This companion case, an Article 78 Petition, was brought on March 17, 2006 by All Saints Anglican Church f/k/a All Saints Protestant Episcopal Church against The Episcopal Diocese of Rochester and the Rt. Rev. Jack M. McKelvey in his capacity as the Bishop of the Diocese of Rochester. For a complete recitation of the facts in this case, see the accompanying memo.

In the Verified Petition, petitioner claims it is entitled to relief pursuant to CPLR 7806 annulling respondents' action of any declaration that petitioner is "extinct" forcorporate and legal purposes and also declaring that the action of November 19, 2005 is a legal nullity and has no effect on the petitioner, the title to its property, or the status of its corporate existence.

Petitioner supports its petition with an Affidavit of Rev. David Harnish with corresponding exhibits. Respondents submitted an answer to the petition with affirmative defenses/ counterclaims, and thereafter, petitioners served a verified reply to the counterclaim. In addition, the papers supporting and opposing the companion summary judgment motion also address the Article 78 Petition.

As asserted in the Verified Petition at paragraph 25, All Saints Episcopal Church "seeks no review of any purely ecclesiastical action of the [Diocese or Bishop McKelvey] or of the Convention which declared [All Saints Episcopal Church] extinct', since it would be inappropriate and in violation of the First Amendment of the United States Constitution, and the corresponding provisions of the New York State Constitution, to force [the Diocese] as a church body to accept [All Saints Episcopal Church/All Saints Anglican Church] as a member of the diocese in the face of [the Diocese's] clear declaration for purely ecclesiastical purposes that the relationship between [All Saints Episcopal Church/All Saints Anglican Church] and the Diocese is now extinct.'" [*2]

The Diocese has offered to execute a stipulation of discontinuance of the Article 78 proceeding where both parties would stipulate that the November 19, 2005 resolution declaring All Saints Episcopal Church dissolved ecclesiastically as an Episcopal parish did not dissolve All Saints Episcopal Church as a religious corporate entity. But the local church declined to so stipulate.

As the Court of Appeals stated with respect to the First Amendment as applied to the states through the Fourteenth Amendment:

[C]ivil courts are forbidden from interfering in or determining religious disputes. Such rulings violate the First Amendment because they simultaneously establish one religious belief as correct for the organization while interfering with the free exercise of the opposing faction's beliefs (Maryland & Va. Churches v. Sharpsburg Church, 396 U.S. 367, 369, 90 S.Ct. 499, 500, 24 L.Ed.2d 582 [Brennan, J., concurring]; see Nowak, Rotunda & Young, Constitutional Law [2d ed], ch 19, § IV, pp 1071-1072; Tribe, American Constitutional Law, § 14-12, pp 870-872). The Constitution directs that religious bodies are to be left free to decide church matters for themselves, uninhibited by State interference (Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696, 96 S.Ct. 2372, 49 L.Ed.2d 151; Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 116, 73 S.Ct. 143, 154, 97 L.Ed. 120).

First Presbyt. Church of Schendectady v. United Presbyt. Church in U.S., 62 NY2d 110, 116-17 (1984), rearg. denied 63 NY2d 676, cert denied 469 U.S. 1037; see also Congregation Yetev Lev D'Satmar, Inc. v. Jacob, ____ AD3d ____, 2006 WL 1899142 (2d Dept. 2006).

Since both parties agree that the corporation was not dissolved and only the parish was ecclesiastically dissolved, and since both parties agree that purely ecclesiastical decisions are not reviewable by any Court as indicated above, and based on the findings in the companion summary judgment memo, this petition is dismissed.

SO ORDERED.

______________________

Kenneth R. Fisher

Justice Supreme Court

DATED:September 13, 2006

Rochester, New York