Both S&R Development and the Sisters of the Blessed Sacrament nuns are awaiting decisions on motions in state court concerning their battle over 1 Dromore Road.
The latest motions from both sides, filed May 24, ask for summary judgments, meaning there’s a chance the state court case could be over when the judge makes a ruling. No judge has yet been assigned to this case.
The battle between S&R Development and the nuns stems from a restrictive covenant the nuns are choosing to enforce — an enforcement preventing the developers from erecting what S&R says will be an affordable housing structure.
The covenant the sisters are enforcing is the creation of George Fountain who, in 1912, subdivided his land into 10 parcels and added a covenant to that subdivision. The nuns’ monastery sits on a parcel neighboring S&R’s property.
According to the language in the covenant, no “tenement or flat house” is allowed on any of the parcels. In this case, “tenement or flat house” translates to apartment building.
For an owner of one of the parcels to operate outside the guidelines of the covenant, the other property owners within the subdivided parcels must release them from the covenant.
S&R Development is arguing the nuns’ ability to enforce the covenant in state court, claiming the nuns get no actual benefit from enforcing the covenant. In addition, they argue the nuns have themselves violated the covenant and have allowed other entities within the 10 subdivisions to violate the covenant.
According to court records, S&R claims the nuns have been running a business outside of their nunnery by selling Communion wafers.
The developer argues the restrictive covenant from Fountain prohibits running any businesses on the land.
However, according to court records, Robert Bernstein, the attorney representing the nuns, claims the covenant doesn’t allow the erection of a building for the purpose of running a business. Bernstein claims the covenant does not prohibit running a business out of a building that was intended for a separate use.
Bernstein told The Inquirer the nuns sell the wafers as part of compliance with their religion.
S&R also argues the nuns have taken no issue with the Greenburgh Nature Center, which S&R claims acts as a business on the land.
However, according to court records, Bernstein said, the nature center — as described on its website — operates as a nonprofit entity, not a for-profit business.
On the nuns’ side, Bernstein argues it is on the developers — not the nuns — to prove the nuns gain no substantial benefit from the covenant.
Furthermore, he said, a 42-page affidavit from Richard Troy, co-owner of S&R with his brother Stephen, is inadmissible. Bernstein argues Richard Troy, who is an attorney, did not himself experience or have personal knowledge of the events he discusses in his affidavit, such as testimony from Sister Mary Blackmore or GNC’s “business” operations.
Bernstein said Richard Troy’s affidavit comes instead from his personal review of documents related to the case. He said there is precedent that proves an affidavit cannot come from a lawyer relying on documents related to the case and not personal knowledge.
As for substantial benefit, Bernstein has been consistent in pointing out the nuns are a contemplative order. This means they must spend much of their day praying. This is aided by a quiet environment the nuns believe would be hurt by a neighboring apartment building.
On a related note, within this case is an attempt by S&R to paint at least one of the nuns — Sister Mary Blackmore — as discriminatory.
During a deposition of Blackmore, S&R’s attorneys asked about her views on the differences between children at the nature center and children in the potential affordable apartment building.
S&R points to this deposition as part of its argument that the nuns cannot claim they get the “substantial benefit” of quietness when there are children making noise at the nature center during the day.
“Do you have reason to believe the kids in the proposed apartment building would not be supervised by their parents?” S&R attorneys asked.
“Well, it would all depend on their upbringing and everything,” Blackmore said. “You wouldn’t know what kind of teenagers or — you know — or children or kids.”
The attorneys later asked why Blackmore was sure children would be supervised at the nature center but was not sure children from the apartment building would be supervised.
“Well, just take a look at what is going on in the world today,” Blackmore said. “I don’t know if the parents even know where their kids are.”
Bernstein, in his reply to S&R’s motion, fought back against the notion that Blackmore is acting from a racially discriminatory motive.
He included an affidavit from Sister Mary Angela, an African-American woman, who has been part of the Sisters since 1976.
“As a Black Sister I can truly say that everyone inside the walls of this convent is ‘color blind,” Angela said. “Our spiritual work is based on a love of humanity, period. Anyone can come to our monastery to pray. We do not discriminate.”
Another nun, Sister Mary Linda, said the suggestion the nuns are acting in a discriminatory manner against “low-income people” is “utterly preposterous.”
“The truth is, if we were not a contemplative order that needed seclusion, and if an apartment building was to be built next door, and if I could choose who would live there, then I would choose low-income people because they are the neediest,” Linda said.
Bernstein said the use of Blackmore’s comments are irrelevant to the argument about whether or not the nuns gain “actual and substantial benefit from the covenant.”
Even so, there is a separate case in Westchester Supreme Court in which S&R is suing the nuns for housing discrimination.
The town of Greenburgh, one of the defendants in the case, filed a motion to dismiss but Westchester Supreme Court Judge Cathy Seibel denied that motion in September 2017.
According to Bernstein, the Supreme Court case is currently in document discovery.
It should be noted if the Supreme Court case goes to trial Bernstein will no longer be able to represent the nuns.
Seibel ruled in her decision that Bernstein will likely be a material witness in the case.
Bernstein, as the head of the Edgemont Community Council and a prominent member of the Edgemont community, fought the S&R project as a private citizen through public meetings and Article 78 lawsuits before becoming the nuns’ attorney.
Adam Stein, an attorney representing S&R, did not respond to a request for comment by press time.