Big Tree Ass'n v. Grand Lodge, Independent Order of Odd Fellows
Court: Appellate Division of the Supreme Court of the State of New York; September 27, 1996; New York; State Appellate Court
Order affirmed unanimously without costs. The Supreme Court properly denied the motion to vacate its previous order dissolving the petitioner, a not-for-profit organization, and directing the distribution of its assets to the Avon Lodge, International Order of Odd Fellows, in accordance with Not-For-Profit Corporation Law § 1005(a)(3). The Grand Lodge's claim, introduced for the first time on appeal, regarding the premature nature of the petitioner’s motion for summary judgment due to lack of joined issue, was unpreserved for review under CPLR § 4017 and § 5501(a)(3). Nonetheless, an issue had been joined as the New York State Department of Taxation filed an answer to the dissolution petition. Following the court’s reargument grant, the Grand Lodge submitted substantial opposition materials and cross-moved for summary judgment, effectively serving as an answer that outlined its defenses. The Grand Lodge argued that it raised a material issue of fact to counter the petitioner’s summary judgment motion; however, the court found that the Grand Lodge failed to provide evidence showing that the petitioner transferred any interest in the disputed property as mandated by General Obligations Law § 5-703(1). The historical connection of the petitioner’s members to the Big Tree Lodge and adherence to Grand Lodge's constitution and bylaws in 1958 did not impact the determination of property transfer under the law.