IN RE: MISSION FIELD CHURCH (2023)

DECISION & ORDER

In a proceeding pursuant to Religious Corporations Law § 18 for the judicial dissolution of a religious corporation, the proposed intervenor Anthony Lindsay III appeals from two orders of the Supreme Court, Kings County (Lisa S. Ottley, J.), both dated September 5, 2019.  The first order, insofar as appealed from, denied that branch of the motion of the proposed intervenor Anthony Lindsay III which was pursuant to CPLR 5015(a) to vacate an order of the same court dated November 14, 2018, granting the second amended petition for the judicial dissolution of the petitioner, and granted that branch of the petitioner's cross-motion which was to cancel a mechanic's lien filed against certain real property.  The second order, insofar as appealed from, in effect, denied the same relief to the proposed intervenor Anthony Lindsay III.

ORDERED the orders dated September 5, 2019, are affirmed insofar as appealed from, with one bill of costs.

The petitioner commenced this proceeding pursuant to Religious Corporations Law § 18 for the judicial dissolution of itself as a religious corporation.  In an order dated November 14, 2018, the Supreme Court granted the second amended petition for judicial dissolution.  Subsequently, the proposed intervenor Anthony Lindsay III, a member of the petitioner's board of the directors, moved, inter alia, pursuant to CPLR 5015(a) to vacate the order dated November 14, 2018.  The petitioner cross-moved, among other things, to cancel a mechanic's lien that was filed by Lindsay on behalf of a limited liability company against certain real property owned by the petitioner.  In an order dated September 5, 2019, the Supreme Court, inter alia, denied that branch of Lindsay's motion which was pursuant to CPLR 5015(a) to vacate the order dated November 14, 2018, and granted that branch of the petitioner's cross-motion which was to cancel the mechanic's lien.  In a second order dated September 5, 2019, the court, among other things, in effect, denied that branch of Lindsay's motion which was pursuant to CPLR 5015(a) to vacate the order dated November 14, 2018.  Lindsay appeals.

The Supreme Court properly denied that branch of Lindsay's motion which was pursuant to CPLR 5015(a) to vacate the order dated November 14, 2018.  Contrary to Lindsay's contention, he did not allege “extrinsic fraud,” which is “a fraud practiced in obtaining a judgment such that a party may have been prevented from fully and fairly litigating the matter” (Wells Fargo Bank Minn., N.A. v. Coletta, 153 A.D.3d 756, 757, 59 N.Y.S.3d 788 [internal quotation marks omitted]).  Rather, he alleged “intrinsic fraud, i.e., that the allegations in the [petition] are false” (LaSalle Bank N.A. v. Oberstein, 146 A.D.3d 945, 945, 45 N.Y.S.3d 538).  “Where a defendant seeks to vacate a default pursuant to CPLR 5015(a)(3) based on intrinsic fraud, he or she must establish a reasonable excuse for the default and a potentially meritorious defense to the action” (U.S. Bank, N.A. v. Gadson, 181 A.D.3d 748, 748, 117 N.Y.S.3d 879).  Here, since Lindsay failed to present an excuse for his default, it is unnecessary to consider whether he presented a potentially meritorious defense (see HSBC Bank USA, N.A. v. Walker, 201 A.D.3d 795, 797, 162 N.Y.S.3d 82).

Lindsay's remaining contentions are without merit.

DILLON, J.P., CHAMBERS, FORD and WAN, JJ., concur.