New Hope Missionary Baptist Church, Inc. v 466 LaFayette Ltd.

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New Hope Missionary Baptist Church, Inc. v 466 LaFayette Ltd. 2013 NY Slip Op 34040(U) October 4, 2013 Supreme Court, Kings County Docket Number: 34774/08 Judge: Bernadette Bayne Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] .. At an !AS Tenn, Part 18 of the Supreme Court ofthe State ofNew York, held in andfor theCounzy ofKings, at the Courthouse, Brooklyn, New York, on the 4• day of October 2013. PRES EN T: HON. BER.~ADBTTEBAYNE Ju.~ce . TlIB NEW HOPE MISSIONARY BAPTIST CHURCH, INC., a Religious Corporation, and GLORIOUS TI!MPLE CHURCH OF GOD IN CHRIST, SAYEL E. TAY.AR, Plaintiffs, - against - DECISION AND ORDER Index No. 34774108 46Q . AFAYETI'E LTD., DEAN HOLDING CORP., L JMARC PROPERTIES, !NC., 66 GEORGE STREET REALTY CORP.• NESHAMA, INC., MORTGAGE ELECTRONfC REG!STRATION SYSTEM, INC., as Nominee for BNC MORTGAGE, INC., U.S. BANK NATIONAL ASSOCIATION, OFFICE OF THE CITY REGISTER OF THE CITY OF NEW YORJ<, DAISEY MASON, CHARLES l..AMSO, MICHAEL GUERRA, MONICA GUERRA, MARJORJE BEECHER, RAJ MOHAN, SUJATHA MOHAN. ANGEL RODRIGUEZ, THE NEW YORK STATE COMMISSIONER OF TAXATION AND FINANCE, THE NEW YORK CITY PARKING VIOLATIONS BUREAU, THE NEW YORK CITY TRANSIT AUTHORITY, TRANSIT ADJUDICATION BUREAU, THE NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, CRIMINAL COURT OF THE CITY OF NEW YORK, KINGS SUPREME COURT. POB 5350 TCO-CSE, RAB l'ERFORMfu~CE RECOVER.JES LLC, "->ID USAIIRS, and ..JOHN DOE #!"through "JANE DOE#lO'', tholast ... ..- - ·"" "' ..~ '" n "" cor- "'.,, ,,,,.. 0 I > :x _,,, ,., a ,.,, -<0 ~ -1- 0 a> ;o "" [* 2] • • 10 names being ficticious and unlmown to the Plaintiff, the persons or parties intended being the occupants, tenants, persons or entities, if any, having or claiming an interest in or lien upo11the mongaged premises described in the verified complaint, ., . ' .'' Defendants. ANGEL RODRIGUEZ, : . Third-Party Plaintiff, ThiJd-Party Index No. -against- 76072/09 VINCENT LONGOBARDI, JOHN D'EMIC, and BOWARD (EDDIE) DORAN, Third-Party Defendants. The following papel'S numbered I to 3 read on thi" motion: . . Notice of Motion! Affidavits (AtTumations) Annexed._ _ _ _ _ _ __ Affinnatlons io Oppositio ~---------.. Aflinnations in Reply_ __ _ _ _ _ _ _ _ __ Papers Numhered I 2 In thi• action involving ownership rights and title to real property, defendantllhlrd-party plaintiff ANGEL RODRlGUEZ (bcceinaftcr referred to as defendant RODRIGUEZ) moves this Court for an Order, put>uant to CPLR §3212, granting him summary judgement and "dismissing the complaint of Plaintiff GLORIOUS TE."-iPLE CHURCH OF GOD IN CHRIST" (hereinafter referred to as plaintiff GLORIOUS} in its entirety. The property in question is located at 470 Lafayette Avenue in Brooklyn, New York, and is designated as Block 1950, Lot 18. Defendant RODRIGUEZ claims that he "{h)olds record title to the property located at , -2- [* 3] 470 Lafayette which he pUIChascd for $400,000 on August 2l, 2008 in an arm's length transaction, taking a $200,000 mongage to finance tbe pJUOhasc." Defendant RODRlGUEZ goes on to state that "[t]be propeny eonsisrs of a 25' x 100' foot Jot improved by a 2·Slory eommcreial building. Since !he time I purchased, Glorious Temple has occupied !he entire building, Jmd I have received absolutely no rental income from the property. I have attempted to inspect !he property on severa1 occasion..-.; but have been .denied access by Glorious Temple." Defendant RODRIGUEZ further claims that after he purehased !he property, he tried to obtain posscs;;on of the premises from plaintiff GLORIOUS and served a thirly4ly notice ofh.is intent to obrain possession in November of2008. Soon th""'3.ftcr, plaintiff GLORIOUS eommenced the within action against defendant RODRJGUEZ. As a result of the commencement of the aforementioned action, Justice Arthur Schack, the Judge originally assigned to the action, issued a temporary restraining Order which defendant RODRIGUEZ claims has been violated by plaintiff GLORIOUS in that be has been denied access and/or an opponunily to inspect the premises. The aforementioned Order specifically directed that, during the pendency of this action, defendant RODRIGUEZ was forbidden from prococding with h.is landonVtenant proceeding while permitting plaintiff GLORIOUS to continue occupying the premises rent frco, but plaintiff GLORIOUS was obligated '1tfo pay real estate taxes and water and sewer charges for the property and maintain the property": Justice Schack'• Order further directed that plaintiff GWRIOUS "[s)hall allow, upon adequaie notice, Angel Rodriguez or his representative LO inspect the-premises at 470 Lafayette Avenue". Defendant RODRIGUEZ states that ·1wJithout any income from the pi:operty whatsoever} I was not able to pay he mortgage, and a forcclosmc action as been commenced and was oonsolidatcd with this case." ·3- [* 4] I Defendant RODRIGUEZ argues that he is entitled to possession of the premises due to the fact that plaintiff NEW HOPE MISSIONARY BAPTIST 9flJRCH, INC. (hereinafter referred to as plaintiff NEW.HOPE), which had also claimed S'lperior title to the property in .... .. question, "(!]ailed io properly prosecute its claim", and as a result, ·~ts claim has been dismissed." Finally, defendant RODRIGUEZ contends that "(I] can sec no logical reason why Glorious Temple, which has no claim to title at a11 shoul~ be permitted to continue with it.:;: claim , and also remain in the property under these circumstances", and that "[a]s a matter of basic fairness., Glorious Tcoople's claitns should be dismissed and Jshould be allowed to occupy the property as any property O\>ner." Summan J udgment standard The proponent of summ.azy judgment motion must make aprimo facie showing of entitlement to judgment as a matter ofla\v, tenderio.g .:i.'Uf6Cicmt evidence to eliminate any material issues of fact fro· the case. See A1varez y Prospectl'!ospital. 68 NY2d 320, 324 m (1986); Zuckerman v c;iy' of New Yo!lc, 49 NY2d 557, 562 (1980); Sillman v T wgiticl!l Centwy-Fox Film Con>., 3 NY2d 395, 404 (1957). Failure IO make such a showing requires denial of l11e motion. regardless of the sufficiency of the opposing papers. Mattel' ofRedemotion Chur<:h of Christ v Willi~ 84 AD2d 648, 649 (3d Dept 1981); Greenburg v Manion Realty, 43 AD2d 968, 969 (2"' Dept., 1974); Wineornd v New York \ln;versi!Y Medical..Center, 64 NY2d 851 (1985). CPLR §3212 (b) requires that for a coun to grant summaiy judgment the coun must dctenttine if the movant's papers justify holding as a matter of law, "'that the cause of 3ction or defense has no merit.•• The evidence submitted in support of the movant musL be vie,vcd io the . l [* 5] • liJl)tl mo<1 favonblc lo tho non-movant Marine Midland Bllllc. N.A. v Din<> & Artie'< Autmnatie TrmsmiHi<>o Co., 168 AD2d 610 (2"' Dept, 1990). Summary judgmem sllall be gr.ml<d only where there arc oo issues of nuterial fact and tho C\'idcnce requires the court to dim;t judgment in (nvor or the movant as a matter of law. Friends ofAnjmaJs.. lnca. v Associated Fur Mfrs.., 46 NY2d 106S,(1979). Discussiog Aller bc;<riog Ille oral arguments and reviewing tho pupcrs submitted by the parties, the Court finds that plaintiff GLOR10US neilher has standing to maintain the wilhin action nor docs it have a valid claim to the property in question. Despite !he fact that plaintiff GLOR10US has occupied a portion of the premises in questfon for a considcnblc period of time, this filet. in an of itself, docs not confer title upon plailltiff GLORIOUS. Altl>ou&b proof of tCDallC)' miglu confer $Ullding upon plainliJl'GLORlOUS, absolutely no proof bas been otrmd that would establish that a bndlord·ten2n1 relationship ever exisled betwc:en plaintiff GLORIOUS and plaintiff NEW ROPE, who was the ownerwben plaintiff GLOPJOUS •tarted to utilize a portion of the premises. It is well sclllcd \bat a tenant is one who has, by express or imp1ied consent, been afforded the exclusive use and Q«Upation of anothets space or property with the duration and terms of this occupancy usually fixed by an instrument called a lease. Sec, Hosford t . Ballard, 39 N.Y. 147. (Ct. Of AM>cals. 1868); Resolution Trust Com, y.PiD!llOJ!d. 18 F.3d 111 (U.S. Ct Of Appoals, 2"Cir, 1994). In addition to exelusive use .00 occupotioo ofa specified portion ofproperty, two other elernenta that are pivo<al to the creation of a le3$e or ienancy are the term, or duration, .00 the rent, or consi~bon. Resolution Trust Com. v. Diamond. supra; fjflxStatg Man>...,,ent Com. -S- [* 6] v. p;oneer Auto Pa•k.<. Inc., 46 N.Y.2d 573, 389 N.E.2d 113, 415 N.Y.S.2d 800, (Ct. Of Appeals, 1979); Bem<te;n v. 1995 Asiocjalos, 185 A.D.2d 160, 586 N.Y.S.2d 11 5 (I" Dept., 1992); ~ Land, Inc. v. Chon Propertyt:om., 36 A.D.3d 748, 830 N.Y.S:id 198 (2" Dept., 2007). No written lease ~c:nt has been offered by plaintiff GLOlUOUS ••garding its use and/or o<::cUpancy of a pOrtion of the premises io. question, and even if it could prove that, by either express or implied consent, it had been afforded the exclusive use andfor occ-upation of the space in question, there is no proof of either the term of the lease or of the consideration. Morcov.,,., any claim by plaintiff GLORIOUS that the agroemcnt with plaintiff NEW HOPE for the use and/or occupancy of the space was oral in nature is undermined b)' che Statute of Frauds and General Obligations Law §5-703, which states that an oral agreement to transfer an in~csl in real property is void. and that conveyaru:es and contracts concerning real property, other than a lease for a tenn not excOoding one year, are required to be in\\.1itiog. As plaintiff GLORIOUS is not• tenant under the lllw, at best it ean be viewed as either a squatter or a licensee. A squattet has been defined as one who "settles,. on the land of another without legal authority. Williams v. Alt, 226 N.Y. 283, 123 N.B. 499 (Ct. Of Appeals, 1919); Morillo y. C;tyofNew Yo.I<, 178 A.D.2d 7, 582 N.Y.S.2d 387 (I" Dept., 1992); PauHno v. Wright, 210 A.D.2d 171, 620 N.Y.S.2d 363 (l" Dept., 1994); Lee v. New Yo•k CityDeot. of Hou.;ng Prcsro:ation and Development, 212 A.D2d 453, 622 N.Y.S.2d 944 (l" Dept., 1995). A '1ioense" is generally defined as a personal, revocable, and nonassignable privilege, conferred either orally or in writing, which pennits a particular act, or series of acts, upon the property or another. It is a nc:in-posscssory right to use the property, or any pan thereof, as specified by the parties' express or implied agreement. Semow Concessions, Inc. v. SbeJ[!)n , [* 7] , 1.J:s>pqtje. Inc., l.O N.Y.2d 320, 178 N.E.2d 726, 222 N.Y.S.2d 329 (CL Of Appeals, 196!). "A license, within the context of real property law, grants the licensee a revocable non-assignable privilege to do one or more acts upon the land of the licensor, wilhout granting possession of any interest therein." Ark BC13Qt Park CQw. v. BT"V1lnt PaTk Restoration C'.om .. 285 A.D.2d J43, 730 N.Y.S.2d 48 (I• Dept., 200!), citing G@enwood Lake & POJ:t Jroisll.!!.. Co, v, New Y!>rk & Greenwood Lake R.R. Co.• 134 N.Y. 435, 440, 31 N.E. 874 (Ct. Of Appeals, 1892); Loren v. ~. 195 A.D.2d 776, 600 N.Y.S.2d 369 (3'' Dept, 1993), Iv. dismissed 82 N.Y.2d 800, 604 N.Y.S.2d 554, 624 N.E.2d 692, Iv. dismissed in part, denied in part 83 N.Y.2d 824, 612 N.Y.S.2d 103, 634 N.E.2d 598. In this case, the fac-"' suggest that plaintiff GLORJOUS is more likely a licensee than a squatler, but this determination is, ultimate1y, irrelevant, as neither a squatter nor a licensee has standing to maintain a prooccding lo recover possession of real property. Sec, RPAPL §713; l\l?APL §721. Plaintiff GLORlOUS also claims that it h>s an ownership interest in the subject property by virtue-of its contention that it \Vas the intention of plaintiff NEW HOPE to transfcr ti Lie to the subject premises lo plaintiff GLORIOUS. However, even if the Statute of Frauds and General Obligations Law §5-703 weio not equally applicable to this clam; and contention, "11ich they are, and even if plaintiff GLORIOUS bad produced some cvidence:to prove its contention that it either purchased the subject property or were given the subject property as a gift, which it hasn't, lhe Court would still be constrained to find that plaintiff GLORJOUS could not own the subject premises. In New York St.ate, it is welJ settled that unincorporated religious organizations, like -7- [* 8] other unincorporated associations and societies, ordinarily cannot, since they have no legaJ existence unless recogni7,.ed by statute. take or hold property in' the organii.ation name, either by way of gift or purchase, in tlie absence of statutory authorization. See, Baxter v. McDonnell, 155 N.Y. 83, 49 N.E. &57 (Cl Of Apj,eats, 1898); Lougheed v. Dykeman's Baptist Chm. 129 N.Y. 211, 29Nll. 249 (Ct. Of ApPeats, 1891); Chomko,.;tz v. Russion C'n=k Orthodox Nat. A<S'n, 219 A.O. 592, 220 N.Y.S. 260 (I" Dep~. 1927); ln rcClorulenin'sEsl.W. 9 N.Y.S.2d 875 (Sur. Ct., 1939); In re Kirby's WiU, 39 Misc. 2d 190, 240 N.Y.S.2d 214 (Sur. Ct, 1963). Despite its claims to the contrary in both its pleadings and its filings, this Court finds that plaintiff GLORlOUS is not a religious corporation. Plaintiff GLORIOUS has never offered any proof in support of its claim that it ..(w]as and is a religious corporation, organized pW"Suant to tbe law of tbe Stale of New York, having its offices and place of worship localed al 470 Lafayette Avenue, Brooklyn, New- York", and a search of New York Sta!c records, conducted by this Court, found no record of a ~kligious corporation bearing the nkc GLORIOUS TEMPLE CHURCH OF GOD IN CHRJST. As such, plaintiffGl.ORJOUS cM be viC"'ed, at best, as an unincorporated religious organization. As plaintiff GLORIOUS can neilher establish that it b:is standing to maintain the within action nor can ii establish that it has :my ownership interest in lhe property located at 470 Lafayette Avenue in BrookJyn, New York,. this Court is compelled to grant the motion of defendant RODRIGUEZ in its O'Dtirety and to declare thal defendant RODRIGUEZ is the legitirt1 ownc:r of the-premises in question. The tcmporaIY restraining order issued by Justice ate Schack is, hereby, lifted, and plaintiff GLORIOUS is direeted to vacate !he premises within sixty (60) days of entry of this Ord~r. < -8- .......... [* 9] • ' Condps:iop Ac:<ordingly, it is ORDERED, !bat dcfondant RODRJGUEZ's motion for summary judgement and dismissal ofplaintifl'GLORJOUS' action, pur&uont to CPLR §3212, is granted in its entirety. This constitutes the Deets.ion end Order of the Court. E N T E R .~ .B~_,, HON. BERNADETTE B~~ 1.s.c. BERNADETTE BAYNE. Supreme Court JUl!tlce -·-

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