| Tendler v Bais Knesses of New Hempstead, Inc. |
| 2008 NY Slip Op 05067 [52 AD3d 500] |
| June 3, 2008 |
| Appellate Division, Second Department |
| Mordecai Tendler, Appellant, v Bais Knesses of NewHempstead, Inc., Doing Business as Rav Aron Jofen Community Synagogue,Respondent. |
—[*1] Goldberg, Rimberg & Friedlander, PLLC, New York, N.Y. (Israel Goldberg of counsel), forrespondent.
In an action to recover damages for breach of contract, the plaintiff appeals from an order of theSupreme Court, Rockland County (Liebowitz, J.), dated December 19, 2006, which granted thatbranch of the defendant's motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (2)and denied his cross motion, in effect, for summary judgment on the issue of liability.
Ordered that the order is reversed, on the law, with costs, that branch of the defendant's motionwhich was to dismiss the complaint pursuant to CPLR 3211 (a) (2) is denied, and the plaintiff's crossmotion, in effect, for summary judgment on the issue of liability is granted.
In May 1992 the plaintiff entered into a contract with the defendant Bais Knesses of NewHempstead, Inc., doing business as Rav Aron Jofen Community Synagogue (hereinafter theCongregation), in which he agreed to serve as the Congregation's sole rabbi in return for an annualsalary. In pertinent part, the contract provided that the plaintiff could "not be terminated unlesspermission is granted by an authorized Rabbinical Court." The parties agree that sometime beforeFebruary 27, 2006, the Congregation terminated the plaintiff's employment as its rabbi. On March 21,2006 a rabbinical court authorized the termination of the plaintiff's employment. On March 30, 2006 theplaintiff commenced this action to recover damages for breach of contract. In lieu of an answer, theCongregation moved, inter alia, to dismiss the complaint pursuant to CPLR 3211 (a) (2), contendingthat the court lacked subject matter jurisdiction, since resolution of the matter required inquiry into [*2]the rationale of the rabbinical court's ruling authorizing the termination.The plaintiff opposed the motion and cross-moved, in effect, for summary judgment on the issue ofliability on the ground, among other things, that the termination violated the parties' contract, as theCongregation had not received permission from a rabbinical court to terminate his employment prior tothe actual termination, as specifically required by the contract. Accordingly, the plaintiff contended thatthe matter could be resolved through application of neutral principles of law. The Supreme Courtgranted the Congregation's motion to dismiss the complaint on the ground that it lacked subject matterjurisdiction and denied the plaintiff's cross motion, in effect, for summary judgment on the issue ofliability. We reverse.
Preliminarily, the Supreme Court erred in granting the Congregation's motion to dismiss thecomplaint pursuant to CPLR 3211 (a) (2), since this action does not present a nonjusticiable issuenecessitating an inquiry into the rabbinical court's determination authorizing the plaintiff's termination asthe Congregation's rabbi (see Matter ofCongregation Yetev Lev D'Satmar Inc. v Kahana, 9 NY3d 282, 287 [2007]; Park SlopeJewish Ctr. v Stern, 128 AD2d 847 [1987]; cf. Esformes v Brinn, 52 AD3d 459 [2008] [decided herewith]). Rather, neutral principles of contract law are applicable in resolving theissues presented in this action, without reference to any religious interpretation or doctrine, and theSupreme Court thus did not lack subject matter jurisdiction over it (see Jones v Wolf, 443 US595, 604 [1979]; Morris v Scribner, 69 NY2d 418, 422-423 [1987]; Avitzur v Avitzur,58 NY2d 108, 114-115 [1983], cert denied 464 US 817 [1983]; Kapsalis v GreekOrthodox Archdiocese of N. & S. Am., 276 AD2d 595 [2000]).
Moreover, although the Supreme Court treated the plaintiff's pre-answer cross motion as one forsummary judgment without giving the parties the requisite notice that it was doing so (seeCPLR 3211 [c]), no error resulted, since the parties charted a summary judgment course bysubmitting evidence and factual affirmations laying bare their proof (see Harris v Hallberg, 36 AD3d 857, 858 [2007]; O'Dette vGuzzardi, 204 AD2d 291, 292 [1994]).
Turning to the merits, "the fundamental objective when interpreting a written contract is todetermine the intention of the parties as derived from the language employed in the contract" (AbieleContr. v New York City School Constr. Auth., 91 NY2d 1, 9 [1997]). Here, the parties' contractexpressly provided that the Congregation could not terminate the plaintiff's employment as its rabbi"unless" it had obtained prior authorization from a rabbinical court. Accordingly, we can only concludethat the purpose of such a provision was to require a rabbinical court to determine, before theplaintiff's termination, whether Jewish law warranted his termination as rabbi (see Oppenheimer &Co. v Oppenheim, Appel, Dixon & Co., 86 NY2d 685, 690-691 [1995]; Matter of KapsonConstr. Corp. v ARA Plumbing & Heating Corp., 227 AD2d 484, 485 [1996]).
The plaintiff established his prima facie entitlement to judgment as a matter of law. He alleged thatthe Congregation terminated his employment as its rabbi sometime in February 2006 without priorauthorization from a rabbinical court, in violation of paragraph 6 (ii) of the parties' contract. Inopposition, the Congregation failed to raise a triable question of fact (see Zuckerman v City of NewYork, 49 NY2d 557 [1980]). While implicitly conceding that it terminated the plaintiff as its rabbisometime before February 27, 2006, the Congregation contends that it obtained the required rabbinicalcourt ruling authorizing such action. However, the rabbinical court ruling upon which the Congregationrelies is dated March 21, 2006, and, therefore, it cannot form a basis for compliance with paragraph 6(ii) of the contract. Accordingly, the plaintiff established, as a matter of law, that [*3]the Congregation breached the contract (see Kalus v Prime Care Physicians, P.C., 20AD3d 452, 454 [2005]).
The plaintiff's remaining contentions, which, in effect, concern claims not set forth in the complaint,are not properly before this Court (see CPLR 3013, 3025). Fisher, J.P., Dillon, McCarthy andLeventhal, JJ., concur.