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PURSUANT TO THE “MINISTERIAL EXCEPTION,” THE HOSTILE WORK ENVIRONMENT COMPLAINT BY A PRIEST AGAINST THE DIOCESE OF BUFFALO WAS DISMISSED (FOURTH DEPT).

The Fourth Department, determined the “ministerial exception” to employment discrimination applied to petitioner’s complaint against his former employer, the Diocese of Buffalo. Petitioner, a priest serving as pastor of a church, alleged he was subjected ti  a  “hostile work environment:”

Here, SDHR [New York State Division of Human Rights] determined that it lacked jurisdiction over petitioner’s complaint inasmuch as petitioner had been a priest serving as the pastor of a church and the ministerial exception barred his claims. Inasmuch as there is no controlling United States Supreme Court or New York precedent and the federal courts that have addressed the issue are divided on the extent to which the ministerial exception applies to claims of a hostile work environment, we conclude that SDHR’s determination with respect to the hostile work environment claim is not arbitrary and capricious or affected by an error of law … . Matter of Ibhawa v New York State Div. of Human Rights, 2023 NY Slip Op 03585, Fourth Dept 6-30-23

Practice Point: There is a “ministerial exception” to employment discrimination claims by a priest against the diocese-employer. Here the priest’s hostile-work-environment petition was properly dismissed based on the exception.

 

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YESHIVA UNIVERSITY NO LONGER HAS THE REQUISITE CONNECTION TO RELIGION AND THEREFORE IS NOT EXEMPT FROM THE DISCRIMINATION PROHIBITIONS IN THE NYC HUMAN RIGHTS LAW; THE PRIDE ALLIANCE WAS ENTITLED TO RECOGNITION AS AN OFFICIAL STUDENT ORGANIZATION (FIRST DEPT).

The First Department determined a student group (Pride Alliance) at Yeshiva University was entitled to summary judgment pursuant to the NYC Human Rights Law (City HRL)on its claims asserting gender, sexual orientation, and association discrimination. In addition Pride Alliance was entitled to a permanent injunction requiring Yeshiva to recognize the group as an official student organization. Essentially, Yeshiva argued the university was exempt from the requirements of the City HRL as a religious corporation or institution, but the university no longer had the requisite connection to religion: Yeshiva’s constitutional arguments (free exercise of religion, freedom of expression and association) were rejected:

Yeshiva was originally chartered in 1897 under the Membership Corporations Law as the Rabbi Isaac Elchanan Theological Seminary Association (RIETS), with the stated purpose to “promote the study of Talmud” and prepare Orthodox Jewish rabbis for ministry. Over several decades, the charter was amended to allow numerous secular degrees to be awarded and to change the name of the institution, while RIETS remained part of Yeshiva. In 1967, Yeshiva amended its charter to become incorporated under the Education Law. Two years later it amended the charter to drop Hebrew Literature and Religious Education degrees, since RIETS was being spun off as its own corporation offering those degrees, and to “clarify the corporate status of the University as a non-denominational institution of higher learning.” While Yeshiva is now comprised of three undergraduate colleges and seven graduate schools, RIETS remains a separate corporate entity housed on one of Yeshiva’s campuses. YU Pride Alliance v Yeshiva Univ., 2022 NY Slip Op 07175, First Dept 12-13-22

Practice Point: Yeshiva University was not entitled to exemption from the discrimination prohibitions in the NYC Human Rights Law because the university no longer has the requisite connection to religion. Therefore the “Pride Alliance” was entitled to recognition as an official student group.

 

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HOMEOWNER’S EXEMPTION PRECLUDED THE LABOR LAW 240(1) AND 241(6) CAUSES OF ACTION AGAINST THE DEFENDANT PROPERTY OWNER, A RELIGIOUS ORGANIZATION; THE LABOR LAW 200 AND NEGLIGENCE CAUSES OF ACTION ALLEGING THE HOMEOWNER’S LADDER WAS DEFECTIVE PROPERLY SURVIVED SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the homeowner’s exemption applied to preclude plaintiff’s Labor Law 240(1) and 241(6) causes of action in this ladder-fall case. The Labor Law 200 and negligence causes of action (alleging defendant property-owners’ ladder was defective) properly survived summary judgment. The fact that the property-owner is a religious organization did not affect the applicability of the homeowner’s exemption:

The deposition transcripts of the plaintiff and of the defendant’s employee demonstrated that the defendant did not direct or control the plaintiff’s work. Additionally, the deposition transcript of the defendant’s employee and the affidavit of the defendant’s expert architect demonstrated that the defendant was the owner of a one-family dwelling to which the meditation room [which plaintiff was painting when he fell] was an accessory. Contrary to the plaintiff’s contention, the defendant is entitled to the protections of this exemption even though it is a religious organization … . …

The defendant failed to demonstrate, prima facie, that it lacked notice of the allegedly dangerous or defective condition with respect to the ladder … . Reinoso v Han Ma Um Zen Ctr. of N.Y., Inc., 2022 NY Slip Op 03755, Second Dept 6-8-22

Practice Point: The homeowner’s exemption precludes Labor Law 240(1) and 241(6) causes of action against a homeowner which/who does not direct plaintiff’s work, even if the homeowner is a religious organization. The homeowner’s exemption does not apply to Labor Law 200 or negligence causes of action, here based on allegations the homeowner’s ladder was defective.

 

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A RECENT US SUPREME COURT RULING DOES NOT AFFECT THE NYS COURT OF APPEALS RULING THAT REGULATIONS REQUIRING HEALTH INSURANCE POLICIES TO COVER “MEDICALLY NECESSARY ABORTIONS” BUT WHICH EXEMPT POLICIES PROVIDED BY “RELIGIOUS EMPLOYERS” DO NOT IMPAIR THE FREE EXERCISE OF RELIGION (THIRD DEPT).

The Third Department, on remand from the US Supreme Court, determined the Supreme Court’s recent ruling in Fulton v Philadelphia [141 S Ct 1868] did not overturn the NYS Court of Appeals ruling in Catholic Charities of Diocese of Albany [7 NY3d 510]. In Catholic Charities the Court of Appeals held the requirement that health insurance policies cover “medically necessary abortions” but which exempts policies provided by “religious employers” did not impair the free exercise of religion:

… Catholic Charities “is not directly inconsistent with the rationale employed by the United States Supreme Court in any subsequent case, and is thus binding on us as an intermediate appellate court” … .Roman Catholic Diocese of Albany v Vullo, 2022 NY Slip Op 03550, Third Dept 6-2-22

Practice Point: The NYS Court of Appeals ruling In Catholic Charitie [7 NY3d 510] approving the requirement that health insurance policies cover “medically necessary abortions” (with an exemption for “religious employers”) was not affected by the recent ruling by the US Supreme Court in Fulton v Philadelphia [141 S Ct 1868].

 

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THE DOCTRINE OF COLLATERAL ESTOPPEL DID NOT PRECLUDE THIS ACTION TO DETERMINE THE VALIDITY OF THE PURPORTED 2017 ELECTION OF THE BOARD OF DIRECTORS; THE PRIOR ACTION CONCERNED ONLY THE VALIDITY OF THE PURPORTED 2019 ELECTION OF THE BOARD OF DIRECTORS (THIRD DEPT).

The Third Department, reversing Supreme Court, held the doctrine of collateral estoppel did not preclude this Sullivan County action, which sought to determine whether a 2017 election of the board of dIrectors of plaintiff religious corporation was valid. A prior action in Kings County determined a 2019 election of the board of directors of the same corporation was a nullity:

As defendants’ amended petition and the order of Supreme Court … in the Kings County proceeding reflect, the issue to be determined therein was the validity of the 2019 election, not the validity of the 2017 election. Defendants sought in that proceeding to declare the 2019 election a nullity and, as a result, enjoin the individual plaintiffs, purportedly elected in 2019, from acting as the board of directors. Indeed, the court went out of its way during oral argument in that matter to so limit the issue when it stated that it “want[ed] to be very clear that [it was] making no determination in this case as to whether [defendants] have any right to control the corporation by virtue of any acts that predated the [June 2019 election.]” The court further clarified “that [it] take[s] no position on the validity of any actions that [defendants] claim[] to have taken in 2017 and thereafter,” and added that the allegations relating to the 2017 election was part of “[t]he Sullivan County matter” which “is not before [it],” and that the proceeding “has nothing to do with the Sullivan County matter.” More importantly, the order signed by the court was so circumscribed, and granted the amended petition “to the sole extent that it [sought] to invalidate” the 2019 election. Congregation Machne Ger v Berliner, 2022 NY Slip Op 00483, Third Dept 1-27-22

 

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THE INSTRUCTION THAT MOTHER NOT “EXPOSE” THE CHILD TO ACTIVITIES NOT IN KEEPING WITH THE CHILD’S FAITH, WHICH IMPLICITLY REQUIRED THAT THE CHILD NOT BE “EXPOSED” TO MOTHER’S LGBTQ IDENTITY, IS NOT ENFORCEABLE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the instruction that mother not “expose” the child to activities not in keeping with religious requirements during periods of her parental access was unenforceable. Mother identified as a member of the LGBTQ community, and considered herself an Orthodox Jew:

… [A] court oversteps constitutional limitations when it purports to compel a parent to adopt a particular religious lifestyle. “… ‘[I]t is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise'” … . A religious upbringing provision “should not, and cannot, be enforced to the extent that it violates a parent’s legitimate due process right to express oneself and live freely” … . Thus, where the effect of a religious upbringing provision is to compel a parent to himself or herself practice a religion, rather than merely directing the parent to provide the child with a religious upbringing, the provision must be stricken … .

… [T]he challenged restriction does not expressly require the plaintiff to herself comply with the rules of the child’s Orthodox Jewish Chasidic faith during periods of parental access. … [T]he provision in forbidding her to “expose” the child to any activities which violate the child’s Orthodox Jewish Chasidic faith has the same effect … . The only way for the plaintiff to ensure her compliance with the restriction is for her to comply with all religious requirements of the child’s faith during her periods of parental access, lest she “expose” the child to activities not in keeping with those religious requirements. … The defendant [father] was especially concerned that the child would be exposed to people involved in a “gay lifestyle” … . Such restrictions on a parent’s ability to “express oneself and live freely” go beyond requiring a noncustodial parent to support and enable the child’s religious practices, and impermissibly infringe on the noncustodial parent’s rights … . Weichman v Weichman, 2021 NY Slip Op 06211, Second Dept 11-10-21

 

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THE ARBITRATORS’ AWARD IN THIS RELIGIOUS DIVORCE PROCEEDING WAS NOT INVALID BECAUSE THE ARBRITRATORS DID NOT STATE THE REASONS FOR THE AWARD, AND THE AWARD WAS NOT INDEFINITE AND NONFINAL; SUPREME COURT SHOULD NOT HAVE VACATED THE AWARD (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the arbitration award should not have been vacated. The award, issued by a rabbinical tribunal in a religious divorce proceeding, required the respondent to arrange for the religious divorce (a Get) and required petitioner to accept the religious divorce. A lump sum award and maintenance of $10,000 per month was to be held in escrow until the Get is accepted. Supreme Court held the award was indefinite or nonfinal and the arbitrators failed to state the reasons for the award:

Contrary to the conclusion of the Supreme Court, the arbitrators were not required to give reasons for their arbitration award … . Further, the arbitration award did not leave the parties unable to determine their rights and obligations, resolved the controversy before the arbitrators, and did not create a new controversy; therefore, the arbitration award was not indefinite or nonfinal for purposes of CPLR 7511 … . The respondent’s obligation to pay maintenance continued because he failed to arrange for issuance of a Get and termination of the marriage—not because the terms of the arbitration award were not definite. Matter of Rokeach v Salamon, 2021 NY Slip Op 02393, Second Dept 4-21-21

 

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THE REPEAL OF THE RELIGIOUS EXEMPTION TO THE PUBLIC HEALTH LAW REQUIRING VACCINATION AGAINST MEASLES IS CONSTITUTIONAL (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Pritzker, determined that the repeal of the religious exemption to the Pubic Health Law which allowed parents to refuse to vaccinate their children against measles was constitutional. The statute also allows a medical exemption, which was not repealed. The declaratoy-judgment complaint was dismissed for failure to state a cause of action:

It is well settled that, “the right of free exercise [of religion] does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that [one’s] religion prescribes (or proscribes)” … . As such, to state a federal free exercise claim, a plaintiff generally must establish that “the object or purpose of a law is the suppression of religion or religious conduct” … . Significantly, if the law is neutral and of general applicability, a rational basis is all that is required to meet constitutional muster under the First Amendment, even if the law “proscribes (or prescribes) conduct that [one’s] religion prescribes (or proscribes)” … . * * *

Those school children with medical exemptions have been advised by a physician that certain immunizations may be detrimental to their physical health (see Public Health Law § 2164 [8]). There are many arguments to be made as to how children formerly subjected to the religious exemption may also be detrimentally impacted, however, documented concerns as to the physical well-being of children with medical exemptions is a sufficient basis upon which to distinguish the two groups. Indeed, it would be irrational to sacrifice the physical health of some children in the pursuit of protecting public health. In attempting to address the vulnerabilities in its current immunization scheme, the Legislature was permitted to exercise such “broad discretion required for the protection of the public health” … . F.F. v State of New York, 2021 NY Slip Op 01541, Third Dept 3-18-21

 

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THE 1896 DEED FROM THE PLAINTIFF WHICH TRANSFERRED THE PROPERTY TO DEFENDANT DIOCESE WITH THE LIMITATION THAT IT BE USED AS A CHURCH CREATED A POSSIBILITY OF REVERTER WHICH TRANSFERRED THE PROPERTY BACK TO THE PLAINTIFF WHEN THE PROPERTY STOPPED BEING USED AS A CHURCH IN 2015 (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the 1896 deed to defendant Catholic diocese, which limited the use of the property to serving as a church, conveyed a fee on limitation with a possibility of reverter, which transferred the property to back to plaintiff when the diocese stopped using the property as a church in 2015:

As plaintiff still held a possibility of reverter, resolution of the RPAPL article 15 action hinges upon whether defendant violated the limitation restricting the use of the property to church purposes. The parties’ joint stipulation of facts includes the 2015 decree from the Bishop of Ogdensburg that relegated the church “to profane but not sordid use,” and indicated that parishioners would be served by a nearby parish. … The stained-glass windows and the altar were later removed, leaving only the pews. Under the canon law of the Roman Catholic Church, “if a church cannot be used in any way for divine worship and there is no possibility of repairing it,” it can be relegated to profane but not sordid use … . “Profane use means use for purposes other than a Roman Catholic worship service,” and “sordid” limits that use, prohibiting any use that is disrespectful to the Catholic Church … . Contrary to defendant’s contentions, we find that defendant’s use of the property for church purposes ceased pursuant to the 2015 decree, thus violating the limitation in the 1896 deed. Accordingly, it reverted to plaintiff, which now owns the property in fee simple. Paul Smith’s Coll. of Arts & Sciences v Roman Catholic Diocese of Ogdensburg, 2020 NY Slip Op 05012, Third Dept 9-17-20

 

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THE REGULATION REQUIRING NEW YORK HEALTH INSURANCE POLICIES TO COVER MEDICALLY NECESSARY ABORTION SERVICES, WHICH INCLUDES AN EXEMPTION FOR ‘RELIGIOUS EMPLOYERS,’ IS CONSTITUTIONAL AND WAS PROPERLY PROMULGATED (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Colangelo, affirming Supreme Court, determined the regulation requiring health insurance policies in New York to provide coverage for medically necessary abortion services, which includes an exemption for “religious employers,” was properly promulgated and was constitutional. The Court of Appeals decision upholding a similar regulation for prescription contraceptives,  Catholic Charities of Diocese of Albany v Serio (7 NY3d 510 [2006] …), was deemed the controlling precedent:

At issue in Catholic Charities of Diocese of Albany was the validity of a provision of the Women’s Health and Wellness Act (…[hereinafter WHWA]) that requires health insurance policies that provide coverage for prescription drugs to include coverage for prescription contraceptives … . The WHWA also provided an exemption from coverage for “religious employers” (Insurance Law § 3221 [l] [16] [E]), which exemption contains the identical criteria as the exemption applicable here … . … As the constitutional arguments raised by plaintiffs here are the same as those raised and rejected in Catholic Charities of Diocese of Albany, Supreme Court properly concluded that they must meet the same fate by operation of the doctrine of stare decisis. “Stare decisis is the doctrine which holds that common-law decisions should stand as precedents for guidance in cases arising in the future and that a rule of law once decided by a court will generally be followed in subsequent cases presenting the same legal problem” … .

We agree with Supreme Court that an analysis of the Boreali factors [Boreali v Axelrod, 71 NY2d 1] weighs in favor of rejecting plaintiffs’ challenge that the Superintendent exceeded regulatory authority in promulgating the regulation at issue here. Roman Catholic Diocese of Albany v Vullo, 2020 NY Slip Op 03707, Third Dept 7-2-20

 

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