                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-1306-18T4

GERALD VESHNEFSKY,
a/k/a CHAIM VESHNEFSKY,
and RUTH VESHNEFSKY,

          Plaintiffs-Respondents,

v.

AARON ZISOW,

          Defendant-Appellant/
          Cross-Respondent,

and

JEWISH LEARNING CENTER
OF MONMOUTH COUNTY, INC.,

     Defendant-Respondent/
     Cross-Appellant.
______________________________

                   Argued February 6, 2020 – Decided July 27, 2020

                   Before Judges Nugent and DeAlmeida.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Ocean County, Docket No. C-
                   000150-17.
            Larry S. Loigman argued the cause for appellant/cross-
            respondent Aaron Zisow.

            Sam Maybruch argued the cause for respondent/cross-
            appellant Jewish Learning Center of Monmouth County
            (Arbus, Maybruch & Goode, LLC, attorneys; Sam
            Maybruch and Matthew Goode, on the brief).

            David C. Steinmetz argued the cause for respondents
            (Steinmetz, LLC, attorneys; David C. Steinmetz, on the
            brief).

PER CURIAM

      This appeal by defendant Rabbi Aaron Zisow and cross-appeal by

defendant Jewish Learning Center of Monmouth County, Inc. (JLC) require us

to decide whether an arbitration award, twice supplemented, should be upheld

as the trial court ordered, or set aside. The award and its amendments were

rendered by a Bais Din—a Rabbinical Court that also serves as an arbitral

tribunal—in favor of plaintiffs, Rabbi Gerald Veshnefsky and Ruth Veshnefsky.

For the reasons that follow, we affirm the award but vacate the trial court's

attorney's fee award and remand that issue for further consideration.

                                       I.

      The genesis of the parties' dispute is a March 2016 agreement (Agreement)

among Rabbi Veshnefsky, JLC, and the Kollel—an organization of students who

devote themselves to the study of Jewish religious doctrine and prayer—of


                                                                        A-1306-18T4
                                       2
Western Monmouth County (Kollel). Rabbi Veshnefsky was JLC's original

registered agent and spiritual leader. He drafted JLC's by-laws and was the

Secretary of JLC's Board of Directors. Rabbi Zisow was the Kollel's spiritual

leader. He superseded Rabbi Veshnefsky as the spiritual leader of JLC.

      The Agreement declares the Kollel will "assume responsibility,

leadership, and ownership of the JLC, and commits itself to the financial plan

described herein for Rabbi and Rebbitzen Veshnefsky."        The terms of the

Agreement also provide "[a] grand total of $275,000.00 will be re-paid to Rabbi

and Rebbitzen Veshnefsky, or on their behalf, as reimbursement for debts

incurred on behalf of the JLC, loans to the JLC, and unpaid salary . . . ." In

addition, the Agreement requires payment for balances on Rabbi Veshnefsky's

credit cards, which the Rabbi had used to "fund" JLC related expenses. To

secure the debt, the Agreement requires that "all [JLC] investment property and

the piece annexed out to the investment property will have a lien on it for the

above payment."     Following are the relevant portions of the Agreement

concerning arbitration of disputes:

            6.    Any disputes as to the interpretation of this
            Agreement shall be submitted to Rabbi Chaim Leiter
            for determination. All parties agree to abide by any
            psak (decision) issued by Rabbi Leiter.
            ....


                                                                         A-1306-18T4
                                      3
                   After all of the above terms are agreed to by all
            parties and the Board of [D]irectors, all parties will
            forego any claim they may have, both in bais din and in
            civil court. We, the undersigned, as of the date shown
            at the top of this Agreement, agree to all of the above
            conditions and statements. We represent that we have
            the necessary authority, on behalf of our respective
            organizations, to enter into this Agreement and to bind
            each organization to it.

      JLC's Board's officers, including the president, Dr. Theodore Lidsky,

signed the Agreement on behalf of JLC. Rabbi Zisow signed the Agreement on

behalf of the Kollel. Not long afterward, a dispute erupted when the check Rabbi

Zisow tendered as the first payment to Rabbi Veshnefsky was returned for

insufficient funds. Rabbi Veshnefsky has been paid nothing since.

      In accordance with the Agreement, the parties submitted their dispute to

Rabbi Lieter. On April 11, 2016, Rabbi Lieter informed the parties their dispute

appeared to go beyond the interpretation of their Agreement. The following

week, Rabbi Veshnefsky, Ruth Veshnefsky, and Rabbi Zisow entered into an

"Agreement to Submit to Arbitration" (The Arbitration Contract). Rabbi Zisow

signed the Arbitration Contract without specifying whether he was doing so as

an officer or agent of either JLC or the Kollel.

      The parties agreed by the terms of the Arbitration Contract "to submit to

binding arbitration all the controversies (claims and counterclaims) between the


                                                                        A-1306-18T4
                                        4
undersigned Parties, including without limitation fulfillment of agreement

regarding [JLC] and all related issues." The parties agreed "that the controversy

be heard and determined by Arbitrator of Vaad Hadayanim Rabbinical Court[.]"

The Arbitration Contract further provided:

            [T]he Arbitrator may make his award based upon Din
            Torah, compromise, settlement, or any other way he
            wishes to reach a decision; that the Arbitrator shall be
            empowered to issue such intermediate decisions or
            orders as he deems necessary; that no transcript nor
            recording of the proceeding need be made; that the
            Parties waive the right to cross-examination except
            under the procedures set by the Arbitrator; that the
            Arbitrator may follow any procedure as they decide;
            that the Arbitrator may determine evidentiary issues;
            that the Arbitrator shall be empowered to issue
            subpoenas for witnesses and the production of
            documents; that the arbitration may be conducted in
            whole or in part in a language other than English; that
            hearings may be held on Sundays and other legal
            holidays; that it shall be the decision of the Arbitrator
            as to whether a matter is related to the dispute or not;
            that the award of Arbitrator shall be in writing and shall
            be signed by the Arbitrator and need not be
            acknowledged or notarized to be confirmed or
            enforced; that the Arbitrator need not explain to the
            Parties or to anyone else the reasons for their decision.

            WE understand that we have the right to be represented
            by attorneys and/or other advisors in the arbitration at
            any time, but that any Party may elect to proceed
            without an attorney, and the Parties shall have the right
            to argue for themselves before the Arbitrator. The
            Parties hereby waive formal notice of the time and
            place of the arbitration proceeding and consent that the

                                                                         A-1306-18T4
                                        5
            arbitration be held and commence with the jurisdiction
            of the Arbitrator to continue until a final award be
            made. The Parties agree that the Arbitrator shall have
            the right to hear testimony and evidence without the
            presence of a Party if the Party does not attend a
            scheduled hearing. In the event that after an award is
            made a dispute between the Parties arises as to the
            interpretation of the award, compliance of the Parties,
            or if a Party motions for reargument due to their claim
            of a judicial error or new evidence etc., the Parties agree
            that the Arbitrator shall have binding jurisdiction on the
            matters, and the Parties authorize the Arbitrator to add
            to, amend, change, or clarify a decision, to the extent
            permitted by law. In the event that a Party does not
            abide by and perform any award or decision rendered
            by the Arbitrators or seeks to vacate such decision or
            award, the Parties authorize the Arbitrators to award
            additional fees and legal costs.

      In addition, the parties agreed to "faithfully abide by and perform any

interim or final award or decision rendered by the Arbitrator."

      On April 18, 2016, the Rabbinical Court of Lakewood issued the

following decision:

            On the matter of controversies that came before us
            between the parties: party A is Mr. and Mrs. Chaim
            Veshnefsky (the plaintiffs); Party B is Mr. A[a]ron
            [Zisow] (the defendant), with regard to ownership of
            JLC and the related. After hearing the arguments of the
            parties and an analysis of their statements and
            deliberations amongst us, the following Rabbinical
            Court Ruling was issued by us:

            1. The sale of JLC is in effect and Mr. A[a]ron [Zisow]
            is required to fulfill all that he obligated himself in the

                                                                          A-1306-18T4
                                        6
             executed agreement. Those amounts that are past due
             are to be paid by him immediately.

             2. In addition to the listed amounts, Mr. A[a]ron [Zisow]
             owes Mr. Chaim [Veshnefsky] the sum of $35.00.

             3. In the event there are any differences of opinion on
             any accounts, it is upon the two parties to prove their
             claims before Mr. Simon Shicha of Lakewood to
             determine, and the Rabbinical Court will consult Mr.
             Simon [Shicha]. His fee shall be equally shared by the
             two parties.

             4. It is upon Mr. Chaim [Veshnefsky] to act within his
             ability for the sake of harmony in the Manalapan
             community, and to refrain from interjecting himself in
             any negotiations with the owners there about the new
             arrangements there.

      Neither Rabbi Zisow nor JLC objected to the award. Nor did they comply

with it. About a year later, on May 9, 2017, the Rabbinical Court of Lakewood

clarified its ruling. The written clarification states in pertinent part:

             1. Pursuant to a certain Agreement between the parties,
             the change of management and directorship of the
             Jewish Learning Center of Monmouth County Inc.
             (JLC) from the Plaintiff to the Defendant is valid and
             binding. The Defendant, as the Manager and Director
             of the Jewish Learning Center of Monmouth County
             Inc. is obligated to fulfill all of his obligations as per
             the Agreement.

             2. According to the payment schedule in the
             Agreement, the Defendant as the Manager and Director
             of the Jewish Learning Center of Monmouth County
             Inc. is obligated to pay the Plaintiff a total of one

                                                                            A-1306-18T4
                                          7
            hundred twenty four thousand six dollars and twenty
            one cents ($124,006.21) as of June 1, 2017. This is also
            a personal obligation on the Defendant.

            3. As per the Agreement, the Defendant, as the Manager
            and Director of the Jewish Learning Center of
            Monmouth County, Inc. shall execute a mortgage in
            favor of the Plaintiff . . . against the property known as
            130 Pinebrook Road, Manalapan, NJ together with the
            piece annexed thereto.

      During the year following the Rabbinical Court's issuance of its

clarification, Rabbi Zisow and JLC neither objected to nor complied with the

Rabbinical Court's ruling. On June 14, 2018, the Rabbinical Court issued a third

ruling.   The initial award and first modification had been issued by three

members of the Rabbinical Court.       One of the members died prior to the

Rabbinical Court's June 14, 2018 ruling. During the week preceding the ruling,

Rabbi Simcha Roth, apparently representing Rabbi Zisow, objected to the matter

proceeding further in the absence of the now-deceased member of the Rabbinical

Court.

      Rabbi Roth suggested the two current members of the Rabbinical Court

had merely assisted the third, who had passed. Rabbi Roth wrote in an email

their assistance of the now-deceased member "doesn't in any way give you the

powers to continue adjudication of this matter." The Rabbi added: "In fact, the

arbitration agreement does not provide for any substitution of arbitrators in the

                                                                         A-1306-18T4
                                        8
event of incapacitation or death." The Rabbi ended the email by informing the

Rabbinical Court, "[m]y client is prepared to immediately proceed and

adjudicate the issues before a mutually agreeable Bis Din."

      One of the two remaining members of the Rabbinical Court corrected

Rabbi Roth. In a responsive email, the Rabbinical Court member stated: "Your

interpretation of the English Arbitration Agreement is not only incorrect it is

also irrelevant. The Shtar Barurin refers to the three Dayanim by name and it

empowers the remaining Dayanim, in the event that one of the Dayanim are no

longer able to serve." In response, Rabbi Roth requested a copy of the Shtar

Barurin. The Rabbinical Court member complied with the request and Rabbi

Roth thanked him.

      The parties have provided in the appellate record a translation of the

Hebrew Arbitration Contract. It provides, in part, that the three judges of the

Rabbinical Court:

            may reach a decision even if they heard one of the
            parties without the other's presence; that should one of
            the parties evade appearance before the court the court
            may proceed with the case, hear arguments and
            evidence, question witnesses and decide the case even
            in that party's absence; that the court's jurisdiction shall
            remain in force until its decision has been fully
            implemented; that the court may resolve any dispute
            that may arise over the decision's implementation, or
            over its interpretation; the court may also rule in the

                                                                           A-1306-18T4
                                         9
      event that one party should raise arguments or evidence
      to reverse its decision; similarly, should the decision
      (for whatever reason) not resolve all of the topics that
      were related to the case, the court may resolve these
      later; that the decision shall follow the opinion of the
      majority of judges, and the majority may reach a
      decision even should one judge be removed from the
      case, and even should one judge be undecided . . . .

The Rabbinical Court's third ruling stated:

      On April 18, 2016 the Bais Din (Rabbinic Arbitration
      Panel) issued its ruling in regards to the disputes
      between Gerald Veshnefsky and Ruth Veshnefsky
      (Plaintiff) and Aaron Zisow (Defendant) in regards to
      their contractual agreements in connection with the
      Jewish Learning Center of Monmouth County Inc. and
      associated matters. We clarified our ruling on May 9,
      2017. To date, Zisow continues to refuse to abide by
      our rulings. Pursuant to the Agreement to Arbitrate that
      provides continued jurisdiction on this matter we issue
      the following ruling:

                    ARBITRATION RULING

      1. Our ruling dated April 18, 2016 and its clarification
      dated May 9, 2017 remain in full force and effect
      against both JLC and Zisow.

      2. In addition to the security set forth in Paragraph 3 of
      our clarification dated May 9, 2017, both Zisow and
      JLC are directed to grant Plaintiff a mortgage upon any
      and all real property that each may own.

      3. Zisow and JLC shall pay Plaintiff for any attorneys
      fees . . . whether previously incurred and that may be
      incurred in the future.


                                                                   A-1306-18T4
                                 10
            4. As Plaintiff’s proceedings were commenced in the
            Superior Court of New Jersey for the purpose of
            enforcing our rulings, Plaintiff’s conduct was in
            accordance with the Agreement to Submit to
            Arbitration.

      Meanwhile, in July 2017, Rabbi Veshnefesky and Ruth Veshnefesky filed

a Chancery Division action seeking to confirm the Rabbinical Court's decision.

They moved to proceed summarily. Rabbi Zisow and JLC, represented by the

same attorney, filed an answer and counterclaim. Defendants asserted, among

other defenses, that Rabbi Zisow had no personal liability; the arbitrators failed

to notify defendants of the proposed clarification of the award, and in any event,

the clarification was untimely; and, the arbitrators exceeded the scope of their

authority. In opposition to plaintiffs' motion to proceed summarily, Rabbi Zisow

signed and submitted a certification in which he averred, among other things,

that he signed the Arbitration Contract "only in my capacity as an officer of the

[JLC] and not as an individual."

      In its counterclaim, JLC asserted that during negotiation of the

Agreement, Rabbi Veshnefsky made false representations concerning the

financial condition and operations of JLC. JLC also asserted that after signing

the Agreement, Rabbi Veshnefsky engaged in misconduct that made enforcing




                                                                          A-1306-18T4
                                       11
the Agreement inequitable.      It sought equitable relief, invalidation of the

Agreement, and damages.

      In January 2018, the trial court granted plaintiffs' motion to dismiss

defendants' counterclaim. Rabbi Zisow and JLC were still represented by the

same attorney. JLC did not contend Rabbi Zisow had no authority to bind the

JLC to the Arbitration Contract, nor did JLC contend it did not participate in the

arbitration. Rather, according to the transcript of oral argument on the motion,

defendants challenged the timeliness of the modifications of the initial award

and argued the facts underlying the counterclaim were not arbitrated because

they did not come to light until after the April 2016 arbitration proceeding.

      The trial court subsequently granted summary judgment to plaintiffs and

entered an order confirming the Rabbinical Court's April 2016, May 2017, and

June 2018 awards. The trial court held Rabbi Zisow and JLC jointly and

severally liable for the arbitration award. The court directed JLC to execute a

mortgage to secure payment of the debt.

      In granting summary judgment, the court rejected JLC's argument—made

by new counsel for JLC—that Rabbi Zisow had no authority to bind JLC and

therefore JLC had no knowledge of the arbitration while it was being conducted.

In doing so, the court noted a certification of JLC's former president, Theodore


                                                                          A-1306-18T4
                                       12
Lidsky, contradicted JLC's position. Moreover, a certification by JLC's current

president, Brian Paul, reflected only his "understanding" of past events rather

than his personal knowledge of those events. The court determined Rabbi Zisow

had the apparent authority to bind JLC, and JLC ratified its representation by

Rabbi Zisow before the Rabbinical Court.

      Citing the language in the Arbitration Contract vesting continuing

jurisdiction in the Rabbinical Court in the event of a dispute between the parties

concerning the interpretation of the award, compliance, or request for

reargument, the court determined the parties vested the arbitrators with

continued authority to clarify their decision in the event disputes arose. The

trial court further determined that the parties' understanding of the Rabbinical

Court's continued involvement was born out by their behavior. Last, the court

determined the Arbitration Contract empowered the arbitration tribunal to

enforce its award.

      Concerning the counterclaims, the trial court found that the broad

language of the Arbitration Contract, in which the parties agreed "to submit to

binding arbitration all controversies (claims and counterclaims)," conferred the

Rabbinical Court with the authority to determine any counterclaims asserted by

Rabbi Zisow and JLC. Because the counterclaims asserted in their Chancery


                                                                          A-1306-18T4
                                       13
Division answer fell within the scope of the matters to be arbitrated, the trial

court dismissed defendants' counterclaims.

      The court also determined plaintiffs were not required to amend their

Chancery Division complaint with respect to the June 2018 Rabbinical Court's

clarification of its decision. When the court granted summary judgment to

plaintiffs, it also dismissed JLC's motion for reconsideration of its counterclaim.

This appeal followed.

                                        II.

      On appeal, Rabbi Zisow groups several arguments under his first point

heading that the trial court erred in granting summary judgment. He argues the

trial court's determination he had actual or implied authority to bind JLC was

made on an inadequate record, in the face of disputed material facts, and without

affording him adequate discovery. He argues the trial court should have heard

evidence relevant to the counterclaim, notwithstanding the counterclaim had

been dismissed, "if only as an offset to his claim." And he argues the trial court

erred by awarding plaintiffs' counsel fees.

      In his second point heading, Rabbi Zisow argues the trial court should not

have confirmed the arbitration award.         He contends the two post-award

modifications were untimely under New Jersey's version of the Uniform


                                                                           A-1306-18T4
                                       14
Arbitration Act (Arbitration Act), N.J.S.A. 2A:23B-1 to -36, no notice was

provided to defendants concerning the second modification, and "nothing in the

arbitration award . . . shows that the issues raised in the counterclaim were

presented to, or acted upon by, the arbitration panel." 1 Rabbi Zisow also argues

the JLC did not agree to arbitrate the dispute before the Rabbinical Court of

Lakewood and he did not agree to the third modification after one of the three

panel members died.

      JLC argues the trial court erred by dismissing its motion for

reconsideration of its counterclaim. Acknowledging the issue of Rabbi Zisow's

authority to bind the JLC to arbitration was not raised in opposition to plaintiffs'

initial motion to dismiss the counterclaim, JLC nonetheless argues, "upon

receiving the certification of Mr. Paul in connection with the motion for

reconsideration, the trial court . . . should have ruled that there was a question

of fact . . . and . . . conducted a hearing to determine whether the JLC had . . .

authorized the arbitration before the Vaad." JLC also argues—for the first


1
  Although the Arbitration Contract provides the parties submit themselves to
the jurisdiction of the New Jersey Courts "for any action or proceeding to
confirm or enforce a decree of the Arbitrators pursuant to N.J.S.A. 2A:24 -1 et
seq.," that statute "shall only apply to an arbitration or dispute arising from a
collective bargaining agreement or collectively negotiated agreement." N.J.S.A.
2A:24-1.1. The parties do not dispute the Arbitration Act applies to their
Arbitration Contract.
                                                                            A-1306-18T4
                                        15
time—the arbitration clause is invalid because it does not fairly apprise the

parties of their right to file suit in the Superior Court. JLC reiterates the trial

court improperly granted plaintiffs' summary judgment in the face of "dueling

certifications."

      Opposing defendants' appeal, plaintiffs argue there was no question

concerning Rabbi Zisow's authority to bind JLC to the Arbitration Contract.

They point out that the Rabbi filed a certification "in which Zisow swore under

the penalty of perjury that he signed the arbitration agreements on behalf of the

JLC." Thus, according to plaintiffs, absent a subsequent certification by Rabbi

Zisow alleging "he committed perjury, or explain[ing] that the [certification]

was filed under some kind of duress," no genuinely disputed issue of material

fact existed.

      Plaintiffs add that a competent certification from JLC's former president

confirms Rabbi Zisow was authorized to bind JLC. In contrast to this competent

certification, Mr. Paul's certification was incompetent because it was not based

on his personal knowledge.

      Plaintiffs last argue the plain language of the Arbitration Contract

demonstrates the parties vested the arbitration tribunal with the power to decide

the issues it decided in its initial award and also its subsequent modifications.


                                                                           A-1306-18T4
                                       16
                                        III.

                                         A.

      Our resolution of the issues raised by the appeal and cross-appeal is

guided by well-established principles concerning the arbitration of disputes.

"The goal of arbitration is to bring the parties' issues to a final resolution, 'in a

speedy, inexpensive, expeditious, and perhaps less formal manner' than full-

blown litigation in court culminating in a lengthy trial." Curran v. Curran, 453

N.J. Super. 315, 321 (App. Div. 2018) (quoting Minkowitz v. Israeli, 433 N.J.

Super. 11, 132 (App. Div. 2013)). New Jersey statutory and case law as well as

their federal counterparts express a "strong preference to enforce arbitration

agreements. . . ." Hirsch v. Amper Fin. Servs., LLC, 215 N.J. 174, 186 (2013).

In fact, arbitration is recognized as a "favored method for resolving disputes."

Garfinkel v. Morristown Obstetrics & Gynecology Assocs., P.A., 168 N.J. 124,

131 (2001). To that end, agreements relating to arbitration should "be read

liberally to find arbitrability if reasonably possible." Jansen v. Salomon Smith

Barney, Inc., 342 N.J. Super. 254, 257 (App. Div.).

      For these reasons, "unless it may be said with positive assurance that the

arbitration clause is not susceptible of an interpretation that covers the asserted

dispute," the matter is arbitrable. Waskevich v. Herold Law, P.A., 431 N.J.


                                                                             A-1306-18T4
                                        17
Super. 293, 298 (App. Div. 2013) (citation omitted). "Courts have generally

read the terms 'arising out of' or 'relating to' [in] a contract as indicative of an

'extremely broad' agreement to arbitrate any dispute relating in any way to the

contract. . . ." Griffin v. Burlington Volkswagen, Inc., 411 N.J. Super. 515, 518

(App. Div. 2010) (quoting Angrisani v. Fin. Tech. Ventures, L.P., 402 N.J.

Super. 138, 149 (App. Div. 2008)).

        After January 1, 2005, the Arbitration Act "governs an agreement to

arbitrate whenever made with the exception of an arbitration between an

employer and a duly elected representative of employees under a collective

bargaining agreement or collectively negotiated agreement." N.J.S.A. 2A:23B-

3(c).    Certain terms of the Arbitration Act may be "varied or waived by

contract." Fawzy v. Fawzy, 199 N.J. 456, 469 (2009) (citing N.J.S.A. 2A:23B-

4); see also Kernahan v. Home Warranty Adm'r of Fla., Inc., 236 N.J. 301, 324

(2019). If parties do not contractually vary the terms of the Arbitration Act,

then its terms govern the arbitration proceeding. Kimm v. Blisset, LLC, 388

N.J. Super. 14, 28 (App. Div. 2006).

        The Arbitration Act vests an arbitrator with broad authority. The authority

includes determining "whether a condition precedent to arbitrability has been

fulfilled and whether a contract containing a valid agreement to arbitrate is


                                                                            A-1306-18T4
                                        18
enforceable." N.J.S.A. 2A:23B-6(c). The Arbitration Act also authorizes the

arbitrator to "issue orders for provisional remedies, including interim awards, as

the arbitrator finds necessary to protect the effectiveness of the arbitration

proceeding and to promote the fair and expeditious resolution of the controversy,

to the same extent and pursuant to the same conditions as if the controversy were

the subject of a civil action. . . ." N.J.S.A. 2A:23B-8(b)(1).

      The Arbitration Act provides the parameters of the arbitration process,

N.J.S.A. 2A:23B-15, including that the arbitration be conducted "in such manner

as the arbitrator considers appropriate for a fair and expeditious disposition of

the proceeding[,]" and authorizes the arbitrator to "hold conferences with the

parties to the arbitration proceeding before the hearing, and, among other

matters, determine the admissibility, relevance, materiality, and weight of any

evidence." N.J.S.A. 2A:23B-15(a). Under the Arbitration Act, the arbitrator

sets "a time and place" for the hearing, may adjourn the hearing, and "may hear

and decide the controversy upon the evidence produced [by a party] although a

party who was duly notified of the arbitration proceeding did not appear."

N.J.S.A. 2A:23B-15(c).

       The Arbitration Act authorizes a court to vacate an arbitration award if:

            (1) the award was procured by corruption, fraud, or
            other undue means;

                                                                          A-1306-18T4
                                       19
            (2) the court finds evident partiality by an arbitrator;
            corruption by an arbitrator; or misconduct by an
            arbitrator prejudicing the rights of a party to the
            arbitration proceeding;

            (3) an arbitrator refused to postpone the hearing upon
            showing of sufficient cause for postponement, refused
            to consider evidence material to the controversy, or
            otherwise conducted the hearing contrary to section 15
            of this act, so as to substantially prejudice the rights of
            a party to the arbitration proceeding;

            (4) an arbitrator exceeded the arbitrator's powers;

            (5) there was no agreement to arbitrate, unless the
            person participated in the arbitration proceeding
            without raising the objection pursuant to subsection c.
            of section 15 of this act not later than the beginning of
            the arbitration hearing; or

            (6) the arbitration was conducted without proper notice
            of the initiation of an arbitration as required in section
            9 of this act so as to substantially prejudice the rights
            of a party to the arbitration proceeding.

            [N.J.S.A. 2A:23B-23(a)(1) to (6).]

      Because the decision to vacate or confirm an arbitration award is a

decision of law, our review is de novo. Manger v. Manger, 417 N.J. Super. 370,

376 (App. Div. 2010).      Nevertheless, the scope of our de novo review is

"narrow," Fawzy, 199 N.J. at 470, and "is informed by the authority bestowed

on the arbitrator by the Arbitration Act." Manger, 417 N.J. Super. at 376.



                                                                          A-1306-18T4
                                       20
            From the judiciary's perspective, once parties contract
            for binding arbitration, all that remains is the possible
            need to: enforce orders or subpoena issued by the
            arbitrator, which have been ignored, N.J.S.A. 2A:23B-
            17(g); confirm the arbitration award, N.J.S.A. 2A:23B-
            22; correct or modify an award, N.J.S.A. 2A:23B-24,
            and in very limited circumstances, vacate an award
            N.J.S.A. 2A:23B-23. If not for this limitation on
            judicial intervention of arbitration awards, "the purpose
            of the arbitration contract, which is to provide an
            effective, expedient, and fair resolution of disputes,
            would be severely undermined."

            [Curran, 453 N.J. Super. at 321 (quoting Minkowitz,
            433 N.J. Super. at 134).]

      Generally, "errors of law or fact made by the arbitrators are not

correctable."   Selective Ins. Co. v. Nat'l Cont'l Ins. Co., 385 N.J. Super. 62, 67

(App. Div. 2006) (citing Tretina Printing, Inc. v. Fitzpatrick & Assocs., Inc.,

135 N.J. 349, 357-58 (1994)). "[T]he judiciary has no role in the determination

of any substantive issues that the parties have agreed to arbitrate." Curran, 453

N.J. Super. at 321.

      In the matter before us, intertwined with the foregoing principles are those

applicable to our review of a trial court's disposition of a controversy on

summary judgment. Appellate courts "review[] an order granting summary

judgment in accordance with the same standard as the motion judge."        Bhagat

v. Bhagat, 217 N.J. 22, 38 (2014) (citations omitted). Our function is not "to


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weigh the evidence and determine the truth of the matter but to determine

whether there is a genuine issue for trial." Brill v. Guardian Life Ins. Co. of

Am., 142 N.J. 520, 540 (1995) (quoting Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 249 (1986)); accord R. 4:46-2(c).

      When applying this standard, courts bear in mind that "'unsubstantiated

inferences and feelings' are not sufficient to support or defeat a motion for

summary judgment." Petersen v. Twp. of Raritan, 418 N.J. Super. 125, 132

(App. Div. 2011) (quoting Oakley v. Wianecki, 345 N.J. Super. 194, 201 (App.

Div. 2001)). Nor are "'[b]are conclusions in the pleadings, without factual

support in tendered affidavits . . . .'" Ibid. (alteration in original) (quoting U.S.

Pipe & Foundry Co. v. Am. Arbitration Ass'n, 67 N.J. Super. 384, 399-400 (App.

Div. 1961)). Rather, a party must support or oppose a summary judgment

motion with competent evidence, including certifications "made on personal

knowledge, setting forth only facts which are admissible in evidence to which

the affiant is competent to testify. . . ." R. 1:6-6.

                                         B.

      We first address Rabbi Zisow's and JLC's arguments that genuine issues

of material fact precluded the trial court from determining Rabbi Zisow was

authorized to represent JLC. We disagree that either defendant established a


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genuinely disputed issue of material fact concerning that issue. The motion

record's undisputed evidence was to the contrary.

      When defendants answered the complaint, Rabbi Zisow certified that

when he "signed the agreement to arbitrate, that was only in my capacity as an

officer of the [JLC] and not as an individual." He certified this was a true

statement, and he further certified his awareness "that if any of the foregoing

statements made by me are willfully false, I am subject to punishment." Rabbi

Zisow submitted no certification in opposition to plaintiffs' summary judgment

motion disavowing his previous certification or explaining the apparent

inconsistency between the certification he filed after answering the complaint

and the position he later asserted in the trial court.

      Rabbi Zisow's certified representation he signed the Arbitration Contract

on behalf of JLC is confirmed by Theodore Lidsky, JLC's president from 2012

through 2017. In the certification he submitted in support of confirmation of the

arbitration award, Mr. Lidsky averred: "In April, 2016 [d]efendant Aaron Zisow

by then also a Director of the JLC who was operating the day-to-day functions

of the JLC, with my knowledge and permission entered into agreement to

arbitrate to resolve the dispute as a representative of the JLC, before a Bais Din,

to wit, Rabbinical Court of Lakewood Vaad Hadayanim."


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      Rabbi Zisow and the JLC contend the certification of Brian Paul, president

of the JLC in 2018, presented a genuinely disputed issue of material fact as to

Rabbi Zisow's role in the arbitration proceedings. However, Paul's certification

was not competent evidence on the motion record. His certification did not

establish he was attesting to facts based upon personal knowledge which would

have been admissible in evidence. R. 1:6-6. His certification does not even

address Rabbi Zisow's certification, which on its face contradicts Mr. Paul's

averments.

      Rabbi Zisow notes that during oral argument his attorney "proffered" that

Theodore Lidsky was ill and he should be permitted to obtain discovery

concerning Mr. Lidsky's medical condition. Rabbi Zisow also points out the

Lidsky certification was submitted with plaintiffs' reply papers, not in the

original papers.

      These arguments are unpersuasive. First, a "proffer" is not competent

evidence on a summary judgment motion. Petersen, 418 N.J. Super. at 132.

Next, the mere fact of an illness does not establish an impairment of one's

memory or, for that matter, any other reason bearing on one's competence to file

a certification. Last, and perhaps most important, Rabbi Zisow made no effort

on the motion record to disavow his previous certification. We thus find no


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error in the trial court's determination, and our de novo review does not lead us

to the conclusion that summary judgment was improvidently granted.

                                         C.

      Rabbi Zisow's arguments that the trial court should have considered the

counterclaims warrant little discussion. The Arbitration Contract by its terms

encompassed counterclaims. Moreover, it provided that "if a Party motions for

reargument due to their claim of . . . new evidence . . . the Parties agree that the

Arbitrator shall have binding jurisdiction on the matters, and the Parties

authorize the Arbitrator to add to, amend, change, or clarify a decision, to the

extent permitted by law." Thus, the Arbitration Contract provided for resolution

by the arbitration tribunal of counterclaims, including counterclaims based on

new evidence. Defendants have not explained how they discovered the alleged

basis for a counterclaim, when they discovered it, or why they could not have

presented it to the arbitration tribunal in the years following the tribunal's initial

decision. Considering those circumstances, the trial court did not err by refusing

to consider the counterclaim.

      For the same reasons, we reject JLC's arguments the trial court erred by

dismissing their counterclaim and denying their reconsideration motion. JLC

also appears to argue the trial court erred by dismissing its counterclaims and


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denying the reconsideration motion because there was a factual dispute as to

whether Rabbi Zisow represented JLC during the arbitration proceedings. We

have previously addressed that issue and there is no need to revisit it.

      JLC also attempts to raise for the first time, in the context of its arguments

about its counterclaim, that the Arbitration Contract was invalid because it did

not adequately inform JLC of its right to seek relief in Superior Court. It is well

settled that "our appellate courts will decline to consider questions or issues not

properly presented to the trial court when an opportunity for such a presentation

is available 'unless the questions so raised on appeal go to the jurisdiction of the

trial court or concern matters of great public interest.'" Nieder v. Royal Indem.

Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co., Inc. v. Summer,

58 N.J. Super. 542, 548 (App. Div. 1959). We thus decline to consider the issue.

                                        D.

      Rabbi Zisow next argues the arbitration tribunal exceeded its authority by

issuing two untimely rulings following its initial award. It is evident from the

broad language in the Arbitration Contract—both the English version and the

translated Hebrew version—the parties fully intended to have the Rabbinical

Court retain jurisdiction until all matters concerning their dispute were resolved.

Moreover, the Rabbinical Court's third ruling can be fairly characterized as an


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                                        26
enforcement ruling following Rabbi Zisow's persistent and longstanding refusal

to abide by the parties' Agreement and the Rabbinical Court's decision. We also

note that if Rabbi Zisow's argument concerning the timeliness of the Tribunal's

second and third rulings were accepted, the Tribunal's initial decision would

remain intact and Rabbi Zisow would be personally and solely liable to

plaintiffs.

                                      IV.

      We have considered the parties' remaining challenges to the trial court's

decisions and the Rabbinical Court's rulings and have found them to lack

sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).

      In addition to his arguments challenging the trial court's substantive

rulings concerning arbitration, Rabbi Zisow challenges the court's ruling

concerning the award of attorney's fees to plaintiffs. We agree the matter must

be remanded on that issue.

      We reject Rabbi Zisow's argument plaintiffs are not entitled to counsel

fees. The Arbitration Contract specifically provides "[i]n the event that a Party

does not abide by and perform any award or decision rendered by the Arbitrators

or seeks to vacate such decision or award, the Parties authorize the Arbitrators

to award additional fees and legal costs." To the contrary, he has attempted to


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avoid its decisions by refusing to comply with them, implicitly disavowing a

certification he filed with the trial court, and taking conflicting position s

concerning his relationship to and representation of the JLC. JLC, too, has

refused to fulfill its contractual commitments to plaintiffs, as determined and

enforced by the Rabbinical Court.

      Nonetheless, plaintiffs' certification in support of the fee application was

deficient. Counsel making an application for fees and costs must comply with

R. 4:42-9(b), which requires an affidavit addressing the factors enumerated in

RPC 1.5(a). Scullion v. State Farm Ins. Co., 345 N.J. Super. 431, 439 (App.

Div. 2001). Plaintiffs' counsel did not comply with these requirements. Rather,

he submitted a certification attesting to the lump sum fees his firm charged

plaintiffs. Accordingly, we vacate that part of the trial court's final order that

awarded counsel fees to plaintiffs and remand the matter for consideration by

the trial court after plaintiffs submit a proper fee application and defendants

have been afforded an opportunity to respond. Plaintiffs may include the fees

incurred for opposing this appeal.

      Affirmed in part, vacated in part, and remanded for further proceedings

consistent with this decision. We do not retain jurisdiction.




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