West-Park Presbyt. Church of New York City v. Center at W. Park, Inc.

2024 NY Slip Op 30540(U)

• Court: New York Supreme Court, New York County
• Decided: February 20, 2024
• Status: Unpublished

Opinion

West-Park Presbyt. Church of New York City v Center at W. Park, Inc. 2024 NY Slip Op 30540(U) February 20, 2024 Supreme Court, New York County Docket Number: Index No. 652924/2022 Judge: Nancy M. Bannon Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 652924/2022 NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 02/20/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. NANCY M. BANNON PART 42 Justice ----------------------------------------------------------------- ----------------X INDEX NO. 652924/2022 WEST-PARK PRESBYTERIAN CHURCH OF NEW YORK CITY d/b/a WEST PARK PRESBYTERIAN CHURCH, MOTION DATE 6-27-23

Plaintiff, MOTION SEQ. NO. 001

-v-

DECISION + ORDER ON THE CENTER AT WEST PARK, INC. d/b/a THE CENTER AT WEST PARK and XYZ CORP., MOTION

Defendant. ------------------------------------------------------------------- --------------X

The following e-filed documents, listed by NYSCEF document number (Motion 001) 18, 19, 20, 21, 22, 23,24,25,26,27,28,29,30,31, 32, 33, 34,35,36, 37, 38,39,40,41,42,43,44,45,46,48,50,51,52, 53,54,55,56,57,58,59,60,61, 62, 63, 64,65,66, 67, 68,69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106,107,108,109,110,111,113,114,115,116,121,122,123 were read on this motion to/for SUMMARY JUDGMENT

I. INTRODUCTION

In this declaratory judgment action, the plaintiff landlord, West-Park Presbyterian Church

of New York City d/b/ a West Park Presbyterian Church (the "plaintiff' or "Church"), moves: ( 1)

pursuant to CPLR 3212, for summary judgment on its two causes of action for (i) a declaration

that its lease agreement with the defendant tenant, The Center at West Park, Inc. d/b/a The

Center at West Park (the "defendant" or "Center"), is void because the lease violates Section 12

of New York's Religious Corporations Law ("RCL"), and (ii) a judgment of possession and

warrant of eviction allowing the plaintiff to eject the defendant and any subtenants from the

subject premises at 165 West 86th Street in Manhattan (the "Premises"); (2) to dismiss pursuant

to, inter alia, CPLR 321 l(a)(7), the defendant's three counterclaims for (i) fraud in the

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inducement, (ii) breach of contract, and (iii) declaratory judgment; and (3) to dismiss, pursuant to

CPLR 3211 (b ), the defendant's ten affirmative defenses. The defendant opposes the motion and

cross-moves, inter alia, CPLR 3025(b ), for leave to amend the Answer to add another

counterclaim. The plaintiff opposes the cross-motion. For the reasons that follow, the plaintiffs

motion is granted and the defendant's motion is denied.

II. BACKGROUND

A. Religious Corporations Law

RCL § 12(1) provides, as relevant here, that "[a] religious corporation shall not ... lease

for a term exceeding five years any of its real property without applying for and obtaining leave

of the court ... therefor pursuant to section five hundred eleven of the not-for-profit corporation

law ["N-PCL"] .... " RCL § 12(5-a) further provides that "[t]he trustees of an incorporated

Presbyterian church in connection with the General Assembly of the Presbyterian Church

(U.S.A.) shall not make application to the court for leave to ... lease ... any of its real property

without the consent in writing of the particular Presbytery with which said church is connected."

Pursuant to RCL § 12(9), if a religious corporation leases real property for a term exceeding five

years and conveys that property to the lessee without the necessary authority of a court of

competent jurisdiction, obtained as required by law, the court may, upon the application of the

corporation or the lessee, issue an order confirming the lease. However, "no confirmatory order

may be granted unless the consents required in the first part of this section for a ... Presbyterian

church ... have first been given by the prescribed authority thereof [i.e. "the particular

Presbytery with which said church is connected"], either upon the original application or upon

the application for the confirmatory order."

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B. The Parties and the Lease

The plaintiff, a New York "religious corporation" incorporated under the RCL in

connection with the General Assembly of the Presbyterian Church (U.S.A.), is the owner and

landlord of the Premises. The particular Presbytery with which the plaintiff is connected is the

Presbytery of New York City (the "Presbytery" or "Prescribed Authority"). The plaintiffs

"Session" has served as the Church's corporate governing body since 1998. Members of the

Session serve as the plaintiffs corporate officers. The Session is assisted in matters related to

the Church's real property transactions by the Administrative Commission, which was

established by the Presbytery for that purpose in December 2020.

In April 2018, the plaintiff entered into a lease agreement with the defendant (the

"Lease"), pursuant to which the plaintiff leased the Premises to the defendant for a five-year

term, which was deemed to have commenced on January 1, 2018, and which would run through

December 31, 2022. The monthly rent was $2,200, increasing by 3% annually. Paragraph 7 of

the Lease contains a five-year renewal option that, if exercised, would extend the defendant's

tenancy at the Premises through December 31, 2027. Paragraph 16 of the Lease provides that:

The Church and the Center hereby represent that each Party has the full power and authority to enter into this agreement and all of the stated terms and conditions. ALL PROVISIONS IN THIS AGREEMENT AND THE ATTACHED EXHIBITS SHALL BE BINDING ON BOTH THE CHURCH AND THE CENTER.

Nowhere in the Lease is there any provision expressly addressing the requirements under

RCL § 12(1) that the plaintiff obtain the written consent of the Presbytery and the approval of the

court for the Lease.

After taking possession of the property in April 2018, the defendant entered into several

subleases, all of which appear to have expired.

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In January 2022, the plaintiff advised the defendant that the renewal option provided for

in paragraph 7 of the Lease would be unenforceable because neither Presbytery consent nor court

approval was ever obtained for the Lease as required by RCL § 12(1), rendering the Lease void.

According to the plaintiff, it was not represented by legal counsel at the time it negotiated and

executed the Lease, but instead acted solely through its volunteer lay leadership; it was unaware

at that time that the Lease required Presbytery consent and court approval pursuant to RCL §

12(1); and it only became aware of the statute's consent and approval requirements and/or the

applicability thereof to the Lease years later, after retaining legal counsel.

On February 18, 2022, the defendant notified the plaintiff of its intent to exercise the

Lease's five-year renewal option. On March 16, 2022, the plaintiff's attorneys sent the

defendant a letter in response to the defendant's renewal notice, reiterating the plaintiff's position

that the Lease violates the RCL and is thus void and would not be renewed. The defendant

remains in possession of the Premises pursuant to the Lease pending a judicial determination of

the Lease's validity ..

The plaintiff, in the meantime, had determined to pursue a sale of the Premises.

Accordingly, on February 28, 2022, the Administrative Commission voted on and unanimously

approved a proposed sale of the Premises to Alchemy West 86 th Street LLC, an affiliate of

Alchemy Properties ("Alchemy"), a developer of residential real estate. On March 3, 2022, the

plaintiff entered into a purchase and sale agreement with Alchemy. Pursuant to this agreement,

the plaintiff would sell the Premises to Alchemy to be demolished and redeveloped, in exchange

for $33 million cash, plus 10,000 square feet of space in the newly built development for use by

the Church and another $8 million to build-out that space. The purchase and sale agreement

expressly provides that closing is conditioned on the successful receipt of Presbytery approval

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and a signed Supreme Court order approving the sale, as well as termination of the Lease with

the defendant and the delivery of the Premises vacant of all tenants. Approval by the New York

City Landmarks Preservation Commission was also required.

On March 17, 2022, the plaintiffs Session met to discuss, and ultimately approve, the

proposed sale. Thereafter, on March 27, 2022, the plaintiff held a special congregational

meeting at which the members of the congregation unanimously voted to approve the proposed

sale to Alchemy. On April 4, 2022, the trustees of the Presbytery also voted unanimously to

approve the proposed sale. On June 7, 2022, the Presbytery held its regularly scheduled

quarterly meeting, at which it voted 91 to 3 in favor of approving the proposed sale to Alchemy.

C. The Litigation

On August 15, 2022, the plaintiff commenced this action by filing the Summons and

Verified Complaint, which sets forth two causes of action seeking (1) a judgment declaring that

the Lease is void ab initio under the RCL, and (2) upon such declaration, an ejectment or a

possessory judgment and warrant of eviction.

In its Amended Verified Answer, the defendant asserts ten affirmative defenses and three

counterclaims for (1) fraud in the inducement, (2) breach of contract, and (3) "declaratory

judgment/injunction," seeking, in essence, a declaration that the parties' lease is valid and that

the plaintiff breached the lease by failing to renew it, a mandatory injunction or specific

performance of the lease renewal and requiring the plaintiff to obtain necessary approvals, an

order directing the plaintiff to "withdraw its support for its application to the Landmarks

Preservation Commission," and disgorgement of "any and all consideration received and/or to be

received by the plaintiff (including the aforesaid $33 million) in connection with the prospective

sale" of the property. The instant motions ensued.

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III. LEGAL STANDARDS

On a motion for summary judgment, the moving party must make a prima facie showing

of its entitlement to judgment as a matter of law by submitting evidentiary proof in admissible

form sufficient to establish the absence of any material, triable issues of fact. See CPLR

3212(b); Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824 (2014); Alvarez v

Prospect Hosp., 68 NY2d 320 (1986); Zuckerman v City of New York, 49 NY2d 557 (1980).

Once such a showing is made, the opposing party, to defeat summary judgment, must raise a

triable issue of fact by submitting evidentiary proof in admissible form. See Alvarez v Prospect

Hosp., supra; Zuckerman v City of New York, supra. "[M]ere conclusions, expressions of hope

or unsubstantiated allegations or assertions are insufficient" to defeat the motion. Zuckerman v

City of New York, supra.

When assessing the adequacy of a pleading in the context of a motion to dismiss under

CPLR 321 l(a)(7), the court's role is "to determine whether [the] pleadings state a cause of

action." 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 151-52 (2002). To

determine whether a claim adequately states a cause of action, the court must "liberally construe"

it, accept the facts alleged in it as true, accord it "the benefit of every possible favorable

inference," and determine only whether the facts, as alleged, fit within any cognizable legal

theory. Id. at 152; see Romanello v Intesa Sanpaolo, S.p.A., 22 NY3d 881 (2013); Simkin v

Blank, 19 NY3d 46 (2012); Hurrell-Harring v State of New York, 15 NY3d 8 (2010); Leon v

Martinez, 84 NY2d 83 (1994). "The motion must be denied if from the pleading's four corners

factual allegations are discerned which taken together manifest any cause of action cognizable at

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law." 511 W. 232nd Owners Corp. v Jennifer Realty Co., supra, at 152 (internal quotation marks

omitted); see Leon v Martinez, supra; Guggenheimer v Ginzburg, 43 NY2d 268 (1977).

Leave to amend a pleading should be freely granted absent evidence of substantial

prejudice or surprise, or unless the proposed amendment is palpably insufficient or patently

devoid of merit. See CPLR 3025(b ); JPMorgan Chase Bank, N.A. v Low Cost Bearings NY,

Inc., 107 AD3d 643 (!81 Dept. 2013). The burden is on the party opposing the motion to

establish substantial prejudice or surprise ifleave to amend is granted. See Forty Cent. Park S.,

Inc. v Anza, 130 AD3d 491 (!81 Dept. 2015).

IV. DISCUSSION

A. Motion for Summary Judgment - First and Second Causes of Action

The plaintiffs motion for summary judgment on its first cause of action for a judgment

declaring the Lease void ab initio because it violates RCL § 12(1) is granted. Although the

Lease was for an initial term of just five years, it is subject to the requirements ofRCL § 12(1)

by virtue of the option to renew for an additional five-year term, which brings the full term of the

Lease to ten years. See Soho Ctr. for Arts & Educ. v Church of St. Anthony of Padua, 146

AD2d 407,411 (1 st Dept. 1989) ( lease for five-year term with an option to renew for an

additional five years involved a term of ten years, rendering the lease subject to the consent and

approval requirements of the RCL). Accordingly, "before such a lease can become valid, the

[Prescribed Authority] of the church must first give [its] consent, and then court approval of the

lease must be sought." Id.; see RCL §§ 12(1) & (5-a).

The plaintiffs submissions establish prima facie that neither Presbytery consent nor court

approval was ever obtained for the Lease. Specifically, the plaintiff submits a pair of affidavits

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from Marsha Flowers, a member of the Administrative Commission and a corporate officer of

the Church, who signed the Lease on behalf of the Church in her then-capacity as clerk of the

Session; a pair of affidavits from Roger Leaf, the chairman of the Administrative Commission

since December 2020 and a former Trustee of the Presbytery from January 2019 to December

2022; the affidavit of Russel Jennings, another of the Church's corporate officers; and the

affidavit of Warren McNeill, the Stated Clerk of the Presbytery since November 2016, whose

responsibilities include recording the minutes of all Presbytery meetings. Each of these affiants

avers that the Presbytery never consented to the Lease and, consequently, the Lease was not

submitted to the court for approval.

The defendant, in opposition, fails to submit evidence sufficient to raise a triable question

of fact as to whether Presbytery consent and court approval has already been obtained for the

Lease. The only evidence the defendant points to in this regard is the Lease itself, in particular

paragraph 16 thereof, in which the plaintiff represents that it "has the full power and authority"

to enter into the Lease. The defendant argues that the court should infer from this contract

provision that the Church obtained Presbytery consent and court approval prior to executing the

Lease. However, this provision does not expressly mention the RCL, the Presbytery, or the

court, nor does it refer to the procurement of any consents or approvals whatsoever.

Moreover, it is well accepted that a religious corporation subject to the requirements of

the RCL may validly contract for the alienation of its property "conditioned upon obtaining court

approval." Church of God of Prospect Plaza v Fourth Church of Christ, Scientist, of Brooklyn,

54 NY2d 742, 744 (1981). In fact "the making of an executory agreement subject to the

approval of the Court, is not only not objectionable or invalid as an act ultra vires, but in general,

the proper and preferable mode of bringing the whole question of the propriety of giving

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sanction to the sale into view[.]" Morris v Scribner, 121 AD2d 912, 915-16 (!81 Dept. 1986)

(internal quotation marks omitted). As such, the court cannot reasonably infer from the contract

language alone that the Church was representing that it had already obtained Presbytery consent

and court approval for the lease prior to executing the contract, let alone that the requisite

consent and approval were, in fact, truly obtained. Indeed, such an inference would be especially

unreasonable given that a court order approving the lease would be a matter of public record.

See RCL § 12(1); N-PCL § 51 l(d). No party submits such order.

The defendant also complains that the plaintiff has refused to comply with its discovery

demands, including its demand for documents that might show that the Presbytery's written

consent for the Lease was, in fact, obtained, thereby thwarting the defendant's ability to gather

evidence necessary to support its opposition to the plaintiff's summary judgment motion. To be

sure, "[w]here essential facts to justify opposition to a motion for summary judgment might

exist, but cannot be stated because they are in the moving party's exclusive knowledge or control,

summary judgment must be denied." Curry v Hundreds of Hats, Inc., 146 AD3d 593, 594 (1 st

Dept. 2017) (internal quotation marks omitted). Here, however, evidence of the Presbytery's

purported written consent to the Lease is not exclusively within the plaintiff's knowledge or

control because any such evidence could also be procured directly from the Presbytery itself.

Notably, though, the defendant gives no indication that it has sought this essential discovery

directly from the Presbytery at any time in the more than two years since the plaintiff first

notified it, in January 2022, that the Lease was void for violating the RCL, or in the year-and-a-

half since this action was commenced. In any event, the plaintiff has submitted the sworn

affidavit of Warren McNeill, the Stated Clerk of the Presbytery since November 2016, who

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would have been responsible for recording the minutes of any meeting at which the Presbytery

voted to consent to the Lease, and who states unequivocally that no such consent was ever given.

The defendant further contends that three of the affidavits upon which the plaintiff relies,

including the McNeill affidavit and the exhibits thereto, were submitted for the first time on

reply and should therefore not be considered by the court. This contention is unavailing.

Generally, a movant seeking summary judgment may not make its prima facie showing in

reliance on evidence introduced for the first time in reply, thereby shifting to the nonmoving

party the burden of demonstrating the existence of a triable issue of fact at a time when that party

has no opportunity to respond. See Matter of Kennelly v Mobius Realty Holdings LLC, 33

AD3d 380 (1 st Dept. 2006); see Burlington Ins. Co. v Guma Const. Corp., 6 AD3d 622 (2 nd Dept.

2009). "This rule, however, is not inflexible, and a court, in the exercise of its discretion, may

consider ... evidence offered for the first time in reply where the offering party's adversaries

responded to the newly presented ... evidence." Id. at 381-82 (affidavit submitted in

petitioner's reply was properly considered where the respondent addressed the affidavit in a sur-

reply that it subsequently submitted in support of its own cross-motion). Here, as in Kennelly,

supra, the defendant submitted a sur-reply in support of its cross-motion in which it addressed

the affidavits and associated exhibits submitted for the first time in the plaintiff's reply. As such,

the defendant suffered no prejudice as a result of the plaintiff's belated evidentiary submissions,

and the court, in the exercise of its discretion, may and will consider them. See 2023

Westchester Assocs., LLC v Ben Ave, LLC, 190 AD3d 627 (!81 Dept. 2021); Hereford Ins. Co. v

Vazquez, 158 AD3d 470 (!81 Dept. 2018).

The plaintiff has thus demonstrated,primafacie, that neither Presbytery consent nor court

approval was ever obtained for the Lease, as required by RCL § 12(1), and the defendant, in

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opposition, has failed to raise a triable issue of fact. As such, the Lease is "void ab initio as a

violation of [RCL] § 12." Soho Ctr. for Arts & Educ. v Church of St. Anthony of Padua, supra

at 411 (internal quotation marks omitted); see Wiggs v Williams, 36 AD3d 570, 571 (1 st Dept.

2007) ( conveyance ineffective for lack of court approval required by RCL § 12); cf. MG W. 100

LLC v St. Michael's Protestant Episcopal Church, 127 AD3d 624, 625 (I8t Dept. 2015) (MOU

was not void ab initio because it did not violate RCL § 12).

The defendant proposes that this court may nevertheless issue a confirmatory order

retroactively approving the Lease pursuant to RCL § 12(9). However, a confirmatory order

under RCL § 12(9) may not be issued because the defendant has not demonstrated that there is

any approval to confirm, ie. that the Presbytery has given its written consent to the Lease. RCL

§§ 12(1), (5-a), (9); see 2520 Jerome Ave., LLC v Corp. of Rector, Churchwardens & Vestrymen

of Saint James Episcopal, 185 AD3d 439,439 (1 st Dept. 2020) (lack of consent from "Bishop,

Standing Committee and Diocese" precludes grant of specific performance of contract to sell

church property); Soho Ctr. for Arts & Educ. v Church of St. Anthony of Padua, supra. Further,

to the extent the defendant seeks an order enjoining the plaintiff to pursue the Presbytery's

consent to the Lease as a precondition to an application for a confirmatory order under RCL §

12(9), the plaintiff's submissions demonstrate that such an order would be futile. The

Presbytery, as demonstrated by the minutes of its June 7, 2022, quarterly meeting, has already

determined that the plaintiff and its members will be best served by the proposed sale of the

Premises to Alchemy, voting by an overwhelming margin of 91 to 3 to approve the sale which,

by the express terms of the purchase and sale agreement, necessarily entails the termination of

the Lease. Moreover, the only possible basis for such an injunction would be the defendant's

counterclaim for fraud in the inducement which, as will be discussed further below, is dismissed

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pursuant to CPLR 321 l(a)(7) for failure to state a claim. This conclusion is keeping with the

intent of Religious Corporation Law§ 12 which "was intended to protect the members of such

corporations" from "unwise bargains." Female Academy of Sacred Heart v Doane Stuart School,

91 AD3d 1254, 1256 (3 rd Dept.2012) (lease of church property voidable at religious

corporation's option).

Therefore, the branch of the plaintiff's motion seeking summary judgment on its first

cause of action for a judgment declaring the Lease void ab initio because it violates RCL § 12 is

granted. Having declared the Lease void, summary judgment on the second cause of action for

ejectment is likewise granted. The plaintiff's submissions demonstrate its ownership of the

Premises, its right to possession thereof, and that the defendant is currently in possession of the

Premises pursuant to the void and invalid Lease. See RP AI Pelham Manor, LLC v Two Twenty

Four Enterprises, LLC, 144 AD3d 1125, 1126 (2 nd Dept. 2016).

B. Dismissal of Counterclaims

The branch of the plaintiff's motion that seeks the dismissal of the defendant's second

and third counterclaims is granted. The second counterclaim is for breach of the Lease, while the

third counterclaim seeks a judgment declaring, essentially, that the Lease is valid, the plaintiff is

in breach of the Lease, and the defendant is entitled to continued occupancy of the Premises

pursuant to its renewal option, as well as an injunction preventing the plaintiff from evicting the

defendant from the Premises. Given the court's determination that the Lease is void ab initio,

these counterclaims necessarily fail as a matter of law.

The branch of the plaintiff's motion seeking dismissal of the defendant's first

counterclaim for fraud in the inducement is also granted pursuant to CPLR 321 l(a)(7) for failure

to state a claim. "To state a claim for fraudulent inducement, there must be a knowing

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misrepresentation of material present fact, which is intended to deceive another party and induce

that party to act on it, resulting in injury." Genger v Genger, 144 AD3d 581, 582 (!81 Dept.

2016) (internal quotation marks omitted). Further, there must be justifiable reliance on the

alleged misrepresentation. See Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d 137, 142

(2017). Crucially, "[t]o give rise, under any circumstances, to a cause of action, either in law or

equity, reliance on the false representation must result in injury .... If the fraud causes no loss,

then the plaintiff has suffered no damages." Id. (internal quotation marks omitted); see Genger v

Genger, supra ("A claim of fraud in the inducement requires proof of actual pecuniary loss.")

(internal quotation marks omitted). The defendant's claim is premised on the contention that the

plaintiff, by asserting in paragraph 16 of the Lease that it had "full power and authority" to enter

into the Lease, misrepresented that it had obtained the Presbytery's consent and the court's

approval for the Lease, as required by RCL § 12. However, the defendant's allegations

regarding the plaintiff's fraudulent intent in making this claimed misrepresentation, as well as the

defendant's reasonable reliance on it, are entirely speculative and conclusory, and thus

insufficient to state a claim. See Dashdevs LLC v Cap. Markets Placement, Inc., 210 AD3d 525,

526 (1 st Dept. 2022) (vague, conclusory, or speculative allegations are insufficient to state a

claim); Mamoon v Dot Net Inc., 135 AD3d 656, 658 (!81 Dept. 2016) (factual allegations that

consist of bare legal conclusions are not entitled to presumption of truth or benefit of favorable

inferences on motion to dismiss pursuant to CPLR 321 l[a][7]).

To the extent that the defendant alleges that the plaintiff misrepresented that it had

already obtained court approval for the Lease as per RCL § 12, the defendant cannot show that it

reasonably or justifiably relied on any such representation "because [it] had the means to

discover the true facts by the exercise of 'ordinary intelligence' or upon 'reasonable

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investigation."' McDonald v McBain, 99 AD3d 436,436 (1 st Dept. 2012), quoting Zanett

Lombardier, Ltd. v Maslow, 29 AD3d 495, 496 (1 st Dept. 2006). As already noted, a court order

approving the Lease would be a matter of public record and could easily have been discovered

by the defendant upon reasonable investigation. See NYCTL Trust v Reverend C.T. Walker

Hous. Dev. Fund Corp., 187 AD3d 409 (I8t Dept. 2020) (purchaser ofreal property failed to

exercise due diligence to discover restrictive covenant on property which was a public record);

compare McGuinness v Standard Drywall Corp., 193 AD2d 518 (I8t Dept. 1993) (judgment

creditor is not obligated to find fraudulent transfers made by debtor seven years prior).

Additionally, the defendant fails entirely to allege how any reliance on the plaintiffs

purported misrepresentation resulted in an actual injury. It certainly does not plead a "pecuniary

loss," as it expressly alleges that it "has no remedy at law." The defendant does allege that,

pursuant to the terms of the Lease, it paid rent and raised funds to aid in renovating and restoring

the Premises. The defendant avers that it raised approximately $500,000 to date but provides no

proof of such funds being collected or expended. Further, the defendant seeks "restitution" of

that amount only in regard to its second counterclaim for breach of contract. It never expressly

claims that these expenditures constitute recoverable damages for purposes of the first

counterclaim for fraud in the inducement. Indeed, the defendant alleges that those funds were

from others, not from itself. Moreover, the defendant does not dispute that it obtained the

benefits for which it bargained - possession and use of the Premises. Indeed, the defendant does

not seek money damages to recoup any out-of-pocket loss resulting from the plaintiffs alleged

fraud. Rather, it seeks specific performance so that it may remain in possession of the Premises

and continue making those contract payments.

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Accordingly, because the defendant fails to state a cognizable claim for fraud in the

inducement, the defendant's first counterclaim is dismissed. The court need not address the

additional ground asserted by the defendant under CPLR 321 l(a)(l).

C. Dismissal of Affirmative Defenses

The branch of the plaintiff's motion seeking dismissal of the defendant's affirmative

defenses is granted. In its answer, the defendant asserts nine affirmative defenses: (1) failure to

state a claim; (2) that the plaintiff is in default and material breach of the Lease; (3) failure to

comply with condition precedent to a claim for breach of the Lease; (4) ratification of the Lease;

(5) unclean hands; (6) inapplicability of RCL § 12 because the Lease was only for a five-year

term; (7) that the defendant has not defaulted under the Lease; (8) waiver and estoppel; and (9)

the plaintiff's obligation to act in good faith, and with fair dealing, by applying to the court for

retroactive approval of the Lease. 1 The first, fifth, and eighth purported affirmative defenses are

improperly asserted in a conclusory manner without any detail. See Commr. of State Ins. Fund v

Ramos, 63 AD3d 453 (1 st Dept. 2009); Mfrs.Hanover Trust Co. v Restivo, 169 AD2d 413 (1 st

Dept. 1991). CPLR 3013 expressly requires that all "statements in a pleading shall be

sufficiently particular to give the court and parties notice of the transactions, occurrences, or

series of transactions or occurrences, intended to be proved and the material elements of each

cause of action or defense." In any event, given the grant of summary judgment to the plaintiff

on its claims, the defendant cannot reasonably argue that the complaint fails to state a cause of

action. The others are patently devoid of merit because the plaintiff does not assert a claim for

breach of the Lease; RCL § 12 is applicable to the Lease for the reasons already discussed; the

1 The first and second counterclaims are each also denominated in the answer as a "Tenth Affirmative Defense." Because those counterclaims have already been addressed, there is no need to discuss them again here. 652924/2022 WEST-PARK PRESBYTERIAN CHURCH OF NEW YORK CITY D/B/A WEST PARK Page 15 of 18 PRESBYTERIAN CHURCH vs. THE CENTER AT WEST PARK, INC. D/B/A THE CENTER AT WEST PARK ET AL Motion No. 001

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plaintiff cannot evade the requirements of RCL § 12 and unilaterally render the Lease valid via

ratification; and the court cannot retroactively approve the Lease absent the Presbytery's consent,

which has not been given and, the plaintiffs proof demonstrates, will not be forthcoming.

D. Cross-Motion for Leave to Amend and to Compel Discovery

The defendant's' cross-motion for leave to amend the answer is denied. The defendant

seeks to further amend its amended answer to add a fourth counterclaim that explicitly seeks a

confirmatory order approving the Lease pursuant to RCL § 12(9). This proposed counterclaim,

which merely repackages the defendant's claims for specific performance and injunctive relief in

connection with its three original counterclaims, is "patently devoid of merit" (JPMorgan Chase

Bank, N.A. v Low Cost Bearings NY, Inc., supra) for reasons already discussed herein.

The defendant also seeks to add an affirmative defense alleging that the plaintiff failed to

name the defendant's subtenants as parties to this litigation, and therefore cannot obtain an order

of eviction against such sub-tenants. First, the court notes that the defendants themselves have

failed to identify any current subtenants. In any event, any subtenant of the defendant would not

be a necessary party "whose presence is indispensable to the according of complete relief' as

between the plaintiff and the defendant. Triborough Bridge & Tunnel Auth. v Wimpfheimer,

165 Misc 2d 584 (App Term, pt Dept. 1995); see Joscar Co. v Arlen Realty, 54 AD2d 541 (I8t

Dept. 1976); 1234 Broadway LLC v Hsien Hua Ying, 50 Misc 3d 140(A) (App Term, 1st Dept.

2016). This is because a subtenant is "not in contractual privity with the owner" and thus

"termination of the lease [will] terminate [the] subtenancy." 117-119 Leasing Corp. v Reliable

Wool Stock, LLC, 139 AD3d 420,421 (1 st Dept. 2016).

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The branch of the defendant's cross-motion seeking to compel the plaintiff's compliance

with discovery demands is denied as moot given the grant of summary judgment to plaintiff on

its claims and the dismissal of the defendant's counterclaims.

The defendant's remaining contentions have been considered and found to be unavailing.

V. CONCLUSION

Accordingly, upon the foregoing papers and after oral argument, it is

ORDERED that the motion of the plaintiff, West-Park Presbyterian Church of New York

City d/b/a West Park Presbyterian Church, for summary judgment pursuant to CPLR 3212 on its

first and second causes of action, for a declaratory judgment and ejectment, and to dismiss,

pursuant to CPLR 3211 ( a) and (b ), the affirmative defenses and counterclaims of the defendant,

The Center at West Park, Inc. d/b/a The Center at West Park's, is granted; and it is further

ORDERED, ADJUDGED, and DECLARED that the lease dated April 6, 2018, entered

into between the plaintiff, West-Park Presbyterian Church of New York City d/b/a West Park

Presbyterian Church, and the defendant, The Center at West Park, Inc. d/b/a The Center at West

Park, is void as violative of New York Religious Corporations Law § 12; and it is further

ADJUDGED that the plaintiff, West-Park Presbyterian Church of New York City d/b/a

West Park Presbyterian Church, is entitled to possession of 165 West 86th Street, New York, NY

10024, as against the defendant, The Center at West Park, Inc. d/b/a The Center at West Park,

and the Sheriff of the City of New York, County of New York, and/or the New York City

Marshal, upon receipt of a certified copy of this Order and Judgment and payment of proper fees,

is directed to place plaintiff in possession accordingly; and it is further

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ADJUDGED that immediately upon entry of this Order and Judgment, plaintiffWest-

Park Presbyterian Church ofNew York City d/b/a West Park Presbyterian Church, may exercise

all acts of ownership and possession of 165 West 86th Street, New York, NY 10024, including

entry thereto, as against the defendant, The Center at West Park, Inc. d/b/a The Center at West

Park, and it is further

ORDERED that the counterclaims and affirmative defenses of the defendant, The Center

at West Park, Inc. d/b/a The Center at West Park, are dismissed; and it is further

ORDERED that the cross-motion of the defendant, The Center at West Park, Inc. d/b/a

The Center at West Park, to compel discovery and for leave to amend the answer is denied; and

it is further

ORDERED that the Clerk shall enter judgment accordingly.

This constitutes the Decision, Order, and Judgment of the court.

2/20/2024 DATE NANCY M. BANNON, J.S.C. CHECK ONE: 0 CASE DISPOSED □ NON-FINAL DISPOSITION 0 GRANTED □ DENIED □ GRANTED IN PART □ OTHER

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