Matter of Metropolitan N.Y. Synod of the Lutheran Church in Am. v Berg

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Matter of Metropolitan N.Y. Synod of the Lutheran Church in Am. v Berg 2020 NY Slip Op 32238(U) July 10, 2020 Supreme Court, New York County Docket Number: 156485/2018 Judge: Debra A. James Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] NEW YORK COUNTY CLERK 07/10/2020 04:52 PM INDEX NO. 156485/2018 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 07/10/2020 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: lAS MOTION 59EFM PART HaN. DEBRA A. JAMES Justice ______________________________________________________ ------------------------X INDEX NO. In the Matter of the Application of 156485/2018 MOTION DATE METROPOLITAN NEW YORK SYNOD of the EVANGELICAL LUTHERAN CHURCH in AMERICA, individually and as administrator of the property of the Kingsbridge Evangelical Lutheran Church, 03/12/2019 MOTION SEQ. NO. 001 Petitioner, For leave to transfer certain real property of KINGSBRIDGE EVANGELICAL LUTHERAN CHURCH, Pursuant to Section 12 of the Religious Corporations Law, DECISION + ORDER ON MOTION - vLLOYD BERG, JOHN L1NINS also known as JOHN L1NNIS, individually and as officers and members of the Congregation Council of Kingsbridge Evangelical Lutheran Church, and JOHN DOE 1 through 5, and JANE DOE 1 through 5, Respondents. ----------------------------------------------------------------------------The following e-filed documents, 20,21,28,29,30,31 X listed by NYSCEF document number (Motion 001) 13, 16, 17, 18, 19, JUDGMENT-DECLARATORY were read on this motion for ORDER Upon the foregoing ORDERED that the branch summary'declaratory the petition ADJUDGED Law ~ 17-c, addresses documents, motion that seeks ti tie' to the Bailey a of and it is further and DECLARED 156485/2018 METROPOLITAN Motion No. 001 of petitioner's judgment with respect to the subject matter is granted; 3130 it is that pursuant real Avenue, property 3132 known Bailey NEW YORK SYNOD vs. BERG, LLOYD A. 1 of 9 to Religious as Avenue, Corporation and by street 3134 Bailey Page 1 of 9 [*FILED: 2] NEW YORK COUNTY CLERK 07/10/2020 04:52 PM INDEX NO. 156485/2018 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 07/10/2020 Avenue, and 3420 Giles of York New (and Place, County designated on of the Bronx, the Tax Map City and State of Bronx County, ,- respectively, as Block 3261, Lots 33 and 36 for the Bailey Avenue properties, and Block 3255, Lot 29 for the Giles property") is Evangelica) Lutheran confirmed to Church to York Synod of the Evangelical deeds from Kingsbridge Metropolitan America Bronx County; York Ltitheran Church Kingsbridge Metropolitan in America Lutheran in the Office and DECLARED that Church Lutheran OF the City any officers New York Synod of the Evangelical acting individually Synod petitioner Evangelical be recorded from of the Register of the o~ the peti tioner Lutheran Church and on behalf of the Metropolitan Evangelical Lutheran Churn in America Lutheran Church, be authorized acknowledge and deliver any and all such other documents to transfer or otherwise Metropolitan in America, confirm ownership New York Synod of the Evangelical & Schoenfeld Metropolitan New York Synod of the Evangelical America, deemed that such transfer 156485/2018 METROPOLITAN Motion No. 001 reasonable, be properly necessary, effectuated, NEW YORK SYNOD vs. BERG, LLOYD A. 2 of 9 New and required to Lutheran as may, on advice LLP, counsel of to execute, of the real property and to do all such things Capell Barnett Matalon be to in Evangelical Church and that Church Kingsbridge petitioner New and it is further ADJUDGED America, the passed New York Synod of the Evangelical shall Metropolitan have Place) (the "real of to the petitioner Lutheran proper or Church in convenient and that thd officers Page 2 of 9 [*FILED: 3] NEW YORK COUNTY CLERK 07/10/2020 04:52 PM INDEX NO. 156485/2018 NYSCEF DOC. NO. 36 of RECEIVED NYSCEF: 07/10/2020 the Church Metropolitan in America, petitioner Church New York Synod of. the Evangelical each and any of them, acting Metropolitan in America, and fees relating Lutheran on behalf New York Synod of the Evangelical pay all such customary to the transfer and/or of the Lutheran required of the real property; costs and it is further ADJUDGED and DECLARED and to the personal all of its books wherever held Lutheran Church, Metropolitan America, change property records for has as or on any behalf to therein a/k/a petitioner and sec6re forthwith; and John DECLARED Linnis, money of and is or its now rests including Evangelical in petitioner Lutheran and of its real in equivalent, Kingsbridge authorized possession Church allowed in to and personal and it is further that John respondents Doe through 5 and/or any other individuals using the subject and interest the real property, and passed such, locks ADJUDGED Linins within title New York Synod of the Evangelical and the property and by, that all right, real property Lloyd Berg, 5 and Jane 1 through or entities for any purpose any further use, subject to the Court's contempt occupying John Doe and/or are enjoined powers; 1 from and it is further ADJUDGED and DECLARED respondents or anyone or control, or representing 156485/2018 METROPOLITAN Motion No. 001 that a permanent of them from maintaining or holding NEW YORK SYNOD VS. BERG, LLOYD A. 3 of 9 injunction enjoining possession, out themselves custody or anyone Page 3 of9 [*FILED: 4] NEW YORK COUNTY CLERK 07/10/2020 04:52 PM INDEX NO. 156485/2018 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 07/10/2020 of them as officers, Lutheran over or clergy or as maintaining and records and any money for or on behalf of Kingsbridge possession, any of the real or personal books by, Church agents property, custody or control, including or its equivalent, of Kingsbridge Evangelical Evangelical all of its wherever Lutheran held Church; and it is further ORDERED dismissal that of the counterclaims the reply .ORDERED and ADJUDGED respondents, petitioner counterclaims are dismissed 475 Riverside of Drive, having New is granted that petitioner, York, New an office York at 3130 in the sum of $ by the Clerk, petitioner making in all have execution sum of summary respondents' and it is further having 10115, Bailey seeks and in their entirety; York, costs and ?isbursements the that an address do recover Avenue, at from Bronx, New as taxed $ and therefor. DECISION Petitioner Evangelical Lutheran this proceeding, seeking the Metropolitan Church pursuant to have property property, in America to Religious located held by the Kingsbridge (the "Congregation") 156485/2018 METROPOLITAN Motion No. 001 New York Synod transferred NEW YORK SYNOD vs. (Synod) of the (the "Church") Corporation in Bronx County Evangelical commences Law ~ 17-c, the real Lutheran Church to itself. BERG, LLOYD A. 4 of 9 Page 4 of9 [*FILED: 5] NEW YORK COUNTY CLERK 07/10/2020 04:52 PM NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 07/10/2020 Petitioner synods, is the ecumenical of the larger which has governing congregations Evangelical unit, one of sixty-five Lutheran responsibilities Its verified petition Lloyd Berg was the "Sunday pulpit Linins, the that respondent (as opposed and belief, also known as John Linnis, of America, allegedly, asserts supply" and, that, upon information Church over its member in New York City, including, Congregation. pastor INDEX NO. 156485/2018 to call) respondent was the president John of the Congregation. Petitioner Constitution, asserts having [the Congregation] that, in accordance found that, inter alia, "the membership has become so scattered numbers as to make it impractical fulfill the purposes protect such congregation's deterioration", ownership, Congregation. and personal Constitution, for such a congregation property property to to take of the on June 23, 2015, the Synod to take ownership of the Congregation. the Congregation in and so as "to proceedings of the real property At; such proceedings, of from waste and ecclesiastical and control adopted, the resolution or so diminished for which it was organized", it commenced charge with S 13.24 of its and control of the real Under the Synod's had a right to appeal, but never did so. Pursuant to ~eligious such resolution, 156485/2018 METROPOLITAN Motion No. 001 petitioner Corporation brings this proceeding NEW YORK SYNOD VS. BERG, LLOYD A. 5 of 9 Law S 17-C, to effectuate to transfer Page 5 of 9 [*FILED: 6] NEW YORK COUNTY CLERK 07/10/2020 04:52 PM INDEX NO. 156485/2018 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 07/10/2020 title to and cOhtrol contents thereof Courts affiliates of the subject from the Congregation have repeatedly to exercise congregations pursuant and the to itself. held that the petitioner upon presentation are entitled real property of supporting jurisdiction evidentiary and authority to the Church's and its matter over member constitution. As stated by the Court, "The constitution of ELCA [Evangelical Lutheran Church of America] and section 17-c of the Religious Corporations Law likewise authorize the Synod to take control of a congregation's property in order to protect the property from waste and deterioration, and the statute also provides that its provision,s are '[s]ubject to the provisions of the governing documents of congregations' (Religious Corporations Law~ 17-c [2] [c])." Upsta te New York Synod of Evangelical Lutheran Church in Am. v Christ Evangelical Lutheran Church of Buffalo, 185 AD2d 693, 69394 (4th Dept 1992); see also Metro. New York Synod of Evangelical Lutheran Church of Am. v David, 95 AD3d 419 (1St Dept 2012). In this case, the respondents' asserts that the Congregation of the petitioner. petitioner received withdrew knowledge affirmative respect respondents to whether Congregation. as of April allegations NEW YORK SYNOD states of which to petitioner's prima fail to raise an issue of fact with "general that the Congregation 156485/2018 METROPOLITAN Motion No. 001 defense 16, 2016. the Synod has jurisdiction Respondents' defense from petitioner, This court finds that, in response facie evidence, affirmative never was under the jurisdiction Their twelfth that the Congregation eleventh VS. denial" over the of petitioner's joined the Church BERG, LLOYD A. 6 of 9 and Synod Page 6 of 9 in [*FILED: 7] NEW YORK COUNTY CLERK 07/10/2020 04:52 PM INDEX NO. 156485/2018 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 07/10/2020 1987 is insufficient Moreover, respondents' therefore lacking Petitioner incorporation and bylaws attach to raise an issue of fact as to same. evidence submits a~sertion Chapter Congregation's Congregation jurisdiction, only several respondents pages of the which do not refute Each page of the Congregation's which tends to support adopted the Church and attorned 6, entitled petitioner's to the Synod's supports is under the Church's, FOR and Synod in 1987, "CHURCH AFFILIATION, constitution over the constitution footer "MODEL CONSTITUTION that "(b)y joining Congregation) In contrast, 2017. answer (11-2013)", of 21, 1987 and its own constitution proof that the Synod has jurisdiction the following CONGREGATIONS and copies of its certificate 200+ page constitution, Congregation. contains a complete dated September " to their verified petitioner's inconsistent in credibility. as of September Congregation's is internally (the Constitution." of the petitioner's and therefore, proof that the the Synod's, stating, "This congregation shall be an interdependent part of . the Evangelical Lutheran Church in America or its successors, and of the (insert the name of synod) Synod of the Evangelical Church in America. This congregation is subject to the discipline of the Evangelical Church in America." The respondents' under the Synod's 156485/2018 METROPOLITAN Motion No. 001 defense jurisdiction that the Congregation is contradicted NEW YORK SYNOD vs. BERG, LLOYD A. 7 of 9 was never by such excerpt Page 7 of 9 [*FILED: 8] NEW YORK COUNTY CLERK 07/10/2020 04:52 PM INDEX NO. 156485/2018 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 07/10/2020 as well as by their twelfth Congregation "withdrew Moreover, wi thdraw forward Berg to the Synod, attached from the Evangelical inadmissible Lutheran hearsay. withdraw from the Synod or the Church, required under other provisions constitution according 156485/2018 METROPOLITAN Motion No. 001 VS. do not come membership meeting BERG, LLOYD A. 8 of 9 time to in America" resolution or vote to such meeting of the Congregation's to the excerpts NEW YORK SYNOD Church Respondents of any special membership 16, 2016, to respondents' has voted for a second with a copy of any Congregation other record that the in the letter dated April "that the congregation constitutes defense from Petitioner". the statement from respondent answer, affirmative they submit. or vote own Nor do Page 8 of 9 or [*FILED: 9] NEW YORK COUNTY CLERK 07/10/2020 04:52 PM NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 07/10/2020 respondents assert any date that the Congregation its first vote to withdraw that respondent petitioner Accordingly, pursuant concurs in ecclesiastical by this court. Metropolitan petitioner to'Religious proceedings with petitioner proceedings is entitled Corporation are not reviewable to the relief supra. it seeks Law ~ 17-c. jA o'{{--' J-- 6q BRA A, JAMES, J,S~, &~ ONE: CASE DISPOSED X GRANTED D NON.FINAL DENIED GRANTED APPLICATION: SETTLE ORDER SUBMIT CHECK,IF INCLUDES FIDUCIARY APPROPRIATE: of June that the New York Synod v David, 07/10/2020 DATE CHECK took 16, 2016 letter was sent to only after the ecclesiastical taken allegedly This court notes from the Church. Berg's April 2015, and, in any event, actions INDEX NO. 156485/2018 ~ TRANSFER/REASSIGN ~ DISPOSITION IN PART ORDER APPOINTMENT D OTHER D REFERENCE I 156~85/2018 METROPOLITAN Motion No, 001 NEW YORK SYNOD vs BERG . LLOYD A I • Page 9 of 9 ! I I I 9 of 9 \

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