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Eugene Stoupine, Nadejda Mamysheva, Olga Stoupine v. Philip Petrovsky

April 30, 2012

EUGENE STOUPINE, NADEJDA MAMYSHEVA, OLGA STOUPINE AND PAVEL MAMYSHEV, INDIVIDUALLY AND ON BEHALF OF ST. NICHOLAS RUSSIAN EASTERN ORTHODOX CHURCH, PLAINTIFFS-APPELLANTS,
v.
PHILIP PETROVSKY, SERGE LUKIANOV, PETER LUKIANOV, TD BANK NORTH, SUCCESSOR ENTITY TO COMMERCE BANK, COMMERCE BANK, ST. NICHOLAS RUSSIAN EASTERN ORTHODOX CHURCH OUTSIDE OF RUSSIA, AND THE METROPOLITAN SEE OF THE RUSSIAN ORTHODOX CHURCH OUTSIDE OF RUSSIA, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Chancery Division, Monmouth County, Docket No. C-165-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Telephonically argued December 7, 2011

Before Judges Messano, Espinosa and Kennedy.

Plaintiffs appeal Chancery Division orders entered on December 2, 2010, dismissing their complaint against defendants. For reasons that follow, we affirm.

This appeal arises from a dispute over church control between former and present members of a parish council. Although plaintiffs have brought allegations that certain defendants improperly gained control of church funds, it is stipulated that no funds belonging to the church have been misused or otherwise applied to anything other than appropriate church business.

On May 4, 2010, plaintiffs Eugene Stoupine, Nadejda Mamysheva, Olga Stoupine and Pavel Mamyshev, individually and "on behalf of St. Nicholas Russian Eastern Orthodox Church" (sometimes hereinafter collectively referred to as plaintiffs) filed an amended verified complaint against defendants and alleged that, as members of the parish council of Saint Nicholas Russian Eastern Orthodox Church (St. Nicholas Church) in Red Bank, plaintiffs were "entrusted with the maintenance and financial management" of the church. Plaintiffs asserted that on January 30, 2008, defendant Serge Lukianov, the church rector, "caused the improper and unauthorized withdrawal of all parish monies from three accounts" at Commerce Bank, predecessor of TD Bank, North (hereinafter the Bank).

Plaintiffs claimed that Lukianov "unilaterally and improperly removed the signature" of the parish secretary and treasurer from the accounts' signatory list and "usurped the financial oversight" of the parish council. Plaintiffs further alleged that Lukianov later convened an "improper and unauthorized" parish meeting in order to conduct an "improper and unauthorized election for [p]arish [c]ouncil." Plaintiffs asserted that the new council members had not been granted membership in the church and were thus ineligible for election to the council.

The first count of the amended verified complaint asserted that in causing a "fraudulent election" and in permitting the unauthorized withdrawal of church funds, plaintiffs were harmed. They sought various forms of relief, including an order "freezing" church bank accounts; the removal of certain defendants as signatories on church bank accounts; the removal of all "current [p]arish [c]ouncil members"; and an order restraining defendants from "conducting any church business." The second count alleged that the Bank breached its agreement with St. Nicholas Church by allowing accounts to be drawn upon in violation of a depositor contract which required two signatures from among plaintiffs Eugene Stoupine, Nadejda Mamysheva, and defendant Petrovsky to authorize any withdrawal of funds.

On November 17, 2010, the Bank filed a motion to dismiss the amended verified complaint pursuant to the Establishment Clause of the First Amendment to the United States Constitution. The remaining defendants filed a similar motion. Plaintiffs opposed the motion, and on November 30, 2010, the parties agreed that the court could decide the motions predicated upon jointly-submitted "undisputed facts." We summarize the undisputed facts.

As of January 1, 2008, plaintiffs were a "subset" of the St. Nicholas Parish Council. In February 2001, St. Nicholas Church opened two bank accounts at the Bank and listed Eugene Stoupine, Nadejda Mamysheva and defendant Petrovsky, a Russian Orthodox priest and rector of St. Nicholas Church, as the authorized signatories. The deposit contract with the Bank provided that funds may be withdrawn on the signature of "any two" of the designated "officers or employees." Subsequently, in February 2007, St. Nicholas Church opened a certificate of deposit at the Bank with Nadejda Mamysheva as the authorized signatory.

On January 10, 2008, "[d]iocesan authorities formally appointed defendant Serge Lukianov as Rector of St. Nicholas" Church and, by virtue of that position, he also became president of the parish council. Shortly thereafter, a dispute arose between plaintiffs and Lukianov over the St. Nicholas Church bank accounts. On January 29, 2008, the Communications Director for the Synod of Bishops of the Russian Orthodox Church Outside of Russia, with which St. Nicholas Church is affiliated, certified that Lukianov, as rector, was authorized to be a signatory on all financial accounts of the church along with the church's treasurer and secretary. The next day, after receiving the certification of the Communications Director, the Bank transferred $64,006.09 from existing church accounts to a new church account opened by Petrovsky, the former rector, and Lukianov, the current rector.

Shortly after the transfer, plaintiffs contacted the Bank and alleged that the transfer of funds was improper and unauthorized. The Bank immediately froze all church accounts and called the Red Bank Police Department. A Red Bank detective and a representative of the Bank then contacted Bishop Gabriel of the New York and Eastern America Diocese of the Russian Orthodox Church Outside of Russia about the controversy over the church funds. On February 14, 2008, Bishop Gabriel issued a church directive (called a "Ukaz") appointing the diocesan treasurer, Deacon Dmitri G. Temidis, as temporary treasurer of St. Nicholas Church, and directing all parish council members and officers to release all banking and other records to Temidis. The Ukaz further provided that no checks were to be sent on behalf of the church by anyone other than the temporary treasurer and that all bills and "collections" were to be provided to Lukianov who in turn would transfer them to Temidis.

The Bishop further directed that "in addition to the Reverend Serge Lukianov, Deacon Dmitri G. Temidis is appointed as temporary signatory on the new bank account[.]" Upon receipt of this directive, the Bank closed all existing church accounts and opened two new accounts in the name of St. Nicholas ...


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