112 East 35th Street, LLC v. New York Society of the New Church

Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered on or about January 9, 2012, which, after a nonjury trial, dismissed without prejudice the first cause of action, which seeks a declaration with respect to the parties’ “Utilities Agreement,” and the third cause of action, which seeks money damages, and, upon the second cause of action, permanently enjoined defendant from ceasing to provide utilities to the residential building purchased by plaintiff, unanimously reversed, on the law, without costs, the first and third causes of action reinstated, the permanent injunction vacated and the preliminary injunction reinstated, and the matter remanded for review of the utilities agreement pursuant to Religious Corporations Law § 12 (9) and, if approved, interpretation of that agreement.

We hold that the parties’ utilities agreement requires court approval, pursuant to Religious Corporations Law § 12 (1), because it modifies the parties’ previously approved purchase agreement (see Beacon Term. Corp. v Chemprene, Inc., 75 AD2d 350, 354 [2d Dept 1980], lv denied 51 NY2d 706 [1980]). We remand for a determination concerning retroactive judicial approval (see Congregation Yetev Lev D’Satmar of Kiryas Joel, Inc. v Congregation Yetev Lev D’Satmar, Inc., 9 NY3d 297, 301 [2007]; Religious Corporations Law § 12 [9]).

In light of plaintiffs lack of other access to gas, steam, and electricity, we find that the order granting a preliminary injunction against defendant’s termination of utilities to the residential building should be reinstated and remain in effect upon the same conditions set forth therein until this matter is resolved pursuant to our remand. Concur — Friedman, J.P., Acosta, Andrias, DeGrasse and Freedman, JJ.

The decision and order of this Court entered herein on October 24, 2013 (110 AD3d 566 [2013]) is hereby recalled and vacated (see 2014 NY Slip Op 62825[U] [2013] [decided simultaneously herewith]).