2017 in The Matter of The A V in The Matter of The A MEMORANDUM of LAW I 39

FILED: KINGS COUNTY CLERK 10/23/2017 06:45 PM INDEX NO.
515647/2017
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 10/23/2017
SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF KINGS
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In the Matter of the Application of DAVID Y. SHOR, : Index. No. 515647/2017
RAFAEL GRAUSZ, LEVI GOLDBERG, FEIVEL :
UNGER, MOTTI KATZ, MOSHE HERSHKOWITZ, :
JACOB LEVITMAN, CHAIM KATZ, YITZCHOK :
LUNGER, MENDEL WEISBERG, LAZER :
FISCHER, ARON JUNGREIS, DAVID :
BERKOVITS, and NOSON JOSEPHY, :
as members of CHEVRA ANSHEI LUBAWITZ OF :
BOROUGH PARK, :
:
Petitioners, :
:
-against- :
:
THE ATTORNEY GENERAL OF THE STATE OF :
NEW YORK, :
:
Respondent, :
:
-and- :
:
CHEVRA ANSHEI LUBAWITZ OF BOROUGH :
PARK, 4024 12TH AVENUE LLC, and :
WATERFRONT PROPERTY MANAGEMENT :
LLC, :
:
Intervenor-Respondents. :
:
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INTERVENOR-RESPONDENTS’
MEMORANDUM OF LAW IN OPPOSITION TO
PETITIONERS’ ORDER TO SHOW CAUSE FOR
JUDGMENT ON VERIFIED PETITION
HERRICK, FEINSTEIN LLP

Scott E. Mollen
Janice I. Goldberg
Stephen M. Medow
2 Park Avenue
New York, New York 10016
Tel: (212) 592-1400
Attorneys for Intervenor-Respondents
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FILED: KINGS COUNTY CLERK 10/23/2017 06:45 PM INDEX NO. 515647/2017
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ......................................................................................................... iv
PRELIMINARY STATEMENT .....................................................................................................1
STATEMENT OF FACTS ..............................................................................................................4
A. The Synagogue...........................................................................................................4
B. The State of the Synagogue Building ........................................................................5
C. The Synagogue Decided to Sell The Property to Finance Construction of a

New Synagogue .........................................................................................................7
D. The Developer Contract, Initial Agreement and Attorney General Approval ...........9
E. The Amended Agreement and Amended Attorney General Approval ....................10
F. Petitioners Commenced the Instant Proceeding and Sought a TRO

Prohibiting the Demolition of the Synagogue Building ..........................................13
ARGUMENT .................................................................................................................................14
I. THE RELIEF SOUGHT IN THE PETITION IS BARRED BY NOT-FOR-

PROFIT CORPORATION LAW § 203 .........................................................................14
II. THE MAJORITY OF THE PETITIONERS LACK STANDING TO

CHALLENGE THE AMENDED APPROVAL AND THEIR CLAIMS
SHOULD BE DISMISSED ............................................................................................18
III. THE MEMBER PETITIONERS HAVE FAILED TO DEMONSTRATE THAT

THE AMENDED APPROVAL SHOULD BE RESCINDED OR ANNULLED..........23
A. The Standard of Review...........................................................................................24
B. The Synagogue Gave Proper Notice of Meetings to Members ...............................25
C. The Verified Petitions to the Attorney General Were Not Misleading In

Describing the Synagogue Building As in a Poor and Unsafe Condition ...............28
D. Petitioners Have Not Established That the Value of the Property Exceeds
$3.1 Million and the Terms of the Sale Transaction Are Fair and
Reasonable...............................................................................................................31
ii
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E. The Sale Transaction Is in the Best Interests of the Synagogue, and

Petitioners’ True Motivation for this Proceeding Is To Protest Against the
Selection of a New Rabbi ........................................................................................33
IV. THE AUGUST 24, 2017 TEMPORARY RESTRAINING ORDER SHOULD

BE VACATED OR, ALTERNATIVELY, MODIFIED AND A BOND MUST
BE POSTED BY PETITIONERS ..................................................................................37
CONCLUSION ..............................................................................................................................40
iii
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TABLE OF AUTHORITIES
Page
Cases
Academy Street Assocs. v. Spitzer,

50 A.D.3d 271, 856 N.Y.S.2d 15 (1st Dep’t 2008) .................................................................24
Blaudziunas v. Egan,
18 N.Y.3d 275, 938 N.Y.S.2d 496 (2011) ...............................................................................19
Citizens for St. Patrick’s v. Saint Patrick’s Church of W. Troy,

117 A.D.3d 1213, 985 N.Y.S.2d 743 (3d Dep’t 2014) ............................................................19
Congregation Yetev Lev D’Satmar, Inc. v. Kahana,

9 N.Y.3d 282, 849 N.Y.S.2d 463 (2007) ...........................................................................22, 23
Congregation Beth Hamedrash Hagodel of Mapleton Park Jewish Ctr., Inc., v. Perr,
16 Misc. 3d 1103(A), 841 N.Y.S.2d 825 (Sup. Ct. Kings Cnty. 2007) .............................16, 17
Congregation Yetev Lev D’Satmar v. 26 Adar N.B. Corp.,

219 A.D.2d 186, 641 N.Y.S.2d 680 (2d Dep’t 1996) ...................................................... 15, 16
CRP/Extell Parcel I, L.P. v. Cuomo,

101 A.D.3d 473, 957 N.Y.S.2d 293 (1st Dep’t 2012) .............................................................24
Koch v. Estes,
146 Misc. 249 (Sup. Ct. N.Y. Cnty. 1933), aff’d 250 A.D. 829 (1st Dep’t 1933), aff’d
264 N.Y. 480 (1934) ................................................................................................................36
Kupperman v. Congregation Nusach Sfard of the Bronx,

39 Misc. 2d 107, 240 N.Y.S.2d 315 (Sup. Ct. Bronx Cnty. 1963) ..........................................17
Madison Park Owner LLC v. Schneiderman,

93 A.D.3d 555, 940 N.Y.S.2d 605 (1st Dep’t 2012) .........................................................24, 25
Ming Tung v. China Buddhist Ass’n,

124 A.D.3d 13, 996 N.Y.S.2d 236 (1st Dep’t 2014) .........................................................19, 23
Park Slope Jewish Ctr. v. Stern,

128 A.D.2d 847, 513 N.Y.S.2d 767 (2d Dep’t 1987) ........................................................22, 23
Peckham v. Calogero,
12 N.Y.3d 424, 883 N.Y.S.2d 751 (2009) ...............................................................................24
Rodyk v. Ukrainian Autocephalic Orthodox Church of St. Volodimir,

31 A.D.2d 659, 296 N.Y.S.2d 496 (2d Dep’t 1968),
aff’d, 29 N.Y.2d 898, 328 N.Y.S.2d 685 (1972)......................................................................23
iv
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Tower Apartment LLC v. Cuomo,

No. 105022/2010, 2014 WL 8664303 (Sup. Ct. N.Y. Cnty., June 13, 2014) ................... 24, 36
Wilson v. New York City Dep’t of Hous. Pres. and Dev.,

145 A.D.3d 905, 44 N.Y.S.3d 135 (2d Dep’t 2016) ................................................................24
Statutes and Rules
CPLR Rule 6312(b) .......................................................................................................................38
CPLR § 6313(a) .............................................................................................................................37
CPLR § 6313(c) .............................................................................................................................39
CPLR § 7801.......................................................................................................................... passim
CPLR § 7803.......................................................................................................................... passim
NPCL § 102(a)(9) ..........................................................................................................................19
NPCL § 203 ........................................................................................................................... passim
NPCL § 511 ...................................................................................................................................18
NPCL § 511-a ..........................................................................................................................17, 18
NPCL § 618 ...................................................................................................................................22
RCL § 2-b(1) ..................................................................................................................................19
RCL § 90 ........................................................................................................................................19
RCL § 91 ........................................................................................................................................19
RCL § 194 ............................................................................................................................... 25, 27
RCL § 195 ..........................................................................................................................19, 20, 27
Miscellaneous
Bailly, Practice Commentaries, McKinney’s Cons Law of N.Y., 2014

Electronic Update, NPCL § 511-a ...........................................................................................18
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Intervenor-Respondents Chevra Anshei Lubawitz of Borough Park (the “Synagogue”),
4024 12th Avenue LLC (the “Property Owner”), and Waterfront Property Management LLC (the
“Developer” and, together, the “Intervenor-Respondents”), by and through their attorneys,
Herrick, Feinstein LLP, respectfully submit this memorandum of law in opposition to
Petitioners’ Order to Show Cause for Judgment on the Verified Petition filed August 11, 2017
(the “Petition”), pursuant to which Petitioners seek an Order pursuant to CPLR § 7801 annulling
the May 3, 2017 Amended Approval of the Attorney General of the State of New York (the
“Attorney General”) authorizing the sale of real property located at 4024 12th Avenue,
Brooklyn, New York, previously owned by the Synagogue. For the reasons set forth herein, the
Petition should be dismissed with prejudice and the temporary restraining order (“TRO”) issued
by the Court on August 24, 2017 should be vacated.
PRELIMINARY STATEMENT
In this special proceeding, the Petitioners seek an Order pursuant to CPLR § 7801
“annulling and rescinding” an Amended Approval dated on May 3, 2017, (the “Amended
Approval”) issued by the Attorney General, authorizing the Synagogue to sell its real property to
Property Owner. Petitioners’ proceeding was commenced (i) eighteen months after the
Synagogue’s Board of Trustees (“Board”) and a majority of the Members voted to approve the
sale on or about April 3, 2016; (ii) fourteen months after the Attorney General first approved the
sale on or about June 30, 2016; (iii) six months after the Board and the Members voted again to
modify the structure of the sale transaction; (iv) three months after the Amended Approval was
issued by the Attorney General, and, critically, (v) two months after the Synagogue transferred
title to Property Owner. Thus, while the Petition seeks to rescind the Amended Approval, the
true relief sought by Petitioners is to unwind a consummated real property transaction.
In support of this drastic relief, Petitioners allege that they are “members” of the
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Synagogue, and that they were deprived of both notice of the pending sale and the opportunity to
vote on the decision to sell the property. Petitioners further allege that the petitions submitted to
the Attorney General for sale approval contained misrepresentations that led the Attorney
General to approve the sale. The allegedly misled party, the Attorney General, has not
contended that it was misled. Moreover, the record, as set forth herein, demonstrates that
Petitioners’ application is defective on the law and the facts, such that the Petition should be
dismissed in its entirety, with prejudice.
First, as discussed in Point I herein, the Petition is clearly untimely and the relief sought
is statutorily barred by Section 203 of the New York Not-For-Profit Corporation Law (“NPCL”),
which applies to religious corporations like the Synagogue. This statutory provision states that:
No act of a corporation and no transfer of real or personal property

to or by a corporation, otherwise lawful, shall, if duly approved or
authorized by a judge, court or administrative department or
agency as required, be invalid by reason of the fact that the
corporation was without capacity or power to do such act or to
make or receive such transfer.
Here, Petitioners’ allegations claiming they had no notice and no opportunity to vote (which
allegations are untrue) amounts to a claim that the Synagogue was without capacity or power to
seek approval for, and consummate, the sale. However, the now-consummated sale, having been
approved twice by the Attorney General in accordance with the NPCL and the New York
Religious Corporations Law (“RCL”), may not be deemed “invalid” by this Court. This alone is
dispositive of the merits of the Petition and compels its dismissal with prejudice.
Second, as discussed in Point II herein, even assuming, arguendo, that the sale was
subject to rescission, eleven of the fourteen named petitioners, as a group, lack standing to assert
the claims for relief in the Petition as they are not “members” of the Synagogue, and have no
right to exercise a vote with respect to the Synagogue’s internal decision-making. New York law
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is clear that only the members of a religious corporation with a right to vote regarding the
corporation’s affairs — as defined by the corporation’s by-laws — have standing to assert claims
challenging decisions of the corporation with respect to corporate property, or the actions of a
properly-elected Board. That the majority of the Petitioners are not actually voting members of
the Synagogue automatically precludes them from maintaining an action challenging the
Amended Approval on the bases set forth in the Petition.
Third, as discussed in Point III herein, the claims asserted by the three named Petitioners
who are voting Members of the Synagogue fail on the facts and the law. The record establishes
that the Synagogue acted at all times in compliance with its bylaws and with New York statutory
law, that the verified petitions submitted to the Attorney General contained no
misrepresentations of fact, and that the Attorney General’s approval of the sale was in
accordance with law. There is no basis on which to conclude that the Attorney General’s
findings were in any way arbitrary or capricious, or based on some error of law, which is the
applicable standard of review in an Article 78 proceeding.
Finally, as discussed in Point IV herein, the Petitioners have no likelihood of success on
the merits, and thus they are not entitled to further temporary or preliminary injunctive relief.
In sum, the Petition is flawed in multiple respects, and should be dismissed with
prejudice.
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STATEMENT OF FACTS 1
A. The Synagogue
The Synagogue is a New York religious corporation that was incorporated in or about
1914. In or about 1922, the Synagogue acquired title to real property located at 4024 12th
Avenue, Brooklyn, New York (the “Property”), which is improved by a now-100 year old
structure that has served, and continues to serve, as the main place of worship for the
Synagogue’s congregants (the “Synagogue Building”).
The Synagogue presently has fewer than 20 voting Members, as indicated by the
Synagogue’s records. (Vaysman Aff. ¶ 12, Ex. 1; Gluck Aff. ¶ 14.) The large majority of
congregants, or individuals who worship or study at the Synagogue, are not voting Members.
Instead, they are “mispallelim,” or “those who pray,” and are not responsible for the serious
obligations undertaken by the Members of the Synagogue. (Vaysman Aff. ¶ 11; Gluck Aff. ¶
15.) As many congregants readily attest, there is a difference between Members and mispallelim
in the Synagogue that is known and understood by those who worship at the Synagogue. (Gluck
Aff., Exs. 5, 14.)
The term “Member,” as determined by the Board, pursuant to the Synagogue’s Bylaws
(the “Bylaws”), refers to those in the leadership of the congregation, and specifically to those
persons who, among other things, (a) attend the Synagogue as their primary congregation and not
just when it is convenient to worship there; (b) regularly attend morning, afternoon and evening
services on the Sabbath, and attend services during in the week in the afternoons and evenings;
(c) arrive on time and remain for the duration of all services; and (d) volunteer their time on
1
The facts set forth herein are contained in the accompanying: (i) Affidavit of Khaim Vaysman, sworn to October
3, 2017, (“Vaysman Aff.”) and the exhibits thereto; (ii) Affidavit of Asher Gluck, sworn to October 20, 2017,
(“Gluck Aff.”) and the exhibits thereto; (iii) Affidavit of Moses Karpen, sworn to October 4, 2017, (“Karpen Aff.”)
and the exhibits thereto; (iv) the Opposing Member Affidavits, collectively submitted as Exhibit 14 to the Gluck
Affidavit; (v) the Opposing Non-Member Affidavits, collectively submitted as Exhibit 5 to the Gluck Affidavit.
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behalf of the Congregation and its operations. (Vaysman Aff. ¶ 8; Gluck Aff. ¶ 21; see also
Gluck Aff., Ex. 14, Opposing Member Affidavits.) Those individuals who are recognized as
Members of the Synagogue have obtained that status through a procedure presently set forth in
Article III, Section 3 of the Bylaws, which state that “Any person wishing to be a member may
apply for membership to the Board of Trustees.” (Vaysman Aff. ¶ 14, Ex. 2.) Once a person
submits an application to the Board, the Board has to vote by majority to agree to make the
applicant a Member. (Vaysman Aff. ¶ 13; Gluck Aff. ¶ 10.)
The only named Petitioners who are Members of the Synagogue are Aron (Rafael)
Grausz, Levi Goldberg, and Jacob Levitman. (Vaysman Aff. ¶ 12; Gluck Aff. ¶ 15.) The eleven
remaining named Petitioners are mispallelim, and do not have voting rights of Members. (Id.)
B. The State of the Synagogue Building
As alleged in the Petition, since the Synagogue’s inception, it has conducted its services
in the same physical structure. (Vaysman Aff. ¶ 18; Gluck Aff. ¶ 26.) The Petitioners focus on
the solely on the “surface” aesthetic qualities of the main sanctuary of the Synagogue Building,
and ignore the fact that the Synagogue Building, as a whole, is rife with major structural issues
that would require an estimated million dollars to repair. The Synagogue has, for several years,
suffered from lack of funds, due in large part to declining attendance by the community. As a
result, the Synagogue Building has not been properly maintained or cared for, and has suffered
significant deterioration. (Vaysman Aff. ¶¶ 19-21; Gluck Aff. ¶ 27.)
The Synagogue Building suffers, from among other issues, a cracked foundation, rotting
wood beams, holes in the floor, a collapsing chimney, cracked windows, problems with the
electrical wiring, and a boiler that is not up to code. (Vaysman Aff. ¶ 27; Gluck Aff. ¶ 32.) The
Synagogue Building has a mold infestation, caused by years of neglect and water leaks. Whether
from the mold or other “undiagnosed” issues, the Building emits a foul odor. (Vaysman Aff. ¶¶
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28-29; Gluck Aff. ¶¶ 33-34.) The Building’s walls are deteriorating; there are countless broken
stairs, both inside and outside the building; and the restrooms are in such a state of disrepair that
they are nearly unusable. (Vaysman Aff. ¶¶ 27, 30; Gluck Aff. ¶¶ 32, 35.) Indeed, as many
congregants can attest, almost no one actually uses them while attending services at the
Synagogue. (Id.)
In just the last few years, the Synagogue has paid somewhere between $100,000 and
$150,000 to repair the roof and install other, basic fixes. (Vaysman Aff. ¶ 24; Gluck Aff. ¶ 29.)
But, due to the dwindling number of congregants contributing to the Synagogue financially, the
Synagogue has had no ability to afford the remainder of the needed repairs. (Id.) In recent
years, the Synagogue has not been able to pay for its monthly electric — approximately six
months of which are paid for through Member donations — nor has it been able to afford
property insurance. (Vaysman Aff. ¶ 32; Gluck Aff. ¶¶ 44-45.) Many of the repairs that have
been done at the Synagogue Building have been done by Members who donate their time.
(Gluck Aff. ¶ 43.) Similarly, Members open, close, and clean the Synagogue Building because
there are no funds to pay for staff. Those who worship at the Synagogue, both Members and
mispallelim, have known about these problems for years. (Vaysman Aff. ¶ 46; Gluck Aff. ¶¶ 37,
69, Ex.6.)
Recently, the Board commissioned several professional reports, including from a licensed
building inspector and a licensed mold inspector that substantiate that the Synagogue Building is
in extremely poor physical condition, which includes an infestation of toxic mold, and in need of
a complete overhaul. (Gluck Aff. ¶¶ 38-41, Exs. 7-10.) Estimates from professional contractors
and a mold remediation firm place the total cost of repairing the Synagogue Building and
remediating the mold infestation at approximately $1.15 million. (Id.)
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C. The Synagogue Decided to Sell The Property to Finance Construction of a

New Synagogue
Due to the worsening physical condition of the Synagogue Building, the Board met to
discuss a plan to best move forward and be able to make necessary repairs. (Vaysman Aff. ¶ 33;
Gluck Aff. ¶ 59.) The Board determined that the best course of action would be to seek out a
solution that could address all of the Synagogue’s problems — the poor condition of the
building, dwindling attendance, and lack of income — at once, rather than in a piecemeal fashion
as had been had done for many years. (Id.)
The Board Secretary, Asher Gluck, had researched what other synagogues had done to
upgrade their facilities and determined that the Synagogue should explore selling the Property
and partnering with a developer to build a new synagogue building. The Synagogue would find
a developer who, in exchange for building a new structure for the congregation, would buy the
Property and have the right to build additional, income-generating structures upon it. (Vaysman
Aff. ¶¶ 34-45; Gluck Aff. ¶¶ 60-61.) This sort of partnership would benefit both parties: the
Synagogue would obtain the new facility it desperately needed, and the developer would be
incentivized to finance it because of the development opportunity. (Id.)
Following a Board meeting where this proposal was discussed, Mr. Gluck sought out
several developers. (Vaysman Aff. ¶ 36; Gluck Aff. ¶ 62.) Though a number of developers were
approached about the transaction, they either did not want to do business with a religious
organization controlled by the Board and the Members, nor did they want to subject themselves
to a review process from the Attorney General. (Vaysman Aff. ¶ 37; Gluck Aff. ¶ 63.)
Eventually, Mr. Gluck spoke to a real estate broker, Joel Haut, who was interested in putting
together a putting together a group to develop the new building, and the Board decided to call a
meeting and present the idea of a sale to the Members of the Synagogue. (Vaysman Aff. ¶ 38;
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Gluck Aff. ¶ 64.)
The Board, having decided to proceed, noticed a meeting for the Synagogue Members on
or about April 3, 2016 (the “April 2016 Meeting”). (Vaysman Aff. ¶ 39-40; Gluck Aff. ¶¶ 65-
66.) The April 2016 Meeting was noticed in the customary manner: the President announced
that a meeting would be held during morning Sabbath services for two (2) consecutive weeks,
letting congregants know where and when the meeting would be held and that the meeting would
involve discussion of the Board’s decision to seek a new Synagogue building. (Vaysman Aff. ¶
40; Gluck Aff. ¶ 66.) Signs announcing the meeting were also posted in the Synagogue, which
indicated that all in the congregation were welcome to attend. (Vaysman Aff. ¶ 41; Gluck Aff. ¶
67.) Additionally, Mr. Gluck personally contacted many of the Synagogue’s Members to remind
them of the meeting, in an effort to encourage full Member participation. (Vaysman Aff. ¶ 42;
Gluck Aff. ¶ 68.)
The April 2016 Meeting was held on April 3, 2016, and was run by Mr. Gluck.
(Vaysman Aff. ¶ 45; Gluck Aff. 71.) Mr. Gluck explained to the Members and non-Members in
attendance what the Board of Trustees had recently discussed with respect to the pursuit of a new
Synagogue building. (Vaysman Aff. ¶¶ 46-47; Gluck Aff. ¶ 72.) Mr. Gluck explained that the
Synagogue’s problems were obvious: that the Synagogue was losing money; it couldn’t afford to
pay for necessary repairs or to compensate the Rabbi; and as a result that the Synagogue was
losing congregants, which only compounded the issue of necessary repairs by decreasing the
congregant base from which to receive further financial support. (Vaysman Aff. ¶ 46; Gluck
Aff. ¶ 72.) Mr. Gluck then detailed the transaction that the Board had discussed, outlining how
the Synagogue would sell the Property to a developer who would demolish the present structure
in favor of a new building, and that the Synagogue would buy back the first floor and basement
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of the new building and have a brand new building to worship in. (Vaysman Aff. ¶ 47; Gluck
Aff. ¶ 73.)
The people in attendance asked many questions, including why the Synagogue could not
own the additional properties to be built above the new Building. Mr. Gluck explained that the
Synagogue’s Members were not real estate developers or property managers, but Members and
congregants of a Synagogue, and thus it did not make sense for the individuals at the meeting to
be in the business of real estate development or property management. (Vaysman Aff. ¶ 49;
Gluck Aff. ¶ 74.) Mr. Gluck explained that the contemplated arrangement would give the
Synagogue a new building in which to pray, while minimizing the risks involved. (Id.)
Thirteen of the seventeen Synagogue Members were present for the April 2016 Annual
Meeting. (Vaysman Aff. ¶ 50; Gluck Aff. ¶ 75.) After discussion amongst the Members, the
Members voted 12-1 in favor of pursuing a sale of the Synagogue Building. (Id.) Only
Petitioner Grausz voted no. (Id.); see Petitioners’ Ex. K (Aff. of Aron Grausz), ¶ 3 and Ex. E
(Minutes of April 3, 2016 Meeting). The claim by Petitioners that this meeting was a secret is
false, as at least some of the named Petitioners, including Mr. Grausz, were in attendance at the
April 2016 Meeting. (Vaysman Aff. ¶ 51; Gluck Aff. ¶ 76.)
D. The Developer Contract, Initial Agreement and Attorney General Approval
Following the affirmative Member vote on April 3, 2016, an agreement was entered into
on April 5, 2016 between the Synagogue, as Seller, and the Property Owner, pursuant to which
the Synagogue agreed to sell the Property for $3.1 million. (Vaysman Aff. ¶ 52; Gluck Aff. ¶
78.) Of that $3.1 million, $3 million would be used by the Synagogue to purchase a new
synagogue facility in the new building to be built on the property after the current Synagogue
Building was demolished (the “Sale Transaction”). (Id.)
On or about June 15, 2016, a Verified Petition was submitted to the Attorney General on
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behalf of the Synagogue, for approval to sell the Property, signed and verified by Mr. Vaysman,
the Synagogue President. (Vaysman Aff. ¶ 53, Ex. 4; Gluck Aff. ¶ 79.) On June 30, 2016, the
Attorney General’s office notified the Synagogue that it had approved the Sale Transaction.
(Vaysman Aff. ¶ 54, Ex. 5; Gluck Aff. ¶ 80.)
However, the June 30, 2016 Approval issued by the Attorney General provided that the
net proceeds of the sale had to be deposited into escrow, and could only be released after
completing a further Escrow Release Application to the Attorney General when construction was
complete and the Synagogue was ready to purchase the new building. (Vaysman Aff. ¶ 55;
Gluck Aff. ¶ 81.)
E. The Amended Agreement and Amended Attorney General Approval
Due to the Attorney General Approval requiring that the proceeds of the sale remain in
escrow until the new building was completed, the Synagogue decided to revise the transaction
structure in a way that would not tie up the sale proceeds in escrow. (Vaysman Aff. ¶ 56; Gluck
Aff. ¶ 82.) At or about that time, Mr. Haut determined that he no longer wished to continue with
the project due to the increased scrutiny to his business that would result from the Attorney
General, and he removed himself from consideration. (Vaysman Aff. ¶ 57; Gluck Aff. ¶ 83.)
Eventually, the Board agreed in principle to an arrangement with Waterfront Property
Management LLC (the “Developer”), a local developer whose principal, Moses Karpen
(“Karpen”), had an extensive development record. (Vaysman Aff. ¶ 58; Gluck Aff. ¶ 84.)
Contrary to the Petitioners’ allegations, Gluck had no “personal relationship” with Karpen prior
to Gluck approaching him about development of the Synagogue Building. (Gluck Aff. ¶ 84.)
Over the coming weeks and months, the Synagogue and Mr. Karpen worked on a revised
transaction structure to provide for a joint development project between the two parties that
would not tie up the sale proceeds in escrow. (Vaysman Aff. ¶ 58; Gluck Aff. ¶ 85.) Under the
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revised transaction structure, the Synagogue would acquire a minority interest in the Property
Owner entity, and the $3.1 million sale proceeds would be credited as a “capital contribution” by
the Synagogue. (Vaysman Aff. ¶ 59; Gluck Aff. ¶ 86.) In exchange for the $3.1 million, Mr.
Karpen agreed to deliver a condominium unit, consisting of the basement and first floor of the
new building and totaling approximately 10,000 square feet, to the Synagogue. (Id.) Mr. Karpen
agreed to deliver the condominium unit immediately ready for the Synagogue to use, including a
fully furnished main congregation room and other small prayer rooms, a bimah and an ark for the
Torahs, a lobby, a Mikvah, a catering hall, book cases, prayer and library books, a furnished
office for the Rabbi. (Vaysman Aff. ¶ 60; Gluck Aff. ¶ 87.)Karpen Aff. ¶ 15.)
Further, the Synagogue would have no liability or responsibility for any development
costs, mortgages, or other items, and it was contemplated that after the condominium Offering
Plan was approved, that the Synagogue would not have any liability for common area charges
except as required by law. (Id.; Karpen Aff. ¶ 14.) Mr. Karpen also agreed to personally
guarantee the completion and delivery of the new synagogue building. (Vaysman Aff. ¶ 61;
Gluck Aff. ¶ 88; Karpen ¶ 16.) Upon completion and delivery of the new synagogue, the
Synagogue would then transfer its minority LLC interest back to Mr. Karpen. (Vaysman Aff. ¶
62; Gluck Aff. ¶ 89.) While Mr. Karpen would own 100% of the Property Owner upon
completion of the project, this split ownership structure gave more comfort to the Synagogue that
the project would be completed. (Vaysman Aff. ¶ 63; Gluck Aff. ¶ 90.)
In February 2017, another meeting was called for the Members to meet again to discuss
the particulars of the amended deal structure, which was to be re-submitted to the Attorney
General. (Vaysman Aff. ¶ 64; Gluck Aff. ¶ 93.) The Members were given prior notice that this
meeting would be taking place, again via an announcement from the President at morning
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Sabbath services for the two consecutive weeks preceding the meeting that a meeting would take
place on February 26, 2017 (“The February 2017 Meeting.”) (Vaysman Aff. ¶ 65; Gluck Aff. ¶
94.)
At the February 2017 Meeting, the Members discussed the revised deal structure where
the Synagogue would be a partner with the developer to build the new synagogue and thereafter
took a vote. According to recollection of the President, and based on his recent discussions with
the Secretary, Mr. Gluck, the vote to change the deal structure passed overwhelmingly by a show
of hands of the Members in attendance. (Vaysman Aff. ¶ 67; Gluck Aff. ¶¶ 95-96.) Again, the
idea that this meeting was held in secret, and that Members were not afforded an opportunity to
attend, is false. (Vaysman Aff. ¶ 68; Gluck Aff. ¶ 97.)
After the affirmative vote of the Members, the amended deal structure was memorialized
in an agreement dated February 26, 2017 (the “Amended Agreement”). (Vaysman Aff. ¶ 70;
Gluck Aff. ¶ 99.) The Synagogue submitted a Supplemental Verified Petition, dated April 27,
2017, and signed by the President, to the Attorney General. (Vaysman Aff. ¶ 70, Ex. 6.) The
Supplemental Verified Petition described the June 2016 approval for the Sale Transaction and
identified the changes contained in the Amended Agreement. (Id.)
Mr. Karpen also took all necessary steps to provide the Attorney General with all of the
information required for the project, including providing financial statements, a description of
the project, and a detailed explanation of why the proposed transaction was beneficial to the
Synagogue. (Vaysman Aff. ¶ 71; Gluck Aff. ¶ 100.) Mr. Karpen also provided the Attorney
General with a detailed “resumé” of his recently-completed development projects to show that he
was a trustworthy partner for the Synagogue. (Vaysman Aff. ¶ 72; Gluck Aff. ¶ 101.) This was
an additional step required by the Attorney General, due to a recent spate of deals where
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developers had walked away from projects prior to completion, and the religious organizations
who had partnered with them were the ones most injured as a result. (Id.)
The Attorney General approved the amended deal structure on May 3, 2017 (the
“Amended Approval”). (Vaysman Aff. ¶ 73, Ex. 6; Gluck Aff. ¶ 102.) On June 14, 2017, the
Sale Transaction closed and the deed to the Property was transferred from the Synagogue to the
Property Owner. (Vaysman Aff. ¶ 74; Gluck Aff. ¶ 103; see also Petitioners’ Ex. C.)
F. Petitioners Commenced the Instant Proceeding and Sought a TRO

Prohibiting the Demolition of the Synagogue Building
The Petitioners filed their Article 78 Verified Petition on or about August 11, 2017, and
shortly thereafter moved by Order to Show Cause for judgment on the Petition, and for a TRO
“preserving the status quo and preventing the demolition of the Synagogue’s Property . . .”
pending a hearing and determination on the merits of the Petition. (NYSCEF Doc. No. 16.)
Notably, the Petitioners failed to name the Intervenor-Respondents as parties in the Article 78
Proceeding.
On August 24, 2017, the Honorable Marsha Steinhardt heard oral argument on
Petitioners’ application for TRO, and denied the TRO in part and granted the TRO in part,
ordering the Synagogue, the Property Owner, and the Developer be temporary restrained from:
(i) proceeding with the demolition of the Synagogue Building; (ii) taking any steps to encumber
title to the Synagogue Property; or (iii) limiting, terminating, reducing or restricting the
Synagogue’s functions in its current Building or transferring such functions to another location.
(NYSCEF Doc. No. 19.) In response to the Intervenor-Respondents’ request during oral
argument that they be allowed to move forward with obtaining appropriate demolition permits
from the New York City Department of Buildings (“DOB”) so as to minimize the damages that
would undoubtedly be caused by delay, the Court included in the TRO a provision stating that
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the “[p]rocessing of all relevant paperwork may continue notwithstanding the TRO.” (Id.)
Despite the “carve-out” language included in the signed Order that was intended to allow
the Intervenor-Respondents the ability to obtain permits for the development project, the
practical effect of the issuance of the TRO has been to bring the project to a complete halt since
August 24, 2017. The DOB has refused to issue any further permits while the TRO is in place.
(Karpen Aff. ¶¶ 23-24, Ex. 4.) In addition, since the Sale Transaction closed in or about June
2017, the Developer has already incurred nearly $400,000 of costs for the development project,
including renting and furnishing a temporary worship space for the Synagogue’s congregants.
(Id. ¶¶ 21-22.)
Due to the fact that Petitioners failed to name necessary parties in the Petition,
Intervenor-Respondents intervened in the proceeding by a Stipulation dated August 31, 2017,
which was So-Ordered by the Court on or about October 2, 2017. (NYSCEF Doc. No. 29.)
ARGUMENT
I. THE RELIEF SOUGHT IN THE PETITION IS BARRED BY NOT-FOR-PROFIT

CORPORATION LAW § 203
The Petition should be dismissed because the Court cannot grant the Petitioners the relief
sought. Rescinding and or annulling the Amended Approval will have no effect, as a matter of
law, because, pursuant to the Attorney General’s Amended Approval, the Sale Transaction was
consummated and title to the Property was transferred from the Synagogue to the Property
Owner two months before the Petition was filed. The Sale Transaction is now expressly
protected by Section 203 of the NPCL:
No act of a corporation and no transfer of real or personal property to or

by a corporation, otherwise lawful, shall, if duly approved or authorized
by a judge, court or administrative department or agency as required, be
invalid by reason of the fact that the corporation was without capacity or
power to do such act or to make or receive such transfer….
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New York courts have applied NPCL § 203 to protect sales on facts that are practically identical
to the facts alleged by Petitioners in this case.
The case Congregation Yetev Lev D’Satmar v. 26 Adar N.B. Corp., 219 A.D.2d 186, 641
N.Y.S.2d 680 (2d Dep’t 1996) (hereinafter “Yetev Lev”) is directly on point. In Yetev Lev,
petitioner-congregants sought to reverse consummated sales of their congregation’s real
property. The Yetev Lev petitioners argued that the petition seeking sale approval “falsely
represented that the initial sale of the property…had been authorized by Yetev Lev’s Board of
Trustees and general membership, that the trustees and membership had deemed it beneficial to
sell the property, and that the fair market value of the property was $100,000.” Id. at 189, 641
N.Y.S.2d at 682. The Yetev Lev petitioners also submitted affidavits to the trial court allegedly
establishing the number of trustees had been misrepresented in the sale petition, that there had
not been a proper vote of the trustees, and that no proposal to sell the property had ever been
presented to the membership of Yetev Lev, “despite the minutes of a special membership
meeting…to the contrary.” Id.
After the Yetev Lev petitioners prevailed in the trial court, the Appellate Division, Second
Department reversed and expressly held that ruled that petitioner-congregants could not
retroactively challenge consummated sales of the congregation’s real property, where the sales
were “brought about by binding resolutions of the Yetev Lev’s congregation and Board of
Trustees, as well as by properly obtained court orders.” Id. at 190, 641 N.Y.S.2d at 682.
Consummated real property transactions, the court held, could not be rendered void through the
submission of “self-serving affidavits (in defiance of facially valid petitions, supporting
documentation, court orders and public records of the property’s ownership) contending, inter
alia, that these transactions were never properly authorized by the statutorily mandated number
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of trustees and congregants.” Id. at 190, 641 N.Y.S.2d at 682-83. The Appellate Division
further held that “NPCL 203, which is applicable to religious corporations . . . provides, inter
alia, that a religious corporation [ ] cannot invalidate an ultra vires, but otherwise lawful, transfer
of property if the transfer was duly approved or authorized by a Judge. Rather, its remedy is to
sue its misbehaving corporate officers.” Id. at 190, 641 N.Y.S.2d at 683.
Here, Petitioners make the same claims that the petitioners made in Yetev Lev: (a) that the
Synagogue did not provide proper notice and the membership did not receive notice of the
meeting that purportedly approved the Sale Transaction (Petition ¶¶ 8-9); (b) that the petition
submitted to the Attorney General contained material misrepresentations regarding the
Synagogue Building’s condition (Id. ¶¶ 10-12); (c) that the Sale Transaction price is not “fair
market value,” (Id. ¶¶ 13-14); and (d) that the Sale Transaction is not in the best interests of the
Synagogue or its members (Id. ¶ 15). In sum, Petitioners argue that the Sale Transaction was, in
effect, ultra vires. Even assuming, arguendo, that such allegations are true (and they are not),
the Court is nevertheless required by NPCL § 203 to protect the Sale Transaction. As the
Appellate Division held “the defense of ultra vires cannot be wielded as a sword by a plaintiff to
invalidate a contract that has already been fully performed by both parties.” Yetev Lev, 219
A.D.2d at 190, 641 N.Y.S.2d at 683. This rationale promotes an important public policy
concern. If “the plaintiffs in this case [were] to prevail, it would render unstable the title to any
parcel of real property in New York State that had ever been previously owned by a religious or
not-for-profit corporation, even if its conveyance had been accomplished pursuant to a court
order.” Id.
Other New York courts have held similarly. In Congregation Beth Hamedrash Hagodel
of Mapleton Park Jewish Ctr., Inc., v. Perr, 16 Misc. 3d 1103(A), at *7, 841 N.Y.S.2d 825, at *5
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(Sup. Ct. Kings Cnty. 2007), the petitioner-congregants argued that the sale of the congregation’s
real property should be invalidated, asserting that “the Mapleton Park members were not given
the requisite notice of the proposed sale and did not, in fact, approve of the sale, despite the
documents to the contrary, and that the seller failed to comply with the provisions of the
approval procedure as set forth in the statutes and [congregation] by-laws[.]” The court
observed, however, that the
sale in question was valid on its face. The sale was approved by an order
of the court and stamped and signed by the Attorney General. The
documents submitted in support of that sale indicate that the sale was duly
authorized by a quorum of the members and officers of Mapleton Park in
accordance with [the Religious Corporations Law] and [the Not-for-Profit
Corporations Law] . . . . Accordingly . . . plaintiffs here cannot invalidate
an ultra vires, but otherwise lawful, transfer of property as that transfer
was duly authorized by the court.
Id. at *8, 841 N.Y.S.2d 825 at *5. (internal citations omitted).
Petitioners cite to Kupperman v. Congregation Nusach Sfard of the Bronx, 39 Misc. 2d
107, 240 N.Y.S.2d 315 (Sup. Ct. Bronx Cnty. 1963), but that case is inapplicable to the present
case as it did not involve a consummated sale of real property, but rather an internal dispute
between the plaintiff rabbi and the defendant congregation.
Finally, Petitioners cannot prevail on their claim that the Synagogue acted improperly by
submitting verified petitions for approval of the Sale Transaction directly to the Attorney
General. (Petition ¶ 6.) This process is expressly permitted by NPCL § 511-a:
In lieu of obtaining court approval under section 511 (Petition for

court approval) of this article to sell, lease, exchange or otherwise
dispose of all or substantially all of its assets, the corporation may
alternatively seek approval of the attorney general by verified
petition, except in the following circumstances: (1) the corporation
is insolvent, or would become insolvent as a result of the
transaction, and must proceed on notice to creditors….or (2) the
attorney general, in his or her discretion, concludes that a court
should review the petition and make a determination thereon.
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Effective as of July 1, 2014, NPCL § 511-a was adopted to authorize the Attorney General “to
approve real property transactions, in lieu of Supreme Court approval after [Attorney General]
review as provided under NPCL § 511 which is retained. The purpose of new section 511-a,
according to the New York State Senate Introducer’s Memorandum in Support, ‘is to expedite
the often-lengthy approval process and reduce legal costs.’” (Bailly, Practice Commentaries,
McKinney’s Cons Law of N.Y., 2014 Electronic Update, NPCL § 511-a).
While, as set forth further below, the Synagogue has full confidence that it fully complied
with all applicable statutes and bylaws to obtain Attorney General approval for the Sale
Transaction — not once, but twice — the statutory language of NPCL § 203 and NPCL § 511-a
controls and is dispositive of the claim for relief asserted in the Petition, warranting dismissal of
the Petition with prejudice.
II. THE MAJORITY OF THE PETITIONERS LACK STANDING TO CHALLENGE

THE AMENDED APPROVAL AND THEIR CLAIMS SHOULD BE DISMISSED
A second, dispositive basis for partial dismissal of the Petition is the fact that eleven of
the fourteen named Petitioners are not “members” of the Synagogue: David Y. Shor, Feivel
Unger, Motti Katz, Moshe Hershkowitz, Chaim Katz, Yitzchok Lunger, Mendel Weisberg, Lazer
Fischer, Aron Jungreis, David Berkovits, and Noson Josephy (hereinafter, the “Non-Member
Petitioner”). Pursuant to well-settled principles of New York law, the Non-Member Petitioners
lack standing to challenge both the Amended Approval and the underlying actions of the Board
and the Synagogue Membership in approving the Sale Transaction — because the Non-Member
Petitioners have no right to vote at corporate meetings, and have not been deprived of any rights
by the Synagogue.
It has long been the law in New York that a person who is not, or has ceased to be, a
member of a religious corporation has no standing to bring and maintain an action to challenge
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decisions of the corporation with respect to corporate property, or the actions of a properly-
elected Board of Trustees. For example, in Citizens for St. Patrick’s v. Saint Patrick’s Church of
W. Troy, 117 A.D.3d 1213, 1214-15, 985 N.Y.S.2d 743, 745-46 (3d Dep’t 2014), the Appellate
Division found that plaintiffs, parishioners in a church, “lack[ed] standing to challenge the sale
of the [church’s] property” because they were not “members of the religious corporation” that
made decisions on behalf of the property. The Appellate Division distinguished, significantly,
between those ordinary individuals within the congregation and actual “Members” who, “for
religious corporation purposes,” possess “memberships rights . . . in accordance with the
provisions of [the corporation’s] certificate of incorporation or by-laws.” Id. (citing NPCL §
102(a)(9); Religious Corporation Law (“RCL”) §§ 90, 91).
The Court of Appeals found similarly in Blaudziunas v. Egan, 18 N.Y.3d 275, 282, 938
N.Y.S.2d 496, 499 (2011). There, the parishioners were, again, considered to be members of the
“ecclesiastical body” of the church, rather than members of the corporation. Id. As simply
parishioners, they did not possess “the rights and duties as members of the religious
corporation,” and thus “ha[d] no basis to challenge the actions properly voted upon by” the
church’s board. Id.; see also Ming Tung v. China Buddhist Ass’n, 124 A.D.3d 13, 996 N.Y.S.2d
236 (1st Dep’t 2014) (excommunicated members of Buddhist association had no standing to
challenge corporate actions or seek a judgment directing the association to comply with bylaws
and hold annual membership meeting).
A “member” is defined for religious corporation purposes as “one having membership
rights in a corporation in accordance with the provisions of its certificate of incorporation or by-
laws.” (NPCL § 102(a)(9); RCL § 2-b(1) (NPCL is applicable to religious corporations). RCL
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§ 195, which governs Article 10 Religious Corporations such as the Synagogue 2, provides in
pertinent part that:
At a corporate meeting of an incorporated church to which this article is

applicable, the following persons, and no others, shall be qualified voters,
to wit: All persons who are then members in good and regular standing of
such church by admission into full communion or membership therewith
in accordance with the rules and regulations thereof, … or who have been
stated attendants on divine worship in such church and have regularly
contributed to the financial support thereof during the year next preceding
such meeting…. The presence at such meetings of at least six persons
qualified to vote thereat shall be necessary to constitute a quorum. The
action of the meeting upon any matter or question shall be decided by a
majority of the qualified voters voting thereon, a quorum being present.
RCL § 195 (emphasis added.) It is plain that the Non-Member Petitioners will attempt to
convince the Court that they are, in fact members of the Synagogue by submitting Affidavits
through which they claim regular attendance and financial contributions to the Synagogue. (See
Petitioners Exhibit K.) However, RCL § 195 clearly provides that in the first instance, a person
is deemed a member “by admission or into full communion or membership therewith in
accordance with the rules and regulations thereof.” It is the Synagogue’s Bylaws which control
admission of members, and not the “default” language of RCL § 195. Here, the Non-Member
Petitioners do not and cannot meet the definition of a “member” of the Synagogue as prescribed
by the Synagogue’s Bylaws.
The Synagogue Bylaws provide that one obtains “Member” status by making an
application to the Board of Trustees, asking to become a Member. This is set forth in the
Synagogue’s Bylaws, Article III, Section 3: “Any person wishing to be a member may apply for
membership to the Board of Trustees.” Having received an application, the Board then votes by
majority to accept the person as a Member. (Vaysman Aff. ¶ 13; Gluck Aff. ¶ 14.) The current
Bylaws were adopted by the Board in 2015 after the Synagogue’s corporate records, including
2
See Vaysman Aff. Ex. 3, Certificate of Incorporation ¶ 3.
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the previous Bylaws, were lost or misplaced due to the death of the then-Secretary. (Vaysman
Aff. ¶ 16.) The 1914 Constitution, on which Petitioners rely (see Petition ¶¶ 20-21, Ex. F) 3, had
been previously amended and superseded many times; it has not been the Synagogue’s
governing document for many years. (Vaysman Aff. ¶¶ 16-17.) The present Bylaws were not,
as Petitioners speciously claim, “prepared solely for the Application” to the Attorney General.
(Petition ¶ 20.)
Nonetheless, while the 1914 Constitution of the Synagogue is not the Synagogue’s
current governing document, even the 1914 Constitution prescribes a specific procedure to
obtain membership in the Synagogue. The 1914 Constitution required (i) that any candidate “be
nominated by one member”; (ii) that “[t]he President must appoint a committee of 3 members to
determine whether the candidate is worthy of being accepted as a member in the society”; and
(iii) that the committee must report at the following meeting, “whether the candidate is positive,”
with a vote taken thereafter to determine if that person is to be a Member. (Petition Ex. F,
Article 3, at ¶¶ 15-18.) 4
The Synagogue has a long-standing practice of maintaining a list of its Members, of
which there are less than 20. (Vaysman Aff. ¶ 12.) Only three (3) of the named Petitioners are
part of this Member list: Aron (Rafael) Grausz, Levi Goldberg, and Jacob Levitman. (Id.)
Moreover, it is well-known and understood to all congregants who attend the Synagogue that
there is a small group of Members with the power to vote and make decisions for the Synagogue,
and that the majority of the congregants are merely worshippers or “mispallelim,” who do not
3
The Intervenor-Respondents note that the purported “translation” of the 1914 Constitution provided by the
Petitioners is not certified by a competent translator, and thus they reserve all rights with respect to challenging the
inaccuracy of the provided translation as may be necessary. (See Petition ¶ 20, Ex. F.)
4
The Synagogue further notes for the Court that the Petitioners completely ignore this provision of the 1914
Constitution and only cite to the provisions that prescribe notice for meetings — which Petitioners believe is helpful
to their claim. The Petitioners should be permitted to cherry pick only those provisions of the 1914 Constitution that
they like, and ignore the ones they do not.
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have the privileges of full membership. (Gluck Aff., Exs. 5, 14.)
Notably, the Non-Member Petitioners do not allege anywhere in their submissions to
have complied with the Bylaws and the procedure for membership. Moreover, three Non-
Member Petitioners — Chaim Katz, Feivel Unger and Moshe Hershkowitz — have expressly
admitted in written and oral communications that pre-date the commencement of the instant
proceeding that they are not Members of the Synagogue. (Gluck Aff. ¶¶ 16-20, Exs. 1-3.)
Further, the Court should reject any attempt by the Non-Member Petitioners to seek a
determination that they are, in fact, members in good standing of the Syangogue. Not only
would such a request by Petitioners go far beyond the scope of this Article 78 Proceeding and the
single claim for relief asserted in the Petition, but New York law does not permit this Court to
make determinations as to whether a congregant of a church or synagogue is a “member” in good
standing.
New York law is clear that “[a] decision as to whether or not a member is in good
standing is binding on the courts when examining the standards of membership requires
inclusion into constitutionally protected ecclesiastical matters,” such as where a synagogue’s
bylaws condition membership on religious criteria. Congregation Yetev Lev D’Satmar, Inc. v.
Kahana, 9 N.Y.3d 282, 288, 849 N.Y.S.2d 463, 467 (2007) (affirming dismissal of petition to
declare election of respondent Jewish congregation members null and void pursuant to NPCL
§ 618 where petitioner had been “expelled” from the congregation by the Grand Rabbi; court
could not intervene where membership was conditioned on religious criteria.); see also Park
Slope Jewish Ctr. v. Stern, 128 A.D.2d 847, 848, 513 N.Y.S.2d 767, 769 (2d Dep’t 1987)
(“judicial resolution of the instant dispute [regarding plaintiff’s membership requirements] would
violate the Establishment Clause of the First Amendment of the United States Constitution.”);
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Rodyk v. Ukrainian Autocephalic Orthodox Church of St. Volodimir, 31 A.D.2d 659, 296
N.Y.S.2d 496, 497 (2d Dep’t 1968), aff’d, 29 N.Y.2d 898, 328 N.Y.S.2d 685 (1972) (“A church
has a right to determine the qualifications for membership; whether one is a member in good
standing is a matter of an ecclesiastical nature, relating to the government and discipline of the
church; and the church’s decision as to such a matter is binding on the courts.”) (citations
omitted).
The Synagogue’s Bylaws require that a congregant apply to the Board for membership,
and the Board has discretion to determine whether to grant membership to a candidate or not
based on its own criteria, which include religious criteria as determined by the Board. (See
Vaysman Aff. ¶¶ 13-14; Gluck Aff. ¶¶ 10, 14, Ex. 14, Opposing Member Affidavits; see also
1914 Constitution, Petition, Ex. F., Article 3, ¶ 13 (“a new candidate who wishes to join our
society, must be a good, decent Jew, and possess a good character.)) Thus, this Court cannot
adjudicate whether the Non-Member Petitioners are “members in good standing” without
offending the First Amendment by inserting its own judgment in lieu of the criteria considered
by the Board. Congregation Yetev Lev, 9 N.Y.3d at 288, 849 N.Y.S.2d at 467; Ming Tung, 124
A.D.3d at 21, 996 N.Y.S.2d at 242; Park Slope Jewish Center, 128 A.D.2d at 848, 513 N.Y.S.2d
at 768.
For these reasons, the Non-Member Petitioners have no standing to challenge the
Amended Approval, and their claims must be dismissed with prejudice.
III. THE MEMBER PETITIONERS HAVE FAILED TO DEMONSTRATE THAT

THE AMENDED APPROVAL SHOULD BE RESCINDED OR ANNULLED
Assuming arguendo only, that the Court finds it necessary to reach the merits of the
claims of Petitioners Rafael (Aron) Grausz, Levi Goldberg, and Jacob Levitman (the “Member
Petitioners”), it is clear that these Member Petitioners have failed to demonstrate that the
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Amended Approval should be rescinded or annulled. Accordingly, the Petition should be
dismissed with prejudice for the reasons set forth herein.
A. The Standard of Review
“In a CPLR article 78 proceeding to review a determination of an administrative agency,
the standard of judicial review is whether the 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.” Wilson v. New York City Dep’t of Hous. Pres. and Dev., 145 A.D.3d 905, 907, 44
N.Y.S.3d 135, 137 (2d Dep’t 2016). “An action is arbitrary and capricious when it is taken
without sound basis in reason or regard to the facts.” Peckham v. Calogero, 12 N.Y.3d 424, 431,
883 N.Y.S.2d 751, 754 (2009). Under CPLR § 7803, “[t]he court may vacate an administrative
determination if it ‘was made in violation of lawful procedure, was affected by an error of law or
was arbitrary and capricious or an abuse of discretion.’” Tower Apartment LLC v. Cuomo, No.
105022/2010, 2014 WL 8664303, at *2 (Sup. Ct. N.Y. Cnty., June 13, 2014) (citing CPLR §
7803(3)) (upholding respondent attorney general’s determination, which was found not to be
arbitrary).
This standard of review applies to determinations made by the AG. See, e.g., Tower
Apartment LLC, id. at *9; see also CRP/Extell Parcel I, L.P. v. Cuomo, 101 A.D.3d 473, 473,
957 N.Y.S.2d 293, 295 (1st Dep’t 2012) (in affirming order denying petition to annul
determinations of respondent Attorney General, holding that “[t]he Attorney General’s
determinations were not affected by an error of law or arbitrary and capricious.”); Academy
Street Assocs. v. Spitzer, 50 A.D.3d 271, 271, 856 N.Y.S.2d 15, 16 (1st Dep’t 2008) (petitioners’
claims against respondent Attorney General failed because they failed to “identify[] a clear legal
right entitling them to the relief sought” or “demonstrate[ ] that respondent’s determination was
arbitrary, capricious or an abuse of discretion”); Madison Park Owner LLC v. Schneiderman, 93

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A.D.3d 555, 556, 940 N.Y.S.2d 605, 606 (1st Dep’t 2012) (affirming trial court decision and
finding that Attorney General’s proper application of common law to dispute “was not clearly
erroneous or arbitrary and capricious,” and was thus upheld).
Applying this standard, it is clear that the Amended Approval should stand.
B. The Synagogue Gave Proper Notice of Meetings to Members
The Petition alleges that the Synagogue did not comply with (1) the mandatory notice
requirements of RCL § 194 or (2) the notice and meeting provisions of the 1914 Constitution.
(Petition ¶¶ 19-21.) As set forth above, the 1914 Constitution is not the current governance
document of the Synagogue, so that Petitioners’ second argument is of no merit, and is easily
disposed of. As discussed herein, the notices given for both the April 2016 Meeting, where the
decision to sell the Synagogue was approved by majority vote, and the February 2017 Meeting,
where the structure of the Sale Transaction was modified by majority vote, were both proper and
valid.
RCL § 194 states that:
The annual corporate meeting of every incorporated church to which this

article is applicable shall be held at the time and place fixed by or in
pursuance of law therefore, if such time and place be so fixed, and
otherwise, at a time and place to be fixed by its trustees. A special
corporate meeting of any such church may be called by the board of
trustees thereof, on its own motion…The trustees shall cause notice of the
time and place of its annual corporate meeting…and, if a special meeting,
specifying the business to be transacted thereat, to be given at a regular
meeting of the church for public worship, at a at morning service, if such
service be held, on each of the two successive Sundays next preceding
such meeting, if Sunday be the regular day for such public worship, and
public worship be had thereon, or otherwise at a regular meeting of such
church for public worship on each of two days, at least one week apart,
next preceding such meeting, or if no such public worship be held during
such period, by conspicuously posting such notice, in writing, upon the
outer entrance to the principal place of worship of such church.
RCL § 194 does not expressly require that written notice be provided unless “no such public
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worship be held” during the two week period preceding the meeting. Oral notice is plainly
sufficient under the statute if an announcement is made at the congregation’s regular worship
morning services for two successive weeks preceding the meeting.
As set forth in the Vaysman Affidavit, oral notice of the April 2016 Meeting and the
February 2017 Meeting was provided by Mr. Vaysman, the Synagogue’s President, by means of
an announcement to the congregation at Sabbath morning services for the two consecutive weeks
preceding each such meeting. (Vaysman Aff. ¶ 40.) It is further stated that each time, the
purpose of the meeting was stated in the announcement. For the April 2016 Meeting, Mr.
Vaysman states that “[m]y announcements during Sabbath services to the congregation
specifically stated that the meeting would involve discussion of the Board of Trustees’ decision
to seek a new building for the Synagogue.” (Id. ¶ 41.) For the February 2017 Meeting. Mr.
Vaysman states a meeting was called for Members “to meet again to discuss the particulars of
the amended deal structure, to be re-submitted to the Attorney General.” (Id. ¶ 64.) Eight of the
Synagogue’s Members have submitted Affidavits in opposition to the Petition likewise attesting
to the notice provided of these two meetings. (See Gluck Aff., Ex. 14.)
Further, the meeting minutes for both meetings were signed and notarized by the Board,
and were submitted to the AG as exhibits to Verified Petitions that were verified by Mr.
Vaysman. (Vaysman Aff. ¶¶ 50, 70, Exs. 4, 6.) Based upon this record, compliance with notice
provision of RCL § 194 is plainly established, and the Petitioners’ allegation that a “lack of
proper notice [was] affirmatively concealed from the Attorney General in the Application” is
patently false.
Having established that proper notice was given, it is plain that the claims asserted on
behalf of Member Petitioners Grausz, Goldberg and Levitman should be dismissed.
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First, Petitioner Grausz affirmatively admits in his affidavit that he received notice of the
meetings, attended the meetings, and voted “NO” in opposition to the Sale Transaction.
(Petitioners’ Exhibit K, Affirmation of Rafael (Aron) Grausz, ¶ 3.) Grausz has no claim because
he received notice and has fully exercised his rights as a Member of the Synagogue.
Unfortunately for Grausz, he was outvoted by the other Members. Grausz further claims —
falsely — that at the meetings those who did attend “were never provided any details of the
transaction.” (Id. ¶ 4.) But, as the President and Secretary attest in sworn affidavits, there was in
fact a robust discussion of the details of the Sale Transaction presented to the attendees at the
April 2016 Meeting, specifically that the Synagogue Building would be sold to a developer, who
would demolish the present structure in favor of a new building, and that the Synagogue would
buy back the first floor and basement of the new building and have a brand new Synagogue
Building to worship in. (Vaysman Aff. ¶¶ 46-49; Gluck Aff. ¶¶ 72-74.)
Second, Petitioner Goldberg admits in his Affidavit to the Court that “[f]or the last eight
years, it has been difficult for me to walk and I have not attended the Synagogue on a regular
basis.” (Petitioners’ Exhibit K, Affidavit of Levi Goldberg, ¶ 1.) Thus, Petitioner Goldberg’s
admitted limited attendance at the Synagogue is the likeliest reason for his having not received
notice of the April 2016 Meeting or the February 2017 Meeting. This does not, however,
invalidate the notices provided by Mr. Vaysman in accordance with RCL § 194. Nor does it
undermine the validity of those meetings or the votes taken at those meetings, given that,
pursuant to RCL § 195 quoted above in Point II, all that is needed for a meeting is that a quorum
of six members be in attendance. Similarly, Petitioner Levitman avers that he has “continuously
prayed and attended services for the last twenty two years at the Synagogue,” but does not state
which services he attends. (Petitioners’ Exhibit K, Affidavit of Jacob Levitman, ¶ 1.) Again, if
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Petitioner Levitman did not attend morning Sabbath services, and thus did not hear the notices
announced by Mr. Vaysman, it is not a “deprivation” of any of his right because the notices
comported with RCL § 194, and the meetings that were held were attended by a quorum of
members in accordance with RCL § 195.
For these reasons, the Member Petitioners have failed to establish that they were deprived
of their rights as Members.
C. The Verified Petitions to the Attorney General Were Not Misleading In

Describing the Synagogue Building As in a Poor and Unsafe Condition
The Intervenor-Respondents reject Petitioners’ claim that the Verified Petitions submitted
to the Attorney General contained “numerous material misstatements,” including those regarding
the condition of the Synagogue Building, itself. (Petition ¶¶ 10, 24-25.) Petitioners attach eight
photographs of the main sanctuary of the Synagogue and ask this Court to determine that
everything in the building is “in good order.” (Id.; Petitioners’ Exhibit K, Affidavit of David Y.
Shor, Ex. A thereto.) As shown below, this is far from accurate.
First, the Synagogue Building consists of two floors. The ground floor level contains the
main sanctuary (shown in the Petitioners’ pictures), while the basement level contains a series of
rooms and spaces for activities. (Vaysman Aff. ¶ 23.) In the Petition, the Petitioners only
describe the main sanctuary, which is beautiful on the surface, but the Synagogue has paid
somewhere between $100,000 and $150,000 to make the sanctuary look that way, including to
repair the roof and install other basic fixes, but it has not brought new congregants or donations
to the Synagogue. (Id.) The main sanctuary is only used for Sabbath services, and all other
prayer services and activities occur in the basement level. (Id. ¶ 25.) The Petitioners do not
include any pictures of the basement level or the rest of the Synagogue Building, and fail to
discuss the condition of the rest of the Synagogue Building. (Id. ¶ 26; Vaysman Aff. ¶ 31.)
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The Synagogue Building is rife with major, structural issues, most of which are easily
noticeable upon entering the Building from simple visual inspection, including a cracked
foundation, broken stairs, rotting wood beams, holes in the floor, a collapsing chimney, cracked
windows, an old boiler that is not up to code, crumbling walls, and problems with the electrical
wiring. (Vaysman Aff. ¶ 27; Gluck Aff. ¶ 32.) There is also water damage caused by ongoing
leaking throughout the Synagogue Building, which has been left untreated for years causing a
mold infestatation. (Vaysman Aff. ¶ 28; Gluck Aff. ¶ 33.) Whether due to the mold or other
undiagnosed issues, the Synagogue Building emits a foul odor, and the restrooms are
unattractive. (Vaysman Aff. ¶ 29; Gluck Aff. ¶ 34)
Indeed, as congregants will readily attest, almost no one actually uses the restrooms in the
Synagogue Building. (Vaysman Aff. ¶ 30; Gluck Aff. ¶ 38.) Instead, they travel to their homes
or even other synagogues, when they need to use the facilities. (Id.) Many Members and Non-
Members have submitted affidavits in opposition to the Petition attesting to these poor
conditions; some of them even state that it is because of these poor conditions that they have
stopped worshipping at the Synagogue all together. (Gluck Aff. Exs. 5, 14.) And, even certain
Petitioners, like Petitioner Hershkowitz, acknowledge that the Synagogue Building is in poor
condition, having admitted “the shul is falling apart, I agree. Everyone knows that when you
come into the synagogue, you smell of urine. It smells from mold, it needs renovation.” (Gluck
Aff. ¶ 37, Ex. 4.)
Separately, while not expressly required or requested by the Attorney General for
purposes of submitting the Verified Petitions for approval for the Sale Transaction, the
Synagogue has commissioned a building inspection report and a mold inspection report from
experienced, licensed professionals. (Gluck Aff. ¶¶ 38, 40, Exs. 7, 9.) Both reports confirm that
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the Synagogue Building is in terrible condition.
In the Building Inspection Report, the following problematic conditions are identified:
• bowing and shifting of the outward wall of the structure due to apparent lack
of proper roof bracing;
• deterioration and cracking of the exterior stucco façade, allowing water

infiltration causing rotting of the wood filler strips around the structure;
• a potentially unsafe abandoned underground fuel oil tank;
• complete floor deterioration in two locations in the basement level due to

water damage and water infiltration;
• water and moisture infiltration in the main sanctuary and balcony area
requiring complete removal and replacement of the entire roof system;
• the need to re-support the balcony “before a failure occurs”
• cracking of the ceiling plaster;
• cracking and deflection of wooden supports for the stairs from the main level
to the upper level balcony, requiring re-construction; and
• non-operational gas-fired steam boiler in poor condition due to advanced

corrosion, deterioration, open wiring and unprofessional repair.
(See Gluck Aff., Ex. 7.) The overall conclusion of the Building Inspection Report is that due to
the variety of conditions existing in the structure presently, the structure would require
substantial funds to renovate and rehabilitate, but that the renovation and rehabilitation of the
structure is not warranted because it would require constant and regular repairs and maintenance
in the future. Instead, demolition and replacement would have a longer and lower maintenance
service life. (Id.)
Similarly, the Mold Inspection Report states that there is “extensive and widespread mold
colonization and contamination in the building….The levels of mold spores in air are elevated
due to the extensive mold colonization and include toxigenic molds. This presents a significant
inhalation exposure to occupants…. The building is currently uninhabitable.” (Gluck Aff., Ex.
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9.) To repair all of these issues is presently estimated to cost approximately $1.15 million in
total. (Gluck Aff. ¶¶ 39-42, Exs. 7-10.)
Based on the aforementioned evidence, it is simply not the case that the “roof, plumbing,
heating and electrical systems are all in good order.” (Petition ¶ 24.) Nor can it be said that the
Verified Petitions submitted by the Synagogue to the Attorney General were materially
misleading on this issue.
D. Petitioners Have Not Established That the Value of the Property Exceeds
$3.1 Million and the Terms of the Sale Transaction Are Fair and Reasonable
Similarly, the Petitioners have failed to demonstrate that the sale price and the terms of
the Sale Transaction are not fair and reasonable to the Synagogue. To the contrary, and as
shown herein, the Sale Transaction is both fair and reasonable.
As a threshold matter, the Synagogue obtained an appraisal of the property by a licensed
appraiser dated March 28, 2016, appraising the fair market value of the property at $3.1 million.
(Vaysman Aff. ¶ 88, Ex. 8.) Petitioners’ unsupported insinuation that the appraisal was a
machination by Mr. Karpen is nothing more than naked speculation on Petitioners’ part.
(Petition ¶ 26.) Nor have Petitioners presented admissible evidence to the Court on the issue of
what they claim is the “true fair market value” of the Synagogue Property. Petitioners present, as
Exhibit D, a letter from a real estate broker — not a licensed appraiser — who opines that as of
July 2017 (and not March 2016), the Property “would currently sell between $4,000,000 and
$4,500,000” based on reference to one “similar residential development lot” allegedly “recently
sold” for $5,000,000. Moreover, the alleged comparable sale was not sold with the obligation to
build an entirely new synagogue by the purchaser.
The words “fair market value” appear nowhere in Petitioners’ Exhibit D, and the alleged
“market analysis,” contained in the total two paragraphs of the letter, is so vague as to lack
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probative value. The broker does not even provide a CV or list of his actual sale transaction
experience from which the Court can gauge the reliability of this gentleman as a professional
“expert.” In sum, Petitioners’ “evidence” of what they claim is the “true fair market value” of
the Property is woefully deficient, and certainly does not compel rescinding or annulling the
Amended Approval.
Petitioners’ other allegations that the Sale Transaction is a “sweetheart deal” negotiated
as an inside transaction between Asher Gluck, the Synagogue’s Secretary, and Mr. Karpen are
also based on speculation and not fact. (Petition ¶ 14.) Completely disproving these allegations,
Mr. Gluck did attempt to seek out multiple potential developers for the Property. (Gluck Aff. ¶¶
62-63; Vaysman Aff. ¶¶ 36-37.) Many developers did not want to do business with a religious
organization controlled by a board and members, nor did they want to subject themselves to the
review process by the Attorney General in sales of religious facilities. (Gluck Aff. ¶ 63;
Vaysman Aff. ¶ 37.) After the initial proposed purchaser decided not to proceed, Mr. Gluck was
able to negotiate the Sale Transaction with Mr. Karpen, whom was an acquaintance of Mr.
Gluck’s brother, Jacob, from Yeshiva. Mr. Gluck had not spoken with Mr. Karpen in more than
13 years before he was approached to see if he was interested in being the Synagogue’s partner.
(Gluck Aff. ¶ 84; Karpen Aff. ¶ 4.)
Nor is Mr. Karpen reaping untold millions on this project. In the interests of full
transparency, Mr. Karpen submits to the Court his anticipated income offset by his anticipated
costs for the project, which yields a net profit of $2 million, assuming that Mr. Karpen can sell
the residential condominium units at his estimated price per square foot. (Karpen Aff. ¶¶ 5-9.)
Obviously, interest rates and real estate market conditions in a year to eighteen months from
now, when the subject building may be completed, are unknown.
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Finally, the Petitioners utterly fail to address the substantial benefits that the Synagogue
is receiving from the Sale Transaction that has been approved by the Amended Approval, which
benefits are not solely monetary in nature and go far beyond simple dollars and cents. Pursuant
to the terms of the Sale Transaction agreed to by Mr. Karpen, the Synagogue will receive, for $3
million, fee simple title to a brand new, fully-constructed, finished, and furnished Synagogue that
will be larger than the present Synagogue, and will have more amenities, including a Mikvah, a
library, an office for the Rabbi, and a social events/catering hall that can serve as a source of
income for the Synagogue. (Karpen Aff. ¶ 15; Gluck Aff. ¶¶ 115-117.) Further, Mr. Karpen
affirms that if he was to sell the condominium unit that is reserved for the new synagogue at full
market price, the sale price would be approximately $5 million. (Karpen Aff. ¶ 6.)
The Synagogue will remain a part of the community, occupying the same corner location
as it has for the past 100 years, but in a building that is ready for the future. Not only has the
Developer promised completion and delivery of the new facility, but Mr. Karpen has personally
guaranteed it. (Karpen Aff. ¶ 16.) And, the Synagogue is contractually promised that it will
have no liability or responsibility for any development costs, mortgages, or other items, and will
also have no liability for common area charges under the condominium Offering plan.
(Vaysman Aff. ¶ 60; Gluck Aff. ¶ 87; Karpen Aff. ¶ 14.) Lastly, the Property Owner and
Developer are bearing all of the costs for providing a temporary worship space for the
Synagogue while construction is ongoing. (Karpen Aff. ¶17, Ex. 2.)
Petitioners do not, and, respectfully, cannot credibly establish that, when considered in
toto, the Sale Transaction is anything other than fair and reasonable.
E. The Sale Transaction Is in the Best Interests of the Synagogue, and

Petitioners’ True Motivation for this Proceeding Is To Protest Against the
Selection of a New Rabbi
As a final matter, the Petitioners are flat out wrong to claim that “the best interests of the
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Synagogue and its membership would be served by continuing the operations of the Synagogue
in the Shul Building.” (Petition ¶ 15.) Rather, the Board and the Membership have acted in the
best interests of the Synagogue by moving forward with the Sale Transaction to ensure that the
Synagogue has a future.
The simple reality is that the Synagogue is dying — attendance is dwindling as
congregants leave, attracted by newer synagogues offering more amenities that have proliferated
in the area over the last few years. A year ago, the Synagogue stopped holding morning services
because there are not enough worshippers for prayers. Morning Sabbath services are attended by
15 or 20 people, leaving over 100 seats in the Synagogue empty. People do not stay and
congregate for the meals and/or kiddish because of the poor state of the building. There is no
rabbi to hold discussion groups. There is simply no “life.” (Gluck Aff. ¶¶ 48-49.)
As attendance has declined, so have donations, and the financial situation of the
Synagogue is deteriorating. Presently, the Synagogue barely has enough money to pay for
monthly electricity. (Gluck Aff. ¶ 44.) Similarly, there is not enough money to pay for property
insurance and the Synagogue has not had property insurance for many years. (Id. ¶ 45.) Even
the Synagogue’s Rabbi has not been paid for a few years. (Id. ¶ 46.) Nor is there enough
money to pay for the substantial repairs that are needed to completely rehabilitate the current
Synagogue Building, which is only able to currently operate due to Members volunteering their
time to maintain the Building as best as they are able. (Gluck Aff. ¶¶ 8, 43; Vaysman Aff. ¶¶ 8,
43; See Gluck Aff., Ex. 14.)
The Board and the Membership have determined that the Synagogue’s best interests will
be served by the new Synagogue Building. The new synagogue will be open and staffed every
day of the week and all weekend, instead of the limited hours that are necessitated by the
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Synagogue’s financial issues. The new synagogue building will allow the congregation to offer
many more amenities, such as a Mikvah and a library. It will also have a catering hall that will
generate income for the Synagogue so that it will no longer have to solely rely on the donations
of Members and congregants. The Synagogue will not have the financial strain of maintaining
the old Synagogue Building. A new synagogue building will also allow the Synagogue to be
competitive with newer synagogues in the community, and will help attract new congregants to
the Synagogue.
Not only has the Board and the Membership carefully considered these issues, but the
large majority of worshippers who still pray at the Synagogue, or who used to pray at the
Synagogue but no longer do, also fully support the decision to enter the Sale Transaction and
have a new synagogue building. Forty-seven (47) such individuals from the community have
submitted affidavits in opposition to the Petition, and it is these Members and congregants who
truly represent the viewpoint of the community. (See Gluck Aff. Exs. 5, 14.)
In fact, the Board strongly believes that the true motivation behind this entire suit is that
the Petitioners object to the Board’s invitation to a new rabbi to come to the Synagogue, and that
Petitioners are trying to use this proceeding to force the Board to agree to their demands to
retract the invitation. This belief is based upon communications received directly from some of
the Petitioners themselves. The Petitioners even state in their Petition that there has been an
invitation to a new local rabbi, even though it has no relationship to the claims in the Petition.
(Petition ¶ 30.)
For example, Petitioner C. Katz has text messages to the Secretary stating that he is
opposed to a new Rabbi and not a new Synagogue Building. In one text message C. Katz writes
“I’m telling you again DROP ZLOZITZ and all the recruiting and crown heights’ as you called it
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will disappear, GUARANTEED!” In another text message, C. Katz writes “I signed on [to the
court case] but its not my initiative. My only problem is Zlozitz taking over. When the time will
be right we will have a 1 on 1 sit down and smoothen things out.” (Gluck Aff. ¶ 108; Ex. 16.)
Similarly, Petitioner Hershkowitz sent text messages to the Secretary where he states “As
I told you before. I am for a new shul. But no way do I want Zlozitz there. You are kicking out
the existing kehila. We will never forgive or forget….We will hire a new Rav. We will find one
be patient. First let’s have the new shul. One thing at a time.” (Gluck Aff. ¶ 109.) The
Synagogue is also in possession of information that the Petitioners’ legal fees are being
subsidized by outsiders to the Synagogue for their own purposes. (Gluck Aff. ¶ 110.)
The Court should consider the fact that this suit is brought by a small group of people
with ulterior motives and hidden agendas. The overwhelming majority of the community
supports the Members and the Synagogue who want to move forward with the new synagogue
building. The Court is respectfully requested to heed the principle espoused in Koch v. Estes,
146 Misc. 249, 251, 255 (Sup. Ct. N.Y. Cnty. 1933), aff’d 250 A.D. 829 (1st Dep’t 1933), aff’d
264 N.Y. 480 (1934): “In the conduct of its temporal affairs, questions of church policy may be
involved of which courts can have no adequate conception. The courts are therefore extremely
loath to interfere with the conduct of the temporal affairs of religious corporations at the instance
of a small number of dissatisfied members.”
From the entirety of the record before the Court, which now includes evidence
demonstrating that (i) the NPCL, the RCL, and the Synagogue’s Bylaws have been fully
complied with in respect of the approval of the Sale Transaction by the Membership of the
Synagogue; (ii) the physical condition of the Synagogue is unquestionably severely dilapidated
and in dire need of rehabilitation; and (iii) the Sale Transaction is financially and practically
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beneficial to the Synagogue, it cannot be said that the Amended Approval was “made in
violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or
an abuse of discretion.” Tower Apartment LLC, 2014 WL 8664303, at *2. Accordingly, the
Petition should be dismissed with prejudice.
IV. THE AUGUST 24, 2017 TEMPORARY RESTRAINING ORDER SHOULD BE

VACATED OR, ALTERNATIVELY, MODIFIED AND A BOND MUST BE
POSTED BY PETITIONERS
There are two independent reasons that TRO issued by the Court — and still in place —
should be immediately discontinued by the Court.
First, Petitioners cannot succeed on the merits of their Petition to annul the Attorney
General’s determination to approve the sale transaction. As set forth in detail above, there is no
likelihood of success on the merits of the Petition, for a variety of reasons, including that: (1) the
consummated sale of the Property is protected by NPCL § 203 (see Point I, supra); (2) the
majority of the Petitioners, the Non-Member Petitioners, lack standing to challenge the Amended
Approval or the underlying Sale Transaction (see Point II, supra); and (3) the Synagogue and the
Attorney General complied with all statutes and bylaws in approving the Sale Transaction, which
is not only fair and reasonable, but in the best interests of the Synagogue. (See Point III, supra.)
Second, the Petitioners’ application by Order to Show Cause, which led to the TRO that
is currently in place, was procedurally improper as it lacked an accompanying request to the
Court for preliminary injunctive relief. (See NYSCEF Doc. No. 2.) The CPLR is clear that a
temporary restraining order is appropriate “[i]f, on a motion for a preliminary injunction, the
plaintiff shall show that immediate and irreparable injury, loss or damages will result unless the
defendant is restrained before a hearing can be had, a temporary restraining order may be
granted….” CPLR § 6313(a) (emphasis added.) Here, the Court granted Petitioners’ TRO
despite the fact that their application was not on a motion for a preliminary injunction. Indeed,
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Petitioners’ Order to Show Cause only seeks the following relief:
that pending the hearing and determination of this Petition, the [Property Owner],
Karpen, the Synagogue, and all those acting on their behalf, are hereby
temporarily restrained and prohibited . . .
(Petitioners’ Order to Show Cause and Temporary Restraining Order, NYSCEF Doc. No. 19.)
There is no preliminary injunctive relief requested within their application. In essence,
Petitioners expect the TRO to remain in place for the entire duration of the pendency of the
proceeding until a determination on the merits of the Petition. This is impermissible.
In fact, Petitioners appear to have intentionally omitted an application for preliminary
injunctive relief in order to avoid the requirement of posting a mandatory undertaking pursuant
to CPLR Rule 6312(b), which specifically provides that:
. . . prior to the granting of a preliminary injunction, the plaintiff shall give

an undertaking in an amount to be fixed by the court, that the plaintiff, if it
is finally determined that he or she was not entitled to an injunction, will
pay to the defendant all damages and costs which may be sustained by
reason of the injunction, including . . .
if the injunction is to stay proceedings in an action to recover real

property….all damages and costs which may be, or which have been,
awarded to the defendant…including reasonable rents and profits of, and
any waste committed upon, the real property which is sought to be
recovered…
CPLR Rule 6312(b)(2).
Thus, in the event that the Court is inclined to continue the TRO, the Petitioners, should,
at a minimum, be required to immediately post a substantial bond with the Court, as the Property
Owner and Developer have already incurred significant costs for the project since title to the
Property was transferred to the Property Owner in June 2017, and they are suffering ongoing
damages with each passing day that development of the project is halted and the Property Owner
is prevented from beginning the construction process required for this project. Moreover, if for
some reason this Court finds that the Sale Transaction should, somehow, be unwound, the
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Property Owner and Developer will have no way but through the posting of a bond to recoup its
costs. CPLR § 6313(c) provides the Court with just this power, in so far as it “may, in its
discretion, require plaintiff to give an undertaking in an amount fixed by the court,” prior to
granting — or, in this case, continuing — a temporary restraining order.
Here, while Intervenor-Respondents have laid out in great detail why the entire Petition
must fail, and thus why the TRO should be vacated immediately, if this Court should determine
that the temporary restraining order be continued, it is only appropriate for Petitioners to post a
bond that covers the real and significant costs to be incurred by the Property Owner and
Developer over the course of this action. Based on the costs already incurred on the project to
date of approximately $400,000 (see Karpen Aff. ¶¶ 20-22, Ex. 3), the Intervenor-Respondents
respectfully submit that a bond of at least $500,000 is necessary.
Lastly, if the TRO is continued, the TRO should be modified so that the demolition
permitting process — which has been halted since August 24, 2017 — can resume. This will
allow the Property Owner and Developer to avoid even further delay with the project while this
proceeding is pending. When the TRO was issued in August, Justice Marsha Steinhardt included
the sentence “Processing of all relevant paperwork may continue notwithstanding the TRO.”
(NYSCEF Doc. No. 19.) This language was supposed to allow the Property Owner and
Developer to take all steps in furtherance of the permitting, but short of actual demolition of the
Synagogue Building. However, the New York City Department of Buildings has rejected all
permit applications by the Property Owner subsequent to the issuance of the TRO,
notwithstanding the current language of the Order. (Karpen Aff. ¶¶ 23-26, Ex. 4.) Accordingly,
it is respectfully requested that the TRO be modified further so that permitting can proceed.
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CONCLUSION
For all the foregoing reasons, the Intervenor-Respondents respectfully request that the
Court (i) dismiss the Petition with prejudice; (ii) vacate the TRO, or, in the alternative, modify
the TRO and require Petitioners to post a bond in an amount not less than $500,000 for the
pendency of the proceedings; and (iii) grant Intervenor-Respondents such other and further relief
as the Court deems just and equitable.
Dated: New York, New York

October 23, 2017
Sc ollen
Janice I. Goldberg
Stephen M. Medow
2 Park Avenue
New York, New York 10016
(212) 592-1400
Attorneys for Intervenor-Respondents
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FILED: KINGS COUNTY CLERK 10/23/2017 06:45 PM INDEX NO.

SUPREME COURT OF THE STATE OF NEW YORK

HERRICK, FEINSTEIN LLP

TABLE OF AUTHORITIES ......................................................................................................... iv

PRELIMINARY STATEMENT .....................................................................................................1

STATEMENT OF FACTS ..............................................................................................................4

B. The State of the Synagogue Building ........................................................................5

C. The Synagogue Decided to Sell The Property to Finance Construction of a

E. The Amended Agreement and Amended Attorney General Approval ....................10

F. Petitioners Commenced the Instant Proceeding and Sought a TRO

I. THE RELIEF SOUGHT IN THE PETITION IS BARRED BY NOT-FOR-

II. THE MAJORITY OF THE PETITIONERS LACK STANDING TO

III. THE MEMBER PETITIONERS HAVE FAILED TO DEMONSTRATE THAT

A. The Standard of Review...........................................................................................24

B. The Synagogue Gave Proper Notice of Meetings to Members ...............................25

C. The Verified Petitions to the Attorney General Were Not Misleading In

E. The Sale Transaction Is in the Best Interests of the Synagogue, and

IV. THE AUGUST 24, 2017 TEMPORARY RESTRAINING ORDER SHOULD

Academy Street Assocs. v. Spitzer,

Citizens for St. Patrick’s v. Saint Patrick’s Church of W. Troy,

Congregation Yetev Lev D’Satmar, Inc. v. Kahana,

Congregation Yetev Lev D’Satmar v. 26 Adar N.B. Corp.,

CRP/Extell Parcel I, L.P. v. Cuomo,

Kupperman v. Congregation Nusach Sfard of the Bronx,

Madison Park Owner LLC v. Schneiderman,

Ming Tung v. China Buddhist Ass’n,

Park Slope Jewish Ctr. v. Stern,

Rodyk v. Ukrainian Autocephalic Orthodox Church of St. Volodimir,

Tower Apartment LLC v. Cuomo,

Wilson v. New York City Dep’t of Hous. Pres. and Dev.,

Statutes and Rules

CPLR Rule 6312(b) .......................................................................................................................38

CPLR § 6313(a) .............................................................................................................................37

CPLR § 6313(c) .............................................................................................................................39

CPLR § 7801.......................................................................................................................... passim

CPLR § 7803.......................................................................................................................... passim

NPCL § 102(a)(9) ..........................................................................................................................19

NPCL § 203 ........................................................................................................................... passim

NPCL § 511 ...................................................................................................................................18

NPCL § 511-a ..........................................................................................................................17, 18

NPCL § 618 ...................................................................................................................................22

RCL § 2-b(1) ..................................................................................................................................19

RCL § 194 ............................................................................................................................... 25, 27

RCL § 195 ..........................................................................................................................19, 20, 27

Bailly, Practice Commentaries, McKinney’s Cons Law of N.Y., 2014

Intervenor-Respondents Chevra Anshei Lubawitz of Borough Park (the “Synagogue”),

“Developer” and, together, the “Intervenor-Respondents”), by and through their attorneys,

Herrick, Feinstein LLP, respectfully submit this memorandum of law in opposition to

by the Court on August 24, 2017 should be vacated.

true relief sought by Petitioners is to unwind a consummated real property transaction.

dismissed in its entirety, with prejudice.

No act of a corporation and no transfer of real or personal property

Amended Approval on the bases set forth in the Petition.

applicable standard of review in an Article 78 proceeding.

Finally, as discussed in Point IV herein, the Petitioners have no likelihood of success on

Synagogue’s congregants (the “Synagogue Building”).

Aff., Exs. 5, 14.)

Id. at 8, 841 N.Y.S.2d 825 at 5. (internal citations omitted).