Merkos L'Inyonei Chinuch, Inc. v Sharf
Annotate this CaseDecided on December 27, 2007
Supreme Court, Kings County
Merkos L'Inyonei Chinuch, Inc., Plaintiff, -and- Agudas Chassidei Chabad, joined as a Necessary and Indispensable Party Plaintiff
against
Mendel Sharf, Yaacov Thaler, Bentzion Frishman and "John Doe" 1-30, the names of "John Doe" 1-30 being fictitious as their actual names are unknown to the plaintiffs, and Congregation Lubavitch, Inc., a New York Not-For-Profit Corporation, Defendant(s),
40288/004
Ira B. Harkavy, J.
This is the court's decision after trial on the parallel claims by plaintiffs Merkos L'Inyonei Chinuch, Inc. (Merkos) and Agudas Chasidei Chabad (Agudas) for the ejectment of defendant Congregation Lubavitch, Inc. (CLI) from the central Lubavitch Synagogue located on the combined premises of 770 and 784-788 Eastern Parkway, in Brooklyn, New York. This court has previously determined that Merkos and Agudas are the respective owners of real property located at 770 and 784-788 Eastern Parkway, and that they hold all the rights, title, and interest to those properties.
On December 10, 2004, Merkos commenced this action seeking, inter alia, injunctive relief with respect to the defacing, destruction and/or removal of a controversially worded plaque that plaintiffs affixed to the premises at 784-788 Eastern Parkway. The plaque commemorated the laying of a cornerstone by Grand Rebbe Menachem Shneerson, the grand rabbi and spiritual leader of the Lubavitch movement from 1951 until his death in 1994. The lawsuit was initially instituted against individual defendants Mendel Sharf (Sharf), Yaacov Thaler (Thaler) and Bentzion Frishman (Frishman), who had been arrested and prosecuted in conjunction with the unauthorized removal of a previous plaque and attempted replacement with a different plaque.
Subsequent to the commencement of the action, plaintiff Agudas and defendant CLI were joined as necessary and indispensable parties. CLI is a non-profit corporation which claimed an [*2]interest in 784-788 Eastern Parkway. They also opposed the plaque as affixed by Merkos.
Agudas is a religious corporation which was incorporated in 1940 to establish, maintain and
conduct a place of worship, and to acquire real property for that objective. Following its
incorporation, Agudas purchased 770 Eastern Parkway which became, among other things, the
central synagogue of the Lubavitch movement. Merkos is a non-profit corporation which was
incorporated in 1942 to operate as the educational arm of the Lubavitch movement. Following its
incorporation, Merkos acquired the deed to 784-788 Eastern Parkway, the property adjacent to
770. The two properties are now adjoined, and the central synagogue spans both buildings.
CLI was incorporated in 1996 as a non-profit corporation, for the purpose of
succeeding and continuing the work of the unincorporated religious congregation whose
membership regularly attended religious services at the synagogue. CLI opposed the plaque
which was affixed to the premises of the synagogue by Merkos, and claimed an interest in the
property pursuant to a constructive or community trust and the authority to decide how is should
be used.
Previously, in its decision of March 13, 2006 and the court's order and judgment of June 19, 2006, this court permanently enjoined defendants Sharf, Thaler, Frishman and CLI from interfering, etc., with Merkos' right to affix and maintain a plaque on the outer wall of the premises at 784-788 Eastern Parkway and otherwise interfering with plaintiffs' interest in and enjoyment of the premises known as 770 and 784-788 Eastern Parkway. The court also declared that Merkos is the owner of and has all right, title and interest to the premises located at 784-788 Eastern Parkway; that Agudas is the owner of and has all right, title and interest to the premises located at 770 Eastern Parkway; and that CLI is not the owner of and has no right, title or interest in either property. The court further decreed that neither Merkos or Agudas could eject CLI without an order or judgment of ejectment; severed the property damage claims with respect to defendants Sharf, Thaler and Frishman; and continued the action with respect to the remaining cause of action for a declaratory judgment. Subsequently, on or about August 3, 2006, Merkos and Agudas filed a Verified Second Amended Complaint which, inter alia, withdrew the cause of action for a declaratory judgment and added two causes of action for ejectment; one each by Merkos and Agudas. CLI filed a Verified Answer to the Second Amended Complaint on or about May 10, 2007. Additional discovery was conducted and the matter was set down for trial on the sole remaining issue of ejectment.
Once again, this court is cognizant of the highly emotional nature of this case and its religious underpinnings, and reiterates that it will base its determinations only on "neutral principles of law," and the application of well-established, objective principles of secular law (see e.g. Yetev Lev D'Satmar, Inc. v Kahana, __ NY3d __, 2007 N.Y Slip Op. 09068, 2007 WL 4104124 [Ct App 2007]).
At this point in the litigation, the sole issue to be determined is whether Merkos and Agudas, as owners, may eject CLI and the congregation operating the synagogue from the synagogue space located at 770 and 784-788 Eastern Parkway. On December 10, 11, and 12, 2007, this court held a non-jury trial on that issue and CLI's defense to the same.
In regards to the elements plaintiffs must prove for ejectment, there is no dispute that the synagogue occupies real property at 770 and 784-788 Eastern Parkway and that Merkos and Agudas are the owners of those properties, and that CLI has no right, title or interest in the synagogue space. This court determined those issues with its decision of March 13, 2006 and its [*3]order and judgment of June 19, 2006. Furthermore, there is no contention that CLI is entitled to be present at the premises as a tenant or licensee. Prior to trial, CLI entered into a stipulation with Merkos and Agudas conceding that CLI is not a tenant or owner, that CLI is not entitled to be at the premises as a licensee, and that CLI received a 10 Day Notice to Quit the premises on or about July 20, 2007 (Plaintiff's Exhibit 1). The only issue in regards to ejectment is whether CLI is in possession of the synagogue space and whether its possession of the space has effectively ousted Merkos and Agudas from the same.
CLI, in its defense against ejectment, argues that it can not be ejected from the synagogue because it does not actually occupy the synagogue space. CLI argues that it is merely a management corporation formed by the managers of the synagogue, that it exists separately and apart from the religious congregation known as Congregation Lubavitch, and that it does not itself possess, occupy or use any of the space at the synagogue. Merkos and Agudas in turn argue that CLI and the religious congregation are one and the same, that CLI is currently in possession of the synagogue space, and that it has effectively ousted Merkos and Agudas.
The evidence in this case demonstrates that Congregation Lubavitch has been using the synagogue space since the Synagogue was established in 1940, and that Congregation Lubavitch, Inc. (CLI) replaced the unincorporated congregation upon its formation in 1996. The Certificate of Incorporation of Congregation Lubavtich, Inc., states that the corporation was formed "to succeed and continue the work of the unincorporated Orthodox Jewish religious congregation known as Congregation Lubavitch and located at 770 Eastern Parkway, Brooklyn, New York" (see Plaintiff's Exhibit 4). The Certificate further states that "[t]he activities of Congregation Lubavitch since its founding in 1940 has been and will continue to be" such things as conducting religious services and organizing religious community gatherings (id.). The membership of the corporation was listed as "the same as that of the predecessor unincorporated synagogue, namely those who regularly attend religious services at 770 Eastern Parkway and who support the synagogue financially" (id.). The certificate also states that five certain individuals, "who were elected by the membership of the synagogue as its duly authorized gabboim' (or trustees)," were to be the directors of the corporation (id.).
In their affirmation in support of CLI's motion to intervene, affirmed December 19, 2004, three of the gabboim (trustees), Zalman Lipskier, Menachem Gerlitzky and Avram Holzberg, refer to CLI as "the Congregation" and make reference to the synagogue as "its synagogue" (see Plaintiff's Exhibit 15). In its original Verified Answer, CLI equated itself with the congregation/synagogue (see e.g. Plaintiff's Exhibit 15, paragraph's 20-22). In fact, CLI's entire argument in support of its motion to intervene was premised upon equating itself with the congregation, and that as such it was a necessary and indispensable party. CLI did not then contend, as it does now, that it is only a management company, separate and distinct from the congregation/synagogue itself. The various affirmations of Zalman Lipskier, affirmed May 23, 2005 (Plaintiff's Exhibit 5), January 5, 2005 (Plaintiff's Exhibit 7), and December 19, 2006 (Plaintiff's Exhibit 6), also repeatedly equate CLI with the congregation and refer to the two interchangeably.
Mr. Lipskier testified at trial that CLI was only a mere management company, that it exists separately and distinctly from the congregation, and that CLI itself does not occupy any space at 770 and 784-788 Eastern Parkway. The court does not find such testimony to be [*4]credible. The court finds Mr. Lipskier's testimony to be self-serving and flatly contradicted by the evidence, including the aforementioned Certificate of Incorporation of Congregation Lubavtich, Inc. (Plaintiff's Exhibit 4) and the Affirmation of Mr. Lipskier, Mr. Gerlitzky and Mr. Holzberg (Plaintiff's Exhibit 15).
In attempting to distinguish CLI from the congregation, Mr. Lipskier testified that CLI is merely a shell corporation, without any gabboim or members, and that it was merely incidental that the trustees of the corporation were the same as the gabboim of the congregation. That testimony is belied again by CLI's Certificate of Incorporation (Plaintiff's Exhibit 4), various financial documents that show CLI had a budget derived from monies paid by its members (Plaintiff's Exhibit 11), and letters from CLI imploring its members to purchase seats and pay dues (Plaintiff's Exhibit 22). A letter dated July 21, 2006, to the Congregation from CLI is addressed specifically "Dear Member of Congregation Lubavitch, Inc." (Plaintiff's Exhibit 24). The same letter is signed by the gabboim, rather than the separate and independent trustees of CLI, and Mr. Lipskier himself is one of the signatories.
Mr. Lipskier's testimony that CLI does not occupy any space at 770 and 784-788 Eastern Parkway is similarly belied by evidence to the contrary. The letterhead of CLI lists certain individuals, including Mr. Lipskier, as the gabboim of CLI (Plaintiff's Exhibit 12, 22, 24 and 25). The same letterhead also indicates the address of CLI to be 770 Eastern Parkway. Checks drawn on the accounts of CLI also indicate CLI's address to be 770 Eastern Parkway (Plaintiff's Exhibits 13 and 14).
The court also heard the testimony of Rabbi Mendel Sharfstein, the Director of Operations for Merkos. Rabbi Sharfstein testified that the gabboim of CLI have held and continue to hold gatherings at the synagogue space without the permission of Merkos and Agudas. Rabbi Sharfstein also testified that gabboim of CLI have constructed an extension to the synagogue space in the building which they do not own and to which they have no rights. He testified that Merkos and Agudas neither gave permission nor were involved with the construction. He also testified that the gabboim of CLI changed the locks to the synagogue, without Merkos' permission.
Letters from the gabboim to the congregation are also evidence that CLI claimed the exclusive right to control the synagogue space at 770 and 784-788 Eastern Parkway (see Plaintiff's Exhibits 9 and 10). The evidence thus demonstrates that CLI exercised control over the synagogue space to the exclusion of Merkos and Agudas. As the court has already ruled that Merkos and Agudas are the owners of the buildings, each with the right of possession, and that CLI has no right of possession to the synagogue space, evidence of such actions is evidence that CLI effectively prevented Merkos and Agudas from use and dominion of the space.
Accordingly, the court finds that the evidence in this case demonstrates that Congregation Lubavitch, Inc., and Congregation Lubavitch are one and the same. The evidence in this case establishes that the Congregation, by the gabboim acted and continue to act through CLI. The evidence in this case also demonstrates that CLI was and is in possession of the synagogue space at 770 and 784-788 Eastern Parkway to the exclusion of Merkos and Agudas, and that Merkos and Agudas have established entitlement to possession of that space.
Accordingly, the court finds that Agudas and Merkos are to be awarded judgment granting them each immediate possession of the synagogue space located at the premises 770 and [*5]784-788 Eastern Parkway, respectively, and directing Congregation Lubavitch, Inc., to deliver immediate possession of the same.
NOW THEREFORE, it is:
ORDERED, ADJUDGED and DECREED that, final judgment of possession of the synagogue space, located at 770 and 784-788 Eastern Parkway, Brooklyn, New York, including but not limited to, the ground floor, mezzanine, basement and sub-basement of the premises, all of which constitute a portion of the synagogue, is granted to the plaintiffs AGUDAS CHASSIDEI CHABAD and MERKOS L'INYONEI CHINUCH, INC.; and it is further
ORDERED, ADJUDGED and DECREED that, plaintiff AGUDAS CHASSIDEI CHABAD is granted possession of that portion of the premises located at 770 Eastern Parkway, Brooklyn, New York used as a synagogue, including but not limited to, the ground floor, mezzanine, basement and sub-basement of the 770 premises, all of which constitute a portion of the synagogue; and it is further
ORDERED, ADJUDGED and DECREED that, CONGREGATION LUBAVITCH, INC., which is that congregation presently occupying a portion of 770 and 784-788 Eastern Parkway, Brooklyn, New York, purporting to be Congregation Lubavitch, whose trustees (gabboim) included, as of June 13, 1996, Zalmen Lipskier, Yehuda Blesofsky, Menachem Gerlitsky, and Yosef Losh, shall deliver possession to AGUDAS CHASSIDEI CHABAD the 770 premises, including that portion of the premises located at 770 Eastern Parkway, Brooklyn, New York used as a synagogue, including but not limited to, the ground floor, mezzanine, basement and sub-basement of the 770 premises, all of which constitute a portion of the synagogue; and it is further
ORDERED, ADJUDGED and DECREED that, plaintiff MERKOS L'INYONEI CHINUCH, INC., is granted possession of that portion of the premises located at 784-788 Eastern Parkway, Brooklyn, New York, used as a synagogue, including but not limited to the ground floor, mezzanine, basement and sub-basement of the 784-788 premises, all of which constitute a portion of the synagogue; and it is further
ORDERED, ADJUDGED and DECREED that, CONGREGATION LUBAVITCH, INC., which is that congregation presently occupying a portion of 770 and 784-788 Eastern Parkway, Brooklyn, New York purporting to be Congregation Lubavitch, whose trustees (gabboim) included, as of June 13, 1996, Zalmen Lipskier, Yehuda Blesofsky, Menachem Gerlitsky, and Yosef Losh, shall deliver possession to MERKOS L'INYONEI CHINUCH, INC., the 784-788 premises, including that portion of the premises located at 784-788 Eastern Parkway, Brooklyn, New York used as a synagogue, including but not limited to, the ground floor, mezzanine, basement and sub-basement of the 784-788 premises, all of which constitute a portion of the synagogue; and it is further
ORDERED, ADJUDGED and DECREED that, State and City law enforcement officials, including the Sheriff of the City of New York shall enforce this ORDER by execution and, upon the request of plaintiff Merkos or Agudas, shall remove CONGREGATION LUBAVITCH, INC., (which is that congregation presently located at 770 and 784-788 Eastern Parkway, Brooklyn, New York purporting to be Congregation Lubavitch, and whose trustees [gabboim] included, as of June 13, 1996, Zalmen Lipskier, Yehuda Blesofsky, Menachem Gerlitsky and Yosef Losh,) and any individual acting on behalf of or under the color of Congegation Lubavitch, [*6]including, without limitation, the current gabboim Zalmer Lipskier, Avrohom Holtzberg, Menachem Gerlitsky, and Yosef Losh, from the premises and otherwise enforce this ORDER; and it is further
ORDERED, ADJUDGED and DECREED that nothing herein shall be deemed to prevent or preclude plaintiffs from exercising their rights as owners of the premises, including but not limited to their right to have individuals removed from the premises for trespass; and it is further
ORDERED, ADJUDGED and DECREED that a WARRANT is to issue forthwith, with the execution of the warrant to be stayed for 60 days from the date of the entry of judgment, pursuant to CPLR 5519 (a) (6) and 5519 (c), upon the following terms and conditions: (a) that defendant continue to pay the operating expenses of Congregation Lubavitch of Agudas Chassidei Chabad, out of income thereof, during the pendency of any appeal, (b) that within seven (7) days of the entry of judgment defendant post an undertaking to secure the plaintiffs against waste during the pendency of any appeal, in the sum of $500,000.00 (five hundred thousand dollars and zero cents), and (c) that defendant perfect any appeal not later than sixty (60) days from the service of this Order and Judgment upon counsel for defendant, with Notice of Entry.
The foregoing constitutes the opinion, decision and order of this court.
Dated: December 27, 2007
ENTER,
_________________________
IRA B. HARKAVY
J.S.C.
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