| Merkos L'Inyonei Chinuch, Inc. v Sharf |
| 2009 NY Slip Op 00660 [59 AD3d 408] |
| February 3, 2009 |
| Appellate Division, Second Department |
| Merkos L'Inyonei Chinuch, Inc., et al.,Respondents, v Mendel Sharf et al., Defendants, and Congregation Lubavitch, Inc.,Appellant. |
—[*1] Baker & McKenzie, LLP, New York, N.Y. (David Zaslowski and Zachary L. Grayson ofcounsel), for respondent 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 Merkos L'Inyonei Chinuch, Inc. (one brief filed).
In an action, inter alia, to recover possession of real property, the defendant CongregationLubavitch, Inc., appeals (1), as limited by its brief, from so much of an order of the SupremeCourt, Kings County (Harkavy, J.), dated September 6, 2007, as denied, in part, its motion tocompel discovery, and granted, in part, the plaintiffs' motion for a protective order, (2) from anorder of the same court dated November 14, 2007, which denied its motion to strike the note ofissue, and (3) from a judgment of the same court dated December 27, 2007, which, after anonjury trial, inter alia, is in favor of the plaintiffs and against it, ejecting it from propertieslocated at 770 Eastern Parkway, Brooklyn, and 784-788 Eastern Parkway, Brooklyn.
Ordered that the order dated September 6, 2007 is affirmed insofar as appealed from, withoutcosts or disbursements; and it is further,
Ordered that the order dated November 14, 2007 is affirmed, without costs or disbursements;and it is further,
Ordered that the judgment is modified, on the law, by deleting from the third, fifth, [*2]and sixth decretal paragraphs thereof the words "which is thatcongregation presently occupying a portion of 770 and 784-788 Eastern Parkway, Brooklyn,New York, purporting to be Congregation Lubavitch, whose trustees (gabboim) included, as ofJune 13, 1996, Zalman Lipskier, Yehuda Blesofsky, Menachem Gerlitsky, and Yosef Losh;" asso modified, the judgment is affirmed, 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 real properties in Brooklyn, located at 770 Eastern Parkway and784-788 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. Both properties house the central Lubavitch Synagogue, which,historically, has been occupied by the religious congregation and managed by a group ofindividuals known as "the Gabboim," who were initially appointed by the Grand Rebbe of thecongregation and have since been elected by the congregation itself. In June 1996 the defendantCongregation Lubavitch, Inc. (hereinafter CLI), was incorporated under the Not-for-ProfitCorporation Law by the Gabboim then managing the Synagogue, who were listed on CLI'scertificate of incorporation as the corporation's "directors."
After ruling on various discovery motions and disposing of various other claims asserted bythe plaintiffs, the Supreme Court held a nonjury trial with respect to the plaintiffs' claim againstCLI to recover possession of the real property. The Supreme Court entered a judgment requiringCLI, as well as the Gabboim and the congregation, to deliver possession to the plaintiffs.
The Supreme Court providently exercised its discretion in granting, in part, the plaintiffs'motion for a protective order and denying, in part, CLI's motion to compel discovery. AlthoughCPLR 3101 (a) requires "full disclosure of all matter material and necessary in the prosecution ordefense of an action," a party does not have the right to "uncontrolled and unfettered disclosure"(Gilman & Ciocia, Inc. v Walsh, 45AD3d 531, 531 [2007]). "[T]he supervision of disclosure and the setting of reasonable termsand conditions therefor rests within the sound discretion of the trial court," which has "broadpower to regulate discovery to prevent abuse" (Gilman & Ciocia, Inc. v Walsh, 45 AD3dat 531 [internal quotation marks omitted]).
Here, the Supreme Court heard oral argument and individually addressed each of CLI's 27discovery demands, concluding that CLI's demands, many of which pertained to the corporatestructure of the plaintiff corporations, and some of which sought information about its owncorporate dealings, "were palpably improper in that they sought, inter alia, irrelevant. . . information, or were overbroad and burdensome" (Gilman & Ciocia, Inc. vWalsh, 45 AD3d at 531; see Mattocks v White Motor Corp., 258 AD2d 628, 629[1999]). The Supreme Court's provident exercise of discretion in declining to compel therequested discovery and in granting to the plaintiffs a protective order as to those requests, willnot be disturbed on appeal (see Gilman & Ciocia, Inc. v Walsh, 45 AD3d at 531).
"In order to maintain a cause of action to recover possession of real property, [a] plaintiffmust (1) be the owner of an estate in fee, for life, or for a term of years, in tangible real property,(2) with a present or immediate right to possession thereof, (3) from which, or of which, he hasbeen unlawfully ousted or disseised by the defendant or his predecessors, and of which thedefendant is in present possession" (Jannace v Nelson, L.P., 256 AD2d 385, 385-386[1998]). Here, there is no dispute [*3]that the plaintiffs are theowners in fee of the real property at issue. CLI has stipulated that it does not have any right tooccupy the premises based upon a lease or a license and the evidence was sufficient to establishCLI's occupancy of the premises to the exclusion of the plaintiffs, thereby satisfying the thirdelement of their claim to recover possession of the property as against CLI. Accordingly, theSupreme Court correctly awarded judgment in favor of the plaintiffs and against CLI.
We note, however, that the judgment must be modified to delete reference to thecongregation and the Gabboim, since neither is a party to this action. Spolzino, J.P., Ritter,Miller and Carni, JJ., concur.