, having been first duly sworn, was

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
1 0
Mendelsohn.
Steven S-T-E-V-E-N.
1 1
M-E-N-D-E-L-S-O-H-N.
Mendelsohn,
My address is 1550 Bancroft Avenue, Number
1 2
113, San Leandro, California 94577.
1 3
THE COURT:
1 4
Okay.
Fine.
You heard the
instructions that I gave the other witnesses, sir?
1 5
1 6
THE WITNESS:
1 7
THE COURT:
I did, sir.
Okay.
Fine.
Go right ahead.
1 8
1 9
DIRECT EXAMINATION BY MR. DeMAY:
2 0
2 1
Q.
Good afternoon, Steve.
2 2
A.
Good afternoon.
2 3
Q.
You can sit back a little bit.
2 4
2 5
THE COURT:
Let me ask you a question.
you have him on your --
Did
183

1
MS. FINKELSTEIN:
THE COURT:
No.
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?
1 0
A.
He went by the name Martin.
1 1
occasionally called him Marty.
1 2
friends called him Marty, but Martin or Marty.
1 3
Q.
How far are you and Marty apart in age?
1 4
A.
One year.
1 5
Q.
Who is older?
1 6
A.
I was.
1 7
Q.
Do you have any other siblings?
1 8
A.
No.
1 9
Q.
As children what was your relationship with Marty
2 0
like?
2 1
A.
2 2
time when we were in school and we went to separate
2 3
public schools.
2 4
school, we were together almost all the time.
2 5
played together.
And in the family we

And some of his
It was very good and very close, except for the
But except for the time we were in

We
All our leisure activities were
184

1
together, our interests in sports, our interest in
playing checkers, our interest in TV comedies and
other things.
Q.
of playmates?
A.
grew up, yes.
Q.
Tell us about your parents?
A.
Well, our parents were both hard-working people.
And I would say it was very close.
Besides one another, did you and Marty have a lot
We had some friends in the neighborhood where we
1 0
My -- my -- my mother was a university graduate.
1 1
father had several years of university.

My father worked in the haberdashery field,
1 2
1 3
My
men's furnishings.
My mother had been, prior to my birth, an
1 4
1 5
insurance actuary.
After my birth, she was a
1 6
homemaker until at a certain point she returned to
1 7
work to do some accounting on a part-time basis until
1 8
her death when I was just short of ten and my brother
1 9
was just short of nine.
2 0
Q.
2 1
short of ten, how did that affect your relationship
2 2
with Marty?
2 3
A.
2 4
of ours on our mother's side, our cousin Freeda, came
2 5
to live with us to help our father with household
And after your mother died when you were just
Well, I guess in a way we grew closer.
A cousin
185

1
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 did
not get along very well with her.
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?
1 0
A.
When I was 14 years old.
1 1
Q.
And before that did Marty help you get around?
1 2
A.
Yes, he did.
1 3
say to a certain degree he was my eyes.
1 4
sometimes I went places with other people.
And I think we
I suppose -- I suppose I have to

Obviously,
Yes, I would say that was true that prior to
1 5
1 6
the time, when through learning cane techniques I
1 7
became able to go around by myself, that to a very
1 8
large degree Marty was my eyes.
1 9
Q.
What has Marty's death meant to you?
2 0
A.
It's -- it's -- it's upset me terribly.
2 1
haven't been able to process it yet.
2 2
the opportunity to process it yet because of the all
2 3
this stuff that's going on.
2 4
I feel terrible loneliness.
2 5
I haven't had
I feel terrible grief.
Marty was my only blood relative.
I'm
186

1
fortunate enough to have a loving wife and to be in
the bosom of her family and have, hopefully, some
good friends.
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.
But the loss of my brother, who I was
Is your father
1 0
still alive?
1 1
A.
1 2
33 years ago this week.
1 3
Q.
Was Marty ever married?
1 4
A.
No.
1 5
Q.
Did Marty ever have children?
1 6
A.
No.
1 7
know it if he had.
1 8
Q.
1 9
or grandparents?
2 0
A.
2 1
would be a second cousin in California.
2 2
some living first cousins but I've lost track of
2 3
them.
2 4
about the last probably 30 or more years.
2 5
Q.
No.
He died on October 7th, 1982, which is just
Not to my knowledge anyway.
I think I would
Did you and Marty have any living aunts, uncles
No.
Our nearest living relatives that I know of

We may have
Neither of us had any knowledge of them over
Steve, how old are you?
187

1
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.
graduate and I had one further year of post law
school education in academic criminology.
Q.
what was your -- can you please briefly describe your
I'm a law school
After your one year of postgraduate education,
1 0
work history?
1 1
A.
1 2
doing appeals work for several years.
1 3
for the New York City Division of Criminal Justice
1 4
Services helping to administer Federal Criminal
1 5
Justice Planning and Reform Funds in New York State.
1 6
And then subsequently, through an organization called
1 7
the Vera, V-E-R-A, Institute of Justice, I became
1 8
involved in disability-related employment programs.
1 9
And that led to my work of the past 30 years, which
2 0
has been in the field of advocacy for legal and
2 1
economic advancement for people with disabilities.
2 2
Yes.
I worked for the New York Legal Aid Society

Then I worked
I've done a lot of work in the area of funding
2 3
of what's called assistive technology, a lot of work
2 4
actually in understanding how the tax code can be
2 5
used to help people with disabilities gain
188

1
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 people
with disabilities.
Q.
wife's name?
A.
My wife's name is Judy Wilkinson.
1 0
Q.
When were you married?
1 1
A.
April 10th, 1992.
You mentioned you are married.
1 2
THE COURT:
1 3
THE WITNESS:
I'm sorry.
What is your
What was the name?
W-I-L-K-I-N-S-O-N.
Judy with a
Y.
1 4
1 5
Q.
Was Marty at your wedding?
1 6
A.
Marty was my best man.
1 7
Q.
Throughout high school, did you and Marty live
1 8
together?
1 9
A.
Yes.
2 0
Q.
Did you live together while you were in college
2 1
and graduate school?
2 2
A.
2 3
Obviously, I lived in the dormitories at Columbia
2 4
while I was in school.
2 5
and I occasionally came home on weekends.
Well, during the summers yes, I would come home.
I came home for the summers

So, we
189

1
lived together for those periods of time as well.
Q.
How many rooms were in that apartment?
A.
Okay.
five room house and we each had our own room.
Until 1961, we had, I believe it was a
Then, in 1961, we, together with our father,
moved to a two-room apartment in which -- well,
obviously there were two rooms.
shared one room in terms of sleeping accommodations,
two beds in one room.
And my father and I
And my brother slept on the
1 0
bed, I guess it was a fold-out couch in the living
1 1
room.
1 2
Q.
And you lived in that arrangement until when?
1 3
A.
As I say on and off -- well, we all lived there
1 4
full-time until 1963.
1 5
school and came home on weekends and holidays.
1 6
Then, as I say, I went to
In 19 -- I left permanently in the fall of
1 7
1970 when I first went to study in England and then
1 8
returned and got my own apartment.
1 9
In the fall of 1973 to the summer of 1974, I
2 0
returned there while I was between jobs.
2 1
lived there then.
2 2
And we
And I again left in August 1974.
My brother had a brief appeared of about nine
2 3
months away living in an apartment of his own.
He
2 4
returned to my father's apartment just before I
2 5
left and he remained there thereafter indefinitely
190

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.
Associate of Arts degree.
Q.
From which community college?
1 0
A.
New York Community College.
1 1
Q.
And in what year did he graduate?
1 2
A.
1966.
1 3
Q.
After he graduated, did he have a job?
1 4
A.
He did.
1 5
sometime in 1981, for the New York State Department
1 6
of Taxation as a sales tax accountant.
1 7
Q.
Did he have a job after 1981?
1 8
A.
Not to my knowledge.
1 9
Q.
And at some point while he was working, did he
2 0
get his own apartment?
2 1
A.
2 2
nine months I believe a point in the mid '70s, but he
2 3
returned to my father's apartment and lived there
2 4
with him until my father's death and thereafter
2 5
remained in that apartment for an additional 14
He had an
He worked, from the fall of 1966 until
He got his own apartment briefly, as I say, for
191

1
years.
Q.
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.
Throughout the 1960s and 1970s and 1980s, did you
I would say as long as we were both
1 0
in New York City, probably two to four times a week
1 1
one way or the other.
1 2
Q.
1 3
together?
1 4
A.
1 5
lunch.
1 6
periods possibly once every two months, but yes.
1 7
Q.
1 8
undergo any strain?
1 9
A.
During those years did you meet to have meals
Oh, yes.
We would meet to have meals, usually
Some periods possibly once a month.
Some
Did your relationship with your brother ever
It did.
It did.
2 0
In the early '70s, my brother began to borrow
2 1
sums of money from me, a couple hundred dollars at a
2 2
time as loans with promise of repayment.
2 3
subsequently proved unable to do so and unable to
2 4
explain the reasons why he couldn't do so or give any
2 5
accounting of the use of the money.
That,
But he
192

1
admittedly, upset me somewhat.
And I suppose I
remained upset with him, although, I don't believe I
was ever not cordial.
for some time.
But I certainly remained upset
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
1 0
1 1
of dismay and to do everything I could to restore our
1 2
relationship, which I think -- which I think was
1 3
successful.
1 4
Q.
1 5
relationship?
1 6
A.
Not to my knowledge, no.
1 7
Q.
After Marty's employment ended in 1981, you said
1 8
he lived in your father's apartment?
1 9
A.
Correct.
2 0
Q.
And did he live alone?
2 1
A.
He lived alone after my father's death.
2 2
not like living alone, but he did.
2 3
cheap.
2 4
for additional about 14 years.
2 5
Q.
Was there any lasting effect on your
It was a nice apartment.
Until about what year?
He did
The rent was very

And he lived in it
193

1
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 superintendent,
he was robbed in the apartment by some other tenant
in the building.
fearful and literally bolted the apartment, left the
apartment, left all his belongings.
But he was robbed and became very
MS. FINKELSTEIN:
1 0
Objection.
Hearsay, Your
Honor.
1 1
1 2
THE COURT:
One second, please.
1 3
MR. DeMAY:
It's not being offered for the
truth.
1 4
It's to establish their relationship.
MS. FINKELSTEIN:
1 5
He just put 40 years of the
1 6
relationship, Your Honor.
But he's talking about
1 7
conversations with a landlord and conversations
1 8
with a brother.
1 9
THE COURT:
As to the landlord that's hearsay.
That's sustained.
2 0
2 1
A.
He became fearful of living in the apartment.
2 2
Q.
Did he tell you anything else about how that
2 3
incident affected his fear?
2 4
2 5
MS. FINKELSTEIN:
hearsay.
Objection.
Calls for
194

1
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.
1 0
MR. DeMAY:
Your Honor --
1 1
THE COURT:
What's the offer?
1 2
MR. DeMAY:
I'm sorry?
1 3
THE COURT:
What's the offer on this, offer of
proof?
1 4
MR. DeMAY:
1 5
The state of mind that he was --
1 6
he became afraid of living alone and being alone,
1 7
Your Honor.
THE COURT:
1 8
And is this what precipitated
moving into the adult facility?
1 9
2 0
MR. DeMAY:
2 1
MS. FINKELSTEIN:
2 2
THE COURT:
Objection.
Overruled.
You can answer.
think you already answered.
2 3
THE WITNESS:
2 4
2 5
Ultimately, yes.
A.
Yes, Your Honor.
Yes, I mean that's what he said, that he
195

1
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:
THE COURT:
1 0
Two-year degree.
Two-year degree.
Okay.
Go right
ahead.
1 1
1 2
Q.
After Marty left that apartment, where did he
1 3
live?
1 4
A.
1 5
from there I was calling him.
1 6
answer, I became concerned.
1 7
was a criminal defense lawyer experienced in tracking
1 8
down witnesses and she found him in the shelter
1 9
system.
Okay.
I was in England at the time.
And even
And when he didn't

I enlisted a friend who
He had somehow gravitated in the New York City
2 0
2 1
shelter system.
He was living in a shelter at that
2 2
time, somewhere I believe in the east twenties.
2 3
Q.
2 4
shelter system?
2 5
A.
Do you know where he lived after he went to the
Yes, the next --
196

THE COURT:
What year did you find he was in a
shelter?
THE WITNESS:
THE COURT:
THE WITNESS:
This was in the fall of 1996.

1996.
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
1 0
know.
I do not believe so, but I do not know for
1 1
certain.
1 2
Q.
1 3
system?
1 4
A.
1 5
care facility, East 104th Street, in Brooklyn.
1 6
Q.
Do you know the name of that facility?
1 7
A.
I don't recall the name.
1 8
records here.
1 9
records.
2 0
subject of a major scandal.
2 1
by the State as a result of some infractions.
2 2
don't recall what it was.
Do you know where he went after the shelter
Yes, I believe he went to some sort of an adult
I'm sure that it's somewhere in the
It's a place that eventually became the
2 3
THE COURT:
2 4
THE WITNESS:
2 5
I'm sure it's in the
I believe it was closed

I
What year did he live there?

He was there from probably about
1997 to maybe '98 or '99.
I'm not sure exactly.
197

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.
recall exactly how long.
I don't
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,
1 0
which I -- which I now understand from the testimony
1 1
of the past several days was also administered by the
1 2
petitioner or his family.

MS. FINKELSTEIN:
1 3
Judge, I would object to
1 4
this question.
He testified he believes.
1 5
said it's confirmed based on testimony.
1 6
THE WITNESS:
1 7
THE COURT:
1 8
question before you.
1 9
indicate that.
THE WITNESS:
2 0
Now he
That's not what I said.

Wait.
Wait, sir.
There is no
If you're not certain, just
I'm certain that's where he
2 1
lived.
2 2
under the management of the same people, but I'm
2 3
quite certain that's where he lived.

THE COURT:
2 4
2 5
What I said I believed was that it was
Q.
All right.
Next question.
Do you know the name of that facility?
198

1
A.
I don't remember, but I was -- it was in Long
Beach.
Q.
and then in the facility on Long Beach, did you
continue to meet with him for meals?
A.
he did not want to make the trip into Manhattan and
it was difficult for me to get out there.
to find friends to -- to drive me out there a couple
I visited him there once or twice.
While he lived in the first facility in Brooklyn
It was -- it became hard in Long Beach, because
I was able
1 0
of times.
But he was not able to come into the City
1 1
any longer.
1 2
difficult.
1 3
Q.
1 4
at when you shared meals with him?
1 5
A.
1 6
places.
1 7
go to some restaurants around Columbia, which he had
1 8
come to like over the years.
1 9
like Vic and Tony, Italian restaurant.
2 0
Hungarian restaurant called the Green Tree, which we
2 1
both liked until it went out of business in about
2 2
1990.
2 3
liked the Carnegie delicatessen.
2 4
frequently.
2 5
went to Katz's delicatessen or to one or two others.
So, that became very much more
What were some of the restaurants you would eat
Well, in New York we would go to all kinds of

We would go to the Carnegie deli.
We would
Places like the V & T,
We'd go to Chinese restaurants.
There was a
He very much
We went there quite
He liked other delicatessens too, so
199

1
Those would be the major ones.
Q.
Did Marty regularly eat non-kosher food?
A.
Yes.
special -- any particular interest in whether the
food was kosher or non-kosher or any qualms about
what he ate.
meats, various fishes.
butter, sometimes didn't.
I can't remember him ever having any
He ate various things.
He ate various
Sometimes he had things with
You know, with those things, I can't remember
1 0
him ever referring to or demonstrating any particular
1 1
dietary propensities in that regard.
1 2
Q.
Steve, how long did you live in New York?
1 3
A.
I lived in New York full-time, with the exception
1 4
of one year in England in 1970 to '71, full-time
1 5
until 1992 -- 1991, I'm sorry.
The fall of 1991.
And thereafter and as a consequence of having
1 6
1 7
met Judy, my wife, I began to spend a considerable
1 8
amount of time in California.
1 9
and forth ever since.
2 0
California full-time, though, since 2008.
2 1
Q.
And how long did Marty live in New York?
2 2
A.
Marty lived in New York for his full life time
2 3
until he moved to -- to Long Beach.
2 4
Q.
2 5
time in California, did you stay in touch with Marty?
And I've lived back
Most recently we lived in
And starting in 1991, when you began spending,
200

1
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.
times per week.
Q.
I would say maybe an average of 1.5
Were there ever any times when you spoke with
1 0
Marty more regularly than one and a half times a
1 1
week?
1 2
A.
1 3
When we found him in the shelter system, we became
1 4
very concerned.
1 5
pleaded with him, almost ordered him to call us
1 6
collect every day.
1 7
He had no funds and apparently there was no facility
1 8
available for that.
1 9
period of time every day.
2 0
and he did.
2 1
Q.
Why did you want to speak with him so much?
2 2
A.
We were worried about him.
2 3
a dangerous place from all that I knew.
2 4
worried about him.
2 5
Q.
Well, later on.
Not then, but later on yes.
And we asked him, we -- we -- we
He had no means of calling us.
But he callid us collect for a

We asked him to do that
The shelter system is

I was
After he left the shelter system, did you still
201

1
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.
he died.
Q.
up until he died?
A.
I spoke to him two days before
Why did you want to speak with him so regularly
Well, I loved him.
He was my brother.
We had
1 0
fun things to talk about, interesting things to
1 1
talked about, things that we shared.
1 2
of about baseball.
1 3
am I.
Baseball, a lot
He was a great baseball fan.
So
We talked about the season.

He was always very interested in what we were
1 4
1 5
doing, what Judy and I were doing, where we were
1 6
going, even what we were eating.
1 7
know what we were going to have for dinner that night
1 8
or the next night.
1 9
sometimes, you know, I had asked him what he was
2 0
doing.
2 1
few laughs, tell a few jokes.
2 2
He always wanted to
And talk about -- you know,
We would have nice conversations, you know, a
We had a lot of little -- we had an interest
2 3
in comedies that we liked, particularly Abbott and
2 4
Costello.
2 5
used to exchange those drifts a bit.
We both liked Abbott and Costello.
We
And it was very
202

1
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.
week?
A.
Usually 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
Did you talk with him on a particular day of the
Almost always on Sundays.
1 0
know.
We, on several occasions, offered to give him
1 1
a cell phone, but he did not want it.
1 2
him on Sundays.
1 3
Q.
1 4
ever touch on the subject of death?
1 5
A.
1 6
only time that we ever talked about death was on the
1 7
occasion of our father's death.
1 8
that, if you want me to.
1 9
Q.
We'll get to that.
2 0
A.
All right.
2 1
Q.
What was the last -- when was the last time you
2 2
spoke with Marty?
2 3
A.
September 13th, 2015.
2 4
Q.
When did Marty die?
2 5
A.
September 15th, 2015.
So, I called
Did the conversations that you had with Marty
No, he never wanted to talk about death.
The
And I can go into
203

1
Q.
What was the last thing you said to Marty?
A.
I'll talk to you next week, pal, as I always
said.
Q.
your brother in Spring Valley?
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.
When you lived in California, did you ever visit
Wherever we came to New York, which was twice a
On a couple of occasions when Ann was not
1 0
1 1
available, we took the bus up from the Port
1 2
Authority.
1 3
Q.
When was your last visit with Marty?
1 4
A.
In June, when I was here in June.
1 5
June for a week.
1 6
Q.
1 7
Marty?
1 8
A.
Generally myself, Judy and our friend Ann.
1 9
Q.
And Marty?
2 0
A.
Of course.
2 1
Q.
And what would you generally do during these
2 2
visits?
2 3
A.
We would go out.
2 4
Q.
And anything else?
2 5
A.
We would go do a little shopping.
I was here in
I came up to visit him one day.
Generally who participated in your visits with
Yes, of course.
We would go out to lunch.
He would
204

1
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, whatever
he said he wanted or needed.
Q.
Where would you go for lunch?
A.
A place we always went.
to him and he always chose the same place.
to go to the Red Lobster.
Q.
And what would you get at the Red Lobster?
1 0
A.
Various things.
1 1
would ordinarily, not always, but he would usually
1 2
order flounder.
1 3
piece of whatever I had.
1 4
Q.
Including shrimp?
1 5
A.
Including shrimp.
1 6
Q.
Can you please describe Marty's personality?
1 7
A.
Well, Marty's personality was a little bit
1 8
furtive.
1 9
about and wouldn't talk about.
I always left the choice

He wanted
I would get various fishes.
He
On several occasions he would try a
A lot of things he did not like to talk
2 0
THE COURT:
I'm sorry.
2 1
Did you say furtive?
I didn't get that.
2 2
THE WITNESS:
Furtive, yes.
2 3
There were a lot of things that he did not
2 4
like to talk about and would not talk about very
2 5
much.
205

1
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.
was generally curious about a lot of things.
He was curious about things.
He
He had been a great reader when we were young.
1 0
I fear he, for some reason at some point, he ceased
1 1
being such a great reader, although I know he kept
1 2
up with the newspaper.
1 3
But after a certain point, maybe 20 years ago
1 4
or so, he never discussed any other periodicals or
1 5
any books that he might have read, whereas when he
1 6
was young he had been quite a reader.
1 7
He liked to have, I think, fairly brief and --
1 8
and fairly, I won't say superficial, but causal,
1 9
routine conversations with people.
2 0
routine.
2 1
with them briefly.
2 2
enjoy any kind of deep revelatory conversations
2 3
with people.
2 4
2 5
He liked
He liked to say hello to people and chat

He didn't, in my experience,
What else can I tell you?
What more
specifically would you like to know?
206

1
Q.
Was he a happy person?
A.
No, I fear not.
Q.
Would you describe your parents as religious?
A.
No, anything but.
is the best way to describe it.
to synagogue on the High Holy Days, but we were not
observant.
observe the Shabbos.
So, I would say by and large no.
I fear not.
We were secular Jews, I think

We occasionally went
We did not light the Shabbos candles or

We did not have a kosher home.
They were what I
1 0
would call and what would have been understood in the
1 1
context of that time, the fifties or sixties, as very
1 2
classic secular or cultural Jews as we were.
1 3
Q.
Was your family a member of any Jewish temple?
1 4
A.
No, we did, as I say, on occasion go to temple,
1 5
go to one or another of the nearby temples for the --
1 6
for the Yom Kippur service.
1 7
years we did.
1 8
Q.
As a child was Marty Bar Mitzvah'd?
1 9
A.
No, he was not.
2 0
Q.
Did Marty ever express to you any regret or
2 1
sadness that he was not Bar Mitzvah'd?
2 2
A.
No.
2 3
Q.
Growing up, did you or Marty ever attend a
2 4
yeshiva school?
2 5
A.
Not all years, but some
But we were never members.
I was, but he was not.
No, he did not.
Not a yeshiva school, but we went to what was
207

1
called Hebrew school.
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.
of 1955 until I was Bar Mitzvah'd in April 1959.
THE COURT:
to that?
THE WITNESS:
1 1
THE COURT:
1 2
THE WITNESS:
1 3
THE COURT:
1 4
THE WITNESS:
1 5
THE COURT:
1 6
THE WITNESS:
1 7
THE COURT:
1 9
We did attend that from the fall
What was the purpose of your going
Was that for the Bar Mitzvah?
1 0
1 8
This was after school, after
Yes, that was my understanding.

You were Bar Mitzvah'd or no?
Yes, I was.
And Marty was -Was not.
Was not?
Was not.
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
2 0
we stopped going, we both stopped going after my
2 1
Bar Mitzvah.
2 2
he would have been Bar Mitzvah'd and the year in
2 3
which he would have been Bar Mitzvah's, he lost his
2 4
voice for about almost the entirety of the winter.
2 5
And although extensive medical testing and
I also know in both the year before
208

exploration was done, no cause was ever determined.
THE COURT:
THE WITNESS:
Was that permanent?

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
1 0
would have.
1 1
Q.
1 2
or appreciated Hebrew school?
1 3
A.
1 4
everything we could to get out of going.
1 5
with all kind of excuses for our father to let us not
1 6
go.
Did Marty ever express to you whether he enjoyed
I think neither one of us did, because we did

We came up
One year we even tricked him about daylight
1 7
1 8
savings time.
Convinced him the clocks had been set
1 9
forward, whereas it had actually been setback so that
2 0
we missed a class.
I'm not proud of that, but that's what we did.
2 1
2 2
Q.
Would you describe Marty as an adult as
2 3
particularly religious?
2 4
A.
No.
2 5
Q.
Why not?
Not in my experience, no.
209

1
A.
Well, he never talked about religion.
He never
expressed religious views.
of God.
influenced by religious considerations.
knowledge that he ever made dietary choices based on
religious considerations.
He never invoked the name
He never spoke of any decisions as being

I have no
So, nothing in his discourse or in his
behavior, as I observed it, ever suggested a
religious engagement to any degree.
1 0
Q.
Do you know whether he ever attended Jewish
1 1
services?
1 2
A.
1 3
facility.
1 4
outside of the facility or prior to entering the
1 5
facility that he did so, except when we were
1 6
children.
1 7
Q.
1 8
kosher food?
1 9
A.
It's my understanding that's all it served.
2 0
Q.
And do any of those change your opinion about
2 1
whether Marty was particularly religious?
2 2
A.
2 3
well, no.
2 4
Q.
2 5
Jewish temple?
I know that he sometimes attended services at the

I cannot believe, to my knowledge, that
Do you know whether had where Marty lived served
No, I don't think so.
Especially because --
No.
As far as you know was Marty ever a member of any
210

1
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:
THE WITNESS:
Did he have a will?

No.
Not that we know of, no.
Q.
To your knowledge, did Marty ever purchase or set
aside money for a head stone?
A.
1 0
Q.
To your knowledge, did Marty ever read or own any
1 1
religious texts, other than what he read at services?
1 2
A.
1 3
Q.
Did Marty ever tell you that he wore a star of
1 4
David?
1 5
A.
No, he didn't.
1 6
Q.
Did Marty ever tell you he said Jewish prayers in
1 7
the morning?
1 8
A.
No, he did not.

MS. FINKELSTEIN:
1 9
2 0
all leading questions.
2 1
he did tell him.

THE COURT:
2 2
These are
If he wants to ask d what
I've given some latitude here.

As to the form of the question,
sustained.
2 3
MS. FINKELSTEIN:
2 4
2 5
Judge, objection.
Q.
Correct.
To your knowledge, did Marty ever say Jewish
211

1
prayers in the morning?
MS. FINKELSTEIN:
question.
Same thing.
MR. DeMAY:
Objection to form of the
It's based on his personal
knowledge, Your Honor.
MS. FINKELSTEIN:
no answer.
He's leading him.
THE COURT:
No, he's asking for a yes or
Overruled.
You can answer.
A.
No, to my knowledge he did not.
1 0
Q.
To your knowledge, did Marty ever donate to
1 1
Jewish charities or Jewish causes?
1 2
MS. FINKELSTEIN:
1 3
THE COURT:
Objection.
Same thing.
Overruled.
1 4
A.
Again, to my knowledge, no.
1 5
Q.
To your knowledge, did Marty ever visit Israel?
1 6
A.
No.
1 7
Israel.
I know for a fact that he never visited
1 8
THE COURT:
1 9
THE WITNESS:
2 0
The Wellwood Cemetery.
2 1
unfortunately.
2 2
Where are your parents buried?

They're buried in Long Island.
They're not buried together
When my mother died, I don't know the details,
2 3
but my father only purchased enough room for her.
2 4
And when he died 26 years later, there was no space
2 5
in her area, so he had to be laid to rest in a
212

another area of the cemetery.
THE COURT:
THE WITNESS:
THE COURT:
THE WITNESS:
THE COURT:
cemetery.
Yes.
It was?
Yes, sir.
She was buried in a Jewish
Was your father?
THE WITNESS:
Was that a Jewish cemetery or --
Yes.
Q.
To your knowledge, did Marty speak Yiddish?
1 0
A.
1 1
Q.
Aside from Hebrew school as children, to your
1 2
knowledge, did Marty regularly communicate in Hebrew?

MS. FINKELSTEIN:
1 3
1 4
A.
1 6
No.
THE COURT:
1 5
A.
One second.
I don't believe he spoke Hebrew.

THE COURT:
1 7
Objection.
Sustained as to the form of the
question.
1 8
1 9
Q.
Steve, did Marty -- Steve, to your knowledge, did
2 0
Marty own a tallis or prayer shawl?
2 1
MS. FINKELSTEIN:
2 2
MR. DeMAY:
2 3
Objection.
It's based on his personal
knowledge, Your Honor.
2 4
MS. FINKELSTEIN:
2 5
THE COURT:
If he's seen?
Overruled.
213

MS. FINKELSTEIN:
If he's seen one, Your
Honor, or --
Q.
Steve, to your knowledge, did Marty own tefillin?
A.
THE COURT:
I assume that's some kind of
religious article?
THE WITNESS:
That's the phylacteries, Your
Honor.
THE COURT:
THE WITNESS:
1 0
What is that?
Well, that was testified to this
1 1
morning by Rabbi Kelsen, I believe.
1 2
bands that one puts around -- the little boxes that
1 3
one puts --
1 4
THE COURT:
1 5
THE WITNESS:
1 6
THE COURT:
1 7
Q.
1 8
High Holidays?
1 9
A.
2 0
that he did.
Oh, the boxes, yes.

-- on the forehead head.
Okay.
Steve, to your knowledge, did Marty ever fast on
2 1
THE COURT:
2 2
High Holy Days?

THE WITNESS:
2 3
That was the
2 4
Q.
2 5
with Marty?
I have no knowledge
Did you ever see him on any of
No, not since we were children.
Steve, how many years have you been eating meals
214

1
A.
Well, all our lives basically.
Q.
Roughly, how many meals would you say you've
eaten with Marty?
A.
days a week for the first 15, 16 years of our lives.
So thousands literally, maybe ten thousand.
couldn't say without doing some calculations, but
many thousands.
Q.
God, probably at least two meals a day, seven
I really
How many of those meals that you shared with
1 0
Marty over the years were kosher?
1 1
A.
None so far as I know.
1 2
Q.
When given the opportunity, did Marty eat at
1 3
non-kosher restaurants?
1 4
A.
Yes.
1 5
Q.
Including when he resided at the Long Island
1 6
facility?
1 7
A.
1 8
But I certainly know, as I mentioned, that here he
1 9
wanted to go to the Red Lobster, which I understand
2 0
is not kosher.
2 1
Q.
2 2
non-kosher food?
2 3
A.
Yes.
2 4
Q.
Did Marty ever tell you he ate only kosher food?
2 5
Well, I can't say where he ate on Long Island.
When given the opportunity, did Marty eat
MS. FINKELSTEIN:
Judge, I would keep
215

1
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:
but to this last question.
They've all been leading,
MR. DeMAY:
Your Honor, to which question --
THE COURT:
The last question.
That's what I
had the objection to.
1 0
1 1
Q.
1 2
the Evergreen?
1 3
A.
Yes, he did, frequently.
1 4
Q.
What was his opinion?
1 5
A.
He did not like it.
1 6
Evergreen that he did liked.
1 7
everything else about it, but he did not like the
1 8
food.
1 9
Q.
2 0
food at Evergreen by saying it was --
It was a thing about

He liked pretty much
Did Marty ever qualify his displeasure with the
MS. FINKELSTEIN:
2 1
Objection to the form of the
question.
2 2
2 3
Did Marty ever tell you his opinion of the food
A.
No, he did not.
I'm sorry.
2 4
THE COURT:
Wait.
Wait.
2 5
Sustained as to the objection.
The answer is
216

stricken.
Q.
Based on your long relationship with your
brother, do you think you were close enough to Marty
that he would have told you if he had a religious
awakening?
MS. FINKELSTEIN:
That
calls for speculation.
would have done based on a relationship that was
strained for 15 years in the middle of it.

MR. DeMAY:
1 0
1 1
He's asking what Marty
It's his only brother.
Counsel's
representation -THE COURT:
1 2
Well, I'm sure that he would know
1 3
something about his relationship, but religious
1 4
awakening?
MS. FINKELSTEIN:
1 5
1 6
of the question, Your Honor.
1 7
MR. DeMAY:
1 8
MS. FINKELSTEIN:
1 9
THE COURT:
THE WITNESS:
Okay.
Sustained as to the form of
Not only about things.
Mostly
about things.
THE COURT:
2 4
2 5
Only about things they liked
the question.
2 2
2 3
They spoke every Sunday.
together, baseball.
2 0
2 1
I would object to the form
him?
Did you ever discuss religion with
217

1
THE WITNESS:
I discussed with him the fact
of -- of the, you know, various religions exist in
world.
might be the implications for western democracy of
some of the ideas of Islam or some of the
implications of democracy of other regulation.
did not specifically discuss our religion.
And we talked about, for example, what
THE COURT:
THE WITNESS:
1 1
THE COURT:
1 2
THE WITNESS:
1 4
Yes.
You describe it.
I would describe his intellect
as -- as -- as -- as very good.
THE COURT:
He lived in an adult facility at a
1 5
young age.
1 6
outside on his own?
1 7
Let me ask you this:
Could you describe his intellect?
1 0
1 3
All right.
We
Was it because he couldn't exist on the
THE WITNESS:
He needed that assistance?

I believe that part of it is he
1 8
did not want to live alone.
1 9
clear on many occasions, even while he still was.
2 0
And I believe that he felt comfort and security
2 1
from his anxieties in -- in being in a somewhat
2 2
institutional environment.
2 3
2 4
2 5
THE COURT:
He made that very
I take it that he never served in
the military, for example?

THE WITNESS:
No, he did not.
218

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.
know, in our neighborhood, our neighbors.
later years I could not say.
Q.
When we were children he had friends, you

But in
Steve -THE WITNESS:
He never mentioned any.
Q.
Steve, did Marty like to read?
1 0
A.
At one time as a younger person he liked to read.
1 1
Q.
What were some texts or books that you saw him
1 2
read?
1 3
MS. FINKELSTEIN:
1 4
THE COURT:
1 5
MS. FINKELSTEIN:
1 6
THE COURT:
Objection.
Relevance.
Well -As a child?
-- I would assume that you
discussed with him?
1 7
THE WITNESS:
1 8
Yes.
Well, I can remember, for
1 9
example, he read a lot of George Santayana at one
2 0
point.
2 1
Q.
Who is George Santayana?
2 2
A.
A philosopher, also a novelist.
2 3
amount of history at varies times, particular New
2 4
York City history.
2 5
La Guardia and things of that nature.
He read a fair
He was very interested in Mayor
219

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.
cannot speak to his reading in later years.
THE COURT:
THE WITNESS:
But I
You say he read Mein Kampf?

No.
George Santayana.
Q.
Did you say Immanuel Kant?
1 0
A.
Immanuel Kant.
1 1
Q.
Steve, did Marty ever tell you what he wanted for
1 2
his remains when he died?
1 3
A.
No, he did not.
1 4
Q.
If Marty had told you that he wanted to be
1 5
buried, what would you have done?
1 6
A.
Oh, my goodness, he would never.
He never said a word about it.
I would have done exactly what he wanted.
1 7
I've racked my brain over the last period of
1 8
time to try to see if I can recollect anything that
1 9
would give me a definite insight or competence as to
2 0
what he happened.
2 1
If I had the least, the least idea that there
2 2
was anything I could put my hand on, I would gladly
2 3
do it, just to relieve myself of this terrible
2 4
responsibility of deciding.
2 5
One thing that I do know is he hated to be
220

1
alone.
Q.
discussed cremation?
A.
Was there ever an instance in which you and Marty
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.
some conversations that we had had with him, which I
remembered and which Marty interpreted more strongly
But Marty reminded me of
1 0
in favor of burial than I did.
But remembering the
1 1
conversation and accepting Marty's interpretation, I
1 2
certainly agreed, since there was good probability
1 3
that our father wanted to be buried, that that was
1 4
what we should do and we did.
1 5
At that time I told Marty it was my
1 6
inclination for myself, while I wasn't absolutely
1 7
certain, but it was my inclination for myself that
1 8
when my time came I would want to be cremated.

He said nothing at that point about his own
1 9
2 0
preferences or desires.
2 1
Q.
2 2
for cremation?
2 3
A.
No.
2 4
Q.
Did he express, for himself, any preference for
2 5
burial?
Did he express any hostility to your reference
221

1
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?
1 0
1 1
1 2
THE WITNESS:
Absolutely, for our father, yes
and I agreed to that as well.

THE COURT:
Did he indicate that he preferred
1 3
it over cremation, that Marty himself preferred it
1 4
over cremation?
1 5
THE WITNESS:
No, Your Honor.
As I recall the
1 6
discussion was simply as to our ability to
1 7
determine what our father preferred for himself.
1 8
1 9
THE COURT:
what your father desired?
2 0
THE WITNESS:
2 1
THE COURT:
2 2
That's correct.
Did he state any philosophical --
philosophically with regard to burial?
2 3
THE WITNESS:
2 4
THE COURT:
2 5
So the conversation centered on
No, he did not.

I mean -- okay.
So the only thing
that he mentioned to you was the conversation that
222

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?
1 0
A.
I propose to have Marty's remains cremated.

My reasoning for this is that, as I say, I
1 1
1 2
believe he would not want to be alone and I believe
1 3
he would want to be with me.
1 4
with me.
1 5
side-by-side urns somewhere.
1 6
Q.
1 7
would want?
1 8
A.
1 9
What I want doesn't matter.
2 0
can make any decision that totally excludes their own
2 1
preferences entirely.
2 2
trying my hardest to figure out what Marty would
2 3
want.
2 4
Q.
Has this been an easy decision for you?
2 5
A.
No, it's one of the hardest decisions of my life.
If I do that, he can be
We can have, you know, eventually
Is that what you want or what you think Marty
It's what I can best determine what Marty wants.

No person, of course,
I understand that, but I'm
That is my touchstone for my decision.
223

1
Q.
Do you believe Marty would be happy that his
ashes will be with yours?
MS. FINKELSTEIN:
Objection.
THE COURT:
You've heard all the testimony here and the
Sustained.
testimony of the rabbis, particularly the last
rabbi who testified, Rabbi Kelsen.
1 0
1 1
1 2
1 3
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
1 4
understanding of what Jewish tradition entails as
1 5
well about the adversity of Jewish tradition.
1 6
the testimony that impressed me the most was the
1 7
testimony of the first -- the first witness, of the
1 8
rabbi who had known Marty at the home and who
1 9
mentioned that in that conversations Marty did
2 0
not --
2 1
MS. FINKELSTEIN:
Objection.
He's now saying
2 2
his opinion of the witness's testimony.
2 3
giving a summation or argument.
2 4
Your Honor.
2 5
THE COURT:
But
He's
I would object
Well, let me ask you something.
224

1
Do you consider yourself a religious person?

THE WITNESS:
Not in the
sense of observance, not in the sense of ritual.

THE COURT:
Religious person?
How about the belief in the
Messiah returning and the soul with the corpus?

THE WITNESS:
I do not know, Your Honor.
don't claim to know one way or the other.
be, it may not be.
sure.
1 0
tell.
1 1
1 2
1 3
1 4
THE WITNESS:
1 6
THE WITNESS:
1 9
I suppose nobody knows for sure,
Well, we would all be hopeful,
but I have no way to know.

THE COURT:
1 8
I cannot
but hopeful there is a world to follow.
1 5
1 7
It may
I have no way of knowing for
I do not deny it or affirm it.
THE COURT:
can know.
Of course.
I can only affirm things that I
I can't guess.
THE COURT:
And what about the commandments
themselves of your religion, Jewish religion?
2 0
THE WITNESS:
2 1
THE COURT:
Ten commandments?
Well, the commandments, the 13
2 2
points and the fact that it's considered to be a
2 3
sin to cremate?
2 4
THE WITNESS:
2 5
THE COURT:
Well -If you don't know what Marty would
225

1
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.
disposing of your brother's s remains has affected
1 0
Steve, can you please describe how this delay in
you?
MS. FINKELSTEIN:
1 1
1 2
Relevance.
Post event.
1 3
THE COURT:
Sustained on that.
1 4
MR. DeMAY:
Nothing further, Your Honor.
1 5
THE COURT:
Thank you.
1 6
Would you like to take
a few minutes?
1 7
MS. FINKELSTEIN:
1 8
THE COURT:
I would.
Okay.
Thank you.
You can step down.
I'll
1 9
have the officer or you can take stay where you
2 0
are.
2 1
2 2
2 3
2 4
2 5
THE WITNESS:
I'll remain where I am.
I'll
just request some water.

THE COURT:
bottle.
They're bringing you a water
226
Cross - Mendelsohn - Finkelstein

1
(Whereupon, there was a recess held.)
THE COURT:
We're back.
Your witness.
CROSS-EXAMINATION BY MS. FINKELSTEIN:
Q.
Good afternoon, Mr. Mendelsohn.
Finkelstein.
questions.
My name is Beth
I'm going to ask you a series of
And I too have a tendency to speak a little
1 0
quickly.
So, if I do speak quickly and you don't
1 1
understand a question that I pose to you, please let
1 2
me know and I'll be happy to slow down or attempt to
1 3
try to slow down.
1 4
A.
Thank you.
1 5
Q.
You indicated that you and your brother -- and
1 6
your father actually -- withdrawn.

You lived with your parents.
1 7
Was that in
1 8
Brooklyn initially?
1 9
A.
Yes.
2 0
Q.
And you described you and your brother having
2 1
similar interests in sports and TV, Abbott and
2 2
Costello, correct?
2 3
A.
Among other things, yes.
2 4
Q.
And from what age did you start attending Hebrew
2 5
school four days a week?
227

1
A.
The age of nine, fall of 1955.
Q.
So you attended Hebrew school from four times a
week -- excuse me.
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.
1 0
Q.
And what Hebrew school was that, sir?
1 1
A.
It was call Yeshiva of Bensonhurst.
1 2
79th Street, between 20 and 21st Avenue, in Brooklyn.
1 3
Q.
1 4
synagogue?
1 5
A.
I believe they had a synagogue there, yes.
1 6
Q.
What was the name of the synagogue that was
1 7
affiliated with the yeshiva that you attended for
1 8
five years?
1 9
2 0
2 1
2 2
Five times a week?
And was that yeshiva of affiliated with any
MR. DeMAY:
Misstates
his testimony.
MS. FINKELSTEIN:
For four years.
I corrected
myself, my math.
2 3
MR. DeMAY:
2 4
MS. FINKELSTEIN:
2 5
It was on
He did not attend yeshiva.

I'm sorry.
He just said he
attended Yeshiva of Bensonhurst from age nine to
228

13.
THE COURT:
Wait a minute, sir.
question before you.
There's no
There's an objection.
What's your objection?
MR. DeMAY:
Counsel misstated the witness's
testimony saying that he attended yeshiva.
Hebrew school is located inside a yeshiva, but it
is not the same thing as saying that he attended
yeshiva.
MS. FINKELSTEIN:
1 0
The
Well, now look who's
1 1
testifying.
Because I just simply asked the name
1 2
of the Hebrew school he attended.
1 3
attended Yeshiva of Bensonhurst.
1 4
many years -- so, did you attend for four years.

MR. DeMAY:
1 5
He said I
So, I said how
That was not the question and that
was not the answer.
1 6
1 7
THE COURT:
Let me have the question.
1 8
MS. FINKELSTEIN:
There was no testimony it
was inside.
1 9
THE COURT:
2 0
question.
2 1
All right.
Withdraw the last
Ask the question again.
2 2
Q.
The Yeshiva of Bensonhurst, which you attended
2 3
for four years from nine to 13 --
2 4
MR. DeMAY:
2 5
THE COURT:
Grounds?
229

1
MR. DeMAY:
Misstates his testimony.
THE COURT:
Overruled.
Q.
The Yeshiva of Bensonhurst that you attended five
times a week, from age nine to 13, during those years
what was the name of synagogue that it was affiliated
with?
A.
know the name.
Q.
I do not remember the name.
Forgive me, I do not
And is that synagogue that's affiliated with that
1 0
yeshiva, is that the synagogue that your parents
1 1
would attend the High Holy Days at?
1 2
A.
1 3
several different synagogues in the neighborhood.
1 4
Q.
1 5
to the synagogue that's a affiliated with the yeshiva
1 6
that you attended five times a week, did you attend
1 7
services there as well?
1 8
A.
We may have, among others.
1 9
Q.
Do you recall how many times you attended Yom
2 0
Kippur services at the synagogue affiliated with
2 1
Yeshiva of Bensonhurst?
2 2
A.
2 3
synagogue.
2 4
it.
2 5
died for the purpose the Yizkor prayer at another
We attended High Holy Days, when we did, at
My question specifically, though, was with regard
I don't recall attending services at that

I'm sure we must have.
I don't recall
I do recall attending services after my mother
230

1
neighborhood synagogue.
Q.
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?
The synagogue that you attended the services at
1 0
A.
Those are very visual things.
1 1
that.
1 2
Q.
Well, I'm asking only with respect --
1 3
A.
I don't know.
1 4
remember.
THE COURT:
1 5
No, I do not know
I can't tell you more than I can
Sir.
1 6
trying to attack you.
1 7
MS. FINKELSTEIN:
1 8
THE COURT:
Sir.
Calm down.
She's not
At all.
She's just asking you questions to
1 9
get information.
2 0
an entirely appropriate question that she's asked
2 1
you.
THE WITNESS:
2 2
And that's all we need.
That's
I'm sorry, sir.
2 3
A.
I remember sitting with my mother on occasions
2 4
and sitting with my father on occasion.
2 5
Q.
But did your mother and father sit together or
231

1
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 she
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
1 0
times as year as I recall, including -- including on
1 1
Yom Kippur and Simchas Torah and Rosh Hashana, if I
1 2
remember correctly, among others.
1 3
Q.
1 4
passed on those occasions?
1 5
A.
We went on one occasions that I can remember.
1 6
Q.
Are you aware if your father went without you to
1 7
say Yizkor prayer on those holidays for your mother?
1 8
A.
1 9
knowledge, ever again, except for my Bar Mitzvah.
2 0
Q.
I didn't get the last part.
2 1
A.
I do not believe my father went to synagogue, no.
2 2
Q.
That would be, you said, after you were Bar
2 3
Mitzvah'd he never went back?
2 4
A.
2 5
after my mother died was for that one Yizkor prayer
Did your father say that prayer after your mother
My father did not go to synagogue, to my
The only time I know of him going to synagogue
232

1
that I remember and for my Bar Mitzvah.
Q.
on the anniversary of your mother's death every year?
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?
The did your father light a candle in your home
1 0
Are aware ever that, sir?
1 1
A.
I understand that.
1 2
Q.
So when you said your brother wasn't Bar
1 3
Mitzvah's, you're referring to the celebratory, the
1 4
ceremony that follows?
1 5
A.
1 6
Torah before the congregation.
1 7
associated party or festivity, correct.
1 8
Q.
You had a party after your Bar Mitzvah?
1 9
A.
Yes.
2 0
Q.
And where did that party take place?
2 1
A.
There were two parties.
2 2
one in a restaurant in which I do not remember.
2 3
Q.
And you had a family and friends attend?
2 4
A.
That's correct.
2 5
Q.
And that was something your parents organized on
That's correct.
I'm referring to the reading of

I'm referring to any
One was in our home and
233

1
your behalf, correct?
A.
My father.
Q.
I apologize.
A.
Yes.
Q.
Now you said at the year that your brother should
have been studying for his Bar Mitzvah he had medical
condition?
A.
He lost his voice, that's correct.
Q.
Did he lose his voice completely, sir?
1 0
A.
Completely.
1 1
Q.
So, therefore, he could not recite the prayers
1 2
that would be required if a child of age 13 was to
1 3
recite in front of the synagogue?
1 4
A.
1 5
what we were told was the case, yes.
1 6
Q.
1 7
there was no Bar Mitzvah formalities or ceremony was
1 8
a medical reason and not a religious one?
1 9
A.
No, I was never told any reason.
2 0
Q.
I thought you just said, sir, you recall told?
2 1
A.
No.
2 2
him to recite.
2 3
qua non for a Bar Mitzvah.
2 4
Q.
2 5
not your brother was medically capable of performing
My mother was not living.

Your father organized that?
He could only whisper.
I believe that's correct and I believe that's
So you were actually told that the reason that
I was told that it would be impossible for

I was not told that recitation sine
There was actually a discussion about whether or
234

1
the rituals and reading from the Torah aloud?
A.
of what was I was told, which was he could not
recite.
Q.
Okay.
A.
My father.
Q.
And was this told to you and your brother?
A.
I believe so, yes.
conversation my father had with my brother.
I'm not aware of any discussion.
I'm only aware
So your father -- who told you this?
I mean, I don't know what
1 0
Q.
In your presence I'm only asking, sir.
I can
1 1
only ask what you were present for.
1 2
A.
I believe we were both present, yes.
1 3
Q.
And this was when you said he couldn't recite,
1 4
this was referring to a Bar Mitzvah, correct?
1 5
A.
Yes.
1 6
Q.
You said your brother did have a job for some
1 7
period of his life, I guess, 1966 to 1981?
1 8
A.
Correct.
1 9
Q.
And he worked as an accountant; is that correct?
2 0
A.
Correct.
2 1
Q.
So your brother had, would it be fair to say, an
2 2
eye for detail?
2 3
A.
Yes, I would imagine so.
2 4
Q.
And if he could tally numbers, he certainly was
2 5
an educated individual, correct?
Yes.
235

1
A.
Yes.
Q.
You said he liked to read.
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.
He was proficient in
I never said anything such thing.
I said there
1 0
was a strain in our relationship.
I never said there
1 1
was no contact.
1 2
Q.
I apologize.
1 3
A.
I never said any such thing.
1 4
Q.
Okay.
1 5
began to borrow money from you.
1 6
dollars; is that correct?
1 7
A.
That's right.
1 8
Q.
And you were angry at him for a large period of
1 9
time?
2 0
A.
Yes.
2 1
Q.
And when you said you were angry at him, did
2 2
those phone conversations that you had two to four
2 3
times a week dimmish during this period of anger?
2 4
A.
2 5
couple of weeks here and there.
So you said in the early 1970s, Marty

You said hundreds of
They have may have diminished slightly for a

We never lost
236

1
contact.
Q.
diminish?
A.
Maybe very slightly, but not substantially.
Q.
I don't want to talk in those terms, slightly or
substantially.
you had.
You actually said it was 1.5 meals
So let's talk numbers.
How many times in that period of time, from
So did the frequency of your phone contact
the early 1970s until 1982, did you actually speak on
1 0
a weekly basis with your brother?
1 1
A.
1 2
father and I would speak to both of them.
1 3
Q.
1 4
to one to two times a week, correct?
1 5
A.
Probably so.
1 6
Q.
Now you also said it took the death of your
1 7
father to try to reconcile or get over the anger you
1 8
had for your brother?
1 9
A.
Yes.
2 0
Q.
Did you ever discuss with your brother the reason
2 1
why you were angry with him?
2 2
A.
Yes, I did.
2 3
Q.
Did you tell your brother you were disappointed
2 4
in him that he didn't return the money to you?
2 5
A.
Once or twice a week.
He was living with my
And that went from two to four times a week down
Yes, he understood that very well.
237

1
Q.
Did you tell your brother maybe he took advantage
of you by all these loans that he never returned?
A.
indicated I thought it was unfair of him.
Q.
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.
1 0
Q.
Do you recall the exact year?
1 1
early 1970s.
1 2
A.
1 3
'72 or 73 to '75 or '76.
1 4
that period of time.
1 5
Q.
1 6
with your brother; isn't that fair to say?
1 7
A.
Well, that was the occasion on which it occurred.
1 8
Q.
You indicated you felt like it was time to make
1 9
amends basically, once your father had passed?
2 0
A.
2 1
anything else.
2 2
Q.
2 3
only living close relative of yours?
2 4
A.
Precisely.
2 5
Q.
I'm sorry?
I indicated I thought it was unfair of him.
Actually, how much money was it that your brother
Yeah.
You only said the
Do you recall what year that was?
It was over a period of time from about 1973 -It was in increments over
And it took the death of your father to reconcile
I felt that family was more important than
Because at that point your brother was really the
238

1
A.
Precisely.
Q.
Now what year was it that your father died again,
'96?
A.
1982.
Q.
I'm sorry.
buried him?
A.
In Wellwood Cemetery.
Q.
Well, had your father purchased a plot prior to
his burial?
'82.
And in 1982, you said you
1 0
A.
No, he had not.
1 1
Q.
Now do you recall conversations with regard your
1 2
mother's burial Wellwood Cemetery?
1 3
A.
1 4
conversations.
1 5
funnel.
1 6
should not attend.
1 7
Q.
Who believed, the Jewish faith?
1 8
A.
Whoever my father was talking to for advice.
1 9
cannot say.
2 0
from said it was not good for children to go.
2 1
Q.
2 2
cantor?
2 3
A.
I do not know who he was consulting with.
2 4
Q.
I just want to go back for one moment.
2 5
No, I do not have any recollection of any

I was not even able to attend her
It was believed at that time the children
Whoever my father was getting advice
And was your father consulting with a rabbi or a
You testified that even though you reconciled
239

1
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.
A.
I said nothing of the sort.
Q.
So there was no continuing --
A.
I said it had no lasting effect.
relationship was restored.
I have those words.
The
1 0
Q.
There were no difficulties or strain between you
1 1
and your brother after that?
1 2
A.
No.
1 3
Q.
So your father did not have a plot?
1 4
A.
Did not.
1 5
Q.
So who went to the cemetery to purchase the plot
1 6
for the burial?
1 7
A.
I did.
1 8
Q.
And what steps, once your father passed, did you
1 9
have to take in order to have him buried?
2 0
A.
2 1
He had a funeral, which, I say, we decided -- we
2 2
thought was in accordance with his wishes.
2 3
had a -- a -- obviously a rabbi who delivered a
2 4
proper eulogy, which I wrote, because the rabbi
2 5
didn't know my father.
I had to make arrangements with a funeral home.
And we
My father, I don't believe,
240

1
knew any rabbis.
I wrote the eulogy.
The rabbi
expressed his appreciation that the family would do
that.
Q.
it in a synagogue that you had the funnel?
A.
been called Gaulick(ph), something like Gaulick.
was in Brooklyn.
Q.
And we had a proper funeral for him.
So, do you recall what funeral home it was or was
It was in Brooklyn.
I -- I think it may have

It
I do not recall the exact name.
And in the process of preparing for the funeral,
1 0
did you have more than one session with the rabbi in
1 1
discussing your fathers eulogy?
1 2
A.
We had one.
1 3
Q.
And did you discuss the prayers that were going
1 4
to be delivered during the course of the funeral with
1 5
the rabbi?
1 6
A.
1 7
believe I regarded that as being within the rabbi's
1 8
discretion.
1 9
Q.
2 0
rabbi as to what prayers he would like to be
2 1
delivered during the funeral?
2 2
A.
No, I don't believe he did.
2 3
Q.
Now was the funeral actually took place in the
2 4
funeral home or was it a grave side?
2 5
A.
I believe -- I don't believe we discussed it.
Did Marty or Martin have conversations with the
It was in a funeral home and then an additional
241

1
brief ceremony at the grave site.
Q.
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.
certain if it was the same rabbi or a different
So you contracted with a rabbi to deliver the
Yes.
Although, I'm trying to remember now for
1 0
rabbi.
I can't honestly say for sure at this point.
1 1
I believe it was the same rabbi, yes.
1 2
Q.
Well, we can just say a rabbi?
1 3
A.
Yes.
1 4
Q.
So you also contracted with a rabbi to follow
1 5
your father's remains to the cemetery, which is a
1 6
Jewish cemetery, correct?
1 7
A.
Absolutely.
1 8
Q.
Actually there are some very religious sections
1 9
of that cemetery as well?
2 0
A.
I understand there are.
2 1
Q.
You paid for a proper Jewish burial with the
2 2
rabbi at the grave, correct?
2 3
A.
Yes.
2 4
Q.
So was there additional prayers that were
2 5
rendered or delivered upon the grave of your father?
242

1
A.
I believe there may have been some.
I believe
there were certain words said.
in Hebrew which I couldn't follow.
enough Hebrew to follow them, but yes.
Q.
literature so you could follow along with the prayer
and service at the grave side?
A.
No.
Q.
Oh, I apologize.
1 0
A.
No.
1 1
have done me any good.
1 2
Q.
Many things were said

I never learned
Did the rabbi provide you with papers or
You're right.
Unless it had been in braille, it would not
I apologize.
Do you know if he provided Marty with any
1 3
1 4
literature to follow along?
1 5
A.
1 6
don't recall that he did.
1 7
read them to me or told me about it if he had.
1 8
Q.
1 9
father?
2 0
A.
As far as I know.
2 1
Q.
Did you sit shiva for your father?
2 2
A.
To a degree, yes.
2 3
recall if we sat the entire eight days.
2 4
certainly, you know, welcomed to our apartment anyone
2 5
who wanted to come or cared to come.
I don't recall.
I can't say for sure, but I

I think Marty would have
Did he follow Jewish ritual at the burial of your
I mean not to -- I don't

We
I was not
243

1
living at home at the time, but I spent time there
with my brother during that week.
Q.
is?
A.
family and other well wishers of the deceased and
other family come to -- to pay their respects over an
eight day period.
sits in their home.
Could you please explain for the court what shiva
Shiva is a practice whereby the friends and
It's a solemn event.
The family
Things are done like, you know,
1 0
mirrors are turned inward, things of that nature.
1 1
And some other thing are done.
1 2
expert on the ritual, but it's a way of giving a
1 3
period of time to mourn and remember the dead person
1 4
and to grieve together as a community.
1 5
Q.
1 6
was your brother that where was residing with your
1 7
father only, correct?
1 8
A.
That's correct.
1 9
Q.
Did your brother.
2 0
prepare that home for sitting shiva?
2 1
A.
No, we just sat there.
2 2
Q.
You sat there.
2 3
or you left each evening?
2 4
A.
2 5
we sat in there probably three or four days.
I'm not obviously an
And so at the time that your father passed, it
To the best of your knowledge,
Did you sleep over in that home
I may have slept over one or two nights.
I think
244

1
Q.
respecting Jewish tradition and Jewish laws?
A.
father would have wanted.
Q.
follow this tradition because it would have been what
your father wanted, correct?
A.
conversations that we all had about my father's
1 0
wishes, he interpreted those conversations more
1 1
strongly than I did.
1 2
1 3
Your brother Martin sat for three or four days,
I sat too.
Again, I believe that's what our
It was Martin who actually convinced you to
We made a joint decision.
THE COURT:
He had -- the
I accepted his interpretation.
What do you mean by that, he
interpreted the conversation more strongly?
1 4
THE WITNESS:
1 5
THE COURT:
That is -And by the way, let me add
1 6
something to that question.
1 7
conversation wherein the father asked to be buried
1 8
as opposed to cremated?
1 9
THE WITNESS:
Was this the same
Well, our father never
2 0
specifically -- our father never specifically asked
2 1
to be buried.
2 2
said, you know, he thought cremation was not a good
2 3
thing.
2 4
interpreted that as a fairly general statement,
2 5
probably reflecting his feelings for himself that
We had a conversation in which he
People shouldn't do it.
And, you know, I
245

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.
because Marty could well be right.
Q.
And I accepted it,
So his statement -THE COURT:
You used the world strongly, he
strongly argued for the shiva for example.
THE WITNESS:
No.
argue for any shiva, no.
No.
He didn't strongly
He strongly argued for
1 0
the burial.
Nobody argued for the shiva.
We
1 1
decided to sit there for a couple of days.
1 2
who wanted to come, we would be grateful for their
1 3
support.
Anyone
1 4
Q.
Did you announce at the funeral the days and the
1 5
location of where you would be sitting shiva, so
1 6
people would know where to come?
1 7
A.
1 8
to say.
1 9
already passed away.
2 0
There were only a few people there and I think they
2 1
were aware one way or the other.
2 2
Q.
2 3
cremation was not a good thing and people shouldn't
2 4
do it.
2 5
him.
I don't recall.
It was a very small funeral, sad
Many of my father's contemporaries had

He had a very small circle.
Your statement just now that your father thought
So, that statement wasn't just applying to

He was applying it to people as a whole,
246

1
correct?
A.
such, obviously, it certainly reflect what he wanted
for himself.
statement on his part, what he wanted for himself.
Q.
you agree, it not just says his personal opinion
about what he would want, but his opinion about
cremation as a whole, correct?
Well, that's the way I interpreted it.
And as
And Marty felt it was a very personal
But that statement not just says -- sir, would
1 0
A.
I think that's fair, yes.
Mmm.
1 1
Q.
And it was based upon that statement that Marty
1 2
determined that you must bury him in a Jewish funeral
1 3
and Jewish cemetery?
1 4
A.
We both determined.
1 5
Q.
Now I'm going to bring you to the fall of 1996?
1 6
A.
Yes.
1 7
Q.
You were in England at the time?
1 8
A.
Correct.
1 9
Q.
And how long of a period of time did you go
2 0
without speaking to your brother before you found out
2 1
that he was in a shelter?
2 2
A.
2 3
much as I would call him here.
2 4
when he didn't answer the phone, I became concerned.
2 5
Obviously, one week he might be out, who knows.
I was calling my brother from England every week,

On the second week
But
247

1
the second week when he didn't answer the phone, I
became concerned.
one week.
answer, I called back a few times and he didn't
answer, I became concerned, very concerned.
Q.
England?
A.
sure.
So, I didn't worry too much about
But by the second week when he didn't
Did your brother know your phone number in
Yes, he did.
But he -- I believe -- I'm not
I think he did.
I certainly told it to him.
1 0
I can't tell whether he wrote it down or remembered
1 1
it or didn't, but I told him.
1 2
Q.
How long were you in England?
1 3
A.
We were in England for, let's see, from the end
1 4
of September to mid-January of '97.
1 5
Q.
1 6
in a shelter for two weeks and he did not call you?
1 7
A.
1 8
shelter exactly.
1 9
Q.
2 0
were attempting to contact him and you said you would
2 1
speak to him on a weekly basis, correct?
2 2
A.
That's right.
2 3
Q.
So it's fair to say there's at least two weeks
2 4
your brother was living in a shelter and he did not
2 5
call you to tell you where he was?
So would it be fair to say that your brother was
I don't know when my brother went into the
But at least two weeks that you know that you
248

1
A.
I don't know where he was living.
if he was in a shelter or on the street.
idea where he was.
Q.
Fair enough.
I don't know
I have no
I never found out where he was.

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 in
a shelter and he did not call you?
A.
shelter he couldn't call me either.
Well, apparently, yes.
1 0
to call me.
1 1
Q.
1 2
that question.
But I also know in the

He had no money
That's why he had to call collect.
That's very interesting.
So, let me rephrase
So, there were two weeks that you know your
1 3
1 4
brother was either homeless or in a shelter that he
1 5
did not call you collect?
1 6
A.
1 7
to call collect at that time.
1 8
we got back to New York and we asked him to call
1 9
collect.
2 0
before that.
2 1
an issue because I called him regularly.
2 2
Q.
2 3
moved into an adult because he was afraid to be
2 4
alone.
2 5
A.
I don't know.
Well, no, we hadn't instructed him

It was only later when
We had not asked him to do that at any time

We never thought it of it coming up as
You said your brother -- or you feel your brother
That was your statement, correct, sir?
That's my belief, yes.
249

1
Q.
And how old was your brother when he first moved
into the first adult home, you said, in Brooklyn?
A.
50.
Q.
And what type of facility was that?
A.
I can't be too precise.
was directed to or sent to or moved to by whichever
social service agency that ran the shelter.
called Ambassador.
It was 1997, as I believe.
He would have been
Some sort of facility he
It was
I believe that was the Ambassador
1 0
Hotel.
It was on East 104th Street in Brooklyn.
1 1
Q.
1 2
facility, correct?
1 3
A.
I do not know.
1 4
Q.
And are you sure that that location was in
1 5
Brooklyn?
1 6
A.
Yes.
1 7
Q.
Did you ever go visit him at that facility?
1 8
A.
No, I did not go visit him at that facility.
1 9
Q.
He was there from one to possibly three years and
2 0
you never visited him there?
2 1
A.
2 2
to come into Manhattan still on occasion, which he
2 3
preferred to do and which he did.
2 4
Q.
2 5
his room or his possessions, correct?
And the Ambassador Hotel, that was a kosher
He did not want to be visited there.
Understood.
He was able
But you never actually went and saw
250

1
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.
privacy.
Q.
him at the facility?
He did not want me to and I respected his
Do you know why he did not want you to visit with
1 0
A.
No, I do not.
1 1
Q.
Earlier with your attorney, you were asked to
1 2
describe your brother.
1 3
that section.
1 4
private person?
1 5
A.
Yes.
1 6
Q.
He liked to be alone or to himself?
1 7
A.
It depends what you mean by alone.
1 8
be with people.
1 9
I would say yes, if that's what you mean.
2 0
Q.
He didn't like to interact with many people?
2 1
A.
He did like to interact with many people, but not
2 2
necessarily on a great intimacy basis.
2 3
to talk to people.
2 4
know, a lot of intimacy with people.
2 5
liked to talk to people in general, casually
And I'm just trying to find
Is it fair to say your brother was a
He liked to
But in terms of his inner thoughts,
But he liked
I don't recall him enjoying, you

He certainly
251

1
superficially, in a friendly way.
He was friendly.
Q.
he was there from one to three years.
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.
1 0
Q.
Is that the King David Manor?
1 1
A.
I believe so, yes.
1 2
Q.
And that -- are you aware that that is also a
1 3
kosher facility?
1 4
A.
1 5
then one way or the other.
1 6
Q.
1 7
two times, was it?
1 8
was that?
1 9
A.
2 0
out there a couple of times.
2 1
the phone regularly.
2 2
there a couple times.
2 3
to drive out there at that time.
2 4
to, so I did not go out there more than -- I think I
2 5
went out there twice.
So what you believe was the ambassador, you said
I understand that now, yes.
And your
I had no information
And you indicated that you would visit him one to

How often, a year, a week?
What
No, the King David Manor I was only able to get

Once again we talked on
But I was only able to get out

I had no one readily available
It was hard to get
252

1
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.
some restaurant, you know, near the boardwalk area.
Q.
No, again, he would come out and we would go to
So you also never -- therefore, you would never
1 0
have gone into his personal room or personal space?
1 1
A.
That's correct.
1 2
Q.
You did say that he chose frequently Katz's Deli?
1 3
A.
Katz's is one of the places we went to.
1 4
Q.
Was that his recommendation or yours?
1 5
A.
Mutual agreement.
1 6
his preference.
1 7
preference.
1 8
Q.
Where --
1 9
A.
The Carnegie was his favorite.
2 0
Carnegie very much.
2 1
Q.
2 2
California to be with your wife in LA?
2 3
A.
2 4
course, he was already at Evergreen.
2 5
Q.
Sometimes -- sometimes it was
Sometimes I would suggest a
It varied.
He liked the
Where was your brother living when you moved to
We moved permanently in 2008.
But you indicated in 1991 --
At that time, of
253

1
A.
He was living -- he was still living in Brooklyn
in what had been his and my father's apartment, then
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
1 0
and California, living in California for the most
1 1
part, but spending some amount of time, several weeks
1 2
to a month or two in New York each year, maintaining
1 3
my apartment here in New York.
1 4
Q.
1 5
you only visited your brother once?
1 6
A.
No, that's not correct.
1 7
Q.
I thought I said when he was in Long Island, at
1 8
the King David Manor, you visited him once or --
1 9
A.
2 0
then.
2 1
see him at least once -- once a month, probably once
2 2
a month, maybe once every sex weeks, something of
2 3
that nature.
2 4
Q.
He went to Brooklyn?
2 5
A.
No, he was already in Brooklyn.
When you would come to New York for those months,
He wasn't in Long Island.
He was in Brooklyn
He was still in Brooklyn then.
And I would
He lived in
254

1
Brooklyn.
Q.
Brooklyn?
A.
He was born and raised in Brooklyn.
Q.
No, sir.
I'm sorry.
What was the year he went to
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?
1 0
A.
Or the spring of '97.
1 1
early '97.
1 2
Q.
I can't tell.
Late '96 or
Now -THE COURT:
1 3
Do you know how he got -- did he
choose the King David facility?
1 4
1 5
THE WITNESS:
I have no information on how he
1 6
got there, Your Honor.
1 7
Q.
Now there came point in time when your brother
1 8
chose the Evergreen Court Residence for Adults,
1 9
correct?
2 0
A.
2 1
he -- one day he was not there and the next day he
2 2
was.
2 3
to be there, except he was.
2 4
Q.
2 5
that he was going to move his residence?
I don't know that he chose it.
I just know that
I don't know the circumstances of how he came

There that's all I know.
So your brother never discussed with you the fact
255

1
A.
No.
Q.
And so twice he never discussed -- he never
discussed that he was going to move to -- choose King
David and he never discussed with you he was going to
choose the Evergreen?
A.
didn't know where or exactly when.
Q.
He told me he would be leaving King David, but he
I just want to jump back for one quick moment.

When you said that you heard about your
1 0
brother in a shelter, and you were concerned because
1 1
he didn't like to be alone, he might have been
1 2
homeless, did you offer for your brother to come live
1 3
with you?
1 4
A.
1 5
did not want to do that.
1 6
Q.
1 7
chose to be alone in a shelter?
1 8
A.
1 9
very tiny apartment.
2 0
considerations in that decision might have been.
2 1
Q.
2 2
little bit about the conversations, the phone
2 3
conversations you had.
2 4
once a week, right, sir?
2 5
A.
Yes, I certainly suggested the possibility.
He
So rather than choosing to live with you, he
I can't answer the question that way.
I had a
I don't know what his
But in the conversations you talk -- let's talk a
Yes.
They were frequent, at least
256

1
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.
1 0
A.
Brooklyn versus New York.
1 1
with that.
1 2
Q.
1 3
Brooklyn.
We had a lot of fun
I figured you were a Dodgers from being in
Now, and he always expressed interest in what
1 4
1 5
you were doing and Judy was doing, your travels, your
1 6
meals?
1 7
A.
Correct.
1 8
Q.
But did he talk to you at all about what he was
1 9
doing on a daily basis?
2 0
A.
2 1
reading the newspaper, about, you know, going
2 2
downstairs sitting in the TV room, about going
2 3
outside sitting on a bench, things of that nature.
2 4
And on occasion he mentioned going to services.
2 5
Q.
Not in great detail.
He talked, you know, about
Did he share, did he tell you that he chose a
257

1
roommate at the Evergreen facility?
A.
roommate.
want a roommate.
single room.
Q.
He told me at a certain point that he had a

Subsequently, he told me that he did not
In fact, he had paid extra to get a
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
1 0
roommate.
He told me that he had a roommate.
1 1
Q.
1 2
roommate, that he did have a roommate?
1 3
A.
Yes.
1 4
Q.
And did you know the roommate that -- he chose
1 5
this roommate, did you know that?
1 6
A.
1 7
came to be.
1 8
Q.
1 9
double and he chose a double with this gentleman
2 0
Chaim Lerner?
2 1
A.
2 2
had to pay more for it.
2 3
Q.
Did he ever tell you about Chaim Lerner?
2 4
A.
Yes, he mentioned it.
2 5
Q.
Did he also tell you he was an Orthodox Jew?
So, he only told you after the fact, once he had
No, I have no information about how the roommate
Did you know he had an option of the single or
No, I only later, when he requested a single, he
He said he was a nice guy.
258

1
A.
Yes.
Q.
And that they lived together until Chaim Lerner
left the facility?
A.
he did not know why or where he was going.
Q.
have another roommate and not be alone, he chose to
live alone at that point?
A.
He told me that his roommate had left.
He said
And then did he tell you he chose, rather than
He chose to have a single room, but he was -- he
1 0
chose to have a single room.
1 1
Q.
1 2
option of having someone live with him, correct?
1 3
A.
I suppose.
1 4
Q.
And --
1 5
A.
But -- I'm sorry.
1 6
Q.
In exchange for a single room, he actually had to
1 7
pay additional funds to additional money to have no
1 8
roommate?
1 9
A.
That's correct.
2 0
Q.
And he paid those moneys?
2 1
A.
That's correct.
2 2
Q.
Did you -- did he tell you that he attended
2 3
services every Shabbos on Friday night, which took 45
2 4
minutes, with an Orthodox rabbi?
2 5
A.
He chose to have a single room when he had the
He mentioned on occasion that he attended
259

1
services.
He did not specifically say when or how
often.
Holidays.
attended generally.
Q.
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?
I certainly knew that he attended on High

I didn't know exactly when or how often he
Did you know he attended them every Friday night
1 0
A.
No, I did not.
1 1
Q.
Did you know that he actually would stay after
1 2
the services were completed and he would discuss the
1 3
sermon, the Torah, Moses, different religious topics
1 4
with Rabbi Sperlin?
1 5
A.
1 6
participated in or lecture he would stay and want to
1 7
talk to whoever was presenting it.
1 8
Q.
1 9
lessons or teachings with you that he did every
2 0
Friday and every Saturday?
2 1
A.
No.
2 2
Q.
Did he tell you that he also participated in
2 3
every other religious ceremony and holiday while
2 4
living in the Evergreen Court facility?
2 5
A.
No, it would not surprise me.
After any event he
Did he ever discuss these sermons with you or
Actually, no, he did not.
He told me that he enjoyed the holidays
260

1
relatively speaking, yes.
holidays.
Q.
prayers aloud for each of these holidays in
accordance with Jewish tradition?
A.
1 0
1 1
1 2
1 3
He said he enjoyed the
Did he tell you that he actually he recited
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.

THE COURT:
apartment.
Okay.
We got it in 1960.
So leaves a rent controlled
And he goes to King David from there?
THE WITNESS:
1 4
the Ambassador.
1 5
THE COURT:
Via the shelter system and via
He chose a religious place to
1 6
live, a place that I suppose has religious
1 7
services?
1 8
THE WITNESS:
1 9
if he chose it.
2 0
THE COURT:
2 1
THE WITNESS:
Well, I don't know, Your Honor,
The King David?

I don't know if he chose it or
2 2
he was sent there by Social Services.
2 3
way to know.
2 4
2 5
THE COURT:
I have no
He paid money to attend the
services at Evergreen.
Did you know that he paid
261

1
extra money to attend those services?
written right into the contract?

THE WITNESS:
It was
I saw that in the contract.
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,
1 0
putting you in mind of a conversation that was
1 1
held.
Is it likely that your brother may have
1 2
1 3
changed his mind about certain things?
1 4
to be an agnostic, so to speak, that he may have
1 5
chosen a more religious path as he came closer to
1 6
the end of his life.

THE WITNESS:
1 7
As opposed
I can only speculate on that.
1 8
have no way of answering that question.
1 9
is possible.
2 0
was the case.
Anything
But he did not share that, if that
2 1
Q.
Did he tell you that he would say the prayers in
2 2
front of a room full of people; someone who has
2 3
anxiety, say prayers in front of a room full of
2 4
people on Passover seder?
2 5
A.
No, he did not.
262

1
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 prayers
allowed and say them aloud in front of a room full
people?
A.
No, he didn't specifically mention prayers.
1 0
Q.
And did he tell you that he volunteered for all
1 1
of this?
1 2
A.
I don't know what you mean by volunteered.
1 3
Q.
Meaning, there was no obligation on behalf of
1 4
your brother to say these prayers, to light the
1 5
candles, to do all the symbolism, do everything for
1 6
all the holidays.
1 7
chose to do all these rituals in accordance with
1 8
Jewish tradition and beliefs.
He chose, he stepped forward and
Did he tell you that?
1 9
2 0
A.
Well, I mean if he did them, he did them.
2 1
Obviously, no one forced him, but he didn't
2 2
specifically say that.
2 3
issue.
2 4
Q.
2 5
your brother passed that - let me just read your
No, it wouldn't have been an
Who would ever suggest that he was forced?
Now you said that -- well, you said that when
263

1
words - you racked your brain -Well this is all because you said he never
gave you instructions on what to do with his remains,
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
1 0
how many years?
1 1
A.
I was admitted to the bar in 1972.
1 2
Q.
And you never prepared a will on behalf of your
1 3
brother so there would be no confusion as to what to
1 4
do upon his death?
1 5
A.
1 6
anyone.
1 7
practice law.
1 8
Q.
1 9
understand that.
2 0
for the disabled.
2 1
I don't practice.
I don't prepare wills for
I didn't prepare a will for myself.
Okay.
Let me rephrase the question.
I don't
I can
You're a public advocate, I know,
As an attorney, a scholar, someone who went to
2 2
Columbia Law School, did you recommend to your
2 3
brother that maybe he should seek out legal counsel
2 4
so -- because he never discussed his wishes with you.
2 5
So, there would be no confusion, did you ever suggest
264

1
to him, Marty, please prepare a will?

MR. DeMAY:
Form of
the question.
MS. FINKELSTEIN:
THE COURT:
I'll rephrase.
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
1 0
broach that subject, he would change the subject.
1 1
Whenever I would mention to him the sad news of the
1 2
passing of some friend of ours, he would change the
1 3
subject.
1 4
Q.
1 5
Jewish religion?
1 6
correct?
1 7
A.
1 8
certain things, as I say, going to services or
1 9
lighting candles or enjoying the seder, but, no, not
2 0
in terms of religious practice.
2 1
Q.
2 2
secular beliefs, correct?
2 3
A.
, yes, certainly.
2 4
Q.
Is it possible that he didn't share his faith in
2 5
God and how he was following Jewish tradition because
He never discussed with you his practicing of

He never discussed that with you,
Not in the sense you mean.
He discussed doing
And you previously said he was aware of your
265

1
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.
disagreements with me about anything and he knew I
wouldn't be censorious.
Q.
you his life at Evergreen or King David.
basically a superficial conversation about baseball?
No, he never -- he never hesitated to share his
Well, not disagreements.
1 0
A.
That is not correct.
1 1
things.
1 2
Q.
Okay.
He never shared with

It was
We talked about many
Well, let me just --
1 3
You stated that - and I express my condolences
1 4
to you for the loss of your brother - once he passed,
1 5
you racked your brain to see if he gave anything --
1 6
if he gave any indication what he wanted, correct?
1 7
A.
Yes.
1 8
Q.
When he passed, did you call anyone at Evergreen
1 9
to see if they had any conversation with your brother
2 0
about what he wanted to do with --
2 1
A.
2 2
received a phone call from the owner of the -- of the
2 3
Evergreen, demanding that I bury my brother in
2 4
accordance with in-ground Jewish burial tradition and
2 5
making certain accusations, which I will not repeat
Before I could have a chance to call anyone, I
266

1
in this courtroom.
Q.
was friends with?
A.
that his two friends were one woman who was hard of
hearing, apparently schizophrenic, and another
gentleman who was delusional.
names if you want me to.
Q.
Did you call Evergreen to find out maybe who he
Yes, I did.
Yes, I did.
And I was actually told
I can look up their
Isn't it true, sir, that when you were notified
1 0
about your brother's passing, you didn't take time to
1 1
think about what to do with his remains; you
1 2
immediately informed them to cremate your brother and
1 3
send him to California?
1 4
A.
No, that is not true.
1 5
Q.
So that initial conversation you had with those
1 6
individuals that notified you, you did not tell them
1 7
to cremate him?
1 8
A.
1 9
any time to think.
2 0
the years of what would happen if one of us
2 1
pre-deceased the other, which one would pre-decease,
2 2
what would happen.
2 3
Q.
2 4
2 5
Hang on a minute.
You said that I didn't take
Believe me, I thought a lot over
That wasn't my question, sir, respectfully.

My question was when he passed, you said you
racked your brain -- let me just finish the question,
267

1
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.
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?
This is when he
1 0
A.
I do not recall being able to say anything when I
1 1
was called by the first individual.
1 2
being in shock and not being able to say much of
1 3
anything.
1 4
Q.
1 5
that you actually told the first person who told you
1 6
about your brother's passing, to cremate him?
1 7
A.
1 8
shock.
1 9
Q.
2 0
don't know what to do?
2 1
A.
2 2
yes.
2 3
Q.
No, that's not what I was saying.
2 4
A.
He was the first person I ever talked to on the
2 5
subject.
I recall only
Os is it possible, because you were in shock,
I cannot say what I said or didn't say.
I was in
Did you ask that individual, give me some time, I
I asked Mr. Schonberger to giver me some time,
268

1
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?
1 0
If you haven't,
go ahead.
1 1
1 2
A.
I asked Mr. Schonberger to give me time to think.
1 3
I listened to him carefully.
1 4
think and he would not let me.
1 5
which I'll not repeat in this courtroom.
1 6
Q.
1 7
but weren't you notified --
1 8
A.
And once he said that --
1 9
Q.
Let me finish my question.
I said I need time to

And he said something
Sir, I understand that and I was respect that,
Weren't you notified three days before your
2 0
2 1
conversation with Mr. Schonberger about a
2 2
authorities?
2 3
A.
2 4
at most two, three hours after I had the first
2 5
inkling of my brother's death.
No, absolutely not.
I spoke to Mr. Schonberger
269

1
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 with
Mr. Schonberger.
Do you recall that conversation you had?
That conversation.
A.
I have no -- I have only the recollection of
1 0
being shocked.
I recall speaking to two officials of
1 1
the nursing home, asking about Marty, asking the
1 2
circumstances of his death, asking what had happened,
1 3
asking about his friends, if I could talk to any of
1 4
his friends.
1 5
Q.
1 6
you recall, was it a member of law enforcement?
1 7
A.
1 8
get her name.
1 9
worker, who reached me by phone at about 11:30 a.m.
2 0
Eastern Time on the morning of 15th, which I gather
2 1
was about four hours after Marty died.
2 2
Q.
2 3
anyone to cremate your brother's remains?
2 4
A.
2 5
later.
Were those -- the first person you spoke to, do
No, the first person was a social worker.

Again, I can check my notes.
I can
Social
And when do you recall is the first time you told
When I talked to the funeral home several hours
270

1
Q.
So several hours.
what was the time of the call from social worker,
sir?
A.
About 11:30.
Q.
11:30?
A.
Your time.
Q.
11:30.
A.
A.m.
Q.
And that was on the 15th?
1 0
A.
On the 15th.
1 1
Q.
That would be the day he passed, sir?
1 2
A.
Yes.
Was that a.m. or p.m., sir?
THE COURT:
1 3
So several hours -- you said
Was that your California time or
New York time?
1 4
1 5
MS. FINKELSTEIN:
1 6
THE COURT:
1 7
MS. FINKELSTEIN:
He said New York time.
Did he say that?

Yeah.
1 8
Q.
Did you say New York time?
1 9
A.
Yes, 11:30 eastern time.
2 0
Q.
And you said that the first one was a social
2 1
worker that called, right?
2 2
A.
Yes.
2 3
Q.
The next call you received was from whom?
2 4
A.
I made some calls.
2 5
called the doctor.
I called.
First of all, I
I talked to the doctor to try to
271

1
ascertain the medical circumstances of my brother's
death.
the home.
don't remember which.
circumstances and details.
had been found.
about his effects.
anything I could have to remember him by.
only clothes and his cane.
Dr. -- I forgot his name.
I then called back
I talked to possibly Carrie or Nancy.
1 0
have his cane.
1 1
Q.
1 2
wasn't it?
1 3
A.
Maybe both.
I asked again the
They told me how Marty
I got all those details.
I asked
If there were any mementoes,

They said
I said can I at least
And that was provided to you by Mr. Schonberger,
Yes, it was.
1 4
MR. DeMAY:
Let the witness finish, please.
1 5
THE COURT:
Let him finish his answer.
1 6
A.
1 7
who had responded to the call was not in, but I left
1 8
a message for her.
1 9
point the funeral home called me and we talked.
2 0
that time I did say yes, it was my -- it was my
2 1
desire at that point to have my brother's remains
2 2
cremated.
2 3
Subsequently, I called the police.
The detective
And then subsequently at some

At
How Mr. Schonberger found out about this, I
2 4
don't know.
But it was very shortly thereafter that
2 5
he called me and began to harangue me about --
272

1
Q.
Okay.
I'm going to concentrate on the time where
you finally called -- you said you called the funeral
home?
A.
No, they called me.
Q.
Okay.
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?
1 0
A.
That's correct.
1 1
Q.
And you said that was a few hours later.
1 2
recall eastern time what time that was during that
1 3
conversation?
1 4
A.
1 5
p.m. eastern time.
1 6
Q.
1 7
if Marty gave you any indication, that was done in
1 8
those four and a half to five hours?
1 9
A.
2 0
pre-deceased me, what would happen if I pre-deceased
2 1
him.
2 2
in those hours, but it's not the first time I thought
2 3
about the question.
So, it was the conversation with the
Do you
I'm guessing, that would have been 4:00 or 5:00
So when you said you racked your brain to decide
I've often thought what would happen if he
Obviously, it was intensified to the nth degree
2 4
THE COURT:
How much further do you have?
2 5
MS. FINKELSTEIN:
I just -- not long at all.
273

THE COURT:
15 minutes.
I've indicated I'm taking an extra
Do you have redirect?
MR. DeMAY:
THE WITNESS:
Little, if any, Your Honor.

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
1 0
about it, you never had the conversation with your
1 1
brother and you never got from him what he wanted to
1 2
do upon his death?
1 3
A.
1 4
touchy about such matters - he would immediately
1 5
change the subject.
1 6
Q.
1 7
no indication, intentionally gave you no indication
1 8
as to what to do with his remains upon death?
Wherever I tried to raise any question - he was
So as you sit here today, your brother gave you
MR. DeMAY:
1 9
Object to the form of the
question.
2 0
MS. FINKELSTEIN:
2 1
Well, he said he avoided the
topic, Your Honor.
2 2
2 3
THE COURT:
2 4
You can answer.
2 5
I tried on numerous occasions.
A.
No.
On those grounds, overruled.
I can't -- I can't say intentionally.
I believe
274

1
my brother was fearful to discuss anything touching
upon death, because, like I say, whenever I mentioned
to him or tried to mention to him some person who he
had known or might have been close to once died, he
immediately would change the subject.
to talk about death under any circumstances.
Q.
question.
told you what his wishes were for the disposition of
He didn't want
So, as you sit here today, I ask that same

As you sit here today, your brother never
1 0
his body upon his death?
1 1
A.
That is correct.
1 2
Q.
And your brother also never discussed with you
1 3
religion?
1 4
A.
That is correct.
1 5
Q.
Despite the fact that he was observing Jewish
1 6
religion on a weekly basis, daily basis and that is
1 7
where he resided?
1 8
MR. DeMAY:
Objection.
Misstates the
testimony.
1 9
THE COURT:
2 0
2 1
objection.
I think that one could construe that
2 2
from the testimony we've had.

You may answer, sir.
2 3
2 4
A.
If that's religious as you claim, then that's
2 5
correct.
275

1
Q.
Sir, do you believe in God?

MR. DeMAY:
irrelevant.
What's relevant is Marty's wishes.
MS. FINKELSTEIN:
MR. DeMAY:
MS. FINKELSTEIN:
1 0
Well, exactly.
That's
what's relevant and he's putting his wishes --
Completely

If I may respond to your
objection?
THE COURT:
Wait.
Wait.
Let's not
disintegrate into an argument here.
1 1
Sustained on the objection.
1 2
You know, I guess most judges like to settle
1 3
cases.
1 4
making a decision, that's a forced resolution.
1 5
when you can settle a case, it's a resolution that
1 6
both sides agree on.
1 7
I like to settle cases.
Okay.
Because
But
Is it likely -- I'll get back to what I asked
1 8
you before.
1 9
the time of his death, changed his beliefs, maybe
2 0
became more God-fearing, so to speak, and maybe
2 1
would want to have a burial in the Jewish tradition
2 2
as opposed to a cremation?
2 3
Is it likely that your brother, near
And I say that because of the evidence of
2 4
attending the services, paying to attend the
2 5
services right up until the day he died and
276

1
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.
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
1 0
disposition.
1 1
talmud so far as I know.
1 2
But I, I don't even
I don't know that -- he didn't read
THE COURT:
How about -- sir, how about
1 3
looking at it as a religious insurance policy?
1 4
he's buried in the Jewish tradition, then in the
1 5
Jewish tradition the corpus meets the soul.
1 6
They're together.
1 7
Messiah returns.
1 8
You have a whole body when the
And maybe you're right.
Maybe you're wrong.
1 9
Maybe there's a hereafter.
2 0
to me, what skin is it off your nose to bury
2 1
instead of cremate?
2 2
2 3
2 4
2 5
THE WITNESS:
If
Maybe there's not.
But
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?
277

My client has always suggested, has never said
where -- he can controls where he buries his
brother.
THE WITNESS:
They've suggested -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
1 0
trial.
1 1
courtroom yesterday, there was even more than there
1 2
are today, who apparently care enough about the
1 3
case and, I assume, enough about your brother to be
1 4
here to watch the proceedings that are going on.
1 5
So obviously he's not alone.
1 6
1 7
1 8
And there were more people in this
THE WITNESS:
Did they even know my brother or
is this just being politicized?

THE COURT:
These are people from the
1 9
community and people that -- many people who are
2 0
here know him from the home.
2 1
You wanted to say something.
2 2
MS. FINKELSTEIN:
Your Honor, I know that his
2 3
fear is that -- his concern is for his brother to
2 4
be alone.
2 5
his expression was during the conference we had.
That's what he expressed.
That was what
278

1
And now that we know -- a proposal here.
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.
know -THE WITNESS:
MS. FINKELSTEIN:
said that.
THE WITNESS:
1 3
MS. FINKELSTEIN:
1 5
There's
true.
I know, sir.
I know you
I know, sir.
1 2
1 4
no room.
1 0
1 1
He can't be near them.
Now
I didn't say it.

No.
No.
No.
It's true.
I know it's
I'm not questioning that, sir.

But what I'm saying is the father is not near
1 6
the mother because there was no room.
But he's in
1 7
the same cemetery, same Jewish cemetery.
1 8
Is there the possibility of a resolution to
1 9
bury Martin in the same cemetery as his parents?
2 0
don't know.
2 1
resolve it.
2 2
That's what I'm just proposing to
THE COURT:
Loo, we have other witnesses, I
2 3
suppose, that are going to have to come back anyway
2 4
on -- let me make sure.
2 5
MS. FINKELSTEIN:
Tuesday?
279
1
THE COURT:
On Monday.
MS. FINKELSTEIN:
THE COURT:
Monday is a holiday.
So Tuesday.
11 o'clock -- 11:30 again.
start.
We'll come back at

That's a good time to
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?
1 0
THE COURT:
1 1
You're going to go back to California?
1 2
THE WITNESS:
I have to.
1 3
MR. HOLWELL:
I take it, Your Honor, we're
1 4
1 5
1 6
1 7
1 8
1 9
2 0
Yes.
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
2 1
THE COURT:
The witness will then participate
2 2
by phone on Tuesday.
2 3
MS. FINKELSTEIN:
2 4
THE COURT:
2 5
MS. FINKELSTEIN:
We have no objection.
See you all Tuesday at 11:30.

They wanted to confer with
280
1
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.
1 0
1 1
1 2
THE COURT:
So we'll see you all, and your
client by telephone, on Tuesday, at 1:130.

MR. DeMAY:

oOo
1 3
1 4
1 5
1 6
1 7
1 8
1 9
2 0
2 1
2 2
2 3
2 4
2 5
__________________________
281
INDEX OF WITNESSES
WITNESS
DIRECT
CROSS
B KELSEN
114(F)
135(D)
S MENDELSOHN
182(D)
226(F)
REDIRECT
RECROSS
VOIR DIRE
1 0
EXHIBITS
1 1
1 2
DEFENDANT
EXHIBIT
ID
EVD
1 3
Pleading
148
1 4
CCAR document
160
165
1 5
CCAR document
160
165
1 6
1 7
1 8
1 9
2 0
2 1
2 2
2 3
2 4
2 5

COUNTY OF ROCKLAND
- - - - - - - - - - - - - - - - - - - - - - X

Index No.
Petitioner,
1612/2015
against,
MENDELSON,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - X
Trial - Day#3
October 13, 2015
1 South Main Street
B E F O R E:

1 0
1 1
1 2
1 3
1 4
1 6

96 South Broadway
1 7
BY:
1 5
DENNIS LYNCH, ESQ.

1 8
1 9
2 0
2 1
2 2
2 3
2 4
2 5
BY:
BY:
BRENDON DeMAY, ESQ.

REPORTED BY:

283
1
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.
is the case, then we do not intend to call
Mr. Schonberger adversely.
THE COURT:
So you're not going to call the
petitioner?
1 0
MR. DeMAY:
Correct.
1 1
THE COURT:
Where are we now?
1 2
1 3
And if that
other witnesses?
Do we have any
I guess --
MS. FINKELSTEIN:
The only thing that was left
1 4
on the record, when we were here on Friday, was the
1 5
question of Mr. Mendelsohn wanted any redirect,
1 6
because he made some representations from the
1 7
witness stand, if you recall.
1 8
break to discuss that.
They were going to
1 9
MR. DeMAY:
No redirect, Your Honor.
2 0
Where it stands now is that, before the
2 1
proceeding started petitioner requested
2 2
post-hearing briefing.
2 3
briefing would be helpful to the court and we're
2 4
prepared to do the briefing as quickly as possible.
2 5
We agreed post-hearing
We would request briefs be submitted as soon
284
1
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.
like to start writing on Friday.
MR. DeMAY:
MS. FINKELSTEIN:
1 0
We can to that, Your Honor.

I just want to turn to your
stenographer.
(Whereupon, there was a discussion held off
1 1
1 2
So, I'd
the record.)
1 3
THE COURT:
Do you need the transcript?
1 4
MR. DeMAY:
We believe we need the transcript,
1 5
Your Honor.
1 6
THE COURT:
You need it too?
1 7
MR. DeMAY:
Yes, Your Honor.
1 8
As soon as it's
available, within 36 hours we can submit a brief.

THE COURT:
1 9
All right.
We can do that.
I'll
2 0
know when you received it, because I'll get a copy
2 1
of it myself.
2 2
that.
So I guess we'll have to leave it at
2 3
So memos to follow within 36 hours.
2 4
MR. LYNCH:
2 5
possible.
Judge, make it 48 hours, if
285
1
THE COURT:
Anything else we need to do today?
MR. DeMAY:
Not from Respondent, Your Honor.
THE COURT:
All right.
MS. FINKELSTEIN:
MR. DeMAY:
THE COURT:
Thank you.
You did speak to your client, because he was
1 0
All right.
48 hours.
Good luck.
expecting we were going to call him?

MR. HOLWELL:
Yes, I spoke to him in the
1 1
hallway, Your Honor.
1 2
THE COURT:
Okay.
1 3
1 4
1 5
1 6
oOo
1 7
1 8
1 9
2 0
2 1

2 2
2 3
2 4
2 5
__________________________

Court Procedings

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1

SUPREME COURT OF THE STATE OF NEW YORK

HON. VICTOR J. ALFIERI

ALSO BY: FEERICK, LYNCH & MacCARTNEY, PC

DENNIS LYNCH, ESQ.

BRENDON DeMAY, ESQ.

AMBER MALKIE FINER, R.P.R.

This is Schonberger versus Hellman Memorial et

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.

Your Honor, Dennis Lynch -

Feerick, Lynch & MacCartney, 96 South Broadway,

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

esteemed counsel here, Beth Finkelstein.

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.

Richard J. Holwell of Holwell,

Shuster & Goldberg, 125 Broad Street, for the

respondent Steven Mendelson.

Do you need a Notice of Appearance

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

I submitted it to the clerk an

We'll see everyone

will be here tomorrow.

while the Court recessed for lunch.)

I will not be here at 2:00, but I

This is Schonberger versus Hellman

Please call your first witness.

Your Honor, we call Rabbi

ascended the witness stand.)

SHOLOM SPERLIN, having been first duly affirmed, was

with the microphone.

Give your name and address for the record.

Good afternoon, Rabbi.

Wait one second.

Direct - Sperlin - Finkelstein

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.

you whether you can go ahead.

If you don't understand a question, indicate

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

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.

Thank you, Your Honor.

DIRECT EXAMINATION BY MS. FINKELSTEIN:

Good afternoon, Rabbi.

Morristown, New Jersey in 1972/1973.

And are you familiar with the Evergreen Court

Residence for Adults?

Direct - Sperlin - Finkelstein

Yes, I worked there for three years.

What three years was that, sir?

From 2004 at September through 2007.

And in what capacity did you work for the

you describe those religious services that you

Being the rabbi, performing all the religious

Now during that time period of 2004 to 2007, can