The following papers numbered below read on this hybrid action seeking a declaratory judgment against the defendants declaring that defendants had no authority to terminate plaintiff Bishop Ingram, (Bishop) as Pastor of the Tiberian Baptist Church, (TBC), alter his salary or compensation package, and permanently enjoin the defendants from interfering in any way with the Bishop’s role in fulfilling his obligations as church “pastor”, and also seeking monetary damages for Bishop’s claims of tortious interference with contract, defamation, fraud, and breach of fiduciary duty to the members of the church. Before the court, are two motions by order to show cause made by the plaintiffs seeking said injunctive relief, and the defendant has filed a separate motion to dismiss the complaint, deny the orders to show cause, and seeking removal and disqualification of plaintiff’s attorneys. Papers Numbered Notices of Motion — Affidavits — Exhibits 8-10; 15,16-22, 25-27;31-50 Answering Affidavits — Exhibits 59-76 Reply Affidavits — Exhibits 77-79 Upon the foregoing papers, the following is the decision, order and judgment of the court. In this hybrid action, the plaintiffs seek a declaratory judgment, injunction and damages. The plaintiff Bishop Ingram seeks monetary damages for defamation, fraud and tortious interference with contractual relations between himself and TBC. The other plaintiffs seek damages for fraud and breach of fiduciary duty against the individuals acting as trustees, in their individual capacities. As to the injunctive relief and declaratory judgment, Bishop Ingram, and the member plaintiffs seek redress against the defendants who, allegedly overstepped their authority by modifying the salary of Bishop Ingram to the point of de facto terminating him as pastor, and locking him and his staff out of the church property making it impossible for them to carry out their responsibilities in the roles they have with the church. In support of their motions, the plaintiffs submitted, among other things, a copy of the pleadings, a copy of their attorney’s affirmation in support, a copy of the affidavit of Bishop Ingram, a copy of the affidavit of Vanessa Jones, a copy of the compensation package, a copy of the salary termination letter, and a copy of the minutes of the September 6, 2021 special meeting of TBC. In support of their motion, defendants submitted, inter alia, and a copy of defendants’ attorneys affirmation, a copy of TBC’s By-Laws, At the outset, Not for Profit Corporations Law (N-PCL) §720 provides, “(a) An action may be brought against one or more directors, officers or key persons of a corporation to procure a judgment for the following relief: (1) To compel the defendant to account for his official conduct in the following cases: (A) The neglect of, or failure to perform, or other violation of his duties in the management and disposition of corporate assets committed to his charge. (B) The acquisition by himself, transfer to others, loss or waste of corporate assets due to any neglect of, or failure to perform, or other violation of his duties. (2) To set aside an unlawful conveyance, assignment or transfer of corporate assets, where the transferee knew of its unlawfulness. (3) To enjoin a proposed unlawful conveyance, assignment or transfer of corporate assets, where there are reasonable grounds for belief that it will be made.” The court finds the fourth and fifth causes of action, of fraud and breach of fiduciary duty have not been sufficiently plead, nor recognizable damages identified, by, and on behalf of, the plaintiff members (not as to Bishop Ingram.) However, N-PCL §720 (b) (3), states that pursuant to N-PCL §623, one or more members may bring a members’ derivative action to commence an action pursuant to §720 (a). Generally, a court may, in its discretion, deem an action brought in a proper fashion in order to prevent its dismissal. (See Tae Hwa Yoon v. New York Hahn Wolee Church, Inc., 56 AD3d 752 [2d Dept 2008].) Accordingly, the action will be converted to a special proceeding pursuant to N-PCL §623, to determine whether the trustees were entitled to declare stipend payments to themselves according to the By-Laws of TBC, and whether these payments made to them should be returned to the church funds. As such, the defendants’ claim of lack of standing for this purpose is without merit. The defendants further claim “qualified immunity” pursuant to N-PCL §720-a, in that, they acted on behalf of the church in the capacity as “volunteers”. Contrary to defendants’ position that it is “undisputed”, the plaintiffs have raised sufficient triable issues as to whether the defendants were, in fact, “volunteers” or paid. Determining their status is crucial in order to determine the applicability of the qualified immunity threshold for personal liability. If the defendants are determined to be volunteers, they can be found personally liable only for acts of gross negligence or if their acts intentionally inflicted harm upon the plaintiff. As to the branches of the defendants’ motion seeking removal or disqualification of plaintiffs’ attorneys, only if an attorney’s testimony is inevitable and necessary, and not duplicative to other available witnesses or evidence, will an attorney be removed, or disqualified. (Hudson Valley Marine, Inc., v. Town of Cortlandt, 54 AD3d 999 [2d Dept 2008].) The burden is on the defendants to show that the attorneys testimony is “necessary”, and that other available evidence would not suffice. The mere fact that the attorneys were present at a meeting, without more is insufficient to meet this burden. (Id.) In any event, as the court is granting a declaratory judgment to the plaintiffs on the injunctive relief requested, the testimony of the attorneys as to that matter, is unnecessary, and defendants’ motion moot. Regarding the branch of defendants’ motion to dismiss the plaintiffs’ complaint, in any consideration of such a motion, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, and accord the plaintiff the benefit of every possible inference, and determine whether the facts as alleged fit within any cognizable legal theory. (See Leon v. Martinez, 84 NY2d 83 [1994].) The Bishop, acting as Pastor of the church, since 2015, based upon representations made to him by the Trustees, accepted a compensation package on the premise that the church was hiring him. Deacon Hicks, stated in his affidavit, “On or about September 25, 2015…Bishop Ingram, who was referred to the Board of Tiberian Baptist Church by Bishop Lionel Harvey, became the Pastor of Tiberian Baptist Church.” Several other statements are made stating, “When Bishop Ingram became Pastor of Tiberian Baptist Church…” It is acknowledged that Bishop Ingram donated a van to serve as the church van. A check for $1,000 was transferred from Bishop Ingram’s former ministry. The letter of August 8, 2021 states, “When you were elected and installed in 2015…” Then, the defendants repudiated their own statements attesting for the first time that they abused their authority by hiring and installing a pastor that was not elected by the membership. As a consequence of these greatly diverging and conflicting positions, alternative pleading will be permitted by the court, so that the allegations of fraud, usually considered redundant when a contract is in place, as pertains to Bishop Ingram, can be considered along with the tortious interference of contractual relations claim. It is without question, that the defendants have, and intended to, reduce and terminate the salary provisions, life insurance and other benefits of their pastor. Religious Corporations Law (RCL) §200 precludes trustees from settling, removing or fixing the salary of the minister. Furthermore, RCL §170 states, “The ministers of any such church shall be called, settled or removed and their salaries fixed, only by the vote of a majority of the members of such corporation duly qualified to vote at elections present and voting at a meeting of such corporation specially called for that purpose…” (See Kamchi v. Weissman, 125 AD3d 142 [2d Dept 2014]; Trustees of Gallilee Pentecostal Church, Inc., v. Williams, 65 AD3d 1221 [2d Dept 2009].) The defendant trustees admitted, as demonstrated by the letters and affidavits submitted, that they reduced, and then eliminated the pastor’s salary. They locked him and his staff out, prevented him from carrying out his duties as pastor, without any vote of the membership as required. They admitted that they distributed materials and communicated with a number of members regarding what they alleged was misfeasance by Bishop Ingram. Based upon the foregoing, the plaintiffs have met their burden to show that the defendants violated the RCL provisions, have abused their authority, and are therefore entitled to a declaratory judgment and injunction against the defendants. The plaintiffs’ motions for a declaratory judgment and injunctive relief are granted. As the fourth and fifth causes of action have been converted to a special proceeding, the defendants have not met their burden to show that there is no valid cause of action. The defendants have also not met their burden with regard to the first, second and third causes of action, or the fourth cause of action with regard to defendant Bishop Ingram only. Turning to that part of the defendants’ motion to invalidate any actions taken at the September 6, 2021 special meeting, the submitted minutes of that meeting shows that although a quorum is stated to have been met by the presence of 58 members, the vote in controversy, “passed” with a vote of 20-12. A qualified statement of total membership was not submitted in order to verify that 58 members constituted a proper quorum of 1/3 of the membership pursuant to Article XII Section 1. Assuming arguendo, that a proper quorum was present, since the September 6, 2021 meeting was a special business meeting called by the pastor, any motion made at such meeting required a vote in favor by 3/4 of the members present. No explanation is provided as to why a quorum of 58 dwindled down to the voting participation of 32. Assuming again that 32 constituted a proper quorum to conduct business, it is clear that the number of passing votes does not meet the requirement of 3/4 majority vote as Article XII, Section 1 of the By-Laws requires. Therefore, the motion to remove Sister Jacqueline Powell, Sister Karen Christie, and Sister Annie Jones as trustees, and subsequently replacing them with other members, is null and void. The defendants’ motion is granted only to the extent of dismissing the fourth cause of action for fraud as alleged by the plaintiff members, and the fifth cause of action, converting it to a special proceeding. Furthermore, that part of the defendants’ motion to declare the actions taken at the September 6, 2021 meeting null and void as to Sister Jacqueline Powell, Sister Karen Christie, and Sister Annie Jones, is granted. The defendants’ motion is denied in all other respects. The temporary orders as to all other matters still pending, such as relating to books, records, and handling of church funds, shall remain in force and effect during the pendency of the action and special proceeding. Accordingly, it is ADJUDGED that the defendant trustees have acted without authority regarding attempted reductions and termination of the pastor’s salary, in violation of RCL, and it is further ADJUDGED that the trustees are enjoined from interfering in the activities of the Pastor and his staff, including but not limited to locking out the pastor or his staff, and/or denying access to any part of the church property as needed by the Pastor and staff for church activities, and from acting to reduce or terminate the salary of the pastor without a proper vote of the membership. Dated: November 30, 2022
