Opinion
158889/2019
12-19-2019
METROPOLITAN NEW YORK SYNOD OF the EVANGELICAL LUTHERAN CHURCH IN AMERICA, Plaintiff, v. ICS FOUNDATION, INC., Integration Charter Schools, Nicotra Early College Charter School, Eltingville Lutheran Church, Defendant.
Capell Barnett Matalon & Schoenfeld LLP, New York, NY (Joseph Milano of counsel), for plaintiff. Crawford Bringslid Vander Neut, LLP, Staten Island, NY (Allyn J. Crawford and Michael J. Pinto of counsel), for defendant Eltingville Lutheran Church.
Capell Barnett Matalon & Schoenfeld LLP, New York, NY (Joseph Milano of counsel), for plaintiff.
Crawford Bringslid Vander Neut, LLP, Staten Island, NY (Allyn J. Crawford and Michael J. Pinto of counsel), for defendant Eltingville Lutheran Church.
Gerald Lebovits, J.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 32, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58 were read on this motion to CHANGE VENUE
The following e-filed documents, listed by NYSCEF document number (Motion 002) 26, 27, 28, 29, 30, 31, 33 were read on this motion for INJUNCTION
This motion arises out of a dispute between plaintiff, the Metropolitan New York Synod of the Evangelical Lutheran Church in America (Synod), and defendant Eltingville Lutheran Church (Eltingville) over church administration and control of ecclesiastical real property located in Richmond County.
In 2016, the Synod took over administration of Eltingville's affairs and control of Eltingville's real property, pursuant to authority assertedly conferred on the Synod by its constitution. Eltingville brought an action in Supreme Court, Richmond County, to challenge the Synod's assumption of control over the church. (See Eltingville Lutheran Church v. Rimbo , Index No. 150331/2016 [Sup Ct, Richmond County].) Supreme Court dismissed Eltingville's complaint (see id. , NYSCEF No. 103), and the Second Department affirmed (see Eltingville Lutheran Church v. Rimbo , 174 AD3d 856 [2d Dept 2019]. )
Eltingville then noticed an appeal to the Court of Appeals. (See Eltingville Lutheran Church v. Rimbo , Richmond County Index No. 150331/2016, NYSCEF No. 108.) The Court recently dismissed that appeal for lack of a substantial constitutional question (see Eltingville Lutheran Church v. Rimbo , 2019 NY Slip Op 86187 [Dec. 17, 2019].)
The Synod alleges that in the summer of 2019, it became aware that Eltingville had purported to lease the church property to local charter schools, defendants Integration Charter Schools, ICS Foundation, Inc., and Nicotra Early College Charter School. The Synod brought the present action in this court, seeking to have those leases declared void and for the court to order defendants to turn over all copies of the leases to the Synod. (See Compl., NYSCEF No. 2, at 12-13 [wherefore clause].)
The Synod also served restraining notices on the charter schools. Eltingville, in turn, has brought on a motion by order to show cause in the Richmond County action, seeking to vacate the restraining notices and to enjoin the Synod from otherwise seeking to enforce the Second Department's order dismissing Eltingville's action against the Synod. (See Eltingville Lutheran Church v. Rimbo , Richmond County Index No. 150331/2016, NYSCEF Nos. 110-125.) Eltingville's motion is scheduled to be argued on December 19, 2019. (See id. , NYSCEF No. 126.)
Eltingville served and filed its answer on Monday, September 30, 2019. (See NYSCEF Nos. 5, 6.) On Thursday, October 3, 2019, Eltingville served a demand to change venue from New York County to Richmond County. (See NYSCEF Nos. 8-9.) The Synod refused to consent to change of venue. (See NYSCEF No. 10.) Six days later, on October 9, 2019, Eltingville moved for a change of venue (motion sequence 001), asserting that venue in this court is improper under CPLR 507. (See NYSCEF Nos. 13-21.) The Synod cross-moved in motion sequence 001 for summary judgment.
Additionally, the defendant charter schools moved by order to show cause for an injunction barring their eviction from the premises by either the Synod or Eltingville (motion sequence 002). This court (Rodriguez, J.) signed the order to show cause, set argument on the motion for January 8, 2020, and entered a temporary restraining order barring eviction of the charter schools pending argument.
Motion Sequences 001 and 002 are consolidated here for disposition.
Discussion
On motion sequence 001, Eltingville contends in support of its request for change of venue that the judgment sought by the Synod in this action "would affect the title to, or the possession, use, or enjoyment of, real property" located in Richmond County. Therefore, Eltingville argues, venue is proper only in Richmond County. (See CPLR 507.) This court agrees.
The church building and grounds at issue here are undisputedly located in Richmond County. The Synod asks this court to declare that the agreement or agreements by which Eltingville purported to lease that building and grounds to the defendant charter schools are void ab initio, because Eltingville lacked the legal (and ecclesiastical) right to enter into those leases. (See NYSCEF No. 2, at1, 37-45, 57; see also id. at 12-13 [wherefore clause].) Adjudicating the validity of the leases between Eltingville and the charter schools will affect the possession or use and enjoyment of real property: at a minimum, it will determine whether the charter schools can remain on and use the property under the terms of those leases, or must instead negotiate with the Synod over the terms (if any) under which the Synod will permit them to remain on the premises. (See Moschera & Catalano v. Advanced Structures Corp. , 104 AD2d 306, 307 [1st Dept 1984] [holding that the relief sought in the action affected defendant's use, possession, or enjoyment of the property when plaintiff sought rescission of a lease]; accord Slutsky v. Roc-Le Triomphe Assocs. , 129 AD2d 879, 880 [3d Dept 1987] [same, in action where plaintiff sought a declaratory judgment that a lease had terminated].) And the CPLR provides that the place of trial of an action affecting the possession or use and enjoyment of real property "shall be in the county in which any part of the subject of the action is situated." ( CPLR 507 [emphasis added].) Here, that is Richmond County, not New York County.
The Synod argues that notwithstanding the language of CPLR 507, Eltingville's motion should be denied because Eltingville failed timely to demand a change of venue. The Synod is correct that under CPLR 511 (a), a demand for change of venue on the ground that the county designated by plaintiff is not proper must be served with (or before) the answer. Eltingville, undisputedly served its demand for change of venue three days after it served the answer. (See NYSCEF Nos. 6, 9 [affidavits of service].) Nonetheless, Eltingville is not barred from obtaining a change of venue to Richmond County.
If, as here, a defendant has failed to serve a timely demand for change of venue under CPLR 511 (and does not establish that a change of venue is warranted under CPLR 510 ), the court has discretion to grant the request for change of venue only "in certain limited situations." ( Pittman v. Maher , 202 AD2d 172, 175 [1st Dept 1994].) One of those situations, though, is where "judicial policy dictates that a case be heard only in a proper county" because the case will affect title to or use of real property located in that county. (Id. [citing Reichenbach v. Corn Exch. Bank Trust Co. , 249 AD 539, 541 [1st Dept 1937] ; accord Fish v. Davis , 146 AD3d 485, 486 [1st Dept 2017] [noting that CPLR 507's venue requirement is a proper basis for the exercise of discretion to grant an untimely request for change of venue].)
In considering whether to exercise its discretion to grant Eltingville's request, this court takes into account (i) the judicial policy expressed by CPLR 507 that favors laying venue in Supreme Court, Richmond County; (ii) that the Synod and Eltingville have previously litigated—and indeed, are even now litigating—their dispute over church administration and church property in Supreme Court, Richmond County; (iii) that Eltingville served its demand for change of venue in this action only three days late, and timely served its follow-up venue motion; and (iv) that the Synod has not articulated any prejudice that it suffered from Eltingville's de minimis delay in serving the demand for change of venue. In these circumstances, Eltingville's untimely request for change of venue should be granted.
Because this court has concluded that venue must be transferred to Richmond County, the charter school defendants' motion for an injunction barring an eviction (motion sequence 002), now pending before this court, must be denied. That denial, though, is without prejudice to renewal of the motion following the transfer of venue to Richmond County. Additionally, to preserve the status quo and thereby afford the charter school defendants an adequate opportunity to renew their motion for an injunction, this court directs that the temporary restraining order that now bars the eviction of the charter school defendants shall remain in place until after the completion of transfer of venue.
Accordingly, for the foregoing reasons it is hereby
ORDERED that the motion for a change of venue (motion sequence 001) is granted and venue of this action is changed from this Court to the Supreme Court, County of Richmond; and it is further
ORDERED that plaintiff's cross-motion for summary judgment (motion sequence 001) is denied without prejudice to renewal before the Supreme Court, County of Richmond; and it is further
ORDERED that the Clerk of this Court shall transfer the file in this action to the Clerk of the Supreme Court, County of Richmond, and shall mark his records to reflect such a change; and it is further
ORDERED that within 30 days of this order, counsel for movant shall serve a copy of this order with notice of entry upon the Clerk of this Court, shall pay the appropriate transfer fee, if any, and shall contact the staff of the Clerk of this Court and cooperate in effectuating the transfer; and it is further
ORDERED that the pending motion for preliminary injunction brought on by order to show cause by defendants ICS Foundation Inc., Integration Charter Schools, and Nicotra Early College Charter School (motion sequence 002) is denied without prejudice to renewal before the Supreme Court, County of Richmond; and it is further
ORDERED that the temporary restraining order entered on motion sequence 002 by this court by order dated November 1, 2019, shall remain in effect for 30 days following the completion of transfer of venue.