Upon the foregoing papers, defendants Norman Smith and Joseph Morgenstern move for an order, pursuant to CPLR 3211(a)(1), (3), (5) and (7), dismissing plaintiff's complaint on the grounds that: (1) documentary evidence requires such dismissal; (2) plaintiff does not have the legal capacity to sue; (3) the applicable statute of limitations has expired; and (4) the complaint fails to state a cause of action.

Plaintiff Evelyn Weisberg, individually and on behalf of Elias Young Men Association (Elias), commenced this action against defendants on August 15, 2006 by filing the summons and complaint which asserts that defendants improperly converted the assets of Elias. According to her complaint, plaintiff was a member of Elias, a not-for-profit corporation that provided benevolent services to its members, including, inter alia, making cemetery plots available to its members. Plaintiff alleges that without her authority, [*2]permission and consent, defendants entered into an agreement (the merger) to merge the assets of Elias with Agudist Benevolent Association (Agudist), a not-for-profit corporation that provides similar services to those provided by Elias. Plaintiff asserts that Elias also agreed to sell valuable cemetery plots ^[FN1] that it owned for the undervalued sum of $70,000, and that defendants converted the proceeds of such sale for their own personal use.

In moving to dismiss plaintiff's complaint, defendants argue that plaintiff lacks standing to maintain the present action pursuant to Elias's constitution, which only permits men as members. Specifically, Article VII, § 1 of the constitution, which was adopted in 1932, provides that an applicant "must be a member of the Jewish faith and if he is married his wife must also be of the Jewish faith." In addition, Article IX, § 28 provides that women

had burial rights and rights of support only by virtue of being married to an Elias member. Moreover, defendants refer to the repeated use of the pronoun "he" throughout the constitution to demonstrate that plaintiff, as a woman, could not be an Elias member.

Defendants also contend that plaintiff's action for conversion is time-barred because it was commenced almost nine years after Elias merged with Agudist in 1998. Lastly, defendants contend that no money changed hands between Elias and Agudist, and that the court-mandated merger transpired because Agudist was a thriving not-for-profit corporation that could carry out the mission of Elias, whose membership, at the time, was less than ten.

In opposition, plaintiff contends that Article XIII, § 1 of the constitution provides that the Ladies' Auxiliary of the Elias Young Men Association (Ladies' Auxiliary) is "a branch" and a "part of" of Elias, and grants eligible women members the same funeral, grave and burial rights as Elias members. Plaintiff also argues that her fraud claim is not time-barred because she did not learn about defendants' fraud until 2006. Lastly, plaintiff argues that all evidence of defendants' liability lies exclusively in their hands ^[FN2], and that Elias's assets were in fact turned over to Agudist for consideration.

Standing to bring an action is "designed to ensure that a party seeking relief has a sufficiently cognizable stake in the outcome so as to present a court with a dispute that is capable of judicial resolution" (Security Pacific Nat. Bank v Evans, 31 AD3d 278 [2006],

citing Community Bd. 7 v Schaffer, 84 NY2d 148 [1994]). Consequently, only an aggrieved party has the requisite standing to bring an action (Siegel, NY Prac. § 136, at 233 [3d ed]). The critical standing requirement is that the individual has an injury in fact and a legal stake [*3]in the matter being adjudicated (id. at 279, citing Society of the Plastics Indus. v County of Suffolk, 77 NY2d 761 [1991]).

The court finds that Article XIII of the constitution specifically provides that the Ladies' Auxiliary is part of Elias and that members of the Ladies' Auxiliary are entitled to the same funeral, grave and burial rights and benefits as Elias members. Accordingly, the merger between Elias and Agudist, and the subsequent sale of cemetery plots, would directly affect Ladies' Auxiliary members' remaining rights and benefits under the constitution and any member would have adequate standing to maintain the present cause of action. However, the court finds that plaintiff has failed to present any evidence regarding whether she is, in fact, a Ladies' Auxiliary member, and whether she has fulfilled the membership requirements and is in "good standing" as set forth in Article XIII. Section 2 provides that Ladies' Auxiliary membership requires the following:

Wives of living members in good standing and who have been duly examined and certified by one of the Association's physicians and duly registered with the Association shall be eligible to membership in the Ladies' Auxiliary.

Section 5 further provides that Ladies' Auxiliary members' funeral, grave and burial rights continue after the death of the husband of such member provided that she is in good standing

and "makes the payments provided in Sec. 9 of this Article." Here, plaintiff fails to provide any evidence, or submit an affidavit attesting that she is a member of the Ladies' Auxiliary in good standing, and has made, inter alia, the requisite payments. Accordingly, the court finds that plaintiff has failed to demonstrate that she has a sufficiently cognizable stake in the outcome of this action.

In any event, plaintiff's action must be dismissed because it was commenced beyond the applicable statute of limitations (see CPLR 213). Plaintiff had constructive notice of her alleged fraud claim in 1998, when the court-approved merger took place. Plaintiff asserts that her action is not time-barred because "she didn't learn about the fraud until this year,"^[FN3] however, she fails to allege that defendants misled or prevented her from learning of the fraud or from bringing the action within the applicable statute of limitations (Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175, 184 [1982][finding equitable estoppel prevents the "enforcement of rights which would work a fraud or injustice upon the person against whom enforcement is sought and who, in justifiable reliance upon the opposing party's works or conduct, has been misled into acting upon the belief that such enforcement

would not be sought"]). [*4]

Accordingly, defendants' motion to dismiss plaintiff's complaint is granted and the action is dismissed.

This constitutes the decision, order and judgment of the court.

E N T E R,

J. S. C.