Kneses Israel of Sea-Gate v Fettman

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Kneses Israel of Sea-Gate v Fettman 2020 NY Slip Op 33848(U) November 2, 2020 Supreme Court, Kings County Docket Number: 516508/18 Judge: Kathy J. King 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] KINGS COUNTY CLERK 11/04/2020 INDEX NO. 516508/2018 NYSCEF DOC. NO. 661 RECEIVED NYSCEF: 11/18/2020 At an !AS Term, Part 64 of the Supreme Court of the State of New York, l1eld in and for the County of Kings, at the Courthouse, at Civic Center, Brooklyn, New York, on the 2nd day of November, 2020. PRES ENT: HON. KATHY J. KING, Justice. ------------------------------------------X KNESES ISRAEL OF SEA-GATE, by WAYNE BUTLER, and its members MARK SILBER and HENRY GRUNBAUM, Petitioner, -against- Index No. 516508/18 MOSHE fETTMAN, JEFF BEYLINSON, JOSEPH BEYLINSON, SHMUELP. MARSOW, NATALYAPERMYAKOVA, LEVI Mot. Seq. Nos. 20, 22, 23 & 24 PAVLOVSKY, JULIA SLAVIN AS PUTATIVE OFFICERS OF KNESES ISRAEL OF SEA-GATE, RABBI CHAIM BRIKMAN, and UNITED TALMUDICAL ACADEMY OF BORO PARK, Respondents, ATTORNEY GENERAL OF THE STATE OF NE\V YORK, Statutory Notice Respondent. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X The following papers number 1 to 17 read herein: Notice of Motion and Affidavits (Affirmations) Annexed Papers Numbered 1-2 2-4. 5'6. 7-8 Opposing Affidavits (Affirmations) 9, 10, 11, 12, 13, 14, 15, 16, 11 The Court hereby consolidates the within motions for disposition as follows: Motion Seq. No. 20 Petitioners' motion to remove Yisroel Schulman from decision making regarding temporal affairs is granted (Mot. Seq. No. 20). Consistent herewith, the Court also sua sponte amends its order dated July 23, 2020 nunc pro t11nc, to also include the removal 1 1 of 5 [*FILED: 2] KINGS COUNTY CLERK 11/04/2020 NYSCEF DOC. NO. 661 INDEX NO. 516508/2018 RECEIVED NYSCEF: 11/18/2020 of Israel Goldberg from decision making regarding terrtporal affairs of Kneses Israel of Seagate ("Kneses") (Mot. Seq. No.19). Motion Seq. No. 22 Respondents' motion for judicial approval ofKneses' proposed lease of the property located at 3716 Surf Avenue, Brooklyn, NY is granted (Mot. Seq. No. 22). The order granting said approval is attached herein and incorporated by reference. Petitioner in its opposition papers indicate that there is no opposition to Kneses leasing its property to Seagate. Hov·.rever, petitioner contends that the movant fails to attach requisite information pursuant to New York Not for Profit Law ("N-PCL") § 511. Religious Corporations Law§ 12(1) provides that in order to sell any of its real property, a religious corporation must apply for, and obtain, leave of court pursuant to N-PCL§ 511; (see Congregation Nachlas Jacob Anshe Sfard ofJackson Hgts. v Sch1yarz, 152 AD3d 647, 647 [2d Dept2017]). N-PCL 511 (d) provides a two prong test which states "if it shall appear, to the satisfaction of the court, that the consideration and the terms of the transaction are fair and reasonable to the corporation and that the purposes of the corporation or the interests of the members will be promoted, it 1nay authorize the sale, lease, exchange or other disposition of all or substantially all the assets of the corporation, as described in the petition, for such consideration an-d upon such terms as the court may prescribe." Contrary to petitioners' contentions, the Court finds that the petition, togetl1er \Vith the docurne11tary evidence submitted in support of the petition meet the requireme11ts ofN-PCL§ 511, and that based on review thereof, the ter1ns of the lease are fair and reasonable, and are in the best interests ofKneses. 2 2 of 5 [*FILED: 3] KINGS COUNTY CLERK 11/04/2020 NYSCEF DOC. NO. 661 INDEX NO. 516508/2018 RECEIVED NYSCEF: 11/18/2020 The branch of respondents' motion seeking an order directing the Landlord/Tenru1t court to proceed with the-eviction of United Talmudical Academy ofBoro Park ("UTA") is denied without prejudice to renew (Mot. Seq. No.22). B:y order dated September 25, 2019, this Court vacated a stay to reinstate the Landlord/Tenant action captioned UTA ofBaro Park v Congregation Kneses Israel a/Sea-Gate Index No. 80264/2017. The Landlord/Tenant comt by order dated December 19, 2019 (J. Gerstein) denied the motion of respondents without prejudice to renew1 citing this Court's June 5, 2019 order which directed respondents to withdraw duplicative relief pending in Civil Court. Specificall:y, J. Gerstein found-that the counterclaims and cross-claims ofKneses in the Supreme Court action, e.g., " ... to have the lease between UTA and Kneses declared invalid or rescinded," are issues which would have to be litigated in the holdover proceeding and may arguably render the relief sought in Civil Court duplicative of that sought in Supreme Court." Accordingly, Respondent now contends that in _order to restore the Landlord/Tenant case, a further order of clarificatio11 is needed. While the Appellate Division denied UTA's application to stay the enforcement of the September 25, 2019 order, in all other respects said ·order remains in effect, including that branch of the order vacating the stay of the framed issue hearing, which shall determine whether the July 9, 2018 meeting ofKneses was valid. In this regard, the fmdings of the JHO shall assist the Court in making a declaration regarding the claims, counterclaims and cross claims of the respective parties raised in the underlying proceeding, and may include enforcement of any previously obtained judgments in the Landlord/Tenant court. Accordingly, the motion is denied since the framed issue hearing is- extant. 3 3 of 5 [*FILED: 4] KINGS COUNTY CLERK 11/04/2020 NYSCEF DOC. NO. 661 INDEX NO. 516508/2018 RECEIVED NYSCEF: 11/18/2020 Mot, Seq. No. 23 Respondent Brickman's order to show cause to pennanently enjoin UTA from utilizing the synagogue annex building is denied without prejudice to renew pending the findings of the framed issue hearing. The temporary restraining order also remains in effect pending the findings of the framed issue hearing (1v1ot. Seq. No. 23). Mot. Seq. No. 24 Respondent UTA moves by order to show cause to; (1) allow UTA immediate and mrrestricted access to the premises located at 3803 Nautilus A venue and (2) vacate the de facto ex parte temporary restraining order of February 24, 2020 issued in connection with motion (Mot. Seq. No. 24). UT A's application for a preliminary injunction is denied in its entirety, since movant has failed to meet the criteria set forth in CPLR 6301. Significantly, UTA 's right to possession of the premises located at 3803 Nautilus Avenue is based upon whether UTA has a valid leasehold interest, which is presently subject to the framed issue hearing. Movant has also failed to demonstrate how the balance of the equities favor educating young men against the public health risk of congregating at the synagogue and causing potential harm to the congregant members of Kneses. The Cotut notes that respondent Brikman, in opposition, cites Governor Cuomo's Executive Order 28 which indicates that Kneses is located in area of Brooklyn with a high level of COVID-19 infection. According to the Brooklyn cluster map, Kneses is in a "yellow cluster zone," wherein additional restrictio11s on gathering have been imposed by the Governor's order. UTA also contends that the February 24, 2020 temporary restraining order should be vacated since this Court denied the underlying contempt motion upon which it was based. Tue Court disagrees. The criteria for establishing the respective remedies of contempt and injunctive relief are separate and distinct and are not legall)' interdependent. In the case at bar, the initial 4 4 of 5 [*FILED: 5] KINGS COUNTY CLERK 11/04/2020 INDEX NO. 516508/2018 NYSCEF DOC. NO. 661 RECEIVED NYSCEF: 11/18/2020 TRO was granted on February 24, 2020. The TRO was extended on September 4, 2020 and pursuant to the within order is being extended pending the findings of the framed issue hearing. Based on the foregoing, UTA' s motion is denied in its entirety. ENTER, HON. KATHY J. KING J.S.C · 5 5 of 5 1j0N. KATHY J. KING JSC

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