BYNOE v. RIVERSIDE CHURCH IN CITY OF NEW YORK

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Supreme Court, New York County, New York.

George A. BYNOE, Cleveland Parks, Jr., Constance Guice Mills Howard W. Geiger, Jr., Melissa W. Geiger, et al., Petitioners, v. The RIVERSIDE CHURCH IN the CITY OF NEW YORK, Respondent.

Decided: August 22, 2006

Patton, Eakins, Lipsett, Holbrook & Savage, New York City (Frank Patton Jr. and John G. Lipsett of counsel), for respondent. Samuel J. Landau, New York City, for petitioners.

This is an article 78 proceeding.   Respondent moves to dismiss the petition, pursuant to CPLR 3211(a)(1) and (7), and 7804(f).

CPLR 7804(f) provides that a respondent in an article 78 proceeding may move to dismiss the petition based on an objection in point of law.   Such an objection is not defined by statute, but the grounds set forth in CPLR 3211(a) are such objections (Matter of Hull-Hazard, Inc. v. Roberts, 129 A.D.2d 348, 350, 517 N.Y.S.2d 824 [3rd Dept. 1987], affd. 72 N.Y.2d 900, 532 N.Y.S.2d 748, 528 N.E.2d 1221 [1988] for reasons stated below;  see Matter of Wayering v. County of St. Lawrence, 140 A.D.2d 838, 839, n., 528 N.Y.S.2d 223 [3rd Dept. 1988] ).   That of course includes failure to state a cause of action, pursuant to CPLR 3211(a)(7) (see Pauk v. Board of Trustees of City Univ. of NY, 111 A.D.2d 17, 19, 488 N.Y.S.2d 685 [1st Dept.], affd. 68 N.Y.2d 702, 506 N.Y.S.2d 308, 497 N.E.2d 675 [1985] for reasons stated below).

Respondent The Riverside Church in the City of New York is a religious organization incorporated as a Baptist Church.   Petitioners are members of respondent, who seek by way of this proceeding a special meeting and appointment of a receiver.   Petitioners accuse respondent of serious financial improprieties.

The Not-For-Profit Corporation Law and Religious Corporations Law both apply to respondent (Rector, Church Wardens and Vestrymen of St. Bartholomew's Church v. Committee to Preserve St. Bartholomew's Church, 84 A.D.2d 309, 314, 445 N.Y.S.2d 975 [1st Dept. 1982] ).  Not-For-Profit Corporation Law § 603(c) provides that special meetings of the members may be called as authorized by the by-laws of the corporation.  Religious Corporations Law § 5 provides that by-laws may be amended “after written notice, embodying such ․ amendment, has been ․ given ․ in the notices of the meeting at which such proposed ․ amendment is to be acted upon.” Article IV, section 3b of respondent's by-laws provides:  “Notice of a special meeting shall specifically state the text of any resolution to be proposed at the meeting.”

 Besides seeking the appointment of a receiver, the only other relief sought in the notice of petition, petition, and petitioner's memorandum of law is that this court direct a special meeting for the purpose of amending respondent's by-laws.   Petitioners' meeting notices do not specify at all the substance of the amendments sought. The first notice does not speak of amending the by-laws, and, although the second does, the notice only says that it is for such purpose but does not detail at all in what way the by-laws were proposed to be changed.

Petitioners can obtain a special meeting, but they must give proper notice.   They have not done so.   Thus, their request in this proceeding for this court to direct the special meeting sought must be denied.

 Petitioners cannot seek the appointment of a temporary receiver in their article 78 notice of petition and petition because, if it is interim relief that is sought, that provisional relief must be looked for by way of a separate motion before the article 78 proceeding is finally determined (see CPLR 6001, 6401[a];  Not-For-Profit Corporation Law § 1203[a] ).   It is improper to include a motion in a notice of petition or order to show cause which is process for a special proceeding (see CPLR 403[1] or [d];  Matter of Smith v. Board of Stds. & Appeals of City of NY, 2 A.D.2d 67, 69, 153 N.Y.S.2d 131 [1st Dept. 1956] ).   If petitioners are moving for a temporary receiver, the motion must be brought separately by notice of motion or order to show cause pursuant to CPLR 2214(a) or (d).  Furthermore, even if the court deemed petitioners' papers a motion, and not for the bringing of the proceeding, petitioners have not made the statement mandated by CPLR 6001 on a motion for a provisional remedy (Metropolitan Funeral Directors Assn. v. City of New York, 182 Misc.2d 977, 989-990, 702 N.Y.S.2d 526 [Sup. Ct., N.Y. County 1999] ), which includes a request for appointment of a receiver (CPLR 6001).1

 If petitioners are seeking a temporary receiver under Not-For-Profit Corporation Law § 1203(a), the affidavit of service of the notice of petition does not show service on the New York State attorney-general, as required by that statute.   Furthermore, petitioner did not request the relief by order to show cause, which is required by the wording of that statute:  “Notice of the application shall be given ․ in such manner the court directs.” (cf. Smith v. Smith, 291 A.D.2d 828, 736 N.Y.S.2d 557 [4th Dept. 2002] [“with such notice as the court may direct” means that the motion pursuant to CPLR 5015 should have been brought by order to show cause];  Aiello v. Adar, 193 Misc.2d 649, 654, 750 N.Y.S.2d 457 [Sup. Ct., Bronx County 2002] [same for a motion to change attorneys under CPLR 321(b)(2) which requires “such notice ․ as the court may direct.”];  People v. ELRAC, Inc., 192 Misc.2d 78, 82, 745 N.Y.S.2d 671 [Sup. Ct., N.Y. County 2002] [ditto].)   Further, petitioners have not pled a ground under Not-For-Profit Corporation Law § 1202(a) for appointment of a receiver.   Finally, petitioners have not pled a proper purpose for the desired receivership.   They ask that a receiver be appointed in order to do an investigation, and examine and analyze respondent's financial records.   Receivers are appointed under extreme circumstances to receive property (see Groh v. Halloran, 86 A.D.2d 30, 33, 448 N.Y.S.2d 680 [1st Dept. 1982] ) in order to preserve corporate assets against waste, mismanagement, or misappropriation (McHarg v. Commonwealth Fin. Corp., 195 App.Div. 862, 865, 187 N.Y.S. 540 [1st Dept. 1921] ).

Therefore, by this court's separate decision and order, the motion has been granted to the extent of dismissing the petition.   The proceeding has been denied.

FOOTNOTES

1.   If not for other infirmities with the request for a receiver, the court could exercise its discretion to overlook that defect, pursuant to CPLR 2001, given that the notice of petition and supporting papers were accompanied by a request for judicial intervention (RJI) and that the petitioners very likely did not seek or secure a provisional remedy before this first formal request for judicial assistance accompanied by the RJI.

RICHARD F. BRAUN, J.

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