New York State Law Specifies that Arbitrations May Take Place on Sunday

A New law recently passed by both houses of the New York state legislature specifies that statutory arbitrations (that are legally binding on the parties) may take place on Sunday. This new law at last puts to rest a a centuries-old confusion and uncertainty regarding whether arbitrations are considered judicial proceedings and prohibited on Sundays under New York state’s Code of Civil Procedure which states as follows:

A court shall not be opened, or transact any business on Sunday, nor shall a court transact any business on a Saturday in any case where such day is kept as a holy day by any party to the case, except to receive a verdict or discharge a jury and for the receipt by the criminal court of the city of New York or a court of special sessions of a plea of guilty and the pronouncement of sentence thereon in any case in which such court has jurisdiction. An adjournment of a court on Saturday, unless made after a cause has been committed to a jury, must be to some other day than Sunday. But this section does not prevent the exercise of the jurisdiction of a magistrate, where it is necessary to preserve the peace, or, in a criminal case, to arrest, commit or discharge a person charged with an offense, or the granting of an injunction order by a justice of the supreme court when in his judgment it is necessary to prevent irremediable injury or the service of a summons with or without a complaint if accompanied by an injunction order and an order of such justice permitting service on that day. (Code of Civil Procedure, Judiciary Law, section 5)

Among Jewish disputants, who commonly submit to a besdin panel that is legally constituted as an arbitration panel, the law was particularly vexing. The law was intended to protect Christian who observed Sunday as their sabbath day of rest from being forced to cope with secular matters on their holy day. For Jews, not only was the law not pertinent since they did not observe Sunday as the sabbath, but Sunday is often the preferred day of the week for litigants to dispute their case before a besdin since it is the only non-holy day when they are often off work.

And yet, what would often happen in recent years is is that a disgruntled defendant who was dissatisfied with a besdin’s ruling would appeal the matter to the secular court ultimately responsible for enforcing the arbitral verdict on the basis of this ancient law.

History of Sunday Arbitration in New York

As far back as 1827 a NY State Supreme Court ruling (Story v. Elliott) held that:

an award made and published to the parties on Sunday was void under common law rules invalidating a ‘judicial proceeding‘ held on Sunday” (Arbitration – What Is It?, 35 New York University Law Review 1031 [1960]).

In 1909 the Appellate Division, First Department, ruled in “Matter of Arbitration Between Picker and Marcus” as follows:

A statutory arbitration, such as this was, is a judicial proceeding provided for and regulated by the Code of Civil Procedure. The arbitrators sit as a court, or at least perform a statutory judicial function.

In our opinion, to proceed with the hearing of the arbitration on Sunday, in the face of the objections and protest of one of the parties to it, was illegal, and constituted misconduct on the part of the arbitrators which vitiated their award. The cases cited to the contrary are not in point. In neither of them did any party object at the time to going on upon Sunday. In one case (Isaacs v. Beth Hamedrash Society, 1 Hilt.
469) all the parties were Hebrews, who observed their Sabbath on Saturday, and the parties and witnesses attended voluntarily without objection. In the other (Ehrlich v. Pike, 53 Misc. Rep. 333) there were a number of meetings of the arbitrators, and there was no meeting held on Sunday at which the parties and witnesses were required to attend. It merely appeared that “the award was discussed and practically agreed upon” on that day.

By “judicial proceeding” the court meant a proceeding that involved adjudicating between a complainant and defendant. In contrast, injunctive hearings and a hearings to determine whether an accused should be arrested or released are permitted by the Code of Civil Procedure.

In that case the defendant had expressly requested that the arbitrators not hold the proceeding on Sunday and the arbitrators had denied the request. Also, the court implied that if both litigants were “Hebrews” (a.k.a. Jewish) and voluntarily chose to hold the arbitration session on Sunday, then such a Sunday ruling would stand. Lastly the court established the vitiatory precedent that because the arbitrators acted in bad faith by denying the defendants request to postpone the hearing to a weekday, the resultant ruling is “vitiated” (=faulty) and void.

The 1909 decision was fair and reasonable, consistent with the intent of the original statute that prohibited court session on a day of rest. But in subsequent decades some undiscerning judges wildly extrapolated from it and took it to a whole new level.

In 1940, in an arbitration dispute that was heard and decided by an arbitrator over the radio on a Sunday, the Appellate court (in “Matter of Arbitration Between Brody and Owen”) objected to the frivolity and the entertaining manner in which the hearing was conducted, but it also invalidated it on the basis of it having been conducted on Sunday:

Arbitration is a judicial proceeding and arbitrators perform a judicial function…. The proceedings were, therefore, in violation of section 5 of the Judiciary Law, which prohibits judicial proceedings on Sunday, with certain exceptions not pertinent here. . . . The statute expresses the public policy of the State, and cannot be waived.

The 1940 ruling interpreted the no-Sunday-hearing law to be rigid and applicable even if both parties expressly waived their right to object to the hearing being conducted on Sunday. This is highly dubious. The original statute allows non-judicial hearings (in which there is no defendant –one who might have been forced to attend on his day of rest) and it also prohibits sessions being held on Saturday if the defendant is Jewish. These provisions, and the general historical context of the original statute, suggest that the no-Sunday-hearing rule was not intended to be comprehensive and immutable. It suggests –though it doesn’t state so explicitly– that in a context where the defendant clearly doesn’t mind, let alone prefers, that the session is held on Sunday, the judge is permitted to do so.

Finally, in 1959 a Queens Supreme Court for the first time dealt specifically with a Jewish besdin arbitration session in which a dispute was heard and rendered on Sunday. The judge, relying on all the precedents, especially the Brody and Owen ruling, vacated the award granted the plaintiff by the besdin.

But the 1959 case seemingly was not published, nor widely promulgated in the legal community. The Sunday-hearing objection, at any rate, is not known to have been invoked again for more than half a century, until 2014, when a NY State Supreme court judge in Brooklyn by the name of Edgar Walker vacated a Sunday besdin award in “Bauer v. Bauer”. In recent years multiple such motions to vacate besdin award were made at the Supreme Court level in various jurisdictions. Some judges followed the 1959 precedent to vacate; others ignored it.

The 2014 case involved a $42 million dispute between siblings over an inheritance that was heard by the besdin ???. The judge’s ruling was appealed to the Second Division Appellate court which ruled in 2016 to uphold the no-Sunday-hearing objection. By that time some New York judges were throwing out besdin rulings even if only some of their sessions were held on Sunday.

Agudas Israel strongly objected to the no-sunday-hearing basis to vacate a besdin-issued award. It had filed an amicus brief with the court in 2014.

Leopold Gross, a prominent hasidic lawyer, filed a similar brief against vacating Sunday besdin verdicts in the 2016 case of  Stark v. Rubel. He construes the law to associated with other “Blue Laws” enacted by many states and locales that are intended to establish and maintain Sunday as a day of rest by prohibiting businesses from operating on Sundays. Such laws have been ruled unconstitutional since they force non-Christians to observe Sunday as their day of rest in violation of the First Amendment that protects one’s freedom of religion.

The new law does not overturn or even modify the existing law. It merely elucidates section 5 of the judiciary law to NOT prohibit voluntarily consent to Sunday arbitrations. It nominally requires such consent by the parties to be in writing but it also allows the besdin tribunal to determine “by clear and convincing evidence, that such party has affirmatively consented to such proceedings on a Saturday or Sunday as the case may be” even when the consent-granting document was not prepared by the party itself. In effect the tables have now turned such that a party wishing to object to a Sunday-held besdin session must prove that it had stipulated for Sunday sessions not to be held, AND that the besdin then held it in their absence AFTER they had signed the original arbitration papers. Such a sequence of events is virtually impossible since besdins do not hold ANY arbitration sessions in the absence of either of the parties; they merely issue a siruv if the defendant fails to respond and appear upon reasonable notice.

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