Opinion
No. 104829/10.
2010-07-20
Michael ROSEN, James Garfinkel, Steven Lazarus, Bruce Montague, and Alan Dorfman, Petitioners, v. Jacob Joseph LEBEWOHL a/k/a Jack Lebewohl, David Landis, Herb Latner, Ely Moizman, Max Isaacs, Avi Bellucha, David Lessman, Jason Nagel, Gloria Karpis, Elliot Levitch, Henry Reininger, Seymour Karpas, Ruth Greenberg, Dorothy Lipson, Joshua Michael Lebewohl a/k/a Josh Lebewohl, Alfred Schoenfeld, Joshua Livnat, Bert Zachim, Allen Rickman, Evan Gasman, Roberta Weill, Marty Tessler, Adam Bloom, Gita Giar, Greg Wali and Community Synagogue Center, Respondents.
Franklyn H. Snitow, Snitow Kanfer Holtzer & Millus, LLP, New York, for Petitioners. Richard D. Emery, Eisha Jain, Ilann M. Maazel, Emery Celli Brinckerhoff & Abady LLP, New York, Israel Vider, Esq. The Law Firm of Israel Vider, Brooklyn, for Respondents.
Franklyn H. Snitow, Snitow Kanfer Holtzer & Millus, LLP, New York, for Petitioners. Richard D. Emery, Eisha Jain, Ilann M. Maazel, Emery Celli Brinckerhoff & Abady LLP, New York, Israel Vider, Esq. The Law Firm of Israel Vider, Brooklyn, for Respondents.
CAROL R. EDMEAD, J.
This is an action to set aside the election of trustees and officers of a synagogue located in the lower east side of Manhattan.
Specifically, petitioners, alleged members of the synagogue, seek the following relief: (1) a declaration that, pursuant to section 618 of the New York Not–for–Profit Corporation Law (N–PCL), the election of trustees and officers of Community Synagogue Center (CSC) held on February 7, 2010, be deemed irregular and of no effect; (2) setting aside the election of the persons elected as trustees and officers at said election; (3) fixing a new election at a time and place to be set by the court under the supervision of inspectors of election to be appointed by the court; and (4) declaring that the individuals listed on the schedule annexed as Exhibit A are the only members of CSC duly qualified to vote in said election.
The parties declined the Court's suggestion that this matter be taken to a religious forum for resolution.
The schedule so annexed includes the names of 134 individuals.
On April 20, 2010, this court granted petitioners' order to show cause for an interim stay in order to maintain the status quo as of February 6, 2010, pending a further hearing on the matter. This interim stay was subsequently vacated by the Appellate Division on May 11, 2010.
PETITIONERS' CONTENTIONS
The Petition.
According to the Petition, on December 28, 2009, a Demand for Meeting to Elect Trustees of CSC, signed by 10 members of CSC, was served on the individuals then purporting to serve as the Board of Trustees. Allegedly, the persons indicated on the above-referenced schedule were, as of December 28, 2009, members in good standing of CSC.
On Wednesday, January 21, 2010, Jeffrey Levine, a CSC member, caused a Notice of Special Meeting of CSC to be sent to all CSC members, said Notice indicating that elections for the trustees of CSC would be held on March 1, 2010.
On January 22, 2010, the Board met and voted to hold the annual meeting and election of trustees on February 7, 2010. Allegedly, CSC's by-laws provide that “The names of those nominated for office and as trustees shall be posted in a conspicuous place in the Temple at least 20 days before election.” Petitioners aver that the Board failed to post the names of those nominated for office and as trustees at least 20 days prior to the election.
On February 7, 2010, a meeting of CSC members and an election of trustees was held at the CSC offices, at which time two separate slates of proposed trustees were presented, referred to as “Slate A” and “Slate B.” The election was presided over by CSC's part-time rabbi, respondent Greg Wall (Rabbi Wall). Petitioners maintain that, according to CSC by-laws, elections are to be presided over by the CSC president, and, at the time of the contested election, Rabbi Wall was not the CSC president.
Allegedly, at the election, Rabbi Wall announced that only CSC members who attended CSC services at least once a month and contributed monies to CSC on a regular basis were qualified to vote. According to the Petition, Rabbi Wall used an arbitrary and capricious standard to determine qualified voters.Petitioners contend that the votes cast by them and other persons alleged to be CSC members in good standing were not counted. Petitioners further maintain that persons who were not members in good standing of CSC were permitted to cast votes, and that those individuals' votes were counted. The Petition alleges that Rabbi Wall and other individuals acting at the direction of the Board improperly and unlawfully disqualified petitioners' votes and the votes of other individuals similarly situated.
The ballots were collected by three attorneys hired by the Board for that purpose. At the conclusion of the election, it was announced that Slate A was elected, and that respondents David Landis (Landis), Herb Latner (Latner), Jack Lebewohl and Max Isaacs (Isaacs) were elected as officers of CSC.
Petitioners claim that the election was illegal and invalid because members in good standing of CSC were not permitted to vote and that their votes were not counted, whereas persons who were not members in good standing of CSC were allowed to vote and that those persons' votes were counted. Further, petitioners argue that the election was illegal and invalid because the names of the persons nominated as trustees were not posted at least 20 days prior to the election, and because the election was presided over by an individual who was not CSC's president, and who did not personally receive the ballots of votes, in violation of CSC's by-laws.
Petitioners are individuals who were candidates for the positions of trustees and were allegedly defeated because of the above-stated alleged improprieties, and, therefore, claim to be injured and aggrieved thereby.
Michael Rosen Affirmation in Support of Motion.
In support of the instant motion, a duly notarized affirmation has been provided by petitioner Michael Rosen (Rosen). Rosen states that, in 2008, in order to increase membership in CSC, CSC entered into an agreement with the Meaningful Life Center (MLC), an organization designed to restore Jewish identity to both practicing and unaffiliated Jews. Rosen Aff., Ex. B. According to Rosen, it is his belief that, in April of 2009, CSC's Board of Trustees held a meeting at which it was determined that elections for new officers and trustees would be held in February, 2010. At this same meeting, the Board also approved a membership drive to be spearheaded by CSC's finance committee, of which Rosen was then a member. Id., Ex. C (Minutes of April 2009 Board Meeting).
As a result of the membership drive, Rosen states that, by September, 2009, 56 individuals had joined the synagogue, some of whom were acknowledged as new members in CSC's Fall newsletter ( id., Ex.D) and in the minutes of a Board meeting held on September 16, 2009. Id., Ex. E. According to Rosen, prospective members were advised that they would have an opportunity to participate in the growth and future direction of CSC.
At the September 16, 2009, Board meeting, some concern was voiced about the synagogue being taken over by the new members, many of whom appeared to belong to MLC. A membership committee was formed to investigate the issue of membership, and it was proposed that new members not be permitted to vote for at least one year after joining, and not be permitted to become Board members for their first two years of membership. Id.
At the next meeting of the Board, held on October 21, 2009, the membership committee recommended the above-stated limitations for new members, but stated that those limitations would not apply to the next annual meeting. Concern was expressed because such limitations were not currently in CSC's by-laws. Id., Ex. H.
On November 18, 2009, two new CSC members met with Landis and Matthew Pace (Pace), then CSC Board members, for the purpose of proposing a slate of Board members for the February 2010 election. Allegedly, Landis told these new members that new members would not be nominated to the Board.
On December 9, 2009, the Board met again, and Landis expressed his concern over the large number of MLC new members, and respondent Seymour Karp (Karp) moved to review the applications of the new members a second time, and that motion passed by a vote of 10 to 2, with one abstention. Another motion was made to terminate CSC's agreement with MLC, which also passed. In addition, the Board voted to postpone the February 2010 elections until the membership issue could be resolved, and that motion also passed. Id., Ex. I.
Rosen then reiterates the facts appearing in the petition, but adds that the eventual vote for each slate was 255 to 100. Rosen states that, as of November, 2009, there were approximately 121 voting members of CSC, thereby making the election count suspect.
RESPONDENTS' OPPOSITION
Affirmations and Affidavits in Opposition.
Affidavit of David Landis.
Landis affirms that he has been the president of CSC since 2007, and a trustee since about 2000. Landis states that CSC has a very small congregation, and that it operates informally, never following any by-laws or holding regular annual meetings.
Landis claims that the agreement with MLC was intended to have MLC as a part-time licensee of the synagogue, for which it would pay a percentage of its revenue to CSC, in the hope that the agreement would provide both revenue and new CSC members. Landis claims that, contrary to CSC's intent, it is his belief that MLC had its members sign up to be members of CSC in the hopes of taking over the building that houses the synagogue, and that the presumed new members of CSC have no genuine interest in the temple or its community.
Landis says that, after the election was noticed, MLC attempted to “stack the vote” by having people who had never appeared at any CSC services turn up for the election, with membership checks paid in bulk by both MLC and James Garfinkel (Garfinkel), an MLC member. Exs. A–E. Landis states that these checks were subsequently returned; however, the persons for whom the checks were sent appeared at the election.
Landis maintains that he was present throughout the entire election, that every vote was publicly counted, that the election was overseen by Rabbi Wall, and that MLC did not put up a slate for officers, only a slate for trustees. Landis contends that, after all of the votes were tallied, even including the votes of MLC members whom he asserts had no right to vote, the CSC slate still won by a vote of 155 to 100. By a second count, deleting the persons whom respondents claim were not entitled to vote, the CSC slate still prevailed by a vote of 83 to 2.
Landis further argues that, at oral argument, petitioners claimed that under the by-laws, which Landis maintains are “defunct,” only the vote of a husband is to be counted if both spouses are CSC members. This proffered argument does not appear in the moving papers. However, Landis says that even after discounting the wives' votes, the CSC slate still would have won.
Landis concludes by stating that the ballots have been available for inspection since the election, but not a single person has asked to see them prior to the filing of the instant petition.
Affidavit of Herb Latner.
Herb Latner (Latner) is the secretary of CSC, a position that he has held for over 20 years. Latner testifies that he has searched all of CSC's records and has found no evidence of any by-laws that were properly adopted by a two-thirds majority of the members after proper notice and two meetings, as required by New York Religious Corporations Law (RCL) § 5. Further, Landis states that, even if there were properly adopted by-laws, they have not been followed for several decades. Lastly, Landis contends that the list of members appearing in the petition is not genuine, based on his personal knowledge as CSC secretary.
Affirmation of Israel Vider, Esq.
Israel Vider (Vider) is legal counsel to CSC, and attended the election that is the subject of this controversy. Vider states that, prior to the election, he met with Spencer Schneider, Esq. (Schneider), who represented members of MLC, in order to discuss voting procedures. Vider asserts that he agreed to all of Schneider's requests regarding the balloting and voting, except for the request that Schneider or Rabbi Jacobson, the MLC rabbi, speak to the members.
Schneider attended the election for approximately 2.5 hours, at which time he had to leave, and petitioner Bruce Montague (Montague) took his place to assist all MLC-affiliated members. Montague was permitted to speak on behalf of the MLC slate.
The day after the election, Schneider sent an e-mail in which he identified himself as representing the disenfranchised members of CSC. Ex. A.
Affidavit of Jacob Lebewohl.
Lebewohl is the treasurer of CSC, and states that MLC never paid its share of revenue to CSC, pursuant to the agreement between the organizations. Lebewohl asserts that the motivation behind the instant lawsuit is MLC's wish to take over CSC's facility, and points to a letter allegedly published in the newspaper Jewish Week. A typed version of this letter, authored by Alan Dorfman, appears as Ex. B to this affidavit, and states:
“In the article Hurling Curses Amid the Whitefish' (Feb. 12), Sharon Udasin wrote about the rift at the Sixth Street Community Synagogue. I happily became a new member last year in order to be a part of something special. Rabbi Simon Jacobson's goal is to revitalize the shul for everyone, old and new members alike. He has sparked the recruitment of over 100 new members, raised much-needed funds for the synagogue, and created an incredible array of classes and holiday programming where all Jewish people are welcome.
Very simply, Rabbi Jacobson's desire is to help the synagogue survive and thrive. This selfless desire was shot down last Sunday at the shul elections. The old board decided that you had to attend synagogue one time per month' to be considered a member. What was not mentioned in the article is that many new members do attend the synagogue at least once a month—for classes, programs and events throughout the week. The truth is that the one time per month' criterion is only applicable on specific days when the old board members are present.
Right now we have an opportunity to put egos and selfish desires aside. Each member of the shul, old and new, should be given an equal vote in deciding the direction of the shul's future. If we work together, we can make this small East Side shul into a hub of religious renaissance for everyone.”
Lebewohl further states that he believes that this lawsuit was instituted when MLC was notified of its alleged default in making payments to CSC.
Affirmation of Ilann M. Maazel.
Ilann M. Maazel (Maazel) is an attorney whose firm was retained by CSC to advise and oversee the election that is the subject of this lawsuit. Maazel states that MLC did not put up a slate of officers, and so the officers were elected unopposed. Maazel further says that everyone who attended the election was allowed to participate, and every single vote was tallied, although those votes deemed not valid were not counted. However, even if every single vote would have been counted, the MLC slate of trustees still would have lost by an overwhelming margin.
Maazel further argues that petitioners' attorneys and representatives watched all of the votes being counted, and that petitioners' tallies agreed with his. After the election, the ballot box was delivered to his office, where it has remained, and, at no time prior to filing the instant petition, have petitioners sought to review the ballot box. Maazel notes that petitioners instituted this action over two months after the election, and, therefore, does not see how they can claim irreparable harm.
Maazel has attached what he calls the purported by-laws of CSC (Ex. B), which state, in pertinent part:
“ARTICLE III MEMBERSHIP
SECTION I
All men and women of the Jewish faith over the age of 21 years, and of good moral character shall be eligible to membership in this organization.
SECTION II
Each prospective applicant for membership shall submit a signed application in the form to be provided and furnish the information to be requested, upon receipt of which, such application shall be referred to a Membership Committee for appropriate action as hereinafter set forth.
SECTION III
The Membership Committee shall pass upon the said application after an investigation of the applicant, and thereafter submit the name to the trustees at one of their regular meetings for their appropriate action.
SECTION IV
An applicant shall be deemed elected to membership upon the favorable recommendation of the majority of the Membership Committee and the favorable vote of the Majority of the Body at their regular meeting.
* * *
ARTICLE VI DUTIES
SECTION I
The President shall preside at all meetings.
* * *
ARTICLE X ANNUAL MEETING
SECTION I
The annual meeting of this organization shall take place on the first meeting in February of each year.
* * *
ARTICLE XII ELECTION
SECTION I
Election of officers and Trustees shall take place at the annual meeting in February.
* * *
ARTICLE XIV NOMINATION
SECTION I
At the first meeting in December, a nominating committee of 5 members shall be appointed, 3 by the President and 2 by the Vice–President. The nominating committee shall consist of two members of the Board of Trustees and 3 nontrustees. No officer or director whose term of office expires at the end of the current year shall be appointed to the membership of said nominating committee. This committee shall organize and proceed with the nomination of the officers of this organization as well as the Trustees to be elected at the next annual meeting. The names of those nominated for the office and as Trustees shall be posted in a conspicuous place in the Temple at least 20 days before election. Fifteen members in good standing shall have the right to nominate a member for an office provided the nomination is posted in the temple 2 weeks prior to the date of election and the signatures of said 15 members shall be affixed to said nomination petition.
SECTION II VOTING
All voting at election [ sic ] shall be on a written ballot. All ballots shall be secret and deposited in a ballot box and in charge of and under the supervision of Tellers, two of whom are to be appointed by the President and one by the Vice–President. Each candidate for a contested office shall have the right to appoint a watcher to supervise the count of the votes in his own contest.
SECTION III
Proxies shall not be permitted.
SECTION IV
Only members who have fully paid their dues and all obligations on the books of the organization shall be entitled to vote at an election.
SECTION V
One vote shall be allowed to each family, based upon the dues paid as hereinabove provided. It is the intention that husband and wife and children, where annual dues are paid for the family, shall be entitled to cast but one vote for the entire family. In the event of a dispute in the family with respect to such vote, the male member shall have the right to cast the vote.
* * *
ARTICLE XVI COMMITTEES
* * *
SECTION VIII MEMBERSHIP COMMITTEE
This committee shall be charged with the duty of investigating all prospective applicants for membership, and report the results of said investigation to the Trustees as hereinabove provided for.
It is noted that these by-laws are unsigned and undated.
Respondents' Argument in Opposition to the Motion.
Respondents maintain that petitioners have failed to present any evidence to challenge a single vote that was submitted in the election, and that their sole motivation is to take over CSC's valuable building, which is a landmark building constructed in 1847. The site has been the home of CSC since 1940.
Respondents argue that, when MLC failed to fulfil its financial obligation pursuant to its agreement with CSC, it decided that, rather than vacate the building, it would take over CSC and then install its own board and rabbi. To achieve this goal, according to respondents, MLC members signed up as new members of CSC, and MLC sent checks for membership fees directly from its own account on behalf of these new members, and one MLC member in particular, sent bulk membership fee checks to CSC.
Respondents allege that, in order to take over CSC, petitioner James Garfinkel (Garfinkel), along with several other MLC members, sent a letter to the board demanding a special meeting to be called to elect trustees. According to respondents, CSC had not held an election in over 10 years. Further, its purported by-laws had never been properly adopted, and had never been followed.
In response to the demand letter, the board announced that an annual meeting and election would be held on February 7, 2010, and notices to that effect were posted on the outside door and bulletin board of CSC for over two weeks prior to the election, and notice of the election was also provided in three separate Saturday services.
Fifteen members of CSC nominated a slate of candidates as officers and trustees, and posted this slate in the synagogue 15 days prior to the election. Respondents note that the MLC slate was not nominated or posted two weeks before the election, as required by the by-laws petitioners assert control the election procedures.
Respondents aver that, in order to oust the CSC board, MLC submitted several checks to CSC, representing membership fees for multiple individuals, within the two weeks prior to the election, even though CSC membership is only open to individuals and, allegedly, cannot be purchased in bulk, which is what respondents assert MLC was attempting to do.
According to the opposition papers, every person who attended the meeting was permitted to vote, and, regardless of whether the votes of individuals who CSC maintains are not members are or are not counted, the MLC slate lost the election. Additionally, respondents state that no less than 40 of the 100 people who voted for the MLC slate do not appear on the membership list provided by petitioners with respect to the instant motion, which, respondents contend, render them improper, even by petitioners' arguments. Furthermore, respondents argue that there were no improprieties or procedural irregularities involved in the election, and petitioners and MLC members and representatives were allowed to and did participate in the election.
Lastly, in response to petitioners' contention that only the president is authorized to preside over the election, respondents point to RCL § 195, which states that the minister of the church, in this instance, Rabbi Wall, shall preside over such meetings.
PETITIONERS' REPLY
In response to respondents' arguments, petitioners contend that respondents' slate would have been defeated because a significant number of individuals who voted for the CSC slate had not paid membership dues, and therefore were not qualified to vote. Petitioners assert that it was respondents who, on the eve of the election, recruited those individuals in order to “stack the vote” against the MLC slate. Petitioners say that 86 paid members of CSC voted for the MLC slate, whereas only 37 paid members voted for respondents' slate. Moreover, petitioners assert that, after they inspected the election ballots in May and June of 2010, which the court notes is several months after the present Petition was filed, they discovered that numerous ballots were submitted by proxy, which is not permitted by the by-laws.
Petitioners also maintain that the CSC by-laws referenced above control the election procedures, and may not be abrogated by Rabbi Wall immediately before the election. In support of this argument, petitioners cite to the board minutes in which Landis makes frequent references to the by-laws. However, petitioners also refer to the minutes of an April, 2009, board meeting, in which it is indicated that “the By–Laws committee is pretty close to a final product” (Motion, Ex. C), which indicates to the court that, at least at that point in time, there were no actual by-laws in operative effect.
Petitioners also challenge respondents' allegation that they posted the nomination petition in a timely manner, asserting that they were first posted on January 27, 2010, less than two weeks before the election.
Lastly, petitioners aver that a preliminary injunction is necessary to protect their interests, since respondents are attempting to cancel the MLC agreement with CSC, and that, in balancing the equities, the fairness of the vote weighs in their favor, an argument rendered moot by the Appellate Division's vacatur of this court's temporary restraining order.
RESPONDENTS' SUR–REPLY
By permission of the court, respondents have been afforded to submit a sur-reply to the arguments presented for the first time in petitioners' reply concerning petitioners' count of the actual ballots, which took place after the instant motion papers were submitted.
Landis Aff., Ex. A.
Respondents state that the results of the ballot count demonstrates that petitioners' candidates still lost, regardless of how membership is determined.
The court only allowed respondents to submit a sur-reply on the issue of the qualifications of the voters, and, although respondents re-argued other issues, the court only considered their arguments with respect to voter qualifications. The court notes that petitioners sent the court a letter on this point; however, since petitioners were not permitted to respond to the sur-reply, the court could not consider their specific arguments.
DISCUSSION
This action is brought pursuant to N–PCL § 618, which provides: “[u]pon the petition of any member aggrieved by an election and upon notice to the persons declared elected threat, the corporation and such other persons as the court may direct, the supreme court at a special term
held within the judicial district where the office of the corporation is located shall forthwith hear the proofs and allegations of the parties, and confirm the election, order a new election, or take such other action as justice may require.”
Although the statute refers to a “special term,” this court has jurisdiction to entertain this matter as a special proceeding.
Consequently, the first issue to be resolved by this court is whether petitioners are members of CSC so as to be deemed members “aggrieved by [the] election,” and it is well-settled that, in reviewing an election pursuant to N–PCL § 618, the court sits as a court of equity and should not interfere with the election unless a clear showing is made to warrant such action. Nyitray v. New York Athletic Club of City of New York, Inc., 195 A.D.2d 291, 599 N.Y.S.2d 601 (1st Dept 1993).
“The First Amendment forbids civil courts from interfering in or determining religious disputes, because there is substantial danger that the state will become entangled in essentially religious controversies or intervene on behalf of groups espousing particular doctrines or beliefs. Civil disputes involving religious parties or institutions may be adjudicated without offending the First Amendment as long as neutral principles of law are the basis for their resolution. The neutral principles of law' approach requires the court to apply objective, well-established principles of secular law to the issues [internal citations omitted].”
Matter of Congregation Yetev Lev D'Satmar, Inc. v. Kahana, 9 N.Y.3d 282, 286, 849 N.Y.S.2d 463, 879 N.E.2d 1282 (2007).
“A decision as to whether or not a member is in good standing is binding on the courts when examining the standards of membership requires intrusion into constitutionally protected ecclesiastical matters. [However,] courts generally have jurisdiction to determine whether a congregation has adhered to its own bylaws in making determinations as to the membership status of individual congregants ... [internal citations omitted].”
Id. at 287–288, 849 N.Y.S.2d 463, 879 N.E.2d 1282;Matter of Kissel v. Russian Orthodox Greek catholic Holy Trinity Church of Yonkers, 103 A.D.2d 830, 478 N.Y.S.2d 68 (2d Dept 1984).
For example, a court may determine whether a particular individual who voted at an election paid his or her dues, but may not intrude in such matters as determining whether that individual is a member in good standing according to the religious organization's internal rules (Esforms v. Brinn, 52 AD3d 459 [2d Dept 2008] ), or according to religious criteria, such as “following the ways of the Torah.” Matter of Congregation Yetev Lev D'Satmar, Inc. v. Kahana, 9 NY3d 282 (2007).
In examining questions of membership in a religious organization, in order to avoid constitutionally impermissible scrutiny into ecclesiastical matters, the courts are constrained to determine only whether the religious organization has followed its own internal rules, or, if no rules are existent, that it has followed the dictates of the New York Religious Corporations Law (RCL). Matter of Venigalla v. Alagappan, 307 A.D.2d 1041, 763 N.Y.S.2d 765 (2d Dept 2003); Islamic Center of Harrison, Inc. v. Islamic Science Foundation, Inc., 262 A.D.2d 362, 692 N.Y.S.2d 94 (2d Dept 1999).
According to the purported CSC by-laws submitted, any person over the age of 21 who is a member of the Jewish faith and of good moral character is entitled to CSC membership, upon submitting an application to the membership committee for approval.
Section 195 of New York's Religious Corporations Law (RCL) provides:
“the following persons, and no others, shall be qualified voters, to wit: All persons who are then members in good and regular standing of such church by admission into full communion or membership therewith in accordance with the rules and regulations thereof ... or who have been stated attendants on divine worship in such church and have regularly contributed to the financial support thereof during the year next preceding such meeting....”
Petitioners argue that they are members in good standing according to CSC by-laws, and that their votes were impermissibly invalidated at the disputed election. Respondents contend that the purported by-laws upon which petitioners rest their argument have never been either formally adopted by the congregation nor have they ever been followed. The only response to this assertion put forth by petitioners is the allusion to by-laws appearing in the minutes of some of the meetings of the board. However, as previously noted, those minutes also refer to a committee working on a final by-law project, and also refer to a vote to establish a membership committee, which, according to the purported by-laws, must pass on membership applications. These references appearing in the minutes of the board meetings indicate that the purported by-laws were not in effect at the time of such meetings.
As the New York Court of Appeals recently stated, “nonusage of a by-law, continuing for a considerable length of time, and acquiesced therein, will work its abrogation [internal quotation marks and citation omitted].” Matter of Venigalla v. Nori, 11 N.Y.3d 55, 62, 862 N.Y.S.2d 457, 892 N.E.2d 850 (2008). In the Venigalla case, the religious organization whose election was under scrutiny actually had by-laws that were formally adopted by the organization in 1970, but the evidence presented indicated that by 1975 the persons running the organization's affairs “had apparently forgotten (if they ever knew) that the 1970 bylaws existed.” Id. at 62,862 N.Y.S.2d 457, 892 N.E.2d 850. None of the members of the organization protested the manner in which the organization was operated until 2001. The Court stated that “[t]o allow petitioners to resuscitate the 1970 bylaws when they finally rediscovered them would be unwise and unfair [citation omitted].” Id.
In the case at bar, there is no evidence that the purported by-laws were ever formally adopted by CSC, and there is no evidence that they were ever followed for more than 40 years. Under these circumstances, based on the evidence presented, the court finds that CSC did not have operative by-laws whose provisions regarding membership and elections were not followed. As a consequence, the court must look to RCL § 195 to determine whether petitioners qualify as members of CSC entitled to vote.
Lacking internal rules regarding membership, the RCL mandates two requirements be met for persons to be considered members in good standing of a religious organization: (1) the persons claiming membership must attend divine worship at the religious organization; and (2) the persons claiming membership must regularly contribute to the religious body for the year preceding an election.
Respondents assert that the MLC-affiliated members did not meet either of these statutory requirements because they did not attend religious services at the synagogue, nor have they been members for the year preceding the election so as to allow them to contribute financial support to the congregation. As indicated above, the membership drive did not start until April of 2009, 10 months prior to the election that is the subject of this proceeding. Further, according petitioners' reply papers, petitioners do not challenge the contention that the MLC-affiliated members did not attend services at the synagogue, but assert that they did attend other functions at the premises so as to meet the spirit of the RCL.
Petitioners' argument that the allegedly aggrieved members' attendance at other functions at the synagogue constitutes appropriate attendance goes against the very wording of the statute. The statute is quite precise in stating that persons claiming to be members in the religious organization must attend divine worship, not lectures or other functions at the synagogue. Therefore, petitioners do not, by their own admission, meet the first statutory requirement to be considered members in good standing of CSC, attendance at CSC's divine worship services.
Nor do petitioners meet the second statutory requirement for being deemed members in good standing of CSC. Since petitioners were not members in any form whatsoever for one year prior to the election, it would be impossible for them to have contributed financially to CSC for the requisite statutory period. Moreover, there is no evidence that any of the MLC-affiliated members contributed any financial support to CSC at all, other than the requisite membership fee.
As a consequence of the foregoing, the court concludes that petitioners are not members of CSC within the meaning of RCL § 195, and, therefore, lack standing to bring this suit pursuant to N–PCL § 618.
However, even if the court were to determine that petitioners do have standing to bring the instant action, they still would not be able to prevail.
First, petitioners' argument that notice of the election did not conform to the purported CSC by-laws is found to be unpersuasive. Even though the notice of the election did fall short, by a few days, of the purported by-laws' requirements, “there is no evidence that a member was prevented from voting due to lack of notice.” Sillah v. Tanvir, 18 A.D.3d 223, 224, 794 N.Y.S.2d 348 (1st Dept 2005).
Second, the court also finds unpersuasive the fact that the rabbi, rather than the president, presided over the election. Since the president was one of the candidates up for re-election, the court believes that it would have been unwise for him to preside over his own election. Moreover, even though he did not preside at the meeting, he was in full attendance, and, pursuant to RCL § 195, it is the rabbi who is the first person authorized by statute to preside over meetings held for the purpose of elections.
Third, voting by written proxy is permitted under section 208 of the RCL.
Fourth, and finally, although both sides argue the numbers as to what each considers to be “valid votes” to determine the eventual election outcome, petitioners have not provided sufficient and conclusive evidence, such as certified copies of the actual ballots, that they would have prevailed at the election had their votes been counted. Nyitray v. New York Athletic Club of City of New York, Inc., 195 A.D.2d 291, 599 N.Y.S.2d 601,supra. Furthermore, this argument misses the primary issue as to whether petitioners are members of CSC with the legal right to challenge a CSC election, regardless of any alleged improprieties and irregularities.
Notwithstanding the preceding, even if the court were to determine that the subject election was invalid, the court only has the legal authority to pass on the validity of an election that has been held, and to confirm or invalidate it, but it lacks the authority, absent a stipulation between the parties, to act in advance of an election to determine qualifications of voters. See Rector, Church Wardens and Vestrymen of St. Bartholomew's Church in City of New York v. Committee to Preserve St. Bartholomew's Church, Inc., 85 A.D.2d 425, 448 N.Y.S.2d 155 (1st Dept), affd56 N.Y.2d 71, 451 N.Y.S.2d 39, 436 N.E.2d 489 (1982). Therefore, the court, under any circumstances, could not grant petitioners' fourth requested relief.
As a consequence, based on the foregoing, the court finds that petitioners do not meet the statutory requirements of N–PCL § 618, so as to maintain the present proceeding.
CONCLUSION
Based on the foregoing, it is hereby
ORDERED and ADJUDGED that the petition is denied and the proceeding is dismissed; and it is further
ORDERED that counsel for respondents shall serve a copy of this order with notice of entry within twenty (20) days of entry on counsel for petitioners.