Monday, June 30, 2008

Max Kellerman's Monday Musings Vol XVI - Of Mets, Mets and more Mets, Shoes and Potential

Today's Max Kellerman show was a solo act as Brian Kenny was on vacation. There were not even any perspectives from Louie or Lundberg, who seem to have been permanently banned from public speaking. I am still at a loss to explain how Joey Salvia can comment on the Michael Kay show (and his thoughts never involve sports) , however the groundswell of support for the "Free Louie and Lundberg" movement seems to have died.

Back to my thoughts on the Max Kellerman show, today's program was baseball heavy which is to be expected at this time of year. What was surprising was the level of attention that was paid to the Mets. There were discussions about how Carlos Delgado still "sooks" despite his performance this weekend. (Max did slip a few times and had to correct himself to use the word "sook"). Of course Max is right, since a former power hitter will still feast on mistakes if a pitcher's control is off. He can't move to field anymore and has looked over matched against power pitchers since the end of '06. But its not like Mike Jacobs has better HR, RBI and OPS than he does. Oh, he does?

There were also shots taken at Jerry Manuel (Max says of Jerry that "he's always calling the Mets #2") as well as Jose Reyes (Max calls him immature and the "third best shortstop in NY"). I guess that the Yankees losing the season series to the Mets must have stung.

In fairness, Max did have some positive comments to say about the Metropolitans, including that Johan Santana has an ERA one full run below league average and that the team only needs Barry Bonds to "supplement" (my pun) the roster and they would be running away with the NL Eastern Division.

As has been his habit of late, there was at least one remark made about his unborn child. It actually was quite funny, Max referred to Erin as a centipede based on her shoe collection. He then said that one day his daughter will read about his shows and when she asks how he could say these things he will respond that this is how she got her 100 pairs of shoes. Max still has not let on the name of the baby (my money is still on Shayna), but maybe he is just superstitious...

There was some basketball talk as well, although it all revolved around the Knick fans and their booing of Danilo Gallinari. (You would have thought there would have been some conversation about the Nets dumping of Richard Jefferson, but Max knows that his listeners are overwhelmingly Knick fans). Max talked about how the Knicks "finally" made a good pick as Gallinari is a more polished player than Joe Alexander (the popular choice) and that while Alexander is a good athlete, Gallinari has upside potential.

Max's allusion to the potential for greatness and the investment in a player with the ability to star has its roots in Torah thought. In discussing how Esau was Isaac's favorite son (while Rebecca preferred Jacob) the question is frequently asked -- how could Isaac be fooled by Esau and not see that he was committing major sins on a frequent basis?

The Chasan Sofer answers that Isaac was not fooled by Esau, rather he saw in Esau the possibility to succeed if his talents were applied correctly. Indeed, there are some students with limited potential who when they apply themselves get good grades. But every once in a while there are students who are brilliant but choose to use that for alternative purposes. If a teacher is able to channel that student's energy into a positive purpose, the "cut-up" student has the potential to be even greater than the average student who merely does well because he applies himself. This was the reason that Isaac stuck with Esau according to the Chasan Sofer, because Isaac knew that if Esau could channel his energies for a positive purpose, he could have been greater than Jacob.

As correctly noted by Max, its not simply about who the best athlete is at the present. A good front office will be able to identify the player who is good at the present with skills that could be great if properly developed.

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Sunday, June 29, 2008

Sunday Night Suds - Saranac Chocolate Amber Lager

Tonight's Sunday Night Suds review looks at Saranac Chocolate Amber Lager, a winter seasonal beer that is sold as part of Saranac's 12 Beers of Winter box. Yes, its late June and the temperature here in NY has been around 90 nearly every day, but I am reviewing a dark, winter beer. Why? Read on.

Last week I was rooting through one of the boxes of beer under my counter that serves as a catch all collector. Like many beer stores, occasionally I find myself with singles or pairs of beers from sixes or twelves that I have bought, but have for some reason or other not finished, before I have moved on to try something else. When this happens, the remainders go into the box (or boxes depending on my mood and what Sarah lets me keep) under the counter. In this way, I am quite different from my father-in-law, a dedicated Heineken drinker whose philosophy is - why change a good thing (in his case why try something other than Heineken). Personally, I keep trying different beers, not because I believe that there is a perfect beer out there, but because the market place of Kosher beer is rapidly evolving and I want to experience as many as I can. Indeed, I have been frequently asked since I started this blog, what are you going to do when you run out of beers to review? My answer is simple, I'll worry about it when I get there. There are so many different kosher brands and varieties out there, I can't imagine running out any time soon.

But back to Saranac, they are now somewhat back on line. Their website indicates that as of June 13th (a fortuitous date for a kosher brewer) they are packaging at another location and have recommenced giving tours and contributing to the community. For more information, click on the following link . If you are a fan of theirs, please click on the comments link and give them chizuk. V'Hamayvin Yavin.

Saranac Chocolate Amber Lager is a dark beer with a rich chocolaty flavor. Unlike some other Saranac beers, the flavor in the Chocolate Amber Lager is not externally influenced by additives or flavorings. The beer itself is a slow drinking beer which can be enjoyed in the comfort of a well air conditioned dining room or living room after a Friday Night supper (which is how I enjoyed mine the other night).

Saranac Chocolate Amber Lager is under the Kosher Supervision of the Vaad of Detroit as are all beers brewed by Saranac. For the experts' take on the Chocolate Amber Lager please click here .

As always, please remember to drink responsibly and to never waste good beer unless there is no designated driver.

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Thursday, June 26, 2008

Thursday's Parsha Tidbits - Korach

The following is a brief summary of a thought said over by R' Frand in his shiur this evening. I have attempted to reproduce this vort to the best of my ability. Any perceived inconsistencies are the result of my efforts to transcribe the shiur and should not be attributed to R' Frand.

Parshas Korach begins with the words "Vayicach Korach" (and Korach took). The famous question that is asked is - what did he take? Indeed, since the Torah then goes on to describe what Korach said, it should have begun with the words "Vayomer Korach (and Korach said).

The gemara in Sanhedrin 109b, states that Korach took a "Mecach Ra" or a bad purchase. R' Frand then asked, but what was his purchase? A person can have a fool hardy transaction, such as buying land in the Everglades, but at least there is a purchase. In the parsha, there is no statement that Korach purchased anything.

The Be'er Yakov (quoting the Zayit Ra'anan) answers the question by making reference to Rashi on Korach 16:7. The Torah states that Moshe suggested a contest that the people should see whose incense will be accepted. Rashi asks, but Korach is a bright man, why would he think that his incense would be accepted, he has no better that a 1 in 250 chance? Rashi answers that Korach looked at his future generations and saw that Shmuel Hanavi and twenty four mishmaros of nevi'im would come from him. He assumed that meant that he had a great z'chus and therefore he would prevail in this contest with Moshe.

The Zayit Ra'anan then asks - if this is the case (and we know that Shmuel did come from him) then why did the z'chus not protect Korach from his fate of being swallowed alive by the earth and spending eternity in Gehinnom with a constant restart of his punishment every thirty days?

R' Frand prefaced the answer by making reference to the Alter M'Kelem. In discussing bechorim (first born children), the Alter asks, why do they have holiness? Because they were part of a great kiddush Hashem in Egypt that the first born children of the Egpytians died, while they lived. But it can asked - the bechorim did not do anything, all they did was live because Hashem allowed them to live? The answer is - yes, however Hashem rewards everyone who effectuates a kiddush Hashem, even if their role is passive as they are still the vehicle through which the kiddush Hashem has occurred.

The Zavit Ra'anan writes that Korach was zocheh to have Shmuel as a decendant, because he was responsible for the great kiddush Hashem of having Moshe established as the unchallenged leader and the Jews having proclaimed "Moshe Emes V'Soraso Emes" (Moshe is truthful and his Torah is truthful). Since he caused this great kiddush Hashem, Korach was rewarded with Shmuel and the nevi'im.

The problem was that Korach paid too large a price for the transaction of having famous descendants. Indeed, the cost of having a Shmuel come from Korach was his life and his reward in the world to come. In reality, Korach paid with his olam hazeh and olam haba and was resigned to eternity in Gehinnom in exchange for having famous descendants. This was his problem, he was able to see the future, he just did not realize that it was not the effect of his actions to date, it was a result of what he was about to cause.

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Wednesday, June 25, 2008

Wednesday's Weird Legal Cases - Vol XVI

Today's weird legal case asks the following question - if the Greatest American Hero fought Superman, who would win? This was the question dealt with by the Court of Appeals for the Second Circuit in Warner Bros. Inc. v. American Broadcasting Companies, Inc. 720 F.2d 231 (2d Cir. 1983). Okay, maybe that was not the exact question, but read on.

As anyone above the age of thirty may recall, in 1983 there was popular television show that ran on ABC called the Greatest American Hero. It involved the misadventures of Ralph Hinkley, an ordinary guy who was given a superhero suit in the middle of the desert by aliens. Unfortunately, he loses the instruction suit and spends many episodes trying to learn how to fly. If I recall correctly, in some of the early episodes he chooses to run because he keeps crashing when he flies. (If you want to see episodes of the show, they are not on Yahoo TV, but I have recently seen boxed sets of the 3 year series for sale on various websites).

As noted by the Second Circuit, there were a few similarities between the Greatest American Hero and Superman. The court explained that:

The Hero series contains several visual effects and lines that inevitably call Superman to mind, sometimes by way of brief imitation, sometimes by mention of Superman or another character from the Superman works, and sometimes by humorous parodying or ironic twisting of well-known Superman phrases. Hinkley's suit invests him with most of Superman's powers, and the suit, like Superman's, is a tight-fitting leotard with a chest insignia and a cape. Their outfits differ in that Superman wears a blue leotard with red briefs, boots, and cape, while Hinkley's costume is a red leotard with a tunic top, no boots, and a black cape. In one scene, as Hinkley is running at super speed, smoke emerges from his footsteps, and the sound of a locomotive is heard. A similar scene occurs in Superman I, though even without seeing the movie it would be difficult not to be reminded by the Hero scene of Superman, who is regularly described as “more powerful than a locomotive.” When Hinkley first views himself in a mirror holding his costume in front of him, he says, “It's a bird ... it's a plane ... it's Ralph Hinkley.” The youngster, Jerry, watching Hinkley's unsuccessful first effort to fly, tells him, “Superman wouldn't do it that way.” In a scene with his girlfriend, who is aware of the powers that come with the magic costume, Hinkley says, “Look at it this way ... you're already one step up on Lois Lane. She never found out who Clark Kent really was.”

In suing ABC for copyright infringement and unfair competition, the Superman creators indicated that there were three specific instances involved with the launch of the Greatest American Hero that were purportedly infringements of the Superman franchise copyright, these included:

First, some of the “promos” show Hinkley flying (with his lantern) in outerspace, with the earth as a background; plaintiffs contend this is an attempt to copy a scene from Superman I in which Superman performs exploits in outerspace. Second, some of the “promos” show the Statue of Liberty, which plaintiffs contend is an attempt to copy a movie scene of Superman flying around the Statue. Third, in one of the “promos” Hinkley is shown watching a television set on which appears a brief clip from the television cartoon “Superfriends” showing the animated cartoon figure of Superman. In addition, plaintiffs assert that a special videotape prepared to promote the Hero series, which was shown to ABC's sponsors and affiliated stations, used excerpts from the music soundtrack of Superman I.

After the trial court granted judgment to the defendants, the Plaintiffs appealed to the Second Circuit. In stating the standard to be applied to the copyright infringement claims, the court explained that "The basic issues concerning the copyright infringement claim are whether the Hero and Superman works are substantially similar so as to support an inference of copying and whether the lack of substantial similarity is so clear as to fall outside the range of reasonably disputed fact questions requiring resolution by a jury. The similarity to be assessed must concern the expression of ideas, not the ideas themselves."

In applying this standard, the Second Circuit found that the Greatest American Hero was not kryptonite. OK, maybe they did not have my sense of humor. The Court did perform a detailed analysis in affirming the judgement to the defendants. I have reproduced some of the highlights below:

Applying these principles to this case, we conclude that Chief Judge Motley correctly entered summary judgment for the defendants on the claim of copyright infringement. Plaintiffs make no claim that the Hero pilot, subsequent episodes, or “promos” infringed the story of any Superman works. Their contention is that the Hero character, Ralph Hinkley, is substantially similar to Superman and that the Hero works impermissibly copied what plaintiffs call the “indicia” of Superman, a concept broad enough to include Superman's costume, his abilities, the well-known lines associated with him-in short, anything occurring in the Hero works that might remind a viewer of Superman.

The total perception of the Hinkley character is not substantially similar to that of Superman. On the contrary, it is profoundly different. Superman looks and acts like a brave, proud hero, who has dedicated his life to combating the forces of evil. Hinkley looks and acts like a timid, reluctant hero, who accepts his missions grudgingly and prefers to get on with his normal life. Superman performs his superhuman feats with skill, verve, and dash, clearly the master of his own destiny. Hinkley is perplexed by the superhuman powers his costume confers and uses them in a bumbling, comical fashion. In the genre of superheros, Hinkley follows Superman as, in the genre of detectives, Inspector Clouseau follows Sherlock Holmes.

Other interesting observations included:

An infringement claim would surely be within the range of reasonable jury fact issues if a character strongly resembled Superman but displayed some trait inconsistent with the traditional Superman image. If a second comer endowed his character with Superman's general appearance, demeanor, and skills, but portrayed him in the service of the underworld, a jury would have to make the factual determination whether the second character was Superman gone astray or a new addition to the superhero genre. In this case, however, a reasonable jury could not conclude that Hinkley is substantially similar to the Superman character with only a change of name. The overall perception of the way Hinkley looks and acts marks him as a different, non-infringing character who simply has some of the superhuman traits popularized by the Superman character and now widely shared within the superhero genre.

The same considerations make evident the correctness of Chief Judge Motley's ruling that the “promos” for the Hero series present no jury issue concerning infringement of the Superman character. By aggregating the total number of viewer impressions made by all the showings of the thirteen basic “promos” and their minor variations, appellants imply, and we agree, that the visual impact of the series of “promos” should be primarily assessed. A viewer of an adequate sampling of the “promos” would necessarily be exposed to the Hinkley characteristics that distinguish him from Superman. In six of the thirteen basic “promos” Hinkley either flies out of control, crash lands, or cringes in cowardly fashion at the firing of bullets. In six other “promos” his flying, though uneventful, is aided (either for vision or balance) by carrying in one hand a large lantern. It may be that within a series of generally non-infringing “promos” a single “promo” could be so substantially similar to a copyrighted character as to establish infringement or at least create a fair factual issue for jury consideration. Here, however, no single “promo” is that similar to the Superman character, and whatever recollections of Superman may be stirred by the “promos” showing Hinkley flying without incident are quickly dispelled by the remainder of the series in which his flying skills are decidedly not super. Nor does infringement arise because one “promo” shows the Statue of Liberty and another shows Hinkley flying in outerspace with the earth in the background. Appellants' claim that these shots infringe scenes from Superman I is too extravagant to be maintained. The Statue of Liberty is a widely recognized symbol of the United States, available for portrayal in any fictional work, and Superman has no monopoly among fictional heroes on self-propelled flight in outerspace.

Finally, the Court gave credit to the viewers of the program and their ability to discern the difference between Superman and William Katt, stating:

That leaves for consideration on the infringement claim the use in the Hero episodes and “promos” of lines that either mention Superman and other characters from the Superman saga or incorporate phrases associated with Superman. The use of such lines is manifestly not infringement. In each instance the lines are used, not to create a similarity with the Superman works, but to highlight the differences, often to a humorous effect. Appellants acknowledge the contrasting point made by some of the Hero lines, but insist nevertheless that the point may not be appreciated by some of the viewers, especially young viewers who make up a significant share of the television audience for the Hero series. Appellants were prepared to offer expert testimony to show that some children would not perceive the negatives when the announcer says that Hinkley “may be unable to leap tall buildings in a single bound,”“may be slower than a speeding bullet,” and “may be less powerful than a locomotive.” We do not doubt that some viewers may miss the point, but their misunderstanding does not establish infringement. Perhaps if Hero were a children's series, aired on Saturday mornings among the cartoon programs, we would have greater concern for the risk that lines intended to contrast Hinkley with Superman might be mistakenly understood to suggest that Hero was a Superman program. Cf. Ideal Toy Corp. v. Fab-Lu, Ltd., 261 F.Supp. 238, 241-42 (S.D.N.Y.1966) (children's perception of television commercial for dolls). But when a work is presented to a general audience of evening television viewers, the possible misperception of some young viewers cannot prevent that audience from seeing a program that will readily be recognized by the “average lay observer,” Ideal Toy Corp. v. Fab-Lu Ltd., 360 F.2d 1021, 1022 (2d Cir.1966), as poking fun at, rather than copying, a copyrighted work.
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Tuesday, June 24, 2008

Tuesday's Thoughts on the Daf - Sotah 31

Sotah 31a begins with a discussion of R' Yehoshua ben Hurkenus' teaching about Job and how he worshipped Hashem out of fear. The gemara then attempts to learn that Job worshipped out of love in the same way that Avraham did, as R' Meir taught that it says Yirei Elokim by Avraham and by Job. Since the mention by Avraham indicates that his actions were borne out of love, so too were Job's actions borne out of love for Hashem.

The gemara then asks - what is the difference between one who follows Hashem's commandments out of fear of punishment and one who follows the laws because of his love of Hashem. The gemara answers that one who does so out of love receives a greater reward as the merits of his actions stand to protect his future generations for two thousand generations.

In defining the concept of what constitutes worship from love, the Rambam (Hilchos Teshuva 10:2) explains that one who worships from love learns Torah, does mitzvot and walks in the path of wisdom, not for a particular worldly purpose or because of fear of punishment or in order to receive a reward, rather he does these true acts because they are what need to be done and whatever goodness comes as a result will come.

Tosafos on the daf (d'h Gadol) does not refer to the discourse in the gemara at all. Rather, the Tosafos retells the story brought down in the Yerushalmi in Berachos in which R' Akiva was summoned for trial before Turnus Rufus. While awaiting trial, he read Shema at the proper time and then smiled. Turnus Rufus then said to him, "old man, old man" are you a cheresh or do you enjoy pain? R' Akiva responded that he was neither a cheresh nor did he enjoy pain. Rather, he indicated that he had previously recited the line in the Shema that "you shall love Hashem with all your heart, all your soul and all your resources." R' Akiva said that he had been able to fulfill worshipping with all his heart and all his resources, but not with all his soul. Now that he was awaiting trial before Turnus Rufus, he could fulfill loving Hashem with all his soul by publicly reciting the Shema at its proper time. It is taught that upon finishing this statement, R' Akiva's soul ascended to heaven.

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Monday, June 23, 2008

Max Kellerman's Monday Musings Vol XV - Manuel is a genius, Support group for dads and the Relative intellegence of the Supreme Court

Today's Max Kellerman and Brian Kenny touched on various psychological, sociological and constitutional issues, yet amazingly still revolved around sports.

The show started with a discussion about the Mets and why new manager Jerry Manuel is a genius. Of course, this was said with a sarcastic tone, but the show did not merely pay lip service to the issue before moving on to other topics. Instead, Brian Kenny and Max Kellerman talked about some of Manuel's words and deeds, such as the passing of the ball from starter to reliever, Manuel's attempt to rally the players by using an "us against the world" mentality and a statement (that was misconstrued) in the New York Post that Manuel had compared the Mets fans to fertilizer. In this capacity, it seems like Max and Brian may have gotten it wrong. Although the New York Post made it seem like Manuel had compared the fans to fertilizer, the remainder of the New York papers did not take such an approach and noted that Manuel was simply saying that Shea Stadium had fertile ground for growth. [For a transcript of the interview as detailed in the New York Daily News, click here ]. I'm guessing that with the show being an early start, maybe they did not have time to read all the papers and they simply went with the Post's spin on the story.

There was also an allusion to the fact that Max & Erin are expecting a baby girl. This news broke (well, Max first made it public on the 1050 airwaves) last Wednesday. However, since he revealed that the baby will be a girl, Max has been lamenting the life that girls lead. Its good that he has Brian with him to tell him honestly that having a girl first is great. Additionally, since Brian has girls and boys, Max can't accuse him of trying to snow him. I know that from my personal experience, having Penina first was a tremendous blessing from Hashem. She is a special kid - a good student, able to make friends very easily, a superior athlete and also has a great heart. Although she is only nine, she helps us immeasurably with her three younger siblings. Max - having a girl first is great and I'm sure that one day you will be very happy about it, your current protestations notwithstanding.

Of course, since Max knows the gender of the baby it must be at least twenty weeks, so he has been doing the "I can't get my wife pregnant" routine for the last four months, knowing full well that his wife was expecting. But who says that the man who follows the Howard Stern school of making his show personal in order to connect with the audience (I used it in a public speech recently, giving credit to Max for the idea) can't also put one over us too?

Before leaving the topic, I have to thank the guys for reading my love mail/hate mail submission on the air last Thursday in which Robin Lundberg's unborn child wanted to take Max's daughter to the 2028 prom. Now, if Max would only reveal the name that he has chosen for her (my guess is Shayna). Maybe he is just superstitious...

The show also touched on the Supreme Court's refusal to hear the eminent domain appeal involving the Forrest Ratner project and the future home of the Nets. Max had some choice words for the Supreme Court saying that they are "either corrupt or stupid" because they did not intervene in the government's taking of private property for a commercial (non-governmental) purpose. Brian was right on the ball, mentioning the recent Supreme Court matter involving the New London land grab.

Wouldn't you just know it, but Max's outrage at the government's taking of property for non-government use has its roots in Jewish law as well. The gemara in Pesachim 110a, discusses how the King may take certain land if he required it in order to create a passage. Similarly, halacha permits a community to take land that contains a grave and utilize it for a community cemetery. [For an interesting discussion on this topic and the interplay with Abraham's purchase of the Tomb of the Patriarchs in Hebron as a burial ground for Sarah, click here]. However, to my understanding, Jewish law does not allow land to be seized and then given to another person to be used for private commercial purposes. As such, Max was properly outraged by the Court's failure to intervene in this regard (although his threat to enforce his Second Amendment Rights might have been a little extreme...)

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Sunday, June 22, 2008

Sunday Night Suds - Lakefront Brewery Cattail Ale

Tonight's Sunday Night Suds looks at Lakefront Brewery's Cattail Ale. To me, Lakefront Brewery had always been an enigma. I knew that in January 2007 it had come under the kashrus supervision of the Star-K, but I had not been able to find it in New York. Well, let me rephrase that, I had not been able to find Lakefront Brewery beer in New York. Perhaps a brief introduction is in order...

As you may be aware, in order to constitute beer, a beverage requires hops, malted barley, water and yeast. There are a number of brewers that make a 'beer like' beverage that does not contain any barley so that those who are intolerant (like those people who suffer from celiac) can still enjoy something that tastes like beer. The first brewery that I knew of that made this type of beverage was the Ramapo Valley Brewery who brewed a kosher for passover beer called Passover Honey Gold that contained no barley or yeast. A number of years later, Lakefront Brewery also began to make a barley free beer that they called New Grist. I had seen New Grist at specialty stores like Whole Foods, but never had the desire to buy a six pack.

After having searched many of the comprehensive beer outlets in the New York area (and having made requests at some of my more frequent haunts), I had pretty much given up on finding Lakefront Brewery beer in NY. Then one day I happened to have been on their website and saw that they were carried at American Beer on Court Street in Brooklyn. Since I needed to be in court in Brooklyn the next day, I figured that it was worth a shot to stop in. I was cautiously optimistic that I might find Lakefront there (I have been burned at this store in the past as they never update their website and frequently do not carry varieties that the site says should be in stock). This time, I was not disappointed. I purchased an eight pack with eight different varieties of Lakefront and then mixed a six with some more.

So what does Cattail Ale taste like? The website indicates that it is a Wisconsin Pale Ale. Well, I've never heard of that variety, but this tastes almost like a lager, but with some nice fruitiness. In some ways, it reminds me of the Pete's Cream Wanderlust Ale that I had tried a few years back. It has a nice color and carbonation, with an interesting fruitiness, despite the fact that it is unflavored.

Lakefront Brewery Cattail Ale is under the kosher supervision of the Star-K. Although the LOC on the Star-K site says that this (and about 15 other varieties) are kosher, but only with the Star-K on the label, I was unable to find a Star-K on the label of any of the varieties that I purchased. This seems common with the Star-K as many of the Sam Adams beers that are listed as under the Star-K do not have the symbol on the label. Concerned that I had wasted my money, I contacted the Star-K to confirm that they are permissible without a Star-K on the label. I spoke with R' Rosen (really nice guy) who said that the beers on the LOC are permitted even without the Star-K on the label. He also said that he had tried one and thought that the beer was quite good. (I didn't have the foresight to ask him which variety he tried).

For the experts' take on the Cattail Ale please click here . As always, please remember to drink responsibly and to never waste good beer unless there is no designated driver.

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Friday, June 20, 2008

Friday's Family Photo

Congratulations to Yael and the Young Israel of West Hempstead 2nd & 3rd grade girls baseball team on winning their league championship!

Thursday, June 19, 2008

Thursday Parsha Tidbits - Shelach

The following is a brief summary of a thought said over by R' Frand in his shiur this evening. I have attempted to reproduce this vort to the best of my ability. Any perceived inconsistencies are the result of my efforts to transcribe the shiur and should not be attributed to R' Frand.

Parshas Shelach begins with the story of the meraglim (spies) that were sent to reconnoiter the land of Israel while the Jews were still travelling in the desert. The first pasuk indicates that Hashem told Moshe to sent the meraglim that will spy on the land - using the verb "Viyasuru" for their actions. The verb is used again in Shelach 13:17 where it states that Moshe sent them out "Lasur" (to spy). It then arises again in 13:21 where the Torah states "Vayalu Vaysuru" that the men went up and spied.

The root "sur" is also found at the end of the parsha. In Shelach 15:39 it is written by tzizis that a man sees his tzizis and remembers the commandments and will not spy after your heart and after your eyes - utilizing the verbiage "V'lo Sasuru Acharei Levavchem V'Acharei Eyneychem..." Rashi on this pasuk makes the connection to the meraglim in the beginning of the parsha (through the use of Sur) before citing to the Medrash Tacnhuma that the heart and the eyes are spies for the body.

The questions that R' Frand asked on the pasuk were: (1) it appears that the pasuk is out of order since one generally sees before one's heart desires something; (2) Why does the Torah use the plural form of Levavchem and Eyneychem - a person has two eyes, but only one heart. The Torah should have said Libchem (your heart in singular form).

R' Frand answered the question by making reference to the sefer Shemen Hatov from R' Weinberger [ed. note, I do not know which R' Weinberger he was referring to]. He indicated that R' Weinberger writes that the multiple "Levavchem" indicates that one should worship Hashem with both his yetzer hatov and yetzer hara. In general a person may know what is good and what is bad. However, sometime the yetzer hara will make something that is bad "appear" in one's heart to be a good thing. This was the problem that the meraglim had. They actually believed that they were doing the right thing. As was taught by the Gerrer Rebbi in the Chidushei Harim, the meraglim thought that it was bad to go into the land of Israel. While they were in the desert, the Jews' clothes did not wear out and the manna fell from heaven. The Jews did not need to work or involve themselves in earthly pursuits. Instead, they were able to devote all their time to learning Torah and serving Hashem.

The Chidushei Harim writes that the meraglim were concerned that once the Jews went into Israel they would no longer be able to spend their time in heavenly service and would have to spend significant time working the land. As such, they felt that entering the Land of Israel would not be a good thing and they believed that their yetzer hatov was urging them to find ways to avoid leaving the midbar stage. This feeling created a hidden agenda which impacted on their view of the Land of Israel, causing them to have a negative take on what they saw during their trip.

It is for this reason that the Torah uses the double language of not being affected by your "hearts" because the yetzer hara may come under the guise of being the yetzer hatov and will poison your eyes' view of the situation. A person needs to be aware that his yezter hara may be masquerading as a yetzer hatov in order to influence his position on what his eyes are seeing. If a person is able to put aside the hidden agenda of his yetzer hara then he will be able to avoid being swayed by what his hearts are telling him that he sees.

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Wednesday, June 18, 2008

Wednesday's Weird But True Legal Cases - Vol XV

Tonight's weird but true legal case is Ansonia Associates Ltd. Partnership v. Public Service Mut. Ins. Co, 257 A.D.2d 84, 692 N.Y.S.2d 5 (1st Dept. 1999) a matter where an insurance carrier refused to settle a case and got called on the carpet as a result.

In Ansonia, the insured had obtained a policy with Public Service Mutual Insurance Company which provided for commercial general coverage in the amount of $1 million. After Ansonia was sued (along with at least ten other co-defendants) PSMIC provided a defense attorney as required under the policy. Prior to the trial of the action, the plaintiff made a demand that Ansonia settle out for $375,000, a number well within the limits of the PSMIC policy. The court noted that Ansonia's attorney (provided by PSMIC)urged PSMIC to accept the offer, stating, “It is my recommendation that at this juncture active efforts on our part to resolve this matter be undertaken to minimize the exposure to runaway verdicts, punitive damages, or a disproportionate liability split in which Public Service Mutual's contribution towards the settlement would be greater than [this amount]”.

As insurance carriers often do, PSMIC did not accept the recommendation. Therefter, the ten codefendants settled for the total sum of $152,702. Ansonia's attorney again urged settlement, stating his “opinion that resolutions [sic ] of these actions, and the extinguishment of any liability of the insured including the possible effect of punitive damages is preferred to the prospect [of] subjecting the insured to a trial on the issue of liability and damages where the exposure appears greater than the benefits of resolution.” The insurer again ignored the suggestion.

Since the Plaintiff could not settle with Ansonia, the matter proceeded to trial where the jury found Ansonia to be 80% liable for the injury and to be answerable in punitive damages for “gross negligence and/or willful misconduct”. Ansonia offered its own funds in the attempt to settle the matter for $500,000 above the amount of the $1 million policy issued by PSMIC, but the plaintiffs demanded $2.5 million. Ultimately, the case settled for $1.5 million with the entire amount being provided by Ansonia as PSMIC refused to make any contribution towards the settlement.

As PSMIC had abdicated its responsibility under the policy, Ansonia sued it under a theory that its actions constituted a bad faith refusal to settle the underlying claim. As noted by the First Department in its decision:

At the root of the ‘bad faith’ doctrine is the fact that insurers typically exercise complete control over the settlement and defense of claims against their insureds, and, thus, under established agency principles may fairly be required to act in the insured's best interests ... in order to establish a prima facie case of bad faith, the plaintiff must establish that the insurer's conduct constituted a ‘gross disregard’ of the insured's best interests-that is, a deliberate or reckless failure to place on equal footing the interests of its insured with its own interest when considering a settlement offer. In other words, a bad-faith plaintiff must establish that the defendant insurer engaged in a pattern of behavior evincing a conscious or knowing indifference to the probability that an insured would be held personally accountable for a large judgment if a settlement offer within the policy limits were not accepted.

In arguing that Ansonia's suit should be dismissed, PSMIC asserted that since the insurance policy did not cover punitive damages and an award against Ansonia would have included punitive damages, it was never required to pay the claim. The court rejected this argument, stating:

Stated simply, two wrongs do not make a right. What defendants misapprehend is that, for the purposes of this appeal, there is only one wrong and it is entirely attributable to misconduct by the insurer. Having succeeded in maneuvering its insured into unilaterally entering into a settlement to avoid the potential of an award of punitive damages, the insurer has exhibited bad faith by using economic duress to deprive the insured of the very insurance coverage for which plaintiff contracted. The insurer cannot justify its misconduct by speculating that, had the parties proceeded to trial, an award of exemplary damages would have been rendered that would necessarily have been upheld by this Court. In the absence of any award representing exemplary damages, this Court is not concerned with “preserving the condemnatory and retributive character” of such awards and avoiding a result that “would allow the insured wrongdoer to divert the economic punishment to an insurer”. What is involved here is merely that aspect of our civil justice system that “allow[s] a wrongdoer to escape the punitive consequences of his own malfeasance in order that the injured party may enjoy the advantages of a swift and certain pretrial settlement”. It is “no more than a necessary incident of the process” and not an event that operates to absolve the insurer of the consequences of its failure to fairly represent its insured's interests in the litigation, looking instead to its own financial benefit. Thus, the defect in defendants' case is the lack of “an entirely separate and analytically distinct wrong on the part of the insure[d]”, to paraphrase Soto . Succinctly stated, while two wrongs do not make a right, one wrong remains just that.

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Tuesday, June 17, 2008

Tuesday's Thoughts on the Daf - Sotah 24

Sotah 24 is the continuation of the first mishna in the fourth perek of Sotah. The mishna discusses which women are eligible to drink the water and who must forfeit her kesuba if she either can't or won't drink the water.

As part of the discussion, the mishna discusses a scenario where a man is married to an eilonis, or a woman who has reached an advanced age or a woman who has become sterile as a result of drinking a substance that causes infertility (as interpreted by Rashi). The Tanna Kama writes that if a woman in this category was subject to kinui and setira, she would not drink the water and would forfeit her kesuba. It is implied that the reason why she cannot be compelled to drink and loses the kesuba is because the marriage was subject to divorce based on its inability to produce children. R' Eliezer argues with the Tanna Kama and writes that since he could marry another at the same time, she should be permitted to drink because the marriage was not automatically subject to divorce as he could be mikayaim pru urvu through the second spouse. Although the point is academic because we don't paskin like R' Eliezer, I wonder what would be the situation where he has children from a prior marriage and would normally be permitted to stay married, despite the fact that the marriage could not produce children.

Another interesting point was raised by Shlomo K. during our daf session tonight. The mishna writes that the wife of a saris still drinks, even though she is ineligible to him based on his physical condition. Rashi writes that since he was not always a saris, she can drink the water, because there is no issue of whether the husband was preceded by the boel. The question Shlomo raised was -- if she is vindicated by the water, how can she become pregnant if her husband is a saris? I opined that the same way that the water is ineffective if he has prior bad acts (regardless of what she did or did not do) then maybe if she is vindicated by the water, he would be healed. R' Efrom G. who was sitting in with us this evening liked my theory, but I would love to see if anyone has written on the topic.

A final interesting point on Sotah 24a was that the beis din can step in and do kinui if the husband is either physically incapable (mute or insane) or he is not present (i.e incarcerated) and is unable to observe the happenings in town. Although the Tanna Kama writes that beis din can only do the kinui and at most force her to lose the kesuba, R' Yosi states that she can even be brought to drink by the husband once he is released from prison, if the kinui was previously done by beis din.

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Monday, June 16, 2008

Max Kellerman's Monday Musings Vol XIV - Why Max hates golf, Who's head should roll and Intelligent Design

Today's Max Kellerman and Brian Kenny show had it all -- sports, non-sports and religion, all wrapped up in a neat little three hour show. Topics included why Max hates golf (its racist and isn't a sport) how the Mets are not intelligently designed and why the Yankees are based on a sound plan. And of course, religion played an active role, although this time it was more overt than usual.

The first hour of the show featured a discussion as to why Max hates golf. I believe that he said that it was "a culture of the sewer" because it lacked athleticism and was racist and exclusionary. Although Max has previously weighed in on his dislike for golf and why its not a sport, today's program featured something new, a definition of sport. Max defined sport as "any competitive activity through which you can gauge the athleticism of the participant." This was the first time that I had heard Max actually define "sport", but I have to admit that I have missed quite a few shows over the last few weeks.

There was also quite a bit of cross-promotion as Max and Brian had Mike Greenberg of the Mike and Mike in the morning show (my friend Rabbi M's wife is a big fan of their program) in an attempt to explain why golf is worth watching and is a sport. As part of the guest spot, Max talked to him about going to school in NYC (I did not realize that Greeny went to Stuyvesant, I wonder if we had some of the same teachers, as the Stuyvesant science teachers taught in my high school in the afternoon). Max then asked him which of his parents was the "overbearing Jewish parent." Mike indicated both, while Max said that it was only his father.

Max and Brian also had Don Lagreca on to talk about golf. I was a little disappointed that they did not ask Don why he and Joey are allowed by the empty suits to go on the air with Michael Kay, while Louie and Lundberg are still banned from public speaking. I was also glad to hear the other day that there will be a free Louie and Lundberg website, I googled it this evening but only found my post on the subject from last month and a "meet up" site with one member.

As usual, Max brought religion into the show. Besides making reference to golf's exclusion of Jews and his own dominating Jewish parents, Max also taked about the concept of intelligent design - that (to use Max's example) if people landed on Jupiter and saw a computer it would be proof that G-d created the world. Max utilized this as part of his analysis of how the Yankees have a plan and are "intelligently designed" whereas the Mets have no design. I would disagree with the statement about the Mets as (despite being an ardent Met fan) I think that they are designed -- for failure. The team just can't hit but is above average in the pitching department. So what do they consider doing? Firing the pitching coach! Meanwhile the fact that the team can't hit for power (13 out of 16 NL teams in HRs and Slugging Pct) and sometimes can't hit at all is virtually ignored. Since the Mets fired Rick Down, the hitting has been abysmal. The fact that they have no power on the bench and are using waiver wire spare parts to fill in for injured players with AARP cards is completely irrelevant. It couldn't be the architect of the team's fault.

But back to religion, Max is correct that intelligent design is an important tool in demonstrating that Hashem does exist. If I were to hand you a watch and tell you that it was spontaneously created in the desert, would you believe me? How about if I told you that the monkey in the zoo hand wrote a letter? Then why would you believe that life could be the result of random acts? As usual Max brings Torah thought to sports - the Mets are not intelligently designed, but the world could not exist without divine intervention and forethought.

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Wednesday, June 4, 2008

Wednesday's Weird But True Legal Cases - Vol XIV

Tonight's weird (but true) involves a criminal prosecution commenced by the Kings County District Attorney's Office in relation to an act of school violence. In People v. Hiraldo, 177 Misc.2d 33, 676 N.Y.S.2d 775 (Sup. Ct. Kings Cty. 1998) the Court considered a matter in which a sixteen year old student was prosecuted for manslaughter and criminally negligent homicide as a result of an incident with a school aide which resulted in the death of the aide. Although the matter was submitted to a grand jury, the Judge had other ideas.

As noted by the Court in its opinion, the facts presented to the grand jury were that:

the defendant was observed punching and slapping the victim numerous times in the school locker room. When the defendant ran away, the victim chased after him and caught him. The victim was then observed kicking the defendant. When the defendant again ran away down some stairs, the victim chased after him, went inside the dean's office, came out and subsequently collapsed in front of that office. The victim was then removed to a hospital where he died the next day from a heart attack.
Although the defendant normally does not testify before a grand jury, the defendant in this matter did so. The defendant testified that the incident arose when he tried to get into the locker room to get lunch money from his coat, but the aide attempted to deny him access. According to the defendant, he went into the locker room and was stopped and grabbed by the victim. The defendant testified that in the process “I was swinging my hand so he can release me, because I was scared.” The defendant also gave details of his whereabouts before and after the incident which the District Attorney demonstrated were false, through the testimony of several teachers and prior inconsistent statements by the defendant.

In addition to the testimony of the defendant, the prosecution also offered the testimony of the medical examiner who said that the victim's only external injuries were “three small contusions on the right side of the face.” The medical examiner opined that the contusions were consistent with the victim having been hit with a hand or fist. He further stated that:

the initial examination of the victim revealed that he had died as a result of “cardiac arrest due to arteriosclerotic cardiovascular disease following physical assault.” The victim had an abnormally big heart, had had previous heart valve replacement and coronary bypass surgery, and had obvious scarring from a prior heart attack. The medical examiner concluded that 'What happened is that when you have a heart that is not functioning right, if you get mad, if you get scared, if somebody is-if you get into an argument, what will happen is that your heart will start beating faster than it should be.... [His heart] could not take it and then it collapsed, he expired.'
Following the close of testimony, the grand jury indicted the defendant on charges of manslaughter in the second degree, attempted assault in the second degree, and attempted assault in the third degree. The Defendant then moved to dismiss the indictment, arguing that the testimony as to his actions did not rise to the level required for the charges.

In determining the motion, the court first set out the standard for reckless manslaughter explaining that "there must be evidence when a defendant acts that “he is aware of and consciously disregards a substantial and unjustifiable risk” that death will occur." The court found that there was no evidence presented to the grand jury to establish that the defendant was aware of the victim's heart condition during the attempted assault. Furthermore, there was also no evidence that the defendant sought out the victim. Indeed the evidence indicated that the victim chased the defendant after he ran away, was able to catch him and then kicked the defendant who continued to flee. As such, the Court dismissed this charge.

In relation to the lesser charge of criminally negligent homicide, the court also dismissed the charge, noting that:

The absence of any indication from the appearance of the victim that he was in ill health or public information about the existence of his heart condition detracts from a claim that the defendant failed to perceive a substantial and unjustifiable risk of death. This is not a case where a bar employee forcefully propels an intoxicated patron out the front door of a bar, down four steps to concrete pavement where that victim becomes unconscious and later dies from skull fractures and brain hemorrhage ... The striking of a 66-year-old man in the face which results in three small contusions and no other internal injury would not lead an average person to perceive a risk that cardiac arrest and death would result.
Finally, as to the charge of attempted assault in the second degree, the Court found that there was "absolutely no evidence to establish that the defendant intended to cause serious physical injury to the victim. Since there was no evidence that the defendant struck particularly forceful blows or persisted in the attack when he was caught running away, the lack of an intent to cause serious physical injury is apparent."

As a post script, it should be noted that the Court did allow prosecution for the crime of assault in the third degree to proceed as there was evidence that the defendant did intend to cause some physical injury.

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Tuesday, June 3, 2008

Tuesday's Thoughts on the Daf - Sotah 10

Sotah 10 continues the mesechta's trend of aggadic digression. Its funny --- when I was talking to a friend who is in his first daf yomi cycle, I told him that Sotah would be a fun mesechta. I have not seen him much due to scheduling issues, but I would love to find out whether he is enjoying the aggdita as much as usual. I know that for me, the levity and interesting insights that are taught through the aggdita method have been thought provoking, despite the fact that this is not my first time through Sotah.

A number of points from today's daf stood out to me and I would like to briefly discuss two of them in this post. On the bottom of Sotah 10a (spilling over to 10b) the Gemara discusses Avraham Avinu and his actions in taking in guests. In so doing, the Gemara interprets Genesis 21:33, where the Chumash states that Avraham planted an "eshel" in Beer Sheva and there he proclaimed the name of Hashem, G-d of the Universe." In discussing the word "eshel" two Amoraim (R' Yehuda and R'Nechemiah) dispute what the eshel was, one says that it was an orchard and the other an inn. As to the orchard, the verse lends itself to such an interpretaion, but in stating that it was an inn, the Gemara is required to use a verse from Daniel where the verb "Vayita" was utilized within the context of pitching a tent (rather than planting as it normally is interpreted). Of note to me was Rashi's explanation of how eshel could mean an inn - he explained that it was an acronym for achila (eating) shtiyah (drinking) and leviya (accompanying) meaning that Avraham would give travelers who passed his way food, drink and then would accompany them on their journey.

What was interesting to me is that I would have thought the "lamed" word would have been "linah" -- that Avraham gave them to sleep over in his tent. However on reflection, it does teach the mitzva that a person is required to accompany his guest part of the way when the guest leaves. As such, leviya would be a greater chiddush. I recall that when I was in my fist year of Yeshiva in Israel (1988-89), I ate a shabbos meal by a family which lived in Geula or Arzei Habira (I can't remember which one). I had been sent there through the Jeff Seidel program as I was volunteering at Heritage House in the Old City. The husband of the family that hosted us told me that his father lived outside of Boston, Mass and that at an advanced age he used to insist on accompanying his guests half way home, even if they lived an hour away. It was the kind of story that sticks with you, and I recall it often, even if I don't take it to that level.

The end of the verse also has an interesting interpretation on Sotah 10b. Reish Lakish writes that it should not be said that Avraham proclaimed Hashem, but rather that he cause Hashem's greatness to be called out by others. He explains that after his guests had eaten and drunk, they would get up to praise him. Avraham would then respond, is it my food that you are eating? No it is Hashem's food (since he created the world) - go out and praise the one who created and sustained the world, since He is the one who is responsible for all that you are eating. As such he did cause Hashem's name to be proclaimed.

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Monday, June 2, 2008

Max Kellerman's Monday Musings Vol XIII - On Yankees, Griffey and Babies

Today's Max Kellerman and Brian Kenny show was centered around baseball with a little sprinkling of MMA and a fair amount of basketball. As I really haven't been following the NBA playoffs this year and mixed martial arts has never been my thing, I would like to focus on some of Max and Brian's thoughts on baseball.

Today's show led with a discussion of Joba Chamberlain, his anticipated start and how he is the most heralded Yankee pitching prospect to come up through the system and make a start for the Yankees. Although I missed some of the show, I later heard Max and Brian say that some callers had suggested Al Leiter and Dave Righetti as comparable prospects, but Max discounted them as he correctly noted that the hype surrounding their recall to the parent club and role as starting pitchers was not comparable to the one surrounding Joba. I also heard the name Whitey Ford mentioned, but I have no clue as to what type of press there was when he came up (he retired three years before I was born).

Of course what was not said was that the reason that many Yankee pitching prospects did not have Joba's hype when they came up was because the Yankees traded them before they could don pinstripes. Some recent examples include: Eric Milton (much hyped when traded to Twins, made his MLB debut at 22 but never panned out); Jake Westbrook (traded to Indians for David Justice after having made two starts for the Yankees) and Ted Lilly (traded to Oakland in mid '02, has gone 71-57 as a starter since the trade). If the Yankees had held on to these, who knows what kind of hype there would have been.

Another interesting chat involved who was a better player/candidate for the Hall of Fame - Ken Griffey Jr or Manny Ramirez. Given the fact that both have been in the news of late for passing career HR milestones, I guess that its not a big surprise to hear them mentioned together, but it was an interesting conversation that Max Kellerman and Brian Kenny had about the players' various attributes and who would be the best choice.

As a sidebar to this, someone (I did not catch if this came from a host, intern or article) pointed out that Griffey is actually the second best outfielder to be born in his home town on November 21st, since Stan Musial was born on the same day (obviously many years apart) in the same small town. They always have something interesting that sticks with you.

Speaking of interns, Max wished a mazal tov to his intern Zach Abramowitz (sp?) on the birth of a son. It was nice to hear this from Max and further underscores what kind of guy he is. I remember when he first introduced himself to Sarah and me when we were in the airport on the way to Barbados. He asked whether we have kids and when we answered in the affirmative, he then asked what their names are. Many people make small talk (especially when a flight is delayed) and ask about kids. Few if any people ask what your children's names are and it says something about the kind of guy that he is underneath. But that's just my opinion.

Speaking of the guy underneath, the reference to Griffey Junior and the humble type of player that he is (certainly in comparison to ManRam) was just another indication of how the Max Kellerman show touches on Torah thought. Last week's daf yomi (Sotah 5a) discussed the trait of haughtiness and how Hashem punishes those who display it, while rewarding the humble. As is apropos to the coming holiday, the Gemara discussed how when Hashem was choosing which mountain would be the site of the giving of the Torah to the Jewish people, he did not select a high mountain and instead chose Sinai which was considerably lower. It is also written in Pirkei Avos that one who runs after glory, the glory will run from him, where one who runs away from glory will be chased by it. Ken Griffey Junior is known as a good guy in baseball circles, in large part because he has hot 600 home runs without a major ego or chasing the spotlight. As such it was nice to see Max and Brian give him his due and allow the honor to chase him.

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Sunday, June 1, 2008

Sunday Night Suds - Brooklyn Pennant Ale '55

Tonight's Sunday Night Suds Beer Review looks at Brooklyn Brewery's Pennant Ale '55. Why do they call it Pennant Ale '55? The website indicates that they named it Pennant Ale '55 to remember the Brooklyn Dodgers last World Series win in 1955. Somewhere, Marty Markowitz (the Brooklyn Borough President) is probably qvelling about the name of the beer (although I have no idea if he actually drinks it).

The Pennant Ale '55 is an American Pale Ale - a little less bitter than an IPA with nice amber color and foam that does not completely dissipate even more than twenty minutes after you pour it (I'm having mine in a Boddington's pint glass). The beer itself is very smooth and is quite enjoyable after a ball game. I would have liked to have had some at the Mets game tonight but I was the designated driver (okay the only driver) and the Mets don't sell Brooklyn Beer at their games anyway.

I have had Pennant Ale with various beef or chicken dishes and it never seems to hit a dissonant chord with meat. As it is not as strong a flavor as a traditional IPA it does not drown out the food that you are eating with the beer and compliments most stews and steaks. The website says that it works well with falafel too, but I have to admit that I have never tried that as a combo. Maybe I should pick up some tomorrow to try it (falafel that is, I still have more Pennant Ale in the house).

Brooklyn Pennant Ale '55 is under the Kosher Supervision of the Vaad of Detroit as are nearly all beers brewed by Brooklyn. For the experts' take on the Pennant Ale '55 please click here

As always, please remember to drink responsibly and to never waste good beer unless there is no designated driver.

Finally, on a more serious note, I received an email from the Saranac people that there was a major fire at FX Matt Brewery in Utica that caused more than $10 million of damage. There are already reports of a run on Saranac products: . I would imagine that there would be a similar impact on Pete's and Brooklyn since they brew at the same location. We'll have to see.

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