Church at Novo-Diveevo convent in Nanuet, Rockland County, New York, Photo: Violette79/Wikipedia/CC

Citing the First Amendment’s mandate that civil courts not interfere in religious disputes, a state appeals panel has deemed “nonjusticiable” an ejectment action brought by a Russian Orthodox convent against a nun who was defrocked and ordered to vacate her convent home after she alleged that a resident priest was sexually harassing and abusing her.

The Appellate Division, Second Department 3-2 majority decision not to involve itself in the controversy leaves former nun Maria (Lydia) Sukharevskaya still living in her 8-foot-by-10-foot room at the Russian Orthodox Convent Novo-Diveevo in Nanuet, where she’s made her home since 1999, despite convent efforts dating back to 2006 to get her out.

But according to one of her lawyers, James Riley, who has been working her case pro bono for the last 12 years, the former nun is “fragile” and “exhibiting anxiety” as she is worried that the church may now take unilateral actions to remove her from her home.

“She is upset. She does not know what lies ahead in her immediate future or long-term future,” Riley told the Law Journal on Wednesday, adding that Sukharevskaya, who is in her late 50s, immigrated in the 1990s from Ukraine directly into the convent.

Riley also said she “is extremely disappointed about the [appeals court] result, and she probably should not be alone in her concern about the injury that may be imposed on legitimate complainants in sexual abuse, church-related situations.”

Meanwhile, the convent’s counsel in the case, Donald Feerick, said in an interview Wednesday that the majority’s decision “allows the parties to resolve it themselves,” and that while the convent will take a “humane approach” to Sukharevskaya, it will ask for a current ruling on her residency status from church hierarchy in New York City.

If the ruling—as it has been in the past—is that she must leave, then she may be removed, he said. He added that “leaving the parties to their own devices is the court’s decision, and what happens next can become a bigger issue.”

A majority panel of the Second Department wrote in a detailed opinion that eviction and ejection actions lodged by the convent against Sukharevskaya “are inextricably intertwined with the determinations of the ecclesiastical court” that chose to defrock her and order her to vacate the convent grounds.

“The resolution of the consolidated action necessarily involves an assessment of the propriety of the defendant’s defrockment in light of her allegations of sexual misconduct against a priest,” the majority panel, comprised of Justices Reinaldo Rivera, Mark Dillon and Jeffrey Cohen, wrote.

Accordingly, if the Second Department “were to engage in a process here of disentangling the ecclesiastical issues from the civil law issues, we would impermissibly be inserting ourselves into matters of an ecclesiastical nature,” the justices explained, quoting in their opinion Matter of Congregation Yetev Lev D’Satmar v Kahana, which noted that “the First Amendment forbids civil courts from interfering in or determining religious disputes.”

But two dissenting justices, in an opinion written by Justice Francesca Connolly, countered that “this case should be decided under neutral property-rights principles, and that the religious nature of the parties’ dispute is a red herring, which serves to distract this Court from deciding the controversy before it.”

“The plaintiff [convent] established, prima facie [in a nonjury trial held in the lower court], that it is the owner of the property, that it requested the defendant to vacate the property, and that the defendant failed to do so,” Connolly wrote.

In turn, the legal burden shifted to Sukharevskaya who, Connolly said, “failed to establish that had she not been defrocked (i.e., if she remained in good status as an ordained nun), she would have enjoyed a legally enforceable right to remain and live at the property in perpetuity.”

Connolly, joined by Justice Colleen Duffy, also said that “while the majority holds that the parties must find a way to resolve the dispute on their own, the very existence of this lawsuit proves that they cannot.” Moreover, “the majority’s determination effectively converts the defendant’s license to reside at the property into a life estate in complete derogation of the plaintiff’s rights as a real property owner,” she wrote.

The dispute between Novo-Diveevo and Sukharevskaya dates back to 2003, according to the majority panel. It was that year that Sukharevskaya, then still a nun, complained to convent superiors about sexual misconduct by one of its priests living on the grounds, the justices said in the unsigned majority opinion.

According to Sukharevskaya’s lawyer, Riley—who cited court records—the priest allegedly harassed and abused Sukharevskaya for several years, including by exposing himself to her and attempting to touch her. The priest, unnamed by the Second Department, still lives at the convent, according to Feerick.

In the wake of Sukharevskaya’s complaints about the priest, ruling church bishops in 2005 told her to vacate the convent, which sits on some 40 bucolic acres located about 20 miles north of New York City. But the nun refused to leave, the majority panel wrote.

In turn, a Russian Orthodox ecclesiastical court disciplined Sukharevskaya in 2006 by stripping her of her right to wear religious garments and receive communion.

Then, in January 2006, the convent launched summary legal proceedings in the Justice Court for the Town of Clarkstown, in Rockland County, aimed at evicting Sukharevskaya and another “similarly situated” nun who is now deceased, the justices said.

But despite the ecclesiastical and civil-court legal efforts directed at Sukharevskaya, she continued to complain of sexual harassment committed by the priest, the justices wrote.

Then, in 2008, an ecclesiastical court permanently defrocked Sukharevskaya and, on that basis, ruled that her convent residency must end.

In addition, the sprawling convent itself—which, according to its website, has two churches, an adult home, a retreat house, sacred relics and what it calls the largest Russian Orthodox cemetery outside of Russia—later filed an action in Rockland County Supreme Court to eject Sukharevskaya and recover damages for her residence occupancy.

Justice Robert Berliner in turn consolidated the action before him with the town court summary proceedings, and held a bench trial, the majority panel said. He ruled that Sukharevskaya had established an equitable defense to eviction and ejectment.

Specifically, Berliner found that both the launching of legal proceedings and ecclesiastical court findings against Sukharevskaya had come in retaliation for her allegations of sexual misconduct by the priest; and in 2015, he dismissed both the Supreme Court complaint and summary proceeding levied against Sukharevskaya.

The convent appealed.

In the majority justices’ Nov. 28 opinion, they wrote that the law would allow them to render a decision in the controversy only if “neutral principles of law” would resolve it.

And that couldn’t happen, they said, because any resolution of the convent-Sukharevskaya dispute “necessarily involves an assessment of the propriety of the defendant’s defrockment in light of her allegations of sexual misconduct.”

“Therefore the convent’s claims are nonjusticiable, as any such resolution of them would involve an impermissible inquiry into religious doctrine or practice,” they wrote. In addition, the majority justices discussed at length Matter of Congregation Yetev Lev D’Satmar, which they said is “the closest precedent that we have to guide our decision.”

But Connolly and Duffy—who concurred in part and dissented in part from the majority’s opinion—said that Berliner’s decision should be modified to rule against Sukharevskaya on the particular cause of action for ejectment.

In their view, the majority had misunderstood or misapplied the law, because neutral principles of law could indeed decide the ejectment.

Even assuming Sukharevskaya’s equitable-estoppel claims of retaliation are true, wrote Connolly, the former nun failed to establish an ejectment defense because she “failed to establish that had she not been defrocked (i.e., if she remained in good status as an ordained nun), she would have enjoyed a legally enforceable right to remain and live at the property in perpetuity.”

“Under the foregoing analysis, it is unnecessary to reach the issue of whether the defendant’s defrocking was improper,” Connolly wrote. “I disagree with the majority’s conclusion that the religious nature of the parties’ dispute compels dismissal of the complaint.”

“Rather, under the circumstances of this case, the neutral-principles-of-law doctrine requires that this Court treat the ecclesiastical court’s determination to defrock the defendant as binding upon the parties,“ the justice added.

The convent’s lawyer, Feerick, of Feerick Lynch MacCartney & Nugent in South Nyack, said Wednesday that he and the convent do not intend to seek leave to appeal and are “happy with the [majority] decision because it recognizes the significance of the church hierarchy and decision-making process.”

“The convent operates within the allegiances to the Russian Orthodox Church and the mandate of the ruling bishops, and fulfilling these mandates is what they will do,” he added.

Riley, a private attorney who represented Sukharevskaya along with Alexander Bursztein of the Legal Aid Society of Rockland County, said Wednesday that he and his client were disappointed with the majority’s decision. He also declined to make the former nun available for an interview.

“We are disappointed that the court felt compelled to effectively neutralize and dismiss valid charges concerning retaliation for alleged sexual abuse and misconduct that took place over a course of several years,” he said. “Although the First Amendment compels that courts do not interfere in church matters, we respectfully submit that there are limitations on such a hands-off interpretation of the constitution.”

He added that “what this decision does is leave religious disputes to the church members and laity involved to be addressed on a self-help basis, and when there is no governmental help in these issues chaos can result.”