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