Saturday, August 28, 2004

Case of Rabbi Don Well

Case of Rabbi Don Well
(AKA: Donald Well)
Principal Yeshiva Rambam - Flatbush/Brooklyn, New York 
 
All criminal charges against Rabbi Don Well were dismissed by the Kings County District Attorney's office after he was accused and charged with one count of third-degree sexual abuse. The alleged victim was an employee of the school (kitchen staff). Shortly after the accusation was made, a series of anonymous letters were sent to parents of children enrolled in the school concerning the allegations.
 
In September, 1997, an anonymous telephone caller caused New York State's Department of Child Welfare to investigate Rabbi Well and his family for child abuse against his own daughter which served as a basis for Rabbi Well's June 1998 termination. These charges were later determined to be unfounded.
 
On December 18, 1998, Rabbi Well was terminated as principal of Yeshiva Rambam. Rabbi Well sued the school for breach of contract. The Beth Din of America, a Jewish version of an arbitration panel got involved. On December 18, 1998, issued an Ikul or injunction, forbidding Rabbi Well's removal until it conducted a hearing. After summoning Rambam three times and having not received a proper response thereto, the Beth Din, on February 25, 1999 found Yeshiva Rambam to be in contempt; authorized Rabbi Well to pursue his claims in the secular courts, and stated that "it is ...... forbidden for any Jewish person ... to accept a paid position at Yeshiva Rambam in any administrative or teaching capacity. 
 
No more information is known about this case at this time.
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Disclaimer: Inclusion in this website does not constitute a recommendation or endorsement. Individuals must decide for themselves if the resources meet their own personal needs. 

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  1. Yeshiva Principal Charged in Sex Rap (09/11/1997)
  2. Don Well, respondent, v Yeshiva Rambam, et al., appellants, et al., defendant. (Index No. 22575/00) (12/23/1997)
  3. Heritage Academy Hires New Administrators: Staff Hopes to Enhance Judaic Studies Program
  4. Part 26 of the Supreme Court Of the State of New York  (07/23/2001)

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By Henrie E. Cauvin
Daily News (New York) - September 11, 1997, Thursday
 
SECTION: News; Pg. 28
The principal of a Brooklyn yeshiva was arrested yesterday and charged with sexual abuse after a female employe complained that he had fondled her, police said.
 
Orthodox Rabbi Don Well, 50, of Yeshiva Rambam in Flatbush, was charged with one count of third-degree sexual abuse, Officer Valerie St. Rose, a police spokeswoman, said last night.
 
Well was issued a desk appearance ticket on the misdemeanor charge and released, St. Rose said.
Reached at his home at 145-15 68th Drive in Kew Gardens, Queens, last night, Well said he had no comment.
 
Well was hired about a year ago to run the 53-year-old school, where approximately 500 students are enrolled.
 
The alleged incident took place in November, a few months after his arrival. It was reported to police last month.
 
The rabbi's arrest follows weeks of wrangling over the woman's accusation among members of the yeshiva's board of directors. Some have argued that the school should stand by its principal; others say the school should cut its embattled boss loose.
 
A board member who spoke on the condition of anonymity, saying he fears Well, said several other female school employes claim that Well has made lewd comments to them.
 
Others on the board, however, believe the woman fabricated the charge in an effort to unseat Well, who has been locked in a power struggle with Rabbi Reuven Bernstein, who is the yeshiva's executive director and runs its financial affairs.
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2001-08277
 
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
300 A.D.2d 580; 753 N.Y.S.2d 512; 2002 N.Y. App. Div. LEXIS 12708
November 25, 2002, Argued
December 23, 2002, Decided
DISPOSITION: Order reversed.
 
CASE SUMMARY
 
PROCEDURAL POSTURE: Defendants appealed an order by the Supreme Court, Kings County (New York), that denied their motion to dismiss various causes of action asserted against them in plaintiff's action to recover damages for breach of contract.
 
OVERVIEW: Plaintiff sued defendants for breach of contract. The appellate court held that the sixth cause of action alleged a breach of a contract provision that was an agreement to negotiate. However, that provision was unenforceable. Defendants named in the seventh and eighth causes of action were entitled to qualified immunity. The 9th, 10th, and 11th causes of action, based on negligent supervision and negligent retention, contained little more than bare legal conclusions or factual claims that were contradicted by the evidence. Finally, plaintiff failed to set forth the particular defamatory words in the 12th cause of action. As a result, the trial court erred in denying defendants' motion to dismiss pursuant to N.Y. C.P.L.R. 3211(a)(7), (11) and 3016(a).
 
OUTCOME: The order was reversed insofar as it was appealed from.
 
CORE TERMS: causes of action, cause of action, negligent supervision, contradicted, retention
Motions to Dismiss
 
HN1 On a motion to dismiss pursuant to N. Y. C.P.L.R. 3211(a)(7), a complaint must be liberally construed in a light most favorable to a plaintiff, and all allegations must be accepted as true.
 
Motions to Dismiss 
HN2 Initially, the sole criterion is whether a pleading states a cause of action, and if from its four corners factual allegations are discerned, which taken together, manifest any cause of action cognizable at law, a motion for dismissal will fail.
 
Motions to Dismiss
HN3 A court may freely consider affidavits submitted by a plaintiff to remedy any defects in a complaint. However, unless it has been shown that a material fact as claimed by a pleader to be one is not a fact at all, and unless it can be said that no significant dispute exists regarding it, dismissal may not be predicated on such evidentiary material.
 
Motions to Dismiss
HN4 A complaint containing factual claims that are flatly contradicted by documentary evidence should be dismissed.
 
Motions to Dismiss
Contracts Law > Breach > Causes of Action
 
HN5 A cause of action must be dismissed where it alleges a breach of a contract provision that amounts to an agreement to negotiate and, as such, is unenforceable.
 
HN6 A necessary element of a cause of action alleging negligent supervision or negligent retention is that an employer knew or should have known of an employee's propensity for the conduct that caused an injury.
 
COUNSEL: Israel Goldberg, PLLC, Brooklyn, N.Y., for appellants.
Marc W. Garbar, P.C., New York, N.Y., for respondent.
 
JUDGES: MYRIAM J. ALTMAN, J.P., SONDRA MILLER, THOMAS A. ADAMS, BARRY A. COZIER, JJ., concur.
 
OPINION: [*580] [**513] DECISION & ORDER
 
In an action to recover damages for breach of contract, the defendants Yeshiva Rambam, Isaac Moinester, Alex Rovt, Richard Bernstein, Alex Gross, Imre Lefkovitz, Eli Cameo, Isidore Zaremba, Jeshurin Allen, Stacy Rosen, Irwin Weintraub, Garry Konner, Joel Zwibel, Harold Braunstein, Adam Sandler, Ellen Nakash, and Jeffrey Wallach appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Barasch, J.), dated July 23, 2001, as denied those branches of their motion which were to dismiss the sixth through twelfth causes of action insofar as asserted against them.
 
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, those branches of the motion which were to dismiss the sixth through twelfth causes of action insofar as asserted against the appellants are granted, and those causes of [***2] action are dismissed insofar as  asserted against the appellants.
 
HN1On a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint must be liberally construed in the light most favorable to the plaintiff and all allegations must be accepted as true (see Leon v Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511; LoPinto v J.W. Mays, Inc., 170 A.D.2d 582, 566 N.Y.S.2d 357; Cohn v Rothman-Goodman Mgt. Corp., 155 A.D.2d 579, 547 N.Y.S.2d 881). HN2"Initially, the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail" ( Guggenheimer v Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17). HN3A court may freely consider affidavits submitted [**514] by the plaintiff to remedy any defects in the complaint (see Rovello v Orofino Realty Co., 40 N.Y.2d 633, 635, 389 N.Y.S.2d 314, 357 N.E.2d 970). However, "unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said [***3] that no significant dispute exists regarding it" dismissal may not be predicated on such evidentiary material ( Kenneth R. v Roman Catholic Diocese [*581] of Brooklyn, 229 A.D.2d 159, 162, 654 N.Y.S.2d 791, cert denied 522 U.S. 967, 139 L. Ed. 2d 316, 118 S. Ct. 413). HN4A complaint containing factual claims that are flatly contradicted by documentary evidence should be dismissed (see Kenneth R. v Roman Catholic Diocese of Brooklyn, supra).
 
The sixth HN5cause of action must be dismissed because it alleged the breach of a contract provision that amounted to an agreement to negotiate and, as such, is unenforceable (see Del Castillo v Bayley Seton Hosp., 232 A.D.2d 602, 649 N.Y.S.2d 41; Martin Delicatessen v Schumacher, 52 N.Y.2d 105, 110, 436 N.Y.S.2d 247, 417 N.E.2d 541). Since the individual defendants named in the seventh and eighth causes of action are entitled to the qualified immunity afforded by Not-For-Profit Corporation Law § 720-a, and there is no reasonable probability that the plaintiff could prove gross negligence or intentional harm, those causes of action should be dismissed (see CPLR 3211 [***4] [a][11]; Durante Bros. Constr. Corp. v College Point Sports Assn., 207 A.D.2d 379, 380, 615 N.Y.S.2d 455).
 
HN6A necessary element of a cause of action alleging negligent supervision or negligent retention is that "the employer knew or should have known of the employee's propensity for the conduct which caused the injury" ( Kenneth R. v Roman Catholic Diocese of Brooklyn, supra at 161). The ninth, tenth, and eleventh causes of action, based on negligent supervision and negligent retention, contain "'little more than bare legal conclusions' or factual claims that are contradicted by evidence" ( Manno v Mione, 249 A.D.2d 372, 670 N.Y.S.2d 368, quoting Kenneth R. v Roman Catholic Diocese of Brooklyn, supra at 161). Thus, those causes of action should have been dismissed. Finally, the twelfth cause of action, sounding in defamation, should have been dismissed because the plaintiff failed to set forth the particular defamatory words (see CPLR 3016[a]; Poplawski v Metropolitan Prop. & Cas. Ins. Co., 262 A.D.2d 543, 544, 692 N.Y.S.2d 438).
 
ALTMAN, J.P., S. MILLER, ADAMS and COZIER, [***5] JJ., concur.
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Heritage Academy Hires New Administrators: Staff Hopes to Enhance Judaic Studies Program
By Melody Wilensky
Jewish Advocate 
 
LONGMEADOW -- Heritage Academy in Longmeadow recently welcomed two new educators to its administrative staff. Dr. Caroline Cohen and Rabbi Dr. Don Well will assist Headmaster Dr. Richard Holzman in shaping and invigorating general and Judaic studies in grades K-8 at the day school.
 
Dr. Cohen holds a B.A. from Ithaca College, a M.S. in Education from the College of New Rochelle, and a Ph.D. from the University of Connecticut. She is a Professor of Education at the University of Hartford.
 
Her work will focus on continuous improvement of instruction, professional development and programs. She will insure that Heritage's curriculum adheres not only to national and state standards, but also reaches the high standards of the best private and public schools, said Holzman. She will also work with teachers to establish professional and personal goals -- goals designed to improve classroom instruction and facilitate professional growth.
 
Rabbi Dr. Well completed graduate work at The University of Chicago, where he pursued doctoral programs in both Psychology and Administration. He was formerly Executive Vice President of the Board of Jewish Education of Greater New York and has served as Dean of Undergraduate Jewish Studies at Yeshiva University. Prior to that, he served for a decade as president of The Hebrew Theological College in Chicago and Skokie, Ill.
 
He is responsible for guiding the Judaic studies program and will be involved in developing Judaic curriculum, improving Judaic instruction and programming, and strengthening Jewish identity at Heritage. He will also infuse Jewish content into school programs to heighten Judaic values and strengthen Judaic commitment among students.
 
Both Dr. Cohen and Rabbi Well plan to work closely with Heritage faculty and staff, providing mentoring, resources, and in-service training on a variety of curriculum-related and instructional issues. With their guidance, teachers will have an opportunity to evaluate their instructional styles, receive support for successful methods, and learn additional strategies aimed at meeting the needs of a diverse student body.
 
For more information about Heritage Academy, or to arrange a visit, please contact Dr. Richard Holzman at (413) 567-1517.


At an IAS Term, Part 26 of the Supreme Court Of the State of New York, held in and for the County of Kings, at the Courthouse, located at 15 Willoughby Street, Borough of Brooklyn, City and State of New York on the 23rd day of July, 2001.
P R E S E N T : HON.MELVIN S. BARASCH Justice
 
DON WELL, Plaintiff,
-against-
YESHIVA RAMBAM; and ISAAC MOINESTER, ALEX ROVT, RICHARD BERNSTEIN, ALEX GROSS, IMRE LEFKOVITZ, ELI CAMEO, ISIDORE ZAREMBA, JESHURIN ALLEN, STACY ROSEN, IRWIN WEINTRAUB, GARRY KONNER, JOEL ZWIBEL, HAROLD BRAUNSTEIN, ADAM SANDLER, ELLEN NAKASH, JEFFREY WALLACH and DANIEL RETTER, in their individual and official capacities, Defendants
 
DECISION & ORDER
 
INDEX #22575/00
 
By way of Notice of Motion, defendant Daniel Retter ("Retter") has moved pursuant to CPLR $321 1 ( 5 ) and (7), for an order dismissing the complaint. By way of cross-motion, defendants Yeshiva Rambam ("Rambam") and the remaining individual defendants named in the caption have likewise moved pursuant to the same subsections for an order of dismissal, or summary judgment in their favor. Plaintiff opposes both motions.
 
Based upon the papers submitted in support of, and in opposition to, these motions, the Court makes the following findings of fact:
 
Defendant Yeshiva Rambam is an educational institution incorporated and chartered pursuant to and in accordance with the laws of the State of New York. It has been granted tax exempt status pursuant to the provisions of the Internal Revenue Code $501(c)(3). The individual defendants, except for Richard Bernstein and Daniel Retter, are alleged in the complaint to have been officers or members of the Board of Directors of Runbam at the relevant time. Bernstein is alleged to have been employed as the Executive Director. Retter is alleged to be an attorney "employed in the City of New York, State of New York". Plaintiff is the former principal of Rambam.
 
On or about July 26, 1996, plaintiff entered into an agreement with Rambam to serve as the principal of Rambam with responsibility for its Hebrew and General Studies Departments for a three-year period ending July 28, 1999. His term of employment ended in December, 1998, under sharply disputed circumstances which are at the heart of this lawsuit. To the extent they are relevant to the outcome of this decision, they will be discussed, infra.
 
As set forth in Paragraph 25 of the Complaint, the individual defendants, commencing in or around July, 1997 and during the remainder of plaintiffs employment with Rambam, allegedly acting together "in conspiracy", "commenced false, libelous, defamatory and slanderous statements against Plaintiff, in an effort to have Plaintiff removed as principal." Plaintiff alleges his first termination, which was in breach of his contract, occurred in June, 1998, but was revoked. His second, and final termination, occurred in December, 1998. Plaintiff alleges that he was terminated without cause, which was in breach of the terms of his contract with Rambam.
 
It appears uncontroverted that events leading up to Plaintiffs termination included a realignment of authority in the running of Rambam's affairs so as to subordinate the executive director to the principal, followed by an accusation of sexual abuse against plaintiff by a kitchen employee at the school, who filed a criminal complaint which was dismissed by the Kings County District Attorney's Office. It was also the subject of a detailed investigation by one Margaret Retter, who published a report dated September 23, 1997, wherein she concluded that there was no evidence to support the charges. Nevertheless, shortly after the accusation was made, a series of anonymous letters were sent to parents of children enrolled in the school concerning the allegations.
 
Also in September, 1997, an anonymous telephone caller caused New York State's Department of Child Welfare to investigate plaintiff and his family for child abuse against his own daughter which served as a basis for plaintiffs June 1998 termination. These charges were later determined to be unfounded, and defendant Retter, in a letter sent to defendants Moinester and Rovt, advised them that the termination was improper.
 
On December 18, 1998, Plaintiff was terminated without cause as of December 21, 1998, although defendant Gross states in his affidavit that plaintiff left Rambam on his own accord. Notwithstanding the existence of any issue on this point, Article VII, p9 of Rambam's Constitution requires that in the event the Yeshiva sought to suspend or discharge a principal, "a statement of the charges against him shall be mailed to him by registered or certified mail and delivered to him at least seven days prior to a special meeting called for that purpose, at which meeting such suspension or discharge will be considered, with a request that he attend thereat and about any defense he may care to interpose."
 
Finally, while it will not enter into or affect the outcome of this decision, it bears noting that the Beth Din of America, a Jewish version of an arbitration panel, on December 18, 1998, issued an Ikul or injunction, forbidding plaintiffs removal until it conducted a hearing. After summoning Rambam three times and having not received a proper response thereto, the Beth Din, on February 25, 1999 found Yeshiva Rambam to be in contempt; authorized Rabbi Well to pursue his claims in the secular courts, and stated that "it is ...... forbidden for any Jewish person ... to accept a paid position at Yeshiva Rambam in any administrative or teaching capacity."
 
Plaintiffs Verified Complaint contains fourteen separate causes of action. Those numbered one to six allege breach of contract by,Rambam. Numbers seven and eight, which name defendants Moinester, Rovt, Gross, Leikovitz, Cameo, Zaremba, Allen, Rosen, Weintraub, Konner, Zwibel, Braunstein, Sandler., Nakash, Wallach and Retter, alleges tortious interference with plaintiffs employment. Number nine alleges that defendant Rambam was negligent in supervising defendants Moinester, Rovt, Gross, Lefkovitz, Cameo and Braunstein, who were allegedly officers thereof. Number 10 charges defendants Rambam, Moinester, Rovt, Gross, Lefkovitz, Cameo and Braunstein with negligence in supervising defendant Bernstein. Number eleven alleges that Rambam knew or should have known of defendants' Moinester, Rovt, Bemstein, Gross, Lefkowitz, Cameo and Braunstein's propensity for the conduct which caused injury to the plaintiff, but negligently retained them. Number twelve alleges that all defendants maliciously charged plaintiff with "crimes, deviant behavior, and other impalatable behavior:, but that "any charges against plaintiff have been dismissed, whether civil or criminal", causing additional injury to the Plaintiff. Number thirteen, without mentioning a date, alleges that Defendants' termination of Plaintiff without cause constituted unlawful discriminatory employment practices within the meaning of Title 8- 107, subsection 1 1 of the Administrative Code and Charter of New York City. Finally, in Number 14, plaintiff alleges discrimination under New York State Executive Law, Section 296, subdivision 16. He seeks compensatory, pecuniary and punitive damages, attorneys fees, plus costs and disbursements. Neither the language contained in the Verified Complaint, nor any allegations in the papers in support of Plaintiffs affirmation in opposition to the motions to dismiss, demonstrate that defendant Retter acted outside of the scope of his authority as an attorney acting in an advisory capacity. Burger v. Brookhaven Medical Center, 131 AD2d 622; Kline v. Schaum 174 Misc.2d 988 (Supreme Court,. Appellate Term, Second Dept.); Newburner. Lobe & Company v. Gross, 563 F2d 1057. Accordingly, the motion is granted.
 
As to the remaining defendants, the Court makes the following findings with regard to the cross-motion:
 
With respect to the first six causes of action of the verified complaint, with sound in breach of contract and are specifically directed to Rambam, the cross-motion is denied.
 
As to those numbered seven through twelve, it is clear to the Court that they state causes of action for tortious interference and negligence, and defendants' contention that numbers 7 and 8 sound in defamation (and are thus subject to a one-year statute of limitations) is a tortured and unacceptable interpretation (see Foster v. Churchill, 87 NY2d 744,642 NYS2d 583,665 NE2d 153). Moreover, with respect to defendant Rambam, and more particularly the individually named defendant officers and employees, while it is true that a corporate officer who is chargedwith inducing the breach of a contract between a corporation and a third party is immune from liability if it appears he is acting in good faith as an officer, the evidence must clearly show that there was no commission of independent torts or predatory acts directed against the other party. Burger, supra at 623. Accordingly, that branch of the cross-motion is denied since the acts alleged, if supported by evidence that can only be obtained through discovery, may well result in verdicts of liability and the imposition of damages.
 
Finally, paragraphs thirteen and fourteen, which allege violations of New York City and New York State anti-discrimination statutes respectively, fail to articulate specific acts of wrongdoing by any of the named defendants, and are conclusory and vague. Accordingly, the cross-motion is granted with respect thereto, and same are dismissed. The foregoing constitutes the decision and order of the court.
ENTER
 
MSB (signature)
J.S.C.
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