Opinion
2012-01-31
Vena GOSINE, et al., respondents, v. Mohan SAHABIR, et al., appellants.
Wenig Saltiel & Johnson, LLP, Brooklyn, N.Y. (Leslie Perez of counsel), for appellants. Pliskin Rubano & Baum, Flushing, N.Y. (Joseph D. Vitulli of counsel), for respondents.
Wenig Saltiel & Johnson, LLP, Brooklyn, N.Y. (Leslie Perez of counsel), for appellants. Pliskin Rubano & Baum, Flushing, N.Y. (Joseph D. Vitulli of counsel), for respondents.
DANIEL D. ANGIOLILLO, J.P., ANITA R. FLORIO, CHERYL E. CHAMBERS, and L. PRISCILLA HALL, JJ.
In an action, inter alia, for declaratory and injunctive relief, the defendants appeal (1), as limited by their brief, from so much of an order of the Supreme Court, Queens County (Hart, J.), dated September 24, 2010, as, sua sponte, appointed a receiver to immediately take control of the subject religious corporation, and to operate, control, and oversee all of its business affairs until an election of a new board of trustees, (2), as limited by their brief, from so much of an order of the same court dated January 31, 2011, as granted the plaintiffs' motion, among other things, to confirm the results of a purported election, and (3) from stated portions of an order of the same court dated March 11, 2011, which, inter alia, denied, as academic, their motion to disqualify the plaintiffs' counsel, and denied, as academic, their cross motion pursuant to 22 NYCRR 130–1.1 to impose sanctions on the plaintiffs and their attorney.
ORDERED that on the Court's own motion, the notice of appeal from so much of the order dated September 24, 2010, as, sua sponte, appointed a receiver to immediately take control of the subject religious corporation, and to operate, control, and oversee all of its business affairs until an election of a new board of trustees, is deemed an application for leave to appeal from that portion of the order, and leave to appeal is granted ( see CPLR 5701[c] ); and it is further,
ORDERED that the order dated September 24, 2010, is reversed insofar as appealed from, on the facts and in the exercise of discretion; and it is further,
ORDERED that the order dated January 31, 2011, is reversed insofar as appealed from, on the law, and the plaintiffs' motion, inter alia, to confirm the results of the purported election is denied; and it is further,
ORDERED that the order dated March 11, 2011, is reversed insofar as appealed from, on the law, and the matter is remitted to the Supreme Court, Queens County, for further proceedings in accordance herewith before a different Justice; and it is further,
ORDERED that one bill of costs is awarded to the defendants.
The Supreme Court improvidently exercised its discretion in, sua sponte, appointing a receiver to operate the business affairs of Sanatan Dharma Maha Sabha of the West Indies, Inc. (hereinafter SDMS), until an upcoming election of the board of trustees, since no party asked for that relief, and there was no evidence that SDMS's assets were susceptible to waste or that such a drastic remedy was warranted ( see Quick v. Quick, 69 A.D.3d 828, 893 N.Y.S.2d 583; Ugiri Progressive Community, Inc. v. Ukwuozo, 57 A.D.3d 656, 870 N.Y.S.2d 64; Vardaris Tech, Inc. v. Paleros Inc., 49 A.D.3d 631, 632, 853 N.Y.S.2d 601; Natoli v. Milazzo, 35 A.D.3d 823, 826 N.Y.S.2d 716; Rotary Watches [USA] v. Greene, 266 A.D.2d 527, 699 N.Y.S.2d 106; Schachner v. Sikowitz, 94 A.D.2d 709, 462 N.Y.S.2d 49).
The Supreme Court erred in granting the plaintiffs' motion, inter alia, to confirm the results of the election purportedly conducted on December 3, 2010. The record establishes that the receiver adjourned the meeting prior to opening the polls. While the minutes of the meeting indicate that the plaintiff Vena Gosine collected ballots after the meeting was adjourned, she was not a presiding officer authorized to “receive the votes, judge the qualifications of the voters, and declare the results of the votes cast” under SDMS's constitution. Accordingly, the plaintiffs' motion, among other things, to confirm the results of the purported election should have been denied.
Since the Supreme Court considered neither the defendants' motion to disqualify the plaintiffs' counsel, nor their cross motion pursuant to 22 NYCRR 130–1.1 to impose sanctions on the plaintiffs and their attorney, on the merits, we must remit the matter to the Supreme Court, Queens County, for determination of the motion and cross motion ( see Hunter Sports Shooting Grounds, Inc. v. Foley, 73 A.D.3d 702, 901 N.Y.S.2d 92). Under the circumstances of this case, we deem it appropriate to remit the matter to the Supreme Court, Queens County, for further proceedings before a different Justice.
The respondents' remaining contentions are without merit.