National Church of God of Brooklyn, Inc. v Carrington

[*1] National Church of God of Brooklyn, Inc. v Carrington 2017 NY Slip Op 51007(U) Decided on August 11, 2017 Supreme Court, Kings County Rothenberg, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 11, 2017
Supreme Court, Kings County

National Church of God of Brooklyn, Inc., Larry Pringle, Henderson King, Sylvia Scantlebury, Keitha Greenidge, Vilma King, Janette Phillips, Jamar Marshall and Grantley Branch, Plaintiffs,

against

Mark S. Carrington, Richardene Carrington, National Cultural Worship Center, Janice Gay, Lavette Best, and John Doe I through John Doe X, Defendants.



509550/17



Counsel for Plaintiff:

Nelson Madden Black LLP

5 Bryant Park, 27th Fl

New York, New York 10018

Counsel for Defendants:

Jose W. Cotto, Esq.

95 Croton Avenue

Yonkers, New York 10562
Karen B. Rothenberg, J.

The following papers numbered 1 to 52 read herein: Papers Numbered

Notice of Motion/Order to Show Cause/Petition/Cross Motion and Affidavits (Affirmations) Annexed 1-43

Opposing Affidavits (Affirmations) 44-45

Reply Affidavits (Affirmations) 46

Stipulation of Settlement in Lieu of Answer 47

Best's Affidavit 48

Plaintiffs' Memorandum of Law 49

Transcript of July 31, 2017 Oral Argument 50

June 15, 2017 Order 51

July 13, 2017 Order 52

Upon the foregoing papers, plaintiffs National Church of God of Brooklyn, Inc. (National Church), Larry Pringle (Pringle), Henderson King (King), Sylvia Scantlebury (Scantlebury), Keitha Greenidge (Greenidge), Vilma King (Vilma), Janette Phillips (Phillips), Jamar Marshall (Marshall), and Grantley Branch (Branch) (collectively, plaintiffs) move, by order to show cause, against defendants Mark S. Carrington (Carrington), Richardene Carrington (Richardene), National Cultural Worship Center, Janice Gay (Gay), Lavette Best (Best), and John Doe I through John Doe X (collectively, defendants), for an order: (1) compelling defendants to deliver to their attorneys, Nelson Madden Black LLP, copies of all keys in and to the building located at 349-351 Saratoga Avenue, in Brooklyn, New York (the church building) and all security codes and passwords relating to such property, (2) enjoining Carrington, Richardene, Gay, and Best from holding themselves out as representatives, pastor, officers, trustees, or members of National Church, (3) enjoining defendants from any use of the church building whatsoever without permission from National Church, (4) enjoining defendants from holding themselves out as the owners or proprietors of the church building, (5) enjoining defendants from interfering with, disturbing, obstructing, or impeding them in: (a) conducting regular Sunday worship service with church school classes, committee meetings, and social hour in the church building between the hours of 10:30 A.M. and 9:00 P.M. on each Sunday, (b) having access to the records of National Church and retrieving them from the church building, (c) having complete access to and use of the church building and everything therein at all times during the week, (d) collecting all mail and packages delivered to the church building and addressed to any of them or to any of the defendants in the capacity of a purported representative of National Church, and (e) possessing and using property of National Church that is still under their control, including, without limitation, National Church's bank accounts and van, (6) enjoining defendants from holding themselves out as representatives, pastor, officers, trustees, or members of National Church, (7) enjoining defendants from making any alterations to the church building, (8) enjoining defendants from removing anything from the church building, and (9) enjoining defendants from making any contracts that relate to National Church or the church building or that purport to use property of National Church as collateral or that would transfer or encumber the church building or any other assets of National Church.

FACTS AND PROCEDURAL BACKGROUND

National Church is a religious corporation which was formed and organized under Religious Corporation Law article 10. On November 6, 1971, the certificate of incorporation for National Church was executed and filed with the Kings County Clerk on December 2, 1971. Carrington was one of the original six trustees, and he was the founder of National Church. The certificate of incorporation provided that the number of trustees of National Church was six, and that the annual election of trustees would take place each year on January 3rd. It further provided that one of National Church's purposes was to purchase buildings needed by the congregation.

By deed dated June 5, 1980, National Church purchased the property, located at 351 Saratoga Avenue, in Brooklyn, New York (the church property), from the City of New York at public auction for the price of $30,500. Plaintiffs allege that National Church paid $28,300 of [*2]the purchase price in cash, and the remaining sum was financed by a purchase-money mortgage and note on the church property. According to plaintiffs, the funds for the purchase price were raised by contributions from the members of National Church. Carrington claims, on the other hand, that he paid the purchase price from his own personal funds: $3,000 as the down payment, $ 12,000 which was obtained as a mortgage (which he personally satisfied for $7,000), and then he paid the balance of $15,000. He further claims that he mortgaged his own real property to help finance the purchase of the church property. Following the purchase of the church property, the church building was transformed from its former use as a supermarket by furnishing it with fixtures and decorations suitable for its use as a Christian church. Plaintiffs assert that these improvements were paid for by the members of National Church. Carrington claims that he used his own funds to furnish and pay overhead and expenses for National Church.

On March 23, 1995, following the satisfaction of the mortgage note, the City of New York recorded a satisfaction, canceling the purchase-money mortgage of record. The church building presently is two stories high and has a sanctuary capable of seating up to 300 people, and and a social hall that accommodates 100. The church property allegedly has a present market value in excess of $ 2,000,000.

Beginning in approximately 1980, Carrington was National Church's pastor. Plaintiffs allege that in 1985, Carrington appointed himself the president of National Church. They assert that beginning in 1980, Carrington paid himself from National Church's funds according to his own discretion and without effective oversight from National Church's members, that the financial transactions between Carrington and National Church were typically undocumented, and Carrington did not regularly account to National Church's members for his transactions. They claim that Carrington engaged in self-dealing and profited financially, and that he acquired valuable parcels of real property for himself. They further claim that over the years during which Carrington was the pastor of National Church, he exercised absolute control over its financial affairs, and provided little information about its finances to its members. Many members of National Church became uncomfortable with what they perceived to be a lack of accountability for National Church's funds.

Plaintiffs claim that for many years, Carrington was effectively the only trustee of National Church, and that while he appointed boards of trustees from time to time, he would dissolve them at will, and would sometimes list National Church members in internal church papers as being on boards without these members ever being told of their appointments. Plaintiffs further claim that although King was officially the treasurer of National Church, Carrington gave him no control over National Church's funds.

According to plaintiffs, Carrington never held regular congregational meetings, failed to publish bylaws for church governance, and never conducted member votes for the election of church trustees as required by law. Plaintiffs allege that Carrington referred to himself as the founder, pastor, and CEO of National Church, and was hostile towards questions about church finances. In 2010, church members became aware that National Church was running at a deficit each year. Plaintiffs claim that in September, 2010, one of National Church's secretaries, Ryan Jordan Hall, confronted Carrington about money missing from National Church's accounts. It is alleged that Carrington said that he had taken about $10,000 and that he was the sole person responsible for National Church's finances.

Plaintiffs assert that many members of National Church left the church due to Carrington's authoritarian attitude. They also assert that while Carrington had assured the members that the church building was insured, in actuality, it was not insured.

Plaintiffs allege that in 2014, Carrington purported to appoint a new board of trustees without a congregational vote, as required. They further allege that when this board refused to take out a loan encumbering the church property, allegedly to pay off a mortgage on property owned by Carrington and his wife, Carrington dismissed that board.

According to plaintiffs, at a church service on July 5, 2015, Carrington remarked that National Church was his church and that the church building belonged to him. This stimulated a strong negative responses from the congregation. During the following week, members of National Church organized an informal meeting, which took place on Sunday, July 12, 2015, after services. Carrington was allegedly apprised of this meeting, but did not attend. The meeting was attended by about 85% of National Church's membership. No votes were taken at the meeting, but the members expressed dissatisfaction with Church leadership.

According to the minutes of the July 12, 2015 meeting, the members intended "to make a few changes." The members discussed the fact that fund-raisers were being held but there was no money to show for them, and they did not know where the money was going, and that every year, National Church was "in the red when [the] yearly report [wa]s given." The minutes stated that National Church needed a board of trustees, and that Carrington had too much responsibility and that there was no "chain of command." They also reflect that since 2012, Carrington had asked for there to be nine members on the board, but since that time, he canceled board meetings as the board asked him for paper work, which he stated he had destroyed. It was questioned as to whether the board was "functioning or non-functional."

After the July 12, 2015 meeting, leaders of the congregation met with Carrington, the Archbishop, and former trustees of National Church to discuss the results of that meeting. They decided it was appropriate to call another congregational meeting to be held on August 11, 2015 for the purpose of amending the certificate of incorporation and electing a new board of trustees.

Notice of the August 11, 2015 congregational meeting was given from the pulpit of National Church's regular Sunday services on each of the two successive Sundays that preceded the meeting, specifying the business which would be transacted at the meeting. According to Pringle, he, as a deacon of National Church, read the announcements giving notice of the August 11, 2015 congregational meeting because Ena Dixon-Yearwood (Yearwood), who was the assistant pastor and who was supposed to make these announcements, was too unwell to do so. Pringle claims that Carrington did not want to read the announcements, but was present when they were read and made no objection to them. Pringle further claims that no formal board of trustees was able to set the date for the meeting because no formal board of trustees existed.

Pringle presided over the August 11, 2015 meeting, at which a quorum was present. Plaintiffs allege that this meeting took place with the consent of Carrington, who was initially present at the meeting, but he left before the vote to elect a board of trustees. The members voted to increase the board of trustees to nine members and they elected Pringle, King, Vilma, Greenidge, Phillips, Scantlebury, Branch, Marshall, and Yearwood, (who has recently died), as trustees (collectively, the 2015 board of trustees). No minutes were taken of this meeting. Greenidge, who acted as the secretary at this meeting, recorded the votes.

The congregation also elected officers at the August 11, 2015 meeting. Electing Dixon-Yearwood as president, King as treasurer, Greenidge as board secretary, Phillips as general secretary, Branch as floor member, Pringle as vice-president, Scantlebury as assistant treasurer, Vilma as assistant board secretary, and Marshall as assistant general secretary. The 2015 board of trustees accepted the congregation's selection of officers without any changes.

Plaintiffs orally informed Carrington immediately after the August 15, 2015 meeting of the names of the individuals who had been elected. Carrington admits that he was informed that the August 15, 2015 meeting took place. By letter dated August 22, 2015, Pringle formally informed Carrington of the names of the 2015 board of trustees. According to plaintiffs, Carrington accepted the results, but expressed disappointment. Carrington admits that he accompanied these new officers to the bank to change the signatories on National Church's bank account and he removed himself from the account, but states that these new officers unduly pressured him to do so.

On September 11, 2015, National Church adopted bylaws, which were adopted by the consent of the president, Yearwood, in lieu of an organization meeting. The consent to action taken in lieu of the organization meeting was appended to the original certificate of incorporation , the receipt from the Department of State, and the bylaws, and listed the 2015 board of trustees as having accepted their appointments. The bylaws set forth, among other things, that National Church's pastor was a non-voting member of the board of trustees, that the date for National Church's annual membership meetings was the second Sunday of November, that the quarterly regular meetings of National Church's membership were to be held on the first Saturday in March, June, September, and December, that special meetings of the congregation could only be called by the board of trustees, and that members of National Church could vote to decrease the number of trustees, but no such decrease could shorten the term of any incumbent trustee.

An amended certificate of incorporation of National Church, which reflected the decisions made at the August 11, 2015 meeting was executed and filed in the Kings County Clerk's office on February 25, 2016. The amended certificate of incorporation stated that a meeting was duly called and convened on August 11, 2015, that Pringle presided over the meeting, and that Carrington was present at the meeting, a majority of the duly qualified voters of the corporation voted, and it was resolved to amend the certificate of incorporation. The amended certificate of incorporation also stated that it was changing the principal address of the church's religious services and activities to the church property at 351 Saratoga Avenue, as this property was not yet owned at the time that the original certificate was executed.

The amended certificate of incorporation changed the number of trustees from six to nine, and listed the names of the 2015 board. It set forth that the board of trustees would elect officers necessary for the performance of the mandate of the board of trustees at the first meeting of the board. It provided that the pastor of National Church would "automatically serve as a non-voting [e]x-officio member of the [b]oard of [t]rustees." It further provided that "[b]y virtue of his position as current [p]astor, and one of the original trustees of the church . . . Carrington shall continue to be [p]astor of said church for as long as the [b]oard of [t]rustees or the membership of said church shall so determine . . . or [he could be dismissed] for proved breach of fiduciary trust after reasonable efforts have been made to disprove or amicably resolve such breach as determined by the sole discretion of the [b]oard of [t]rustees."

Plaintiffs allege that from September 2015 to December 2016, Archbishop Roberto Brown attempted to help reconcile Carrington to the leadership role of the 2015 board of trustees, but was unsuccessful. Carrington, instead, tried to break fellowship between National Church and Archbishop Brown's denomination. By a letter dated October 1, 2016, the 2015 board of trustees expressed its frustration with his lack of cooperation and reminded him of the duties and the powers of the trustees under New York law.

On Thursday, December 22, 2016, Carrington, Richardene (Carrington's wife), Gay (who is Richardene' niece and has never been a member of National Church), and Best purportedly conducted an election at a special congregational meeting of the members of National Church. This meeting was not held in accordance with the bylaws. This meeting was not a regular membership meeting, and the 2015 board of trustees did not call this meeting. The secretary did not send any notice for this meeting, and a quorum was not present. None the less, Carrington and Best executed a certificate of amendment to National Church's certificate of incorporation that purported to reflect the results of the December 22, 2016 meeting, stating that a majority of the congregation voted to change the name of the church to National Cultural Worship Center and for a new board of trustees consisting of Carrington, as CEO/president/pastor, Gay as secretary, and Best, as treasurer. It set forth that this amendment was authorized by a two-thirds majority of the congregation who voted in favor of the amendment. The certificate of amendment to the certificate of incorporation was filed in the King County Clerk's office on March 10, 2017.

By a bargain and sale deed with covenants dated February 13, 2017, National Church purported to convey the church property to National Cultural Worship Center. Carrington, claiming to be the CEO and founder of National Church, and Richardene, claiming to be the president of National Church, executed the deed, on behalf of National Church. The deed was recorded on February 22, 2017. National Church received no consideration for this deed.

On February 17, 2017, plaintiffs became aware that the Internal Revenue Service sent Carrington a notice confirming the issuance of an employer identification number, pursuant to his request, for National Cultural Worship Center. By letter dated February 23, 2017, the 2015 board of trustees informed Carrington that his position as pastor of the National Church was terminated, effective immediately due to, among other things, his actions in establishing another religious entity using National Church's address, without their knowledge or consent. Plaintiffs learned of the deed to National Cultural Worship Center on February 23, 2017 through a notice from the New York City Department of Finance informing National Church that a deed to the church property had been recorded. Plaintiffs confronted Carrington about the deed. He informed them that he was splitting the church into two parts, and that the church property belonged to National Cultural Worship Center which was a new church that he was founding, and that the 2015 board of trustees could take the National Church's bank account and records and locate somewhere else.

The 2015 board of trustees changed the locks on the doors of the church building and took church records that belonged to them. On March 23, Carrington changed the locks on the doors of the church building and excluded plaintiffs from the church property. On March 26, 2017, when Pringle and Phillips attempted to gain access to the sanctuary to take part in Sunday worship, Carrington came to the door and told them that the church was no longer National [*3]Church.

The 2015 board of trustees have terminated the membership of Carrington, Richardine, and Best. Pringle was elected president of the National Church at a meeting on May 5, 2017, following the death of Yearwood. Defendants continued to exclude plaintiffs from the church property, and National Church lost use of its sanctuary for worship.

On May 12, 2017, plaintiffs filed this action against defendants, which contains a first cause of action to nullify, pursuant to Not-For-Profit Corporation Law § 618, the "sham election" which occurred on December 22, 2016, a second cause of action to determine claims to real property, pursuant to RPAPL articles 6 and 15, a third cause of action for cancellation of the February 13, 2017 deed, pursuant to Real Property Law § 329, a fourth cause of action for damages caused by a wrongful transfer and withholding, a fifth cause of action for fraudulent amendment to the certificate of incorporation, a sixth cause of action for identity theft, and a seventh cause of action for faithless servant. On May 31, 2017, plaintiffs filed the instant motion.

On May 31, 2017, Best, appearing pro se, entered into a stipulation of settlement with plaintiff's attorney. The stipulation of settlement states that Best does not oppose the relief sought by plaintiffs in their first, second, third, and fifth causes of action, and that plaintiffs have agreed not to pursue their fourth, sixth, and seventh causes of action against her.

Best has submitted her affidavit in lieu of an answer, which states that she was an officer of National Church until 2014 or 2015, when she was removed from office by the new board of trustees, and that she has not participated in the activities of National Church since that time. She further asserts that in March 2017, Carrington asked her to become the secretary or treasurer of National Cultural Worship Center, but she never took any action as an officer, director, or trustee of National Cultural Worship Center, and she withdrew her commitment to serve National Cultural Worship Center. She also asserts that she did not sign a document dated December 22, 2016, but did sign a document for filing in March 2017. She attests that she did not attend any meeting of the members or the board of trustees of National Church or National Cultural Worship Center in December 2016, nor did she vote to elect a new board, to amend the certificate of incorporation, or to elect Carrington, Richardene, Gay, and herself as officers of National Church or National Cultural Worship Center in December 2016, and that she did not authorize Carrington and Richardene to deed the church property to National Cultural Worship Center.

By order dated June 15, 2017, the court ordered all parties to appear for a hearing on the issues raised by plaintiffs' order to show cause, and directed that pending the hearing, the parties were required to maintain the status quo, and that no party was permitted to convey, encumber, or hypothecate the church property or any other property claimed by plaintiffs. This order further provided that plaintiffs would have the right to occupy and use the church building on June 18 to June 24 and July 2 to July 9, and that National Cultural Worship Center would have the right to use and occupy the church building from June 25 to July 1 and July 9 to July 13, 2017. This order also required all parties to cooperate in providing keys, alarm codes, and all other items and information necessary to realize the effect of this order. In an order dated July 13, 2017, the court adjourned the hearing, which was originally scheduled for July 13, 2017, to July 31, 2017. This July 13, 2017 order directed that the remainder of the June 15, 2017 order would remain in full force and effect, and further directed the parties to cooperate in exchanging church records.

On July 26, 2017, the remaining defendants, i.e., Carrington, Richardene, National Cultural Worship Center, and Gay filed their answer. A hearing on plaintiffs' motion was held on July 31, 2017, at which time plaintiffs' attorney and defendants' attorney presented their arguments. At the conclusion of the hearing, the court ordered that pending its decision and order on plaintiffs' motion, plaintiffs and defendants were to continue to share the church property, there was to be an open exchange of documents, and defendants were required to give plaintiffs one of the keys to the church building.

DISCUSSION

Pursuant to CPLR 6312 (a), on a motion for a preliminary injunction, the plaintiff is required to show "by affidavit and such other evidence as may be submitted, that there is a cause of action, and either that the defendant threatens or is about to do, or is doing or procuring or suffering to be done, an act in violation of the plaintiff's rights respecting the subject of the action and tending to render the judgment ineffectual; or that the plaintiff has demanded and would be entitled to a judgment restraining the defendant from the commission or continuance of an act, which, if committed or continued during the pendency of the action, would produce injury to the plaintiff" (see also CPLR 6301).

Here, plaintiffs have submitted affidavits and other evidence showing that defendants have ousted them from the church property by purporting to elect new trustees and officers, filing a certificate of amendment to National Church's certificate of incorporation, and purporting to transfer the church property to National Cultural Worship Center, in violation of their rights with respect to National Church and the church property. Plaintiffs allege that they are entitled to a judgment restraining defendants from the continuance of their acts with respect to National Church and the church property, which, if continued, will cause them harm. Thus, plaintiffs have shown that this action falls within one of the grounds for a preliminary injunction specified in CPLR 6301 (see CPLR 6312 [a]).

"The party seeking a preliminary injunction must demonstrate a probability of success on the merits, danger of irreparable injury in the absence of an injunction and a balance of equities in its favor" (Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 NY3d 839, 840 [2005]; see also CPLR 6301; Aetna Ins. Co. v Capasso, 75 NY2d 860, 862 [1990]; Doe v Axelrod, 73 NY2d 748, 750 [1988]; Vanderbilt Brookland, LLC v Vanderbilt Myrtle, Inc., 147 AD3d 1104, 1105 [2d Dept 2017]; Butt v Malik, 106 AD3d 849, 850 [2d Dept 2013]; Church of God Pentecostal Fountain of Love, MI v Iglesia de Dios Pentecostal, MI, 27 AD3d 685, 686 [2d Dept 2006]). The decision of whether to grant or deny a preliminary injunction rests in the sound discretion of this court (see Nobu Next Door, LLC., 4 NY3d at 840; Doe, 73 NY2d at 750; Butt, 106 AD3d at 850). "Conclusive proof is not required, and a court may exercise its discretion in granting a preliminary injunction even where questions of fact exist" (Vanderbilt Brookland, LLC, 147 AD3d at 1106; see also CPLR 6312 [c]; Ruiz v Meloney, 26 AD3d 485 [2d Dept 2006]; Ying Fung Moy v Hohi Umeki, 10 AD3d 604, 605 [2d Dept 2004]).

In support of their motion, plaintiffs have submitted Pringle's affidavit, which attests that the certificate of amendment to National Church's certificate of incorporation filed by defendants was false in that no congregational meeting took place on December 22, 2016. He further attests that this amended certificate of incorporation was then used to transfer the church property to National Cultural Worship Center, which is not incorporated and is a fictitious entity solely [*4]controlled by Carrington. He asserts that the deed transferring the church property to National Cultural Worship Center is fraudulent and gives Carrington sole control over it.

In addition, plaintiffs have annexed a list of National Church's members, which shows that it currently has 47 members. Plaintiffs have submitted affidavits from 40 of these 47 members, all of whom state that they have been members since before September 1, 2016, that they did not receive any notice of a meeting of the members of National Church being scheduled to take place on December 22, 2016, that they were not present at any meeting of National Church on December 22, 2016, and that they did not authorize anyone to elect a new board of trustees or officers for National Church with or without a meeting or to rename the church. These members attest that the current board of trustees are the individual plaintiffs, who are the 2015 board of trustees (except for Yearwood who has died, leaving a vacancy). These members also state that Carrington is no longer the pastor of National Church nor is he any longer affiliated with National Church, and that he has excluded National Church from the church property.

In opposition, Richardene, has not submitted any affidavit. Best does not oppose plaintiffs' motion. Gay was never a member of National Church, and, thus, was not a qualified voter (see Religious Corporations Law § 195).

Pursuant to Religious Corporations Law § 195, all members of a church in good standing are entitled to vote at corporate meetings, and there must be at least six qualified voters present at corporate meetings to constitute a quorum. With respect to the purported December 22, 2016 meeting, defendants did not follow the Religious Corporations Law or the election requirements specified by National Church's certificate of incorporation. Defendants have submitted no evidence that the members of the congregation of National Church were ever given notice or were consulted about the appointment of a new board of trustees or the amendment to the certificate of incorporation that was filed on March 10, 2017 (see St. Matthew Church of Christ Disciples of Christ, Inc. v Creech, 196 Misc 2d 843, 850 [Sup Ct, Kings County 2003]). Carrington has not produced any evidence that the appointment of a new board of trustees consisting of him, Gay, and Best, complied with the Religious Corporations Law or was in any respect valid (see Geeta Temple-Ashram v Satyanandji, 142 AD3d 1132, 1134 [2d Dept 2016]).

With respect to the February 13, 2017 deed to National Cultural Worship Center, which defendants relied upon in forcing the congregation of National Church out of the church property, such deed was executed by Carrington, as the CEO and founder of National Church, and by Richardene, as National Church's president despite never having been elected as its president. Carrington and Richardene based their authority to execute this deed upon the purported December 22, 2016 meeting, which has not been shown to be valid. Carrington asserts that the church property was purchased using his own personal funds, and that he paid to furnish and pay expenses for the church property. However, the title to the church property is in the name of National Church, and does not belong to him, individually. Thus, any financial contributions that Carrington may have made towards the purchase of the church property or its improvements does not give him any right to maintain control over the church property. While Carrington has not submitted any documentation showing that he made the monetary contributions claimed by him to National Church, even if Carrington can show that he is owed money by National Church, that would not entitle him to unilaterally deed the church property away from it.

Pursuant to Religious Corporations Law § 2-b, the Not-For-Profit Corporation Law applies to religious corporations. Not-For-Profit Corporation Law § 509 (b) provides that '[n]o corporation shall sell, mortgage, lease, exchange or otherwise dispose of its real property unless authorized by the vote of a majority of directors of the board," and "if such property constitutes all, or substantially all, of the assets of the corporation, then the vote of two-thirds of the entire board [is] required." In addition, Not-For-Profit Corporation Law § 510 requires that there be a congregational meeting and a vote to convey substantially all of the assets of the corporation. Carrington does not claim that there was any vote approving the transfer of the church property from National Church to National Cultural Worship Center.

Moreover, National Church, as a religious corporation, is also subject to Religious Corporations Law § 12. "Religious Corporations Law § 12 (1) provides that in order to sell any of its real property, a religious corporation must apply for, and obtain, leave of court pursuant to Not-For-Profit Corporation Law § 511" (Congregation Nachlas Jacob Anshe Sfard of Jackson Hgts. v Schwarz, __ AD3d __, 2017 NY Slip Op 05707, *1 [2d Dept 2017]; see also Scher v Yeshivath Makowa Corp., 54 AD3d 83, 839 [2d Dept 2008]; Levovitz v Yeshiva Beth Henoch, 120 AD2d 289, 295 [2d Dept 1986]). Under Not-For-Profit Corporation Law § 511 (b), the Attorney General must be notified before any sale of the religious corporation's real property may be finalized. Here, there was neither court approval nor was the Attorney General notified of the transfer of the church property. Where court approval is not obtained for the transfer of real property from a religious corporation, the conveyance is invalid (see Religious Corporations Law § 12 [1]; Church of God of Prospect Plaza v Fourth Church of Christ, Scientist, of Brooklyn, 54 NY2d 742, 743-744 [1981]; Congregation Yetev Lev D'Satmar of Kiryas Joel, Inc. v Congregation Yetev Lev D'Satmar, Inc., 9 NY3d 297, 301 [2007]; Congregation Nachlas Jacob Anshe Sfard of Jackson Hgts., 55 NYS3d at 913; Wiggs v Williams, 36 AD3d 570, 571 [1st Dept 2007]; Matter of Agudist Council of Greater NY v Imperial Sales Co., 158 AD2d 68, 683 [2d Dept 1990], appeal denied 76 NY2d 70 [1990].

In opposition, Carrington argues there was no need for compliance with any of these statutory provisions because the February 13, 2017 deed merely changed the name of the church and transferred its ownership to National Cultural Worship Center, as its spiritual successor. He contends that since National Cultural Worship Center was only a spiritual successor and there was no transfer to an entirely new entity, there was no need for court approval. He states that no consideration was paid for this transfer, and that he performed this transfer, without the advice of legal counsel, in a desperate attempt to prevent plaintiffs from taking over the church. Carrington's argument is unavailing. Carrington's transfer of the church property was not to reflect a name change of the church, but to dispossess the congregation of National Church. Furthermore, National Cultural Worship Center is not incorporated nor a legally formed existing entity. "An unincorporated association has no existence independent of its members," and it, therefore, "lacks capacity to take or hold title to real property in its own name as grantee" (ATIFA v Shairzad, 4 Misc 3d 1007[A], 2004 NY Slip Op 50752[U], *3 [Sup Ct, Queens County 2004]). Since Carrington has separated from National Church, National Cultural Worship Center cannot be a continuation of or successor to National Church. Furthermore, Carrington obtained a separate employer identification number for National Cultural Worship Center, which is not the same as National Church's employer identification number, which does not suggest a mere name [*5]change.

Lastly ,defendants attempt to resist and defend against plaintiffs' motion for a preliminary injunction by attacking plaintiffs' standing to bring this action. They challenge the validity of plaintiffs' election as the members of the 2015 board of trustees of National Church. They contend that such election was invalid, and, therefore, plaintiffs were not valid members of the board of trustees and were without the authority to act in National Church's name in filing the amendment to the certificate of incorporation, in calling meetings, in removing him as National Church's pastor, and in filing this motion.

Carrington argues that the election of the 2015 board of trustees was invalid on the ground that there was already a 2014 board of trustees in place, and that plaintiffs did not act properly in removing that board. He further claims that in 2014, the board of trustees consisted of seven people: himself, Richardene, Best, Joshua Selvers, Arlit Watson, June Haycock Harding, and King. He asserts that the fact that there was a board of trustees in 2014 is shown by the fact that Phillips stated that she was the general secretary from 1982 to 2005 and was president of the Ways and Means Committee from 2000 to 2005.

Defendants argue that the July 12, 2015 corporate meeting of plaintiffs which called for the special corporate meeting on August 11, 2015 was fatally flawed because it did not comply with Religious Corporations Law § 194, which provides that "[a] special corporate meeting of any such church may be called by the board of trustees thereof, on its own motion or on the written request of at least ten qualified voters of such church." They maintain that the August 11, 2015 meeting could not have been called because plaintiffs allege that there was no active or existing board of trustees in 2015, and there could not have been a written request by the voters since no votes were taken at the July 12, 2015 meeting, the meeting was informal, and the minutes of this meeting were not signed or certified.

Defendants also argue that plaintiffs did not comply with the notice provision of Religious Corporations Law § 194, which states that notice of a meeting "shall be given by the minister of the church, if there be one, or if not, by the officiating minister thereof, if there be one, or if not, or if any such minister refuse to give such notice, by any officer of such church."

Defendants' arguments are rejected. Plaintiffs do not deny that boards were purportedly appointed temporarily as trustees solely by Carrington. Rather, plaintiffs assert that there were no elections of boards in compliance with Religious Corporations Law § 195 (organization and conduct of corporate meetings), § 197 (changing number of trustees), and § 199 (vacancies among trustees). Carrington has not shown that he conducted any elections for trustees at any time until the congregation expressed its intent to elect a new board of trustees. Carrington has not annexed any minutes or other evidence of an election to appoint a board of trustees prior to the August 11, 2015 election. Carrington has not refuted plaintiffs' claim that he had only appointed, and had never elected, trustees, and that he dismissed these trustees appointed solely by him at his will and sole discretion. Thus, defendants have presented no evidence that there was any validly elected board of trustees prior to the election of the 2015 board of trustees (see Geeta Temple-Ashram, 142 AD3d at 1134; St. Matthew Church of Christ Disciples of Christ, Inc. v Creech, 196 Misc 2d 843, 850 [Sup Ct, Kings County 2003]). Furthermore, while Carrington names seven trustees who he claims were appointed in 2014, National Church's certificate of incorporation at that time only authorized six trustees. Thus, these trustees could [*6]not have been validly elected in accordance with National Church's certificate of incorporation (see Matter of Salnor Realty Corp., 16 Misc 2d 189, 192 [Sup Ct, NY County 1959]).

With respect to the issue of notice of the August 11, 2015 congregational meeting, as discussed above, Pringle, as a deacon of National Church, gave the members notice of that meeting. Pringle claims that Carrington did not want to read the announcements of the August 11, 2014 congregational meeting, but was present when he read them and made no objection to them. He further claims that no formal board of trustees was able to set the date for it because no formal board of trustees existed. Religious Corporations Law § 194 mandates that an announcement of the trustees' annual meeting is to be given to the congregation in order "to give to those entitled to vote, and for those who are interested in the affairs of the body, an opportunity to be present, and to have a voice in the management of the organization" (Matter of Kaminsky, 251 App Div 132, 137 [4th Dept 1937], rearg denied 251 App Div 795 [1937], affd 277 NY 524 [1938]). Here, the August 11, 2015 meeting was attended by the congregants, and "there is no evidence that a member was prevented from voting due to lack of notice" (Sillah v Tanvir, 18 AD3d 223, 224 [1st Dept 2005], lv denied 5 NY3d 711 [2005]; see also Rosen v Lebewohl, 28 Misc 3d 1226[A], 2010 NY Slip Op 51502[U], *14 [Sup Ct, NY County 2010]).

Carrington cooperated in the scheduling of the August 11, 2015 meeting, was present when it was announced, and attended the start of the meeting. Carrington made no protest with respect to this meeting, and transferred control of the checking account to the newly elected trustees and officers, thereby acknowledging their authority. Thus, Carrington acquiesced in and ratified the election of the 2015 board of trustees.

Not-For-Profit Corporation Law § 618 provides that any member aggrieved by an election may seek judicial relief on notice to the persons declared elected in the contested election, the corporation, and any other such persons as directed by the court. Not-For-Profit Corporation Law § 618 is the exclusive remedy for challenging an election's validity, and this provision is governed by a four-month statute of limitations pursuant to CPLR 217, which is measured from the date when the election becomes final (see CPLR 217; De Vita v Reab, 155 AD2d 302, 303 [1st Dept 1989]; Lal v Shri Guru Ravidas Sabha of New York Inc., 20 Misc 3d 1133[A], 2008 NY Slip Op 51720[U], *2 [Sup Ct, Queens County 2008]). This four-month period began to run no later than August 22, 2015, the date of the letter informing Carrington of the election results. Defendants did not raise any challenge to the election until after plaintiffs confronted Carrington about the deed and the certificate of amendment to the certificate of incorporation, which was well after the four-month statute of limitations period had expired. Thus, while defendants now seek to raise claims concerning the validity of the August 11, 2015 meeting and election, defendants are time-barred from challenging the election of the 2015 board of trustees. Therefore, plaintiffs have standing to bring this action as the validly elected board of trustees of National Church (see Religious Corporations Law § 5; Holy Cross Polish Natl. Catholic Church of NY, Inc. v Milazzo, 27 AD3d 373, 374 [1st Dept 2006]).

In addition to having standing to bring this action pursuant to Religious Corporations Law § 5, as the trustees of National Church, plaintiffs, in any event, have standing to bring this action pursuant to Not-For-Profit Corporation Law § 623 and § 720. There are eight individual plaintiffs and 47 members. Thus, plaintiffs represent more than five percent of National Church's membership, giving them standing pursuant to Not-For-Profit Corporation Law § 623 (a). Since [*7]King is a trustee and Pringle is a deacon and the current president of National Church, plaintiffs also have standing as officers to bring this action pursuant to Not-For-Profit Corporation Law § 720 (b) (1).

Thus, plaintiffs, by the affidavits and other evidence submitted by them, have established a likelihood of ultimate success on the merits (see CPLR 6301; Church of God Pentecostal Fountain of Love, MI, 27 AD3d at 687; Sillah, 309 AD2d at 674). Plaintiffs have also established that they would suffer irreparable harm in the absence of injunctive relief, and that the balancing of the equities favor them (see Kelley v Garuda, 36 AD3d 593, 596 [2d Dept 2007]; Church of God Pentecostal Fountain of Love, MI, 27 AD3d at 687). Plaintiffs are being deprived of their ability to worship in the church where many of them have worshiped for numerous years and which they have regarded as their church. National Church will suffer the loss of tithes and offerings and will lose members if its use of the church property is not restored to it. Plaintiffs assert that if its members cannot return to worshiping in their own church building, they will begin to lose members and may not survive. Carrington has been separated from National Church since February 26, 2017, and has acted counter to its interests by deeding the church property away from it and trying to split it. He has been terminated as pastor so he cannot hold himself out as the pastor of National Church. Thus, the preliminary injunction requested by plaintiffs must be granted (see Church of God Pentecostal Fountain of Love, MI, 27 AD3d at 687; Farmer v Norton, 236 NYS2d 906, 907 [Sup Ct, Queens County 1962]).

Upon the granting of the preliminary injunction, a plaintiff is required to post an undertaking, pursuant to CPLR 6312 (b), the amount of which is within the sound discretion of the court (see Glorious Temple Church of God in Christ v Dean Holding Corp., 35 AD3d 806, 807 [2d Dept 2006]; Cooperstown Capital, LLC v Patton, 60 AD3d 1251, 1253 [3d Dept 2009]; Gaentner v Benkovich, 18 AD3d 424, 427 [2d Dept 2005]). The undertaking must be rationally related to the potential damages that the defendant would incur if the preliminary injunction proves to be unwarranted (see Ithilean Realty Corp. v 180 Ludlow Dev. LLC, 80 AD3d 455, 455 [1st Dept 2011]). Here, considering that the issues involved are not monetary ones, the court finds that the amount of the undertaking should be set at $5,000.

CONCLUSION

Accordingly, plaintiffs' motion for a preliminary injunction is granted in its entirety. Plaintiffs are directed to post an undertaking, pursuant to CPLR 6312 (b), in the amount of $5,000.

This constitutes the decision and order of the court.

Dated: August 11, 2017

Hon. Karen B. Rothenberg

J.S.C.