Upon the foregoing papers, defendants Congregation Yeshuas Yaakov, Inc. (Yeshuas Yaakov), Rachel Frankfurter (also sued herein as Rachel Friedman), and Jacob Frankfurter (also sued herein as Jacob Frank and Jacob Friedman) (collectively "the Yeshuas Yaakov defendants") move for an order: (1) pursuant to CPLR 3211 (a) (1), (3), (5), (7) or CPLR 3211 (a) (8), dismissing plaintiffs' amended complaint, (2) dismissing, vacating and discharging the Notice of Pendency, and (3) imposing sanctions and legal fees. Defendant Ahmadiyya Movement in Islam (Movement in Islam) moves for an order, pursuant to CPLR 2221 (e), granting it leave to renew its motion to dismiss the amended complaint and, upon such renewal, granting its motion to dismiss pursuant to CPLR 3211 (a) (1), (3). Plaintiffs move for an order setting aside the 1994 sale of 1477 West 8th Street in Brooklyn, New York, from plaintiff Congregation Beth Hamedrash Hagodel of Mapleton Park Jewish Center, Inc. (Mapleton Park) to defendant Yeshiva Hamerkaz.

This case arises from plaintiffs' allegations that the 1994 sale of property located at 1477 West 8th Street in Brooklyn ("the premises") violated various statutory requirements for that sale, including Religious Corporations Law § 207 and Not-For-Profit Corporation Law (N-PCL) §§ 509, 510 and 511, as well as the constitution and by-laws of the seller, Mapleton Park.

Mapleton Park is a religious corporation of an orthodox Jewish congregation. [*2]According to a deed recorded on or about June 25, 1971, Mapleton Park purchased the premises in question from the Jewish Center of Mapleton Park and Sfardishe Shul and Talmud Torah of Rabbi Isaac Adler, Inc. on June 22, 1971. Mapleton Park used the premises for worship. By an agreement dated March 29, 1990, Mapleton Park leased the premises to Yeshiva Hamerkaz for two years to be used for educational, communal and related services, for an annual sum of $10,000 as well as $10,000 upon signing of the agreement. The agreement provided that all of the payments by Yeshiva Hamerkaz would be credited towards Mapleton Park's mortgage on the premises and that at the end of the two year period, Mapleton Park would transfer title and ownership of the premises to Yeshiva Hamerkaz.

Pursuant to the above agreement, Mapleton Park petitioned the Supreme Court, Kings County, on or about April 2, 1993, for permission to convey the premises to Yeshiva Hamerkaz. In support of its petition, Mapleton Park submitted several documents, including: (1) a schedule of assets; (2) an affidavit of Rafael Loeb, as president of Mapleton Park, listing the names and addresses of eleven Mapleton Park members and officers, and stating that the sale was approved unanimously by those members at a meeting held on March 30, 1993, and further stating that a quorum consists of ten members, known as a minyon under Jewish law; and (3) the minutes of an April 2, 1993 meeting of the shareholders of Mapleton Park stating that a quorum consisting of eleven listed members was present, in person or by proxy, and approved of the sale by two-thirds of the votes cast.

By an order dated January 6, 1994, the court permitted the sale of the premises as set forth in the March 29, 1990 agreement between Mapleton Park and Yeshiva Hamerkaz, pursuant to Religious Corporations Law § 12 (9) ("the 1994 order").^[FN1] The order is signed by the office of the New York State Attorney General (the Attorney General). Mapleton Park then executed a deed, on or about February 2, 1994, conveying [*3]the property to Yeshiva Hamerkaz ("the 1994 sale"). That deed was recorded on or about February 9, 1994.

Four years later, by a contract dated February 26, 1998, Yeshiva Hamerkaz agreed to sell the premises to defendant Yeshuas Yaakov. By an order dated May 11, 1998, the court authorized that sale for a sum of $310,000. The order is signed by the Attorney General, and states that the Attorney General has no objection to the granting of judicial approval and waives its statutory notice. On or about June 8, 1998, Yeshiva Hamerkaz executed a deed conveying the premises to Yeshuas Yaakov, which was recorded on or about March 31, 1999.

Five years later, on or about February 19, 2003, Yeshuas Yaakov petitioned the court for authorization to sell the premises to defendant Movement in Islam. By an order dated April 14, 2003 and signed by the Attorney General, the court authorized that sale, stating that according to the petition and exhibits submitted to the court, it appeared that "it would be in the interest of petitioner [Yeshuas Yaakov] to sell the premises . . . for the amount of Eight Hundred and Fifty Thousand ($850,000) Dollars." On or about May 28, 2003, Yeshuas Yaakov executed a deed conveying the premises to Movement to Islam, which was recorded on or about December 4, 2003.

On or about January 18, 2005, plaintiffs commenced this action by filing a summons and complaint. A Notice of Pendency for the premises was filed on or about January 21, 2005. Plaintiffs filed an amended complaint on or about December 15, 2005 (the complaint).^[FN2] In their complaint, plaintiffs assert that the 1994 sale from Mapleton Park to Yeshiva Hamerkaz "was issued without the required approval of a Justice of the Supreme Court of the County of Kings or Notice to the Attorney General of the State of New York." Plaintiffs also allege that defendants Jacob Friedman, Rachel Friedman, Jacob Frankfurter and Eliezer Perr "concealed the transfer of title" from Yeshiva Hamerkaz to Yeshuas Yaakov from the members of Mapleton Park "while continuing to allow plaintiff Members and Congregants to pray in the subject premises and while continuing the indicia of plaintiff's ownership and Mapleton Park Jewish Center' signage to remain on the premises." In addition, plaintiffs allege that the 1994 sale "was issued in violation of the Constitution and By Laws of and without a valid corporate resolution of [Mapleton Park] and done so without the required approval and/or knowledge of the Officers, Directors, Trustees and/or Members of [Mapleton Park] other than the personal knowledge of defendant Eliezer Perr."^[FN3] In their complaint, plaintiffs seek to bar defendants from all claims to possession of the premises, and to vest Mapleton Park with [*4]title to and possession of the premises.

On or about March 24, 2006, defendant Movement in Islam moved for an order, pursuant to CPLR 3211, dismissing the complaint on various grounds, including that the sale complied with the Not-For-Profit and Religious Corporations laws. By an order dated August 15, 2006, this court denied that motion without prejudice to renew upon submission of a certified copy of the order "entered on dated January 10, 2004 and authorizing the sale from Congregation Beth Hamedrash Hagodel of Mapleton Park to Yeshiva Hamerkaz, if any exist."

On or about August 17, 2006, the Yeshuas Yaakov defendants brought the instant motion to dismiss and, on or about August 24, 2006, Movement in Islam brought the instant motion to renew. On or about October 13, 2006, plaintiffs brought the instant motion to set aside the 1994 sale.

Defendants move to dismiss plaintiffs' complaint on several grounds, including, among other things, statute of limitations, lack of standing, and failure to serve all defendants. They also argue that the sale in question, and the two subsequent conveyances, were approved and validated by court orders and, as such, cannot now be set aside by plaintiffs (see Congregation Yetev Lev D'Satmar, Inc. v 26 Adar N.B. Corp., 219 AD2d 186 [1996], lv denied 88 NY2d 808 [1996]) (Congregation Yetev).

Plaintiffs argue that there are questions of fact regarding the 1994 sale, and seek a declaratory judgment setting aside the sale as void, alleging that the sale was improper on several grounds.

Plaintiffs argue that the statutory requirements for a valid transfer of the property were not satisfied in the 1994 sale. First, plaintiffs submit several affidavits of individuals asserting that they were members of the Mapleton Park congregation in 1993 and that they were not given notice of the March 1993 meeting. Accordingly, plaintiffs assert that the 1993 petition was never presented to the members of Mapleton Park, nor were the members given the opportunity to vote on the sale as required (see Religious Corporations Law §§ 12, 207; N-PCL 509, 511; Kroth v Congregation Kadisha, Sons of Israel, 105 Misc 2d 904, 917 [1980]). Plaintiffs further contend that the Mapleton Park membership vote "fails to identify a true Membership List of Mapleton" and fails to include numerous voting eligible members (see Religious Corporations Law § 207). Plaintiffs also assert that the Mapleton Park congregants were unaware of the transfers in title and "continued to possess and use the Property and to use it as if the purported transfers of title had not occurred." In their supporting memorandum of law, plaintiffs further claim that Rafael Loeb, who represented Mapleton Park in the 1994 sale, "was in fact an associate of the defendants" Yeshiva Hamerkaz and Eliezer Perr, the purchaser of the property in the 1994 sale. In addition, plaintiffs maintain that Rafael Loeb was not in fact the president of Mapleton Park, although they submit no affidavit from a congregant supporting that assertion. Nonetheless, plaintiffs argue that "[i]t was legally impossible therefore for RAPHAEL LOEB in the guise of MAPLETON PARK president to convey the property." Finally, plaintiffs contend that the documentary evidence fails to establish that the 1994 sale was reviewed by the Attorney General as required by N-PCL 511 (b).

The facts presented in this case are closely analogous to those in Congregation Yetev. In Congregation Yetev, the Appellate Division, Second Department considered the following question:

"[W]hether a religious corporation may set aside several court-authorized transfers and mortgages of religious property due to purported deviations from statutory requirements and from the religious corporation's proper internal procedures when the claimed deviations were not disclosed until many years after the various transactions had been completed and when the invalidation of those transactions would seriously prejudice subsequent bona fide purchasers and mortgagees" (Congregation Yetev, 219 AD2d at 187).

In Congregation Yetev, the plaintiffs attempted to set aside a 12-year-old court-approved [*7]sale of property, based upon arguments very similar to those urged by the plaintiffs herein. The Congregation Yetev plaintiffs argued that there had been "numerous false and fraudulent representations" made to the court to secure its approval (id. at 189). Plaintiffs alleged, among other things, that the petition for approval of the sale filed with the court falsely represented that the initial sale of the property had been authorized by the seller's Board of Trustees and that the corporation had only three trustees, when it had in fact six (id.). Plaintiffs also alleged that no proposal to sell the property had ever been presented to the membership of the corporation, despite meeting minutes to the contrary (id.).

Despite plaintiffs' contentions of improprieties, the court held that plaintiffs were barred from challenging the sale by N-PCL 203 (a), which provides, in pertinent part, 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. . . ."

Moreover, the court noted that "were the plaintiffs in this case 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" (Congregation Yetev, 219 AD2d at 191). Accordingly, the court stated that the plaintiffs could not "now, many years after these transactions were consummated, render them void by submitting self-serving affidavits (in defiance of several 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 of trustees and congregants" (id. at 190). Thus, the Appellate Division reversed the trial court's grant of summary judgment to the plaintiffs, and dismissed the plaintiffs' complaint.

The arguments raised by plaintiffs herein, i.e., 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 by-laws, are strikingly similar to the arguments raised in Congregation Yetev. Similarly, as in Congregation Yetev, the 1994 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.^[FN7] The documents submitted in support of that sale indicate that the sale was duly [*8]authorized by a quorum of the members and officers of Mapleton Park in accordance with Religious Corporations Law §§ 12, 207 and N-PCL 509, 511. Moreover, as in Congregation Yetev, there have been two subsequent court-authorized and facially valid transfers of the premises since the 1994 sale.

Accordingly, as was held in Congregation Yetev, plaintiffs here "cannot invalidate an ultra vires, but otherwise lawful, transfer of property" as that transfer was duly authorized by the court (id. at 189). Instead, as the court noted in Congregation Yetev, plaintiffs' remedy is to sue the allegedly misbehaving corporate officers of Mapleton Park. As was stated in Congregation Yetev:

"Nothing can be more indispensable to a well ordered society and a smoothly functioning civilization than the integrity of its records involving property. If deeds could be invalidated and property rights overturned with the ease argued for here by the [plaintiff], the resulting chaos in organized society would surpass that which follows an earthquake or any other catastrophe which destroys the archives of the people" (id. at 191 [internal quotation marks and citation omitted]).

Based upon the same considerations presented in Congregation Yetev, plaintiffs' complaint is dismissed. However, the court finds that defendants have not established that plaintiffs' conduct was entirely frivolous or undertaken in bad faith. Therefore, the court in its discretion declines to award costs or sanctions (see e.g. Broich v Nabisco, Inc., 2 AD3d 474, 475 [2003]; W.J. Nolan & Co., Inc. v Daly, 170 AD2d 320, 321 [1991]).

Accordingly, Yeshuas Yaakov defendants' motion is granted to the extent that plaintiffs' complaint is dismissed and the Notice of Pendency is vacated. The motion is otherwise denied. Defendant Movement in Islam's motion for leave to renew its motion to dismiss the amended complaint is granted and, upon such renewal, its motion to dismiss plaintiffs' complaint is granted. Plaintiffs' motion is denied in its entirety.

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

E N T E R,

J. S. C.