| Gosine v Sahabir |
| 2012 NY Slip Op 00751 [91 AD3d 910] |
| Jnury 31, 2012 |
| Appellate Division, Second Department |
| Vena Gosine et al., Respondents, v Mohan Sahabir et al.,Appellants. |
—[*1] Pliskin Rubano & Baum, Flushing, N.Y. (Joseph D. Vitulli of counsel), forrespondents.
In an action, inter alia, for declaratory and injunctive relief, the defendants appeal (1), aslimited by their brief, from so much of an order of the Supreme Court, Queens County (Hart, J.),dated September 24, 2010, as, sua sponte, appointed a receiver to immediately take control of thesubject religious corporation, and to operate, control, and oversee all of its business affairs untilan election of a new board of trustees, (2), as limited by their brief, from so much of an order ofthe same court dated January 31, 2011, as granted the plaintiffs' motion, among other things, toconfirm the results of a purported election, and (3) from stated portions of an order of the samecourt dated March 11, 2011, which, inter alia, denied, as academic, their motion to disqualify theplaintiffs' counsel, and denied, as academic, their cross motion pursuant to 22 NYCRR 130-1.1to impose sanctions on the plaintiffs and their attorney.
Ordered that on the Court's own motion, the notice of appeal from so much of the order datedSeptember 24, 2010, as, sua sponte, appointed a receiver to immediately take control of thesubject religious corporation, and to operate, control, and oversee all of its business affairs untilan election of a new board of trustees, is deemed an application for leave to appeal from thatportion of the order, and leave to appeal is granted (see CPLR 5701 [c]); and it is further,
Ordered that the order dated September 24, 2010, is reversed insofar as appealed from, on thefacts and in the exercise of discretion; and it is further,
Ordered that the order dated January 31, 2011, is reversed insofar as appealed from, on thelaw, and the plaintiffs' motion, inter alia, to confirm the results of the purported election isdenied; and it is further,
Ordered that the order dated March 11, 2011, is reversed insofar as appealed from, on thelaw, and the matter is remitted to the Supreme Court, Queens County, for further proceedings inaccordance herewith before a different Justice; and it is further,
Ordered that one bill of costs is awarded to the defendants.[*2]
The Supreme Court improvidently exercised its discretionin, sua sponte, appointing a receiver to operate the business affairs of Sanatan Dharma MahaSabha of the West Indies, Inc. (hereinafter SDMS), until an upcoming election of the board oftrustees, since no party asked for that relief, and there was no evidence that SDMS's assets weresusceptible to waste or that such a drastic remedy was warranted (see Quick v Quick, 69 AD3d 828[2010]; Ugiri Progressive Community,Inc. v Ukwuozo, 57 AD3d 656 [2008]; Vardaris Tech, Inc. v Paleros Inc., 49 AD3d 631, 632 [2008]; Natoli v Milazzo, 35 AD3d 823[2006]; Rotary Watches [USA] v Greene, 266 AD2d 527 [1999]; Schachner vSikowitz, 94 AD2d 709 [1983]).
The Supreme Court erred in granting the plaintiffs' motion, inter alia, to confirm the resultsof the election purportedly conducted on December 3, 2010. The record establishes that thereceiver adjourned the meeting prior to opening the polls. While the minutes of the meetingindicate that the plaintiff Vena Gosine collected ballots after the meeting was adjourned, she wasnot a presiding officer authorized to "receive the votes, judge the qualifications of the voters, anddeclare the results of the votes cast" under SDMS's constitution. Accordingly, the plaintiffs'motion, among other things, to confirm the results of the purported election should have beendenied.
Since the Supreme Court considered neither the defendants' motion to disqualify theplaintiffs' counsel, nor their cross motion pursuant to 22 NYCRR 130-1.1 to impose sanctions onthe plaintiffs and their attorney, on the merits, we must remit the matter to the Supreme Court,Queens County, for determination of the motion and cross motion (see Hunter Sports Shooting Grounds, Inc. vFoley, 73 AD3d 702 [2010]). Under the circumstances of this case, we deem itappropriate to remit the matter to the Supreme Court, Queens County, for further proceedingsbefore a different Justice.
The respondents' remaining contentions are without merit. Angiolillo, J.P., Florio, Chambersand Hall, JJ., concur.