Opinion
10-5848.
September 27, 2011.
TARSHIS, CATANIA, LIBERTH, MAHON MILLIGRAM, PLCC, Newburgh, New York, By: Richard M. Mahon, II, Esq.
KRAVET VOGEL, LLP, New York, New York, Attorneys for the true Congregation Yetev Lev D'Satmar, Inc., OSTRER HOOVLER, P.C., Attorney for Petitioner, Chester, New York, By: Benjamin Ostrer, Esq.
THE LAW OFFICE OF B. KOGAN PLLC, Attorneys for Congregation Machneh Rav Tov, Brooklyn, New York, By: Marc Illish, Esq.
ERIC T. SCHNEIDERMAN, Attorney General of the State of New York, Poughkeepsie, New York, By: G. Nicholas Garin, Esq.
The movant, alleging they are the valid or bona fide representatives for the named Petitioner, Congregation Yetev Lev D'Satmar, Inc. (hereinafter "CYL"), have sought by Order to Show Cause, an order of this Court vacating this Court's prior order, dated December 2, 2010 orderwhich approved, nunc pro tunc, the transfer of eight parcels of property located in Ulster County by another faction [emphasis added] of CYL and directing the County Clerk of Ulster County to cancel of record the deeds that were filed in 2006 and 2010 with respect to the subject properties, and directing the County Clerk of Ulster County to cancel of record the deeds that were filed in 2001 with respect to the subject properties. The movants also seek leave to intervene in this special proceeding and serve an answer to the petition. The individuals who have alleged to be the duly authorized representatives of the named petitioner, CYL and the grantee, Congregation Machneh Rav Tov (hereinafter "Rav Tov"), oppose the motion. The Attorney General's Office responded to the motion and is not opposed to this Court vacating its prior nunc pro tunc real property transfer order.
Religious Corporation Law § 12(1) requires a religious corporation to obtain leave of the court pursuant to Not-for-Profit Corporation Law (hereinafter "N-PLC") § 511 before selling any real property. The statutory notice provision of N-PCL § 511 (b) provides that upon filing a petition with the court, the Attorney General be provided a minimum of fifteen (15) days before a hearing on the application. Nonetheless, the more usual practice is for the petitions to be submitted to the Attorney General for review in advance of submitting them to the court. If after completing the review, the Attorney General has no objection to the transaction, the Attorney General provides written confirmation, usually by a means of a "no objection" endorsement on the proposed order, and will waive the statutory notice if the review was conducted prior to the submission of the petition to the court.
In this matter, this Court approved, by order dated December 2, 2010, the transfer of eight parcels of property located in Ulster County, nunc pro tunc, from a religious organization purporting to be Congregation Yetev Lev D'Satmar, Inc. to Congregation Machneh Rav Tov as of the dates of prior conveyance, as set forth on unrecorded deeds listed in the petition and proposed order. The application was brought on a verified petition dated November 2, 2010 along with the affirmations of; Alex Feerst, Esq., dated November 2, 2010; Helen Laufer, dated May 19, 2010; Bessie Rosenberg, dated June 19, 2010; Serena Katz, dated May 19, 2010; and Wilmos Friedman, dated May 11, 2010. Upon review of the submissions at the time and based upon the Attorney General's "no objection" endorsement as outlined above, this Court found that the submissions met the procedural requirements in N-PCL § 511 (a)(1)-(9) and signed the order transferring the aforesaid eight parcels of property to Rav Tov.
From the submissions in the current motion before the court, the affirmation of Berl Friedman alleges that he is the duly elected President of the true Congregation Yetev Lev D'Satmar, Inc. ("Friedman Faction") and the petitioner in the original application represented another faction of the Congregation Yetev Lev D'Satmar, Inc., acting without authority to act for the true Congregation Yetev Lev D'Satmar, Inc. Mr. Friedman also asserts that there is a present and ongoing dispute that has existed since 2001 among certain members of the Congregation Machneh Rav Tov that is widely known and litigated by the New York State Courts, including the New York Court of Appeals. Mr. Friedman provided case law that establishes that the courts of this State have ruled that the issue as to which group controls Congregation Yetev Lev D'Satmar, Inc. presents a nonjusticiable religious controversy, which cannot be decided by application of neutral principles of law ( see, Congregation Yetev Lev D'Satmar, Inc.v Kahana, 9 NY3d 282; Friedman v CYL Cemetery, Inc. , 80 AD3d 556 [2nd Dept 2011]; Frankel v Congregation Yetev Lev D'Satmar , 69 AD3d 788 [2nd Dept 2010]).
As further background to this motion, Mr. Friedman states that in 2001, a group led by Jacob Kahan ("Kahan Faction") disputed Mr. Friedman's election as President of the true Congregation Yetev Lev D'Satmar, Inc. Nonetheless, Mr. Friedman asserts that the original petitioner in this matter, acted through persons representing the Kahan Faction when the petition was presented on November 17, 2010. Although petitioner's representatives alleged to be authorized to seek the court approval of the transfer of the subject eight parcels of property, Mr. Friedman alleges that said petitioner's representatives were not authorized to seek this Court's approval and that this information was never disclosed to the Court.
Moreover, Assistant Attorney General Garin affirms that he reviewed the petition and exhibits submitted in support of this Court's prior order and had more than one communication with the attorney representing the petitioner in the application. Mr. Garin states that neither the petition, the exhibits submitted therewith, nor the attorney representing the petitioner, alerted him to the fact that a crucial element of the requirements for approval, the approval of the board of directors of the Congregation Yetev Lev D'Satmar, Inc., was in dispute. Furthermore, Mr. Garin states that the petitioner did not notify him that the subject eight parcels of property were on a list of disputed properties provided by the two factions of the Congregation Yetev Lev D'Satmar, Inc. to the Attorney General's New York City office. Mr. Garin further states that had this information been known to him he would have insisted that the Kahan Faction give notice to the Friedman Faction pursuant to N-PCL § 511 (b), and advised this Court that the property was the subject of an internal governance dispute that had been declared a nonjusticiable religious controversy by the Court of Appeals.
The petitioner, and the transferee, Congregation Machneh Rav Tov, do not dispute the internal conflict in the Congregation Yetev Lev D'Satmar, Inc. However, they assert that Mr. Friedman has no authority to bring this application to vacate the Court's prior order. It is also asserted that Mr. Friedman is seeking to embroil this Court and the Attorney General into an intramural squabble within the Satmar community. The Court finds this argument to be without merit.
The initial application by the petitioner is the quintessence of non-disclosure, bordering on a fraudulent application before this Court. Based on what is an obvious schism in this Congregation that has commanded the attention of no less that New York State Court of Appeals (s ee Congregation Yetev Lev D'Satmar, Inc.v Kahana, 9 NY3d 282), the petitioner literally chose to ignore the serious conflict within the Congregation and assumed authority to act on behalf of all [emphasis added] members, without any legally binding authority. The Court acted upon the initial application without having essential facts disclosed to it or the Attorney General' Office by the petitioner. Furthermore, the transferee, Congregation Machneh Rav Tov, knowingly participated in the application with the full knowledge of the essential facts being withheld. As such, this Court shall vacate its prior order and dismiss the petitioner's original application outright, without prejudice to submission of the same by duly authorized representatives of the petitioner's congregation, if and when such event occurs pursuant to the remittal by the Court of Appeals to all the members of said congregation. The remaining arguments have been considered and found to be without merit or moot.
Accordingly, it is hereby
ORDERED that this Court's December 2, 2010 order authorizing transfer of real property pursuant to Not For Profit Corporation Law § 202 et seq is vacated; and it is further
ORDERED that the County Clerk of Ulster County cancel of record the deeds that were filed pursuant to this Court's December 2, 2010 order by Quitclaim Deeds dated March 16, 2001, recorded on April 9, 2001that transfers without consideration of title from Congregation Yetev Lev D'Satmar, Inc. to Congregation Machneh Rav Tov and Congregation Yetev Lev D'Satmar Inc. and the subsequent 2006 Quitclaim Deeds dated August 17, 2006, recorded in August 24, 2006 that transfers without consideration from Congregation Machneh Rav Tov and Congregation Yetev Lev D'Satmar Inc. to Congregation Machneh Rav Tov of:
a. The property known as 45 Sportman Road, Town of Wawarsing, County of Ulster, Section 75.3 Block 1 Lots 34, 35 part of lot 36, which parcel was transferred from Isadore Osdoby and Julia Osdoby to Congregation Yetev Lev D'Satmar Inc. by deed dated May 26, 1960, and recorded on June 9, 1960 in Liber 1093, page 408, that approved and authorized nunc pro tunc to March 16, 2001, and approved and authorized nunc pro tunc to August 17, 2006; and hereby divesting title from Congregation Machneh Rav Tov;
b. The property known as 45 Sportsman Road, Town of Wawarsing, County of Ulster, Section 75.3 Block 1 Lots 34, 35 part of lot 36, which parcel was transferred from Isadore Hoffman to Congregation Yetev Lev D'Satmar Inc. by deed dated June 20, 1956, and recorded on June 25, 1956 in Liber 969, page 451,that approved and authorized nunc pro tunc to March 16, 2001, and approved and authorized nunc pro tunc to August 17, 2006; and, hereby divesting title from Congregation Machneh Rav Tov;
c. The property known as 45 Sportman Road, Town of Wawarsing, County of Ulster, Section 75.3 Block 1 Lots 34, 35 part of lot 36, which parcel was transferred from Isadore Osdoby to Congregation Yetev Lev D'Satmar Inc. by deed dated September 23, 1985, and recorded on October 30, 1985 in Liber 1551, page 68, that approved and authorized nunc pro tunc to March 16, 2001, and approved and authorized nunc pro tunc to August 17, 2006; and, hereby divesting title from Congregation Machneh Rav Tov;
d. The parcel of land located in the Town of Wawarsing, County of Ulster, without a street address assigned which parcel was transferred from Lillian Kornblau to Congregation Yetev Lev D'Satmar Inc. by deed dated June 3, 1971, and recorded on June 11, 1971 in Liber 1260, page 178, that approved and authorized nunc pro tunc to March 16, 2001, and approved and authorized nunc pro tunc to August 17, 2006; and, hereby divesting title from Congregation Machneh Rav Tov;
e. The property known as 13 Martinfeld Road, Town of Wawarsing, County of Ulster, Section 81.2 Block 1 Lot 1, which parcel was transferred from Rose Wasserman to Congregation Yetev Lev D'Satmar Inc. by deed dated June 4, 1962, and recorded on June 8, 1962 in Liber 1123, page 1163, that approved and authorized nunc pro tunc to March 16, 2001, and approved and authorized nunc pro tunc to August 17, 2006; and, hereby divesting title from Congregation Machneh Rav Tov;
f. The property known as 1152 Ulster Heights Road, Town of Wawarsing, County of Ulster, Section 74.3 Block 1 Lot 3.1, which parcel was transferred from Benjamin Tseng and Margaret Tseng to Congregation Yetev Lev D'Satmar Inc. by deed dated June 8, 1984, and recorded on June 13, 1984 in Liber 1506, page 36, that approved and authorized nunc pro tunc to March 16, 2001, and approved and authorized nunc pro tunc to August 17, 2006; and, hereby divesting title from Congregation Machneh Rav Tov;
g. The property known as Loer Cherry Town Road, Town of Rochester, county of Ulster, Section 67 Block 2 Lot 42.1, which parcel was transferred from John B. Wilkis, Referee to Congregation Yetev Lev D'Satmar Inc. by deed dated May 18, 1961, and recorded on May 26, 1961 in Liber 1107, page 377,that approved and authorized nunc pro tunc to March 16, 2001, and approved and authorized nunc pro tunc to August 17, 2006; and, hereby divesting title from Congregation Machneh Rav Tov;
ORDERED that the County Clerk of Ulster County cancel of record the deed pursuant to this Court's December 2, 2010 order that transferred without consideration, the real property located at 388 Cherry Town Road, Town of Rochester, County of Ulster, Section 67 Block 2 Lot 43.13 which parcel was transferred from Alex Tessler to Congregation Yetev Lev D'Satmar Inc. by deed dated September 19, 1978, and recorded on January 15, 1979 in Liber 1404, page 662 to Congregation Machneh Rav Tov and, hereby divesting title from Congregation Machneh Rav Tov.
This shall constitute the decision of the Court. The original decision and all other papers are being delivered to the Supreme Court Clerk for transmission to the Ulster County Clerk for filing. The signing of this decision shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of that rule regarding notice of entry.
SO ORDERED!
Papers considered: Order to Show Cause dated June 27, 2011 with attached exhibits; affirmation of Richard M. Mahon, Esq. dated June 24, 2011; affirmation of Berl Friedman dated June 23, 2011; affirmation in opposition of Marc Illish, Esq. dated July 26, 2011 with attached exhibits; affirmation of G. Nicholas Garin, Esq. dated July 5, 2011; affirmation in opposition of Benjamin Ostrer, Esq. dated August 5, 2011 with attached exhibits; reply affirmation of Richard M. Mahon II, Esq. dated August 11, 2011 with attached exhibit; affirmation of Jeffrey Kaplan, Esq. dated August 18, 2011; affirmation in further opposition of David Rosenberg dated August 18, 2011; supplemental affirmation of Richard M. Mahon II, Esq. dated August 23, 2011.