SAM v. CHURCH OF ST MARK

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Supreme Court, Appellate Division, Second Department, New York.

Heron A. SAM, Appellant, v. CHURCH OF ST. MARK, etc., et al., Respondents.

Decided: April 22, 2002

MYRIAM J. ALTMAN, J.P., LEO F. McGINITY, SANDRA L. TOWNES and STEPHEN G. CRANE, JJ. Carol Lilienfeld, New York, NY, for appellant. Lynch & Lynch, Mineola, NY, (James D. Lynch and Brian M. Hussey of counsel), for respondents.

In an action, inter alia, to recover damages for wrongful termination of employment, the plaintiff appeals from (1) an order of the Supreme Court, Kings County (Dowd, J.), dated July 16, 2001, which granted the defendants' motion, in effect, for summary judgment dismissing the complaint on the grounds of lack of subject matter jurisdiction and as barred by the statute of limitations, and (2) a judgment of the same court, dated October 31, 2001, which was entered thereon.

ORDERED that the appeal from the order dated July 16, 2001, is dismissed;  and it is further,

ORDERED that the judgment is affirmed;  and it is further,

ORDERED that the defendants are awarded one bill of costs.

 The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647).   The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a] [1] ).

 The Supreme Court correctly determined that it lacked subject matter jurisdiction over the plaintiff's second cause of action to recover damages for breach of a contract of employment or wrongful termination of employment.   The issue presented cannot be decided solely upon the application of neutral principles of law, and would require this court to pass upon the underlying dispute between the plaintiff and the defendants, the canonical law pursuant to which the plaintiff's pastoral relationship was terminated, and the determinations issued by the ecclesiastical tribunals.   Thus, judicial resolution of the second cause of action would inexorably entangle this court in a religious controversy in violation of the Establishment Clause of the First Amendment of the United States Constitution (see Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 708-710, 96 S.Ct. 2372, 49 L.Ed.2d 151;  Maryland & Va. Eldership v. Church of God at Sharpsburg, 396 U.S. 367, 369, 90 S.Ct. 499, 24 L.Ed.2d 582;  Lightman v. Flaum, 97 N.Y.2d 128, 137, 736 N.Y.S.2d 300, 761 N.E.2d 1027;  First Presbyterian Church of Schenectady v. United Presbyterian Church in U.S. of Amer., 62 N.Y.2d 110, 116, 476 N.Y.S.2d 86, 464 N.E.2d 454, cert. denied 469 U.S. 1037, 105 S.Ct. 514, 83 L.Ed.2d 404).

 Unlike the second cause of action, the first and third causes of action do not present controversies which require consideration of religious doctrine, and the disputes involved therein can be settled by the application of neutral principles of law (see First Presbyterian Church of Schenectady v. United Presbyterian Church in U.S. of Amer., supra, at 119-120, 476 N.Y.S.2d 86, 464 N.E.2d 454, Avitzur v. Avitzur, 58 N.Y.2d 108, 114, 459 N.Y.S.2d 572, 446 N.E.2d 136, cert. denied 464 U.S. 817, 104 S.Ct. 76, 78 L.Ed.2d 88;  see also Jones v. Wolf, 443 U.S. 595, 602, 99 S.Ct. 3020, 61 L.Ed.2d 775;  Presbyterian Church v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 449, 89 S.Ct. 601, 21 L.Ed.2d 658).

 The Supreme Court correctly determined that the plaintiff's first and third causes of action were time-barred.   Assuming, without deciding, that the first cause of action is predicated upon an enforceable contract, the plaintiff's claim accrued upon the defendants' modification on June 10, 1993, of the “Godly Judgment” issued by the defendant Orris G. Walker, Jr., the Episcopal Bishop of the Diocese of Long Island.   The fact that the damages sustained by the plaintiff, that is, the loss, inter alia, of salary and pension benefits, did not materialize until resolution of the matters raised in the criminal indictment which had been filed against him (see Ely-Cruikshank Co. v. Bank of Montreal, 81 N.Y.2d 399, 402, 599 N.Y.S.2d 501, 615 N.E.2d 985), does not compel a different result.   At the very latest, this claim accrued on December 16, 1993, when the plaintiff was deposed as a priest of the Episcopal Church pursuant to the Canons of the Episcopal Church.   Measured from either date, the plaintiff's first cause of action is clearly time-barred (see CPLR 213[2] ).

 Similarly, the third cause of action to recover damages for intentional tort is barred by the one year statute of limitations (see CPLR 215 [3] ).   All of the acts alleged by the plaintiff in support of this cause of action occurred more than one year before the complaint was filed.

The plaintiff's remaining contention lacks merit.

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