Preview
INDEX NO. 036020/2021
FILED: ROCKLAND COUNTY CLERK 01/19/2024 09:49 PM
NYSCEF DOC. NO. 660 RECEIVED NYSCEF: 01/19/2024
EXHIBIT “56”
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ROCKLAND
ween n ene eee
CONGREGATION ZICHRON BE’ER, by member
and duly authorized administrator,
CHAIM MOSKOVITS,
Plaintiff(s) Index No. 036020/2021
-against-
MARTIN THALER, M.D., ELLIOT AMSEL,
IRA ZINSTEIN, ELI KARP, SAMUEL M. BREE,
YAAKOV ROSENBERG, HESHIE FRIED,
CHASKEL WEISSNER, CONGREGATION
ZICHRON MEIR, and other Defendants presently
unknown to Plaintiffat this time,
Defendant(s),
-against-
SOL MENCHE, IZZY HALBERTHAL, HENRY A.
LEISER, and DR. HIRSCH ZIEGLER
Additional Defendant(s) on the
Counterclaims
ween n ene eee
PLAINTIFF CONGREGATION ZICHRON BE’ER’S MEMORANDUM OF LAW
IN OPOSITION TO DEFENDANTS’ AMENDED MOTION TO DISMISS
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TABLE OF CONTENTS
Page(s)
TABLE OF AUTHORITIES
I INTRODUCTION
II SUMMARY OF ARGUMENT
Ill FACTS
IV. ARGUMEN’
Standards ........ccecesecseseeesseseeseseseeseseeseseseesesesecseseessseseassessseeseeassesesassesasseseeassssesasseeaseesees 3
1 Amended Motions
2. Motion to Dismiss ..........ccccceecseseseeseseeneseseeseseesseseeassesseasseesssesseasseessseseeaseesneaeseeaeee 3
CPLR 3211 (a)(5) — Statute of Limitations .0.... eee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeee 3
CPLR 3211 (a)(7) — Failure to State a Claim
CPLR 3211 (a)(3) — Lack of Capacity
Not-for-Profit Corporation Law § 623 — Derivative Standing
The Amended Motion Must Be Dismissed Because of Fatal Deficiencies in the
Notice of Motion
The Congregation Has Standing to Bring This Lawsuit
1 Defendants Do Not Challenge the Congregation’s Standing to Bring This Suit
2. Mr. Moskovitz Possesses Derivative Standing to Prosecute this Lawsuit
The Congregations Claims Are Timely... 10
1 CPLR 7803 Limits the Claims Subject to Article 78 10
2. Neither Section 208 Nor Section 13 Is Subject to Article 78’ Statute of
Limitations ..........ccceseeceseeseseseesesesseseseeseseesssesnesesseesesneneeeeee 11
a. Section 208 and Section 13 Claims Do Not Implicate Article 78 Because
They Do Not Fall Within the Enumerated Questions of Article 78. 11
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b. The Second Department Recently Confirmed that Article 78 Does Not Apply
to Section 208 13
All Fraud Claims Are Timely 14
The Congregation’s Remaining Claims Are Property Disput Not Subject to
Article 78 15
The Congregation Has Not Raised Claims Regarding Defendant We er
Purported Hiring 15
To the Extent Article 78 Applies, the Congregation’s Claims Are Still Timely 16
Under Defendants’ Analysis, Defendants Are Barred from Contesting that the
Fraudulent Board Is Not the Lawful Board of CZB 17
E. The Congregation’s Claims Against Defendants Are Justiciable 18
1 The Second Department Foreclosed Defendants ” Claim that CZB’s Claii Are
Nonjusticiable 19
Claims Regarding the Property of Religious Corporations Are Also Justiciable 19
Defendants’ Arguments Do Not Compel a Finding that the Compliant
Nonjusticiable 20
CONCLUSION 23
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TABLE OF AUTHORITIES
PAGE(S)
Cases
317 W. 89th St., LLC v. Engstrom,
36 Misc. 3d 1242(A) (Sup. Ct. N.Y. Cty. 2012) 15
6D Farm Corp. v. Carr,
63 A.D.3d 903 (2d Dep’t 2009) 4,15
Abizadeh v. Abizadeh,
159 A.D.3d 856 (2d Dep’t 2018)
Agudas Chasidei Chabad of the U.S. v. Congregation Lubavitch, Inc.,
67 Misc. 3d 1214(A) (Civ. Ct. Kings Cty. 2020) 20
Andrew Carothers, M.D., P.C. v. Progressive Ins. Co.,
150 A.D.3d 192 (2d Dep’t 2017) 14
BAC Home Loans Servicing, LP v. Ry) ik,
161 A.D.3d 924 (2d Dep’t 2018)
Cholowsky v. Civiletti,
16 Misc. 3d 1138(A), (Sup. Ct. Suffolk Cty. 2007)
Community Bd. 7 of Borough of Manhattan v. Schaffer,
84 N.Y.2d 148 (1994)
Dirr v. Village of Tuckahoe,
Index No. 13091/06, 2007 WL 7305749 (Sup. Ct. Westchester Cty. May 24, 2007)
EBM Med. Health Care, P.C. v. Amica Mut. Ins. Co.,
32 Misc. 3d 144(A) (2d Dep’t 2011)
Friedman v. CYL Cemetery, Inc.,
80 A.D.3d 556 (2d Dep’t 2011) 22
Furze v. Stapen,
66 Misc. 3d 1206(A) (Sup. Ct. Kings Cty. 2019)
Gold Sun Shipping Ltd. v. Ionian Transp. Inc.,
245 A.D.2d 420 (2d Dep’t 1997) 15
Guggenheimer v. Ginzburg,
43 N.Y.2d 268 (1977)
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House of Spices (India), Inc. v. SMJ Servs., Inc.,
103 A.D.3d 848 (2d Dep’t 2013)
In re Arden Heights-Boulevard Jewish Ct
214 A.D.3d 651 (2d Dep’t 2023) passim
In re Congregation Yetev Lev D’Satmar, Inc. v. Kahana,
9 N.Y.3d 282 (2007) 21, 22
In re First Methodist Church of Canastota,
62 Misc. 2d 129 (Sup. Ct. Madison Cty. 1970) 13
In re Grocholski Cady Rd., LLC v. Smith,
171 A.D.3d 102 (4th Dep’t 2019) 10
In re Kissel v. Russian Orthodox Greek Catholic Holy Trinity Church of Yonkers.
103 A.D.2d 830 (2d Dep’t 1984) 22
In re World Trade Ctr. Lower Manhattan Disaster Site Litig.
30 N.Y.3d 377 (2017)
Jones v. Wolf,
443 U.S. 595 (1979) 19
Kowalchuk v. Stroup,
61 A.D. 118 (Ist Dep’t 2009) 16
Lubonty v. U.S. Bank Nat'l Assoc.,
34 N.Y.3d 250 (2019) 14
Mad. & Va. Virginia Eldership of Churches of God v. Church of God at Sharpsburg, Inc.,
396 U.S. 367 (1970) .. 19
McComb v. Town of Greenville,
163 A.D.2d 369 (2d Dep’t 1990) 12
Moore v. N.Y.C. Econ. Dev. Corp.,
26 Misc. 3d 1211(A) (Sup. Ct. Richmond Cty. 2010)
Morris v. Scribner,
69 N.Y.2d 418 (1987) 20
N.Y. Dist. of Assemblies of God v. Calvary Assembly of God,
64 A.D.2d 311 (3d Dep’t 1978) 22
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Navarra v. Vaca,
18 Misc. 3d 1115(A) (Sup. Ct. Richmond Cty. 2008)
Park Slope Jewish Ctr. v. Stern,
128 A.D.2d 847 (2d Dep’t 1987) 22
People v. Coleman,
209 A.D.3d 501 (1st Dep’t 2022)
Rector, Churchwardens & Verstrymen of the Church of the Holy Trinity v. Melish,
4 A.D.2d 256 (2d Dep’t 1957) 21
Richmond Pain Mgmt., P.C. v. Aetna/Travelers Ins. Co.
39 Misc. 3d 147(A) (2d Dept. May 22, 2013)
Soc’y of Plastics Indus. v. County of Suffolk,
77 N.Y.2d 761 (1991)
Solnick v. Whalen,
49 N.Y.2d 224 (1980) 11
St. Denis v. Queensbury Baybridge Homeowners Ass’n, In
100 A.D.3d 326 (3d Dep’t 2012)
St. Matthew Church of Christ Disciples of Christ, Inc. v. Creech,
196 Misc. 2d 843 (Sup. Ct. Kings Cty. 2003) 22
Still v. Paws & Rec, Inc.,
Index No. 515396, 2023 WL 3066116 (Sup. Ct. Kings Cty. Apr. 20, 2023)
Tae Hwa Yoon v. N.Y. Hahn Wolee Church, Inc.
56 A.D.3d 752 (2d Dep’t 2008)... 5,8
Trump v. N.Y. State Joint Comm’n Public Ethics,
47 Misc. 3d 993 (Sup. Ct. Albany Cty. 2015) 12
Valyrakis v. 346 W. 48th St. Hous. Dev. Fund Corp.,
161 A.D.3d 404 (1st Dep’t 2018). 14, 17
W. Branch Conservation Ass’n v. County of Rockland,
227 A.D.2d 547 (2d Dep’t 1996)
Zollo v. Adirondack Lodges Homeowners Assoc., Inc.,
71 Misc. 3d 1222(A) (Sup. Ct. Warren Cty. 2021)
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Other Authorities
22. N.Y. Jur. 2d Contracts § 9 16
N-PCL § 623(a).. 5,9
N-PCL § 623(b)
N-PCL § 623(c)
RCL § 2(6)(1)(a)
RCL§ 5 15, 19
RCL § 13 11
RCL § 195 21
RCL § 208 11
RCL § 2-b(1)(a)
RCL § 513(c)
Siegel N.Y. Pract. (6th ed... cceceeeeseesesssseesesesesesesesesesesesseeseeesseeseeeseeesseeeeeeesenseeeeeeeeeeees 10, 11, 12
Rules
CPLR 213 10, 12, 14
CPLR 217 10, 12
CPLR 2214 3,4, 5,6
CPLR 7803 10
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I INTRODUCTION
Plaintiff Congregation Zichron Be’er (“CZB,” the “Congregation,” or “Plaintiff’), by
member and duly authorized administrator Chaim Moskovits (“Mr. Moskovits’”), respectfully
submits this Memorandum of Law in opposition to the Defendants’ Amended Motion to Dismiss
the Verified Amended Complaint (“Amended Motion’).
Il. SUMMARY OF ARGUMENT
Defendants’ Amended Motion continues Defendants’ frivolous, vexatious, and
sanctionable litigation conduct in this litigation and appears designed solely to prolong these
proceedings and deprive CZB and its congregation their lawful right to enjoy their own property.
Defendants transmogrify the Complaint’s claims into something they are not. Each of
CZB’s claims involves either corporate law or property law issues (or both), and nothing more.
Indeed, as the Religious Corporation Law (“RCL”) makes clear, the board of trustees (the “Board”)
of CZB, and not the rabbi, controls the Congregation’s property. CZB does not ask the Court to
delve into nonjusticiable religious issues. Recognizing their fragile legal position, Defendants
attempt to reframe CZB’s claims into nonjusticiable religious claims about the rabbi’s authority,
but the Complaint belies Defendants’ smoke and mirrors and the Court must not be swayed by
Defendants’ sophistry.
In their Amended Motion, Defendants raise three grounds for dismissal. First, Defendants
insist that this suit is untimely under Article 78 and insist that this case is not justiciable.
Defendants conveniently neglect to inform the Court that Jess than four months ago, the Appellate
Division, Second Department held—in an RCL Section 208 proceeding, like this one, that is not
subject to Article 78—that the very issues in this case are justiciable because they implicate New
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York corporation and property law, not religious issues. See In re Arden Heights—Boulevard
Jewish Ctr., 214 A.D.3d 651, 652 (2d Dep’t 2023).
Second, Defendants bemoan a purported lack of standing by Mr. Moskovits to bring this
suit, even though CZB, and not Mr. Moskovits, is the Plaintiff. Defendants obtained authority to
amend their original motion, which amended motion, once acted upon, necessarily superseded the
original motion, and the original motion was dismissed as a matter of law. Defendants do not even
incorporate any arguments in their original motion by reference. As a result, Defendants waived
their previously raised argument that the Congregation does not have standing to bring this suit.
Even if they did not waive, the Congregation is the named Plaintiff—and not Mr. Moskovits—and
it has standing.
Third, Defendants’ standing argument begs the question. It assumes that Defendants
rightfully control CZB, and that Plaintiff is an interloper. That assumption lies at the cornerstone
of this case: Did CZB and Meir legally merge under Section 208? Because, as a matter of law, the
congregations did not merge, and religious services by Meir from 2021 to present are not CZB
services; they are Meir services, and Mr. Moskovits does not seek to prosecute this lawsuit on
behalf of Meir.
Ti. FACTS
This is the Defendants’ second bite at the dismissal apple. For brevity’s sake, the
Congregation respectfully (1) refers the Court to the facts and procedural posture contained in the
Affirmation of Christopher B. Pavlacka, Esq., submitted herewith, and (2) incorporates by
reference the facts contained in Plaintiff's Memorandum of Law in Opposition to Defendants’
Original Motion to Dismiss, NYSCEF Doc. No. 150, and Plaintiff's Memorandum of Law in
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Support of Its Application for Preliminary Injunction, NYSCEF Doc. No. 179, in the event the
Court treats the Amended Motion as a supplemental one.
Iv. ARGUMENT
A Standards
1 Amended Motions
Where a party receives permission from a court to amend a motion, the amended motion
supersedes the prior motion and becomes the operative motion. See Cholowsky v. Civiletti, 16
Misc. 3d 1138(A), at *1 (Sup. Ct. Suffolk Cty. 2007) (original motion “withdrawn as it is
superceded [sic] by the amended motion”); accord Moore v. N.Y.C. Econ. Dev. Corp., 26 Misc.
3d 1211(A), at *1 n.1 (Sup. Ct. Richmond Cty. 2010). The prior motion is denied as a matter of
law. Navarra v. Vaca, 18 Misc. 3d 1115(A), at *1 (Sup. Ct. Richmond Cty. 2008) (original motion
“denied as superceded [sic] by the amended motion”); accord Furze v. Stapen, 66 Misc. 3d
1206(A), at *6 (Sup. Ct. Kings Cty. 2019) (original motion “denied as academic, having been
superseded by her amended motion’).
As with their unamended counterparts, notices of amended motions must “specify . . . the
supporting papers on which the motion is based, the relief demands and the grounds therefor.”
CPLR 2214(a); see also Dirr v. Village of Tuckahoe, Index No. 13091/06, 2007 WL 7305749,
at *3 (Sup. Ct. Westchester Cty. May 24, 2007) (holding CPLR 2214(a) governs amended
motions).
2. Motion to Dismiss
a. CPLR 3211(a)(5)—Statute of Limitations
On a motion to dismiss based on statute of limitations grounds, “the court must take the
factual allegations of the complaint as true, and must resolve all inferences in favor of the plaintiff.”
EBM Med. Health Care, P.C. v. Amica Mut. Ins. Co., 32 Misc. 3d 144(A), at *1 (2d Dep’t 2011);
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see also 6D Farm Corp. v. Carr, 63 A.D.3d 903, 905 (2d Dep’t 2009). “A defendant moving for
dismissal on statute of limitations grounds bears the initial burden of establishing, prima facie, that
the time in which to sue has expired.” Richmond Pain Mgmt., P.C. v. Aetna/Travelers Ins. Co., 39
Misc. 3d 147(A), at *1 (2d Dept. May 22, 2013); see also 6D Farm, 53 A.D.3d at 905-06; House
of Spices (India), Inc. v. SMJ Servs., Inc., 103 A.D.3d 848, 849 (2d Dep’t 2013) (A defendant
“bears the initial burden of establishing, prima facie, that the time in which to sue had expired.”).
b CPLR 3211(a)(7)—Failure to State a Claim
On a motion to dismiss for failure to state a claim, a pleading is to be afforded a liberal
construction and facts alleged in a pleading are accepted as true in determining whether the
“proponent of the pleading has a cause of action,” Guggenheimer v. Ginzburg, 43 N.Y.2d 268
(1977), although a court will discount any legal conclusions clothed in factual garb or factual
claims that are inherently incredible or flatly contradicted by documentary evidence, W. Branch
Conservation Ass'n v. County of Rockland, 227 A.D.2d 547 (2d Dep’t 1996).
c. CPLR 3211(a)(3)—Lack of Capacity
“A party may move for judgment dismissing one or more causes of action asserted against
him on the ground that the party asserting the cause of action has no legal capacity to sue.” CPLR
3211(a)(3). Capacity “concerns a litigant’s power to appear and bring its grievance before the
court.” Community Bd. 7 of Borough of Manhattan v. Schaffer, 84 N.Y.2d 148, 155 (1994).
“Capacity should not be confused with standing, which relates to whether a party has suffered an
‘injury in fact’ conferring a ‘concrete interest in prosecuting the action.’” Jn re World Trade Ctr.
Lower Manhattan Disaster Site Litig., 30 N.Y.3d 377, 384 (2017) (citing Soc ’y of Plastics Indus.
v. County of Suffolk, 77 N.Y.2d 761, 772-73 (1991)). By contrast, capacity concerns “whether the
legislature invested that party with authority to seek relief in court.” /d. The defendant moving to
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dismiss bears under CPLR 3211(a)(3) the burden of establishing plaintiff's prima facie lack of
capacity. See BAC Home Loans Servicing, LP v Rychik, 161 A.D.3d 924, 925 (2d Dep’t 2018).
d Not-for-Profit Corporation Law § 623—Derivative Standing
Congregations incorporated under the RCL are subject to the Not-for-Profit Corporation
Law (“N-PCL”) as long as the N-PCL does not conflict with the RCL. RCL § 2-b(1)(a) (“The not-
for-profit corporation law applies to every corporation to which” the RCL applies, except if “any
provision of the not-for-profit corporation law conflicts with any provision of this chapter, the
provision of this chapter shall prevail and the conflicting provision of the not-for-profit corporation
law shall not apply in such case.”). As CZB is a congregation incorporated under the RCL, the N-
PCL applies to CZB, as long as the N-PCL does not conflict with the RCL.
Not-for-Profit Corporation Law (“N-PCL”) Section 623 provides that:
[a]n action may be brought in the right of a domestic or foreign corporation to
procure a judgment in its favor by five percent or more of any class of members or
by such percentage of the holders of capital certificates or of the owners of a
beneficial interest in the capital certificates of such corporation.
N-PCL § 623(a). Accordingly, at least five percent of a Jewish congregation can file a derivative
action on behalf of the congregation to vindicate the congregation’s rights. See id.; accord Tae
Hwa Yoon v. N.Y. Hahn Wolee Church, Inc., 56 A.D.3d 752, 755 (2d Dep’t 2008).
To support a derivative action for a non-profit corporation like a Jewish congregation, each
plaintiff must demonstrate he is a member of the congregation. N-PCL § 623(b). The plaintiff must
“set forth with particularity the efforts of the plaintiff or plaintiffs to secure the initiation of such
action by the board of [sic] the reason for not making such effort.” Jd. § 513(c). There must be a
demand or a justifiable refusal to make a demand.
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The Amended Motion Must Be Dismissed Because of Fatal Deficiencies in the Notice
of Motion
CPLR 2214 requires a notice of motion to identify “the supporting papers on which the
motion is based, the relief demands and the grounds therefor.” CPLR 2214(a). The fact that
supporting papers filed alongside a notice of motion contain the relief sought, against whom it was
sought, and the grounds thereof does not cure a deficient notice of motion because “a court is not
required to comb through a litigant’s papers to find information that is required to be set forth in
the notice of motion.” Abizadeh v. Abizadeh, 159 A.D.3d 856, 857 (2d Dep’t 2018); see also Still
v. Paws & Rec, Inc., Index No. 515396, --- N.Y.S. 3d ----, 2023 WL 3066116, at *2 (Sup. Ct.
Kings Cty. Apr. 20, 2023) (failure to comply with CPLR 2214 justified denial of motion for
summary judgment).
Defendants’ Notice fails to identify on what supporting papers the Amended Motion is
based, nor does it specify the grounds under which Defendants seek dismissal. Ex. V, at 1. The
requirements of CPLR 2214 are especially important here where Defendants previously filed the
Original Motion, which seeks dismissal on completely different grounds than the Amended
Motion. The Court should not be left to guess the reasons why Defendants now seek dismissal.
Accordingly, the Court should deny the Amended Motion for failure to comply with CPLR 2214.
See Abizadeh, 159 A.D.3d at 857.
Cc. The Congregation Has Standing to Bring This Lawsuit
1 Defendants Do Not Challenge the Congregation’s Standing to Bring This Suit
Defendants’ Amended Motion makes a fatal mistake regarding standing: They fail to argue
that CZB (rather than Mr. Moskovits) does not have standing to bring this suit. Defendants’
Original Motion sought to dismiss the Complaint for lack of capacity or standing to bring this suit.
Mem. Supp. Mot. Dismiss 4, NYSEC Doc. No. 128. Continuing their false representations that
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they are CZB, Defendants claimed that Mr. Moskovits “and his Supporters [sic] did not lawfully
decide to” bring this lawsuit. Jd. at 5.
Within the Original Motion’s opposition, CZB responded at length to Defendants’ false
allegations. Most importantly, the Congregation pointed out that “Defendants fail[ed] to cite any
provision of the Bylaws (or anything else, for that matter) for the proposition that the Board had
to hold an official meeting to either initiate litigation against Defendants or appoint Mr. Moskovits
the administrator to oversee the litigation.” Mem. Law Opp. Mot. Dismiss 14, NYSCEF Doc.
No. 150.
In their Original Reply, Defendants failed wholesale to respond to that argument. Instead,
Defendants again repeated, without pointing to any authority, that bringing this lawsuit “would
require notice and both a formal meeting and a vote.” Reply Aff. 13, NYSCEF Doc. No. 151. By
failing to provide any support for this proposition, Defendants waived their argument that the
Congregation did not properly bring this lawsuit. See People v. Coleman, 209 A.D.3d 501, 501
(Ist Dep’t 2022).
Now, in the Amended Motion, Defendants do not bother even moving to dismiss based on
the Congregation’s lack of standing. Mem. Law Supp. Am. Mot. Dismiss (“Am. Mem.”) 6-8,
NYSCEF Doc. No. 250. They do not incorporate by reference any of their previous papers,
including their briefing. Accordingly, Defendants concede that the Congregation has the right to
bring this suit.
Instead, they now merely claim that Mr. Moskovits does not have derivative standing to
prosecute this lawsuit. See id. Mr. Moskovits is not the Plaintiff in this suit, however: The
Congregation is. Ex. N (“Compl.”) 6. The Congregation brought this lawsuit as a direct action,
not a derivative action. Jd. § 14. To be sure, the Congregation authorized Mr. Moskovits to act as
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administrator with respect to this lawsuit. /d.; Ex. L. But in the Amended Motion, Defendants do
not contest the validity of the appointment of Mr. Moskovits to act as administrator in this direct
action. Am. Mem. 6-8.
In their only possible argument against the Congregation’s standing to prosecute this suit,
Defendants claim that Tae Hwa Yoon v. New York Hahn Wolee Church, Inc. “held that an action
seeking to vindicate the rights of a nonprofit organization, the claims must be brought by a
derivative action by 5% of its members.” /d. at 6 (citing Tae Hwa Yoon, 56 A.D.3d at 755).
Even a cursory reading of Tae Hwa Yoon confirms that Defendants misrepresent that case’s
holding. There, the plaintiff brought an action against a church and certain of its members. Tae
Hwa Yoon, 56 A.D.3d at 753. Tae Hwa Yoon affirmed dismissal of certain claims because
“plaintiff,” who was an individual, “seeks to vindicate the Church’s rights,” but these claims “were
not[] asserted in the context of a derivative action.” Jd. at 755. This was because the individual
member sought “to redress some wrong to, and on behalf of, a corporation.” St. Denis v.
Queensbury Baybridge Homeowners Ass'n, Inc., 100 A.D.3d 326, 1327 (3d Dep’t 2012) (citing
Tae Hwa Yoon, 56 A.D.3d at 753-54).
In this case, it is the Congregation that is bringing the case. There is no need to appeal to
derivative case law, in which an individual attempts to vindicate the rights of a non-profit
corporation, because the Congregation itself brought this suit to vindicate its own rights.
2. Mr. Moskovits Possesses Derivative Standing to Prosecute this Lawsuit
In the alternative, the Complaint pleads that Mr. Moskovits can brings the claims in this
suit derivatively on behalf of the Congregation. Compl. §15. Defendants complain that
Mr. Moskovits “is a lone wolf in this action,” and cannot bring this action on behalf of the
Congregation. Am. Mem. 8. Defendants’ false claim ignores that three of the five current members
of the Congregation have either testified or provided affidavits in support of the Congregation in
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this suit. See, e.g., Ex. R (testimony of Messrs. Moskovits and Leiser), Ex. T (affidavit of
Mr. Menche).
Defendants also assert that “[a]t the very least, Mr. Moskovits must assert facts including
the names of the members, and his calculation of how the class represents 5% of the members.”
Am. Mem. 8. In making this argument, Defendants admit they have not read the Complaint.
The Complaint alleges that the current membership of CZB consists of five members:
Messrs. Moskovits, Menche, Halberthal, and Leiser, and Dr. Ziegler. Compl. ] 8. Mr. Moskovits
constitutes 20% of the total membership of CZB, far above the 5% necessary to prosecute a
derivative action on behalf
of the Congregation. See N-PCL § 623(a); accord Zollo v. Adirondack
Lodges Homeowners Assoc., Inc., 71 Misc. 3d 1222(A), at *4 (Sup. Ct. Warren Cty. 2021)
(derivative action appropriate where it “appears that plaintiffs represent at least eight HOA
members—themselves included—which is more than five percent of the 78 members”). Moreover,
Mr. Moskovits properly pleads that he is a member of CZB, as required by N-PCL Section 623(b).
Compl. § 14.
Mr. Moskovits even pleads the efforts he made to secure Board action, as required by N-
PCL Section 623(c). See id. Jj 14 & 15; Ex(s). K-L. The Board met to determine if the
Congregation should sue Defendants for their unlawful attempt to take control of CZB and its
Property. During the October 22, 2021 Meeting, the Board authorized Mr. Moskovits to sue the
Defendants on CZB’s behalf. Ex. K. In other words, not only has Mr. Moskovits pleaded the efforts
he made to secure Board action, he has demonstrated that the Board fully supports his efforts to
vindicate CZB’s rights. Jd. Accordingly, the Motion must be denied because Mr. Moskovits has
derivative standing to prosecute this suit.
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D. The Congregation’s Claims Are Timely
1 CPLR 7803 Limits the Claims Subject to Article 78
Defendants incorrectly assume that the Congregation’s suit is brought under Article 78.
Am. Mem. 8-12. Generally, the statute of limitations for an Article 78 proceeding is four months.
Siegel N.Y. Pract. § 566 (6th ed.) (citing CPLR 217(1)).
CPLR 7803 provides the questions that may be raised in an Article 78 proceeding:
1 whether the body or officer failed to perform a duty enjoined upon it by law;
2. whether the body or officer proceeded, is proceeding or is about to proceed
without or in excess of jurisdiction;
whether a determination was made in violation of lawful procedure, was
affected by an error of law or was arbitrary and capricious or an abuse of
discretion, including abuse of discretion as to the measure or mode of
penalty or discipline imposed; or
whether a determination made as a result of a hearing held, and at which
evidence was taken [this is the “quasi judicial” hearing], pursuant to
direction by law is, on the entire record, supported by substantial evidence.
Id. § 557 (alteration in original) (citing CPLR 7803).
These are the only questions that can be raised under Article 78; if a question does not fall
within these categories, it is not properly brought under Article 78 and, therefore, is not subject to
Article 78’s four-month statute of limitations. Jd. § 563; see also In re Grocholski Cady Rd., LLC
v. Smith, 171 A.D.3d 102, 108-09 (4th Dep’t 2019) (“[B]ecause an article 78 proceeding was not
a ‘proper vehicle’ for plaintiff's private claims .. . , the four-month ‘limitations period set forth in
CPLR 217[1] is not applicable to [such claims] and the six-year statute of limitations set forth in
CPLR 213(1) applies instead.’” (last alteration in original))).
10
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2. Neither Section 208 Nor Section 13 Is Subject to Article 78’s Statute of
Limitations
CZB predicates its claims on Section 208, which governs the merger or consolidation of
two Jewish corporations. As a matter of law, including binding Second Department case law,
Section 208 does not implicate Article 78. See In re Arden Heights—Boulevard Jewish Ctr., 214
A.D.3d at 652.
a. Section 208 and Section 13 Claims Do Not Implicate Article 78 Because
They Do Not Fall Within the Enumerated Questions of Article 78
RCL Section 13 generally governs the corporate formalities that must occur before two
religious not-for-profit corporations can merge or consolidate. See RCL § 13. RCL Section 208
governs the specific corporate formalities that must occur before two Jewish congregations can
merge or consolidate. See RCL § 208.
To determine what statute of limitation applies to CZB’s Section 208 claim, “it is necessary
to examine the substance of that action to identify the relationship out of which the claim arises
and the relief sought.” Solnick v. Whalen, 49 N.Y.2d 224, 229 (1980). There are direct non-
declaratory analogues to the Congregation’s Section 208 claims: actions brought under Section
208 to merge or consolidate two Jewish congregations and actions brought under Section 13 to
merge or consolidate two religious not-for-profit corporations. See RCL §§ 13, 208.
Neither Section 13 nor Section 208 implicates the four questions in Article 78. First, these
Sections do not implicate the first question—whether the body or officer failed to perform a duty
enjoined upon it by law—because litigation under these Sections does not seek to “compel the
performance of a duty that is merely ministerial in nature and involves no exercise of judgment or
discretion.” Siegel § 557, supra. By the express terms of Section 208, Jewish congregations must
affirmatively decide to merge or consolidate, and therefore a merger is a “discretionary” act not
11
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amenable to Article 78. /d.; s
Preview
INDEX NO. 036020/2021 FILED: ROCKLAND COUNTY CLERK 01/19/2024 09:49 PM NYSCEF DOC. NO. 660 RECEIVED NYSCEF: 01/19/2024 EXHIBIT “56” ET): A OUN 74 INDEX NO. 636020/2021 i NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 04/29/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND ween n ene eee CONGREGATION ZICHRON BE’ER, by member and duly authorized administrator, CHAIM MOSKOVITS, Plaintiff(s) Index No. 036020/2021 -against- MARTIN THALER, M.D., ELLIOT AMSEL, IRA ZINSTEIN, ELI KARP, SAMUEL M. BREE, YAAKOV ROSENBERG, HESHIE FRIED, CHASKEL WEISSNER, CONGREGATION ZICHRON MEIR, and other Defendants presently unknown to Plaintiffat this time, Defendant(s), -against- SOL MENCHE, IZZY HALBERTHAL, HENRY A. LEISER, and DR. HIRSCH ZIEGLER Additional Defendant(s) on the Counterclaims ween n ene eee PLAINTIFF CONGREGATION ZICHRON BE’ER’S MEMORANDUM OF LAW IN OPOSITION TO DEFENDANTS’ AMENDED MOTION TO DISMISS 1 of 31 ET): A WD OU SH 7aG INDEX NO. 636020/2021 i NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 04/29/2024 TABLE OF CONTENTS Page(s) TABLE OF AUTHORITIES I INTRODUCTION II SUMMARY OF ARGUMENT Ill FACTS IV. ARGUMEN’ Standards ........ccecesecseseeesseseeseseseeseseeseseseesesesecseseessseseassessseeseeassesesassesasseseeassssesasseeaseesees 3 1 Amended Motions 2. Motion to Dismiss ..........ccccceecseseseeseseeneseseeseseesseseeassesseasseesssesseasseessseseeaseesneaeseeaeee 3 CPLR 3211 (a)(5) — Statute of Limitations .0.... eee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeee 3 CPLR 3211 (a)(7) — Failure to State a Claim CPLR 3211 (a)(3) — Lack of Capacity Not-for-Profit Corporation Law § 623 — Derivative Standing The Amended Motion Must Be Dismissed Because of Fatal Deficiencies in the Notice of Motion The Congregation Has Standing to Bring This Lawsuit 1 Defendants Do Not Challenge the Congregation’s Standing to Bring This Suit 2. Mr. Moskovitz Possesses Derivative Standing to Prosecute this Lawsuit The Congregations Claims Are Timely... 10 1 CPLR 7803 Limits the Claims Subject to Article 78 10 2. Neither Section 208 Nor Section 13 Is Subject to Article 78’ Statute of Limitations ..........ccceseeceseeseseseesesesseseseeseseesssesnesesseesesneneeeeee 11 a. Section 208 and Section 13 Claims Do Not Implicate Article 78 Because They Do Not Fall Within the Enumerated Questions of Article 78. 11 i 2 of 31 ET): A WD OU SH 7aG INDEX NO. 636020/2021 i NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 04/29/2024 b. The Second Department Recently Confirmed that Article 78 Does Not Apply to Section 208 13 All Fraud Claims Are Timely 14 The Congregation’s Remaining Claims Are Property Disput Not Subject to Article 78 15 The Congregation Has Not Raised Claims Regarding Defendant We er Purported Hiring 15 To the Extent Article 78 Applies, the Congregation’s Claims Are Still Timely 16 Under Defendants’ Analysis, Defendants Are Barred from Contesting that the Fraudulent Board Is Not the Lawful Board of CZB 17 E. The Congregation’s Claims Against Defendants Are Justiciable 18 1 The Second Department Foreclosed Defendants ” Claim that CZB’s Claii Are Nonjusticiable 19 Claims Regarding the Property of Religious Corporations Are Also Justiciable 19 Defendants’ Arguments Do Not Compel a Finding that the Compliant Nonjusticiable 20 CONCLUSION 23 i 3 of 31 ET): A OUN 74 INDEX NO. 636020/2021 i NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 04/29/2024 TABLE OF AUTHORITIES PAGE(S) Cases 317 W. 89th St., LLC v. Engstrom, 36 Misc. 3d 1242(A) (Sup. Ct. N.Y. Cty. 2012) 15 6D Farm Corp. v. Carr, 63 A.D.3d 903 (2d Dep’t 2009) 4,15 Abizadeh v. Abizadeh, 159 A.D.3d 856 (2d Dep’t 2018) Agudas Chasidei Chabad of the U.S. v. Congregation Lubavitch, Inc., 67 Misc. 3d 1214(A) (Civ. Ct. Kings Cty. 2020) 20 Andrew Carothers, M.D., P.C. v. Progressive Ins. Co., 150 A.D.3d 192 (2d Dep’t 2017) 14 BAC Home Loans Servicing, LP v. Ry) ik, 161 A.D.3d 924 (2d Dep’t 2018) Cholowsky v. Civiletti, 16 Misc. 3d 1138(A), (Sup. Ct. Suffolk Cty. 2007) Community Bd. 7 of Borough of Manhattan v. Schaffer, 84 N.Y.2d 148 (1994) Dirr v. Village of Tuckahoe, Index No. 13091/06, 2007 WL 7305749 (Sup. Ct. Westchester Cty. May 24, 2007) EBM Med. Health Care, P.C. v. Amica Mut. Ins. Co., 32 Misc. 3d 144(A) (2d Dep’t 2011) Friedman v. CYL Cemetery, Inc., 80 A.D.3d 556 (2d Dep’t 2011) 22 Furze v. Stapen, 66 Misc. 3d 1206(A) (Sup. Ct. Kings Cty. 2019) Gold Sun Shipping Ltd. v. Ionian Transp. Inc., 245 A.D.2d 420 (2d Dep’t 1997) 15 Guggenheimer v. Ginzburg, 43 N.Y.2d 268 (1977) iii 4 of 31 ET): A WD OU SH 7aG INDEX NO. 636020/2021 i NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 04/29/2024 House of Spices (India), Inc. v. SMJ Servs., Inc., 103 A.D.3d 848 (2d Dep’t 2013) In re Arden Heights-Boulevard Jewish Ct 214 A.D.3d 651 (2d Dep’t 2023) passim In re Congregation Yetev Lev D’Satmar, Inc. v. Kahana, 9 N.Y.3d 282 (2007) 21, 22 In re First Methodist Church of Canastota, 62 Misc. 2d 129 (Sup. Ct. Madison Cty. 1970) 13 In re Grocholski Cady Rd., LLC v. Smith, 171 A.D.3d 102 (4th Dep’t 2019) 10 In re Kissel v. Russian Orthodox Greek Catholic Holy Trinity Church of Yonkers. 103 A.D.2d 830 (2d Dep’t 1984) 22 In re World Trade Ctr. Lower Manhattan Disaster Site Litig. 30 N.Y.3d 377 (2017) Jones v. Wolf, 443 U.S. 595 (1979) 19 Kowalchuk v. Stroup, 61 A.D. 118 (Ist Dep’t 2009) 16 Lubonty v. U.S. Bank Nat'l Assoc., 34 N.Y.3d 250 (2019) 14 Mad. & Va. Virginia Eldership of Churches of God v. Church of God at Sharpsburg, Inc., 396 U.S. 367 (1970) .. 19 McComb v. Town of Greenville, 163 A.D.2d 369 (2d Dep’t 1990) 12 Moore v. N.Y.C. Econ. Dev. Corp., 26 Misc. 3d 1211(A) (Sup. Ct. Richmond Cty. 2010) Morris v. Scribner, 69 N.Y.2d 418 (1987) 20 N.Y. Dist. of Assemblies of God v. Calvary Assembly of God, 64 A.D.2d 311 (3d Dep’t 1978) 22 iv 5 of 31 ET): A WD OU SH 7aG INDEX NO. 636020/2021 i NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 04/29/2024 Navarra v. Vaca, 18 Misc. 3d 1115(A) (Sup. Ct. Richmond Cty. 2008) Park Slope Jewish Ctr. v. Stern, 128 A.D.2d 847 (2d Dep’t 1987) 22 People v. Coleman, 209 A.D.3d 501 (1st Dep’t 2022) Rector, Churchwardens & Verstrymen of the Church of the Holy Trinity v. Melish, 4 A.D.2d 256 (2d Dep’t 1957) 21 Richmond Pain Mgmt., P.C. v. Aetna/Travelers Ins. Co. 39 Misc. 3d 147(A) (2d Dept. May 22, 2013) Soc’y of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761 (1991) Solnick v. Whalen, 49 N.Y.2d 224 (1980) 11 St. Denis v. Queensbury Baybridge Homeowners Ass’n, In 100 A.D.3d 326 (3d Dep’t 2012) St. Matthew Church of Christ Disciples of Christ, Inc. v. Creech, 196 Misc. 2d 843 (Sup. Ct. Kings Cty. 2003) 22 Still v. Paws & Rec, Inc., Index No. 515396, 2023 WL 3066116 (Sup. Ct. Kings Cty. Apr. 20, 2023) Tae Hwa Yoon v. N.Y. Hahn Wolee Church, Inc. 56 A.D.3d 752 (2d Dep’t 2008)... 5,8 Trump v. N.Y. State Joint Comm’n Public Ethics, 47 Misc. 3d 993 (Sup. Ct. Albany Cty. 2015) 12 Valyrakis v. 346 W. 48th St. Hous. Dev. Fund Corp., 161 A.D.3d 404 (1st Dep’t 2018). 14, 17 W. Branch Conservation Ass’n v. County of Rockland, 227 A.D.2d 547 (2d Dep’t 1996) Zollo v. Adirondack Lodges Homeowners Assoc., Inc., 71 Misc. 3d 1222(A) (Sup. Ct. Warren Cty. 2021) 6 of 31 ET): A OUN 74 INDEX NO. 636020/2021 i NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 04/29/2024 Other Authorities 22. N.Y. Jur. 2d Contracts § 9 16 N-PCL § 623(a).. 5,9 N-PCL § 623(b) N-PCL § 623(c) RCL § 2(6)(1)(a) RCL§ 5 15, 19 RCL § 13 11 RCL § 195 21 RCL § 208 11 RCL § 2-b(1)(a) RCL § 513(c) Siegel N.Y. Pract. (6th ed... cceceeeeseesesssseesesesesesesesesesesesseeseeesseeseeeseeesseeeeeeesenseeeeeeeeeeees 10, 11, 12 Rules CPLR 213 10, 12, 14 CPLR 217 10, 12 CPLR 2214 3,4, 5,6 CPLR 7803 10 vi 7 of 31 ET): A WD OU SH 7aG INDEX NO. 636020/2021 i NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 04/29/2024 I INTRODUCTION Plaintiff Congregation Zichron Be’er (“CZB,” the “Congregation,” or “Plaintiff’), by member and duly authorized administrator Chaim Moskovits (“Mr. Moskovits’”), respectfully submits this Memorandum of Law in opposition to the Defendants’ Amended Motion to Dismiss the Verified Amended Complaint (“Amended Motion’). Il. SUMMARY OF ARGUMENT Defendants’ Amended Motion continues Defendants’ frivolous, vexatious, and sanctionable litigation conduct in this litigation and appears designed solely to prolong these proceedings and deprive CZB and its congregation their lawful right to enjoy their own property. Defendants transmogrify the Complaint’s claims into something they are not. Each of CZB’s claims involves either corporate law or property law issues (or both), and nothing more. Indeed, as the Religious Corporation Law (“RCL”) makes clear, the board of trustees (the “Board”) of CZB, and not the rabbi, controls the Congregation’s property. CZB does not ask the Court to delve into nonjusticiable religious issues. Recognizing their fragile legal position, Defendants attempt to reframe CZB’s claims into nonjusticiable religious claims about the rabbi’s authority, but the Complaint belies Defendants’ smoke and mirrors and the Court must not be swayed by Defendants’ sophistry. In their Amended Motion, Defendants raise three grounds for dismissal. First, Defendants insist that this suit is untimely under Article 78 and insist that this case is not justiciable. Defendants conveniently neglect to inform the Court that Jess than four months ago, the Appellate Division, Second Department held—in an RCL Section 208 proceeding, like this one, that is not subject to Article 78—that the very issues in this case are justiciable because they implicate New 8 of 31 ET): A WD OU SH 7aG INDEX NO. 636020/2021 i NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 04/29/2024 York corporation and property law, not religious issues. See In re Arden Heights—Boulevard Jewish Ctr., 214 A.D.3d 651, 652 (2d Dep’t 2023). Second, Defendants bemoan a purported lack of standing by Mr. Moskovits to bring this suit, even though CZB, and not Mr. Moskovits, is the Plaintiff. Defendants obtained authority to amend their original motion, which amended motion, once acted upon, necessarily superseded the original motion, and the original motion was dismissed as a matter of law. Defendants do not even incorporate any arguments in their original motion by reference. As a result, Defendants waived their previously raised argument that the Congregation does not have standing to bring this suit. Even if they did not waive, the Congregation is the named Plaintiff—and not Mr. Moskovits—and it has standing. Third, Defendants’ standing argument begs the question. It assumes that Defendants rightfully control CZB, and that Plaintiff is an interloper. That assumption lies at the cornerstone of this case: Did CZB and Meir legally merge under Section 208? Because, as a matter of law, the congregations did not merge, and religious services by Meir from 2021 to present are not CZB services; they are Meir services, and Mr. Moskovits does not seek to prosecute this lawsuit on behalf of Meir. Ti. FACTS This is the Defendants’ second bite at the dismissal apple. For brevity’s sake, the Congregation respectfully (1) refers the Court to the facts and procedural posture contained in the Affirmation of Christopher B. Pavlacka, Esq., submitted herewith, and (2) incorporates by reference the facts contained in Plaintiff's Memorandum of Law in Opposition to Defendants’ Original Motion to Dismiss, NYSCEF Doc. No. 150, and Plaintiff's Memorandum of Law in 9 of 31 ET): A WD OU SH 7aG INDEX NO. 636020/2021 i NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 04/29/2024 Support of Its Application for Preliminary Injunction, NYSCEF Doc. No. 179, in the event the Court treats the Amended Motion as a supplemental one. Iv. ARGUMENT A Standards 1 Amended Motions Where a party receives permission from a court to amend a motion, the amended motion supersedes the prior motion and becomes the operative motion. See Cholowsky v. Civiletti, 16 Misc. 3d 1138(A), at *1 (Sup. Ct. Suffolk Cty. 2007) (original motion “withdrawn as it is superceded [sic] by the amended motion”); accord Moore v. N.Y.C. Econ. Dev. Corp., 26 Misc. 3d 1211(A), at *1 n.1 (Sup. Ct. Richmond Cty. 2010). The prior motion is denied as a matter of law. Navarra v. Vaca, 18 Misc. 3d 1115(A), at *1 (Sup. Ct. Richmond Cty. 2008) (original motion “denied as superceded [sic] by the amended motion”); accord Furze v. Stapen, 66 Misc. 3d 1206(A), at *6 (Sup. Ct. Kings Cty. 2019) (original motion “denied as academic, having been superseded by her amended motion’). As with their unamended counterparts, notices of amended motions must “specify . . . the supporting papers on which the motion is based, the relief demands and the grounds therefor.” CPLR 2214(a); see also Dirr v. Village of Tuckahoe, Index No. 13091/06, 2007 WL 7305749, at *3 (Sup. Ct. Westchester Cty. May 24, 2007) (holding CPLR 2214(a) governs amended motions). 2. Motion to Dismiss a. CPLR 3211(a)(5)—Statute of Limitations On a motion to dismiss based on statute of limitations grounds, “the court must take the factual allegations of the complaint as true, and must resolve all inferences in favor of the plaintiff.” EBM Med. Health Care, P.C. v. Amica Mut. Ins. Co., 32 Misc. 3d 144(A), at *1 (2d Dep’t 2011); 10 of 31 ET): A WD OU SH 7aG INDEX NO. 636020/2021 i NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 04/29/2024 see also 6D Farm Corp. v. Carr, 63 A.D.3d 903, 905 (2d Dep’t 2009). “A defendant moving for dismissal on statute of limitations grounds bears the initial burden of establishing, prima facie, that the time in which to sue has expired.” Richmond Pain Mgmt., P.C. v. Aetna/Travelers Ins. Co., 39 Misc. 3d 147(A), at *1 (2d Dept. May 22, 2013); see also 6D Farm, 53 A.D.3d at 905-06; House of Spices (India), Inc. v. SMJ Servs., Inc., 103 A.D.3d 848, 849 (2d Dep’t 2013) (A defendant “bears the initial burden of establishing, prima facie, that the time in which to sue had expired.”). b CPLR 3211(a)(7)—Failure to State a Claim On a motion to dismiss for failure to state a claim, a pleading is to be afforded a liberal construction and facts alleged in a pleading are accepted as true in determining whether the “proponent of the pleading has a cause of action,” Guggenheimer v. Ginzburg, 43 N.Y.2d 268 (1977), although a court will discount any legal conclusions clothed in factual garb or factual claims that are inherently incredible or flatly contradicted by documentary evidence, W. Branch Conservation Ass'n v. County of Rockland, 227 A.D.2d 547 (2d Dep’t 1996). c. CPLR 3211(a)(3)—Lack of Capacity “A party may move for judgment dismissing one or more causes of action asserted against him on the ground that the party asserting the cause of action has no legal capacity to sue.” CPLR 3211(a)(3). Capacity “concerns a litigant’s power to appear and bring its grievance before the court.” Community Bd. 7 of Borough of Manhattan v. Schaffer, 84 N.Y.2d 148, 155 (1994). “Capacity should not be confused with standing, which relates to whether a party has suffered an ‘injury in fact’ conferring a ‘concrete interest in prosecuting the action.’” Jn re World Trade Ctr. Lower Manhattan Disaster Site Litig., 30 N.Y.3d 377, 384 (2017) (citing Soc ’y of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 772-73 (1991)). By contrast, capacity concerns “whether the legislature invested that party with authority to seek relief in court.” /d. The defendant moving to 11 of 31 ET): A WD OU SH 7aG INDEX NO. 636020/2021 i NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 04/29/2024 dismiss bears under CPLR 3211(a)(3) the burden of establishing plaintiff's prima facie lack of capacity. See BAC Home Loans Servicing, LP v Rychik, 161 A.D.3d 924, 925 (2d Dep’t 2018). d Not-for-Profit Corporation Law § 623—Derivative Standing Congregations incorporated under the RCL are subject to the Not-for-Profit Corporation Law (“N-PCL”) as long as the N-PCL does not conflict with the RCL. RCL § 2-b(1)(a) (“The not- for-profit corporation law applies to every corporation to which” the RCL applies, except if “any provision of the not-for-profit corporation law conflicts with any provision of this chapter, the provision of this chapter shall prevail and the conflicting provision of the not-for-profit corporation law shall not apply in such case.”). As CZB is a congregation incorporated under the RCL, the N- PCL applies to CZB, as long as the N-PCL does not conflict with the RCL. Not-for-Profit Corporation Law (“N-PCL”) Section 623 provides that: [a]n action may be brought in the right of a domestic or foreign corporation to procure a judgment in its favor by five percent or more of any class of members or by such percentage of the holders of capital certificates or of the owners of a beneficial interest in the capital certificates of such corporation. N-PCL § 623(a). Accordingly, at least five percent of a Jewish congregation can file a derivative action on behalf of the congregation to vindicate the congregation’s rights. See id.; accord Tae Hwa Yoon v. N.Y. Hahn Wolee Church, Inc., 56 A.D.3d 752, 755 (2d Dep’t 2008). To support a derivative action for a non-profit corporation like a Jewish congregation, each plaintiff must demonstrate he is a member of the congregation. N-PCL § 623(b). The plaintiff must “set forth with particularity the efforts of the plaintiff or plaintiffs to secure the initiation of such action by the board of [sic] the reason for not making such effort.” Jd. § 513(c). There must be a demand or a justifiable refusal to make a demand. 12 of 31 ET): A WD OU SH 7aG INDEX NO. 636020/2021 i NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 04/29/2024 The Amended Motion Must Be Dismissed Because of Fatal Deficiencies in the Notice of Motion CPLR 2214 requires a notice of motion to identify “the supporting papers on which the motion is based, the relief demands and the grounds therefor.” CPLR 2214(a). The fact that supporting papers filed alongside a notice of motion contain the relief sought, against whom it was sought, and the grounds thereof does not cure a deficient notice of motion because “a court is not required to comb through a litigant’s papers to find information that is required to be set forth in the notice of motion.” Abizadeh v. Abizadeh, 159 A.D.3d 856, 857 (2d Dep’t 2018); see also Still v. Paws & Rec, Inc., Index No. 515396, --- N.Y.S. 3d ----, 2023 WL 3066116, at *2 (Sup. Ct. Kings Cty. Apr. 20, 2023) (failure to comply with CPLR 2214 justified denial of motion for summary judgment). Defendants’ Notice fails to identify on what supporting papers the Amended Motion is based, nor does it specify the grounds under which Defendants seek dismissal. Ex. V, at 1. The requirements of CPLR 2214 are especially important here where Defendants previously filed the Original Motion, which seeks dismissal on completely different grounds than the Amended Motion. The Court should not be left to guess the reasons why Defendants now seek dismissal. Accordingly, the Court should deny the Amended Motion for failure to comply with CPLR 2214. See Abizadeh, 159 A.D.3d at 857. Cc. The Congregation Has Standing to Bring This Lawsuit 1 Defendants Do Not Challenge the Congregation’s Standing to Bring This Suit Defendants’ Amended Motion makes a fatal mistake regarding standing: They fail to argue that CZB (rather than Mr. Moskovits) does not have standing to bring this suit. Defendants’ Original Motion sought to dismiss the Complaint for lack of capacity or standing to bring this suit. Mem. Supp. Mot. Dismiss 4, NYSEC Doc. No. 128. Continuing their false representations that 13 of 31 ET): A WD OU SH 7aG INDEX NO. 636020/2021 i NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 04/29/2024 they are CZB, Defendants claimed that Mr. Moskovits “and his Supporters [sic] did not lawfully decide to” bring this lawsuit. Jd. at 5. Within the Original Motion’s opposition, CZB responded at length to Defendants’ false allegations. Most importantly, the Congregation pointed out that “Defendants fail[ed] to cite any provision of the Bylaws (or anything else, for that matter) for the proposition that the Board had to hold an official meeting to either initiate litigation against Defendants or appoint Mr. Moskovits the administrator to oversee the litigation.” Mem. Law Opp. Mot. Dismiss 14, NYSCEF Doc. No. 150. In their Original Reply, Defendants failed wholesale to respond to that argument. Instead, Defendants again repeated, without pointing to any authority, that bringing this lawsuit “would require notice and both a formal meeting and a vote.” Reply Aff. 13, NYSCEF Doc. No. 151. By failing to provide any support for this proposition, Defendants waived their argument that the Congregation did not properly bring this lawsuit. See People v. Coleman, 209 A.D.3d 501, 501 (Ist Dep’t 2022). Now, in the Amended Motion, Defendants do not bother even moving to dismiss based on the Congregation’s lack of standing. Mem. Law Supp. Am. Mot. Dismiss (“Am. Mem.”) 6-8, NYSCEF Doc. No. 250. They do not incorporate by reference any of their previous papers, including their briefing. Accordingly, Defendants concede that the Congregation has the right to bring this suit. Instead, they now merely claim that Mr. Moskovits does not have derivative standing to prosecute this lawsuit. See id. Mr. Moskovits is not the Plaintiff in this suit, however: The Congregation is. Ex. N (“Compl.”) 6. The Congregation brought this lawsuit as a direct action, not a derivative action. Jd. § 14. To be sure, the Congregation authorized Mr. Moskovits to act as 14 of 31 ET): A WD OU SH 7aG INDEX NO. 636020/2021 i NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 04/29/2024 administrator with respect to this lawsuit. /d.; Ex. L. But in the Amended Motion, Defendants do not contest the validity of the appointment of Mr. Moskovits to act as administrator in this direct action. Am. Mem. 6-8. In their only possible argument against the Congregation’s standing to prosecute this suit, Defendants claim that Tae Hwa Yoon v. New York Hahn Wolee Church, Inc. “held that an action seeking to vindicate the rights of a nonprofit organization, the claims must be brought by a derivative action by 5% of its members.” /d. at 6 (citing Tae Hwa Yoon, 56 A.D.3d at 755). Even a cursory reading of Tae Hwa Yoon confirms that Defendants misrepresent that case’s holding. There, the plaintiff brought an action against a church and certain of its members. Tae Hwa Yoon, 56 A.D.3d at 753. Tae Hwa Yoon affirmed dismissal of certain claims because “plaintiff,” who was an individual, “seeks to vindicate the Church’s rights,” but these claims “were not[] asserted in the context of a derivative action.” Jd. at 755. This was because the individual member sought “to redress some wrong to, and on behalf of, a corporation.” St. Denis v. Queensbury Baybridge Homeowners Ass'n, Inc., 100 A.D.3d 326, 1327 (3d Dep’t 2012) (citing Tae Hwa Yoon, 56 A.D.3d at 753-54). In this case, it is the Congregation that is bringing the case. There is no need to appeal to derivative case law, in which an individual attempts to vindicate the rights of a non-profit corporation, because the Congregation itself brought this suit to vindicate its own rights. 2. Mr. Moskovits Possesses Derivative Standing to Prosecute this Lawsuit In the alternative, the Complaint pleads that Mr. Moskovits can brings the claims in this suit derivatively on behalf of the Congregation. Compl. §15. Defendants complain that Mr. Moskovits “is a lone wolf in this action,” and cannot bring this action on behalf of the Congregation. Am. Mem. 8. Defendants’ false claim ignores that three of the five current members of the Congregation have either testified or provided affidavits in support of the Congregation in 15 of 31 ET): A WD OU SH 7aG INDEX NO. 636020/2021 i NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 04/29/2024 this suit. See, e.g., Ex. R (testimony of Messrs. Moskovits and Leiser), Ex. T (affidavit of Mr. Menche). Defendants also assert that “[a]t the very least, Mr. Moskovits must assert facts including the names of the members, and his calculation of how the class represents 5% of the members.” Am. Mem. 8. In making this argument, Defendants admit they have not read the Complaint. The Complaint alleges that the current membership of CZB consists of five members: Messrs. Moskovits, Menche, Halberthal, and Leiser, and Dr. Ziegler. Compl. ] 8. Mr. Moskovits constitutes 20% of the total membership of CZB, far above the 5% necessary to prosecute a derivative action on behalf of the Congregation. See N-PCL § 623(a); accord Zollo v. Adirondack Lodges Homeowners Assoc., Inc., 71 Misc. 3d 1222(A), at *4 (Sup. Ct. Warren Cty. 2021) (derivative action appropriate where it “appears that plaintiffs represent at least eight HOA members—themselves included—which is more than five percent of the 78 members”). Moreover, Mr. Moskovits properly pleads that he is a member of CZB, as required by N-PCL Section 623(b). Compl. § 14. Mr. Moskovits even pleads the efforts he made to secure Board action, as required by N- PCL Section 623(c). See id. Jj 14 & 15; Ex(s). K-L. The Board met to determine if the Congregation should sue Defendants for their unlawful attempt to take control of CZB and its Property. During the October 22, 2021 Meeting, the Board authorized Mr. Moskovits to sue the Defendants on CZB’s behalf. Ex. K. In other words, not only has Mr. Moskovits pleaded the efforts he made to secure Board action, he has demonstrated that the Board fully supports his efforts to vindicate CZB’s rights. Jd. Accordingly, the Motion must be denied because Mr. Moskovits has derivative standing to prosecute this suit. 16 of 31 ET): A WD OU SH 7aG INDEX NO. 636020/2021 i NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 04/29/2024 D. The Congregation’s Claims Are Timely 1 CPLR 7803 Limits the Claims Subject to Article 78 Defendants incorrectly assume that the Congregation’s suit is brought under Article 78. Am. Mem. 8-12. Generally, the statute of limitations for an Article 78 proceeding is four months. Siegel N.Y. Pract. § 566 (6th ed.) (citing CPLR 217(1)). CPLR 7803 provides the questions that may be raised in an Article 78 proceeding: 1 whether the body or officer failed to perform a duty enjoined upon it by law; 2. whether the body or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction; whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed; or whether a determination made as a result of a hearing held, and at which evidence was taken [this is the “quasi judicial” hearing], pursuant to direction by law is, on the entire record, supported by substantial evidence. Id. § 557 (alteration in original) (citing CPLR 7803). These are the only questions that can be raised under Article 78; if a question does not fall within these categories, it is not properly brought under Article 78 and, therefore, is not subject to Article 78’s four-month statute of limitations. Jd. § 563; see also In re Grocholski Cady Rd., LLC v. Smith, 171 A.D.3d 102, 108-09 (4th Dep’t 2019) (“[B]ecause an article 78 proceeding was not a ‘proper vehicle’ for plaintiff's private claims .. . , the four-month ‘limitations period set forth in CPLR 217[1] is not applicable to [such claims] and the six-year statute of limitations set forth in CPLR 213(1) applies instead.’” (last alteration in original))). 10 17 of 31 ET): 0 WD OU SH 7aG INDEX NO. 636020/2021 NYSCEF DOC. NO. 666 RECEIVED NYSCEF: 04/29/2024 2. Neither Section 208 Nor Section 13 Is Subject to Article 78’s Statute of Limitations CZB predicates its claims on Section 208, which governs the merger or consolidation of two Jewish corporations. As a matter of law, including binding Second Department case law, Section 208 does not implicate Article 78. See In re Arden Heights—Boulevard Jewish Ctr., 214 A.D.3d at 652. a. Section 208 and Section 13 Claims Do Not Implicate Article 78 Because They Do Not Fall Within the Enumerated Questions of Article 78 RCL Section 13 generally governs the corporate formalities that must occur before two religious not-for-profit corporations can merge or consolidate. See RCL § 13. RCL Section 208 governs the specific corporate formalities that must occur before two Jewish congregations can merge or consolidate. See RCL § 208. To determine what statute of limitation applies to CZB’s Section 208 claim, “it is necessary to examine the substance of that action to identify the relationship out of which the claim arises and the relief sought.” Solnick v. Whalen, 49 N.Y.2d 224, 229 (1980). There are direct non- declaratory analogues to the Congregation’s Section 208 claims: actions brought under Section 208 to merge or consolidate two Jewish congregations and actions brought under Section 13 to merge or consolidate two religious not-for-profit corporations. See RCL §§ 13, 208. Neither Section 13 nor Section 208 implicates the four questions in Article 78. First, these Sections do not implicate the first question—whether the body or officer failed to perform a duty enjoined upon it by law—because litigation under these Sections does not seek to “compel the performance of a duty that is merely ministerial in nature and involves no exercise of judgment or discretion.” Siegel § 557, supra. By the express terms of Section 208, Jewish congregations must affirmatively decide to merge or consolidate, and therefore a merger is a “discretionary” act not 11 18 of 31 ET): A WD OU SH 7aG INDEX NO. 636020/2021 i NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 04/29/2024 amenable to Article 78. /d.; s