Berlin v. New Hope Holiness Church of God, Inc.

Appellate Division of the Supreme Court of New York

Berlin v. New Hope Holiness Church of God, Inc.

93 A.D.2d 798, 460 N.Y.S.2d 961, 1983 N.Y. App. Div. LEXIS 17646

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 4, 1983

StatusPublished

Cited by7 cases

This text of 93 A.D.2d 798 (Berlin v. New Hope Holiness Church of God, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Berlin v. New Hope Holiness Church of God, Inc., 93 A.D.2d 798, 460 N.Y.S.2d 961, 1983 N.Y. App. Div. LEXIS 17646 (N.Y. Ct. App. 1983).

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— In a foreclosure action, the appeal is from an order of the Supreme Court, Westchester County (Coppola, J.), dated January 14, 1982, which denied appellants’ motion to, inter alia, vacate a default judgment entered against them. Order affirmed, with $50 costs and disbursements. We note at the outset that appellants have utterly failed to proffer any excuse for their default in answering the complaint. The defendant mortgagor was personally served with the summons and complaint on June 2, 1981. On July 6, 1981 a notice, pursuant to CPLR 308, together with an additional copy of the summons and complaint and affidavit of service of the original process, were mailed to the defendant mortgagor. Judgment of foreclosure and sale was granted on August 25,1981. It was not until September 23, 1981 that the defendant mortgagor, then in default for a period of over 90 days, sought to vacate the judgment of foreclosure. In a motion to vacate a default judgment under CPLR 5015 (subd [a], par 1), a movant is required to demonstrate both a valid excuse for a default and a meritorious defense to the underlying action (Eaton v Equitable Life Assur. Soc. of U. S., 56 NY2d 900; Q.P.I. Rests, v Slevin, 58 NY2d 769, revg 88 AD2d 844; Barasch v Micucei, 49 NY2d 594; Bruno v Village of Port Chester, 77 AD2d 580, app dsmd 51 NY2d 769; Meyer v Parr Co. of Suffolk, 50 AD2d 927). Since no valid excuse for such default has been forthcoming, Special Term properly exercised its discretion in denying the appellants’ motion, inter alia, to vacate the default judgment. We therefore do not reach the merits of the appellants’ defense to the action. Nonetheless, we believe it is necessary to correct Special Term in its interpretation of the law. Subdivision 1 of section 12 of the Religious Corporations Law requires a religious corporation to apply for and obtain the court’s permission in order to mortgage any of its property (see Bernstein v Friedlander, 58 Mise 2d 492; cf. Church of God ofProspect Plaza v Fourth Church of Christ, Scientist, of Brooklyn, 76 AD2d 712, affd 54 NY2d 742). Contrary to Special Term’s interpretation, the duration of the mortgage does not affect this requirement. Further, we do not determine whether the original mortgage was within the purview of section 12 of the Religious Corporations Law. Titone, J. P., Bracken and Niehoff, JJ., concur.

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— In a foreclosure action, the appeal is from an order of the Supreme Court, Westchester County (Coppola, J.), dated January 14, 1982, which denied appellants’ motion to, inter alia, vacate a default judgment entered against them. Order affirmed, with $50 costs and disbursements. We note at the outset that appellants have utterly failed to proffer any excuse for their default in answering the complaint. The defendant mortgagor was personally served with the summons and complaint on June 2, 1981. On July 6, 1981 a notice, pursuant to CPLR 308, together with an additional copy of the summons and complaint and affidavit of service of the original process, were mailed to the defendant mortgagor. Judgment of foreclosure and sale was granted on August 25,1981. It was not until September 23, 1981 that the defendant mortgagor, then in default for a period of over 90 days, sought to vacate the judgment of foreclosure. In a motion to vacate a default judgment under CPLR 5015 (subd [a], par 1), a movant is required to demonstrate both a valid excuse for a default and a meritorious defense to the underlying action (Eaton v Equitable Life Assur. Soc. of U. S., 56 NY2d 900; Q.P.I. Rests, v Slevin, 58 NY2d 769, revg 88 AD2d 844; Barasch v Micucei, 49 NY2d 594; Bruno v Village of Port Chester, 77 AD2d 580, app dsmd 51 NY2d 769; Meyer v Parr Co. of Suffolk, 50 AD2d 927). Since no valid excuse for such default has been forthcoming, Special Term properly exercised its discretion in denying the appellants’ motion, inter alia, to vacate the default judgment. We therefore do not reach the merits of the appellants’ defense to the action. Nonetheless, we believe it is necessary to correct Special Term in its interpretation of the law. Subdivision 1 of section 12 of the Religious Corporations Law requires a religious corporation to apply for and obtain the court’s permission in order to mortgage any of its property (see Bernstein v Friedlander, 58 Mise 2d 492; cf. Church of God ofProspect Plaza v Fourth Church of Christ, Scientist, of Brooklyn, 76 AD2d 712, affd 54 NY2d 742). Contrary to Special Term’s interpretation, the duration of the mortgage does not affect this requirement. Further, we do not determine whether the original mortgage was within the purview of section 12 of the Religious Corporations Law. Titone, J. P., Bracken and Niehoff, JJ., concur.

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93 A.D.2d 798, 460 N.Y.S.2d 961, 1983 N.Y. App. Div. LEXIS 17646, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berlin-v-new-hope-holiness-church-of-god-inc-nyappdiv-1983.

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