Church of Our Lady of Vilna v Archbishopric of N.Y.

[*1] Church of Our Lady of Vilna v Archbishopric of N.Y. 2007 NY Slip Op 51125(U) [15 Misc 3d 1143(A)] Decided on May 29, 2007 Supreme Court, New York County Kornreich, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 29, 2007
Supreme Court, New York County

The Church of Our Lady of Vilna, Joseph Pantuliano, as Trustee of the Church of Our Lady of Vilna and Gertrude McAleer, as Trustee of the Church of Our Lady of Vilna, Plaintiffs,

against

The Archbishopric of New York, The Archdiocese of New York, Edward Cardinal Egan, and "John Doe," fictitious named party, true name or names unknown, the party or parties intended being all persons who are acting in concert with, defendants, Defendants.



105792/07

Shirley Werner Kornreich, J.

The Church of Our Lady of Vilna (the "Church"), and two purported members of its board of trustees, bring this action seeking: 1) a judgment declaring that defendants have no right to close the Church, seize and dispose of its property or sell the real property upon which it is built and retain the profits realized from the sale; and 2) a permanent injunction prohibiting the defendants from closing the parish and Church, from seizing and disposing of Church personalty and/or retention of any profits realized from the sale of any Church assets. The instant Order to Show Cause asks for a preliminary injunction enjoining defendants from entering upon Church property, removing any chattels, personalty, or other property from the premises and selling or disposing of the real estate upon which the Church is located.

I.Statement of Facts

A.History of the Church

The Church, which was established to serve the Lithuanian Catholic community in the New York Metropolitan area, was formally incorporated under the Religious Corporation Law ("RCL") on November 29, 1909, and acquired the real property upon which it is located, at 568-570 Broome Street in Manhattan, by deed on November 17, 1910. Title has remained in the Church's name since.

On January 6, 1980, in accordance with RCL § 5, the Church adopted its current by-laws. According to those by-laws and in keeping with RCL § 91, the Church's board of trustees is composed of five members the Archbishop, the Vicar General, the Rector and two lay members of the Church appointed by the other trustees. The by-laws define the Archbishop as the Archbishop (Ordinary) of the Roman Catholic Archdiocese, the Vicar General as the Vicar [*2]General of the Archdiocese, the Church to mean the parish that was incorporated under civil law, the Rector as the Pastor of the Church and members of the Church as the parishioners of the Church. All but the lay trustees are denominated "ex-officio" trustee; the lay members, whose terms are limited to one year or until their successors are appointed, must be approved by the Archbishop. The Rector is the Secretary-Treasurer of the Church and has custody of the Church's funds and property.

The by-laws specifically provide that the Church's property and affairs are to be managed in conformity with the rules and laws of the Catholic Church and the Archdiocese. Moreover, the sale or conveyance of real property and repair to the property require consent of the Archbishop. In addition, the trustees are given custody and control "of all the temporalities and property belonging" to the Church, are to administer that property "for the support and maintenance of the Church" and its activities and must act with the sanction of the Archbishop. Finally, the trustees are empowered with the authority conferred upon them by civil law

The parties, here, disagree as to who the current Church rector and two lay trustees are.

B.Present Dispute

On January 19, 2007, defendant the Archdiocese of New York ("Archdiocese") issued a press release stating that a decision was made to close the Church. The press release indicated that because "Sunday Mass attendance at Our Lady of Vilnius had decreased to approximately 100 parishioners, . . . the Mass was celebrated in English, not in Lithuanian . . . [and t]here were virtually no weddings or baptisms at the parish in recent years," the Church would be closed. Indeed, on February 26, 2007, the building was padlocked and security guards placed in front of it. The parishioners and Father Sawicki, the Rector at the time, were not permitted entry into the Church, and mass ceased to be celebrated. The following day, plaintiffs and others presented a petition with over 500 signatures to the Archdiocese, urging Cardinal Egan to reconsider closing the Church. Petitioners were denied an audience with the Cardinal.

Meantime, defendants began to remove ecclesiastical goods from the Church, and on March 23, defendants took the Sacramental records and Parish check book. Father Sawicki retrieved his personal items, and in April, the Knights of Columbus removed items belonging to them. On April 24, the Parochial Vicar of the Church of Saint Mary, Reverend Robert O'Neil, took a pulpit, two Deacons chairs and one Celebrant's chair. On April 26, Sacred Space, a company which specializes in the storage of ecclesiastical goods, was hired by defendants to store many of the Church's sacred items, including the pews, stained glass windows, and paintings. The following day, Dr. Jennifer Pascual of the Archdiocese Musical Commission, transferred a small electronic keyboard, a box of sheet music, and the main organ bench, to another church uptown.

Photographs submitted by plaintiffs indicate that some of the frescoes above the altar have been painted over in blue following the closure of the church. Others have been peeled off the walls and ceiling, leaving bare cement. The apse is boarded over, the altar and pews are removed and stained glass windows and paintings are on the floor.

Upon emergency affirmation of plaintiffs' counsel, and the supporting affidavit of plaintiffs McAleer and Pantuliano, this court on April 30, granted an order restraining until the next morning, defendants' removal and alleged destruction of the Church's property. After oral argument on May 1, 2007, the order prohibiting the removal or destruction of any chattels, personalty, or other property from the church was continued. The order, however, was modified, after oral argument, on May 4, 2007, to only prohibit the destruction of all property. [*3]

C.Argument

In support of their application for a preliminary injunction, plaintiffs dispute the lack of viability of the Church and argue that defendants' actions in removing and destroying the Church's property, violate the RCL. Specifically, they contend that Father Sawicki, their parish priest, was dismissed without required notice and without a meeting of the Church's properly constituted board of trustees. They further contend that plaintiffs Joseph Pantuliano and Gertrude McAleer were not properly replaced as lay trustees, since no meeting of the board was held to replace them and a majority of the properly constituted board did not vote for such replacement.

Defendants refute the argument. First, they contend that the Archbishop has an absolute right to transfer the assets and personalty of the Church, because these items are ecclesiastical goods belonging to the Archdiocese. They also submit an affidavit of the Vicar General, Bishop Robert A. Brucato, explaining that the ecclesiastical goods were and are being transferred from the Church in order to protect them from the "peril from [the Church's] roof in danger of collapse."[FN1] They deny that they are selling, transferring or destroying any Church property or that they are even considering such sale or transfer.

Moreover, defendants argue that plaintiffs, Pantuliano and McAleer, lack standing to bring the action. They further claim that Father Sawicki properly was replaced by the Rev. Monsignor Thomas Gilleece, Chancellor of the Archdiocese, and present as evidence a letter from Cardinal Egan to Monsignor Gilleece, dated March 21, 2007, confirming his appointment. They contend that plaintiffs Pantuliano and McAleer then were properly replaced on April 12, 2007 (effective April 1, 2007), when Claire and Thomas Libonati were appointed in their stead by the Archbishop, Vicar General and new Rector, upon the expiration of Pantuliano's and McAleer's one year terms on March 31, 2007. In support of this appointment, they present a document entitled "Archdiocese of New York Lay Trustees - 2007," detailing the nomination and appointment of the Libonatis as of April 1, 2007. The document is signed, witnessed, and approved by Cardinal Egan, Bishop Brucato and Monsignor Gilleece. Consequently, they contend that based upon RCL §§ 90-92 and Canonical Law, Mr. Pantuliano and Ms. McAleer no longer are trustees of the Church and lack standing to bring this action. Defendants also argue that, even were the case properly brought by plaintiffs, the court lacks jurisdiction to render the relief requested.

II.Conclusions of Law

To begin, it is important to note that the present controversy involves a hierarchical, rather than a congregational, church. Justice Brennan explained the distinction between the two forms of [*4]religious organization in his concurring opinion in Maryland & Virginia Eldership of Churches of God v. Church of God, Inc., 396 U.S. 367, 370, n. 1 (1970):

congregational polity exists when "a religious congregation . . . , by the nature of its organization, is strictly independent of other ecclesiastical associations, and so far as church government is concerned, owes no fealty or obligation to any higher authority." Hierarchical polity, on the other hand, exists when "the religious congregation . . . is

but a subordinate member of some general church organization in which there are

superior ecclesiastical tribunals with a general and ultimate power of control

more or less complete, in some supreme judicatory over the whole membership

of that general organization." [emphasis omitted].

Because of their very structure, hierarchical churches are treated differently by the courts. So, for example, RCL §2-b (1)(d-1) excepts hierarchical churches from notifying the attorney general of an application to transfer real property, the RCL requires consent of the Archbishop to transfer property and our courts have recognized that "disputes arising from the relationship between a member of a[n] hierarchical religious organization and that organization are not subject to resolution in the civil courts." Williams v. Arpie, 44 NY2d 689, 691 (1978).[FN2]

More than thirty years ago, the Supreme Court of the United States addressed the

interaction of the First and Fourteenth Amendments [FN3] with property disputes involving hierarchical churches. Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976). Milivojevich made clear that the Constitution proscribes court resolution of such controversies where the disagreement, at its core, is one of religious doctrine, practice and organization. Id. at 709-710. Thus, the Court interdicted review of ecclesiastical decisions, even if arbitrary. Id. at 713-714. See Rweyemamu v. Cote, 2006 U.D.Dist. LEXIS 7637, *7; 2006 WL 306654 (D.Conn. Feb. 7, 2006)(Free Exercise Clause prohibits court interference in church governance; ecclesiastical governance includes church's selection of clergy); Kraft v. Rector, Churchwardens and Vestry of Grace Church, 2004 U.S. Dist. LEXIS 4234, *11; 2004 WL 540327 (S.D.NY March 17, 2004))(Free Exercise Clause of First Amendment bars court determination of employment dispute regarding one of church's ministers; Establishment Clause bars court resolution of dispute involving religious doctrine and practice).

Nonetheless, three years later, the Supreme Court observed that States do have a legitimate interest in providing a civil forum for the resolution of disputes over ownership of church property, " so long as it involves no consideration of doctrinal matters, their ritual and liturgy of worship or the tenets of faith.' " Jones v. Wolf, 443 U.S. 595, 600 (1979). The Jones Court held that a State may "adopt neutral principles of law as a means of adjudicating a church property dispute." Id. at 604. It defined the neutral-principles approach as employing established [*5]concepts of trust and property law and noted that by examining relevant civil and religious documents, the intentions of the parties could be carried out. Id. at 603-604. The Court, however, warned that when interpreting a religious document, the court must scrutinize it in secular terms and defer to the ecclesiastical body for resolution of any doctrinal issue. Id. at 604.

"The primary purpose of [New York's RCL] is to provide an orderly method for the administration of the property and temporalities dedicated to the use of religious groups, and to preserve them from exploitation by those who might divert them from the true beneficiaries of the corporate trust." Morris v. Scribner, 69 NY2d 418, 423 (1987). In keeping with this purpose and Supreme Court precedent, New York has recognized the constitutionality of a court's interpretation of the RCL and common law through the application of neutral principles of law and the non-justiciability of religious disputes such as questions of a religious body's membership or internal hierarchy. Morris, id.; First Presbyterian Church v. United Presbyterian Church, 62 NY2d 110 (1984); Matter of Cong. Yetev Lev D'Satmar, Inc., 31 A.D.2d3d 541, 542 (2d Dept. 2006). New York looks to the language of deeds, the terms of the local church charter and by-laws and the general church's constitution to determine "whether there is any basis for a trust or similar restriction in favor of the general church." First Presbyterian Church, id. at 122. Accord Trustees of the Diocese of Albany v. Trinity Episcopal Church, 250 AD2d 282, 285-286 (3d Dept. 1999). See Avitzur v. Avitzur, 58 NY2d 108, 118 (1983)(civil courts may resolve hierarchical church property disputes only if "the case can be decided solely upon the application of neutral principles of contract law, without reference to any religious principle").

Plaintiffs, here, ask the court to issue a preliminary injunction barring defendants from Church premises and from removing or transferring Church property. A preliminary injunction should be granted where a movant demonstrates: a likelihood of ultimate success on the merits; that irreparable injury would result in the absence of preliminary injunctive relief; and that a balancing of the equities to effect substantial justice and to preserve the status quo warrants the grant of this extraordinary relief. Aetna Ins. Co. v. Capasso, 75 NY2d 860, 862 (1990); Pilgreen v. 91 Fifth Ave. Corp., 91 AD2d 565, 567 (1st Dept. 1982), lv. dismissed, 58 NY2d 1113 (1983). Plaintiffs have failed to meet this burden.

A.Standing of Plaintiffs

RCL § 91, which specifically addresses governance of an incorporated Roman Catholic church, provides in pertinent part:

[t]he archbishop or bishop and the vicar-general of the diocese to which any

incorporated Roman Catholic church belongs, the rector of such church, and

their successors in office shall, by virtue of their offices, be trustees of such

church. Two laymen, members of such incorporated church, selected by such

officers or by a majority of them, shall also be trustees of such incorporated

church, and such officers and such laymen trustees shall together constitute the

board of trustees thereof . . . The term of office of the two laymen trustees of an

incorporated Roman Catholic church shall be one year. Whenever the office of

any such layman trustee shall become vacant by expiration of term of office or

otherwise, his successor shall be appointed from members of the church, by such

officers or a majority of them.

The Church's by-laws reiterate this statutory provision, define the rector as the pastor of the Church and are silent as to whether a meeting of the board is required to appoint its lay members. The by-laws do require the Archbishop's approval of appointment of the lay [*6]members.

The record, here, demonstrates that Father Sawicki was replaced by Monsignor Gilleece on March 21, 2007, ten days before the Libonatis were substituted as lay board members for plaintiffs. Monsignor Gilleece's appointment, whether arbitrary, "high-handed" or "autocratic," is an ecclesiastical decision and beyond this court's review. See Rweyemamu, supra; Kraft, supra; Williams, supra. Consequently, plaintiffs replacement, after Monsignor Gilleece's appointment to the board and subsequent to their having served the required one year term, was in accordance with the RCL and the Church's by-laws. For this reason, they no longer are members of the board and are without standing to bring this lawsuit.

B.Removal and Transfer of Church Property

In addressing the property issue, it is important to note that defendants deny, and no evidence demonstrates, that any transfer or sale of real property is implicated here. Thus, Section 12 of the RCL, which requires leave of the court to sell, transfer or encumber real property, is inapposite. Instead, the dispute before the court involves personalty and, at its core, the decision of the Archdiocese to close the Church. Clearly, the decision to close the Church is one of ecclesiastical governance and not within the court's jurisdiction. On the other hand, the question of conveying Church property can be adjudicated by applying neutral principles of law. See Morris, 69 NY2d 422(First Amendment not violated where church's internal dispute can be decided on basis of statutory interpretation); First Presbyterian Church, 62 NY2d 118, 119 (State has legitimate interest in resolving property disputes and may do so if such decision does not require court ot interpret church doctrine).

The Church's by-laws speak to this issue. They specifically give the Rector custody of the Church's funds and property, place control of Church "temporalities and property" in the hands of the trustees and mandate that the Church's property and affairs are to be managed in conformity with the rules and laws of the Catholic Church and the Archdiocese. Similarly, RCL §5 places control and custody of all the Church's temporalities, personal property and revenues in the hands of the trustees, to administer "in accordance with the discipline, rules and usages of the [Church] and the ecclesiastical governing body . . . to which the [Church] is subject." RCL §5 requires the trustees to obtain consent from the Archbishop for any such transfer. Furthermore, RCL §§ 91-92 recognize the hierarchical structure of the Catholic Church and the ultimate authority of the Archbishop to divide a parish, transfer title of its property and approve any decision by its trustees to transfer any personalty.

Therefore, both the Church's by-laws and the RCL grant the Rector, here Monsignor Gilleece, its trustees and the Archbishop, here Edward Cardinal Egan, custody and control over

the disposition of the Church's property. Where a properly appointed Rector and board of trustees, together with the Archbishop, have acted within their powers, the court cannot override their decisions. See Committee to Save St. Brigid v. Egan, 30 AD3d 356 (1st Dept. 2006), aff'g 2006 NY Misc. LEXIS 4001 (Sup. Ct., NY Co., Feb. 16, 2006)(Kapnick, J.)(disposition of church property and funds were matters properly within Catholic archbishop's ecclesiastical authority).

C.Applicability of Not-For-Profit Law

Finally, plaintiffs contend that the RCL "subsumes some of the pertinent provisions of the Not-For-Profit Corporation Law, specifically §§ 509 and 510, requiring approval from two-thirds of the board before a sale of any real or personal property takes place. However, RCL § 2-b addresses the applicability of the Not-For-Profit Law and specifies that the provisions of the [*7]RCL are to apply should there be a conflict between the two bodies of law. Sections 509-510 of the Not-for-Profit Law are in direct conflict with RCL §§ 5, 91 and 92, which defer to the hierarchical nature of the Catholic Church and the Archbishop's authority over the disposal of church property.[FN4] As a result, the Not-For-Profit Law is not pertinent to this case. Accordingly, it is

ORDERED that plaintiff's motion for a preliminary injunction is denied; and it is further

ORDERED that all restraints are lifted.

Dated: May 29, 2007ENTER:

____________________________

J.S.C. Footnotes

Footnote 1: Bishop Brucato avers, among other things, that he and the Archdiocese are "justifiably concerned" that the ecclesiastical goods in the church "are in grave danger of destruction or deterioration if they are not removed to the Archdiocese's warehouse by Sacred Spaces because the ceiling and roof of the Church building are structurally unsound and subject to collapse." Defendants do not submit an affidavit from any expert confirming these assertions. Nor do they state that they relied on any such expert's inspection. Bishop Brucato avers that Rev. O'Neil removed the pulpit and chairs from the Church with approval from the administrator of the parish, Monsignor Gilleece, and the board of trustees. No explanation is given for the removal of property by Dr. Jennifer Pascual.

Footnote 2: The Court in Baxter v. McDonnell, 155 NY 83, 93-4 (1898), recognized the role of the Roman Catholic Archbishop as that of trustee of church property for religious uses, and noted that "[t]he purpose of this arrangement is to exclude the laity from that power of interference which they would have were the title vested in a corporation."

Footnote 3: The First Amendment, through the Fourteenth Amendment, bars States from making "laws respecting an establishment of religion or prohibiting the free exercise thereof."

Footnote 4: Moreover, it is clear from the record, that two-thirds of the board are in favor of defendants' conduct here.