Shearn v Durst

Shearn v Durst 2011 NY Slip Op 09178 Decided on December 20, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 20, 2011
Gonzalez, P.J., Mazzarelli, Andrias, Sweeny, Román, JJ.
6387 260330/10

[*1]Glenda Shearn, et al., Petitioners-Appellants,

v

Duane Durst, etc., et al., Respondents-Respondents.




Anthony & Middlebrook, P.C., Bronx (J. Matthew Anthony of
counsel), for appellants.
Ruta Soulios & Straitis LLP, New York (Joseph A. Ruta of
counsel), for respondents.

Appeal from order, Supreme Court, Bronx County (Geoffrey D. Wright, J.), entered August 17, 2010, which dismissed the petition seeking, inter alia, to compel respondents to execute an amendment to a church's certificate of incorporation and to prohibit respondents from utilizing church funds and altering the worship service schedule, unanimously dismissed, without costs, as moot.

Petitioners brought this CPLR article 78 proceeding against respondents, former members of the board of petitioners' church, Crossway Christian Center, not in their capacity as advisors to the reinstated original board, or even in their former capacities as the temporary board, but in their present capacities as officers of the Assemblies of God's New York district office. Accordingly, the appeal is moot since respondents are in no position to grant the relief requested in either the original petition or in petitioners' appellate brief (see Matter of Espada 2001 v New York City Campaign Fin. Bd., 302 AD2d 299 [2003], see also Matter of E.W. Tompkins Co., Inc. v Board of Trustees of Clifton Park-Halfmoon Pub. Lib, 27 AD3d 1046, 1047-1048 [2006], lv denied 7 NY3d 704 [2006]).

Were we to consider petitioners' claims on the merits, we would find that, because the intervention of respondents into the affairs of Crossway was valid and allowed under its bylaws, respondents were not obligated to take the actions sought by petitioners.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 20, 2011

CLERK