MCGRUDER v. ABYSSINIAN BAPTIST CHURCH IN THE CITY OF NEW YORK INC (2025)

Petitioners, Doctor Kevin McGruder (Dr. McGruder), Jasmine G. McFarlane-White (McFarlane-White), Clarence E. Ball, III (Ball), and Reverend Dr. C. Vernon Mason, Sr. (Rev. Dr. Mason) (collectively Petitioners) are each current or former members of the Abyssinian Baptist Church of the City of New York, Inc. (Abyssinian Baptist Church or Abyssinian). Petitioners challenge, pursuant to New York Not-for-Profit Corporations Law (N-PCL) 618, the validity of the election of Rev. Dr. Kevin R. Johnson as pastor of the Abyssinian Baptist Church (NY St Cts Elec Filing [NYSCEF] Doc No. 19). In support, petitioners submit, among other things, the affirmations of Dr. McGruder, Gilda Squire, McFarlane-White, Rossie Turman, Rev. Dr. Mason, Tiffany Meriweather as well as a copy of the church bylaws, the job posting, and a certified Final Copy of the 2024 Pastoral Ballot (NYSCEF Doc Nos. 5-12, 17, 22). Respondents are the Abyssinian Baptist Church and Rev. Dr. Kevin R. Johnson (collectively Respondents).

Pertinent Facts

The Abyssinian Baptist Church was founded in 1808 and is purportedly the oldest black Baptist church in the State of New York. In May 2022, the pastor of the Abyssinian Baptist Church, the late Rev. Dr. Calvin O. Butts, III, assembled a search committee to find a new pastor. The pastoral search committee (PSC) consisted of 27 members from the Abyssinian Baptist Church. Petitioner Rev. Dr. Mason was a member of the PSC. The PSC identified five finalist candidates for pastor of the church. Of the finalist, Rev. Dr. Kevin R. Johnson was chosen by the PSC and presented to the congregation for voting. Online voting took place on June 21, 2024, and in person voting occurred on the afternoon of Sunday, June 23, 2024, with all voting concluding by 6:00 p.m. There were 2,738 members in good standing who were eligible to vote (NYSCEF Doc No. 17 at 1). A total of 1,208 votes were cast (id.). Rev. Dr. Johnson received 672 affirmative votes and 535 negative votes (id.). At approximately 7:24 p.m. on June 23, 2024, the church announced via e-mail that Rev. Dr. Johnson had been elected as the new pastor of Abyssinian. Rev. Dr. Johnson was installed as Senior Pastor of the church on September 30, 2024.

Petitioners argue that the election process was flawed and not conducted in accordance with the church's bylaws, statutory requirement or other legalities. Petitioners contend that (1) Rev. Dr. Johnson was not elected by a majority of the Church's eligible voters as required by bylaws Article VII, Section 1; (2) the meeting for the election lacked a quorum of 200 members physically present, as required in bylaws Article V, Section 5; (3) the election violated Section 133 of New York's Religious Corporations Law (“RCL”) by denying a vote on a motion put on the floor to re-start the pastoral search process; (4) the pastoral search committee was improperly constituted; (5) the vote for the new pastor took place without a congregational vote on the terms of his compensation package; and (6) the election meeting was not called as required by bylaws Article V, Section 4 (NYSCEF Doc No. 1 at 2; NYSCEF Doc No. 36 at 2).

Respondents cross move to dismiss the petition pursuant to CPLR 404 (a) and 3211 (a)(2), (3) and (7) (NYSCEF Doc No. 28). In support of their motion, respondents submit the affirmation of Sheila S. Boston, the Church Clerk at Abyssinian Baptist Church attaching the minutes from the church's annual meeting from February 4, 2024 and February 5, 2023 as well as the minutes from the annual corporate meeting held on February 4, 2024 (NYSCEF Doc Nos. 30-33). Respondents contend that the petition should be dismissed because the court lacks jurisdiction, petitioners lack standing, and the petition fails to state a cause of action (NYSCEF Doc No. 29). Respondents argue that the petition is deficient because it challenges the candidate selected, not the election process. They contend that petitioners’ objection to Rev. Dr. Johnson stems from him having served as a pastor at a “non-denominational” church (NYSCEF Doc No. 29 at 7-8). Petitioners allegedly lack standing because they seek to assert a derivative action pursuant to Section 623 of the N-PCL on behalf of the church members, however, petitioners lack the necessary five percent of the members to maintain such an action (id. at 10-13). Respondents further contend that the allegations in the petition fail to demonstrate fraud or wrongdoing (id. at 13-22).

Petitioners oppose the motion arguing that respondents have failed to comply with the church's own rules, and therefore the court can determine the petitioners’ claims according to the neutral principles of law without entangling the court in religious doctrine (NYSCEF Doc No. 36). Petitioners dispute that they lack standing, arguing that this is not a derivative action under Section 623 of the N-PCL and they are aggrieved as defined by Section 618 of the N-PCL (id.).

In reply, respondents reiterate their arguments that petitioners lack standing as petitioners failed to specify how they were aggrieved; the court lacks jurisdiction because petitioners seek relief about an ecclesiastical matter, and petitioners failed to state sufficient allegations demonstrating fraud or wrongdoing in the election process (NYSCEF Doc No. 37).

Standards of Law

“On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction. We accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v Martinez, 84 NY2d 83, 87—88 [1994]).

Dismissal under CPLR 3211 (a) (2) is warranted where the court lacks subject matter jurisdiction over one or more causes of action.

CPLR 3211 (a) (3) provides that a party may move for dismissal on the ground that the party asserting the cause of action has not legal capacity to sue. “On a defendant's motion to dismiss the complaint based upon the plaintiff's alleged lack of standing, the burden is on the moving defendant to establish, prima facie, the plaintiff's lack of standing as a matter of law” (U.S. Bank N.A. v Marrero, 221 AD3d 631, 633 [2d Dept 2023] [internal quotation marks omitted]; see Wilmington Sav. Fund Socy., FSB v Matamoro, 200 AD3d 79, 90 [2d Dept 2021]). “To defeat a defendant's motion to dismiss, the plaintiff has no burden of establishing its standing as a matter of law, but must merely raise a question of fact as to the issue” (Sizova v Union Mut. Fire Ins. Co., 217 AD3d 1007, 1008 [2d Dept 2023] [internal quotation marks omitted]; see Wilmington Sav. Fund Socy., FSB v Matamoro, 200 AD3d at 90).

“On a motion pursuant to CPLR 3211 (a) (7) to dismiss a complaint for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Pacific W., Inc. v E & A Restoration, Inc., 178 AD3d 834, 835 [2d Dept 2019]; see Leon, 84 NY2d at 87—88). When “evidentiary material is submitted ․ on a motion pursuant to CPLR 3211 (a) (7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and the motion should not be granted unless the movant can show that a material fact as claimed by the plaintiff is not a fact at all and unless it can be said that no significant dispute exists regarding it” (Pacific W., Inc., 178 AD3d at 835; see Leon, 84 NY2d at 88).

Discussion

 Respondents’ Motion to Dismiss

(1) Subject Matter Jurisdiction

Respondents argue, pursuant to CPLR 3211 (a) (2), that the court lacks subject matter jurisdiction. Respondents question petitioners’ categorization of the instant petition as one for breach of contract. Respondents contend that the controversy is ecclesiastical in nature rather than a neutral breach of contract claim, and the court is forbidden from intervening under the First Amendment (NYSCEF Doc No. 29 at 6-8). Respondent argues that the issues raised must be resolved by the members of the church and cannot be resolved using neutral principles of law (id.). Respondents rely on the determination in Congregation Yetev Lev D'Satmar, Inc. v Kahana, 9 NY3d 282, 287-288 [2007], where the Court of Appeals found that the election controversy between two rival factions of a religious congregation could not be achieved through the application of neutral principles of law without judicial intrusion into matters of religious doctrine and that the dispute “involves issues beyond mere notice and quorum challenges,” the religious standing of the congregant was essential to the resolution of the election dispute and membership issues was at the center (NYSCEF Doc No. 29 at 8-9). Respondents contend that based on the relief sought by petitioners, for a vote on an entirely new candidate instead of a new vote, the petition concerns matters of religious doctrine and belief, and thus is not susceptible to judicial scrutiny (NYSCEF Doc No. 37 at 5).

In determining whether a court has jurisdiction over a religious controversy, New York follows the “neutral principles” doctrine (see First Presbyterian Church of Schenectady v United Presbyterian Church, 62 NY2d 110, 120 [1984] [“The neutral principles of law analysis has not been [previously] explicitly adopted by this State ․ [however] [w]e do so in this action”]). 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 NY, 195 AD2d 291, 291 [1st Dept 1993] [a court acting pursuant to N-PCL 618 “ ‘should not interfere in the internal affairs of a corporation ․ unless a clear showing is made to warrant such action’ ”] [citations omitted]). The court has “broad equitable powers and may direct a new election where the election under review is ‘so clouded with doubt or tainted with questionable circumstances that the standards of fair dealing require the court to order a new, clear and adequate expression’ ” (Matter of Faraldo v Standardbred Owners Assn., 63 AD2d 1010, 1011 [2d Dept 1978], quoting In re Election of Officers and Directors of F.I.G.H.T., 79 Misc 2d 655, 659 [Sup Ct, Monroe County 1974]). In applying neutral principles of law, “courts may rely upon internal documents, such as a congregation's bylaws, but only if those documents do not require interpretation of ecclesiastical doctrine” (Congregation Yetev Lev D'Satmar, Inc. v Kahana, 9 NY3d at 286; see Matter of Ming Tung v China Buddhist Assn., 124 AD3d 13, 20 [1st Dept 2014], affd 26 NY3d 1152 [2016]).

Respondents correctly argue that whether an individual is qualified to be elected pastor is ecclesiastical in nature (NYSCEF Doc No. 29 at 8-9). Claims that cannot be resolved solely based on neutral principles of law without reference to any religious principles are nonjusticiable (see New Hope Christian Church, Inc. v Parks, 236 AD3d 669, 671 [2d Dept 2025]). However, courts have jurisdiction to determine whether a church or congregation has complied with its own bylaws where it can decide the issue based on the bylaws alone, without reference to religious doctrine (see Srour v Bd. of Trs. of Sephardic Congregation of Har Ha Lebanon, Inc., 3 Misc 3d 1108 [A], 2004 NY Slip Op 50489 [U], *3 [Sup Ct, Kings County 2004], citing Matter of Venigalla v Alagappan, 307 AD2d 1041, 1041—1042 [2d Dept 2003]; Karageorgious v Laoudis, 271 AD2d 653, 654 [2d Dept 2000]).

Here, petitioners assert that the respondents violated the church's bylaws. Petitoners contend this case concerns contractual interpretation of the church's bylaws and is intended to correct the injustice taken by respondents (NYSCEF Doc No. 19). Petitioners deny that they are asking the court to intercede in the church's internal affairs (NYSCEF Doc No. 36 at 15-19).¹ Petitioners contend they are seeking a determination by the court regarding the church's compliance or non-compliance with the bylaws (id.).

The court finds that the alleged procedural violations may be determined by neutral principles of law without intrusion on the religious doctrine (see Noel v Gay, 80 Misc 3d 1231[A], 2023 NY Slip Op 51141 [U], *4 [Sup Ct, Kings County 2023] [finding that the court could determine “issues relating to defendants’ compliance with the Church's By-Laws, the Church's Certificate of Incorporation and the Religious Corporation Law by neutral principals of law without improperly involving the court in issues of religious doctrine”] [citations omitted]). Accordingly, respondents’ motion to dismiss for lack of subject matter jurisdiction is denied.

(2) Standing

Respondents challenge, pursuant to CPLR 3211 (a) (3), petitioners standing to bring this action arguing that petitioners lack standing because they were not aggrieved (NYSCEF Doc No. 29 at 10-13). Respondents contend that petitioners cannot identify a single injury they sustained (id. at 10). Respondents contend that petitioners are not seeking to vindicate a right on behalf of themselves but rather on behalf of the church and its members (id. at 10-11). Respondents contend that to obtain relief on behalf of the church and its members, petitioners must bring a derivative action under N-PCL 623, which it cannot sustain, because petitioners need five percent of the church members to participate, and the claims are only brought on behalf of four members (id. at 11). Petitioners oppose arguing that N-PCL 623 is inapplicable because they have individual causes of action under N-PCL 618 (NYSCEF Doc No. 36 at 8-9). Respondents respond stating that based on the references in the petition, petitioners are seeking to vindicate a right of the church and its members (NYSCEF Doc No. 37 at 3-4).

N-PCL 618 provides that any member aggrieved by an election may seek judicial relief on notice to the persons declared elected in the contested election, the corporation, and any other such persons as directed by the court and may either confirm the election, order a new election, or take such action as justice may require. The definition of an aggrieved member under N-PCL 618 should not be strictly construed (see Lipton v Wachtler, 19 AD3d 212, 212—213 [1st Dept 2005], citing Matter of R. Hoe & Co., 14 Misc 2d 500, 504 [1954] [the meaning of the term “member aggrieved” should not be strictly construed], affd 285 AD 927 [1st Dept 1955], affd 309 NY 719 [1955]). Courts have found, based on the standard for standing set forth in N-PCL 618, that a person having a right to vote is a person aggrieved and entitled to institute a proceeding pursuant to N—PCL 618 (see Matter of Wyatt v Armstrong, 186 Misc 216, 223 [Sup Ct, NY County 1945]; Matter of Green Bus Lines, Inc., 166 Misc 800, 802 [Sup Ct, NY County 1937]). Thus, any shareholder or member of a corporation aggrieved by an election may institute a proceeding to review the election.

Contrary to respondents’ contention, (NYSCEF Doc No. 37 at 3-4), the petitioners have standing to sue. At the time of the June 21-23, 2024 election, petitioners had a right to vote as members of the Abyssinian Baptist Church (NYSCEF Doc No. 11 at 2, Article III, Section 3; NYSCEF Doc No. 36 at 5), accordingly, they have standing to challenge the election results (see Lipton v Wachtler, 19 AD3d at 213 [election results may be challenged by individual entitled to vote]). Accordingly, respondents’ motion to dismiss for lack of standing is denied.

(3) Alleged Violations of the Church's Bylaws

The parties disagree as to the way the June 21-23, 2024 pastoral election process was conducted. Petitioners contend that the June 21-23, 2024 election process was flawed. Petitioners’ first, second, fourth, fifth, and sixth causes of action assert violations of the church's bylaws pertaining to the majority vote requirement, the quorum requirement, the obligation to limit the PSC to 17 members, the requirement to vote on the pastor's salary, and the way to call a special meeting (NYSCEF Doc No. 1 at 13-15, 18-23; NYSCEF Doc No. 19 at 5-14; NYSCEF Doc No. 36 at 5-6). Petitioners third cause of action alleges a violation of RCL 133 regarding calling a special meeting (NYSCEF Doc No. 1 at 15-18). Respondents move for dismissal of petitioners’ claims for failure to state a cause of action. Respondents contend that petitioners’ factual allegations are insufficient to show fraud or wrongdoing in the election process (NYSCEF Doc No. 29 at 14).

In opposition to respondents’ motion, petitioners submit only a memorandum of law, relying on the affirmations submitted in support of the petition (NYSCEF Doc No. 36). Petitioners ask the court to disregard the affidavit and documentary submissions provided by respondents in support, arguing that those documents are inappropriate because respondents did not move pursuant to CPLR 3211 (a)(1) (id. at 4). However, the affirmation constitutes extrinsic evidence that does not qualify as “documentary evidence” within the meaning of CPLR 3211(a)(1) (see Bou v Llamoza, 173 AD3d 575, 575 [1st Dept 2019] [“The affidavit of an employee ․ does not constitute ‘documentary evidence’ for purposes of a motion to dismiss pursuant to CPLR 3211(a)(1)”] [citation omitted]); Summer v Severance, 85 AD3d 1011, 1012 [2d Dept 2011] [reversing dismissal of complaint as “․ the affidavits relied upon by the defendant in support of the motion did not qualify as documentary evidence under CPLR 3211(a)(1). To be documentary, the evidence must be unambiguous, authentic, and undeniable; thus, affidavits are not considered documentary evidence” [internal quotation marks and citations omitted]). Accordingly, as movant relies on extrinsic evidence, dismissal is only appropriate “where the essential facts have been negated beyond substantial question by the affidavits and evidentiary matter submitted” (Biondi v Beekman Hill House Apt. Corp., 257 AD2d 76, 81 [1st Dept 1999] [citation omitted]).

To invalidate the election, petitioners must show fraud or wrongdoing in the election process (Striltschuk v Hryckowian, 202 AD3d 497, 497 [1st Dept 2022], citing Matter of Parisi v New York County Med. Socy., 177 AD2d 369 [1st Dept 1991]). “A hearing is required only where issues of fact material to the determination are raised” (Nyitray v New York Athletic Club of City of NY, 195 AD2d at 291 [citations omitted]). “In considering whether to [confirm or] set aside an election, the court must determine whether improprieties produced a result different from what it otherwise ‘would have been’ or whether ‘an inequitable result has been thereby produced’ ” (Matter of Schapira v Grunberg, 12 Misc 3d 1195[A], 2006 NY Slip Op 51585[U], at *4 [Sup Ct, Bronx County 2006], quoting Matter of Goldfield Corp. v General Host Corp, 29 NY2d 264 [1971]). However, the election should only be set aside where it is “so clouded with doubt or tainted with questionable circumstances that the standards of fair dealing require the court to order a new, clear and adequate expression” (Matter of Faraldo v Standardbred Owners’ Assn., 63 AD2d 1010, 1011 [2d Dept 1978], quoting (see In re Election of Officers and Directors of F.I.G.H.T., 79 Misc 2d at 659). Further, the court should “consider the practical problems entailed” by setting aside or holding a new election (Matter of Goldfield Corp. v General Host Corp, 29 NY2d at 273).

In its first and sixth causes of action, petitioners challenge the legitimacy of the election and its results. Petitioners allege a violation of Article VII, Section 1 of the bylaws, which provides that “[t]he pastor shall be called by the majority of the Members in Good Standing who are Eligible to Vote and shall be a member of good standing in the Baptist faith, of good reputation and qualified, spiritually, educationally, morally and physically to serve this Membership” (NYSCEF Doc No. 11 at 5). Petitioners contend that Rev. Dr. Johnson failed to obtain the 1,370 affirmative members votes needed, i.e. the majority of the entire body of members in good standing, for him to win, not the majority of the people who voted (NYSCEF Doc No. 36 at 6-7). Respondents contend that petitioners’ interpretation that Rev. Dr. Johnson was required to obtain a majority of all registered members in good standing regardless of whether they voted is unreasonable and inconsistent with the bylaws (NYSCEF Doc No. 29 at 4).

The court disagrees with petitioners’ interpretation that the word “majority” as used in the bylaws means anything other than a majority of the votes of the members who voted, not the majority of the members who were eligible to vote (NYSCEF Doc No. 36 at 10-12). As argued by respondents, any other interpretation of the term “majority” in the bylaws would be unreasonable (NYSCEF Doc No. 29 at 15-16; NYSCEF Doc No. 37 at 7-8). Here, respondents’ interpretation of the term “majority” does not render it superfluous or meaningless, in contravention of contract-interpretation principles (see Cole v Macklowe, 99 AD3d 595, 596 [1st Dept 2012] [“a contract should not be interpreted to produce an absurd result, one that is commercially unreasonable, or one that is contrary to the intent of the parties”], citing Matter of Lipper Holdings v Trident Holdings, 1 AD3d 170, 171 [1st Dept 2003]). To the contrary, their interpretation gives the term “majority” its plain and obvious meaning within the surrounding context in which it is used (Iberdrola Energy Projects v Oaktree Cap. Mgmt. L.P., 231 AD3d 33, 40 [1st Dept 2024] [“Clear, complete, and unambiguous contractual terms are to be enforced according to their plain meaning, and every aspect of the contract must be accorded meaning and effect”] [internal citations omitted]).

Petitioners further allege that the parishioners were misled by the church leaders into believing that a non-vote was a negative vote, and approximately 1,983 members opposed Rev. Dr. Johnson's election by abstaining from voting (NYSCEF Doc No. 36 at 6, 12). Petitioners argue that there was a silent rejection of Rev. Dr. Johnson by the parishioners (NYSCEF Doc No. 19 at 8). However, none of the affiants assert that they were told that abstention would be interpreted as a negative vote. Petitioners’ reliance on Ms. Meriweather's affirmation to demonstrate that a “bait and switch” occurred, is misplaced (NYSCEF Doc No. 36 at 5-6). As respondents point out, Ms. Meriweather did not affirm that she told the congregation that an abstention from voting meant a rejection of the pastoral candidate (NYSCEF Doc No. 37 at 8-9). Rather, she affirms that a majority vote was necessary to confirm the PSC's candidate selection, and that, if the candidate secured more negative than affirmative votes, another candidate would have to be selected (NYSCEF Doc No. 22, Merriweather Aff., ¶¶ 22, 45-46). Additionally, neither Meriweather nor Turman's affirmations confirm that the petitioners’ interpretation of the term majority has been applied in the past.

Contrary to petitioners’ assertion, this case is distinguishable from Rock Church v Venigalla (206 NY Misc Lexis 1676, 2016 NY Slip Op 30818 [U] [Sup Ct, NY County 2016]) where the court invalidated the election result due to deceptive action by church leadership (NYSCEF Doc No. 36 at 8). There, video evidence of the meeting showed that a second vote was conducted after the church members had been dismissed and most of them had departed the premises and church members were not notified that a second vote was to be conducted later that day (Rock Church, Inc. v Venigalla, 2016 NY Misc LEXIS 1676, at *19-20). Petitioners have not presented evidence sufficient to demonstrate any deceptive action taken by any church leader. Petitioners have provided no more than conjecture, assumptions and speculations as to the motivation for the approximately 1,531 non-voters. However, speculation as to the motives of the nonparticipants is insufficient to raise an issue of fact (Nyitray v New York Athletic Club of City of NY, 195 AD2d at 291 [“The conclusory allegations and innuendo offered by plaintiff in support of the petition fail to raise an issue of fact sufficient to rebut [defendant's] prima facie showing”]).

In their second cause of action, petitioners allege a violation of Article V, Section 5 of the bylaws, which provides that “[t]he presence of no fewer than two hundred (200) (An Unincorporated Society) Members in Good Standing and Eligible to Vote shall constitute a Quorum to do business at any Church Meeting” (NYSCEF Doc No. 11 at 3). When a quorum is not constituted prior to a vote, actions taken pursuant to that vote are null and void (see, e.g., Sealey v American Soc'y of Hypertension, Inc., 26 AD3d 254, 255 [1st Dept 2006] [affirming judgment that vote to amend bylaws related to removal of officers and directors was null and void as less than a quorum was present]; Matter of Sousa v New York State Council Knights of Columbus Found., 10 NY2d 68, 76-77 [1961] [ordering annulment of all action taken at annual meeting of members where a quorum was not present and voiding the election of directors].

Petitioners contend that the June 21-23, 2024 election lacked quorum, because fewer than 200 members were physically present at the election and most of the voting was done remotely, which is not specifically allowed in the bylaws (NYSCEF Doc No. 19 at 9-10, 13-14). Respondents dispute this contention, arguing that, the congregation approved electronic voting for the purposes of the June 21-23, 2024 election and this procedure is confirmed in the affirmations of petitioner McFarlane-White and Meriweather submitted by petitioners and petitioner Rev. Dr. Mason was present for the vote and did not object (NYSCEF Doc No. 29 at 17-18; NYSCEF Doc No. 37 at 10). According to the minutes of the annual meeting, in February of 2024, the Deacons introduced oral resolutions asking the members to amend the bylaws to permit electronic voting (NYSCEF Doc No. 31 at 7). After much discussion, including a question and answers session, the congregation approved the motion waiving, but not permanently, amending the requirements of Article V, Sections 3 and 7 of the church bylaws to permit electronic and virtual voting for church members who are in good standing (id.; NYSCEF Doc No. 22, Meriweather Aff., ¶¶ 44-45; NYSCEF Doc No. 8, McFarlene-White Aff., ¶ 12).

The court is not persuaded by petitioners’ contention that the church's virtual voting process did not invalidate or waive the “presence” requirement under bylaw Article V, Section 5 (NYSCEF Doc No. 36 at 13-14). The bylaws does not specify that the term “presence” means that quorum may only be established in person. Courts have found quorums to be established either in person, by proxy or using electronic means (Tomfol Owners Corp. v Walker, 66 Misc 3d 1227 [A], 2020 NY Slip Op 50291 [U], *5 [Civ Ct, NY County 2020] [in analogous action pursuant to Business Corporation Law 619, court found that “a corporation may implement reasonable measures to provide shareholders who are not physically present at a shareholders’ meeting with a reasonable opportunity to participate, including by means of electronic communication”] [citations omitted]). Here, it is undisputed that the congregation approved an alternative method to in-person voting, including the use of electronic means. Accordingly, judicial intervention is not warranted (see Matter of Parisi v New York County Med. Socy., 177 AD2d at 370 [holding “election procedures for not-for-profit corporations are not to be disturbed absent a showing that an election was tainted by fraud or wrongdoing”]; see also Matter of Davidson v James, 172 AD2d 323, 324 [1st Dept 1991] [same]).

Respondents also contend that the factual allegations are insufficient to support petitioners’ third cause of action that Article V, Section 8 of the church's bylaws and the RCL were violated with regard to the calling of the special meetings on June 16, 2024 and August 6, 2023 (NYSCEF Doc No. 29 at 20-21). Respondents correctly argue that pursuant to N-PCL 606, attendance at a meeting convened without notice to the member and without protesting that lack of notice, constitutes a waiver of defective notice (id. at 20-21). Here, petitioners do not allege that they protested the allegedly improper notice meeting prior to the conclusion of the meeting, thereby waiving the complaint of defective notice (see In re Election of Officers and Directors of F.I.G.H.T., 79 Misc 2d at 657).

Respondents contend that petitioners waived all claims pertaining to the fourth cause of action concerning the 17-person limit to the PSC (NYSCEF Doc No. 29 at 19-20; NYSCEF Doc No. 37 at 12). Respondents pointed out that the testimony contained in the affirmations of Ms. Meriweather and Rev. Dr. Mason, submitted by petitioners, confirm that the congregation agreed to increase the size of the PSC, as noted in the minutes from the Church's 2023 annual meeting (NYSCEF Doc No. 29 at 19-20). In opposition, petitioners fail to address this argument. Thus, it is undisputed that following Rev. Dr. Butts death in October 2022, the Diaconate presented, and the congregation approved, a waiver temporarily permitting an increase in the size of the PSC from 17 members to 27 for the ongoing pastoral search (NYSCEF Doc No. 22 at ¶ 18; NYSCEF Doc No. 33 at 3). Accordingly, petitioners fail to raise an issue of fact in response to the motion.

As to petitioners’ fifth cause of action concerning Rev. Dr. Johnson's compensation package, respondents argue dismissal is proper because the members of the church approved the salary allocation for the pastor at the February 4, 2024 Annual Corporate Meeting (NYSCEF Doc No. 29 at 19). Petitioners dispute that the meeting minutes sufficiently contradict their factual claims that the church failed to comply with RCL 139 and Article VII, Section 4 of the bylaws (NYSCEF Doc No. 36 at 19-20). Article VII, Section 4 of the bylaws provides that “[t]he salary of the Pastor shall be fixed by the Church in a Church Meeting and incorporated in the Annual Budget ․” (NYSCEF Doc No. 11 at 5). Here, the minutes from the February 4, 2024 Annual Corporate Meeting indicate that the pastor's compensation package was approved by the congregation and incorporated into the church's annual budget (NYSCEF Doc No. 32). Judicial intervention is not warranted where the objection to the process involves putting form over substance (see Tomfol Owners Corp. v Walker, 66 Misc 3d 1227 [A], 2020 NY Slip Op 50291 [U], at *5 [determining that the will of the shareholders in a special cooperative meeting should prevail, even if all processes were not followed exactly: “Respondents’ process-focused arguments do not otherwise warrant the interference of the Court into the internal affairs of a corporation.”]).

On this motion to dismiss, respondents have sustained their prima facie burden of showing that no fraud or wrongdoing occurred during the June 21-23, 2024 election process and that the petition should be dismissed as a matter of law (see Matter of Parisi v New York County Med. Socy., 177 AD2d at 370; see also Matter of Davidson v James, 172 AD2d at 324). Petitioners fail to raise an issue of fact showing that the June 21-23, 2024 election process was so flawed as to require judicial intervention (see Matter of Scipioni v Young Women's Christian Assn. of Rochester & Monroe County, 105 AD2d 1113 [4th Dept 1984] [a court should not interfere in the internal affairs of a not-for-profit corporation unless a clear showing is made to warrant such interference, such as fraud, violation of bylaws or other wrongdoing]). Accordingly, the petition is dismissed.

The court has considered the additional contentions of the parties not specifically addressed herein. To the extent that any relief requested by the parties was not addressed by the court, it is hereby denied.

Accordingly, it is

ORDERED that the petition pursuant to Section 618 of the Not-for-Profit Corporation Law to set aside the election of Rev. Dr. Kevin R. Johnson and for a new election is denied and dismissed; and it is further

ORDERED that the respondents’ motion seeking dismissal of the petition under CPLR 3211 (a) (2) and (a) (3) are denied; and it is further

ORDERED that the respondents’ motion seeking dismissal of the petition under CPLR 3211 (a) (7) is granted.

This constitutes the Decision and Order of the Court.

FOOTNOTES

1.   Petitioners distinguish the instant case from Eboni Marshall Turman v The Abyssinian Baptist Church, (2025 WL 965855, 2025 US Dist LEXIS 61507 [SD NY, March 31, 2025, No. 23CV 11304 (DEH)]), where the United States District Court for the Southern District of New York recently issued an Opinion and Order dismissing the complaint filed by Rev. Dr. Eboni Marshall Turman for employment discrimination and breach of contract arising out of the church's pastoral search process. Petitioners contend that they are not seeking “to impose a preferred candidate upon the church nor to evaluate anyone's qualifications to be pastor” (NYSCEF Doc No. 59).

James G. Clynes, J.