Opinion
Submitted May 2, 2000.
June 19, 2000.
In a child custody and visitation proceeding pursuant to Family Court Act article 6, the mother appeals, as limited by her brief, from so much of an order of the Family Court, Orange County (Bivona, J.), entered May 14, 1999, as allegedly failed to accurately incorporate the provisions of a stipulation of settlement entered on the record in open court on March 10, 1999.
Bernard E. Davis, Chester, N.Y., for appellant.
Larkin, Axelrod, Trachte Tetenbaum, LLP, Newburgh, N Y (William J. Larkin III of counsel), for respondent.
Betty A. Rugg, Baldwin, N.Y., Law Guardian for the children.
Before: LAWRENCE J. BRACKEN, J.P., DAVID S. RITTER, MYRIAM J. ALTMAN, SANDRA J. FEUERSTEIN, JJ.
DECISION ORDER
ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs, and the matter is remitted to the Supreme Court, Orange County, for a new order which shall accurately reflect the provisions of the March 10, 1999, stipulation.
The preferred remedy when a party alleges that an order or judgment does not accurately incorporate the terms of a stipulation is by motion in the trial court for resettlement (see, CPLR 5019[a]; Herpe v. Herpe, 225 N.Y. 323, 327), or vacatur (see, CPLR 5015), rather than by appeal (see, Leonard v. Columbia Steam Nav. Co., 84 N.Y. 48, 55-56; Stormville Mountain Homes v. Zurhorst, 35 A.D.2d 562; Hanlon v. Thonsen, 146 A.D.2d 743; Blaustein v. Blaustein, 145 A.D.2d 591; Spinello v. Spinello, 129 A.D.2d 694). However, we have examined the stipulation and order and find that in certain respects the latter does not conform to the former. We vacate the provisions of the order which, as the parties allege, vary from the stipulation of settlement, and remit the matter to the Supreme Court to accurately reflect the provisions of the stipulation (see, Pizzuto v. Pizzuto, 162 A.D.2d 443).