In the Matter of Ming Tung, et al., Appellants,v.China Buddhist Association, et al., Respondents.BriefN.Y.February 16, 2016To be Argued by: ALEXANDER P. KELLY New York County Clerk’s Index No. 110149/11 New York Supreme Court Appellate Division—First Department MING TUNG, WAI CHING CHEN and SHUN YI MON, Petitioners-Respondents, for a Judgment under Article 78 of the CPLR directing the CHINA BUDDHIST ASSOCIATION to conduct an annual membership meeting, – against – CHINA BUDDHIST ASSOCIATION, MEW FUNG CHEN, MING YEE and CHIH-CHEN MA, Respondents-Appellants. CORRECTED BRIEF FOR PETITIONERS-RESPONDENTS ALEXANDER P. KELLY, ESQ. Attorney for Petitioners-Respondents 16 Court Street, 35th Floor Brooklyn, New York 11241 (718) 422-0822 alexanderkellyattorney@msn.com PRINTED ON RECYCLED PAPER TABLE OF CONTENTS Page TABLE OF AUTHORITIES…………………………………………………ii COUNTERSTATEMENT OF QUESTION PRESENTED…………………1 COUNTERSTATEMENT OF THE NATURE OF THE ACTION………...1 COUNTERSTATEMENT OF FACTS………………………………………2 I. THE STRUCTURE OF THE CHINA BUDDHIST ASSOCIATION………………………………………………….2 II. THE PARTIES…………………………………………………..4 III. THE UNDERLYING ACTION…………………………………6 IV. THE DECISION/ORDER UNDER APPEAL………………...24 V. PENDING RELATED ACTIONS…………………………….25 ARGUMENT………………………………………………………………...28 A. THE LOWER COURT PROPERLY APPLIED THE NEUTRAL PRINCIPALS OF LAW DOCTRINE TO CORRECTLY DETERMINE THIS CONTROVERSY………28 B. RESPONDENT-APPELLANT MEW FUNG CHEN WAS NOT A TRUSTEE OF THE CHINA BUDDHIST ASSOCIATION IN 2011 AND HAD NO AUTHORITY TO ACT AS SUCH…………………………….………………35 CONCLUSION………………………………………………………………37 ii TABLE OF AUTHORITIES Cases Page(s) Cheuk Yiu Man et al. v. Yu Zhen Zhao, Supreme Court, Queens County, Index No. 2480812010 (Hon. Augustus C. Agate, J.S.C. presiding) ............................................................................... 10 China Buddhist Assn. et al. v. Kit Yee Yeung, et al., Supreme Court, New York County, Index No. 115806/2010 (Hon. Paul Wooten, J. S. C. presiding) ............................................................................... 10 China Buddhist Assn. v. Ming Tung a/k/a Ming Tong, New York City Civil Court, New York County: Housing Court, Index No. 10N090855 ................................................................................................. 11 China Buddhist Association v. Ming Tung, Supreme Court, Queens County, Index No. 1699/2011 (Hon. Frederick D. R. Sampson, J.S.C. presiding) ...................................................................... 11 The China Buddhist Assn.. et al. v. Ming Tung. et al., Supreme Court, New York County, Index No. 151656/2013 (Hon. Joan B. Lobis, JSC presiding) .................................................................................... 25 First Presbyterian Church of Schenectady v. United Presbyterian Church in the u.s., 62 N.Y.2d, 110, 121, 476 N.Y.S.2d 86 (1984), cert. denied, 469 U.S. 1037 (1984) ................................................................................... 24, 25, 31 Islamic Ctr. of Harrison v Islamic Science Foundation, 262 A.D.2d 362, 692 N.Y.S.2d 94 (2nd Dept. 1999) ....................................... 36 Jones v. Wolf, 443 U.S. 595 (1979) .................................................................................... 24, 28 Matter of Congregation Yetev Lev D 'Satmar v. Kahana, 9 N.Y. 3d 282, 879 N.Y.S. 2d 463 (2007) ............................................. 31, 32, 33 Ming Tung. et al. v. The China Buddhist Assn., et al., Supreme Court, Queens County, Index No. 4011/2011 (Hon. Valerie Brathwaite-Nelson, JSC presiding) ....................................................... 11, 12, 14 iii Ming Tung, et al. v. The China Buddhist Assn., et al., Supreme Court, New York County, Index No. 104471/2012 (Hon. Geoffrey D. Wright, JSC presiding) ................................................................. 25 Morris v. Scribner, 69 N.Y.2d 418, 423 (1988) ............................................................................... 28 Sambasiva Rao Venigalla. et al. v. Alagappa Alagappan, et al., 307 A.D.2d 1041, 763 N.Y.S.2d 765 (2nd Dept. 1983) ......................... 34 Watson v. Jones, 80 U.S. 679 (1871) .......................................................................... 28, 29,30, 31 Watt Samakki Dhammikaram. Inc. v. Thenjitto, 631 N.Y.S.2d 229,166 Misc.2d 16 (Kings S. Ct. 1995) .................................... 35 Statutes/Regulations/Miscellaneous CPLR Section 409(b) ............................................................................................ 36 Section 501(c)(3) of the Internal Revenue Code ..................................................... 2 Section 618 of the Religious Corporations Law .................................................... 26 1 COUNTERSTATEMENT OF QUESTION PRESENTED This case presents the question of whether the Supreme Court may properly apply neutral principals of law to interpret the By-Laws of an unaffiliated New York religious corporation with regard to the election of trustees, without offending the First Amendment of the United States Constitution. The lower Court properly held that it may interpret the By-Laws of such a corporation to order a proper election of trustees. COUNTERSTATEMENT OF THE NATURE OF THE ACTION This case presents the question of whether a New York religious corporation may be compelled to follow the dictates of its own By-Laws regarding the noticing and conduct of membership meetings and elections for trustees, without offending the First Amendment of the United States Constitution. This brief is submitted in reply to the Brief of the Respondents-Appellants. As we show below, the lower court in this case correctly applied the United States Supreme Court’s “neutral principals of law” analysis, which recognizes the enforceability of provisions regarding church administration, including the election of trustees, contained in a religious corporation’s governing documents. There is no basis for disturbing the lower court’s sound judgment. 2 COUNTERSTATEMENT OF FACTS I. THE STRUCTURE OF THE CHINA BUDDHIST ASSOCIATION The China Buddhist Association is a religious corporation formed in the State of New York for the purpose of serving the spiritual needs of the Buddhist community in New York City. The China Buddhist Association filed a Certificate of Incorporation with the New York County Clerk on October 3, 1963. R. 78-80. The China Buddhist Association is an independent religious corporation that is not part of any larger ecclesiastic body or organization. The China Buddhist Association was approved by the United States Internal Revenue Service as a tax exempt organization pursuant to Section 501(c)(3) of the Internal Revenue Code on April 8, 1970. R. 81-82. The New York State Department of Taxation and Finance issued the China Buddhist Association an Exempt Organization Certificate exempting the Association from New York State and local sales and use tax on July 14, 1971. R. 83. The China Buddhist Association owns and maintains two houses of worship where regular religious services are conducted, namely the Fa Wang Temple and the Ci Hang Temple. The Fa Wang Temple is the original China Buddhist Association Temple located at 245 Canal Street, New York, New York. The Fa Wang Temple opened in January, 1964, and religious services have been continuously conducted there to the present day, despite respondents-appellants 3 strenuous efforts to stop them. R. 50-57, 121, 144-148,189, 191, 255. SR. 136- 139. The Ci Hang Temple is located at 136-12 39th Avenue, Flushing, New York, and religious services have regularly been conducted there since approximately 1994. The China Buddhist Association additionally owns a retreat house located at 211 Crum Elbow Road, Hyde Park, New York 12538. R. 189. The Fa Wang Temple has by far the larger congregation of the two China Buddhist Association Temples. R. 353-387. The China Buddhist Association Fa Wang Temple appears to be the second oldest Buddhist Temple in continuous operation in the State of New York. The China Buddhist Association held its first and only undisputed membership meeting on January 2, 1964, at which time By-Laws were adopted and a Board of Trustees was elected. R. 84-115. Pursuant to the By-Laws, the Association was required to conduct annual membership meetings on the 2ndday of January of each successive year, and to conduct regular membership meetings on the first Sundays of April, July, and October of every year. R. 98-101. The China Buddhist Association By-Laws provide for the creation of a three person board of trustees charged with managing the Association. R. 98-101. Pursuant to Article Seven of the By-Laws, individual trustees must be elected at the annual membership meeting for the ensuing year to serve for a term of three 4 years, except when a vacancy arises mid-year, in which case it is supposed to be filled by majority vote of the remaining trustees to serve the balance of that year only. R. 100. The China Buddhist Association has utterly failed to follow its By-Laws. It was undisputed in the lower court that the Association failed to notice or hold another membership meeting or election of trustees after its initial meeting on January 2, 1964 until May, 2011 when the opposing parties to this action both began holding disputed membership meetings.R. 58-77, 116, 124-125, 259-261, 334-350. SR. 98 II. THE PARTIES Petitioners-Respondents Petitioner-respondent Rev. Ming Tung is an ordained Buddhist monk and a resident clergy member of the China Buddhist Association Fa Wang Temple located at 245 Canal Street, New York, New York. Rev. Ming Tung has continuously served as the presiding monk of the Fa Wang Temple since 1997. R. 50-57. Petitioner-respondent Rev. Wai Ching Chen is an ordained Buddhist nun and a resident clergy member of the China Buddhist Association Fa Wang Temple, where she has ministered as a nun since 1994. R. 30.She is also the paternal niece of respondent-appellant Mew Fung Chen. R. 50-57. 5 Petitioner-respondent Shun Yi Mon resides in New York, New York. She is an active member of the China Buddhist Association and has been so for more than forty consecutive years. R. 30. Respondents-Appellants Respondent-appellant Mew Fung Chen is the presiding monk of the China Buddhist Association Ci Hang Temple located at 136-12 39th Avenue, Flushing, New York. Respondent-appellant Chen is one of six founding members of the Association and the sole surviving member of the original China Buddhist Association board of trustees. R. 78, 79. Respondent-appellant Ming Yee is resident nun at the China Buddhist Association Ci Hang Temple located at 136-12 39th Avenue, Flushing, New York where she has ministered as a nun since 1997. Respondent-appellant Chih-Chen Ma is a resident of the State of New York, County of Queens. He is a lay member of the China Buddhist Association Ci Hang Temple who has held himself out to be a trustee of the China Buddhist Association, and he has wrongfully purported to act in such capacity with full knowledge that he is not in fact a valid trustee. R. 116-119, 304-305. Petitioner-respondent Rev. Ming Tung and respondent-appellant Mew Fung Chen have been the principal spiritual leaders of the China Buddhist Association since 1997. However, respondent Chen’s relationship with the clergy and 6 members of the China Buddhist Association Fa Wang Temple has become increasingly acrimonious and destructive since late 2009. R. 30-37, 121, 255-256 SR. 15-22. As set forth in the underlying petition, respondents-appellants have wrongfully purported to act as a Board of Trustees for the CBA beginning in June, 2009. III. THE UNDERLYING ACTION The underlying action was commenced by order to show cause and petition pursuant to Article 78 of the CPLR seeking to compel the China Buddhist Association to hold an annual membership meeting as required under its By-laws; and to appoint a receiver to determine the names and addresses of all members of the China Buddhist Association entitled to cast votes at a membership meeting for the purposes of: i. Voting for or against the dissolution of the China Buddhist Association. ii. Voting for or against the division of the China Buddhist Association into two separate religious corporations with each acquiring independent ownership of the real property and improvements of one of two Temples where religious services are regularly conducted, namely the ‘Fa Wang’ 7 Temple located at 245 Canal Street, New York, New York 10013; and the ‘Ci Hang’ Temple located at 136-12 39th Avenue, Flushing, New York 11354. iii. Voting to nominate and elect a Board of Trustees for the China Buddhist Association. R. 30-37. The underlying petition was supported by the affidavits of twelve long-term members of the China Buddhist Association who each testified unequivocally that there has never been a membership meeting of the Association called or held since the very first membership meeting in January, 1964, until the parties herein began holding disputed meetings in May, 2011. R. 50-77. The petitioners-respondents all additionally testified that each of them was repeatedly informed that he or she was a member of a China Buddhist Association board of trustees by respondent-appellant Mew Fung Chen between 2003 and 2009, and that each held them-self out as such. The petitioners-respondents further testified that none of them had seen a copy of the China Buddhist Association By- Laws until shortly before the commencement of the lower Court action in 2011. R. 30-37. As alleged in the petition, the petitioners-respondents acted as officers of the China Buddhist Association along with respondent-appellant Mew Fung Chen from at least 2003 thru 2009 without realizing they were not properly elected as 8 required under the By-Laws. Upon learning the truth, they commenced the underlying action to force the China Buddhist Association to hold a proper membership meeting. Until the latter part of 2009, the clergy of each of the two China Buddhist Association Temples was exclusively responsible for the management of its own affairs. The petitioners-respondents managed the affairs of the Fa Wang Temple autonomously, and likewise the respondents-appellants managed the Ci Hang Temple independently. Until 2009, the clergy of the two Temples regularly consulted each other regarding major acquisitions and repairs in a harmonious manner. R. 51. SR. 15. Toward the latter part of 2009, respondent-appellant Mew Fung Chen's relationship with Rev. Ming Tung slowly began to change, and it has grown increasingly sour ever since. R. 51. Toward the end of 2009, respondent-appellant Chen asked the Fa Wang Temple clergy to allow a Ci Hang Temple lay-congregant named Cheuk Yiu Man, to volunteer at the Fa Wang Temple performing some of the tasks that the Fa Wang Temple clergy had hitherto performed themselves. R. 51. Immediately thereafter, Mr. Man began to refer to himself as the “Executive Director” of the China Buddhist Association although he was in fact merely an unpaid lay volunteer. 9 Mr. Man began his work at the Fa Wang Temple by displaying a brusque officious manner toward the resident clergy and congregants that rapidly descended into open hostility, culminating in a pattern of aggressive, harassing, and violent behavior. R. 51-57, 144-148, 156-169. SR. 15 -28, 38-42, 120-125. On September 22, 2010, a shocking physical altercation broke out between Mr. Man who was then approximately 60 years old, and a female Fa Wang Temple congregant named Yu Zhen Zhao, who was then 70 years old. The incident occurred inside the prayer hall at the Fa Wang Temple after a religious service and during a luncheon of China Buddhist Association members. Mr. Man brutally beat Ms. Zhao, knocking her to the floor and repeatedly slamming her head against a steel door in front of at least 20 horrified Association members who called the police and pleaded with Mr. Man to stop. R. 52, -57, 145-146, 156-169. Ms. Zhao was taken to the hospital by ambulance and suffered permanent injuries as a result of Mr. Man’s assault. R. 52. Respondent-appellant Chen apparently blamed petitioner-appellant Rev. Tung for said incident because he sent him a letter purporting to dismiss him from his position as presiding monk of the Fa Wang Temple the following day, September 23, 2010. R. 120. 10 Thereafter, on May 16, 2011, respondent-appellant Mew Fung Chen caused a flier to be pasted to the exterior facade of the Fa Wang Temple purporting to close the Temple as a house of worship, and announcing the excommunication and expulsion of all Fa Wang Temple congregants from the China Buddhist Association as follows: “I declare that all disciples of Fa Wang Temple are hereby stripped of their blessing. They are no longer disciples of mine or members of the China Buddhist Association.” R. 121. On or about May 16, 2011 respondent-appellant Mew Fung Chen also caused the lock to the door of the 2nd floor prayer hall inside the Fa Wang temple to be changed in order to prevent the Fa Wang Temple clergy from continuing to conduct regular religious services at the Temple under the ruse of a sudden decision to renovate the space. As a result, the Fa Wang Temple prayer hall was closed for the first time since 1963, but the Fa Wang Temple clergy adapted by continuing to hold services before the altar in the open area of the third floor residential dormitory. R. 55. There has been much litigation as a result of the actions of respondent- appellant Mew Fung Chen and his agents and employees, including the following related cases: Cheuk Yiu Man et al. v. Yu Zhen Zhao, Supreme Court, Queens County, Index No. 24808/2010 (Hon. Augustus C. Agate, J.S.C. presiding); China Buddhist Assn. et al. v. Kit Yee Yeung, et al., Supreme Court, New York County, 11 Index No. 115806/2010 (Hon. Paul Wooten, J.S.C. presiding); Ming Tung, et al. v. The China Buddhist Assn., et al., Supreme Court, Queens County, Index No. 401/2011 (Hon. Valerie Brathwaite-Nelson, JSC presiding); China Buddhist Association v. Ming Tung, Supreme Court, Queens County, Index No. 1699/2011 (Hon. Frederick D. R. Sampson, J.S.C. presiding); and China Buddhist Assn. v. Ming Tung a/k/a Ming Tong, New York City Civil Court, New York County: Housing Court, Index No. 10N090855. All of the above referenced actions have now been dismissed or withdrawn. Respondent-appellant Mew Fung Chen has continued to perpetrate acts of violence and to interfere at the Fa Wang Temple to the present time through his agent Cheuk Yiu Man. On May 17, 2011, Mr. Man lunged at a reporter from the Sinovision Television News network when she began filming inside the Fa Wang Temple after he warned her not to film. There were several congregants standing between Mr. Man and the reporter at the time, and when these people realized that Mr. Man was rushing toward the reporter they did not step out of his way. Mr. Man tried to physically push these people out of his way and thereby caused several people to fall to the ground including Mr. Man himself, who landed on the floor mere inches away from several elderly CBA members who are in excess of 70 years of age. R. 146. 12 On July 1, 2011, Mr. Man violently struck petitioner-respondent Rev. Wai Ching Chen repeatedly on her hand, deeply bruising her and breaking a camera that she was holding which was dashed to the floor. R. 332. Mr. Man boldly admitted to striking Rev. Chen in his affidavit dated July 29, 2011. R. 167-168. Mr. Man’s actions on July 1, 2011 were in direct contravention of a Temporary Restraining Order issued by Hon. Valarie Brathwaite Nelson on May 25, 2011which was then in effect in the action styled Ming Tung, et al. v. The China Buddhist Assn., et al., Supreme Court, Queens County, Index No. 401/2011. R 137-138. Mr. Man willfully and knowingly violated the same Temporary Restraining Order many times by repeatedly blocking elderly CBA members from entering the Fa Wang Temple before and after the incident on July 1, 2011. R. 146-148. SR 119. In addition to acts of physical violence against the congregants of the Fa Wang Temple, respondents-appellants have also repeatedly resorted to extra judicial self-help in a misguided effort to bolster their position. On or about October 21, 2010 respondent-appellant Mew Fung Chen caused a previously unknown monk to the resident clergy at the Fa Wang Temple to move in and take up residence at said Temple along with three unknown nuns, and without consulting the petitioners-respondents. R. 53. SR. 17, 13 After moving into the Temple the new monk named Xiao Dan Wu waged a campaign of intimidation, harassment and violence against the resident clergy and long-time congregants of the Fa Wang Temple in an obvious attempt to drive them away. Xiao Dan Wu repeatedly blocked China Buddhist Association members from entering the Fa Wang Temple, and he ordered the members that he discovered inside the Temple to leave. R 53. He photographed China Buddhist Association members at prayer, and he threatened members with arrest when they refused to leave the building. R 53. Xiao Dan Wu also engaged in disgusting and provocative behavior calculated to make the Temple inhospitable. Xiao Dan Wu was observed by the Fa Wang Temple clergy pouring urine into the common hand basin located in the dormitory space on the third floor of the Temple. R. 134, SR. 17, 29. Around that time, the water tap handles at the common hand basin were often found to be covered in mucous and other slimy excretions. R. 134, SR. 17. On October 25, 2010, Xiao Dan Wu told Fa Wang Temple nun Rev. Ming Xin Shi that he knew where her family lived in China and he asked her if she wanted him “to go see them” in a menacing fashion. Rev. Shi later testified in an affidavit that this type of threat is clearly understood and very affective in her home country of China, where similar words from government officials often precede the disappearance of people. SR 38-42. 14 On November 5, 2010, Xiao Dan Wu threatened to beat petitioner- respondent Rev. Wai Ching Chen with a two foot long stick that he was holding in his hand at the time. R. 135. On November 27, 2010, Xiao Dan Wu placed cat feces on Rev. Wai Ching Chen’s prayer cushion under her neatly folded apron. R. 135, SR 19-19. On December 13, 2010, Xiao Dan Wu assaulted petitioner-respondent Rev. Ming Tung by slamming a table into his stomach, and Wu was detained by NYPD detectives for questioning as a result. R. 53. Xiao Dan Wu was named as a defendant in the action styled: Ming Tung, et al. v. The China Buddhist Assn., et al., Supreme Court, Queens County, Index No. 401/2011 (Hon. Valerie Brathwaite-Nelson presiding). Shortly thereafter, Xiao Dan Wu and two of the three nuns accompanying him suddenly fled the Fa Wang Temple. R. 53. On October 14, 2011, respondent-appellant Mew Fung Chen tried for a second time to install another monk at the Fa Wang Temple. On that date Cheuk Yiu Man entered the Fa Wang Temple accompanied by several other men. They were accompanied by a monk named Ji Guang Peng who was carrying luggage and boxes containing his belongings, and they demanded entry into the third floor residential dormitory. SR. 16-19, 21, 25-26. In response the petitioners-respondents filed an emergency Order to Show Cause in the lower court on October 20, 2011 seeking in part to enjoin 15 respondents-appellants from causing any additional persons to take up residence at the Fa Wang Temple without the unanimous consent of the existing Fa Wang Temple resident clergy. Such relief was granted in the resulting Temporary Restraining Order, but the lower court also directed the petitioners to provide the respondents with a key to the third floor residential dormitory of the Fa Wang Temple. SR. 1-3. The petitioners immediately complied by providing a copy of the key to the respondents’ attorney outside the Courthouse on October 20, 2011. Within only an hour or two thereafter, Mr. Man and the monk named Ji Guang Peng used the very same key to enter the third floor residential dormitory of the Fa Wang Temple, where they proceeded to disconnect and remove a working closed circuit television monitor from the third floor dormitory common area that had hitherto displayed live video footage from cameras located in the stairway, entry vestibule, and prayer hall of the Fa Wang Temple. SR. 38-42 Rev. Tung called the police in response, and when the police arrived they directed Mr. Man to return the video monitor to its rightful place, which he did but not before vandalizing the monitor by breaking the connecting prongs from the plug attached to the electric cord so that the monitor could not be utilized. Rev. Tung personally observed Cheuk Yiu Man snap the connecting prongs from the 16 video monitor plug, and he additionally watched Mr. Man remove a bag full of books and financial records from the Temple on the same day. SR. 38-42. As a result of the events of October 20, 2011 a second emergency Order to Show Cause seeking temporary restraint was filed by the petitioners in the underlying action. On October 21, 2011 the lower Court issued an additional Temporary Restraining Order enjoining and restraining the respondents along with their agents, employees and representatives, including Cheuk Yiu Man, from vandalizing or removing any property of any nature located inside the China Buddhist Association Fa Wang Temple. SR. 30-32. In January, 2013, the petitioners-respondents finally regained access to the 2nd floor prayer hall at the Fa Wang Temple and resumed conducting regular religious services there. Within only a few days thereafter, on January 12, 2012, Cheuk Yiu Man showed up at the Fa Wang Temple accompanied by a contractor and crew of workers who began to remove the flooring in the second floor prayer hall. SR 122-126. As a result, yet another emergency application was filed by the petitioners in the lower court on January 13, 2013 seeking in part to enjoin the respondents- appellants from removing the prayer hall flooring, which was actually in fine shape with no missing or broken tile. Petitioners’ application also sought to hold the respondents in contempt for their willful disobedience of the lower Court’s 10/21/2011 Temporary Restraining Order which enjoined them from removing any 17 property of any nature from the Fa Wang Temple, including the prayer hall floor.SR. 107-109. The petitioners contended that the flooring was being removed for the sole purpose of once again preventing them from using the prayer hall to conduct religious services. The Court issued yet another Temporary restraining Order on January 17, 2012 which enjoined and restrained the respondents along with their agents, employees and representatives, including Cheuk Yiu Man, from “performing or entering into any contracts to perform any additional construction, repairs, demolition, or modification of any kind to the premises known as the China Buddhist association Fa Wang Temple located at 245 Canal Street, New York, New York.” SR. 107-109.The petitioners’ application to hold respondents in contempt was later granted by the Court on May 9, 2012 to the extent that the Court continued its Temporary Restraining Order dated January 17, 2012. R. 22. It was against this backdrop of unfolding events that the lower court considered the petition in the underlying action. The respondents’ opposition to the underlying petition as set forth in their Verified Answer and Objections in Points of Law boiled down to one recurrent theme, which was that the lower court may not decide this controversy because it is ecclesiastical in nature, and therefore beyond the Court’s subject matter jurisdiction. The respondents never indicated in their Verified Answer and Objections in Points of Law dated October 5, 2011 that they had recently held a special 18 membership meeting and election of trustees at the Ci Hang Temple. However, during the course of the underlying litigation, the respondents-appellants unveiled a claim to have held just such a meeting and election of trustees on May 26, 2011. R. 259-317. Curiously, the respondents waited until after the petition in the underlying action was marked fully submitted by the lower court before ever mentioning their alleged election. Nonetheless, on February 2, 2012 the lower court invited the respondents to submit affidavits regarding the details of what if any advance notice was provided to the China Buddhist Association membership of their alleged May 26, 2011 special membership meeting. The lower court afforded the petitioners an opportunity to respond. The respondents submitted the affidavit of Ming Yee dated February 24, 2012, and annexed thereto as exhibits were a whole plethora of new and relevant evidence that had never before come to light in the underlying action or in any other piece of the multiple law suits that have cropped up between the parties. These new and never before seen documents were presented in respondents’ Exhibits 2, 4, 5, 6, 7, 8, 9, 10 and 13 of Ming Yee’s February 24, 2012 affidavit. R. 265,-266, 268, 269, 270, 271-303, 304-305, 307-313, 314-315, 317, 323. Included in these exhibits were the following never before seen documents: i. Corporate resolution closing the Fa Wang Temple and excommunicating its 19 congregants dated April 22, 2011. R. 255. ii. A document signed by respondent- appellant Mew Fung Chen on January 1, 2011 purporting to fill two vacancies on a board of trustees to serve the balance of 2011. R. 258. iii. A request for a special membership meeting by two of those alleged trustees dated May 12, 2011. R. 259. iv. Written notice of such a special membership meeting dated May 12, 2011. R. 260-261. v. A list of the alleged membership of the entire Association in the respondents’ opinion. R. 271-303 vi. Affidavit of service of said notice of special membership meeting signed by one Lin Fen-Yan on February 24, 2012 - almost one year after the meeting allegedly took place. R. 265-266.vii. An agenda for said meeting, along with copies of executed ballots and other well-ordered and seemingly relevant evidence of respondents’ alleged May 26, 2011 special membership meeting. In his affirmation in response to Ming Yee’s February 24, 2012 affidavit, petitioners’ attorney noted that the court had marked the petition and opposing papers in the underlying action fully submitted several months earlier. R. 323-324. Petitioners’ attorney opined in his responding affirmation that it certainly seemed bold and daring of the respondents to hold back such a treasure trove of relevant proof until such time as the Court called for supplemental affidavits. The respondents seem to have been almost prescient in divining that they would get a last minute opportunity to showcase all of their neatly ordered new documents. 20 The petitioners also submitted the affidavits of petitioners Rev. Ming Tung and Rev. Wai Ching Chen, along with the affidavits of Rev. Ming Xin Shi and six additional China Buddhist Association members in response to Ming Yee’s February 24, 2012 supplemental affidavit. All of whom testified that they did not receive any notice of the respondents’ alleged May 26, 2011 special membership meeting, nor did they hear of any other person that claimed to have received notice or to have attended the alleged meeting. R. 334-350. Respondent Ming Yee freely admitted in her supplemental affidavit that no Fa Wang Temple congregants were provided with notice of the May 26, 2011 meeting, which in her words “was mailed to existing CBA members who had not been excommunicated by Grand Master Chen”, and therefore not to any Fa Wang Temple congregants. R. 221. Surprisingly, the list of China Buddhist Association members the respondents submitted to the lower Court only includes the names of 110 people that the respondents claim is the entire membership of the China Buddhist Association.R. 307-313. Rev. Ming Tung testified in his affidavit in response that the Fa Wang Temple maintains a similar list of Association members that includes the names of 517 people, adding that many of the individuals named on the Fa Wang Temple membership list also have family members whose names are not included, but who have faithfully attended religious services and made regular 21 financial contributions to the China Buddhist Association for many years. R. 328, 353-387. Rev. Tung testified that the Fa Wang Temple has been located at the corner of Canal & Lafayette Streets in Manhattan Chinatown since 1963, which is one of the most heavily traversed corners in all of Manhattan - in his opinion. Rev. Tung further testified that the Ci Hang Temple is located near the epicenter of Flushing Chinatown. R. 329. Rev. Tung asserted that Ming Yee insulted the Court’s intelligence by alleging there are only a total of 110 members of the China Buddhist Association which has been in continuous operation for approximately 50 years, and which has two large and favorably located active temples. R. 329. Rev. Tung further testified that the respondents also excluded all of those congregants of the Ci Hang Temple that don’t agree with the ongoing persecution of the Fa Wang Temple congregants and clergy from the membership list they submitted to the lower court. R. 330. One such person is Mr. Chuen Wu, whose affidavit was submitted in response to Ming Yee’s supplemental affidavit. Mr. Wu testified that he has been a congregant of the Ci Hang Temple for the past 17 years, during which time he has faithfully attended religious ceremonies and regularly contributed financially to the association. R. 338-340. Mr. Wu testified that he never received any written notice of the alleged May 26, 2011 special membership meeting. 22 Mr. Wu further testified that he attended each religious service conducted at the Ci Hang Temple between May 7th and May 29th, 2011, and he testified that no announcement of any kind was made at any of those meetings regarding the alleged May 26, 2011 special membership meeting. R. 339. Mr. Wu further testified that the Ci Hang Temple offers a luncheon to all Association members after each regular religious service, and that he attended each luncheon offered at the Ci Hang Temple between May 7th and May 29th, 2011. R. 339. Mr. Wu testified that no announcement was made regarding the alleged May 26, 2011 special membership meeting or the proposed election of trustees at any of those luncheons, nor did he hear any discussions between the members attending these events about any meetings or elections. R. 338-339. Rev. Tung testified in his responding affidavit that he remainsin contact with several Ci Hang Temple congregants whose names appear on the respondents’ membership list, and who informed him that they never received notice of the alleged May 26, 2011 membership meeting. R 330, 331. The responding affidavits of the other China Buddhist Association members similarly state that they neither received any notice of respondents’ alleged May 26, 2011 meeting, nor do they know anyone at either Temple that did. R. 334-350. The petitioners-appellants disputed every aspect of the alleged May 26, 2011 membership meeting. They do not believe that such a meeting was ever called or 23 actually held, nor do they accept that respondent-appellant Mew Fung Chen had the authority to make mid-year board of trustee appointments on January 1, 2011. Respondent-appellant Chen was himself not a trustee of the China Buddhist Association in 2011 as he was only elected to serve a three year term as trustee in 1963. Simple logic dictates that the never before seen documents annexed as exhibits to respondent Ming Yee’s February 24, 2012 affidavit should have been submitted to the lower court much earlier if they actually existed. Rev. Ming Tung testified in his affidavit in response that in his opinion the reason these documents did not come to light sooner is because they did not sooner exist. R. 331. Rev. Tung was blunt in his testimony regarding the documents submitted by the respondents. He argued that the respondents have consistently exhibited such a wide pattern of willful bad behavior throughout the litigation between the parties that the possible wholesale manufacture and submission of false records should not be excluded by the Court. R. 333.Rev. Tung respectfully urged the lower court to consider all of the new documents submitted as exhibits to Ming Yee’s February 24, 2012 affidavit in just such a light if the lower court was inclined to consider them at all. R 333. 24 IV. THE DECISION/ORDER UNDER APPEAL A Decision/Order deciding the petition in the underlying action Index No. 110149/2011was made by the Hon. Geoffrey D. Wright, JSC dated May 8, 2012 which “directed the respondents to forthwith schedule another general meeting of the membership, petitioners included, pursuant to Articles Three and Four of the By-Laws.” R. 7-9. The lower court properly found that the respondent’s May 2011 membership meeting and the business concluded there “was outside of the rules of the China Buddhist Association Articles of Incorporation and By-laws.” R. 8. The Court did not directly rule on the issue of the excommunication of the membership of the Fa Wang Temple by respondent-appellant Mew Fung Chen, although the lower court did find “that such authority is not found in the By-laws.” R. 8. The lower Court similarly did not reach the issue of the purported dismissal of the Fa Wang Temple Clergy by respondent-appellant Mew Fung Chen. The lower court Decision/Order specifically states: “This order has no effect on the alleged removal of the leadership of the petitioners, which will await the outcome of the new meeting to be held.” R. 9. In reaching its decision, the lower court applied the “neutral principals” of law analysis developed by the United States Supreme Court in Jones v. Wolf, 443 U.S. 595 (1979), and adopted by the New York Court of Appeals in First 25 Presbyterian Church of Schenectady v. United Presbyterian Church in the U.S., 62 N.Y.2d, 110, 121, 476 N.Y.S.2d 86 (1984), cert. denied, 469 U.S. 1037 (1984). The “neutral principals” analysis provides courts with a framework to adjudicate civil disputes involving religious institutions without offending the First Amendment of the United States Constitution as long as neutral principals of law are the basis for determination. In so doing, courts may rely upon internal documents such as a congregation’s By-laws as long as those documents do not require interpretation of ecclesiastical doctrine. 443 U.S. at 602-03. The lower Court clearly avoided purely ecclesiastic issues such as excommunication and the dismissal of clergy in reaching its Decision/Order dated May 8, 2012. As a result the lower courts’ decision should be affirmed. V. PENDING RELATED ACTIONS There are two related special proceedings currently pending before the Supreme Court in addition to the underlying action. The two additional related actions are styled: Ming Tung, et al. v. The China Buddhist Assn., et al., Supreme Court, New York County, Index No. 104471/2012 (Hon. Geoffrey D. Wright, JSC presiding); and, The China Buddhist Assn., et al. v. Ming Tung, et al., Supreme Court, New York County, Index No. 151656/2013 (Hon. Joan B. Lobis, JSC presiding). 26 The former related action under Index No. 104471/2012 was commenced by two of the three petitioners-respondents herein pursuant to Section 618 of the Religious Corporations Law seeking to ratify an open and inclusive election of trustees held at a special membership meeting of the Association at the Fa Wang Temple on October 28, 2012, after the respondents-appellants disregarded the lower court's order to forthwith schedule another general meeting of the membership, petitioners included. The respondents are identical to the underlying action. The latter related action under Index No. 151656/2013 was commenced by the respondents-appellants herein pursuant to Section 618 of the Religious Corporations Law seeking to ratify the results of a subsequent trustee election they purport to have held at the Ci Hang Temple on January 2, 2013. However, the respondents-appellants again excluded the congregation and clergy of the Fa Wang Temple from their purported January 2, 2013 election, even though all of the respondents-appellants were present at the Fa Wang Temple and gave speeches to the membership immediately before the October 28, 2012 election. Both of the additional pending legal actions pursuant to Section 618 of the Religious Corporations Law have been marked fully submitted. The petitioners- respondents herein have made an application returnable on July 18, 2013 to 27 consolidate these proceedings under Index No. 104471/2012, or to set them down for joint trial. There are additional ongoing proceedings in the underlying action. On October 12, 2012, the petitioners filed an Order to Show Cause seeking to hold the respondents in contempt of court for willfully violating multiple lower court orders after Mew Fung Chen made an announcement before members of the Chinese language press that he was installing yet a third new monk to take over the stewardship of the Fa Wang Temple. On October 7, 2012 the respondents-appellants all appeared at the Fa Wang Temple accompanied by said new monk and after unsuccessfully trying to stop a religious service in progress, respondent-appellant Mew Fung Chen induced his agents to attempt to pry open the locked door to petitioner-respondent Ming Tung's private bedroom while respondent-appellant Chen stood close by along with his minion Cheuk Yiu Man. The resulting contempt proceeding is currently adjourned to July 25, 2013, for the continuation of testimony at a hearing on the issue before Justice Wright. 28 ARGUMENT A. THE LOWER COURT PROPERLY APPLIED THE NEUTRAL PRINCIPALS OF LAW DOCTRINE TO CORRECTLY DETERMINE THIS CONTROVERSY The Court of Appeals has stated that the primary purpose of the Religious Corporations Law is to provide an orderly method for the administration of the property and temporalities dedicated to the use of religious groups, and “to preserve them from exploitation by those who might divert them from true beneficiaries of the corporate trust.” Morris v. Scribner, 69 N.Y.2d 418, 423 (1988). The public interest served by the Religious Corporations Law in preserving church property and temporalities may not be thwarted simply by invoking the First Amendment of the United States Constitution as the respondents-appellants seek to do herein. The Court of Appeals has looked with favor upon the precedent established by the United States Supreme Court in Jones v. Wolf that civil disputes involving religious institutions may be adjudicated without offending the First Amendment as long as Courts apply neutral principals of law as the basis for determination. 443 U.S. 595 (1979). The respondents-appellants completely ignore the long line of precedents allowing for the adjudication of disputes involving religious institutions by applying “neutral principals of law.” Instead the appellants argue that this Court 29 should apply the doctrine of “deference” to decide this appeal, citing an 1871 United States Supreme Court decision establishing such a doctrine in the case of Watson v. Jones, 80 U.S. 679 (1871). The United States Supreme Court noted in Watson that there are basically two distinct types of churches, those that are congregational in nature and which are not subject to the established laws and procedures of a larger hierarchical body, and those that are members of a larger hierarchical organization. The Watson Court held that in the cases of churches that are a subordinate part of a larger religious organization with established rules and tribunals for ecclesiastical government, those tribunals must decide all questions of faith, discipline, rule, custom, or ecclesiastical government, and that the Courts must defer to the decisions of such tribunals. The Watson Court laid out the specifics of what has come to be known as the doctrine of deference as follows: Controversies in the civil courts concerning property rights of religious societies are generally to be decided by a reference to one or more of three propositions: (1st.) Was the property or fund which is in question, devoted by the express terms of the gift, grant, or sale by which it was acquired, to the support of any specific religious doctrine or belief, or was it acquired for the general use of the society for religious purposes, with no other limitation? (2d.) Is the society which owned it of the strictly congregational or independent form of church government, owing no submission to any organization outside the congregation? 30 (3d.) Or is it one of a number of such societies, united to form a more general body of churches, with ecclesiastical control in the general association over the members and societies of which it is composed? In the first class of cases the court will, when necessary to protect the trust to which the property has been devoted, inquire into the religious faith or practice of the parties claiming its use or control, and will see that it shall not be diverted from that trust. If the property was acquired in the ordinary way of purchase or gift, for the use of a religious society, the court will inquire who constitute that society, or its legitimate successors, and award to them the use of the property. In case of the independent order of the congregation, this is to be determined by the majority of the society, or by such organization of the society, as by its own rules constitute its government. In the class of cases in which property has been acquired in the same way by a society which constitutes a subordinate part of a general religious organization with established tribunals for ecclesiastical government, these tribunals must decide all questions of faith, discipline, rule, custom, or ecclesiastical government. In such cases where the right of property in the civil court is dependent on the question of doctrine, discipline, ecclesiastical law, rule, or custom, or church government, and that has been decided by the highest tribunal within the organization to which it has been carried, the civil court will accept that decision as conclusive, and be governed by it in its application to the case before it. Watson v. Jones, 80 U.S. at 680. The appellants’ reliance on the Watson doctrine of “deference” is clearly misguided and meritless. The China Buddhist Association is a completely independent religious corporation and not part of any larger hierarchical organization. It is therefore a congregational society under the Watson approach, and when appropriate it is subject to inquiry by the courts “into the religious faith or practice of the parties claiming its use or control.” Id. 31 As a result, the lower court’s decision in this action comports well with the standards set by the Watson Court even though the lower court applied the “neutral principals” of law analysis established by the Supreme Court in Jones. The New York Court of Appeals has clearly established its preference for the “neutral principals” of law approach to disputes regarding churches laid out in Jones over the “deference” analysis laid out in Watson. The Court of Appeals in First Presbyterian Church of Schenectady v. United Presbyterian Church in the U.S. stated as follows regarding the neutral principals of law approach: It is completely secular in operation, it is flexible enough to accommodate all forms of religious organizations and it relies upon well-established principles of law familiar to Judges and lawyers. It also provides predictability so that religious organizations may order their affairs to account for its application. Moreover, we agree with those who have observed that the doctrine is preferable to deference because it does not prefer one group of disputants to another. 62 N.Y.2d at 121. Almost every case cited by the appellants in support of their appeal is easily distinguishable from the facts at hand because they involve disputes in churches that are part of a larger hierarchical organization with well centralized governing authorities established by constitutions, and with well established procedures for dispute resolution, and rules for the removal of clergy. An exception is the case cited by the appellants, Matter of Congregation Yetev Lev D’Satmar v. Kahana, 9 N.Y. 3d 282, 879 N.Y.S. 2d 463 (2007), which they claim is dispositive of the dispute herein. At first blush, the issues presented 32 in that case seem similar, but upon a closer reading of the Court of Appeals’ decision the facts of that case are easily distinguishable from the facts at hand. The Congregation of Yetev Lev D’Satmar, case involved a leadership succession issue where, after the titular head of an Orthodox Jewish congregation passed away, a bitter feud later erupted between his two sons’ supporters as to who should properly succeed him in title, which feud split the congregation into two warring factions. Id. at 284, 285. As in this case, there were also two Temples involved in the Congregation of Yetev Lev D’Satmar, case, one in Brooklyn and one in Monroe, New York. Before the head of the larger congregation passed away, he appointed his older son the “Chief Rabbi” of the Monroe Temple and his younger son the “Chief Rabbi” of the Brooklyn Temple. Sometime thereafter a feud broke out over which of the two Rabbis should be entitled to use the title “Grand Rabbi.” Id ., at 285. The rival factions then each held a separate election of the board of directors and officers for the congregation. The first election resulted in the appointment of the petitioners in the action; with one Berl Friedman elected president. The second election resulted in someone else being elected president. The petitioners in the Satmar case subsequently commenced an action pursuant to Section 618 of the Not For Profit Corporation Law seeking an order declaring the second election held by the respondents to be null and void. The Court of Appeals noted that the Satmar petitioners’ claim that the second election was void because it was “packed” by new members and by others 33 unqualified to vote, differed from the grounds presented by the petitioners on appeal. Id., at 285, 286. The respondents in said case contended that the first election of the petitioners was a sham because Berl Freidman had previously been removed from the congregation. The Court of Appeals found that Freidman’s membership in the congregation was directly relevant to its determination of the case. The Court of Appeals concluded that it lacked jurisdiction to determine that issue because the corporation’s By-laws conditioned membership in the congregation on whether a congregant “follows the ways of the Torah”, and to make such a determination, the Court would have to delve into purely ecclesiastical doctrine. Id., at 287, 288. Such is clearly not the case in this action. Article Three of the China Buddhist Association By-Laws clearly states: “Membership in this organization shall be open to all who are of the Buddhist faith and have been admitted as disciples.” R. 95. The China Buddhist Association By-laws do not condition membership on following the ways of Buddhism, nor do they provide any mechanism for removing a member once they have been admitted as a disciple. The Court of Appeals reiterated in the Congregation of Yetev Lev D’Satmar case that civil disputes involving religious institutions may be adjudicated without offending the First Amendment of the United States Constitution as long as neutral principals of law are the basis for determination, and that in so doing, courts may rely upon internal documents such as a congregation’s By-laws as long as those documents do not require interpretation of ecclesiastical doctrine. Id., at 288. 34 The same approach was used by the lower Court herein. There are no rules contained in the China Buddhist Association By-Laws for dispute resolution or for the establishment of tribunals that might resolve disputes, nor are there any provisions in the By-Laws for the removal of clergy members or for the excommunication of members. Evidence was provided to the lower Court that admission to discipleship in the China Buddhist Association consists of a simple ceremony. Evidence of having undergone such a ceremony was presented by the petitioners and other Fa Wang Temple congregants in the form of membership certificates. R. 388-407. There is no provision in the By-Laws for the excommunication of members, and the lower court properly declined to reach that issue. The lower Court was presented with evidence that excommunication is almost completely unknown in the Buddhist Faith.Additionally, New York Courts have found that there is no established ecclesiastical procedure or tradition in the Buddhist faith such as exists in the hierarchical Anglican or Catholic Churches providing for the removal of clergymen. Watt Samakki Dhammikaram, Inc. v. Thenjitto, 631 N.Y.S.2d 229, 166 Misc.2d 16 (Kings S. Ct. 1995). However the lower court never reached the issue of excommunication in its decision and the appellants’ assertions to the contrary are simply not accurate. 35 B. RESPONDENT-APPELLANT MEW FUNG CHEN WAS NOT A TRUSTEE OF THE CHINA BUDDHIST ASSOCIATION IN 2011 AND HAD NO AUTHORITY TO ACT AS SUCH New York Courts have consistently held that persons purporting to act as trustees of religious corporations who are not validly elected to their post acquire no legal right to such office and their performance of the functions of the office without the right is a nullity. Sambasiva Rao Venigalla,et al. v. Alagappa Alagappan, et al. 307 A.D.2d 1041, 763 N.Y.S.2d 765 (2nd Dept. 1983). Because respondent-appellant Mew Fung Chen was only elected to serve as a trustee of the China Buddhist Association for a three year term in January 1964, he was not a valid trustee of the China Buddhist Association at any time in 2011. As a result, respondent-appellant Chen lacked the capacity to appoint vacancy trustees in January, 2011 and he lacked the capacity to call an alleged special membership meeting in May, 2011. Therefore, in the face of the respondent-appellants’ repeated acts of bad behavior, including the conduct of secret membership meetings that excluded the vast majority of the China Buddhist Association members, the lower Court was correct in examining the By-laws of the Association regarding the election of trustees, and the lower Court did not trample on the respondents-appellants’ First Amendment rights by ordering them to follow the By-Laws. 36 The lower Court found clear technical operational violations of the China Buddhist Association’s By-Laws in the noticing of respondents-appellants alleged May 28, 2011 trustee election. The respondents-appellants admittedly did not provide any notice of their alleged May 28, 2011 membership meeting to most of the members of the China Buddhist Association. R. 222, SR. 154. It is well settled that a decision by a lower court after a nonjury trial should not be disturbed on appeal “unless it is clear that its conclusions could not have been reached under any fair interpretation of the evidence.” Islamic Ctr. of Harrison v Islamic Science Foundation, 262 A.D.2d 362, 692 N.Y.S.2d 94 (2nd Dept. 1999).The same standard of review applies to special proceedings which are trials upon affidavits pursuant to CPLR Section 409(b). While this Court must render the decision that law and justice requires, the Supreme Court’s exercise of discretion should be afforded some deference by this Court. Especially in light of the appellants bad behavior as described at length above, which continued throughout the time the petition in the lower Court was under consideration. CONCLUSION For the foregoing reasons, it is respectfully submitted that the lower court's decision should be affirmed. Dated: November 19, 2013 AL th 16 Court Street, 3 5 Floor Brooklyn, New York 11241 Tel: (718) 422-0822 Fax: (718) 422-1032 Email: alexanderkellyattomey@msn.com Attorneys for Petitioners-Respondents 37 , APPELLATE DIVISION – FIRST DEPARTMENT PRINTING SPECIFICATIONS STATEMENT I hereby certify pursuant to 22 NYCRR § 600.10 that the foregoing brief was prepared on a computer using Microsoft Word. Type. A proportionally spaced typeface was used, as follows: Name of typeface: Times New Roman Point size: 14 Line spacing: Double Word Count. The total number of words in this brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of citations, proof of service and this Statement is 8,295. Dated: November 19, 2013 ALEXANDER P. KELLY, ESQ. 16 Court Street, 35th Floor Brooklyn, New York 11241 Tel: (718) 422-0822 Fax: (718) 422-1032 Email: alexanderkellyattorney@msn.com Attorneys for Petitioners-Respondents