MEMORANDUM OF LAW
in support of Motion for Summary Judgment
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This matter arises over the control of a building owned by plaintiff, a religious corporation formed in the year 1914. The purpose of its formation was to provide religious and charitable services for its members. A synagogue building to house a synagogue was purchased by the congregation so that the members would have a place to pray. The synagogue was a focal point of a vibrant community for many decades. In 1952, the original congregation merged with another congregation, bring new vibrancy. However, due to the demographic changes and the changing of the neighborhood fabric that is common to the City of New York, the vast majority of the members of the Congregation have died or moved away. It became impossible for the congregation to conduct services as it was unable to obtain a quorum and thus the synagogue was forced to close its doors. (Turkeltaub Aff. Paragraph 9)

The presidium of the congregation proposed to the membership that the building be sold and the proceeds be given to the various charities that mostly closely embody the purposes and designs of the membership. The proposal was forwarded to the last known addresses all of the existing members of the congregation and all of the responding members (being a majority of the total membership) voted in favor of selling the building. Armed with the approval of the membership a broker was retained and there there was great interest s shown by many prospective purchasers. Indeed a contract was prepared for one prospective purchaser who ultimately refrained from signing the agreement due to the activities of defendants. (Turkeltaub aff. Paragraph 11)

The defendants are not members of the Congregation nor have they ever applied for membership. In all the years that Feldman lived next to the synagogue, he never attended services even when it became increasingly difficult to obtain the quorum to conduct the services.

Once the congregation was forced to close the synagogue, defendant Feldman became interested in the building. 

This is pure speculation!--ClaytonPatterson

He began to enter the premises without authorization, making repairs haphazardly, without permit or insurance. In addition, no licensed contractors were used. In each instance that the congregation changed the locks to prevent defendant Feldman's access, those locks were broken and new locks which Feldman was able to use were placed on the door of the property.

Those prospective purchasers who asked to see the premises were harassed by Feldman and advised that it would be in their best interest to look elsewhere. Obviously this activity interfered with the ability of the Congregation to convey the building.

In the past few weeks, defendants Feldman, Fried and Patterson have illegally entered the buildings and have used the premises in an open and notorious fashion without the consent of the Congregation, its offices or its members.
 

Abraham Fogel [the father of Nussi Fogel, one of the main plaintiffs--JM] attended a meeting at the Shul and voiced his approval at what he saw and stated that he wishee the Shul to continue as an Orthodox synagogue.--Clayton Patterson

They have determined that the building may be used for their purposes and have usurped the name of the Congregation for their own use.

This is not a statement of fact but an assumption by the plaintiffs. I have never spoken to them.--Clayton Patterson

The congregation having sought to resolve this matter in a way that would not require judicial intervention but having failed at all other attempts at having this matter resolved, feels compelled to bring the instant motion to recover its asset.

I am not aware of any move that the plaintiffs made to rectify this situation outside of the secular courts.--Clayton Patterson

It is undisputed that the plaintiff has functioned as a religious corporation since its founding in 1912. Although formed as a membership organization in 19812, the congregation has from the outset conducted itself as a religious corporation. Therefore, the Religious Corporation Law governs. Kroth v Congregation Chebra Ukadisha B'nei 430 NYS2d 786, 105 misc.2d 904 (Supreme Court New York County 1980). In that case, the trustees of a long standing Congregation whose original members and trustees had long since died, sold the synagogue building to a Buddhist denomination.

Potential buyers of the 8th Street Shul, of whom the plaintiffs speak, did not have plans to convert the Shul into a religious establishment or to allow it to remain a synagogue, so Kroth v Congregation Chebra Ukadisha B'nei may not be a good example to back their argument.--Clayton Patterson

The few remaining persons who attended prayers at the synagogue sued to rescind the sale on the grounds that they had the status of members entitling them to notice and the right to vote as to whether the sale of the synagogue was the proper course of conduct for the congregation. The Court;, in what has now been recognized as a seminal case in the understanding of the Religious Corporation Law, set forth the manner in which the decision to sell the congregation's asset must be followed.

In that case, the Court set up a dual system to determine who is entitled to be considered member s and vote on the affairs of the congregation. The first finding must be that those people purporting to be members of the congregation attend or have attended services on a regular basis and secondly have contributed financially to the congregation. Ibid at 788-789.

The application of this analysis must deny any status of membership or standing to the defendants in any capacity in this matter. They have never been members of the congregation by attending services when the congregation was conducting those services. Defendant Feldman had ample opportunity to do so during those years that he dwelt next door to the congregation. Nor have any of the defendants contributed to the congregation during the time that the congregation was operational. They cannot be deemed to have attained the status of members.

Even if they had achieved that status of members, that status does not entitle that defendants to take unilateral acts. The maximum that they be allowed to do is to request from the membership the right to express their view as to the future of this asset.

No member without the consent of the other members and in contradiction of the express wishes of the other members can with the use of force and threats compel their wishes on the congregation..
 

What right does a community have in preventing the destruction of a Shul? What right does a community have when a shul is closed? Is a synagogue different from a piece of private property? Is it a spiritual place, a community house of worship or is this a private cult?--Clayton Patterson

A meeting involving congregation of the Jewish faith is governed inter alia by §192195 of the Religious Corporation Law. Any activity must comply with those requirements to be valid.

The law requires that the Congregation operate through a group of individuals who act in a fiduciary capacity as trustees elected by the members. Religious Corporations Law §5. They are responsible for the assets of the congregation to the Congregation and to the Courts. It was to arrange a proper handling of property sales to the Religious Corporation that prompted the encodement of the Religious Corporation Law.

"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 y those who might divest them from the true beneficiaries of the corporate trust." Morris v Scribner, 69 NY2d 418, 515 NYS2d 424, 508 NE2d 136 (1987), citing St. Nicholas Cathedral v Kebroff, 3-2 NY 96 NE2d 56.

Thus the purpose of the enactment of this statute was clearly intended to be applied in the present situation. The control of the assets of the religious corporation is in the hand of the trustees. No one else has the authority to take control of the property in the name of the Congregation. See Morris v Scribner, Supra.

If the defendants believe that it is in the best interest of the congregation not to sell the property but to allow the formation of a new synagogue, then there are procedures that could have been undertaken internally to request a meeting with the membership. In lieu of that, they literally took control of a building that is not theirs and the Court must not allow it to continue.

I have tried on more than one occasion to contact the original congregation - with no success. And after physical threat were made against Ralph Feldman, no communication was possible--Clayton Patterson

Once it has been determined that the right title and authority over this building lies with the Congregation's long-time trustees and its membership, the conclusion that flows naturally is that defendants are occupying the synagogue without authority and have no vestige of ownership claims.

For me it is not ownership that is the question but that the synagogue is the last remaining functioning shul in Alphabet City and it should have special landmark status and recognition.--Clayton Patterson

Thus, the congregation is entitled to a special proceeding under Section 713 if the RPAPL (Real Property Actions and Proceedings Law).

Sounding is a cause of action for ejectment, the RPAPL provides as follows:

"A special proceeding may be maintained under this article after a ten (10) day notice to quit has been served upon the respondent in the manner prescribed in Section 735 upon the following grounds:

(2) He or the person to whom he has succeeded has intruded into or squatted upon the property without the permission of the persons entitled to possession and the occupancy has continued without permission or permission has been revoked and notice of the revocation given to the person to be removed."
 

If people are squatting as you say, they have bgeen there for over one year and there are rights and privileges that go even with squatting. The 13th Street squats is still an ongoing state case and all those ramifications have not been resolved.--Clayton Patterson

The persons occupying the property of the congregation without the permission or authority from the congregation and its members are without a color of right and title thus denying them the right to remain and giving the congregation the right to bring this instant motion.

under §713(10) the ten (10) day notice is not required as tenants have not been in occupancy for three (3) years or more and the petitioner was in actual peaceful possession of the premises prior to the illegal entry. RPAPL 13(10). Almonte v City of New York 501 NYS2d 245, 158 Misc.2d 290 (Civ. Court Kings County 1993). the Court should therefore find for the plaintiff and order the ejection of the defendants from the Plaintiff also seeks an order preventing defendants from interfering with the rightful ownership of the Congregation and from further trespassing by the defendants.
 

Please define further trespassing.--Clayton Patterson

The facts and cases previously cited clearly eliminates any contention that the defendants are in possession with any color or title or right and have no right or claim to occupation occupation or possession of the premises. They are therefore not entitled to interfere with the quiet enjoyment and any legal use by the congregation, including but not limited to the showing of the property to prospective purchasers. The Congregation is entitled to injunctive relief in these circumstances. See e.q. New School for Social Research v Sutton Space Inc. 188 AD2d 341, 591 NYS2d 22 (1st Dep't 1992).

The cause of action under RPAPL §853 may entitle the Congregation to treble damages for the acts but the compensatory damages, even if collectible is insufficient to provide the Congregation with a full measure for the violation of its rights. Ut needs the return of full control of its property. To that end, only an injunction can afford the Congregation with the necessary relief that it needs. Ibid. at 23 and the cases cited therein.

A prerequisite for the maintenance of a mechanic's lien is that the work performed was done with the agreement and consent of the Building Owner. Lien Law §3, See e.g. Paul Mock Inc. v 118 East 25th Realty Corporation 87 AD2d 756, 448 NYS2d 693 (1st Dep't 1982). In this instance defendant Feldman obtained no permission from the trustees of the congregation or the membership. The work performed to the detriment of the Congregation and the membership was afforded no benefit from the construction.

Ralph Feldman did a lot of work over the years on the building and this must gbe acknowledged. Without question, his latest  work took an abandoned, unsafe building making it saafe for the community and makjing the building safe and functiional as an Orthodox religious group. Feldman further believed this work would benefit the original congregation. Feldman was a New York City fireman and Fire Marshall for 28 years. He made the monument to Fiureman that stands at the Cathedral of St. john the Devine, so he has a history of beneficial social activity.--Clayton Patterson

The Congregation's Board of trustees having obtained the authority of the membership to sell the synagogue building and this having the duty to carry out the requests of the membership seeks that the Court issue an order removing defendants and those who are following their lead from the synagogue building, issue an order enjoining defendants from interfering with the sale of the synagogue and finally removing the mechanic's lien filed by defendant Feldman against the property.

When will the monetary valoue of the work that Feldman did be assessed? When will the work of Feldman, Patterson and Fried be recognized?--Clayton Patterson

Respectfully submitted 

HOWARD SCHNEIDER 
Howard Schneider & Associates 
Attorney for Plaintiff 
15 Park Row 
New York, NY 10038