Opinion
24055/2004.
Decided January 31, 2006.
Michael J. Kopcsak Esq., Dunnington, Bartholow Miller, LLC, New York, NY, for Petitioner.
John B. Fenwick Esq., Yonkers, NY, for Respondent Dolan-King.
I. BACKGROUND OF PROCEEDINGS
On January 10, 2005, petitioner's special proceeding to enforce a California Superior Court judgment previously filed in this court under a prior index number, 20898/2004, came before the court for a hearing on the petition. C.P.L.R. § 403(a). The proceeding is for the sale of respondent judgment debtor Dolan-King's homestead exceeding $10,000.00, to satisfy the California judgment in favor of petitioner judgment creditor. C.P.L.R. § 5206(e). Neither party made any motions in conjunction with the petition. C.P.L.R. § 406.
A. THE FILING OF THE CALIFORNIA JUDGMENT
In support of the petition, petitioner presented a copy of the authenticated California judgment petitioner sought to enforce and the affidavit of Peter Smith, petitioner's manager, executed August 4, 2004, filed with the judgment in this court and stamped "filed" by the Bronx County Clerk on August 6, 2004, under index number 20898/2004. C.P.L.R. § 5402(a). C.P.L.R. § 5402(a) requires that an affidavit accompany another state's judgment filed in New York and attest to specified details concerning the judgment. To meet that requirement, the affidavit obviously must refer to the judgment being filed. Smith's affidavit referred to a California Superior Court judgment entered November 14, 2002, for $339,304.75, $318,293.50 in attorneys' fees and $21,011.25 in costs incurred in that action, and attested that that judgment was annexed to his affidavit and filed with it. The affidavit further attested, as specifically required by § 5402(a): "That the judgment is unsatisfied in whole and there remains unpaid thereon . . . $339,304.75, . . . with applicable California statutory interest of 10% per annum from the 14th day of November, 2002." Aff. of Michael J. Kopcsak, Ex. B at 4 ¶ 4. Finally, Smith attested: "That no appeal of the judgment has been filed by Defendant Patricia Dolan-King." Id. at 4 ¶ 6.
The affirmation of attorney Mark F. Magnozzi, executed August 6, 2004, also was filed with the California judgment and the Smith affidavit and presented in support of the petition in this proceeding. Magnozzi parroted the details concerning the judgment in the Smith affidavit.
The California Superior Court judgment attached to Smith's affidavit and presented in support of the petition here bears a date by the Judge of the Superior Court of "7/30/02"; a stamp stating "FILED STEPHEN THUNBERG Clerk of the Superior Court JUL 30, 2002 By: M. GARLAND, Deputy"; and notations that "judgment affirmed 1-7-04" and "5-4-04 Remittitur rec'd." Id. at 7, 10 (Aff. of Peter Smith, Ex. A at 1, 4). The judgment's final paragraph, where the judgment orders monetary relief, above the judge's date of July 30, 2002, bears notations of "$318,293.50 Atty. Fees M Garland 5/21/04" and "Total Costs: $21,011.25 M Garland 5/21/04." Id. at 10 (Aff. of Peter Smith, Ex. A at 4).
Further supporting the petition was petitioner's Notice of Filing of Judgment mailed to respondent September 1, 2004, accompanied by the same Smith affidavit, Magnozzi affirmation, and California judgment. The notice informed respondent "that on the 6th day of August, 2004, . . . the Judgment entered in the State of California . . . on November 14, 2002 was duly filed in the office of the Clerk of Bronx County." Id. at 17.
Also before the court on the return date of the petition, January 10, 2005, was the court file in the action under index number 20898/2004 containing the documents described above. The Smith affidavit and its accompanying documents, however, were stamped "FILED — RECORDED" by the Bronx County Clerk on September 13, 2004. Id. at 3, 5. The Notice of Filing of Judgment mailed September 1, 2004, with proof of service was stamped "FILED" by the Bronx County Clerk on September 21, 2004, id. at 17, postponing collection by petitioner via execution in New York until October 21, 2004. C.P.L.R. § 5403. The docket sheet also showed that a "foreign judgment" for $339,304.75 was filed September 13, 2004, and not an earlier date. See C.P.L.R. § 5018(b).
B. DETERMINATION OF THE PETITION
Thus the record contained no California Superior Court judgment bearing a date of November 14, 2002, for $339,304.75, the judgment allegedly filed in Bronx County that petitioner sought to enforce here. Moreover, the record disclosed that whatever was filed initially may have been received by the Bronx County Clerk August 6, 2004, but no sister state judgment was filed and recorded so as to be enforceable as a New York Supreme Court judgment until September 13, 2004. C.P.L.R. § 5402(b). Thus any creditors recording liens against respondent in the county before then had priority over petitioner.
The period between these two dates was significant, because in that intervening period respondent executed two mortgages, recorded September 8, 2004, on real property she owns in Bronx County. The two mortgagees are additional respondents. Petitioner never explains why, if time was of the essence, petitioner did not shepherd its judgment through to recording as expeditiously as possible.
On January 10, 2005, the court found, in sum, that, for purposes of petitioner's enforcement of a California judgment, no filing and recording occurred in Bronx County August 6, 2004, that was of any legal effect under C.P.L.R. § 5402(b). The court further rejected the judgment filed and recorded September 13, 2004, as enforceable here, because it was not accompanied by an affidavit describing that judgment, C.P.L.R. § 5402(a), and petitioner never notified respondent of that filing. C.P.L.R. § 5403. Both the Smith affidavit and the Magnozzi affirmation described a judgment entered November 14, 2002, awarding $339,304.75, but all the dates on the accompanying judgment were either before then or well afterward. In particular, the critical figures amounting to the monetary award to be enforced not only were dated May 21, 2004, but also were inserted above the judge's signature July 30, 2002, without her endorsement. The affidavit and affirmations further described a judgment that had not been appealed, yet the accompanying judgment bore notations showing it had been appealed.
In addition, although petitioner now claims service on respondent of a subsequent notice of the filing and recording September 13, 2004, no such evidence was in the record January 10, 2005, nor is there any now. Not only is notice to respondent of the September 2004 filing and recording absent, but the earlier notice to her included the confusing and discrepant documents, discrepant both with the notice and internally. Petitioner provides no reason to expect that any subsequent notice would have been any less confusing and incongruous.
Respondent pointed out these discrepancies in opposition to the petition and on the return date, yet petitioner offered no explanation. The documentary record furnished by the parties and the undisputed court file under index number 20898/2004 raised no material factual issues requiring an evidentiary hearing. C.P.L.R. § 409(b); Scotto v. Giuliani, 280 AD2d 315 (1st Dep't 2001); Young v. Costantino, 281 AD2d 988 (4th Dep't 2001); Davis v. Peterson, 254 AD2d 287 (2nd Dep't 1998); Laird v. Town of Montezuma, 191 AD2d 986, 987 (4th Dep't 1993). See Chadbourne Parke, LLP v. AB Recur Finans, 18 AD3d 222 (1st Dep't 2005); 10 W. 66th St. Corp. v. New York State Div. of Hous. Community Renewal, 184 AD2d 143, 148 (1st Dep't 1992); Eck v. City of Kingston Zoning Bd. of Appeals, 302 AD2d 831, 832 (3rd Dep't 2003); Friends World Coll. v. Nicklin, 249 AD2d 393, 394 (2nd Dep't 1998). Based on petitioner's own documents in support of the petition, petitioner failed to sustain its burden to establish an enforceable California judgment entered November 14, 2002, awarding $339,304.75. Petitioner made no request to conform the documents to C.P.L.R. § 5402(a)'s requirements either in this proceeding or in the action under index number 20898/2004, although the court permitted petitioner to do so and anticipated it would do so without delay, either under that index number or via a new similar action.
Finding the filing August 6, 2004, of no effect, and the filing and recording September 13, 2004, unenforceable based on the documents filed and recorded that date, the court dismissed this proceeding and requested respondent to submit a proposed order and judgment dismissing the petition on these grounds, on notice to petitioner. C.P.L.R. § 410; 22 N.Y.C.R.R. § 202.48. Since the proposed order submitted by petitioner, providing that the filing and recording September 13, 2004, was fully effective, did not accurately reflect the grounds for the dismissal, the court signed respondent's proposed order and judgment. While the signing was not until March 14, and the clerk did not stamp the order and judgment filed until March 28, 2005, petitioner had no reason, despite submitting an inaccurate order, not to be fully aware of the court's disposition in the meantime. Even if petitioner considered its hands tied in this proceeding until an order or judgment was entered, petitioner's remedies remained fully available either in the action under index number 20898/2004, by filing supplemental documents there, or, perhaps the most viable option, by commencing a new action with conforming versions of the prior documents. While petitioner did nothing, and after the court's order and judgment was entered, another creditor, Glucose Tech Inc., recorded a lien against respondent in Bronx County April 6, 2005.
II. THE CURRENT MOTION
Petitioner now moves to reargue and renew the petition pursuant to C.P.L.R. § 2221(d) and (e). C.P.L.R. § 2221(d)-(f) apply to a "prior motion." Although the March 2005 "Order" is so entitled, it did not determine any motion, but finally determined and "adjudged" the parties' rights in this special proceeding. Kopcsak Aff., Ex. A at 1-2. See C.P.L.R. § 5011. The March 2005 order is a judgment dismissing the proceeding to which C.P.L.R. § 2221(d)-(f) do not apply. C.P.L.R. § 5011.
C.P.L.R. § 5015(a) sets forth the standards for relief from a "judgment or order" not emanating from a prior motion. Petitioner nowhere cites this rule in support of the motion, let alone in the notice of motion.
A. RENEWAL OR RELIEF BASED ON NEW EVIDENCE
C.P.L.R. § 5015(a)(2) provides for relief based on newly discovered evidence that likely would change the result and that was unavailable and could not have been located with due diligence previously: a standard similar to § 2221(e). Weinstock v. Handler, 251 AD2d 184 (1st Dep't 1998); Olwine, Connelly, Chase, O'Donnell Weyer v. Valson, Inc., 226 AD2d 102, 103 (1st Dep't 1996). Were the court to decide the current motion under C.P.L.R. § 2221(e), see Quinones v. Selsky, 297 AD2d 864, 865 (3rd Dep't 2002), petitioner similarly would have to establish "new facts not offered" previously "that would change the prior determination," § 2221(e)(2), and "reasonable justification" for not offering those facts previously. § 2221(e)(3). See Garner v. Latimer, 306 AD2d 209 (1st Dep't 2003); Cuccia v. City of New York, 306 AD2d 2 (1st Dep't 2003); Stocklas v. Auto Solutions of Glenville, Inc., 9 AD3d 622, 625 (3rd Dep't 2004); Yarde v. New York City Tr. Auth., 4 AD3d 352, 353 (2nd Dep't 2004).
The court must reject petitioner's request for renewal absent a reasonable excuse for not presenting the new material previously. Cuccia v. City of New York, 306 AD2d at 3; Linden v. Moskowitz, 294 AD2d 114, 116 (1st Dep't 2002); Hannalyn Realty Co. v. McLaughlin, 10 AD3d 409, 410 (2nd Dep't 2004); Stocklas v. Auto Solutions of Glenville, Inc., 9 AD3d at 625. Here, petitioner does not adequately explain why it could not, when replying to respondent's opposition to the petition, offer the affidavits and exhibits petitioner now presents. Cuccia v. City of New York, 306 AD2d at 3; Hannalyn Realty Co. v. McLaughlin, 10 AD3d at 410; Catanese v. Furman, 9 AD3d 863, 864 (4th Dep't 2004); Stocklas v. Auto Solutions of Glenville, Inc., 9 AD3d at 625.
C.P.L.R. § 2221(e), applying before final disposition, may be more forgiving than § 5015(a)(2). The former section permits, "in the interest of justice," consideration of evidence not offered previously, but compelling a different result, even though the evidence is not newly discovered and could have been offered previously. Mejia v. Nanni, 307 AD2d 870, 871 (1st Dep't 2003); Garner v. Latimer, 306 AD2d at 209-210. See J.D. Structures v. Waldbaum, 282 AD2d 434, 436 (2nd Dep't 2001). The court may grant renewal where a party inadvertently omitted evidence in acceptable form previously, and the delay occasioned by the previous omission does not prejudice the opposing party. Cruz v. Castanos, 10 AD3d 277, 278 (1st Dep't 2004); B.B.Y. Diamonds Corp. v. Five Star Designs, 6 AD3d 263, 264 (1st Dep't 2004); Garner v. Latimer, 306 AD2d at 210. Even if the court relaxes the requirements, however, petitioner shows neither inadvertence, nor absence of significant prejudice, nor facts compelling a different result.
1. Reason for the Omissions
Petitioner now presents a California Superior Court award dated November 14, 2002, granting $339,304.75 in attorneys' fees and costs in favor of petitioner and against respondent Dolan-King, and an explanation of the sequence of proceedings from July 2002 through May 2004, including an assurance that no clerical tampering occurred. Petitioner also explains the sequence of proceedings from August through September 2004 in the prior action in this court. Of course all this information was readily available to petitioner well before January 2005. Petitioner neither suggests otherwise, nor offers any reasonable justification, even inadvertence, for not presenting any of this information in conjunction with the petition, if not as part of the original supporting documents, at least in reply to respondent when her opposition demonstrated the obvious gaps and incongruities.
2. Prejudice
Significantly, to consider a different sister state judgment and accompanying affidavit than was presented previously, as filed and recorded in September 2004 and enforceable retroactively to then, would wreak havoc on any rights and obligations established between respondent and her other creditors in the meantime. Respondent may have greater interests in satisfying her obligations to those creditors first, whether because of their greater amenability to deferred collection, installment payments, or compromises than petitioner, or for other reasons. While urging that substitution of a November 2002 judgment for a July 2002 judgment is not prejudicial, petitioner never suggests that the retroactive enforceability would not be prejudicial.
3. Result
Further, were the court to grant renewal, petitioner still has not established grounds for a different result. Cuccia v. City of New York, 306 AD2d at 3; Boreanaz v. Facer-Kreidler, 2 AD3d 1481, 1482 (4th Dep't 2003); Lattimore v. Port Auth. of NY N.J., 305 AD2d 639, 640 (2nd Dep't 2003). While a few of the discrepancies delineated above now have been explained through affidavits and further documents, in the process other discrepancies have surfaced. Petitioner now admits that before Smith executed his affidavit August 4 and Magnozzi his affirmation August 6, 2004, both representing the California judgment as "unsatisfied in whole," with $339,304.75 "unpaid," Kopcsak Aff., Ex. B at 4, ¶ 4 and at 14 ¶ 5, a California sheriff, at the initiative of petitioner's attorneys, on July 20, 2004, had collected $25,376.59 from respondent's bank account toward satisfaction of the judgment. Transcript of Proceedings at 24-25, 36-38 (Aug. 18, 2005). Although petitioner disputes that Smith knew this fact August 4, 2004, and that the amount collected was paid to petitioner itself or its attorneys before August 6, 2004, and the record contains no admissible evidence of these details, petitioner's attorneys, who include Magnozzi, admit they knew about the collection before August 4, 2004.
C.P.L.R. § 5402(a) requires an attestation both as to whether the judgment to be recorded "is unsatisfied in whole or in part" and as to the "amount unpaid." From petitioner's perspective, until the judgment creditor receives a payment toward the judgment, it may be considered wholly unsatisfied, but once the judgment debtor makes a payment toward the judgment, particularly to the creditor's agent, that payment is no longer part of the "amount unpaid." Consequently, even if petitioner or its attorneys had not received the payment, and petitioner itself was unaware of the payment before August 4, 2005, the undisputed facts that a sheriff, acting as petitioner's agent, had received the payment, of which petitioner's attorneys were aware, establish a departure from § 5402(a). When petitioner's attorneys filed its affidavit and their affirmation August 6, 2005, they were required to disclose that $313,927.16, not $339,304.75, remained "unpaid." C.P.L.R. § 5402(a).
This omission still has not been rectified by a new affidavit accompanying the judgment. C.P.L.R. § 5402(a). Absent the disclosure, the judgment creditor would obtain a greater lien, and the court, in enforcing the judgment and that lien, might permit collection of greater proceeds, than the creditor is entitled to. Since New York sheriffs execute based on their records, which begin with the New York judgment, rather than a California sheriff's records, a sister state judgment may pose a greater risk for excessive collection. See C.P.L.R. 5230(d).
Finally, according to petitioner's authority, even if the failure to enter the November 2002 award in the California judgment when the award was made may be treated as a clerical error, which is correctable, it is correctable by the California court. Cal. Code of Civ. Proc. § 473(d); Hennefer v. Butcher, 182 Cal. App. 3d 492, 506 (1986). Petitioner's affidavits, exhibits, and arguments all indicate that Deputy Clerk Garland, not the California "court of general jurisdiction" with the "power after judgment . . . to correct clerical errors" in a judgment, made the correction May 21, 2004. Id.
B. REARGUMENT OR RELIEF BASED ON LACK OF JURISDICTION
C.P.L.R. § 5015(a)(4) provides for relief based on "lack of jurisdiction to render the judgment or order." Petitioner's claim under this provision is that the findings on which the court based its dismissal of this proceeding reached beyond this proceeding, to vacate the judgment filed in the prior action under index number 20898/2004 or to dismiss that action as well. That result was achievable only through a motion by the judgment debtor to vacate the judgment in that action. C.P.L.R. § 5402(b). Neither such a motion, nor that prior action, was before this court. Putting aside whether petitioner's claim constitutes a "lack of jurisdiction," C.P.L.R. § 5015(a)(4), as the New York Supreme Court in Bronx County unquestionably has jurisdiction in that action to accomplish that result, petitioner has misinterpreted the effect of the order and judgment in this proceeding.
When a judgment creditor seeks to enforce another state court's judgment in New York, as here, a New York court may not inquire into the merits of that judgment, U.S. Const. art. IV, § 1, 28 U.S.C. § 1738; Fiore v. Oakwood Plaza Shopping Center, 78 NY2d 572, 577 (1991); JDC Fin. Co. I v. Patton, 284 AD2d 164, 166 (1st Dep't 2001); All Terrain Props. v. Hoy, 265 AD2d 87, 91 (1st Dep't 2000); Mortgage Money Unlimited v. Schaffer, 1 AD3d 773, 774 (3rd Dep't 2003), unless the judgment debtor makes a valid claim that the judgment was procured through fraud or without jurisdiction. Ionescu v. Brancoveanu, 246 AD2d 414, 416 (1st Dep't 1998); Steinberg v. Metro Entertainment Corp., 145 AD2d 333, 334 (1st Dep't 1988). The permissible inquiry, albeit limited, nonetheless encompasses compliance with due process principles. Fiore v. Oakwood Plaza Shopping Center, 78 NY2d at 577; JDC Fin. Co. I v. Patton, 284 AD2d at 166; Ionescu v. Brancoveanu, 246 AD2d at 416; Mortgage Money Unlimited v. Schaffer, 1 AD3d at 774.
In finding that no filing and recording of any effect occurred in Bronx County August 6, 2004, and that the judgment filed and recorded September 13, 2004, was not enforceable in New York, this court did not second guess the merits of the judgment petitioner filed or sought to enforce. The determination that no California judgment was enforceable here was based, first, on the absence of an actual filing and recording in August 2004 and, then, on the absence of the required notice to respondent of the actual September 2004 filing, C.P.L.R. § 5403, and affidavit describing the judgment filed. C.P.L.R. § 5402(a).
The whole function of a docketed sister state judgment is "as an enforcement device." De Nunez v. Bartels, 241 AD2d 414, 416 (1st Dep't 1997). While the enforcing court may not reassess the merits of the instrument to be enforced, the court necessarily must determine the instrument's viability and enforceability. E.g., Tamily v. General Contr. Corp., 262 AD2d 859, 860 (3rd Dep't 1999).
Regardless of the sister state judgment's substantive merits, petitioner was required to satisfy C.P.L.R. §§ 5402(a) and 5403 to empower this court to enforce the judgment. Any defects in the California judgment's filing are entirely relevant to this enforcement proceeding. Any inquiry by this court, moreover, was not into the judgment's substantive merits, but into how the California court in July 2002 was authorized to award what the accompanying affidavit described as a November 2002 award or what a deputy clerk inserted in May 2004. Moreover, for a New York court not to inquire into whether these facial discrepancies indicated falsification, lack of authority, or lack of due process would abdicate any role whatsoever in the enforcement of sister state judgments in this jurisdiction.
C. RELIEF BASED ON C.P.L.R. § 5019(a) IN THE PRIOR ACTION UNDER INDEX NUMBER 20898/2004
Finally, petitioner requests the court to cure the nonconformities in the filing of the California judgment because they are simply a "mistake, defect or irregularity in the papers or procedures in the action not affecting a substantial right of a party." C.P.L.R. § 5019(a). See Kiker v. Nassau County, 85 NY2d 879, 881 (1995); McCaffrey v. 924 Food Corp., 295 AD2d 151, 152 (1st Dep't 2002); Baiz v. Baiz, 10 AD3d 375, 376 (2nd Dep't 2004); Parkinson v. Bono, 300 AD2d 640 (2nd Dep't 2002). While petitioner's notice of motion does not cite this rule as grounds for the motion, see Salmone v. Wincaf Props., 9 AD3d 127, 134 (1st Dep't 2004), petitioner does cite the rule in support of the motion.
In any event, the discrepancies in the filing of the California judgment are more than a mere "inadvertent notational error," McCaffrey v. 924 Food Corp., 295 AD2d at 152; "clerical mistake," Parkinson v. Bono, 300 AD2d 640; or "ministerial error." Kiker v. Nassau County, 85 NY2d at 881; Battisti v. Battisti, 228 AD2d 803, 804 (3rd Dep't 1996). See Garrick Aug Assocs. Store Leasing, 278 AD2d 23 (1st Dep't 2000). They are pervasive and embedded in the substance of the judgment actually filed. Their significance also was contested by the parties and a material component of the court's decision in this ensuing proceeding. Kiker v. Nassau County, 85 NY2d at 881.
When both Smith and Magnozzi referred to a judgment of November 14, 2002, they did not inadvertently misstate the date. Petitioner sought to enforce a judgment of November 14, 2002, when the California Superior Court awarded the monetary judgment of attorneys' fees and costs. Petitioner failed to file such a judgment, however, or in any way explain how a judgment bearing various other dates, both earlier and significantly later, actually was a November 2002 judgment. In fact, petitioner now has presented a California Superior Court award of November 14, 2002, a completely different document than the judgment previously filed. This award, moreover, although dated November 14, 2002, according to its terms was not final until November 22, 2002.
As also set forth above, Smith and Magnozzi referred to a judgment that had not been appealed, when the accompanying judgment showed it had been appealed. In fact, petitioner now explains that the November 2002 award was appealed, but affirmed without modification and no longer on appeal, and therefore effective as of its original date.
Further, as now has come to light, petitioner sought to enforce a judgment of which $339,304.75 remained unpaid, when only $313,927.16 remained unpaid. E.g., Poughkeepsie Sav. Bank, FSB v. Maplewood Land Dev. Co., 210 AD2d 606, 607 (3rd Dep't 1994). Most significantly now, this mistake remains uncorrected via a new accompanying affidavit. C.P.L.R. § 5402(a).
Correcting these substantive mistakes now, given the prejudicial effect on respondent Dolan-King discussed above, would "amend an aspect of a judgment that affects a substantial right of a party." Salmone v. Wincaf Props., 9 AD3d at 133. See Garrick Aug Assocs. Store Leasing, 278 AD2d 23; Gasteiger v. Gasteiger, 288 AD2d 881 (4th Dep't 2001); Empire State Pipeline v. Town of Arcadia Assessor, 270 AD2d 830, 831 (4th Dep't 2000). C.P.L.R. § 5019(a) does not authorize such corrective action. Salmone v. Wincaf Props., 9 AD3d at 133; Empire State Pipeline v. Town of Arcadia Assessor, 270 AD2d at 831. See Shipkoski v. Watch Case Factory Assoc., 292 AD2d 589, 590 (2nd Dep't 2002). The corrections petitioner belatedly seeks would allow a different judgment, partially paid rather than totally unpaid, to be filed, recorded, and enforceable retroactively to September 2004, even though respondent lacked notice of a filing or recording then. Such a result would effect a complete "do over": hardly § 5019(a)'s intent. The fact that petitioner could have done what it now seeks to do is not determinative. Baiz v. Baiz, 10 AD3d at 376.
Even if C.P.L.R. § 5019(a) permitted the corrections petitioner seeks had it sought them in January or March 2005, the prejudice to respondent from petitioner's unexplained delay until June 2005 is now a consideration. Kiker v. Nassau County, 85 NY2d at 881-82; Poughkeepsie Sav. Bank, FSB v. Maplewood Land Dev. Co., 210 AD2d at 608; Winkel v. Atlantic Rentals Sales, 195 AD2d 599, 601 (2nd Dep't 1993). As discussed, transforming the September 2004 filing into a judgment enforceable retroactively to then would undo subsequent rights and obligations established between Dolan-King and her other creditors. Poughkeepsie Sav. Bank, FSB v. Maplewood Land Dev. Co., 210 AD2d at 608.
Such a transformation of the September 2004 filing, moreover, would be substantively inconsistent with the court's findings in this proceeding as demonstrated by the record before the court, mainly of petitioner's creation, in January 2005. Kiker v. Nassau County, 85 NY2d at 881; Salmone v. Wincaf Props., 9 AD3d at 133-34; Garrick Aug Assocs. Store Leasing, 278 AD2d 23; Calm Lake Dev. v. Town Bd. of Town of Farmington, 213 AD2d 979, 980 (4th Dep't 1995). As suggested above, to eradicate these findings to the extent sought, petitioner's remedy was to move to vacate the March 2005 judgment. C.P.L.R. § 5015(a); Salmone v. Wincaf Props., 9 AD3d at 134.
On the other hand, respondent's failure thus far to move to vacate the defective filing of a California judgment in the prior action does not breathe life into the judgment to give it effect in New York. See Kelly v. Delaney, 248 AD2d 360, 361 (2nd Dep't 1998); Mandel v. Walto Truck Equip. Co., 243 AD2d 542, 543 (2nd Dep't 1997). Since the defects in petitioner's filing of its California judgment were omissions of C.P.L.R. § 5402(a)'s mandatory requirements, the defects were non-waivable. E.g., Chiacchia Fleming, LLP v. Guerra, 309 AD2d 1213, 1214 (4th Dep't 2003); Gleason v. Vee, 271 AD2d 736, 737 (3rd Dep't 2000). Only a sister state "judgment so filed" consistent with those requirements has the effect of a New York Supreme Court judgment. C.P.L.R. § 5204(b). Having never properly been commenced, petitioner's first action pursuant to C.P.L.R. § 5402(a) is a nullity and may not be corrected nunc pro tunc. See Gershel v. Porr, 89 NY2d 327, 330, 332 (1996); Chiacchia Fleming, LLP v. Guerra, 309 AD2d at 1214-15; Gleason v. Vee, 271 AD2d at 737; Keglic v. Flater, 266 AD2d 353, 354 (2nd Dep't 1999); Kelly v. Delaney, 248 AD2d at 360-61.
Finally, granting petitioner's request to redo the proceedings under index number 20898/2004 would commit the same error petitioner cites in this proceeding. Here, petitioner charges that via the March 2005 judgment, the court and respondent achieved what only could be achieved through a motion to vacate the judgment filed under index number 20898/2004. C.P.L.R. § 5402(b). At the same time, in this proceeding, petitioner asks that the court allow petitioner to undo what occurred in the prior action: to achieve what only may be achieved via further proceedings in that action or a future one. For this reason, if none other, the court denies the relief petitioner seeks, without prejudice, as has always been the case, to seeking that relief in the prior action or a future one.
III. RELIEF BASED ON C.P.L.R. § 5019(a) IN THIS ACTION
To the extent the findings on which the court based its dismissal of this proceeding may be interpreted as reaching beyond this proceeding, to dispose of the prior action under index number 20898/2004 as well, the court may rely on C.P.L.R. § 5019(a) to correct any inadvertent ambiguity and supplement the March 2005 order with a clarifying order. Bank of Baroda v. Garg, 247 AD2d 312, 313 (1st Dep't 1998); Beaumont v. American Can Co., 215 AD2d 249, 250 (1st Dep't 1995). See Calm Lake Dev. v. Town Bd. of Town of Farmington, 213 AD2d at 980. These clarifications do not change the court's conclusion that there was no California Superior Court judgment enforceable in New York between August 2004 and January 2005. In fact there still is none. These clarifications do not change the findings underpinning that conclusion: that no filing and recording of any effect occurred in Bronx County August 6, 2004; nor is the judgment filed and recorded September 13, 2004, enforceable in New York, because it was not accompanied by the requisite descriptive affidavit, C.P.L.R. § 5402(a), or followed by notice to respondent of that filing. C.P.L.R. § 5403. The clarifications thus have no effect on the parties' rights originally determined in this proceeding. Kiker v. Nassau County, 85 NY2d at 881; Shipkoski v. Watch Case Factory Assoc., 292 AD2d at 590.
The findings were necessary to the conclusion that the California judgment filed was unenforceable, which in turn necessitated the dismissal of this proceeding to enforce the judgment. These findings and conclusion were intended to deny petitioner enforcement of the judgment, but not to determine the action under index number 20898/2004, except insofar as they may have res judicata or collateral estoppel effect against petitioner on any subsequent motion affecting that judgment in that action. C.P.L.R. § 5402(b); Buechel v. Bain, 97 NY2d 295, 303-304 (2001); Yonkers Contr. Co. v. Port Auth. Trans-Hudson Corp., 93 NY2d 375, 380 (1999); Kanat v. Ochsner, 301 AD2d 456, 458 (1st Dep't 2003); Bell v. Alden Owners, 299 AD2d 207, 208 (1st Dep't 2002).
IV. DISPOSITION
Based on the foregoing, the court clarifies its order and judgment dated March 14, 2005, and entered March 28, 2005, in this proceeding, to add, as more fully set forth above, the following. Upon this petition returnable January 10, 2005, to enforce a California judgment filed and recorded under index number 20898/2004, the court dismissed this proceeding because the judgment filed and recorded in that prior action September 13, 2004, did not comply with C.P.L.R. §§ 5402(a) and 5403 and thus was unenforceable, and no judgment was filed and recorded previously. In sum, the judgment filed was of no effect for purposes of its enforcement in this jurisdiction. The dismissal of this enforcement proceeding was and is without prejudice to a motion by respondent to vacate the judgment filed in that prior action or supplemental proceedings by petitioner to file new documents in that action, file a judgment under a new index number, or enforce a newly filed judgment. The court otherwise denies petitioner's post-judgment motion in this proceeding.