Chinuch v. Congregation Lubavitch, Inc. ("CLI")

2024 NY Slip Op 24017

Merkos L'Inyonei Chinuch and Merkos L Chinuch, Respondents, v. Congregation Lubavitch, Inc. ("CLI"), Congregation Lubavitch of Agudas Chasidei Chabad, Congregation Lubavitch, Doing Business as Lubavitch World Headquarters, Zalman Lipskier, Avrohom Holtzberg and Sholom Ber Kievman, Appellants, Yosef Losh and Menachem Gerlitzky, Occupants. Agudas Chasidei Chabad of the United States, Respondent, v. Congregation Lubavitch, Inc. ("CLI"), Congregation Lubavitch of Agudas Chasidei Chabad, Congregation Lubavitch, Doing Business as Lubavitch World Headquarters, Zalman Lipskier, Avrohom Holtzberg and Sholom Ber Kievman, Appellants, Yosef Losh and Menachem Gerlitzky, Occupants. Merkos L' Inyonei Chinuch and Merkos L Chinuch, Respondents, Congregation Lubavitch, Inc. ("CLI"), Congregation Lubavitch of Agudas Chasidei Chabad, Congregation Lubavitch, Doing Business as Lubavitch World Headquarters, Zalman Lipskier, Avrohom Holtzberg and Sholom Ber Kievman, Appellants, Yosef Losh and Menachem Gerlitzky, Occupants.

No. 2022-414 K C

Supreme Court of New York, Second Department

January 19, 2024

PRESENT:: WAVNY TOUSSAINT, P.J., MARINA CORA MUNDY, LISA S OTTLEY, JJ

Appellate Term Docket No. 2022-415 K C Lower Court # 106105/11 Appellate Term Docket No. 2022-416 K C Lower Court # 106107/11 Edward S. Rudofsky, P.C. (Edward S. Rudofsky of counsel), for appellants. The Abramson Group, PLLC (Howard Wintner and David S. Abramson of counsel), for respondents.

Appeals from three final judgments of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.; op 2020 NY Slip Op 50535[U]), each entered January 6, 2022 in a separate RPAPL 713 summary proceeding. Each final judgment, insofar as appealed from, after a joint nonjury trial, awarded possession to the petitioner(s) in that proceeding as against respondents Congregation Lubavitch, Inc. ("CLI") Congregation Lubavitch of Agudas Chasidei Chabad Congregation Lubavitch, Doing Business as Lubavitch World Headquarters, Zalman Lipskier, Avrohom Holtzberg and Sholom Ber Kievman.

ORDERED on the court's own motion, that the appeals are consolidated for purposes of disposition; and it is further, ORDERED that so much of the appeals from each of the three final judgments as was by Congregation Lubavitch of Agudas Chasidei Chabad and Congregation Lubavitch, Doing Business as Lubavitch World Headquarters, is dismissed, all proceedings taken against Congregation Lubavitch of Agudas Chasidei Chabad and Congregation Lubavitch, Doing Business as Lubavitch World Headquarters, in the Civil Court, including so much of the final judgments entered against each of them on January 6, 2022, are vacated, and so much of the petitions as were asserted against each of them in the respective summary proceeding are dismissed; and it is further, ORDERED that the final judgment in appeal No. 2022-414 K C, insofar as appealed from and reviewed, is modified by vacating so much thereof as was entered against Congregation Lubavitch, Inc. ("CLI"), and so much of the petition as was asserted against Congregation Lubavitch, Inc. ("CLI"), is dismissed; as so modified, the final judgment, insofar as appealed from and reviewed, is affirmed, without costs; and it is further, ORDERED that the final judgment in appeal No. 2022-415 K C, insofar as appealed from and reviewed, is modified by vacating so much thereof as was entered against Congregation Lubavitch, Inc. ("CLI"), and so much of the petition as was asserted against Congregation Lubavitch, Inc. ("CLI"), is dismissed; as so modified, the final judgment, insofar as appealed from and reviewed, is affirmed, without costs; and it is further, ORDERED that the final judgment in appeal No. 2022-416 K C, insofar as appealed from and reviewed, is affirmed, without costs.

Petitioner Agudas Chasidei Chabad of the United States (Agudas), a New York religious corporation and owner of 770 Eastern Parkway, Brooklyn, New York (hereinafter 770), commenced a licensee/squatter summary proceeding (RPAPL 713 [3], [7]) against all eight respondents to recover possession of 770 (appeal No. 2022-415 K C).

Petitioner Merkos L'Inyonei Chinuch (Merkos), a New York religious corporation and owner of 784-788 Eastern Parkway, Brooklyn, New York (hereinafter 784-788), commenced a licensee/squatter summary proceeding (RPAPL 713 [3], [7]) against all eight respondents to recover possession of 784-788 (appeal No. 2022-414 K C). (It is noted that 784-788 was previously owned by Merkos L'Inyonei Chinuch, Inc. [Merkos, Inc.], a non-profit corporation. It was stipulated at trial that Merkos, Inc., merged into Merkos in 2011 prior to the commencement of this proceeding.)

Merkos, owner of 302-304 Kingston Avenue, Brooklyn, New York (hereinafter 302-304), commenced a licensee/squatter summary proceeding (RPAPL 713 [3], [7]) against all eight respondents to recover possession of the southeast room of the second floor of 302-304 (appeal No. 2022-416 K C), identifying the space in the petition as "Gaboyim-CLI Office" (hereinafter "the 302-304 office space"). (It is noted that 302-304 was also previously owned by Merkos, Inc.)

While a final judgment was entered against the eight respondents in each of the proceedings, ^[1] only six have appealed: Congregation Lubavitch, Inc. ("CLI") (hereinafter CLI), Congregation Lubavitch of Agudas Chasidei Chabad, Congregation Lubavitch, Doing Business as Lubavitch World Headquarters, Zalman Lipskier, Avrohom Holtzberg and Sholom Ber Kievman. Congregation Lubavitch of Agudas Chasidei Chabad and Congregation Lubavitch, Doing Business as Lubavitch World Headquarters, were named, in each of the respective petitions, as unincorporated associations. However, unincorporated associations have "no legal existence separate and apart from [their] individual members" (2834-2838 Brighton 3rd St. Condominium v Bazinian, 66 Misc.3d 143 [A], 2020 NY Slip Op 50180[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; see Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C1025:2; see also Pascual v Rustic Woods Homeowners Assn., Inc., 134 A.D.3d 1006 [2015]), and "an action or special proceeding may not be maintained nor may judgment be entered against an unincorporated association in its proper name" (Matter of Motor Haulage Co. [Teamsters' Union], 298 NY 208, 212 [1948]). The only way to bring a special proceeding against an unincorporated association is to bring it "against the president or treasurer of such an association" (General Associations Law § 13; see CPLR 1025), unless the petitioner wishes to name each member of the association (see Martin v Curran, 303 NY 276 [1951]). While the petitions allege that respondent Zalman Lipskier "acts in a representative capacity equivalent to president of Congregation Lubavitch of Agudas Chasidei Chabad," we deem that insufficient to maintain a proceeding against Congregation Lubavitch of Agudas Chasidei Chabad, and note that this allegation was denied in the respective answers. Although this error could have been corrected (see Matter of Stephentown Concerned Citizens v Herrick, 223 A.D.2d 862, 864 n 2 [1996]; Concerned Citizens of Albany-Shaker Rd. v State of New York, 140 A.D.2d 842, 843 [1988]) if either party has a president or treasurer to be named, it was not corrected (see Westport Condominium Assn. v Mayzel, 62 Misc.3d 140 [A], 2019 NY Slip Op 50066[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]) and, thus, the final judgments were improperly entered against these associations. As there was no proof that so much of the appeals as was by the alleged unincorporated associations, Congregation Lubavitch of Agudas Chasidei Chabad and Congregation Lubavitch, Doing Business as Lubavitch World Headquarters, was taken by authorized individuals (cf. General Associations Law § 12), their appeals must be dismissed. Furthermore, all proceedings taken against each of them, including so much of the final judgments as were entered against each of them on January 6, 2022, are vacated, and so much of the petitions as were asserted against each of them in the respective summary proceeding are dismissed, as they are not parties in those proceedings.

Before us are appeals by respondents CLI, Zalman Lipskier, Avrohom Holtzberg and Sholom Ber Kievman. We are aware that there is a long history between them and petitioners, which history is summarized in Merkos L'Inyonei Chinuch, Inc. v Sharf (18 Misc.3d 1111 [A], 2007 NY Slip Op 52495[U] [Sup Ct, Kings County 2007], mod 59 A.D.3d 408 [2009]) and in the decision of the Civil Court in this case (Agudas Chasidei Chabad of the United States v Congregation Lubavitch, Inc., 67 Misc.3d 1214 [A], 2020 NY Slip Op 50535[U] [Civ Ct, Kings County 2020]). We note, at the outset, that the only issue before us is whether, based upon the arguments made on appeal, there is a basis to reverse or modify so much of any of the final judgments as awarded possession to the respective petitioners against appellants.

Agudas is a religious corporation incorporated in 1940 to establish maintain and conduct a place of worship, and to acquire real property for that objective. Merkos is also a religious corporation. 770 and 784-788 contain a shared synagogue space ("the synagogue"), which is used by the Lubavitch community, and various other spaces used for offices, libraries and a residence. Respondent Sholom Ber Kievman is the volunteer caretaker of the synagogue. The religious services held in the synagogue have been led by a group of individuals, each of whom is known as a Gabbai and collectively as Gabbais (also known as Gabboim [ see Merkos L'Inyonei Chinuch, Inc. v Sharf, 59 A.D.3d 408; Merkos L'Inyonei Chinuch, Inc. v Sharf, 59 A.D.3d 403 (2009)]). The Gabbais also perform...