Opinion
2013-11-27
RASTISLAR CHMELOVSKY, plaintiff, v. COUNTRY CLUB HOMES, INC., appellant, SK Home Improvement, LLC, et al., respondents (and a third-party action).
Litchfield Cavo, LLP, New York, N.Y. (Richard H. Petersen of counsel), for appellant. Rende, Ryan & Downes, LLP, White Plains, N.Y. (Roland T. Koke of counsel), for respondents.
Litchfield Cavo, LLP, New York, N.Y. (Richard H. Petersen of counsel), for appellant. Rende, Ryan & Downes, LLP, White Plains, N.Y. (Roland T. Koke of counsel), for respondents.
, P.J., THOMAS A. DICKERSON, CHERYL E. CHAMBERS, and L. PRISCILLA HALL, JJ.
In an action to recover damages for personal injuries, the defendant County Club Homes, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Putnam County (Nicolai, J.), dated March 26, 2012, as granted that branch of the motion of the defendants SK Home Improvement, LLC, SK Home Improvement, and Stanley Kedzior which was pursuant to CPLR 5019(a) to resettle an order of the same court dated September 3, 2010, so as to, in effect, reinstate the plaintiff's third cause of action, asserted against the defendant Country Club Homes, Inc.
ORDERED that the order dated March 26, 2012, is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the defendants SK Home Improvement, LLC, SK Home Improvement, and Stanley Kedzior which was pursuant to CPLR 5019(a) to resettle an order of the same court dated September 3, 2010, so as to, in effect, reinstate the plaintiff's third cause of action, asserted against the defendant Country Club Homes, Inc., is denied.
“CPLR 5019(a) provides a court with the discretion to correct a technical defect or a ministerial error, and may not be employed as a vehicle to alter the substantive rights of a party” (Mount Sinai Hosp. v. Country Wide Ins. Co., 81 A.D.3d 700, 701, 916 N.Y.S.2d 228; see Kiker v. Nassau County, 85 N.Y.2d 879, 880–881, 626 N.Y.S.2d 55, 649 N.E.2d 1199; Herpe v. Herpe, 225 N.Y. 323, 327, 122 N.E. 204; Greenstein v. Greenstein, 65 A.D.3d 607, 608, 884 N.Y.S.2d 458). Where a movant seeks to change an order or judgment in a substantive manner, rather than correcting a mere clerical error, CPLR 5019(a) is not the proper procedural mechanism to be employed, and relief should be sought through a direct appeal or by motion to vacate pursuant to CPLR 5015(a) ( see Johnson v. Societe Generale S.A., 94 A.D.3d 663, 664, 943 N.Y.S.2d 74; Mount Sinai Hosp. v. Country Wide Ins. Co., 81 A.D.3d at 701, 916 N.Y.S.2d 228).
Here, by their motion, the defendants SK Home Improvement, LLC, SK Home Improvement, and Stanley Kedzior (hereinafter collectively the movants) sought to, inter alia, in effect, reinstate the plaintiff's third cause of action, asserted against the defendant Country Club Homes, Inc. (hereinafter Country Club). Contrary to the Supreme Court's determination, the movants did not seek to correct a ministerial mistake, defect, or irregularity in the order dated September 3, 2010, but rather, sought to change that order with respect to a substantive matter ( see Mount Sinai Hosp. v. Country Wide Ins. Co., 81 A.D.3d at 701, 916 N.Y.S.2d 228; Haggerty v. Market Basket Enters., Inc., 8 A.D.3d 618, 619, 779 N.Y.S.2d 562; see also Goldberger v. Eisner, 90 A.D.3d 835, 836, 935 N.Y.S.2d 135). Accordingly, the Supreme Court should have denied that branch of the movants' motion which was pursuant to CPLR 5019(a) to resettle the order dated September 3, 2010, so as to, in effect, reinstate the plaintiff's third cause of action, asserted against Country Club.
Country Club's remaining contentions are without merit or need not be reached in light of our determination.