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KALIKA v. STERN

December 6, 1995

ALEX KALIKA, Plaintiff, against A. DAVID STERN, Defendant.


The opinion of the court was delivered by: JOHNSON

MEMORANDUM AND ORDER

 JOHNSON, DISTRICT JUDGE:

 Before this Court is Defendant's motion for summary judgment, pursuant to Fed.R.Civ.P. 56(b), as to all five causes of action in the above-referenced lawsuit. *fn1" For the reasons detailed herein, Defendant's motion for summary judgment is GRANTED. Defendant's motion for sanctions pursuant to Fed.R.Civ.P. 11 is DENIED.

 BACKGROUND

 This lawsuit arises from the Kings County, New York, prosecution of the Plaintiff, Alex Kalika, for an alleged violation of N.Y. Dom. Rel. Law § 253 ("DRL § 253"). The gravamen of Plaintiff's complaint is that the Defendant, A. David Stern, improperly informed the Kings County District Attorney's Office that 1) Plaintiff had been married in a valid Jewish ceremony; 2) Plaintiff and his ex-wife needed a religious divorce called a "Get;" *fn2" and, 3) Plaintiff had falsely stated that he had "removed all barriers to [her] remarriage" in his civil divorce proceeding, violating DRL § 253(8). *fn3" In support of his claims, Kalika alleges that Stern knew or should have known that: 1) Kalika's ex-wife was not Jewish; 2) their wedding was not valid under Jewish law; and 3) therefore, Kalika's statement that he had "removed all barriers to remarriage" pursuant to DRL § 253 was accurate.

  Alex Kalika married Julie Zlatin sometime in September, 1986. *fn4" In March 1987, Kalika and Ms. Zlatin separated. Kalika initiated divorce proceedings in the Spring of 1988. *fn5" Ms. Zlatin did not contest the divorce action, and the marriage was dissolved by a default judgment in July 1988. Pursuant to DRL § 253, Kalika filed a sworn statement dated May 14, 1988 indicating that he had taken all steps within his power "to remove all barriers to [Zlatin's] remarriage following the . . . divorce." Ex. 5 to Stern Aff. Kalika subsequently remarried in an Orthodox Jewish ceremony.

 In 1990, Ms. Zlatin became acquainted with Stern, an attorney, while she was working as a legal secretary at the law firm from which he rented office space. Ms. Zlatin approached Stern to ask whether, under Jewish law, she was properly divorced from Kalika. Stern Aff. P 15. Ms. Zlatin told Stern that she did not know whether she needed a Get in addition to the civil divorce that had been entered 18 months earlier. She provided him with the details of her marriage and divorce. Stern then reviewed the pleadings, judgment, and other papers from the divorce proceeding, and determined that a number of property issues had not been settled. Stern Aff. P 16.

 At this point, Ms. Zlatin informed Stern that she could not afford legal fees. Stern agreed to help her obtain a Get "free of charge." Stern Aff. P 18. He declined to represent her in connection with any financial claims against Kalika, however, as the time required "would likely be more expensive than the total property in dispute." Id.

 Stern then contacted Rabbi Milton Freedman, the rabbi who officiated at Kalika's marriage to Ms. Zlatin. Rabbi Freedman told Stern that he was a member of the Conservative Movement of Judaism and that a Get would be required to terminate a marriage performed by him. Stern Aff. P 19. Stern confirmed that Rabbi Freedman was licensed to perform marriages by calling the Office of the City Clerk. Id.

 After examining the divorce records and questioning Ms. Zlatin and Rabbi Freedman, Stern concluded that Ms. Zlatin did need a religious divorce. Stern also concluded that Plaintiff had falsely filed a DRL § 253 "removal of barriers to remarriage" statement in violation of DRL § 253(8).

 Stern wrote to Kalika on December 26, 1990, stating "it is apparent that the court was misled concerning your satisfaction of the requirements of [DRL § 253]." Ex. 4 to Stern Aff. In closing, Stern asked Kalika to contact him in order to make arrangements for the immediate completion of a Get. Stern indicated that if Kalika refused to cooperate, Ms. Zlatin planned to pursue any legal rights she may have in the circumstances. See id.

 After Kalika failed to respond to his letter, Stern arranged a meeting sometime in February or March 1991 with Deputy District Attorney Charles Posner at the Office of the District Attorney of Kings County. Stern accompanied Ms. Zlatin to the meeting, and provided the District Attorney's Office with copies of the Kalika/Zlatin divorce papers. Stern also explained his understanding of DRL § 253, and its relation to the perjury laws. Ms. Zlatin provided the District Attorney's Office with the details of her religious background, her marriage to and subsequent divorce from Kalika, and her desire to obtain a Get. Assistant District Attorney Jay Shapiro recommended that Stern contact Kalika's former attorney, Melvyn J. Estrin, before any further steps were taken. Stern Aff. P 21.

 The record indicates that Stern was in contact with the Kings County District Attorney's Office between March and July of 1991. During this time, Stern met with and sent at least eight letters to Assistant District Attorneys Charles Posner, Jay Shapiro and Jane Meyers. During the course of the investigation, Esther Kalika, Plaintiff's current wife, contacted the District Attorney's Office. She informed Deputy District Attorney Posner that Kalika was willing to give Ms. Zlatin a Get in order to avoid being indicted, but that he did not understand why a Get was necessary since Ms. Zlatin was not Jewish. Affirmation of Charles Posner Dated January 26, 1994 ("Posner Aff.") P 5. Posner advised Esther Kalika that the District Attorney's Office could give no assurances to her husband that he would not be indicted even if the Get was issued. Id. Plaintiff, on the other hand, alleges that it was his understanding that the District Attorney's Office would no longer pursue the case if he gave Ms. Zlatin a Get. Verified Complaint P 23 ("Complaint").

 At some point after Esther Kalika contacted Deputy District Attorney Posner, Plaintiff telephoned Stern to make arrangements for a Get proceeding. On June 8, 1991, Stern arranged for Kalika and Ms. Zlatin to appear before a Rabbinical board on the following day. At the Get proceeding, Kalika disclosed that his second marriage had been solemnized by a member of the Rabbinical Council of America. The Rabbinical board therefore indicated that further investigation would be required and declined to give Ms. Zlatin a "P'tur" -- which is a certificate attesting to the Get. Stern Aff. PP 35-36.

 On June 10, 1991, Stern sent a letter to Deputy District Attorney Posner confirming that the Get had taken place. See Ex. 17 to Stern Aff. That same day, Stern also sent a letter to Kings County District Attorney Charles J. Hynes thanking Hynes for his office's cooperation in helping Ms. Zlatin obtain a Get and expressing his concern that failure to prosecute "individuals like Mr. Kalika" undermines the deterrent power of DRL § 253. Ex. 18 to Stern Aff.

 On July 25, 1991, Stern received an envelope in the mail from the rabbi who officiated at Plaintiff's marriage to Esther Kalika, Rabbi Mordecai N. Goldweig. The envelope contained two notarized letters, both stating that Ms. Zlatin is not Jewish. See Ex. 19 to Stern Aff. Based upon these letters, Rabbi Goldweig concluded that Ms. Zlatin was not Jewish and thereby agreed to officiate at Kalika's second marriage. See Stern Aff. P 31. Stern faxed these affidavits to the District Attorney's Office and to the Rabbinical board which conducted the Kalika/Zlatin Get proceeding. Stern Aff. PP 34-35.

 In order to receive a "P'tur," Stern obtained an affidavit from Ms. Zlatin's mother, Larisa Zlatin, as to her Jewish parentage. See Ex. 22 to Stern Aff. Stern also obtained a statement from a woman named Malka Finkelstein. Ms. Finkelstein's statement, translated from Yiddish, states that she was friends with Larisa Zlatin when they lived in the former Soviet Union, and that she knew Larisa Zlatin to be Jewish. Ex. 23 to Stern Aff. *fn6"

 In August 1991, Kalika was indicted by a Kings County Grand Jury for violating DRL § 253(8). The District Attorney's Office decided to present the case to the Grand Jury despite the fact that the Get proceeding had occurred, and with full knowledge of Kalika's claim that Ms. Zlatin was not Jewish. Posner Aff. P 8. During the course of the Grand Jury presentation, Kalika was given the opportunity to testify or to present any evidence on his own behalf but he declined to do so. Ex. 26 to Stern Aff., at 4-5. Ms. Zlatin testified before the Grand Jury that she is Jewish. Ex. 25 to Stern Aff., at 8. Stern did not appear or testify before the Grand Jury. During the criminal proceeding that followed, Kalika unsuccessfully challenged the sufficiency of the indictment. Following a bench trial, however, Kalika was acquitted of the charge.

 In addition to the issue of Ms. Zlatin's Jewishness, Kalika disputes the religious validity of their marriage. Plaintiff points to the marriage certificate, which indicates that "Reverend," not "Rabbi," Milton Freedman performed the ceremony. Kurtz Aff. P 11. Moreover, Kalika asserts that one of the ceremony's witnesses was not valid, under Jewish law, because of her gender. See id. at P 12. Additionally, Kalika notes the discrepancy as to the date of the wedding. See id. at P 13.

 Defendant argues that Kalika and Ms. Zlatin thought that Freedman was a Rabbi. Stern notes that Freedman identified himself as a Rabbi in the subsequent Grand Jury proceeding against Plaintiff. Stern Aff. P 41. Stern concedes that the female witness listed on the marriage certificate was invalid under Jewish law. He contends, however, that she acted as a witness solely for the state marriage license, rather than for the marriage ceremony. Id. at PP 85-86. In regard to the ceremony itself, Stern claims that Rabbi Freedman himself qualifies as a valid, second male witness under Jewish law. Id. at P 86.

 Plaintiff commenced the present action in the Supreme Court of the State of New York in June 1992. Defendant filed a notice of removal in August 1992, bringing the case to this Court based on diversity jurisdiction. *fn7" In his Complaint, Kalika alleges five causes of action: (1) intentional infliction of emotional distress, (2) prima facie tort, (3) malicious prosecution, (4) abuse of process and (5) defamation.

 Plaintiff seeks $ 2.5 million ($ 500,000 for each cause of action) in damages, and $ 1 million in punitive damages. Stern now moves for summary judgment on all five claims. In addition, Stern seeks to have sanctions ...


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