The plaintiffs, Vincent E. Natoli ("Natoli") and The Old Roman Catholic Church, Cathedral Church of St. Lucy's ("plaintiffs") move for an order that (a) pursuant to CPLR [*2]§ 3211(b) and CPLR § 3212 grants their motion for summary judgment and dismisses the Complaint in its entirety; (b) pursuant to CPLR §§ 3126, 3126(2), and 3126(3) strikes the defendants' Answer; (c) strikes the Note of Issue; and (d) grants such other and further relief that the Court deems just and proper.

This action arises out of a dispute within the congregants of the Cathedral Church of St. Lucy's ("the Church") located at 802 Kent Avenue in Brooklyn, NY. The parties disagree over who are the rightful custodians and controllers of the Church—a question that can likely be answered by determining who the rightful pastor of the Church is. The plaintiffs contend that Vincent E. Natoli is the rightful pastor and the defendants contend that Louis Elias Milazzo ("Milazzo") is the rightful pastor. The action was commenced on November 19, 2004, and on October 3, 2005 the court denied the plaintiff's motion to temporarily restrain defendants from entering or interfering with the plaintiffs' use of the Church. The court also denied the defendants' motion for dismissal or summary judgement. On September 15, 2008 the court ordered the defendants to comply with the plaintiffs' discovery demands and appointed a receiver for the Church. That order was ultimately reversed, and the matter was disposed on March 26, 2009 as a result of the plaintiffs' failure to appear at a compliance conference. A subsequent motion to restore was denied on July 9, 2009, and after reargument, that denial was vacated and the matter was restored on March 25, 2010.

A compliance conference order was issued on March 4, 2011 requiring the plaintiffs and Milazzo to submit to deposition and requiring the plaintiffs to file a note of issue by August 15, 2011. The deadline for the plaintiffs to conduct deposition was extended twice by so-ordered stipulations amending the conference compliance order, and on July 13, 2011, the court amended the prior so-ordered stipulation to permit the plaintiffs to conduct deposition by August 15, 2011 and file the note of issue by September 8, 2011. The plaintiffs moved for summary judgement and the defendants counter-moved for dismissal, both of which were denied on December 9, 2011. Because the plaintiffs did not file a note of issue by September 8, 2011, the case was marked off the calendar on December 16, 2011. Plaintiffs again moved to restore the matter to the active calendar, and for orders directing defendants Milazzo and Albert Berube ("Berube") to submit to deposition, setting a new note of issue deadline, and staying proceedings until the motion to restore was decided and entered.

On July 1, 2013 the motion to restore was granted and the parties were permitted to conduct discovery and ordered to appear for a compliance conference on August 7, 2013. At the compliance conference the plaintiffs were ordered to file a note of issue by October 31, 2013 and, over the defendants' objection, it was ordered that Milazzo and Berube be produced for deposition by September 30, 2013. The defendants then moved to renew and/or reargue portions of the July 1, 2013 order. More specifically, the defendants argued that the compliance conference order was inconsistent with the July 1, 2013 order in that the July 1st order denied plaintiffs' request to compel disclosure and directed Milazzo and Berube to submit to deposition while permitting the parties to conduct discovery, and the compliance conference order directed Milazzo and Berube to be produced for deposition. The defendants contend that the July 1, 2013 denial of plaintiffs request to compel disclosure and direct Milazzo and Berube to submit to deposition [*3]precluded the compliance conference order compelling the defendants to submit to deposition.

The defendants motion to renew and/or reargue was denied in its entirety on January 30, 2014, leaving the compliance conference order as the controlling order on the parties. The plaintiffs filed a note of issue on October 31, 2013 but as of this writing, the defendants Milazzo and Berube have not been deposed, and the plaintiffs now move for an order (a) granting its motion for summary judgment and dismissing the Complaint in its entirety; (b) striking the defendants' Answer; (c) striking the Note of Issue; and (d) for such other and further relief that the Court deems just and proper.

The plaintiffs contend, In their motion for summary judgment, that they have provided sufficient evidence to eliminate issues of material fact. The evidence that the plaintiffs cite includes affidavits sworn to by Natoli and Denise Rios ("Rios"), who plaintiffs contend are the Church's rightful and undisputed trustees, and therefore, in accordance with New York case law and Religious Corporations Law, are the rightful custodians and controllers of the Church. The plaintiffs also present an affidavit sworn to by Edward J. Ford ("Ford"), an expert in church history and canon law and a priest of the Old Roman Catholic Church who supports the plaintiffs' claim to control of the Church and refutes that of the defendants. Plaintiffs provide documentation evidencing the timeline of Natoli's association and position with the Church and argue that Milazzo's affiliation with the Church is fraudulent and came about when, on June 24, 2004, Peter Vincent Crisci ("Crisci"), the former pastor of the Church, under duress, in poor health, and not before an authorized notary public, appointed Milazzo as pastor of the Church nearly a year after a court order dissolved the Church as a religious corporation.

The plaintiffs also aver, in an effort to cast doubt on the defendants' intentions for the Church, that Milazzo has a predatory mortgage loan against the Church which was never approved by a court, for $19,298.00, payable at 19.5% per annum. The defendants counter with three expert affidavits sworn to by John J. Humphries ("Humphries"), Francis P. Facione ("Facione"), and Theodore J. Rematt ("Rematt") all of whom support the defendants claim to the Church. The defendants contend that it is Natoli, not Milazzo, who is an interloper at the Church, and that Natoli is trying to use the Church for personal financial gain. They argue that the affidavits sworn to by Natoli and Rios are self-serving and filled with hearsay, and therefore should not be given any weight by this Court. In the alternative, if the affidavits of Natoli and Rios are given consideration, the defendants assert that there are factual issues to resolve regarding events that both sides agree took place. For instance, both parties agree that Crisci signed a document appointing Milazzo as Pastor of the Church in 2004, but disagree as to the validity of those documents.

In support of their motion to strike the defendants' Answer, the plaintiffs contend that the defendants have willfully and contumaciously failed to comply with a court order, namely the compliance conference order of August 7, 2013, by refusing to submit Milazzo and Berube for depositions. The plaintiffs offer as exhibits letters they say were sent to the defendants in an effort to schedule depositions, and were either ignored or responded to in bad faith, without intent of participating in depositions. The plaintiffs contend that the defendants, in bad faith, filed a motion to renew and/or reargue the July 1, 2013 order in [*4]an attempt to undermine the compliance conference order, ignoring the proper procedure for appealing the compliance conference order. The defendants deny any bad faith and proffer that they needed clarification of the July 1, 2013 order. The defendants contend that because the July order denied the request to compel depositions, it was at odds with the compliance conference order that compelled Milazzo and Berube to submit to depositions. The defendants assert that they filed their motion to renew and/or reargue in an attempt to gain clarity as to what was required of them in terms of discovery. Furthermore, they point out that this matter has been ongoing for ten years, has been marked off of the active calendar twice as a result of plaintiffs actions, and that plaintiffs have had ample opportunities to conduct depositions but have failed to take the necessary actions to do so, including failing to schedule the depositions with Diamond Court Reporting on the dates that they had set forth to the defendants. The defendants also point to the plaintiffs pending summary judgment motion and argue that there is no reason to conduct depositions while the summary judgment motion is pending, because if that motion is granted, the depositions will have been for naught.

The plaintiffs' final motion, unopposed by the defendants, is to strike the note of issue.

"The proponent of a summary judgment motion must make a prima facie showing of entitlement as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (see Midfirst Bank v. Mable Agho, —- N.Y.S.2d —-, 2014 NY Slip Op. 05778 [2nd Dept 2014]; see also Winegrad v. New York Univ. Med. Ctr., 64 N.Y.S.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642; Zuckerman v. City of New York, 49 NY2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718; Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404, 165 N.Y.S.2d 498, 144 N.E.2d 387). "The evidence submitted in support of summary judgment must be in a form admissible at trial" (id, at 2; also see Friends of Animals v. Associated Mfrs., 46 NY2d 1065, 1067-1068, 416 N.Y.S.2d 790, 390 N.E.2d 298; Zuckerman v. City of New York, 49 NY2d at 562, 427 N.Y.S.2d 595, 404 N.E.2d 718. "The party opposing the motion must demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure so to do, and a submission of a hearsay affirmation by counsel alone does not satisfy this requirement." (see Zuckerman, id, at 560).

Here the court finds numerous issues of fact that are in dispute. Both parties have provided affidavits from multiple parties that offer conflicting accounts of who is the rightful controller of the Church and of the events that transpired leading up to the initiation of this lawsuit. There are multiple conflicting affidavits from experts in the structure of the Old Roman Catholic Church that separately claim Natoli and Milazzo as the rightful controllers of the Church. The defendants submit affidavits from Humphries, Facione, and Rematt, all claiming expert knowledge of the structure of the Old Roman Church, and that Milazzo is the rightful Pastor of the Church. The plaintiffs submit affidavits from Ford, a purported expert in church and canon law, as well as Rios, a possible trustee of the church, both claiming the Natoli is the rightful Pastor. Both Natoli and Milazzo's names appear on a variety of different documentation related to the Church, yet both affirm in their affidavit's that the other has no claim whatsoever. Further, there are issues of fact to be resolved regarding accusations by both the defendants and the plaintiffs accusing the other of [*5]impropriety in obtaining church-related documents, and accusations that the defendants used intimidation to take control of the Church.

The court finds that it would be inappropriate to determine these numerous and complicated issues on a motion for summary judgment without producing witnesses that are better suited to shine light on what transpired in this long-litigated matter, dating back over a decade, with relevant questions of fact that date back even further than that. The denial of the defendants motion to renew and reargue makes the conference compliance order the current controlling ruling. It directs the parties to conduct discovery, including EBT's, and proceed to trial. The court finds that, based on the moving papers alone, it cannot satisfactorily delineate who the rightful Pastor of the Church is and it would be imprudent to do so in a case where the future of the Church and its constituents will be altered by a ruling one way or another. Instead, the court finds that through deposition and trial testimony the events that led to the conflict at issue will be made clear and both parties will be given the proper opportunity to state their claim to control of the Church.

The plaintiffs have withdrawn their motion to hold defendants in contempt for failure to submit to EBT's but the court expects that depositions will be conducted within the three month time frame set forth so as to not unnecessarily delay the progression of the case. The plaintiffs' motion for summary judgment and to dismisses the Complaint is denied in its entirety, as is their motion to strike the defendants' Answer. The motion to strike the Note of Issue is granted and JHO Schneier's order is to be complied with within three months of the date of entry of this order so that the matter may proceed to trial.

This constitutes the decision and order of this court.

yvonne lewis, JSC