| Merkos L'Inyonei Chinuch, Inc. v Sharf |
| 2009 NY Slip Op 00659 [59 AD3d 403] |
| February 3, 2009 |
| Appellate Division, Second Department |
| Merkos L'Inyonei Chinuch, Inc., et al.,Respondents-Appellants, v Mendel Sharf et al., Defendants, and CongregationLubavitch, Inc., Appellant-Respondent. |
—[*1] Baker & McKenzie, LLP, New York, N.Y. (David Zaslowski and Zachary L. Grayson ofcounsel), for respondent-appellant Agudas Chassidei Chabad; Kravet & Vogel, LLP, New York,N.Y. (Donald J. Kravet of counsel), and Fisher & Fisher, New York, N.Y. (Andrew S. Fisher ofcounsel), for respondent-appellant Merkos L'Inyonei Chinuch, Inc. (one brief filed).
In an action, inter alia, for declaratory and injunctive relief and for ejectment, the defendantCongregation Lubavitch, Inc., appeals, as limited by its brief, from (1) so much of an order andjudgment (one paper) of the Supreme Court, Kings County (Harkavy, J.), dated June 19, 2006, asdenied its motion to dismiss the complaint insofar as asserted against it, among other things,pursuant to CPLR 3211 (a) (2), granted the plaintiffs' cross motion for summary judgment on thefirst, third, fourth, fifth, and sixth causes of action, and is in favor of the plaintiffs and against itdeclaring, inter alia, that the plaintiffs are the owners of certain real property, with all rights,title, and interest therein, and permanently enjoining it, inter alia, from interfering with theplaintiffs' interest in and enjoyment of the subject property, (2) so much of an order of the samecourt dated June 30, 2006 as denied that branch of its motion which was for leave to renew itsmotion to dismiss the complaint [*2]insofar as asserted against it,and (3) so much of an order of the same court dated March 27, 2007 as granted the plaintiffs'motion for leave to amend the complaint and denied its motion to dismiss the second amendedcomplaint insofar as asserted against it, among other things, pursuant to CPLR 3211 (a) (2); theplaintiffs cross-appeal, as limited by their brief, from so much of the order dated March 27, 2007as denied their cross motion for summary judgment on the causes of action to eject the defendantCongregation Lubavitch, Inc., from the subject property.
Ordered that the order and judgment dated June 19, 2006 is modified, on the law, by deletingso much of the first and second decretal paragraphs thereof as awarded permanent injunctiverelief in favor of the plaintiffs and against the defendant Congregation Lubavitch, Inc., and "anyother person or entity with notice of the injunction"; as so modified, the order and judgment isaffirmed insofar as appealed from, without costs or disbursements; and it is further,
Ordered that the order dated June 30, 2006 is affirmed insofar as appealed from, withoutcosts or disbursements; and it is further,
Ordered that the order dated March 27, 2007 is affirmed insofar as appealed andcross-appealed from, without costs or disbursements.
The plaintiff Agudas Chassidei Chabad (hereinafter Agudas), a religious corporation, and theplaintiff Merkos L'Inyonei Chinuch, Inc. (hereinafter Merkos), a not-for-profit corporation, holdseparate title to adjoining parcels of real property located in Brooklyn at 770 Eastern Parkwayand 784-788 Eastern Parkway, respectively. Since 1940, 770 Eastern Parkway has served as theheadquarters for the movement of Lubavitch Chasidism, a branch of the greater Chasidicmovement of Orthodox Judaism. The properties house the central Lubavitch Synagogue, inwhich the congregation, known formally as Congregation Lubavitch—Agudas ChassideiChabad, worships. The synagogue is managed by individuals known as the "Gabboim," ortrustees, who were originally appointed by the Grand Rebbe and are now elected by thecongregation. Neither the Gabboim, individually, nor the congregation itself are parties to thisaction.
In 1994 Merkos caused a plaque to be affixed to the outer wall of the building at 784-788Eastern Parkway in honor of the Grand Rebbe, Menachem Mendel Schneerson. The plaquecontained an inscription which was offensive to some members of the Lubavitch community forreligious reasons. On November 5, 2004 the individual defendants Mendel Sharf, Yaacov Thaler,and Bentzion Frishman, who are not parties to this appeal, allegedly pried the plaque off the wallof the building during the night. The plaintiffs commenced this action, among other things, topermanently enjoin these individuals from committing further acts of vandalism.
Congregation Lubavitch, Inc. (hereinafter CLI), a not-for-profit corporation that was formedin 1996 by the Gabboim, moved for leave to intervene in the action. CLI's motion was grantedand the plaintiffs, with the permission of the Supreme Court, served an amended complaintadding CLI as a defendant and seeking, inter alia, a declaration of their rights with respect to theproperties, as well as a permanent injunction against CLI to prevent it from interfering with theplaintiffs' use and enjoyment of the properties. Their pleading subsequently was amended to addtwo causes of action to recover possession of the premises.
The Supreme Court correctly rejected CLI's contention that the plaintiffs should not havebeen permitted to add the causes of action to recover possession of the premises. These twocauses [*3]of action were based upon factual circumstances inexistence at the time the original complaint was filed and, thus, the new pleading was anamended complaint, rather than a supplemental complaint (see Siegel, PracticeCommentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3025:9; see Fuentes v City of New York, 3AD3d 549, 550 [2004]; Pearce v Booth Mem. Hosp., 152 AD2d 553, 554 [1989]).Since the second amended complaint was served before CLI interposed an answer with respectto the first amended complaint, the second amended complaint was properly served as of right,pursuant to CPLR 3025 (a) (see CPLR 3025 [a]; Parkway Windows v River TowerAssoc., 108 AD2d 660 [1985]; Walsh v Martin, 17 AD2d 867 [1962]; O'Connellv Wilson, 162 App Div 392 [1914]; Weinstein-Korn-Miller, NY Civ Prac ¶ 3025.02[2d ed]).
The Supreme Court also properly denied that branch of CLI's motion which was to dismissthe action as nonjusticiable pursuant to CPLR 3211 (a) (2). "Civil disputes involving religiousparties or institutions may be adjudicated without offending the First Amendment as long asneutral principles of law are the basis of their resolution" (Matter of Congregation Yetev Lev D'Satmar, Inc. v Kahana, 9 NY3d282, 286 [2007]). Here, the issue of title to the property and the right of possession incidentthereto may be decided, as among Merkos, Agudas, and CLI, based upon the deeds to theproperties, which vest title, and the concomitant right of possession (see generally Novelty Crystal Corp. v PSAInstitutional Partners, L.P., 49 AD3d 113, 117 [2008]). CLI does not challenge theplaintiffs' ownership and has conceded that it is neither a tenant nor a licensee of the plaintiffs.As a result, these issues may be resolved without regard to any religious principles or doctrineand are, therefore, properly cognizable in this action (see Congregation Yetev Lev D'Satmar,Inc. v Kahana, 9 NY3d at 286; Park Slope Jewish Ctr. v Congregation B'nai Jacob,90 NY2d 517 [1997]; First Presbyt. Church of Schenectady v United Presbyt. Church inU.S. of Am., 62 NY2d 110, 116 [1984]; Kelley v Garuda, 36 AD3d 593 [2007]; Malankara Archdiocese of SyrianOrthodox Church in N. Am. v Thomas, 33 AD3d 887, 888 [2006]).
Contrary to CLI's argument, the existence of a divisive doctrinal dispute within theLubavitch community does not render this action nonjusticiable, even if the facts underlying theaction arise from that dispute and, as CLI suggests, the commencement of the action wasmotivated by that dispute. Property disputes between rival religious factions may be resolved bycourts, despite the underlying doctrinal controversy, when it is possible to do so on the basis ofneutral principles of law (seeCongregation Yetev Lev D'Satmar of Kiryas Joel, Inc. v Congregation Yetev Lev D'Satmar, Inc.,9 NY3d 297 [2007]; Park Slope Jewish Ctr. v Congregation B'nai Jacob, 90NY2d 517 [1997]; First Presbyt. Church of Schenectady v United Presbyt. Church in U.S. ofAm., 62 NY2d 110 [1984]; Kelleyv Garuda, 36 AD3d 593 [2007]; Malankara Archdiocese of Syrian Orthodox Churchin N. Am. v Thomas, 33 AD3d at 888; Trustees of Diocese of Albany v TrinityEpiscopal Church of Gloversville, 250 AD2d 282, 286 [1999]; see generally Jones vWolf, 443 US 595, 602 [1979]). The Supreme Court, therefore, properly denied CLI'smotion to dismiss the complaint as nonjusticiable.
The Supreme Court also correctly denied that branch of CLI's motion which was for leave torenew its motion to dismiss the complaint insofar as asserted against it. CLI failed to provide a"reasonable justification" for not alleging the "new facts" in its original motion to dismiss thecomplaint insofar as asserted against it (CPLR 2221 [e] [2], [3]).
Turning to the merits, the Supreme Court correctly granted the plaintiffs' cross motion forsummary judgment on their cause of action seeking a declaration that Agudas had all right, title,and interest in the property located at 770 Eastern Parkway, that Merkos had all right, title, andinterest in the property located at 784-788 Eastern Parkway, and that CLI had no such right, title,or interest [*4]in the premises. It was undisputed that the deeds tothose properties vested title in the respective plaintiffs, and CLI admitted that it was neither atenant nor a licensee of the plaintiffs. The Supreme Court properly rejected CLI's argument thatthe plaintiffs held the properties in trust. The evidence upon which CLI based that contention, astatement in a newspaper article, did not constitute competent evidence (see Young v Fleary,226 AD2d 454, 455 [1996]), and did not establish the elements of such a claim by CLI (see Church of God Pentecostal Fountain ofLove, MI v Iglesia de Dios Pentecostal, MI, 27 AD3d 685, 686-687 [2006]). Whethersuch a trust exists in favor of the congregation is not before us, as the congregation is not a partyto this action.
The Supreme Court erred, however, in awarding permanent injunctive relief against CLI. "Apermanent injunction is a drastic remedy which may be granted only where the plaintiffdemonstrates that it will suffer irreparable harm absent the injunction" (Icy Splash Food & Beverage, Inc. vHenckel, 14 AD3d 595, 596 [2005]; see Kane v Walsh, 295 NY 198, 205-206[1946]; Forest Close Assn., Inc. vRichards, 45 AD3d 527, 529 [2007]). Injunctive relief is "to be invoked only to giveprotection for the future . . . [t]o prevent repeated violations, threatened orprobable, of the [plaintiffs'] property rights" (Exchange Bakery & Rest. v Rifkin, 245NY 260, 264-265 [1927]).
Here, the plaintiffs failed to demonstrate a threatened or probable violation by CLI of theirproperty rights. Although damage was done to the plaque and to Merkos' building, which wasthe basis for the plaintiffs' request for an injunction, there is no evidence linking CLI with any ofthese acts of vandalism. There also is no evidence that any of the individuals who subsequentlyacted to prevent the plaintiffs from repairing the plaque were associated with CLI. As a result,the plaintiffs did not show that they would be harmed, much less irreparably harmed, absent theinjunction against CLI (see Icy Splash Food & Beverage, Inc. v Henckel, 14 AD3d at596; cf. Wiederspiel v Bernholz, 163 AD2d 774, 775 [1990]).
CLI's remaining contentions are without merit. Spolzino, J.P., Ritter, Miller and Carni, JJ.,concur.