Passionist Communications, Inc. v Arnold

[*1] Passionist Communications, Inc. v Arnold 2009 NY Slip Op 51014(U) [23 Misc 3d 1130(A)] Decided on February 23, 2009 Supreme Court, Westchester County Scheinkman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 23, 2009
Supreme Court, Westchester County

Passionist Communications, Inc. and ST. PAUL'S BENEVOLENT EDUCATIONAL AND MISSIONARY INSTITUTE, INC., Plaintiffs,

against

Kathleen Arnold, EDWARD LYONS, ELLEN GUNCHEON, RICHARD LANDERS, THE JAYEFF REVOCABLE TRUST, THE ESTATE OF LEO JOSEPH GORMAN, and JOHN/JANE DOES and/or ABC COMPANIES ONE (1) THROUGH TEN (10), Defendants.



14339/07



APPEARANCES:

LOWENSTEIN SANDLER PC

Attorneys for Plaintiffs

By: Karim G. Kaspar, Esq. (Pro Hac Vice)

Cindy Tzvi Sonenblick, Esq.

1251 Avenue of the Americas — 18th Floor

New York, New York 10020

LAW OFFICES OF FRANK N. PELUSO, P.C.

Attorneys for Defendants

By: Timothy C. Quinn, Jr., Esq.

210 Wolf's Lane

Pelham, New York 10803

Alan D. Scheinkman, J.

In this action, Plaintiffs Passionist Communications Inc. and St. Paul's Benevolent Educational and Missionary Institute, Inc. seek to impose a constructive trust with respect to funds that were maintained by the late Father Leo Joseph Gorman, who was a member of the Passionist, St. Paul of the Cross Province. The Complaint contains three causes of action: a First Cause of Action for a constructive trust; a Second Cause of Action for an accounting; and a Third Cause of Action for unjust enrichment. The defendants include Kathleen Arnold, who is a niece of Father Gorman, the executrix of his estate and a co-trustee of a trust established by Father Gorman; [*2]Edward Lyons who is a co-trustee of the trust; Ellen Guncheon who is a niece of Father Gorman, and Richard Landers, a nephew of Father Gorman's. Defendants have denied the material allegations of the complaint and have set up various affirmative defenses, including an affirmative defense of statute of limitations and, most pertinent for present purposes, a defense that the Court lacks subject matter jurisdiction. The case is now before the Court for a jury trial.

At the final pre-trial conference, counsel for Defendants submitted a document labeled a motion in limine. However, no notice of motion was attached, there is no supporting affidavit or affirmation, and no motion fee was paid. The document is more in the nature of a memorandum of law and is unsigned. Nevertheless, because the motion raises issues that are perceived as impacting jury selection and opening statements, the Court offered Plaintiffs an opportunity to submit a response and will address the merits of the application.

The first contention is that the Court should preclude Plaintiffs from offering evidence on Canon Law and on Father Gorman's vow of poverty. Defendants assert that the action involves ecclesiastical questions which should not be answered by a civil court. Defendants identify three ecclesiastical questions: (a) whether Father Gorman took a vow of poverty as a condition of membership in a religious order; (b) whether he violated that vow; and (c) how a violation of the vow, if such there be, affects the beneficiaries of his estate, if it affects them at all. Defendants urge that the resolution of the dispute, and the particular questions identified by them, would require the Court to engage in an impermissible inquiry into religious doctrine and require a determination as to whether Father Gorman violated Canon Law and what impact such a violation would have on the disposition of his property.

The Court has carefully reviewed the authorities cited by both Plaintiffs and Defendants. In the main, the cases fall into several categories: (a) disputes between conflicting factions over ownership, control or possession of property (see, e.g., Episcopal Diocese of Rochester v Harnish, 11 NY3d 340 [2008]; First Presbyt. Church of Schenectady v United Presbyt. Church in U.S., 62 NY2d 110 [1984], cert denied 469 US 1037 [1984]); (b) disputes between conflicting factions over membership or over eligibility to vote in meetings of governing bodies (see, e.g., Congregation Yetev Lev D'Satmar, Inc. v Kahana, 9 NY3d 282 [2007]; Park Slope Jewish Ctr. v Stern, 128 AD2d 847 [2d Dept 1987], lv dismissed 72 NY2d 873 [1988]); (c) congregational disputes which arise under documents which explicitly call for the application of religious law (see Esformes v Brinn, 52 AD3d 459 [2d Dept 2008]); (d) claims by congregants regarding misconduct by clergy (see Wende C v United Methodist Church, 4 NY3d 293 [2005], cert denied 546 US 818 [2005]); and (e) disputes between religious organizations and their clergy over ownership or control of property (see, e.g., Merkos L'Inyonei Chinuch, Inc. v Otsar Sifrei Lubavitch, Inc., 312 F3d 94 [2d Cir 2002]) which involved ownership of a copyright of a prayer book. In these cases, the courts have defined the issue as variously whether the involvement of civil courts in religious matters would violate the First Amendment or whether the courts have subject matter [*3]jurisdiction over the particular dispute.

The United States Supreme Court has ruled that the First Amendment forbids civil courts from interfering in or determining religious disputes because there is substantial danger that the state will become entangled in essentially religious controversies or intervene on behalf of groups espousing particular doctrines or beliefs (see Serbian Eastern Orthodox Diocese for U.S. of America and Canada v Milivojevich, 426 US 696 [1976]). Presbyterian Church in U.S. v Mary Elizabeth Blue Hull Mem. Presbyt. Church (393 US 440 [1969]), involved a dispute which arose when two local churches withdrew from a hierarchical general church organization. The Court held that it violated the First Amendment for the state to make the determination over whether the local or national church controlled church property since the resolution depended upon whether the general church had abandoned or departed from the tenants of the faith and practice it held at the time the local churches joined it. Subsequently, the Supreme Court in Jones v Wolf (443 US 595 [1979]), observed that the state has an obvious and legitimate interest in the peaceful resolution of property disputes and in providing a civil forum where the ownership of church property can be determined conclusively. The Court ruled that, while the civil courts cannot resolve church disputes on the basis of religious doctrine and practice and must defer to the resolution of religious disputes or polity by the highest court of a hierarchical church organization, the states are not required to follow any particular method of resolving church property disputes, so long as the method chosen does not involve consideration of doctrinal matters, whether the ritual and liturgy of worship or the tenets of the faith. The Court in Jones v Wolf specifically stated that where a church property dispute can be resolved by neutral principles of law, there is no constitutional barrier to entertaining the dispute. The Supreme Court in Jones specifically referred to its prior decision in Maryland & Virginia Eldership of Churches of God v Church of God at Sharpsburg, Inc.(396 US 367 [1970]), where the property dispute was resolved on the basis of the language of the deeds, the terms of the local church charters, the state statutes governing the holding of church property, and the provisions in the constitution of the general church concerning the ownership and control of church property.

In New York, our Court of Appeals has followed the neutral principles of law approach which requires the court to apply objective, well established principles of secular law to the issues. In doing so, courts may rely upon internal documents, such as a congregation's bylaws, but only if those documents do not require interpretation of ecclesiastical doctrine (Congregation Yetev Lev D'Satmar, Inc. v Kahana, 9 NY3d 282, 286 [2007]). In that case, however, the Court concluded that the dispute was non-justiciable because it turned on whether a person had been expelled from membership in the congregation by the Grand Rabbe, with the congregation's by laws conditioning membership on whether the congregant "follows the ways of the Torah." In contrast, in Avitzur v Avitzur (58 NY2d 108 [1983], cert denied 464 US 817 [1983]), the Court held that it could specifically enforce the terms of a Ketubah, signed by bride and groom as part of a religious marriage ceremony and providing for obligations of spouses under [*4]religious law and tradition, to the extent that in the Ketubah the parties agreed to recognize a religious tribunal as having authority to summon them, render a decision, and impose compensation for noncompliance. The Court held that while the obligations undertaken by the parties in the Ketubah were grounded in religious belief and practice, that did not preclude enforcement of its secular terms, and at least that portion of the Ketubah in which the parties agreed to refer their disputes to a nonjudicial body was enforceable. This was, in essence, no more than an agreement to alternate dispute resolution, and such agreements are enforced by neutral provisions of contract law (see also Malankara Archdiocese of Syrian Orthodox Church in N.A. v Thomas, 33 AD3d 887 [2d Dept 2006], lv dismissed in part, denied in part 8 NY3d 876 [2007] [Appellate Division, Second Department enforced the provisions of constitution of St Mary's Malankara Syrian Orthodox Church of Rockland which precluded the church from affiliating with a different church or religious group without the consent of the Patriarch of the Syrian Orthodox Church]).

Here, Plaintiff's action seeks the imposition of a constructive trust on certain property. The elements of constructive trust are well-settled in New York law and have general application. While the law of constructive trusts is not rigid and inflexible, there are four factors which are to be considered: (1) whether there is a confidential or fiduciary relationship; (2) whether the defendant made a promise; (3) whether plaintiff transferred property to defendant in reliance upon the promise; and (4) unjust enrichment (see generally Sharp v Kosmalski, 40 NY2d 119, 121 [1976]; Simonds v Simonds, 45 NY2d 233, 241 [1978]).

Plaintiffs propose, in order to meet these elements, to show that the nature of the vows made by Father Gorman involved declarations of faith, trust and mutual promises. In particular, Plaintiffs contend that, by entering into the Passionist Order and giving vows, Father Gorman entered into a community of priests who are mutually interdependent. Plaintiffs seek to establish that each member of the community relinquished title to personal property and monies, turned money and property over to the group for their common benefit, and, in return, received a living sustenance in the form of food, shelter, health insurance premiums, car payments and car insurance. In addition, Father Gorman was entrusted with financial responsibilities for the Order. Plaintiffs contend that these circumstances show the existence of a confidential or fiduciary relationship, a promise, and a transfer of property in reliance thereon.

In order to prove their case, Plaintiffs propose to offer into evidence a number of documents. There is a document entitled Renunciation of Usufruct, dated August 14, 1950 (Ex. 2), in which Father Gorman stated that he makes the temporal vows according to the Constitutions of the Congregation and "freely and willingly renounce all things, as the Holy Rule of said Congregation prescribes in Chapter XIII in regard to poverty" and that he wished to "conform to such renunciation in all things, and all that is prescribed in said Chapter, reserving to myself only the right to return to my possession, of which the same chapter speaks." The document also states if Father [*5]Gorman ever left the congregation, he promised not to "claim any right to recover money or goods, given up by me in the act of being admitted into the Novitiate; nor any kind of compensation for labor; nor for any other matter performed in the Congregation; but to be satisfied with what the Superiors of said Congregation give me to return to secular life." A second such document was signed on August 15, 1953. (Ex. 3). Plaintiffs also propose to offer the Rule and Constitutions of the Congregation of the Passion of Jesus Christ (Ex. 17), just Chapter 13 of such document, which states that members of the congregation are not to possess permanent property, except for lands attached to the houses for a garden, and also for a meadow and wood for domestic use and for the cultivation of said land. They are also not to possess any other certain and fixed revenues. The Chapter also proceeds to provide, essentially, that members are to renounce possession of their own goods in favor of some relative or other person and those goods pass upon the member's death to such persons, without testamentary disposition. Chapter 13 contains other provisions for necessary expenses and for management of funds and articles by the Superior and/or Vice-Rector. Chapter 13 also states that no member is to ask for alms for himself and whatever is voluntarily offered and accepted is to be applied to the common support of the Brethen. In essence, Chapter 13, as it states, provides for the practice of Voluntary Poverty. As previously noted, Plaintiffs seek to offer documentary evidence in which Father Gorman committed himself to conform his conduct with Chapter 13.

This Court concludes that under the principles articulated by the United States Supreme Court and our Court of Appeals, in particular its rulings in Congregation Yetev Lev D'Satmar, Inc v Kahana and Avitzur v Avitzur, the claim brought by Plaintiffs is justiciable and the admission into evidence of Chapter 13 of the Rule and Constitution of the Congregation of the Passion of Jesus Christ and the two documents signed by Father Gorman, in which he agreed to follow the principles of the Constitution set forth in Chapter 13, does not offend the First Amendment and would not divest this Court of subject matter jurisdiction. While it is true, as in Avitzur, the documents signed by Father Gorman were grounded in religious belief and practice, that does not defeat the enforcement of its secular terms, to wit a promise by Father Gorman to renounce ownership of property and to turn over any voluntary contributions or earned compensation to the benefit of the entire Congregation.

To paraphrase from Martinelli v Bridgeport R.C. Diocesan Corp. (196 F3d 409, 431 [2d Cir 1999]), plaintiffs' claims are brought under New York law, not church law; church law is not the Court's to assess or enforce. Plaintiffs' claim neither relies upon or seeks to enforce any duties arising from religious beliefs nor does it require or involve the resolution of whether Father Gorman's conduct was consistent with religious belief. Rather, it turns on whether Father Gorman had a fiduciary or confidential relationship with the Plaintiffs, made a promise to them, and received transfers from the Plaintiffs in reliance on his promise.

Plaintiffs' claims in this case are quite similar to those presented in Order [*6]of St. Benedict of N.J. v Steinhauser (234 US 640 [1914]). There, the Order of St. Benedict sought to establish its title to personal property left by a deceased member of the Order, suing the administrator of the estate of the decedent. The Order followed vows of obedience, stability, chastity and poverty. Each member pledged to have all property that he now holds or hereafter holds conveyed to the Order. The decedent was member of the Order. He published many works on religious subjects and obtained the copyrights for these books and entered into contracts with publishers. He was paid royalties during his lifetime, and after his death, the royalties were paid to his estate. The Supreme Court stated that it was clear from the principles of the organization that the decedent was not entitled for his own benefit either the monies he received for his services in various churches to which he was connected or those he derived from the sales of books. The Supreme Court ruled that the Order had a valid claim to the interposition of a constructive trust. It stated that the case did not involve "any question of ecclesiastical requirement or monastic discipline. The question is solely one of civil rights. The claim in suit rests upon the constitution of the complainant organization and obligations inherent in membership" (Order of St. Benedict of New Jersey, 234 US at 642). That is equally true here: the claim rests upon the constitution of the Congregation and the obligation to adhere to it voluntarily undertaken by Father Gorman.

A finer question is posed by Plaintiffs' intention to offer evidence of Canon Law, By-Law, and Constitutional provisions other than Chapter 13, as well as oral evidence regarding the status and responsibilities of membership in the Passionist community. The Court has no doubt that written provisions of Canon Law, written By-Laws and the Constitution of the Congregation are admissible under the principles previously discussed (see also Filetto v St. Mary of the Assumption Church of Binghamton, 61 Misc 2d 278 [Sup Ct NY County 1969]). The issue of oral testimony is, however, relatively novel.

.

Given the principle against civil inquiry into disputed matters of religious doctrine, relatively few cases have involved efforts to provide expert or other evidence as to canon or religious law or eccesiastical questions. Indeed, as previously discussed, if documents require interpretation of ecclesiastical doctrine, the entire dispute becomes non-justiciable. On the other hand, in Martinelli v Bridgeport R.C. Diocesan Corp., supra, a case involving a claim that the diocese had breached a fiduciary duty it owed to a parishioner who was sexually abused by a priest, the Second Circuit found no constitutional issue in the admission of testimony as to the status and responsibilities of a bishop under Canon Law and as to what plaintiff was taught as to the relationship between the bishop and parishioners. The Court stated: Where a person's beliefs are alleged to give rise to a special legal relationship between him and his church, we may be required to consider with other relevant evidence the nature of that person's beliefs in order properly to determine whether the asserted relationship in fact exists. In doing so, [*7]we judge nothing to be heresy, support no dogma, and acknowledge no beliefs or practices of any sect to be the law (Martinelli, supra,196 F3d at 431).

The Court in essence drew a distinction between the proper use of religious principles as facts and improper decision that religious principles are true or false. The religious propositions offered by plaintiff were received for purposes of assessing the character of the relationship between plaintiff and his bishop. While Martinelli involved Connecticut law, oral testimony as to the nature of the relationship between the parties in a constructive trust action would generally be admissible in New York as well. This Court concludes that Martinelli's holding that such testimony is not constitutionally proscribed where the constructive trust action involves a church is persuasive.

Similarly, in Order of St. Benedict v Steinhauser, the District Court, whose decree was affirmed by the Supreme Court, received testimony from experts on canon law to the effect that the vow of poverty incapacitates a man from holding property (see Order of St. Benedict of N.J. v Steinhauser, 179 F 137,143 [CD Minn 1910], revd 194 F 289 [8th Cir 1912), revd 234 US 640 [1914]; see also Rector, Wardens and Vestrymen of Trinity-St. Michael's Parish, Inc. v Episcopal Church in the Diocese of CT (224 Conn 797 [1993]), where the Connecticut Supreme Court sustained a finding that a local church held its property in implied trust for the national church, relying upon both the written constitution and canons and expert testimony, including expert testimony from Hugh R. Jones, who, in addition to his distinguished public service as Associate Judge of the New York Court of Appeals, had served as chancellor to four successive bishops in the dioceses of central New York, on the executive council of the national church, and as chancellor to three successive presiding bishops of the national church. The Connecticut Supreme Court stated: Where the nature of the relationship may, without entanglement in religious doctrine, be judicially determined by reference to the polity of the church, by its constitution and canons and by the clear factual evidence regarding the historical subordinate relationship between the local church and the general church, there is no reason for a court not to enforce the terms of that relationship. If a trust has been implicitly acknowledged by the parties and is embodied in some legally cognizable form, it must be respected (Rector, Wardens and Vestrymen of Trinity-St. Michael's Parish, Inc., 224 Conn at 806).

For these reasons, the Court will deny the defense motion which seeks in advance of the start of the trial to preclude all evidence involving the nature of the relationship between the Passionists and Father Gorman, though the Court will entertain objections which are focused on particular questions or particular subjects of [*8]testimony. Likewise, the Court is willing to give a cautionary instruction to the jury as to the purpose of evidence as to canon law principles when such time as the testimony is offered and, again in its charge. The Court invites counsel to offer suggestions as to the language of such an instruction. The instruction should draw the jury's attention the evidence is offered only to show the nature of the relationship between Plaintiffs and Father Gorman and whether there were promises and transfers in reliance thereon, and that such evidence should not be considered for any other purpose and that they may not consider or question whether any religious principle is valid or truthful.

Defendants also seek to preclude testimony that would violate CPLR 4519, the so-called Dead Man's Statute. Defendants assert that because Father Gorman cannot give his verison of any transactions or conversations, the person financially interested is not permitted to give his or her version. This is a far too simplistic argument. Whether the statute applies to prohibit testimony is complex. The statute is complicated as is the case law which interprets and explains it. Plaintiffs cite Brezinski v Brezinski (84 AD2d 464 [4th Dept 1987]), as permitting an "interested" person to testify to facts which are not derived from or dependent upon any conversation, transaction, or communication with the decedent (see also Estate of Tremaine (156 AD2d 862 [3d Dept 1989]). Likewise, Plaintiffs cite William L. Mantha Co. v DeGraff (266 NY 581 [1935]), for the proposition that a corporate bookkeeper may testify to authenticate the corporate books of account as business records in an action against the estate of a decedent without violating the statute.

The Court also wishes to call counsel's attention to some other cases and matters of note. Plaintiffs here are corporations. Under the statute, stockholders in a non-banking corporation, which is a party to the case, are regarded as interested, though case law indicates that if the witness disposes of the stock prior to testimony, the testimony is admissible (see Friedrich v Martin, 294 NY 588 [1945]). Officers of religious corporations, who serve without pay, have no personal pecuniary interest in the issue are not disqualified (see Matter of Kladneve's Estate, 133 Misc 766 [NY Sur 1929]; see also Washington Heights M.E. Church v Comfort, 138 Misc 236 [NY Mun Ct 1930] [pastor not disqualified from testifying as to decedent's pledge of contribution to church]; Bopple v Supreme Tent of Knights of Maccabees of the World, 18 AD 488 [4th Dept 1897] officer of mutual benefit association in charge of receiving dues not disqualified from testifying that decedent had not paid his dues, even though officer might be subject to assessment in the event a death benefit was awarded]).

Accordingly, this branch of the motion in limine is denied, without prejudice to the presentation of particular objections to particular witnesses or particular questions during the trial.

Finally, the Court notes that Defendants' trial brief argues the merits of the statute of limitations defense set forth in the answer. The Court notes that Plaintiffs, in their response, state that they are not asserting a conversion claim and seemingly state [*9]that they are proceeding only on their constructive trust theory. The Court will not deal with the statute of limitations issue now, as this was not the subject of a proper pre-trial motion, either under CPLR 3211 or 3212, and is not the subject of a motion in limine, and could not properly be the subject of a motion in limine, in which is simply a request for an advance ruling on matters of evidence.

The foregoing constitutes the Decision of this Court.[FN1]

Dated: White Plains, New York

February 23, 2009

E N T E R :

Alan D. Scheinkman

Justice of the Supreme Court

APPEARANCES:

LOWENSTEIN SANDLER PC

Attorneys for Plaintiffs

By: Karim G. Kaspar, Esq. (Pro Hac Vice)

Cindy Tzvi Sonenblick, Esq.

1251 Avenue of the Americas — 18th Floor

New York, New York 10020 [*10]

LAW OFFICES OF FRANK N. PELUSO, P.C.

Attorneys for Defendants

By: Timothy C. Quinn, Jr., Esq.

210 Wolf's Lane

Pelham, New York 10803 Footnotes

Footnote 1:This Decision is based on this Court's oral decision on Defendants' motion in limine, which was delivered in open court, outside of the presence of the jury, on February 23, 2009. As a post-script to this Decision, the jury returned a defense verdict on February 27, 2009. This was followed by a motion by Plaintiffs for a judgment notwithstanding the jury's verdict or, alternatively, for a new trial, which was denied by this Court in a Decision and Order dated May 26, 2009.