30 A.D.3d 286 (2006)

817 N.Y.S.2d 270


Appellate Division of the Supreme Court of the State of New York, First Department.

June 22, 2006.

Defendant may be technically correct that its members, for corporate as opposed to religious purposes (see Islamic Ctr. of Harrison, Pa. v Islamic Science Found., 216 A.D.2d 357 [1995]), are the members of the Archdiocesan Clergy-Laity Congress, which is the successor of the "governing or advisory body" that incorporated it (see Religious Corporations Law § 15 [1]). Defendant may also be correct that a plaintiff must be a member of the Congress at the time he or she files suit (see Miller v Miller, 256 App Div 846 [1939], affd 280 N.Y. 716 [1939]). However, if one were to accept these arguments, defendant's members would be able to sue it only during a four-to-eight-day window once every two years; and, therefore, as a practical matter, defendant's actions would be insulated from judicial review. To avoid such a result (see Babigan v Wachtler, 133 Misc.2d 111, 112 [1986], affd 126 A.D.2d 445 [1987], affd 69 N.Y.2d 1012 [1987]; Grant v Cuomo, 130 A.D.2d 154, 159 [1987], affd 73 N.Y.2d 820 [1988]), we find that plaintiffs, as members of Greek Orthodox parishes, are also members of defendant (see Dimas v Greek Orthodox Archdiocese of Am., NYLJ, June 17, 1999, at 31, col 2). Nor will defendant be heard to argue that plaintiffs lack standing by reason of the 1999 amendment to its certificate of incorporation stating that it has no members, when, thereafter, it argued that it did have members and succeeded in getting a lawsuit dismissed on that basis (see Gale P. Elston, P.C. v Dubois, 18 A.D.3d 301, 303 [2005]). Similarly, because plaintiffs instituted this lawsuit in February 2004, defendant cannot argue lack of standing on the basis of its July 2004 regulations stating that it is not a membership organization.

Although plaintiffs have standing, and although the action is not moot and does not merely seek an advisory opinion, it must be dismissed because it involves a question of internal governance of a hierarchical church (see Serbian Eastern Orthodox Diocese for United States and Canada v Milivojevich, 426 U.S. 696 [1976]; and see Maryland and Virginia Eldership of Churches of God v Church of God at Sharpsburg, Inc., 396 U.S. 367, 369 n 1 [1970] [Brennan, J., concurring] [categorizing church government as either "hierarchical" or "congregational"]; accord First Presbyt. Church of Schenectady v United Presbyt. Church in U.S. of Am., 62 N.Y.2d 110, 114 [1984], cert denied 469 U.S. 1037 [1984]). On the basis of the very charter on which plaintiffs rely, they cannot successfully dispute that the Greek Orthodox Church is hierarchical. And while it may at first appear that neutral principles of law can be applied to decide whether defendant's 1977 charter was properly amended pursuant to article XXIV thereof, if this case were to proceed further, a trial court would ultimately be required to decide whether the Ecumenical Patriarch had authority unilaterally to grant a charter to defendant in 2003 — clearly, a religious matter (see First Presbyt. Church, 62 NY2d at 117).

Plaintiffs contend that since the courts would intervene if members of a nonreligious not-for-profit corporation claimed that the corporation's charter had not been properly amended, a decision not to intervene in the instant dispute would improperly discriminate against religion. While plaintiffs may raise this issue of law for the first time on appeal (see Carnegie Hall Corp. v City Univ. of N.Y., 286 A.D.2d 214, 215 [2001]), their argument is unavailing (see Locke v Davey, 540 U.S. 712 [2004]).


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