Opinion
Index No. 515617/22
10-11-2023
Evens Noel, Yvane Fleuran, Elcie Menard, Eline Jean-Louis, Phraner Mercier, Jean Sorel Similca, Sincere Cadet, Renold Ducrepin, Marie Alourde Ducrepin, Solange Louis, Eliana Cyprien, Flavie Esterling, Michelle Nerette, Marie Benita Gaussaint, Judith Valneus, and Lise Led an Cassy, individually and on behalf of all other members of the Eglise Baptiste du Redempteur d'Expression Francaise, similarly situated, and Pastor Glodys Gervais, Plaintiffs, v. Sontonax Gay, Jean Paul Mara, Jean Renel Saint Jour, Medius Clervil, Denis Alexandre, Evjnce Libertin, Magarette Romulus, Webber Wesh, Jean Claude Prophete, Ablamy Boucher, Elmine Carmelite, Marie Lourdes Louis, and Marie Herline, individually and as former deacons of the Board of Deacons of the Eglise Baptiste Du Redempteur d'Expression Francaise, and Eglise Baptiste Du Redempteur d'Expression Francaise (a nominal defendant), Defendants.
Unpublished Opinion
At an IAS Term, Part 83 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 360 Adams street, Brooklyn, New York, on the 11th day of October, 2023.
PRESENT: HON. INGRID JOSEPH, J.S.C.
Ingrid Joseph, Supreme Court Justice
The following e-filed papers read herein:
NYSCEF Doc Nos.
Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed
59, 63, 72, 7791. 93, 112, 120-121.127.131
Opposing Affidavits (Affirmations)
102-103, 113. 151. 152
Affidavits/ Affirmations in Reply
117.
Letters to Court
154-159
Upon the foregoing papers, plaintiffs move, by order to show cause, for an order: (1) compelling the nominal defendant Eglise Baptiste du Redempteur d'Expression Francaise (Church) to hold a special meeting of the Church membership for the election of Church trustees (Religious Corporation Law § 133), Church deacons (By-Laws § 8.3), and for a membership vote on the Deacons' request to declare vacant the office of pastor of the Church (a position allegedly held by plaintiff Pastor Glodys Gervais) (By-Laws §§ 6.2.5 66.2.6); and (2) dismissing defendants' counterclaims (motion sequence number 1).
In a second order to show cause, plaintiffs move for an order holding defendants in contempt for violations of a temporary restraining order (Campanelli, J.) dated October 7, 2022 (motion sequence number 2).
This action for declaratory judgment and an injunction arises out of a contentious dispute between rival factions of the Church regarding plaintiffs' assertions that the defendant Deacons removed Pastor Gervais without the approval of Church membership and that defendants have failed to hold elections for the positions of trustees and deacons. Plaintiffs are supporters of Pastor Gervais and are persons who desire to be nominated as trustees and deacons of the Church. Defendants are the current active deacons of the Church.
The certificate of incorporation that was filed with the Kings County Clerk on June 18, 1980, shows that the Church was incorporated as a Baptist Church pursuant to article 7 of the Religious Corporations Law (Certificate of Incorporation). The Certificate of Incorporation provided that the Church would have 9 trustees and identified the trustees that had been elected at the meeting for incorporation.
Pastor Georgeon, the founding pastor, served as pastor of the Church from at least 1985 until his death in 2015. Prior to his death, a commission of the Church revised the constitution and by-laws of the Church, and the Church membership approved these revisions on May 18, 2015. The Church's Constitution and By-Laws emphasize that it is the congregation's members who have ultimate control of the Church (Constitution Article III, §T; By-Laws § 1).
Although the versions of the By-Laws submitted by plaintiffs and defendants contain some slight differences in wording (compare NY St Cts Elec Filing [NYSCEF] Doc No. 66 with NYSCEF Doc No. 156 [translated copy of By-Laws appended to letter to court dated May 11, 2023]), the differences have no material impact on the determination of the matter here. The quotes in the decision are taken from the translation submitted by defendants (NYSCEF Doc No. 156).
Relevant to the appointment and discharge of the Pastor, the By-Laws, in section 6.2, provide that:
"6.2.1. The pastor shall be selected and appointed by the church whenever there is a Vacancy. The Pastor Search Committee shall be appointed by the church to search for a replacement. Any member has the privilege of presenting a candidate to the search committee. The duties of the committee are stipulated (in Article IV, Section C).
"6.2.2. The committee shall select one name at a time to be presented for consideration before the church. The election of the pastor shall be by secret ballot at a specially called business meeting. Proper notice shall be given to the members at least two weeks prior to the date of the meeting. Such notice shall be given from the pulpit and published in the church bulletin. An affirmative vote of 3 A of the members present and voting is necessary to make a nomination. Acceptance of the nomination shall be taken as evidence that he/she agrees to abide by the bylaws of this church and will accept the remuneration package approved by the church.
"6.2.3. An elected pastor shall serve until the end of his term. This term, (sic) This term may be shortened at his request and that of the church.
"6.2.4. The pastor may resign his office by submitting written notice to the church at least thirty (30) days prior to the effective date of resignation. Both parties may agree by mail to waive the thirty (30) day obligation, if the church desires the pastor to resign his office in less than thirty (30) days, the pastor shall be paid one month's severance pay in full.
"6.2.5. If deemed necessary, the church may declare the office of pastor vacant. Such action shall be considered at the business meeting called for the purpose. Proper notice of this intention to vacate the office of pastor shall be sent to the
membership at least two weeks prior to the date of the meeting. The notice shall be mailed to the members of the church and shall be published in the church bulletin. The meeting may be called only upon the recommendation of a majority of the Personnel Committee and the Deacons or by written request signed by less than one-fourth (1/4) of the members.
"6.2.6. A quorum of 25 percent (25%) of the total membership shall be required to declare the office of Pastor vacant. Such decision shall be by ballot of an affirmative vote of the absolute majority of the members present. Except in the case of misconduct (defined as immoral or illegal activities) by the pastor so removed from office, the church shall compensate the pastor with not less than one-twelfth (1/12) of the total annual compensation, including housing, insurance, and retirement benefits. The suspension shall be immediate and the compensation shall be returned within thirty (30) days."
With respect to the Church's deacons, the By-Laws provide that they are to be elected by the members at the annual business meeting (By-Laws §§ 1.3.2, 3,4 [f], 3.9.1.2, 3.9.1.3, 8.3.2, 8.3.3). The provision addressing the terms of service of the deacons provides for stability of leadership and for change by providing that:
"The Deacons shall serve in rotation. Each year the term of one-third of the number of Deacons shall expire and an election shall be held to fill the vacancies. In case of death or removal or inability to serve, the church may elect a Deacon to complete the term. After serving a three-year term, Deacons shall be eligible for re-election only after a minimum of one year" (By-Laws § 8.3.1).
Under the By-Laws, it is the Church's Stewardship Counsel, which is made up of "a member of the Executive Committee, the Property and Space/Maintenance Committee, the Chairperson of the Deacon Corps, the Secretary/Recorder, the Treasurer, and a lay person elected by the church" (By-Laws § 9.2.3.1), that acts as the Church's trustees with respect to the Church's property (By-Laws § 9.2.3.2). The By-Laws provide that, "By specific vote of the church authorizing each action, the members of the Board of Trustees (which is also referred to as the Stewardship Council) shall have the power to buy, sell, mortgage, lease or transfer any church property. Legal documents involving the sale, purchase, lease or other matters approved by the church shall require the signatures of the members of the Board of Trustees" (By-Laws § 9.2.3.2).
It is undisputed that the Church's membership voted to appoint Pastor Gervais, a church member who had served as a volunteer assistant pastor to Pastor Georgeon, as pastor at a February 11, 2018 meeting of the Church. On May 5, 2018, Pastor Gervais signed a contract that was entered into on behalf of the Church by the Church's Board of Deacons and its Administrative Board. The contract was for a probationary period, but it set no specific term of service. On August 16, 2020, Pastor Gervais signed a second contract with the Church that was entered into on the behalf of the Church by the Church's Board of Deacons and its Executive Board. This contract provided that it was for a term of one year and that, prior to the expiration of the year, the Church's Board of Deacons and the Board of Directors would execute a performance review to determine whether a contract extension would be granted.
In a letter dated August 2, 2021, Sonthonax Gay, who identified himself as the president of the Board of Deacons, informed Pastor Gervais that the Board of Deacons and the Board of Leaders of the Church had held a meeting on July 4, 2021, to determine the contract renewal. He indicated that at that meeting they decided not to renew the contract and that the current term of the August 2020 contract would thus expire of its own accord on August 16,2021. Since August 16, 2021, the plaintiffs have sent letters to the defendant deacons (directly or to counsel representing them) in which they assert that Pastor Gervais must still be deemed the pastor of the Church because the members of the Church did not have an opportunity to vote on the decision to end Pastor Gervais' pastorship and that the membership was entitled to have a vote on the issue pursuant to the terms of the By-Laws (see NYSCEF Doc. Nos. 68, 69, 79). The Board of Deacons, in a letter dated October 31, 2021, responded to these requests by asserting that, consistent with the requirements of the By-Laws, Pastor Gervais' relationship with the Church ended with the term on August 16, 2021, as specified in the contract.
Plaintiffs have additionally sent defendants letters requesting, pursuant to the By-Laws and the Religious Corporation Law, that elections be held at the annual corporate meeting for the positions of deacons and trustees (see NYSCEF Doc. Nos. 69, 82, 86). It is uncontested that there are 13 active deacons, and that terms of all but three of the active deacons had expired by the fall of 2021, and that the terms of these three were to expire in 2022 (see NYSCEF Doc. No. 156; By-Laws § 8.3.1). Thus, at this time, the terms of all the active deacons have expired.
Of the active deacons, one deacon was installed at the founding of the church, two were installed in 2002, three were installed in 2006, four were installed in 2018, and three were installed in 2019 (see NYSCEF Doc. No. 156).
Since plaintiffs' commencement of the instant action with the filing of a summons with notice on May 30, 2022, defendants had not held a membership vote regarding Pastor Gervais and had not held elections relating to deacons and trustees. On Sunday, September 4, 2022, the person acting as pastor of the Church announced that a meeting would be held on September 17, 2022, to address the deacons' intent to establish the Pastoral Office, and a notice was mailed to at least some members (and concededly received by at least some of the plaintiffs) stating a special meeting would be held on that date regarding "Topic: Pastoral Office" (NYSCEF Doc. Nos. 87, 96, 103). According to defendant Denis Alexandre in his affidavit in opposition (NYSCEF Doc. No. 103), 97 members attended the meeting on September 17, 2022, as evidenced by a sign-in sheet, and of those present, 84 signed a "Decree" supporting the actions of the deacons and leadership counsel (NYSCEF Doc. No. 105). The "Decree" approved at the meeting stated:
"Since the meeting of Saturday August 14th, 2021, where the pastorale office of French Speaking Baptist Church of the Redeemer was declared vacant by the approval of the members, this church for 13 months has continued its work of service to this community through servant pastors and volunteers. After countless requests by church members, numerous leadership Council meetings, uncounted Deacon Board meetings, several weeks to months designated to prayers for God to bless his church with a pastoral office led to this day, September 17th, 2022.
"The process through which to establish a pastor in the church are reviewed in section 6 of the church bylaw. The board of
deacons and the board of leaders should continue to work tirelessly to establish a pastoral office in the church."Decree of Support to the board of Deacon and leadership Council
"This day, as members of the church (French Speaking Baptiste Church of The Redeemer) we are affirming our support with the rigorous work and in agreement with the decisions of the Deacon board/leadership council.
"We, the members of the church, continue to mandate the deacon board known as follow, Clervile Medens, Angela Edme, Alexandre Denis, Webber Wesh, Sonthonax Gay, Ablamy Boucher, Jean M. Paul, Marie Herline Cineus, Camelite Elmine, Marie Lourdes Louis, Jean Claude Prophet, Jean R. StJour, Evans Lubertin, Magarette Romulus to work for the continuing function of French Speaking Baptist Church of the redeemer (Eglise Baptiste du Redempteur D'expression Francaise).
"We are very grateful for their dedication to the work of the lord" (NYSCEF Doc. No. 105).
In contrast to the assertions of defendant Alexandre, plaintiff Yvane Fleuran asserts, in an affidavit, that he attended the September 17, 2022 meeting, and that, out of an estimated total Church membership of 397, only approximately 50-55 members attended this meeting (NYSCEF Doc. No. 96).
It is in this factual context that the court addresses plaintiffs' motion for an order compelling elections. Initially, the court also notes that defendants have raised no statute of limitation or procedural objections to plaintiffs' commencement of the action, to plaintiffs' requesting an order for elections by a motion brought by an order to show cause, or to this court's power to grant the requested relief. Moreover, even if this action or the relief requested in the instant motion may only be obtained in a CPLR article 78 proceeding or some other form of a special proceeding, such a defect does not bar this court from determining the issues before it since this court is empowered to deem it brought in the proper fashion (see Esformes v Brinn, 52 A.D.3d 459, 462-463 [2d Dept 2008]; CPLR 103 [c]).
Of note, in this respect, plaintiffs assert that they have a right to request a meeting for elections based on Religious Corporations Law § 133, which provides that 10 members of a Baptist church call for a corporate meeting upon a written request. In addition, Not-For-Profit Corporation Law § 618 allows a court to consider the validity of an election in a special proceeding (see Esformes v Brinn, 52 A.D.3d 459, 463 [2d Dept 2008]). § 618 allows a court to consider the validity of an election in a special proceeding (see Esformes v Brinn, 52 A.D.3d 459, 463 [2d Dept 2008]).
This court also can address the merits of plaintiffs' claims. Contrary to defendants' contentions, this court finds that the Establishment and Free Exercise Clauses of the United States Constitution do not bar consideration of plaintiffs' contentions because the issues relating to defendants' compliance with the Church's By-Laws, the Church's Certificate of Incorporation and the Religious Corporation Law can be determined by neutral principals of law without improperly involving the court in issues of religious doctrine (see Park Slope Jewish Ctr. v Congregation B'Nai Jacob, 90 N.Y.2d 517, 521-522 [1997]; Merkos L'Inyonei Chinuch, Inc. v Sharf, 59 A.D.3d 403, 406-407 [2d Dept 2009]; Esformes, 52 A.D.3d at 461-462; cf. Matter of Congregation Yetev Lev D'Satmar, Inc. v Kahana, 9NY3d 282, 286-288 [2007]).
The court first considers plaintiffs' contentions regarding Pastor Gervais. The Religious Corporations Law does not address the selection and discharge of a pastor of a Baptist church other than providing that such determinations may not be made by the church's trustees (see Religious Corporations Law § 139; Walker Mem. Baptist Church, Inc. v Saunders, 285 NY 462, 469-473 [1941]). In the context of a Baptist church, it is the governing principles of the congregation that provide the procedures for removal of a Baptist pastor and here these principles are expressed in the Church's By-Laws (see Matter of Thompson v Bruce, 65 A.D.3d 1245, 1246 [2d Dept 2009]; Ward v Jones, 154 Misc.2d 597, 601 [Sup Ct, Queens County 1992]).
Consistent with the general practice of Baptist churches that it is the membership that controls the Church (see Sherburne Vil. Baptist Socy. v Ryder, 275 A.D. 729, 729 [3d Dept 1949]; Ward, 154 Misc.2d at 601; Evans v Criss, 39 Misc.2d 314, 317 [Sup Ct, ultimate authority in electing and discharging a pastor (By-Laws §§ 6.2.2, 6.2.5 and 6.2.6). However, By-Laws § 6.2.3 provides that, "An elected pastor shall serve until the end of his term. This term, (sic) This term may be shortened at his request and that of the church." This section seems to envision that both the Church and the pastor may reach an agreement regarding the pastor's term of service. Nothing in the provisions of the By-Laws suggests that the deacons, acting with the Board of Directors, were improper parties to negotiate and reach an agreement with Pastor Gervais regarding his term as part of his employment contract with the Church (cf. Kamchi v Weissman, 125 A.D.3d 142, 156 [2d Dept 2014]).Therefore, based on the fact that the agreed upon term of Pastor Gervais' contract expired on August 16, 2021, and By-Laws § 6.2.3 provides that a pastor's service ends at the end of his or her term, Pastor Gervais' termination occurred solely because the contract expired. Accordingly, the membership vote required to declare the office of the pastor vacant pursuant to By-Laws § 6.2.5 was not implicated (see Matter of Saffra v Rockwood Park Jewish Ctr., 239 A.D.2d 507, 507 [2d Dept 1997], Iv denied 90 N.Y.2d 805 [1997]; cf. Kamchi, 125 A.D.3d at 154) and there was no need to hold the membership vote that was conducted on September 17, 2022. In view of this, any defects with the meeting held on that date, including the claimed inadequacy of the notice of the meeting and the factual disputes regarding whether there was a quorum of the membership present for the vote, are irrelevant.
Under the By-Laws, the Board of Directors is made up of the Board of Deacons, the Executive Committee, and the heads of the other committees and is tasked with coordinating the overall operation of the Church (By-Laws § 9.2.4.1).
In contrast to the By-Laws here, the by-laws at issue in Kamchi expressly required that the congregation approve the terms of the rabbi's retention (see Kamchi, 125 A.D.3d at 156).
In reaching this conclusion, the court recognizes that this case bears some factual similarities with Kamchi (125 A.D.3d 142), a case in which the court held that the expiration of a Rabbi's contract at the end of its term did not render insufficient the plaintiffs claim that the Synagogue's board had usurped the congregation's authority to act with respect to its choice of Rabbi (id. at 154-155), Kamchi is distinguishable, however, in that, prior to the end of the term of the Rabbi's contract in Kamchi, members of the congregation had attended board meetings and requested that they be given an opportunity to vote on extending or renewing the contract (id. at 154). The court in Kamchi thus held that the Board's failure to hold such a vote before the end of the contract's term usurped the authority of the congregation (id. at 154-155), Here, in contrast, plaintiffs and other supporters of Rabbi Gervais only requested a vote after Rabbi Gervais term had already expired.
In view of this finding, the Church currently has no pastor, and it would thus appear that the Church needs to begin the process of selecting a pastor as outlined in By-Laws §§ 6.2.1 and 6.2.2. This process includes the election of a Pastor Search committee (By-Laws §§ 6.2.1 and 9.1 [c]) (Although By-Laws § 6.2.1 refers to "Article IV, Section C," there is no Article clearly identified as such. By-Laws § 9.1 [c] deals with the election of special committees and is the section that the drafters probably intended to identify by the reference to "Article IV, Section C").
With respect to the failure to hold elections for deacons, as noted above, the By-Laws specifically limit the deacons to staggered three-year terms and require that, after a deacon's term expires, he or she must wait a year before seeking reelection (By-Laws § 8.3.1). Defendants concede that the terms of all the active Deacons have expired. Defendants nevertheless assert that the deacons have been continuing to serve with the congregation's consent (NYSCEF Doc. No. 156), an assertion undoubtedly based on the "Decree" supporting the actions of the deacons that was approved at the September 17, 2022 meeting discussed above. This "Decree," however, does not eliminate the need for elections of deacons under the By-Laws because the September 17, 2022 meeting was noticed as a meeting regarding the "Pastoral Office" and the "Decree" itself did not alter or amend the By-Laws requirements with respect to the deacons' term of office or their election (see Matter of Stile v Antico, 272 A.D.2d 403, 404 [2d Dept 2000]). Although the Church appears to have ignored these election and term of office requirements of the By-Laws with respect to the deacons, defendants concede that the current By-Laws were adopted in 2015. Under these circumstances, the "nonusage" of the By-Laws in this respect has not occurred for a sufficient length of time to constitute an abrogation of the By-Laws election and term of office requirements for the deacons (see Laffey v Laffey, 174 A.D.3d 586, 589 [2d Dept 2019]; cf. Matter of Venigalla v Nori, 11 N.Y.3d 55, 62 [2008] [By-Laws that were ignored by members of a religious society for nearly 30 years deemed abrogated]). Plaintiffs have thus demonstrated their entitlement to an order directing that a meeting be held for the election of deacons.
The court, however, denies plaintiffs' motion to the extent that they request to hold elections with respect to all the active deacons. The fact that the By-Laws § 8.3.1 provides for staggered terms for the deacons demonstrates the Church's preference for some continuity of leadership. Further, if all of the deacon positions were subject to the election at one time, none of the current deacons could run for reelection in view of requirement of By-Laws § 8.3.1 that a deacon must wait one year before they are eligible to run for reelection. Thus, this court declines to be an agent of an overhaul of the entirety of the Church's religious leadership at one time. In reaching this decision, the court notes that the fact that the deacons who are not up for election will continue to serve beyond their terms does not mean their acts will be invalid since courts generally find that corporate office holders retain their positions until their successors are elected and qualified (see Trustees of Gallilee Pentecostal Church, Inc. v Williams, 65 A.D.3d 1221, 1223-1224 [2d Dept 2009]; Matter of Rye Psychiatric Hosp. Or., 101 A.D.2d 309, 317 [2d Dept 1984], reversed on other grounds 66 N.Y.2d 333 [1985]; Religious Corporation Law § 134; N-PCL 703 [c]; Business Corporation Law § 703 [b]).
Although the statutory provisions cited herein only apply to Church trustees, the rationale for the rule, which has been adopted because of the legal necessity that corporate officers be able to act until there are successors available to take their place, applies equally to deacons, whose existence arises out of the Church's By-Laws and church tradition. Further, there is no express language in the By-Laws suggesting that such a rule should not apply here, and, indeed, the Church, in practice, has long allowed many of the deacons to serve and act well past the end of their three-year terms. This rule is distinguishable from the rule for officers not validly elected in the first instance in that such officers acquire no legal title to office and their performance of their offices is thus a nullity (see Matter of Venigalla v Alagappan, 307 A.D.2d 1041, 1042-1043 [2d Dept 2003], reversed on other grounds sub. nom. Matter of Venigalla v Nori, 11 N.Y.3d 55, 61-63 [2008]). Importantly in this respect, plaintiffs make no assertion that any of the current active deacons were not validly elected in the first instance.
The court also denies plaintiffs' motion to the extent that they request that the court deem plaintiffs' preferred candidates be nominated for the election of deacons since By- Laws §§ 8.3.2-8.3.5 outline a process for the nomination of deacons that would be short-circuited if this court deemed the persons identified by plaintiffs as nominated for such positions.
Any direction regarding an election of the deacons is complicated by the requirement of By-Laws § 8.2.1 that there be at least 3 deacons and 1 deacon added for each 15 families of the Church. Since, at this point, plaintiffs and defendants are not in agreement regarding (or simply do not know) the number of "families" in the Church, the court cannot make a specific direction with respect to the number of deacon positions to be voted on. Accordingly, the court directs the parties to meet with Lewis Tippett, Esq., their agreed upon neutral mediator, to determine the Church membership who are eligible to vote at the election, the number of families in the Church, and to calculate the number of deacons required by the By-Laws § 8.2.1, The court directs that the election be held for the positions of one-third of the total number of deacons required by section 8.2.1. The seats to be voted on at the election directed by this order are: (1) first, any new deacon positions (if it is found that additional deacon positions are required based on the number of families); (2) followed by the positions of the longest serving currently active deacons; and (3) if fewer deacons are mandated by section 8.2.1, the positions filled by the longest serving active deacons will be vacated and no vote will be held to replace those seats and the positions of next longest serving deacons shall be up for election. The parties, with the aid of the neutral mediator, shall then select a date for the election meeting that allows sufficient time for the nomination process outlined in By-Laws §§ 8.3.2-8.3.5 and for the notice to the members required by By-Laws §§ 3.5, 8.3.2 and 8.3.5.
By-Laws § 8.2.1 provides that, "To ensure an equitable distribution of this ministry, there shall be one deacon for the service of each 15 families of the church starting with an initial number of 3. In excess of 15 families, another deacon shall be added."
With respect to trustees, plaintiffs contend that the Church has failed to hold elections for trustees as required by the Religious Corporations Law. Defendants essentially concede that the Church has not been holding elections for trustees, but assert that, under the By-Laws, the role of the trustees is assumed by the Church's Stewardship Counsel (By-Laws §§ 9.2.3.1 and 9.2.3.2). Plaintiffs contend, however, that Church Stewardship council created by the By-Laws conflicts with the requirements of the Religious Corporations Law.
Plaintiffs are correct the Not-For-Profit Corporation Law, which regulates Church governance in the absence of a specific applicable provision of the Religious Corporation Law or a direct conflict with the Religious Corporation Law (Religious Corporation Law § 2-b; Matter of Venigalla v Alagappan, 307 A.D.2d 1041, 1042-1043 [2d Dept 2003], reversed on other grounds sub. nom. Matter of Venigalla v Nori, 11 N.Y.3d 55, 61-63 [2008]), provides that by-laws may not conflict with the laws of New York or the certificate of incorporation (see N-PCL 602 [f]; Sealey v American Socy. of Hypertension, Inc., 26 A.D.3d 254, 255 [1st Dept 2006], affirming 10 Misc.3d 572, 574-575 [Sup Ct, New York County 2005]; see also Matter of Davids v Sillcox, 297 NY 355, 360 [1948]). Moreover, in examining the provisions of the Religious Corporation Law and the Church's Certificate of Incorporation, this court finds that By-Laws' requirements for the make-up of the Stewardship Council conflict with the election and trustee provisions of the Religious Corporations Law and the Certificate of Incorporation.
Clearly, however, there is no restriction on the Church calling its trustees a Stewardship Council and requiring that certain of their decisions regarding church property be submitted to the membership for approval (Religious Corporations Law § 139).
In this respect, the Certificate of Incorporation for the Church provides that there shall be nine trustees. The Certificate of Incorporation also identifies the persons elected as trustees at the meeting for incorporation and provides that three of them would hold office until the first annual election of trustees, that three of them would hold office until the second annual election of trustees and that three of them would hold office until the third-annual election.
The Religious Corporation Law mandates that the trustees must be elected by the church membership and the Religious Corporations Law provisions addressing trustees contain no restrictions on who may be a trustee (Religious Corporations Law §§ 131, 133, 134 and 136). Although a church may change the number of its trustees at an annual meeting (Religious Corporations Law § 136), and may adopt by-laws to, among other things, regulate the trustees' administration of a Baptist church's temporal affairs (Religious Corporations Law §§ 5, 139), nothing in these provisions suggests that a church, through its by-laws, may change its means of selecting trustees or impose restrictions on who may be elected as a trustee (Religious Corporations Law §§ 136 and 139).
By providing that the Stewardship Council be made up of a member of "the Executive Committee, the Property and Space/Maintenance Committee, the Chairperson of the Deacon Corps, the Secretary/Recorder, the Treasurer and a lay person elected by the church" (By-Laws § 9.2.3.1), the By-Laws (except with regard to the lay person) conflict with the Religious Corporations Law's requirement that the trustees be elected by the membership (Ward, 154 Misc.2d at 602; Religious Corporations Law § 134). The fact that the By-Laws require that the various positions making up the Stewardship Council be elected to those other positions does not equate with those persons being elected as trustees as required by the Religious Corporations Law. Plaintiffs are thus entitled to an order directing an election to be held for the positions of trustees and three of the trustees shall be elected for one year, three shall be elected for two years and three shall be elected for three years (see Religious Corporations law §§131 and 136). The parties, with the aid of the neutral mediator, shall then select a date for the election meeting that allows for sufficient time to provide notice to the members as is required by Religious Corporations Law § 133. That branch of plaintiffs' motion requesting that the court direct that certain of the plaintiffs be deemed nominated is denied, since plaintiffs have not proffered any legal basis for such a direction from the court.
Plaintiffs are entitled to dismissal of defendants' counterclaims (which essentially seek damages from plaintiffs based solely on plaintiffs' commencement of the instant action) because the counterclaims fail to state a cause of action (see Amex Dev., LLC v Aljohn Croup, Inc., 134 A.D.3d 865, 867 [2d Dept 2015]; Schwartz v Sayah, 72 A.D.3d 790, 792 [2d Dept 2010]; see also Curiano v Suozzi, 63 N.Y.2d 113, 116-119 [1984]; Golia v Vieira, 162 A.D.3d 865, 869 [2d Dept 2018]).
Plaintiffs' motion to hold defendants in contempt is premised on the temporary restraining order contained in the signed order to show cause dated October 7, 2022 (Campanelli, J.) that provided:
"Pending the hearing of this motion, Defendants and their agents, attorneys, officers, servants, assigns, and/or anyone else acting on their behalf, are hereby temporarily restrained from unilaterally adding new members to the Church outside the procedures set forth in the By-laws, purporting to terminate any Church members outside the procedures set forth in the By-laws, using the Church's money to pay their legal fees, making harassing phone calls to Plaintiffs and other Church members, or excluding any Plaintiffs or Church members from church services."
In support of the motion for contempt, plaintiffs have submitted an affidavit from plaintiff Yvane Fleuran, who asserts that on November 6,2023, defendant Denis Alexandre announced that four individuals were new members of the church. While Fleuran's assertion regarding the announcement may have been based on personal knowledge, Fleuran's assertions that these persons became members without following the provisions of the By-Laws addressing how persons become members of the Church are wholly based on information and belief, the source of which is not identified. In addition, the Fleuran's assertions that defendants were responsible for harassing telephone calls made to supporters of Pastor Gervais are likewise wholly based on information and belief.
"To support a finding of civil contempt, first, there must be a lawful order of the court in effect clearly expressing an unequivocal mandate. Second, it must appear with reasonable certainty that the order has been disobeyed. Third, the party to be held in contempt must have had knowledge of the court's order. Fourth, the violation of the court's order must be shown to impede, impair, or prejudice the rights of another party" (Matter of Slade v Stanford, 212 A.D.3d 636, 637 [2d Dept 2023]; see El-Dehdan v El-Dehdan, 26 N.Y.3d 19, 29 [2015]; Judiciary Law § 753 [A] [3]). "A motion to punish a party for civil contempt is addressed to the sound discretion of the court, and the movant bears the burden of proving the contempt by clear and convincing evidence" (Matter of Slade, 213 A.D.3d at 637 [internal quotation marks omitted]; see El-Dehdan, 26 N.Y.3d at 29).
This court finds that plaintiffs have failed to demonstrate their burden of proving contempt by clear and convincing evidence. In this respect, plaintiffs' evidence that defendants violated the court's order by adding new members to the church outside the procedures contained in the By-Laws and plaintiffs' evidence that defendants violated the order by harassing supporters of Pastor Gervais are based entirely on information and belief. Such proof fails to demonstrate that defendants violated the October 12, 2022 order (see Heights Democratic Club, Inc. v Brewer, 272 A.D. 1008, 1008 [1st Dept 1947]; Brodcom W. Dev. Co. LLC v Gordon, 2022 WL 17404664[U] [Sup Ct, New York County 2022]; see also Jaffe v Jaffe, 44 A.D.3d 825, 826 [2d Dept 2007]) and this court thus denies plaintiffs' motion to hold defendants in contempt without a hearing (see Del Vecchio v Del Vecchio, __A.D.3d__, 2023 NY Slip Op 04189, *5 [2d Dept 2023]; Jaffe, 44 A.D.3d at 826).
The court notes that the issues with respect to who is a Church member for purposes of the elections ordered herein can be addressed before the neutral mediator selected by the parties.
Accordingly, it is hereby
ORDERED that Plaintiffs' motion to hold defendants in contempt (motion sequence number 2) is denied; and it is further
ORDERED that Plaintiffs' motion for an order compelling a special meeting for elections regarding the Church's pastor, Church deacons and Church Trustees (motion sequence number 1) is granted; and it is
ORDERED that an election be held for the positions of one-third of the total number of deacons required by section 8.2.1, and that the seats to be voted on at the election directed by this order are any new deacon positions (if it is found that additional deacon positions are required based on the number of families), followed by the positions of the longest serving currently active deacons, and, if fewer deacons are mandated by section 8.2.1 than the number of current active deacons, the positions filled by the longest serving active deacons will be vacated and no vote will be held to replace those seats and the positions of next longest serving deacons shall be up for election; and it is further
ORDERED that the parties shall meet with Lewis Tippett, Esq., their agreed upon neutral mediator, to determine the Church members eligible to vote at the election of deacons, to determine the number families in- the Church, to calculate the number of deacons required by the By-Laws § 8.2,1, and to select a date for the election meeting that allows sufficient time for the nomination process outlined in By-Laws §§ 8,3.2-8.3.5 and for the notice to the members required by By-Laws §§ 3.5, 8.3.2 and 8.3.5; and it is further
ORDERED that an election be held for the positions of nine trustees at which three of the trustees shall be elected for one year, three shall be elected for two years and three shall be elected for three years; and it is further