Opinion
2014-02-4
112 EAST 35TH STREET, LLC, Plaintiff–Respondent, v. The NEW YORK SOCIETY OF THE NEW CHURCH, Defendant–Appellant.
Fryer & Ross LLP, New York (Gerald E. Ross of counsel), for appellant. Debra J. Millman, P.C., New York (Craig F. Wilson of counsel), for respondent.
Fryer & Ross LLP, New York (Gerald E. Ross of counsel), for appellant. Debra J. Millman, P.C., New York (Craig F. Wilson of counsel), for respondent.
Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered on or about January 9, 2012, which, after a nonjury trial, dismissed without prejudice the first cause of action, which seeks a declaration with respect to the parties' “Utilities Agreement,” and the third cause of action, which seeks money damages, and, upon the second cause of action, permanently enjoined defendant from ceasing to provide utilities to the residential building purchased by plaintiff, unanimously reversed, on the law, without costs, the first and third causes of action reinstated, the permanent injunction vacated and the preliminary injunction reinstated, and the matter remanded for review of the Utilities Agreement pursuant to Religious Corporations Law § 12(9) and, if approved, interpretation of that agreement.
We hold that the parties' Utilities Agreement requires court approval, pursuant to Religious Corporations Law § 12(1), because it modifies the parties' previously approved Purchase Agreement ( see Beacon Term. Corp. v. Chemprene, Inc., 75 A.D.2d 350, 354, 429 N.Y.S.2d 715 [2d Dept.1980],lv. denied51 N.Y.2d 706, 433 N.Y.S.2d 1026, 413 N.E.2d 369 [1980]. We remand for a determination concerning retroactive judicial approval ( see Congregation Yetev Lev D'Satmar of Kiryas Joel, Inc. v. Congregation Yetev Lev D'Satmar, Inc., 9 N.Y.3d 297, 301, 849 N.Y.S.2d 192, 879 N.E.2d 731 [2007];Religious Corporations Law § 12[9] ).
In light of plaintiff's lack of other access to gas, steam, and electricity, we find that the order granting a preliminary injunction against defendant's termination of utilities to the residential building should be reinstated and remain in effect upon the same conditions set forth therein until this matter is resolved pursuant to our remand.
The Decision and Order of this Court entered herein on October 24, 2013 is hereby recalled and vacated ( seeM–6089 & M–6155, 2014 WL 392026 decided simultaneously herewith).
FRIEDMAN, J.P., ACOSTA, ANDRIAS, DeGRASSE, FREEDMAN, JJ., concur.