Noel v. Gay
| Citation | 2023 NY Slip Op 33734 (U) |
| Docket Number | Index No. 515617/22 |
| Decision Date | 11 October 2023 |
| Parties | Evens Noel, Yvane Fleuran, Elcie Menard, Eline Jean-Louis, Phraner Mercier, Jean Sorel Similca, Sincere Cadet, Renold Ducrepin, Marie Alourde Ducrepin, Solange Louis, Eliana Cyprien, Flavie Esterling, Michelle Nerette, Marie Benita Gaussaint, Judith Valneus, and Lise Led an Cassy, individually and on behalf of all other members of the Eglise Baptiste du Redempteur d'Expression Francaise, similarly situated, and Pastor Glodys Gervais, Plaintiffs, v. Sontonax Gay, Jean Paul Mara, Jean Renel Saint Jour, Medius Clervil, Denis Alexandre, Evjnce Libertin, Magarette Romulus, Webber Wesh, Jean Claude Prophete, Ablamy Boucher, Elmine Carmelite, Marie Lourdes Louis, and Marie Herline, individually and as former deacons of the Board of Deacons of the Eglise Baptiste Du Redempteur d'Expression Francaise, and Eglise Baptiste Du Redempteur d'Expression Francaise (a nominal defendant), Defendants. |
| Court | New York Supreme Court |
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2023 NY Slip Op 33734(U)
Evens Noel, Yvane Fleuran, Elcie Menard, Eline Jean-Louis, Phraner Mercier, Jean Sorel Similca, Sincere Cadet, Renold Ducrepin, Marie Alourde Ducrepin, Solange Louis, Eliana Cyprien, Flavie Esterling, Michelle Nerette, Marie Benita Gaussaint, Judith Valneus, and Lise Led an Cassy, individually and on behalf of all other members of the Eglise Baptiste du Redempteur d'Expression Francaise, similarly situated, and Pastor Glodys Gervais, Plaintiffs,
v.
Sontonax Gay, Jean Paul Mara, Jean Renel Saint Jour, Medius Clervil, Denis Alexandre, Evjnce Libertin, Magarette Romulus, Webber Wesh, Jean Claude Prophete, Ablamy Boucher, Elmine Carmelite, Marie Lourdes Louis, and Marie Herline, individually and as former deacons of the Board of Deacons of the Eglise Baptiste Du Redempteur d'Expression Francaise, and Eglise Baptiste Du Redempteur d'Expression Francaise (a nominal defendant), Defendants.
Index No. 515617/22
Supreme Court, Kings County
October 11, 2023
Unpublished Opinion
At an IAS Term, Part 83 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 360 Adams street, Brooklyn, New York, on the 11th day of October, 2023.
PRESENT: HON. INGRID JOSEPH, J.S.C.
Ingrid Joseph, Supreme Court Justice
The following e-filed papers read herein:
NYSCEF Doc Nos.
Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed
59, 63, 72, 7791. 93, 112, 120-121.127.131
Opposing Affidavits (Affirmations)
102-103, 113. 151. 152
Affidavits/ Affirmations in Reply
117.
Letters to Court
154-159
Upon the foregoing papers, plaintiffs move, by order to show cause, for an order: (1) compelling the nominal defendant Eglise Baptiste du Redempteur d'Expression Francaise (Church) to hold a special meeting of the Church membership for the election of Church trustees (Religious Corporation Law § 133), Church deacons (By-Laws § 8.3), and for a membership vote on the Deacons' request to declare vacant the office of pastor of the Church (a position allegedly held by plaintiff Pastor Glodys Gervais) (By-Laws §§ 6.2.5 66.2.6); and (2) dismissing defendants' counterclaims (motion sequence number 1).
In a second order to show cause, plaintiffs move for an order holding defendants in contempt for violations of a temporary restraining order (Campanelli, J.) dated October 7, 2022 (motion sequence number 2).
This action for declaratory judgment and an injunction arises out of a contentious dispute between rival factions of the Church regarding plaintiffs' assertions that the defendant Deacons removed Pastor Gervais without the approval of Church membership and that defendants have failed to hold elections for the positions of trustees and deacons. Plaintiffs are supporters of Pastor Gervais and are persons who desire to be nominated as trustees and deacons of the Church. Defendants are the current active deacons of the Church.
The certificate of incorporation that was filed with the Kings County Clerk on June 18, 1980, shows that the Church was incorporated as a Baptist Church pursuant to article 7 of the Religious Corporations Law (Certificate of Incorporation). The Certificate of Incorporation provided that the Church would have 9 trustees and identified the trustees that had been elected at the meeting for incorporation.
Pastor Georgeon, the founding pastor, served as pastor of the Church from at least 1985 until his death in 2015. Prior to his death, a commission of the Church revised the constitution and by-laws of the Church, and the Church membership approved these revisions on May 18, 2015.[1] The Church's Constitution and By-Laws emphasize that it is
the congregation's members who have ultimate control of the Church (Constitution Article III, §T; By-Laws § 1).
Relevant to the appointment and discharge of the Pastor, the By-Laws, in section 6.2, provide that:
"6.2.1. The pastor shall be selected and appointed by the church whenever there is a Vacancy. The Pastor Search Committee shall be appointed by the church to search for a replacement. Any member has the privilege of presenting a candidate to the search committee. The duties of the committee are stipulated (in Article IV, Section C).
"6.2.2. The committee shall select one name at a time to be presented for consideration before the church. The election of the pastor shall be by secret ballot at a specially called business meeting. Proper notice shall be given to the members at least two weeks prior to the date of the meeting. Such notice shall be given from the pulpit and published in the church bulletin. An affirmative vote of [3]A of the members present and voting is necessary to make a nomination. Acceptance of the nomination shall be taken as evidence that he/she agrees to abide by the bylaws of this church and will accept the remuneration package approved by the church.
"6.2.3. An elected pastor shall serve until the end of his term. This term, (sic) This term may be shortened at his request and that of the church.
"6.2.4. The pastor may resign his office by submitting written notice to the church at least thirty (30) days prior to the effective date of resignation. Both parties may agree by mail to waive the thirty (30) day obligation, if the church desires the pastor to resign his office in less than thirty (30) days, the pastor shall be paid one month's severance pay in full.
"6.2.5. If deemed necessary, the church may declare the office of pastor vacant. Such action shall be considered at the business meeting called for the purpose. Proper notice of this intention to vacate the office of pastor shall be sent to the
membership at least two weeks prior to the date of the meeting. The notice shall be mailed to the members of the church and shall be published in the church bulletin. The meeting may be called only upon the recommendation of a majority of the Personnel Committee and the Deacons or by written request signed by less than one-fourth (1/4) of the members.
"6.2.6. A quorum of 25 percent (25%) of the total membership shall be required to declare the office of Pastor vacant. Such decision shall be by ballot of an affirmative vote of the absolute majority of the members present. Except in the case of misconduct (defined as immoral or illegal activities) by the pastor so removed from office, the church shall compensate the pastor with not less than one-twelfth (1/12) of the total annual compensation, including housing, insurance, and retirement benefits. The suspension shall be immediate and the compensation shall be returned within thirty (30) days."
With respect to the Church's deacons, the By-Laws provide that they are to be elected by the members at the annual business meeting (By-Laws §§ 1.3.2, 3,4 [f], 3.9.1.2, 3.9.1.3, 8.3.2, 8.3.3). The provision addressing the terms of service of the deacons provides for stability of leadership and for change by providing that:
"The Deacons shall serve in rotation. Each year the term of one-third of the number of Deacons shall expire and an election shall be held to fill the vacancies. In case of death or removal or inability to serve, the church may elect a Deacon to complete the term. After serving a three-year term, Deacons shall be eligible for re-election only after a minimum of one year" (By-Laws § 8.3.1).
Under the By-Laws, it is the Church's Stewardship Counsel, which is made up of "a member of the Executive Committee, the Property and Space/Maintenance Committee, the Chairperson of the Deacon Corps, the Secretary/Recorder, the Treasurer, and a lay person elected by the church" (By-Laws § 9.2.3.1), that acts as the Church's trustees with respect to the Church's property (By-Laws § 9.2.3.2). The By-Laws provide that, "By specific vote of the church authorizing each action, the members of the Board of Trustees (which is also referred to as the Stewardship Council) shall have the power to buy, sell, mortgage, lease or transfer any church property. Legal documents involving the sale,
purchase, lease or other matters approved by the church shall require the signatures of the members of the Board of Trustees" (By-Laws § 9.2.3.2).
It is undisputed that the Church's membership voted to appoint Pastor Gervais, a church member who had served as a volunteer assistant pastor to Pastor Georgeon, as pastor at a February 11, 2018 meeting of the Church. On May 5, 2018, Pastor Gervais signed a contract that was entered into on behalf of the Church by the Church's Board of Deacons and its Administrative Board. The contract was for a probationary period, but it set no specific term of service. On August 16, 2020, Pastor Gervais signed a second contract with the Church that was entered into on the behalf of the Church by the Church's Board of Deacons and its Executive Board. This contract provided that it was for a term of one year and that, prior to the expiration of the year, the Church's Board of Deacons and the Board of Directors would execute a performance review to determine whether a contract extension would be granted.
In a letter dated August 2, 2021, Sonthonax Gay, who identified himself as the president of the Board of Deacons, informed Pastor Gervais that the Board of Deacons and the Board of Leaders of the Church had held a meeting on July 4, 2021, to determine the contract renewal. He indicated that at that meeting they decided not to renew the contract and that the current term of the August 2020 contract would thus expire of its own accord on August 16,2021. Since August 16, 2021, the plaintiffs have sent letters to the defendant deacons (directly or to counsel representing them) in which they assert that Pastor Gervais must still be deemed the pastor of the Church...
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