Silverman Shin & Byrne, PLLC, New York, NY (Donald F.
Scheiner, Bonnie D. Espino, and Andrew Achiron of counsel),
Weisberg & Weisberg, Great Neck, NY (Sidney A. Weisberg
and Daniel J. Weisberg of counsel), for respondent.
C. BALKIN, J.P., L. PRISCILLA HALL, SYLVIA O. HINDS-RADIX,
FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
action, inter alia, for specific performance of a contract to
sell real property and for a judgment declaring that the
contract is binding and enforceable, the plaintiff appeals
from an order of the Supreme Court, Queens County (Brathwaite
Nelson, J.), entered May 15, 2015, which granted the
defendant's motion for summary judgment dismissing the
complaint and for a judgment declaring that the contract is
not binding and enforceable.
that the order is affirmed, with costs, and the matter is
remitted to the Supreme Court, Queens County, for the entry
of a judgment declaring that the contract of sale is not
binding and enforceable.
15, 2013, the plaintiff and the defendant, First Korean
Church of New York (hereinafter the Church), entered into a
contract whereby the Church agreed to sell to the plaintiff
real property located in Queens County for the purchase price
of $18, 700, 000. A rider to the contract acknowledged that,
since one of the parties to the agreement was a church,
"this sale... is therefore subject to approval by the
New York State Attorney General and the Supreme Court."
The contract was executed on behalf of the Church by its
President, Sei Oung Yoon.
the contract was executed, the Church obtained an appraisal
valuing the property at $19, 500, 000. At a special meeting
of the Church's board of trustees held on December 8,
2013, the trustees unanimously adopted a resolution
"recommending the sale of the property, but unanimously
voting not to proceed with the current contract of sale at a
price below [the] appraised value of [$]19, 500, 000." A
special meeting of the Church's congregation was
scheduled and noticed for December 22, 2013, at which the
members of the Church raised questions regarding the
advisability of the sale, and postponed a vote to approve the
sale. Thereafter, in an effort to determine its obligations
under the contract, the Church submitted a proposed petition
pursuant to Not-For-Profit Corporation Law § 511 to the
Office of the New York State Attorney General, seeking a
judicial determination as to whether the Church "should
complete the sale of the Property... to [the plaintiff] for
the sum of $18, 700, 000." In a letter dated May 15,
2014, the Attorney General advised that the requirements of
Not-For-Profit Corporation Law § 511(a)(7) and (8) had
not been met and, therefore, the Attorney General would
object to the granting of an order approving the proposed
sale. Based upon the Attorney General's letter, the
Church chose not to file the proposed petition in the Supreme
Court, and instead repudiated the contract and returned the
plaintiff's down payment.
plaintiff commenced this action against the Church seeking,
inter alia, specific performance and a judgment declaring
that the contract was binding and enforceable. The Church
moved for summary judgment dismissing the complaint and
declaring that the contract was not binding and enforceable.
The Supreme Court granted the Church's motion. The
Church met its prima facie burden on its motion for summary
judgment (see Zuckerman v City of New York, 49
N.Y.2d 557, 562). "A religious corporation shall not
sell... any of its real property without applying for and
obtaining leave of the court or the attorney general therefor
pursuant to [N-PCL 511] as that section is modified by...
[N-PCL 511-a]" (Religious Corporations Law §
12). A petition seeking such approval must set forth,
inter alia, "[t]hat such sale... has been recommended or
authorized by vote of the directors in accordance with
law" and that, "[w]here the consent of members of
the corporation is required by law, such consent has been
given" (N-PCL 511[a], ). Here, notwithstanding the
execution of the contract by the Church's president, the
contract was not binding against the Church, since it was not
approved by the Church's board of trustees or members
(cf. Church of God of Prospect Plaza v Fourth Church of
Christ, Scientist of Brooklyn, 76 A.D.2d 712, 714,
affd 54 N.Y.2d 742). In opposition, the plaintiff
failed to raise a triable issue of fact (see Zuckerman v
City of New York, 49 N.Y.2d 557, 562).
the Supreme Court properly granted the Church's motion
for summary judgment. Since this is, in part, a declaratory
judgment action, the matter must be remitted to the Supreme
Court, Queens County, for the entry of a judgment, inter
alia, declaring that the contract of sale is not binding and
enforceable (see Lanza v Wagner, 11 N.Y.2d 317,
plaintiff's remaining contentions have been rendered