| Committee to Save St. Brigid's Inc. v Egan |
| 2007 NY Slip Op 08847 [45 AD3d 375] |
| November 15, 2007 |
| Appellate Division, First Department |
| Committee to Save St. Brigid's Inc. et al.,Appellants, v Edward Cardinal Egan et al., Respondents. |
—[*1] Kelley Drye & Warren, LLP, New York City (Neil Merkl of counsel), for Edward CardinalEgan, Church of St. Brigid, Bishop Robert Brucato, Monsignor Thomas Gilleece, CarmineChaparro and Ines Aybar, respondents. Michael A. Cardozo, Corporation Counsel, New York City (Elizabeth S. Natrella ofcounsel), for municipal respondent.
Judgment, Supreme Court, New York County (Barbara R. Kapnick, J.), entered March 1,2007, granting dismissal of the complaint, affirmed, without costs. Appeal from order, samecourt and Justice, entered on or about February 13, 2007, which denied plaintiffs' motion for apreliminary injunction and granted the motion by defendants Cardinal Egan and Church of St.Brigid to dismiss, dismissed, without costs as subsumed in the appeal from the judgment.
The issue in this case is not, as the dissent posits, "whether the parishioners of anincorporated Roman Catholic church in lower Manhattan have any rights in a property disputewith Cardinal Egan," but whether, or to what extent the courts should intervene in the internalgovernance of a hierarchical church.
Plaintiffs' claims of breach of fiduciary duty and the impropriety of defendants demolishingthe church without plaintiffs' authorization were considered and rejected in a prior action (30AD3d 356 [2006]). In affirming the court's decision that the disposition of the church propertyand funds at issue were matters well within the ecclesiastical purview of defendants, wespecifically adhered to the long-standing and sensible prohibition against court involvement inthe governance and administration of a hierarchical church, citing Serbian Eastern OrthodoxDiocese for United States and Canada v Milivojevich (426 US 696 [1976]). It is beyondcavil that the Roman Catholic Church is such a hierarchical church. Although plaintiffs attemptto recast this action as claims allegedly arising after the first action was decided, it is clear thatthe present claims derive from the same circumstances as those dismissed in the first action, i.e.,defendants' decision to demolish the church, and therefore must also be dismissed (North Am. Van Lines, Inc. v American Intl.Cos., 38 AD3d 450 [2007]). Nor do Religious Corporations Law §§ 5, 90,91 and 92 require a different result, as those sections clearly vest approval authority for allactions [*2]taken by the trustees of an incorporated church in "thearchbishop or bishop of the diocese to which such church belongs" (see specifically§§ 5, 91; see also Pappas vGreek Orthodox Archdiocese of N. & S. Am., 30 AD3d 286 [2006], lv denied 8NY3d 803 [2007], cert denied 552 US —, 128 S Ct 86 [2007]).
Plaintiff's remaining claim, that the demolition permit was issued based on a false statementthat could not later be ratified (cf. Downey v Lackawanna City School Dist., 51 AD2d177 [1976]), is without factual or legal support. Concur—Sullivan, J.P., Buckley,Gonzalez and Sweeny, JJ.
Kavanagh, J., dissents in a memorandum as follows: For the following reasons, it is my viewthat plaintiffs' motion for a preliminary injunction should be granted and their complaintreinstated.
This appeal presents the question of whether the parishioners of an incorporated RomanCatholic church in lower Manhattan have any rights in a property dispute with Cardinal Egan, theArchbishop of New York. In this case, the alleged motive of the Cardinal and the Archdiocesefor seeking to demolish St. Brigid, one of the oldest Roman Catholic churches in the City, is todevelop residential apartments on the site whereby the benefits from the property would inure tothe benefit of the Archdiocese even though it is undisputed that the Archdiocese does not ownthe property.
The church, in Manhattan's East Village, was built by Irish shipwrights in 1848, and fundedby immigrants fleeing the famines in Ireland in that century. The church and the real property onwhich it sits was deeded to the Corporation of the Church of St. Brigid (formerly St. Bridget) byCardinal John McCloskey, Archbishop of New York in 1885, 16 years after the incorporation ofthe church.
In June 2001, Cardinal Egan ordered that the church be closed on the grounds that seriousstructural problems had made it unsafe. In September 2003, the Archdiocese filed an applicationwith the New York City Department of Buildings (DOB) to convert the church into residentialapartments. In August 2004, Bishop Robert Brucato, the Vicar General for the Archdiocese,announced that the parish would be closed within two weeks, and the last Mass was held there onSeptember 12, 2004. Since then, the altar, tabernacle, statues, organ and pews have beenremoved from the church. An application for a demolition permit was filed by KevinShaughnessy, a consultant working on behalf of defendants, and was granted.
On or about July 11, 2005, plaintiff Committee and several parishioners commenced anaction seeking to enjoin the demolition and reopen the building as a church. Cardinal Egancross-moved to dismiss the complaint on the grounds that the court was without jurisdictionbecause, inter alia, plaintiffs' claims were barred by the Establishment and Free Exercise Clausesof the First Amendment, plaintiffs lacked standing, and the claims were barred by the statute offrauds.
The court found that plaintiffs were seeking an order directing Cardinal Egan to use funds[*3]for the restoration and reopening of the Church, which was animpermissible intrusion into his ecclesiastical authority. The court noted, however, defendants'acknowledgment on the record that St. Brigid did not yet have a properly constituted board oftrustees, and that no demolition could take place absent a duly-made decision by such a board. Ittherefore deemed plaintiffs' cause of action unripe for determination, granted defendants' crossmotion and dismissed the complaint (Committee to Save St. Brigid v Egan, 2006 NYSlip Op 30218[U]). This Court affirmed that ruling in June 2006 (30 AD3d 356 [2006]).
Subsequently, the Board of Trustees for St. Brigid was convened, pursuant to ReligiousCorporations Law § 91, consisting of Cardinal Egan, Bishop Brucato, Monsignor ThomasGilleece (administrator of St. Brigid's parish), and two laypersons, Carmine Chaparro and InesAkbar. The Board met on July 18, 2006, without any notice to plaintiffs, and passed a resolutiondirecting the demolition of the building and ratifying the action taken by Kevin Shaughnessy inobtaining a demolition permit.
On or about July 26, 2006, plaintiffs commenced the current action by order to show causestaying the demolition permits and enjoining defendants from proceeding with demolition.Plaintiffs obtained a temporary restraining order prohibiting defendants from demolishing thebuilding pending the outcome of their appeal to the Board of Standards and Appeals (BSA) for afull review of the granting of the permits. When the BSA ruled that the matter was outside itsjurisdiction, defendants moved by order to show cause in August for an order vacating thetemporary restraining order and dismissing the complaint.
On February 13, 2007, the court dismissed the action in its entirety, ruling, inter alia, thatparishioners are not members of the corporation of a hierarchical church like the Roman CatholicChurch, and that no such rights are conferred on parishioners by St. Brigid's certificate ofincorporation or bylaws. It therefore determined that defendants were not barred by ReligiousCorporations Law § 5 from authorizing the demolition of the building.
This inquiry, then, requires an analysis of Religious Corporations Law § 5, whichoutlines the general powers and duties of trustees of religious corporations, and an examinationof sections 90, 91 and 92 which specifically apply to the Roman Catholic Church. Case law issparse, but the plain language of the statute indicates that the court erred in dismissing thiscomplaint in its entirety.
As a threshold matter, defendants' argument that plaintiffs' claims are barred by res judicataon the grounds that this Court has already ruled that the closure of St. Brigid falls within therealm of the Cardinal's ecclesiastical authority is without merit. The issue of enjoining demolitionof this church was not before the lower court in the first action, where the court determined thatthe trustees had not voted on the matter of demolition; therefore, demolition was not a justiciableissue. Moreover, this Court, in affirming, held only that "the disposition of the church propertyand funds at issue were matters within defendant's ecclesiastical authority and, accordingly, thatthe relief sought by plaintiffs, i.e., an order mandating that the funds in question be used torestore the subject property for use as a church, would impermissibly involve the court in thegovernance and administration of a hierarchical church" (30 AD3d 356, 356 [2006] [emphasisadded]).
Plaintiffs now concede that they have no rights in deciding whether to reopen or close achurch or parish. However, they seek to enjoin demolition on the grounds, inter alia, thatdefendants have violated Religious Corporations Law § 5, which in relevant partstates:[*4] "The trustees of every religious corporation shall havethe custody and control of all the temporalities and property, real and personal, belonging to thecorporation and of the revenues therefrom, and shall administer the same in accordance with thediscipline, rules and usages of the corporation and of the ecclesiastical governing body. . . for the support and maintenance of the corporation, or, providing themembers of the corporation at a meeting thereof shall so authorize, of some religious, charitable,benevolent or educational object conducted by said corporation . . . and they shallnot use such property or revenues for any other purpose" (emphasis added).
Plaintiffs argue that demolishing the church and using the site for residential developmentwill not be administering the real property for the "support and maintenance" of the corporation,since an "incorporated church" is a religious corporation "created to enable its members to meetfor divine worship or other religious observances" (Religious Corporations Law § 2).
Plaintiffs further assert that to allow defendants to proceed with the demolition and use theproperty for "other purposes" without the consent of the church members would undermine thevery purpose for which the Religious Corporations Law was enacted, namely, to prevent thediversion of property from its true beneficiaries—the congregation (see Morris vScribner, 69 NY2d 418, 423 [1987]).
In support of their assertion, plaintiffs point to the record, specifically to plans submitted bythe Archdiocese to DOB in September 2003 regarding the conversion of the church into anapartment building. Additionally, the record includes an Archdiocese press release stating itsintention to use the property for "other Archdiocesan purposes and ministry." In such case,plaintiffs claim, Religious Corporations Law § 5 demands that the members of thecorporation must authorize such "other" purpose.
Defendants argue, however, that the parishioners, represented herein by plaintiffs, are notvoting members of the corporation. They contend that religious corporations are "Type B"corporations (see N-PCL 201 [b]), set up "to benefit a broad class of society" rather thana group of members (citing Joint Legis Mem No. 1 accompanying enactment of the statute in1969, reprinted in 1969 McKinney's Session Laws of NY, at 2466, 2478). As such, defendantsmaintain, the lower court correctly ruled that pursuant to Not-For-Profit Corporation Law§ 601 (a), a Type B corporation "may have no members, in which case any such provisionfor classes of members or for no members shall be set forth in the certificate of incorporation orthe by-laws." Defendants further assert that the membership of a religious association is not likemembership of a corporation, and, in any event, Religious Corporations Law §§ 91and 92 recognize a Roman Catholic bishop's authority and supremacy in the right to dispose of achurch corporation's property, including real property, even without the consent of its board oftrustees.
Finally, defendants assert that the hierarchical nature of the Roman Catholic Church isstatutorily recognized in Religious Corporations Law § 91. Specifically, they argue, thestatute recognizes that no act or proceeding of the trustees of any such incorporated church shallbe valid without the sanction of the archbishop or bishop of the diocese to which the churchbelongs.
Indeed, the fact that the archbishop or bishop of a diocese, along with the diocesanvicar-general or administrator, are de jure members of every board of trustees of everyincorporated church in the diocese (see Religious Corporations Law § 91) appearsto summarily foreclose the members of the congregation from playing any possible role in thechurch corporation. Such an assumption would, however, necessarily render meaningless theReligious Corporations Law § 5 provision that requires trustees of everyincorporated church to administer the real and personal property of the incorporated church[*5]for the "support and maintenance of the corporation" or to getauthorization from the members if administered for any other purpose. As this Court noted in Pappas v Greek Orthodox Archdiocese ofN. & S. Am. (30 AD3d 286 [2006], lv denied 8 NY3d 803 [2007], certdenied 552 US —, 128 S Ct 86 [2007]), parishioners had to be considered membersfor the purpose of standing to challenge the actions of the church body because to hold otherwisewould "as a practical matter" insulate the defendants' actions from judicial review (30 AD3d at287).
Nevertheless, given the Religious Corporations Law sections (90, 91, 92) that heavilyunderscore the hierarchical nature of the Roman Catholic Church, the question arises as to whoor what precisely comprises the corporation of St. Brigid R.C. Church, and as a corollary, therights that plaintiffs, parishioners and/or the congregation may have in that corporation.
It is useful to put the issue into historical context.[FN*]The first general law of this state for the incorporation of churches was chapter 18 of the Laws of1784, applicable to all denominations (see Historical and Statutory Notes, McKinney'sCons Laws of NY, Book 50, Religious Corporations Law § 1). The statute was revised asto religious societies in 1813, and then specifically with regard to the incorporation of RomanCatholic churches in 1863.
The Court of Appeals has interpreted this legislative history with specific reference to therespective roles of the trustees and the congregation. In Robertson v Bullions (11 NY243, 249-250 [1854]), the Court held that "the views which appear to have been generallyentertained by both courts and people upon this subject are correct; that the societies arethemselves incorporated; that their members are the corporators, and the trustees the managingofficers of the corporation."
In People's Bank v St. Anthony's R.C. Church (109 NY 512, 520-521 [1888]), theCourt held that while the act of 1863 "changes as to Roman Catholic churches the mode of theselection of trustees and vests in them the exclusive power of management and control, [it] doesnot constitute the trustees [as] the corporation in place of the congregation." The 1863amendment prescribed that a Roman Catholic church or congregation "shall be a body corporate. . . and the said persons so signing the [certificate] shall be the trustees thereof" (L1863, ch 45, § 1).
Most significant perhaps, is the ruling in a case involving a bishop of anunincorporated Roman Catholic church where the title to the church real estate was heldby the bishop "in his own name, as trustee for its benefit" (Baxter v McDonnell, 155 NY83, 91 [1898]). "The purpose of this arrangement is to exclude the laity from that power ofinterference which they would have were the title vested in a corporation" (id. at 94[emphasis added]).
These early decisions of the Court of Appeals "treated incorporated religious societies ascivil rather than ecclesiastical bodies" (Conklin v State of New York, 284 App Div 193,197 [1954]). The Legislature subsequently provided that trustees of incorporated religioussocieties "shall administer the temporalities thereof . . . for the benefit of suchcorporations . . . and it shall not be lawful for the trustees to divert such estate,property, or revenues to any other purpose except toward the support and maintenance of anyreligious, benevolent or other institution connected with such church, congregation or religioussociety" (L 1875, ch 79, § 4). The essence of that enactment is now embodied in ReligiousCorporations Law §§ 5 and 16.
Viewed in this context, plaintiffs' argument is persuasive that even in a hierarchicalorganization such as the Roman Catholic Church, where individual parishioners may not have[*6]voting rights per se or membership certificates, ReligiousCorporations Law § 5 nonetheless "contemplates and takes into account the purposes andneeds of the congregation which creates, perpetuates and is represented by the corporation orlegal entity" (Trustees of Presbytery of N.Y. v Westminister Presbyt. Church of W.Twenty-Third St., 222 NY 305, 317 [1918] [interpreting the predecessor to ReligiousCorporations Law § 5]).
Moreover, while the bylaws of the St. Brigid corporation do not provide for a membershipclass, neither do they specifically state that the members of the congregation are not members ofthe church corporation. To the contrary, a reference to the congregation's role in the corporation'sbusiness appears in section VI of the bylaws: "a synopsis of [annual receipts and disbursementsof the church], together with a statement of the assets and liabilities of the church, shall beprepared . . . for the information of the congregation, or otherwise laid beforethem."
As plaintiffs contend, the plain language of Religious Corporations Law § 5 does notexempt hierarchical churches. Indeed, its opening sentence makes it applicable to the trustees of"every" religious corporation. Nor is there any case law that exempts trustees of religiouscorporations from the duties imposed on all fiduciaries.
Furthermore, the provision in section 5 that specifically refers to the Roman Catholic Churchand requires trustees to obtain the consent of the Archbishop to transfer church property does notconflict, in any way, with the separate requirement that authorization by the members of thereligious corporation is necessary prior to administering church property for purposes other thansupport and maintenance of the corporation.
Moreover, neither Religious Corporations Law § 91 nor section 92, which arespecifically pertinent to incorporated Roman Catholic churches, exempts the Archdiocese fromthis requirement. Section 91 concerns the hierarchical government of incorporated RomanCatholic churches. Section 92 concerns the limited situation where a Roman Catholic parish hasbeen divided and the title to real property belonging to the original church corporation is to betransferred in whole or in part to property belonging to the second corporation. In such cases, thissection gives the Roman Catholic bishop the unilateral right to transfer title to the new or secondreligious corporation: "If a valuable consideration is paid for the transfer the same shall bereceived by the said Roman Catholic bishop . . . and distributed between the saidoriginal Roman Catholic church corporation and the new or second Roman Catholic churchcorporation in such proportions as in the discretion of the said bishop . . . may seemproper." While this section, as defendants argue, confers ultimate authority and power on thebishop to dispose of parish properties, a plain reading establishes it as a limited power, and thetitle to the property, or consideration for same, must be apportioned between churchcorporations. Nowhere does it state that a bishop or archbishop has the power to divert thoseassets to the archdiocese.
In any event, this case does not involve a division of parishes or transfer of title from onechurch corporation to another. Defendants appear to acknowledge as much in their brief: "Theproperty remains with St. Brigid. (Indeed, it cannot be transferred without a court order)." Theythen proceed to argue that their intention to demolish a building the Trustees have deemed unsafefalls under the category of managing the property for the support and maintenance of thecorporation, in accordance with Religious Corporations Law § 5, and that in effect, theyhave not decided to use the property for any "other" purpose. Plaintiffs assert that defendants'claim of a hazardous condition and their statement that they have no other plans for the site aresuspect, pointing to [*7]evidence in the record of the submittedplans for the conversion of the site to apartment buildings and a report of their engineering expertthat contradicts defendants' claims about the church's condition and the cost of repairs. Therefore,the dispute essentially revolves around the issue of whether St. Brigid Church needs to bedemolished for safety reasons, or whether it can be restored for less than what diocesan expertsclaim.
Consequently, the court erred in holding that the decision to demolish the church is a matterof ecclesiastical polity. Determination about the safety of the church structure does not concerninternal governance or religious dogma, but rather can be made by applying neutral principles oflaw, and thus judicial review is permissible (see Jones v Wolf, 443 US 595 [1979];Morris v Scribner, supra, 69 NY2d 418 [1987]; see also Serbian EasternOrthodox Diocese for United States and Canada v Milivojevich, 426 US 696 [1976];Kedroff v Saint Nicholas Cathedral of Russian Orthodox Church of North America, 344US 94 [1952]).
Footnote *: St. Brigid was incorporatedpursuant to "an Act to provide for the Incorporation of Religious Societies passed. . . [in 1813], and an act amendatory thereof passed . . . [in 1863]."