Defendants have moved for an order pursuant to CPLR 2221 for leave to renew plaintiffs' prior motion for summary judgment, and on renewal, for denial of plaintiffs' motion for summary judgment, on the grounds that (1) defendants are now in possession of additional documentary evidence and new expert testimony, (2) said additional evidence was in existence at the time the prior motion was brought, (3) defendants were unable to discover and/or produce the additional evidence for the prior motion pursuant to their discovery demands because plaintiffs' prior summary judgment stayed all discovery, and (4) defendants' request to adjourn plaintiffs' prior summary judgment motion in order to complete discovery was denied.

The court issued a Decision and Order dated September 13, 2006, which granted plaintiffs summary judgment in all respects, except denied plaintiffs' request to dissolve the religious corporation of defendant All Saints Protestant Episcopal Church, Inc. According to defendants, the Decision and Order was entered on September 20, 2006, and defendants subsequently filed a Notice of Appeal to the Appellate Division, Fourth Department, on October [*2]13, 2006.

In support of their motion to renew, defendants submit an affirmation of Eugene Van Voorhis, Esq., an affidavit with exhibits 1-13 of Mary A. McReynolds, Esq., an attorney in private practice in Washington, D.C. who is also the chancellor (i.e., general counsel) of All Saints' Church in Chevy Chase, Maryland, and an affidavit of R. Wickes Stephens, II, Esq., who is chancellor of the Anglican Communion Network in Pennsylvania.

In opposition, plaintiffs submit an affirmation of Thomas G. Smith, Esq. with exhibits A-D, an affidavit of Rt. Rev. Jack M. McKelvey, and a memorandum of law.

Defendants submit an Affirmation of Eugene Van Voorhis, Esq., and a memorandum of law for their reply papers.

Analysis

CPLR 2221(e) provides in part that a motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination" (CPLR 2221[e][2]), and "shall contain reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221[e][3]).

The Fourth Department has held that in order to be successful on a motion to renew, the defendants must establish that the purported new information was not in existence or was not available at the time of the plaintiffs' initial motion, and must also set forth a "reasonable justification" for failing to present such facts or information on the prior motion. CPLR 2221(e)(2) and (3); see Patel v. Exxon Corp., 11 AD3d 916, 917 (4th Dept. 2004); Perez v. Davis, 8 AD3d 1086, 1087 (4th Dept. 2004); see also People ex rel. Seals v. New York State Dept. of Correctional Services, 822 NYS2d 351, 352-353 (4th Dept. 2006); Robinson ex rel. Estate of Robinson v. Consolidated Rail Corp., 8 AD3d 1080 (4th Dept. 2004).

Moreover, a motion to renew is not available when it is predicated on legal theories not advanced in the prior motion. Brookview Homeowners' Ass'n, Inc. v. Mark IV Const. Co., Inc. 178 AD2d 967, 967 (4th Dept. 1991). "Nor is the recruitment of a new expert a legitimate basis for renewal; renewal is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation.'" Welch Foods, Inc. v. Wilson, 247 AD2d 830, 831 (4th Dept. 1998), quoting Mundo v. SMS Hasenclever Maschinenfabrik, 224 AD2d 343, 344 (1st Dept. 1996), lv. denied in part and dismissed in part 88 NY2d 1014 (1996) (internal quotations omitted).

The new evidence that defendants seek to introduce, as set forth in the Stephens and McReynolds affidavits, purports to raise an issue of fact regarding the validity and/or the adoption of the Dennis Canon in 1979. In addition, defendants argue that the traditions of the Episcopal Church regarding the holding of real property "may not be hierarchical." Van Voorhis Aff., ¶ 16. Defendants admit that the "considerable documentary evidence" attached to the McReynolds affidavit in support of their motion to renew, which consists of official records and other documents of the National Protestant Episcopal Church, were public records, and were in existence at the time the prior motion was made. Van Voorhis Aff., ¶¶ 13, 17. But, defendants argue, "as a consequence of plaintiffs' failure to comply with defendants' discovery requests in a timely manner, defendants were effectively unable to produce this new evidence in opposition to the Prior Motion." Aff. of Van Voorhis, ¶ 14.

Defendants' motion to renew must be denied because they have wholly failed to comply with the requirements of CPLR 2221(e). Defendants have failed to establish that this purported [*3]new information was not in existence or was not available at the time of plaintiffs' prior motion for summary judgment (indeed, they actually admit that it was in existence), and have further failed to set forth a "reasonable justification for the failure to present such facts on the prior motion." Patel v. Exxon Corp., 11 AD3d 916, 917 (4th Dept. 2004) (citations omitted).

Defendants assert that "the difficulty in finding experts in this field and in unearthing and interpreting the documentation involved is a reasonable justification" for failing to present this evidence on the prior motion." Reply Memo of Law, 2; Reply Affirmation of Eugene Van Voorhis, Esq.,¶ 14. Moreover, defendants' maintain that because the summary judgment motion stayed their discovery requests, they were unable to produce this newly proffered evidence. Specifically, defendants assert that the Notice to Take Deposition of the Rt. Rev. Jack M. McKelvey and the Demand for Documents served on plaintiffs would have enabled them to discover this additional evidence. However, as the plaintiffs point out, the Demand for Documents never requested any of the National Church's records which make up this purported additional evidence. Nor did the defendants' demand ever request documents from the National Episcopal Church, but instead, it only requested local documents from the Rochester Diocese relating to the relationship with All Saints parish. See Van Voorhis Aff., Exhibit A. Indeed, the National Church has never been named as a party to either action.

This proffered explanation does not constitute a reasonable justification, and because defendants admit that the evidence was in existence at the time the prior motion was made, defendants have failed to comply with the prerequisites of CPLR 2221(e) and thus, defendants' motion to renew must be denied.

A review of the cases cited by defendants in their Reply Memorandum of Law does not change this result. At page 5, defendants assert that "[t]he cases in New York generally hold that where the granting of a motion for renewal would serve the interest justice or provide an opportunity to decide a matter on its merits rather than through legal technicalities, it is wrong to deny such a motion." In addition, defendants assert that the courts can be flexible with the requirement that a motion to renew be based on newly-discovered facts, and that a court, in its discretion, may grant a renewal upon facts known to the moving party at the time of the original motion. See e.g., Cronwell Equities v. International Links Development Corp., 255 AD2d 354 (2d Dept. 1998). The court notes that none of the cases cited by defendants for the above propositions are Fourth Department cases. This is important because it is clear from the case law in the Fourth Department that "[w]here CPLR 2221(e) applies, compliance with that section is required." People ex rel. Seals v. New York State Dept. of Correctional Services, 32 AD3d 1262 (4th Dept. 2006), citing Robinson v. Consolidated Rail Corp., 8 AD3d 1080 (4th Dept. 2004); Patel v. Exxon Corp., 11 AD3d 916, 917 (4th Dept. 2004); Perez v. Davis, 8 AD3d 1086, 1087 (4th Dept. 2004); Giardina v. Parkview Ct. Homeowners' Assn., 284 AD2d 953 (4th Dept. 2001), lv. dismissed 97 NY2d 700. Moreover, the cases cited by defendants are not motions to renew a summary judgment motion, but instead deal with the denial of discovery motions, default judgments, and the like.

At page 6 of defendants' Reply Memorandum of Law, defendants cite three cases for the proposition that "courts are particularly conscious of granting motions to renew when the evidence to be adduced may give rise to changing a prior order for summary judgment by reason of providing evidence as to a question of fact." First of all, only one of the three cases cited for this proposition is a summary judgment motion [Karlin v. Bridges, 172 AD2d 644 (2d Dept. [*4]1991)]; the other two are for a motion to compel [Saferstein v. Stark, 171 AD2d 856 (2d Dept. 1991)] and for contempt (Pinto v. Pinto, 120 AD2d 337 (1st. Dept. 1986)].

The Karlin case was an action to enjoin the defendants from parking on a common right-of-way and from walking on a walkway on plaintiff's property. In two separate orders, the trial court granted plaintiff's motion for summary judgment to enjoin defendants from parking and walking on the property. The Second Department deemed defendant's motion to reargue as one for renewal because it was supported by new evidence that was known to defendants at the time of the original motion. As explained previously, the Fourth Department strictly follows the prerequisites of CPLR 2221(e), while the Second Department in Karlin was more flexible in granting renewal based on facts known to the moving party at the time of the original motion. As such, defendants' reliance on Karlin is misplaced.

Nor can defendants advance their new legal theories on this motion to renew by way of new expert testimony and evidence, especially since defendants have previously admitted that the Dennis Canons exist and were adopted in 1979, and that the National Protestant Episcopal Church is hierarchical in nature. See Decision and Order, September 13, 2006, 5, 14-17. Contrary to defendants' argument on this motion to renew, there is no way to construe defendants' prior argument in opposition to plaintiffs' previous summary judgment motion as one that questions the adoption and/or validity of the Dennis Canon by the National Church. Moreover, defendants cannot escape the assertion made at ¶ 7 in the Sur-Reply Affidavit of The Rev. David Harnish, dated June 2, 2006, wherein defendant Harnish states: "The Beers discussion of the circumstances of [the] adoption of the so-called Dennis' canon may be of historical interest, but sheds no light on the real reasons for its adoption nor its relevance to this case."

Finally, defendants' questioning on this motion to renew concerning the existence of a hierarchical church for adjudicating property disputes is not only inconsistent with this court's prior decision, but also advances a new argument. See Stephens Affidavit. This court decided the prior motion for summary judgment based on the neutral principles of law analysis, which considered, inter alia, the hierarchical relationship between the local parish, the diocese, and the National Episcopal Church.^[FN1] However, the hierarchical nature of the National Episcopal Church was not the sole factor considered in this court's prior decision.

Even if this court were to find that the defendants satisfied all the prerequisites of CPLR 2221(e) and were to grant defendants' motion to renew, the court still could not entertain defendants' new argument questioning the validity of the enactment of the Dennis Canon by the National Church. It is well settled that "civil courts should not intervene in ecclesiastical matters such as church governance even though rights to church property may be affected incidentally." Upstate New York Synod of Evangelical Lutheran Church in America v. Christ Evangelical Lutheran Church of Buffalo, 185 AD2d 693, 694 (4th Dept. 1992). "Religious freedom encompasses the power [of religious bodies] to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine." Id. (internal quotations omitted) (modifications in original). While a court can decide church property [*5]disputes under neutral principles of law, which this court did on plaintiffs' prior motion for summary judgment, courts are prohibited from "resolving church property disputes on the basis of religious doctrine and practice." Trustees of Diocese of Albany v. Trinity Episcopal Church of Gloversville, 250 AD2d 282, 285 (3d Dept. 1999), quoting Jones v. Wolf, 443 U.S. 595, 602 (1979). As such, courts should "take special care not to become involved in internal religious disputes or implicate secular interests in matters of purely ecclesiastical or religious concerns such as church governance or polity." Trustees of Diocese of Albany, 250 AD2d at 286.

Here, in the McReynolds affidavit, defendants on their motion to renew are asking the court to consider whether the National Protestant Episcopal Church properly and legitimately enacted the Dennis Canon in 1979. This the court cannot do as this is purely an internal religious dispute within the National Church, an issue which was never raised until this instant motion to renew.

Based on all of the foregoing, defendants' motion to renew is denied.

SO ORDERED.

______________________

Kenneth R. Fisher

Justice Supreme Court

DATED:February 14, 2007

Rochester, New York