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FILED: FRANKLIN COUNTY CLERK 03/25/2024 02:43 PM INDEX NO. E2022-554
NYSCEF DOC. NO. 236 RECEIVED NYSCEF: 03/25/2024
SUPREME
SUPREME COURT
COURT OF
OF THE
THE STATE
STATE OF NEW YORK
OF NEW YORK
COUNTY
COUNTY OF FRANKLIN
OF FRANKLIN
COREY
COREY J. MONETTE, on
J. MONETTE, behalf of
on behalf of himself and all
himself and all other
other NOTICE
NOTICE OF
OF ENTRY
ENTRY
members
members and and Trustees
Trustees of Living Hope
of Living Hope Church,
Church, Inc.
Inc.
and/or Living Hope
and/or Living Hope Church
Church (the(the "Corporation"),
“Corporation”), and and inin Index No.:
Index No.: E2022-554
E2022-554
the right
the right of the Corporation,
of the Corporation, SHANNON
SHANNON M. M. MONETTE,
MONETTE,
on behalf of
on behalf of herself
herself and
and allall other
other members
members of the
of the RJI No.
RJI No. 09-1-2022-0293
09-1-2022-0293
Corporation,
Corporation, and and inin the
the right
right of the Corporation,
of the Corporation, DR. DR.
FRANCIS M.
FRANCIS M. PURDY,
PURDY, on behalf of
on behalf of himself and all
himself and all other
other Hon. John
Hon. John T. Ellis, J.S.C.
T. Ellis, J. S.C.
members
members of the Corporation,
of the Corporation, and and in in the
the right
right of the
of the
Corporation,
Corporation, LISALISA A. A. PURDY,
PURDY, on behalf of
on behalf of herself
herself and
and
all
all other
other members
members of the Corporation,
of the Corporation, and and in the right
in the right of
of
the Corporation,
the Corporation, CHAPLAIN GREGORY
CHAPLAIN GREGORY P. P.
SALGADO,
SALGADO, on behalf of
on behalf of himself and all
himself and all other members
other members
of the Corporation,
of the Corporation, and and inin the
the right
right of the Corporation,
of the Corporation,
LAURA B.
LAURA B. SALGADO,
SALGADO, on behalf of
on behalf of herself
herself and
and all
all other
other
members
members of the Corporation,
of the Corporation, and and in in the
the right
right of the
of the
Corporation, MICHELLE L.
Corporation, MICHELLE L. ZELLWEGER,
ZELLWEGER, on behalf of
on behalf of
herself
herself and
and all
all other members of
other members the Corporation,
of the Corporation, and in
and in
the right
the right of the Corporation,
of the Corporation, BRADY
BRADY A. MONETTE, on
A. MONETTE, on
behalf of
behalf of himself
himself and and allall other
other members
members of the
of the
Corporation,
Corporation, and and in
in the
the right
right of the Corporation,
of the Corporation, and and
PURDY GROUP
PURDY GROUP LLC, LLC,
Plaintiffs,
Plaintiffs,
-against-
-against-
NEW TESTAMENT
NEW TESTAMENT CHURCH, CHURCH, GREG HURLBUT,
GREG HURLBUT,
individually
individually and
and in in his
his capacity
capacity as
as Trustee
Trustee of New
of New
Testament
Testament Church,
Church, JUSTIN
JUSTIN CARDINAL, individually
CARDINAL, individually
and
and in
in his
his capacity
capacity asas aa Pastor
Pastor of New Testament
of New Testament Church,
Church,
JUSTUS MARTIN, individually
JUSTUS MARTIN, individually and
and in
in his
his capacity
capacity as
as aa
Trustee
Trustee of the Corporation,
of the Corporation, EVERETT
EVERETT GENSER, GENSER,
individually
individually and
and in in his
his capacity as aa Trustee
capacity as of the
Trustee of the
Corporation, ROBERT REYNOLDS,
Corporation, ROBERT REYNOLDS, individually
individually and in
and in
his
his capacity
capacity as
as aa purported
purported Trustee
Trustee of the Corporation,
of the Corporation,
JUSTIN
JUSTIN STICKNEY, individually and
STICKNEY, individually and inin his
his capacity
capacity as
as
aa purported
purported Trustee
Trustee of the Corporation,
of the LIVING HOPE
Corporation, LIVING HOPE
CHURCH,
CHURCH, INC.,
INC., and LIVING HOPE
and LIVING HOPE CHURCH,
CHURCH,
Defendants.
Defendants.
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PLEASE
PLEASE TAKE
TAKE NOTICE that the
NOTICE that the within
within Decision
Decision and
and Order is aa true
Order is true copy
copy of the
of the
Decision and
Decision and Order
Order of
of Supreme
Supreme Court (Ellis, J.)
Court (Ellis, J.) dated March 19,
dated March 2024 and
19, 2024 and entered in the
entered in the Franklin
Franklin
County
County Clerk’s
Clerk's Office
Office on March 20,
on March 20, 2024.
2024.
Dated: March
Dated: March 25,
25, 2024
2024 WHITEMAN OSTERMAN
WHITEMAN & HANNA
OSTERMAN & HANNA LLP
LLP
Anna V. Seerebneta
,40,tevV, Seitelman
By:
By:
Jon E. Crain,
Jon E. Esq.
Crain, Esq.
Anna
Anna V.V. Seitelman, Esq.
Seitelman, Esq.
Anthony
Anthony R.R. Bjelke,
Bjelke, Esq.
Esq.
Attorneys for
Attorneys for Plaintiffs
Plaintiffs
One
One Commerce Plaza
Commerce Plaza
Albany, New York
Albany, New York 12260
12260
Telephone: (518) 487-7600
Telephone: (518) 487-7600
jcrain@woh.com
jcrain@woh.com
aseitelman@woh.com
aseitelman@woh.com
abjelke@woh.com
abjelke@woh.com
TO:
TO: Raymond J.
Raymond Dague, Esq.
J. Dague, Esq.
Dague & Martin, P.C.
Dague & Martin, P.C.
4874
4874 Onondaga Road
Onondaga Road
Syracuse, New York
Syracuse, New York 13215
13215
Dominick J.
Dominick Brignola, Esq.
J. Brignola, Esq.
Kriss, Kriss
Kriss, Kriss &
& Brignola,
Brignola, LLP
LLP
Attorneys
Attorneys for Defendants
for Defendants
10 Maple Forest
10 Maple Forest Drive
Drive
Ballston Lake,
Ballston Lake, New
New York
York 12019
12019
2
2
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EXHIBIT A
EXHIBIT A
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At a Term of the Supreme Court of the State
of New York, held in and for the County of
Franklin at Tupper Lake, New York on
January 26, 2024.
STATE OF NEW YORK
SUPREME COURT COUNTY OF FRANKLIN
COREY J. MONETTE, on behalf of himself and all other DECISION AND ORDER
members and Trustees of Living Hope Church, Inc. and/or (Motions # 7, 8 & 9)
Living Hope Church (the "Corporation"), and in the right of the
Corporation, SHANNON M. MONETTE, on behalf of herself Index No: E2022-554
and all other members of the Corporation, and in the right of the RJI No.: 16-1-2022-0293
Corporation, DR. FRANCIS M. PURDY, on behalf of himself
and all other members of the Corporation, and in the right of the
Corporation, LISA A. PURDY, on behalf of herself and all other
members of the Corporation, and in the right of the Corporation,
CHAPLAIN GREGORY P. SALGADO, on behalf of himself
and all other members of the Corporation, and in the right of the
Corporation, LAURA B. SALGADO, on behalf of herself and all
other members of the Corporation, and in the right of the
Corporation, MICHELLE L. ZELLWEGER, on behalf of herself
and all other members of the Corporation, and in the right of the
Corporation, BRADY A. MONETTE, on behalf of himself and
all other members of the Corporation, and in the right of the
Corporation, and PURDY GROUP LLC,
Plaintiffs,
-against-
NEW TESTAMENT CHURCH, GREG HURLBUT,
individually and in his capacity as Trustee of New Testament
Church, JUSTIN CARDINAL, individually and in his capacity
as a Pastor of New Testament Church, JUSTUS MARTIN,
individually and in his capacity as a Trustee of the Corporation,
EVERETT GENSER, individually and in his capacity as a
Trustee of the Corporation, ROBERT REYNOLDS, individually
and in his capacity as a purported Trustee of the Corporation,
JUSTIN STICKNEY, individually and in his capacity as a
purported Trustee of the Corporation, LIVING HOPE
CHURCH, INC., and LIVING HOPE CHURCH,
Defendants.
Appearances: Whiteman, Osterman & Hanna L413, Albany (Anna V. Seitelman, E,sv., of
counsel), for Plaintiffs
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Kriss, Kriss & Brignola, LLP, Albany (Dominick .1 Brignola, Esq., of
counsel), for Defendants New Testament Church, Greg Hurlbut and Justin
Cardinal
Dague & Martin, P.C., Syracuse (Raymond J. Dague, Esq., of counsel),
for Defendants Justus Martin and Living Hope Church, Inc.
HON. JOHN T. ELLIS, Supreme Court Justice:
Presently pending before the Court are Motions # 7, 8 and 9. Plaintiffs' Motion # 7,
brought by Notice of Motion dated August 18, 2023, seeks an order: (1) pursuant to CPLR 3124,
compelling Defendants Justus Martin, Everett Genser, Robert Reynolds, Justin Stickey and
Living Hope Church (Defendants Martin and LHC are collectively referred to hereinafter as the
"LHC Defendants")' to respond to the Plaintiffs' First Set of Document Demands and First Set
of Interrogatories dated June 16, 2023; (2) awarding Plaintiffs' reasonable costs and attorney's
fees pursuant to 22 NYCRR Part 130; and (3) granting such other and further relief as the Court
deems just and proper. By Notice of Cross-Motion (Motion # 8) dated November 10, 2023, the
LHC Defendants seek an order: (1) granting summary judgment and dismissal of the amended
complaint; (2) awarding Plaintiffs' reasonable costs and attorney's fees pursuant to 22 NYCRR
Part 130; and (3) granting such other and further relief as the Court deems just and proper. By
Notice of Motion (Motion # 9) dated November 18, 2023, Defendants New Testament Church,
Greg Hurlbut and Justin Cardinal (hereinafter the "NTC Defendants") seek an order: (1)
dismissing the amended complaint pursuant to CPLR 3212; and (2) such other and further relief
as the Court deems just and proper.
In resolving the instant applications, the Court read and considered the following papers.
With respect to Motion # 7: NYSCEF Doc Nos. 170-176, 206-215, 227, 229, and 230; with
I The Court includes the reference to Defendants Genser, Reynolds, and Stickney merely to accurately recite the
nature of Plaintiffs' application. For reasons which will be discussed infra, these individuals are no longer
Defendants in this action.
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respect to Motion # 8, NYSCEF Doc Nos. 187-190, and 206-215; and with respect to Motion #
9, NYSCEF Doc Nos. 194-195, 216-217, 226, and 228. With respect to each of the three
applications presently before the Court, the Court also read and considered the Amended
Complaint (NYSCEF Doc No. 17) and the prior Decision and Orders of the Court dated January
27, 2023; February 9, 2023; and June 8, 2023 (NYSCEF Doc Nos. 99, 100, 105, 106, and 157-
159). Finally, also pertinent to the instant Decision and Order, at least in the procedural sense, is
a letter of the Court to the parties dated January 11, 2024 (NYSCEF Doc Nos. 223-225).
As with its prior Decision and Order of June 8, 2023, the Court will not engage in a
lengthy recitation of facts or procedural history which led to the present series of motions. The
instant Decision and Order assumes familiarity with the prior Decisions and Orders of the Court,
providing as they will the necessary context for the instant applications. Briefly, the Court's
Decision and Order of June 8, 2023, inter alia: (1) dismissed causes of action 1-7 in the amended
complaint as against all Defendants; (2) dismissed any causes of action which were asserted in
Plaintiff Corey Monette's capacity as trustee of LHC inasmuch as he was divested of that role
(and the caption was ordered amended to reflect same); (3) dismissed that part of the fourteenth
cause of action concerning the injunctive relief of live streaming services; (4) denied all
applications for sanctions/costs, to the extent properly made, pursuant to 22 NYCRR Part 130;
(5) dismissed the ninth cause of action as to all Defendants except Defendant Justus Martin; and
(6) dismissed the eleventh, twelfth, thirteenth and fourteenth causes of action as against the NTC
Defendants.
Thus, at present, only causes of action eight and ten remain with respect to the NTC
Defendants. Regarding the LHC Defendants, the eighth, tenth, twelfth, thirteenth, and fourteenth
(except that aspect of the fourteenth cause which was dismissed) causes of action remain, with'
the caveat that as to Defendant Justus Martin, the ninth cause of action also remains.
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The following additional relevant facts are presented to the Court in connection with the
pending motions. As is set forth at length in the Affidavit of Heather Ramsdell (NYSCEF Doc
No. 188), subsequent to this Court's Decision and Order of June 8, 2023, Plaintiffs Corey
Monette, Shannon Monette, Chaplain Gregory Salgado, Laura Salgado, Michelle Zellweger and
Brady Monette were expelled as members of LHC as a result of disciplinary proceedings brought
by the Ecclesiastical Court of LHC.2 As a result, the LHC Defendants contend, and Plaintiffs
concede, that Plaintiffs can no longer maintain the derivative claims set forth in the amended
complaint. Thus, the eighth through twelfth and fourteenth causes of action must be dismissed
as against the LHC Defendants, based as they were upon Plaintiffs' standing as members of
LHC. The Court now turns to the each of the Motions.
MOTION # 7 (PLAINTIFF'S MOTION)
As to the Motion to Compel Disclosure, Plaintiffs assert that they served their First Set of
Document Demands and First Set of Interrogatories on or about June 16, 2023 (see NYSCEF
Doc No. 171, ¶ 8).3 Plaintiffs assert the materials/responses requested therein are material and
necessary to Plaintiffs' claims. Following receipt, counsel for the LHC Defendants rejected the
demands as irrelevant, overbroad, and not related to Plaintiffs' remaining causes of action.
Following this rejection, by letter of July 28, 2024, counsel for Plaintiffs made a good faith
demand of the LHC Defendants to supplement their response and to provide a privilege log, if
applicable. Said letter was detailed and set forth Plaintiffs' grounds for the belief that the
requested disclosure was material and necessary. This good faith demand went unanswered, at
least at first.
2 The Court notes that contrary to the caption and description of the parties set forth in the Amended Complaint,
Plaintiffs Francis Purdy and Lisa Purdy have apparently never been members of the church, and therefore cannot
maintain derivative claims on behalf of LHC.
3 The Court wishes to note at this juncture, lest it be forgotten, that pursuant to CPLR 3214(b), disclosure in this
action was stayed by operation of law upon the filing of the LHC Defendants' summary judgment motion.
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The LHC Defendants assert that "substantial discovery" was delivered to Plaintiffs in
accordance with the demands/interrogatories and that "[wle have complied fully" with the
demands (see NYSCEF Doc No. 188, ¶ 23). Counsel for LHC avers that responses to Plaintiffs'
disclosure request were made on Septernber 20, 2023; September 27, 2023; September 28, 2023;
October 18, 2023; and November 3, 2023 (see NYSCEF Doc No. 189, ¶ 8-10). Counsel further
avers that once these materials were supplied, counsel called and wrote Plaintiffs' attorneys
inquiring whether there were any further discoverable materials which they could identify and
that they heard nothing further from Plaintiffs' counsel.
Plaintiffs' counsel acknowledges that following the motion to compel on August 18,
2023, the LHC Defendants produced "limited discovery," however, it is asserted that certain
relevant bank statements for the year 2023 were lacking, as were communications between LHC
and NTC, communications amongst the LHC Defendants, and communications between the
LHC and NTC Defendants (NYSCEF Doc No. 213, ¶ 17). LHC, in turn, indicates that yet more
disclosures were made on November 8, 2023 and. January 19, 2024 (see NYSCEF Doc No. 227,
¶ 2). LHC again asserts that they have "complied fully" with Plaintiffs' demands and that
numerous interrogatories have been answered by counsel, and if they have overlooked anything,
they are willing to provide same (id. at ¶9). It is further indicated that communications involving
Defendant Justus Martin were particularly difficult to obtain because he left the church in
October of 2023 and not all of his communications were in LHC's possession.
By way of reply, Plaintiffs' counsel avers that it is simply not true that the disclosure
requests have been fully complied with and that documents remain outstanding following two
good faith letters and multiple correspondence with counsel for the LHC Defendants (see
NYSCEF Doc No. 229, ¶ 4). Plaintiffs' counsel provides the Court with specific examples of
discoverable material that remains outstanding. For example, it is noted that the
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communications provided were only searched for by one individual, pertain only to Defendant
Justus Martin, and that no documentation has been provided for Vision, Elder, Trustee and/or
Congregational meetings except for certain annual meetings (id, ¶ 9, 10). Counsel goes on to
state that Plaintiffs know certain responsive material/communications (texts, emails, "Slack"
messages) have not been produced owing to Plaintiffs' involvement with the LHC Defendants
(id.,¶11). Counsel for Plaintiffs also sets forth a list of the interrogatories which remain
unanswered (id, ¶ 12), as well as the document demands which remain outstanding (id, ¶ 13)
and claim that these materials are directly relevant to, among other claims, the fraudulent
inducement cause.
CPLR 3101(a) provides what has become the touchstone under New York's disclosure
laws and states in pertinent part that "[t]here shall be full disclosure of all matter material and
necessary in the prosecution or defense of an action" [emphasis added]. It is beyond dispute that
the structure of Article 31 of the CPLR, governing disclosure, is intended to be broad in its reach
and liberally construed (see Kapon v Koch, 23 NY3d 32,38 [2014]). The phrase "material and
necessary" has been "interpreted liberally to require disclosure, upon request, of any facts
bearing on the controversy which will assist preparation for trial by sharpening the issues and
reducing delay and prolixity" (id, citing Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406
[1968]). It has been repeatedly held that "[t]he test is one of usefulness and reason" (Troy Sand
& Gravel Co. Inc. v Town of Nassau, 80 AD3d 199, 200-201 [3d Dept 2010] [internal citations
omitted]). Thus, so long as the disclosure sought is relevant in the action, it must be provided,
and this liberal directive extends even to non-parties pursuant to CPLR 3101(a)(4).
CPLR 3124 can be invoked where a party fails to respond to, among other things,
discovery demands and interrogatories. CPLR 3122(a), in turn, provides that a party who objects
to disclosure must serve a response which states, "with reasonable particularity the reasons for
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each objection" (see also Uniform Rules for Trial Cts [22 NYCRR] § 202.20-c[a], [b]). Further,
CPLR 3122(b) addresses instances wherein a party seeks to withhold responsive documents on
the basis of privilege, and requires among other things that notice be given as to the legal
grounds for such withholding, and that the following information be given as to each such item
being withheld: "(1) the type of document; (2) the general subject matter of such document; (3)
the date of the document; and (4) such other information as is sufficient to identify the document
fora subpoena duces tecurn."
Applying the above principles of law to the instant disclosure dispute, and keeping in
mind that only the thirteenth cause of action, that of fraudulent inducement, remains with respect
to the LHC Defendants, the Court has reviewed the requested materials/answers and concludes
that the outstanding requested materials/answers, as set forth in the Affirmation of Plaintiff's
counsel dated January 26, 2024 (NYSCEF Doc No. 229) are material and necessary, and thus
should be produced via a supplemental disclosure on the part of the LHC Defendants which
complies with the applicable requirements of the CPLR (CPLR 3122, among others) and the
regulations governing disclosures (22 NYCRR § 202.20-c[a], [b], among others). The Thirteenth
cause of action implicates the finances of LHC and NTC; communications by Defendant Justus
Martin to NTC and LHC, and communications between NTC and LHC. Accordingly, the Court
sees nothing improper with the outstanding demands/interrogatories set forth in the Affirmation
of Plaintiff's counsel (NYSCEF Doc No. 229).4
Initially, the Court did not see how the request for checks # 2185 and 2189, concerning reimbursements from NTC
to LHC, were material and necessary to the remaining cause of action, however, as part of the fraudulent inducement
claim, Plaintiffs rely in part upon what they assert was a relationship between LHC and NTC which they were not
aware of. Insofar as the checks sought might be material and necessary to the issue of the extent of the relationship
between LHC and NTC, the CoUrt cOncludeS that checks sought are relevant.
Further, though not addressed in Plaintiffs' counsel's affirmation, it does not appear that the communications
between LHC's and NTC's respective attorneys remain an issue, nor does it appear that Plaintiffs continue to seek
any inforMation related to donations other than those made by the Purdy Group LLC, to the extent this information
fell within the ambit of the disclosure requests (see NYSCEF Doc No. 174; NYSCEF Doc No. 188, ¶18).
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FILED: FRANKLIN COUNTY CLERK 03/25/2024 02:43 PM INDEX NO. E2022-554 NYSCEF DOC. NO. 236 RECEIVED NYSCEF: 03/25/2024 SUPREME SUPREME COURT COURT OF OF THE THE STATE STATE OF NEW YORK OF NEW YORK COUNTY COUNTY OF FRANKLIN OF FRANKLIN COREY COREY J. MONETTE, on J. MONETTE, behalf of on behalf of himself and all himself and all other other NOTICE NOTICE OF OF ENTRY ENTRY members members and and Trustees Trustees of Living Hope of Living Hope Church, Church, Inc. Inc. and/or Living Hope and/or Living Hope Church Church (the(the "Corporation"), “Corporation”), and and inin Index No.: Index No.: E2022-554 E2022-554 the right the right of the Corporation, of the Corporation, SHANNON SHANNON M. M. MONETTE, MONETTE, on behalf of on behalf of herself herself and and allall other other members members of the of the RJI No. RJI No. 09-1-2022-0293 09-1-2022-0293 Corporation, Corporation, and and inin the the right right of the Corporation, of the Corporation, DR. DR. FRANCIS M. FRANCIS M. PURDY, PURDY, on behalf of on behalf of himself and all himself and all other other Hon. John Hon. John T. Ellis, J.S.C. T. Ellis, J. S.C. members members of the Corporation, of the Corporation, and and in in the the right right of the of the Corporation, Corporation, LISALISA A. A. PURDY, PURDY, on behalf of on behalf of herself herself and and all all other other members members of the Corporation, of the Corporation, and and in the right in the right of of the Corporation, the Corporation, CHAPLAIN GREGORY CHAPLAIN GREGORY P. P. SALGADO, SALGADO, on behalf of on behalf of himself and all himself and all other members other members of the Corporation, of the Corporation, and and inin the the right right of the Corporation, of the Corporation, LAURA B. LAURA B. SALGADO, SALGADO, on behalf of on behalf of herself herself and and all all other other members members of the Corporation, of the Corporation, and and in in the the right right of the of the Corporation, MICHELLE L. Corporation, MICHELLE L. ZELLWEGER, ZELLWEGER, on behalf of on behalf of herself herself and and all all other members of other members the Corporation, of the Corporation, and in and in the right the right of the Corporation, of the Corporation, BRADY BRADY A. MONETTE, on A. MONETTE, on behalf of behalf of himself himself and and allall other other members members of the of the Corporation, Corporation, and and in in the the right right of the Corporation, of the Corporation, and and PURDY GROUP PURDY GROUP LLC, LLC, Plaintiffs, Plaintiffs, -against- -against- NEW TESTAMENT NEW TESTAMENT CHURCH, CHURCH, GREG HURLBUT, GREG HURLBUT, individually individually and and in in his his capacity capacity as as Trustee Trustee of New of New Testament Testament Church, Church, JUSTIN JUSTIN CARDINAL, individually CARDINAL, individually and and in in his his capacity capacity asas aa Pastor Pastor of New Testament of New Testament Church, Church, JUSTUS MARTIN, individually JUSTUS MARTIN, individually and and in in his his capacity capacity as as aa Trustee Trustee of the Corporation, of the Corporation, EVERETT EVERETT GENSER, GENSER, individually individually and and in in his his capacity as aa Trustee capacity as of the Trustee of the Corporation, ROBERT REYNOLDS, Corporation, ROBERT REYNOLDS, individually individually and in and in his his capacity capacity as as aa purported purported Trustee Trustee of the Corporation, of the Corporation, JUSTIN JUSTIN STICKNEY, individually and STICKNEY, individually and inin his his capacity capacity as as aa purported purported Trustee Trustee of the Corporation, of the LIVING HOPE Corporation, LIVING HOPE CHURCH, CHURCH, INC., INC., and LIVING HOPE and LIVING HOPE CHURCH, CHURCH, Defendants. Defendants. 1 of 26 FILED: FRANKLIN COUNTY CLERK 03/25/2024 02:43 PM INDEX NO. E2022-554 NYSCEF DOC. NO. 236 RECEIVED NYSCEF: 03/25/2024 PLEASE PLEASE TAKE TAKE NOTICE that the NOTICE that the within within Decision Decision and and Order is aa true Order is true copy copy of the of the Decision and Decision and Order Order of of Supreme Supreme Court (Ellis, J.) Court (Ellis, J.) dated March 19, dated March 2024 and 19, 2024 and entered in the entered in the Franklin Franklin County County Clerk’s Clerk's Office Office on March 20, on March 20, 2024. 2024. Dated: March Dated: March 25, 25, 2024 2024 WHITEMAN OSTERMAN WHITEMAN & HANNA OSTERMAN & HANNA LLP LLP Anna V. Seerebneta ,40,tevV, Seitelman By: By: Jon E. Crain, Jon E. Esq. Crain, Esq. Anna Anna V.V. Seitelman, Esq. Seitelman, Esq. Anthony Anthony R.R. Bjelke, Bjelke, Esq. Esq. Attorneys for Attorneys for Plaintiffs Plaintiffs One One Commerce Plaza Commerce Plaza Albany, New York Albany, New York 12260 12260 Telephone: (518) 487-7600 Telephone: (518) 487-7600 jcrain@woh.com jcrain@woh.com aseitelman@woh.com aseitelman@woh.com abjelke@woh.com abjelke@woh.com TO: TO: Raymond J. Raymond Dague, Esq. J. Dague, Esq. Dague & Martin, P.C. Dague & Martin, P.C. 4874 4874 Onondaga Road Onondaga Road Syracuse, New York Syracuse, New York 13215 13215 Dominick J. Dominick Brignola, Esq. J. Brignola, Esq. Kriss, Kriss Kriss, Kriss & & Brignola, Brignola, LLP LLP Attorneys Attorneys for Defendants for Defendants 10 Maple Forest 10 Maple Forest Drive Drive Ballston Lake, Ballston Lake, New New York York 12019 12019 2 2 2 of 26 FILED: FRANKLIN COUNTY CLERK 03/25/2024 02:43 PM INDEX NO. E2022-554 NYSCEF DOC. NO. 236 RECEIVED NYSCEF: 03/25/2024 EXHIBIT A EXHIBIT A 3 of 26 FILED: FRANKLIN FILED: FILED: FRANKLIN COUNTY FRANKLIN COUNTY CLERK COUNTY CLERK 03/25/2024 CLERK 03/20/ 2024 02:43 03/20/2024 08:54 AM 08:54 PM AM) INDEX INDEX NO. INDEX NO. E2022-554 NO. E2022-554 E2022-554 NYSCEF DOC. NYS EF DOC. NO. DOC. NO. 232 NO. 236 232 RECEIVED NYSCEF: NYSCEF RECEIVED RECEIVED NYSCEF: 03/19/202 NYSCEF: 03/25/2024 03/19/ 0244 At a Term of the Supreme Court of the State of New York, held in and for the County of Franklin at Tupper Lake, New York on January 26, 2024. STATE OF NEW YORK SUPREME COURT COUNTY OF FRANKLIN COREY J. MONETTE, on behalf of himself and all other DECISION AND ORDER members and Trustees of Living Hope Church, Inc. and/or (Motions # 7, 8 & 9) Living Hope Church (the "Corporation"), and in the right of the Corporation, SHANNON M. MONETTE, on behalf of herself Index No: E2022-554 and all other members of the Corporation, and in the right of the RJI No.: 16-1-2022-0293 Corporation, DR. FRANCIS M. PURDY, on behalf of himself and all other members of the Corporation, and in the right of the Corporation, LISA A. PURDY, on behalf of herself and all other members of the Corporation, and in the right of the Corporation, CHAPLAIN GREGORY P. SALGADO, on behalf of himself and all other members of the Corporation, and in the right of the Corporation, LAURA B. SALGADO, on behalf of herself and all other members of the Corporation, and in the right of the Corporation, MICHELLE L. ZELLWEGER, on behalf of herself and all other members of the Corporation, and in the right of the Corporation, BRADY A. MONETTE, on behalf of himself and all other members of the Corporation, and in the right of the Corporation, and PURDY GROUP LLC, Plaintiffs, -against- NEW TESTAMENT CHURCH, GREG HURLBUT, individually and in his capacity as Trustee of New Testament Church, JUSTIN CARDINAL, individually and in his capacity as a Pastor of New Testament Church, JUSTUS MARTIN, individually and in his capacity as a Trustee of the Corporation, EVERETT GENSER, individually and in his capacity as a Trustee of the Corporation, ROBERT REYNOLDS, individually and in his capacity as a purported Trustee of the Corporation, JUSTIN STICKNEY, individually and in his capacity as a purported Trustee of the Corporation, LIVING HOPE CHURCH, INC., and LIVING HOPE CHURCH, Defendants. Appearances: Whiteman, Osterman & Hanna L413, Albany (Anna V. Seitelman, E,sv., of counsel), for Plaintiffs 1 1 14 of 23 of 23 of 26 FILED: FRANKLIN FILED: FILED: FRANKLIN COUNTY FRANKLIN COUNTY CLERK COUNTY 03/20/2024 002:43 CLERK 03/20/2024 03/25/2024 08:54 AM PM 8 : 54 A1v11 INDEX INDEX NO. INDEX NO. E2022-554 NO. E2022-554 E2022-554 NYSCEF DOC. NYSCEF NYSCEF DOC. NO. DOC. NO. 232 NO. 232 236 RECEIVED NYSCEF: RECEIVED NYSCEF: 03/25/2024 NYSCEF: 03/19/024 RECEIVED 03/19/2024 Kriss, Kriss & Brignola, LLP, Albany (Dominick .1 Brignola, Esq., of counsel), for Defendants New Testament Church, Greg Hurlbut and Justin Cardinal Dague & Martin, P.C., Syracuse (Raymond J. Dague, Esq., of counsel), for Defendants Justus Martin and Living Hope Church, Inc. HON. JOHN T. ELLIS, Supreme Court Justice: Presently pending before the Court are Motions # 7, 8 and 9. Plaintiffs' Motion # 7, brought by Notice of Motion dated August 18, 2023, seeks an order: (1) pursuant to CPLR 3124, compelling Defendants Justus Martin, Everett Genser, Robert Reynolds, Justin Stickey and Living Hope Church (Defendants Martin and LHC are collectively referred to hereinafter as the "LHC Defendants")' to respond to the Plaintiffs' First Set of Document Demands and First Set of Interrogatories dated June 16, 2023; (2) awarding Plaintiffs' reasonable costs and attorney's fees pursuant to 22 NYCRR Part 130; and (3) granting such other and further relief as the Court deems just and proper. By Notice of Cross-Motion (Motion # 8) dated November 10, 2023, the LHC Defendants seek an order: (1) granting summary judgment and dismissal of the amended complaint; (2) awarding Plaintiffs' reasonable costs and attorney's fees pursuant to 22 NYCRR Part 130; and (3) granting such other and further relief as the Court deems just and proper. By Notice of Motion (Motion # 9) dated November 18, 2023, Defendants New Testament Church, Greg Hurlbut and Justin Cardinal (hereinafter the "NTC Defendants") seek an order: (1) dismissing the amended complaint pursuant to CPLR 3212; and (2) such other and further relief as the Court deems just and proper. In resolving the instant applications, the Court read and considered the following papers. With respect to Motion # 7: NYSCEF Doc Nos. 170-176, 206-215, 227, 229, and 230; with I The Court includes the reference to Defendants Genser, Reynolds, and Stickney merely to accurately recite the nature of Plaintiffs' application. For reasons which will be discussed infra, these individuals are no longer Defendants in this action. 2 2 of 5 2 of 23 of 23 26 FILED: FILED: FRANKLIN COUNTY FILED: FRANKLIN FRANKLIN COUNTY CLERK COUNTY CLERK 03/25/2024 CLERK 03/20/ 2024 02:43 O3/2O/2O24 08:54 AM O8:54 PM AM) INDEX INDEX NO. INDEX NO. E2022-554 NO. E2022-554 E2022-554 NYSCEF DOC. NYSCEF DOC. NO. DOC. NO. 232 NO. 236 232 RECEIVED RECEIVED NYSCEF: NYSCEF RECEIVED NYSCEF: 03/19/202 NYSCEF: 03/25/20244 03/19/ 024 respect to Motion # 8, NYSCEF Doc Nos. 187-190, and 206-215; and with respect to Motion # 9, NYSCEF Doc Nos. 194-195, 216-217, 226, and 228. With respect to each of the three applications presently before the Court, the Court also read and considered the Amended Complaint (NYSCEF Doc No. 17) and the prior Decision and Orders of the Court dated January 27, 2023; February 9, 2023; and June 8, 2023 (NYSCEF Doc Nos. 99, 100, 105, 106, and 157- 159). Finally, also pertinent to the instant Decision and Order, at least in the procedural sense, is a letter of the Court to the parties dated January 11, 2024 (NYSCEF Doc Nos. 223-225). As with its prior Decision and Order of June 8, 2023, the Court will not engage in a lengthy recitation of facts or procedural history which led to the present series of motions. The instant Decision and Order assumes familiarity with the prior Decisions and Orders of the Court, providing as they will the necessary context for the instant applications. Briefly, the Court's Decision and Order of June 8, 2023, inter alia: (1) dismissed causes of action 1-7 in the amended complaint as against all Defendants; (2) dismissed any causes of action which were asserted in Plaintiff Corey Monette's capacity as trustee of LHC inasmuch as he was divested of that role (and the caption was ordered amended to reflect same); (3) dismissed that part of the fourteenth cause of action concerning the injunctive relief of live streaming services; (4) denied all applications for sanctions/costs, to the extent properly made, pursuant to 22 NYCRR Part 130; (5) dismissed the ninth cause of action as to all Defendants except Defendant Justus Martin; and (6) dismissed the eleventh, twelfth, thirteenth and fourteenth causes of action as against the NTC Defendants. Thus, at present, only causes of action eight and ten remain with respect to the NTC Defendants. Regarding the LHC Defendants, the eighth, tenth, twelfth, thirteenth, and fourteenth (except that aspect of the fourteenth cause which was dismissed) causes of action remain, with' the caveat that as to Defendant Justus Martin, the ninth cause of action also remains. 3 3 36 of 23 of 23 of 26 FILED: FILED: FRANKLIN COUNTY FII1ED: FRANKLIN FRANKLIN COUNTY CLERK COUNTY CLERK 03/25/2024 CLERK 03/20/ 2024 02:43 03/20/2024 08:54 AM 08:54 PM AM) INDEX INDEX NO. INDEX NO. N0:,E2022-554 E2022-554 E2022-554 NYSCEF NYSCEF DOC. NYSdEF DOC. NO. DOC. NO. 232 NO. 236 232 RECEIVED RECEIVED NYSCEF: RECEIVED NYSCEF: 03/25/2024 03/19/2024 NYSCEF: 03/19/024 The following additional relevant facts are presented to the Court in connection with the pending motions. As is set forth at length in the Affidavit of Heather Ramsdell (NYSCEF Doc No. 188), subsequent to this Court's Decision and Order of June 8, 2023, Plaintiffs Corey Monette, Shannon Monette, Chaplain Gregory Salgado, Laura Salgado, Michelle Zellweger and Brady Monette were expelled as members of LHC as a result of disciplinary proceedings brought by the Ecclesiastical Court of LHC.2 As a result, the LHC Defendants contend, and Plaintiffs concede, that Plaintiffs can no longer maintain the derivative claims set forth in the amended complaint. Thus, the eighth through twelfth and fourteenth causes of action must be dismissed as against the LHC Defendants, based as they were upon Plaintiffs' standing as members of LHC. The Court now turns to the each of the Motions. MOTION # 7 (PLAINTIFF'S MOTION) As to the Motion to Compel Disclosure, Plaintiffs assert that they served their First Set of Document Demands and First Set of Interrogatories on or about June 16, 2023 (see NYSCEF Doc No. 171, ¶ 8).3 Plaintiffs assert the materials/responses requested therein are material and necessary to Plaintiffs' claims. Following receipt, counsel for the LHC Defendants rejected the demands as irrelevant, overbroad, and not related to Plaintiffs' remaining causes of action. Following this rejection, by letter of July 28, 2024, counsel for Plaintiffs made a good faith demand of the LHC Defendants to supplement their response and to provide a privilege log, if applicable. Said letter was detailed and set forth Plaintiffs' grounds for the belief that the requested disclosure was material and necessary. This good faith demand went unanswered, at least at first. 2 The Court notes that contrary to the caption and description of the parties set forth in the Amended Complaint, Plaintiffs Francis Purdy and Lisa Purdy have apparently never been members of the church, and therefore cannot maintain derivative claims on behalf of LHC. 3 The Court wishes to note at this juncture, lest it be forgotten, that pursuant to CPLR 3214(b), disclosure in this action was stayed by operation of law upon the filing of the LHC Defendants' summary judgment motion. 4 4 47 of of 23 of 26 23 FILED: FRANKLIN FILED: FILED: FRANKLIN COUNTY FRANKLIN COUNTY CLERK COUNTY CLERK 03/25/2024 CLERK 03/20/ 2024 02:43 03/20/2024 08:54 AM 08:54 PM AM) INDEX INDEX NO. INDEX NO. NO. E2022-554 E2022-554 E2022-554 NYSCEF NYSCEF DOC. NYSCEF DOC. NO. DOC. NO. 232 NO. 236 RECEIVED RECEIVED NYSCEF: RECEIVED NYSCEF: 03/25/2024 232 NYSCEF: 03/19/202 4 03/19/ 024 The LHC Defendants assert that "substantial discovery" was delivered to Plaintiffs in accordance with the demands/interrogatories and that "[wle have complied fully" with the demands (see NYSCEF Doc No. 188, ¶ 23). Counsel for LHC avers that responses to Plaintiffs' disclosure request were made on Septernber 20, 2023; September 27, 2023; September 28, 2023; October 18, 2023; and November 3, 2023 (see NYSCEF Doc No. 189, ¶ 8-10). Counsel further avers that once these materials were supplied, counsel called and wrote Plaintiffs' attorneys inquiring whether there were any further discoverable materials which they could identify and that they heard nothing further from Plaintiffs' counsel. Plaintiffs' counsel acknowledges that following the motion to compel on August 18, 2023, the LHC Defendants produced "limited discovery," however, it is asserted that certain relevant bank statements for the year 2023 were lacking, as were communications between LHC and NTC, communications amongst the LHC Defendants, and communications between the LHC and NTC Defendants (NYSCEF Doc No. 213, ¶ 17). LHC, in turn, indicates that yet more disclosures were made on November 8, 2023 and. January 19, 2024 (see NYSCEF Doc No. 227, ¶ 2). LHC again asserts that they have "complied fully" with Plaintiffs' demands and that numerous interrogatories have been answered by counsel, and if they have overlooked anything, they are willing to provide same (id. at ¶9). It is further indicated that communications involving Defendant Justus Martin were particularly difficult to obtain because he left the church in October of 2023 and not all of his communications were in LHC's possession. By way of reply, Plaintiffs' counsel avers that it is simply not true that the disclosure requests have been fully complied with and that documents remain outstanding following two good faith letters and multiple correspondence with counsel for the LHC Defendants (see NYSCEF Doc No. 229, ¶ 4). Plaintiffs' counsel provides the Court with specific examples of discoverable material that remains outstanding. For example, it is noted that the 5 58 of 5 of 23 of 23 26 FILED: FRANKLIN FILED: FILED: FRANKLIN COUNTY FRANKLIN COUNTY CLERK COUNTY CLERK 03/25/2024 CLERK 03/20/ 2024 02:43 03/20/2024 08:54 AM 08:54 PM AM) INDEX INDEX NO. INDEX NO. NO. E2022-554 E2022-554 E.2022-554 NYSCEF NYSCEF DOC. NYSCEF DOC. NO. DOC. NO. 232 NO. 236 232 RECEIVED RECEIVED NYSCEF: RECEIVED NYSCEF: 03/25/2024 NYSCEF: 03/19/202 03/19/ 0244 communications provided were only searched for by one individual, pertain only to Defendant Justus Martin, and that no documentation has been provided for Vision, Elder, Trustee and/or Congregational meetings except for certain annual meetings (id, ¶ 9, 10). Counsel goes on to state that Plaintiffs know certain responsive material/communications (texts, emails, "Slack" messages) have not been produced owing to Plaintiffs' involvement with the LHC Defendants (id.,¶11). Counsel for Plaintiffs also sets forth a list of the interrogatories which remain unanswered (id, ¶ 12), as well as the document demands which remain outstanding (id, ¶ 13) and claim that these materials are directly relevant to, among other claims, the fraudulent inducement cause. CPLR 3101(a) provides what has become the touchstone under New York's disclosure laws and states in pertinent part that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action" [emphasis added]. It is beyond dispute that the structure of Article 31 of the CPLR, governing disclosure, is intended to be broad in its reach and liberally construed (see Kapon v Koch, 23 NY3d 32,38 [2014]). The phrase "material and necessary" has been "interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity" (id, citing Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]). It has been repeatedly held that "[t]he test is one of usefulness and reason" (Troy Sand & Gravel Co. Inc. v Town of Nassau, 80 AD3d 199, 200-201 [3d Dept 2010] [internal citations omitted]). Thus, so long as the disclosure sought is relevant in the action, it must be provided, and this liberal directive extends even to non-parties pursuant to CPLR 3101(a)(4). CPLR 3124 can be invoked where a party fails to respond to, among other things, discovery demands and interrogatories. CPLR 3122(a), in turn, provides that a party who objects to disclosure must serve a response which states, "with reasonable particularity the reasons for 6 69 of 6 of 23 of 23 26 FILED: FRANKL IN COUNTY FILED: FRANKLIN (FILED: FRANKLIN COUNTY CLERK COUNTY CLERK 03/20/ 2024 08:54 CLERK 03/20/2024 03/25/2024 08:54 AM 02:43 AM) PM INDEX NO. INDEX INDEX NO. E2022-554 NO. E2022-554 E2022-554 NYSCEF NYSCEF DOC. NYSCEF DOC. NO. DOC. NO. 232 NO. 232 236 RECEIVED NYSCEF: RECEIVED NYSCEF: 03/19/4024 NYSCEF: 03/25/2024 RECEIVED 03/19/202 4 each objection" (see also Uniform Rules for Trial Cts [22 NYCRR] § 202.20-c[a], [b]). Further, CPLR 3122(b) addresses instances wherein a party seeks to withhold responsive documents on the basis of privilege, and requires among other things that notice be given as to the legal grounds for such withholding, and that the following information be given as to each such item being withheld: "(1) the type of document; (2) the general subject matter of such document; (3) the date of the document; and (4) such other information as is sufficient to identify the document fora subpoena duces tecurn." Applying the above principles of law to the instant disclosure dispute, and keeping in mind that only the thirteenth cause of action, that of fraudulent inducement, remains with respect to the LHC Defendants, the Court has reviewed the requested materials/answers and concludes that the outstanding requested materials/answers, as set forth in the Affirmation of Plaintiff's counsel dated January 26, 2024 (NYSCEF Doc No. 229) are material and necessary, and thus should be produced via a supplemental disclosure on the part of the LHC Defendants which complies with the applicable requirements of the CPLR (CPLR 3122, among others) and the regulations governing disclosures (22 NYCRR § 202.20-c[a], [b], among others). The Thirteenth cause of action implicates the finances of LHC and NTC; communications by Defendant Justus Martin to NTC and LHC, and communications between NTC and LHC. Accordingly, the Court sees nothing improper with the outstanding demands/interrogatories set forth in the Affirmation of Plaintiff's counsel (NYSCEF Doc No. 229).4 Initially, the Court did not see how the request for checks # 2185 and 2189, concerning reimbursements from NTC to LHC, were material and necessary to the remaining cause of action, however, as part of the fraudulent inducement claim, Plaintiffs rely in part upon what they assert was a relationship between LHC and NTC which they were not aware of. Insofar as the checks sought might be material and necessary to the issue of the extent of the relationship between LHC and NTC, the CoUrt cOncludeS that checks sought are relevant. Further, though not addressed in Plaintiffs' counsel's affirmation, it does not appear that the communications between LHC's and NTC's respective attorneys remain an issue, nor does it appear that Plaintiffs continue to seek any inforMation related to donations other than those made by the Purdy Group LLC, to the extent this information fell within the ambit of the disclosure requests (see NYSCEF Doc No. 174; NYSCEF Doc No. 188, ¶18). 7 7 of 10 7 of of 23 26