Meenan v. Meenan
Decision Date | 08 February 2013 |
Parties | Wade R. MEENAN, Plaintiff–Respondent, v. Josephine M. MEENAN, Defendant–Appellant. (Appeal No. 1.) |
Court | New York Supreme Court — Appellate Division |
OPINION TEXT STARTS HERE
Kalil & Eisenhut, LLC, Utica (Clifford C. Eisenhut of Counsel), for Defendant–Appellant.
Peter J. Digiorgio, Jr., Utica, for Plaintiff–Respondent.
Present: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND VALENTINO, JJ.
In appeal No. 1, defendant wife appeals from a letter decision granting plaintiff husband's motion to amend the parties' judgment of divorce to correct an error in the calculationof child support and maintenance arrears due to the wife. That appeal must be dismissed inasmuch as “[n]o appeal lies from a mere decision” ( Kuhn v. Kuhn, 129 A.D.2d 967, 967, 514 N.Y.S.2d 284;seeCPLR 5512[a]; Matter of Reynoso v. Dennison, 10 N.Y.3d 799, 799, 857 N.Y.S.2d 29, 886 N.E.2d 793;Plastic Surgery Group of Rochester, LLC v. Evangelisti, 39 A.D.3d 1265, 1266, 832 N.Y.S.2d 840).
In appeal No. 2, the wife appeals from an amended judgment that incorporated by reference the terms of the letter decision and modified the judgment of divorce with respect to maintenance and child support arrears in accordance with that decision. We agree with the wife that Supreme Court erred in granting plaintiff's motion and applying CPLR 5019(a) to amend the judgment by changing the amount of the husband's maintenance and child support arrears. CPLR 5019(a) provides that The court's power to amend orders or judgments under that statute is limited, however, to correcting orders or judgments that contain “a mistake, defect, or irregularity not affecting a substantial right of a party, or [that are] inconsistent with the decision upon which [they are] based” ( Adams v. Fellingham, 52 A.D.3d 443, 444, 859 N.Y.S.2d 484;see Novak v. Novak, 299 A.D.2d 924, 925, 750 N.Y.S.2d 541;Gasteiger v. Gasteiger, 288 A.D.2d 881, 881, 732 N.Y.S.2d 300;Bolger v. Davis, 127 A.D.2d 979, 979, 513 N.Y.S.2d 54;Crain v. Crain, 109 A.D.2d 1094, 1094, 487 N.Y.S.2d 221).
“The kinds of mistakes contemplated for correction [pursuant to CPLR 5019(a) ] are mere ministerial ones, not those involving new exercises of discretion or a further turn of the fact-finding wheel” (Siegel, N.Y. Prac. § 420 at 741 [5th ed. 2011]; see Kiker v. Nassau County, 85 N.Y.2d 879, 881, 626 N.Y.S.2d 55, 649 N.E.2d 1199;Herpe v. Herpe, 225 N.Y. 323, 327, 122 N.E. 204). As the Court of Appeals explains, ( Herpe, 225 N.Y. at 327, 122 N.E. 204 [emphasis added] ). Further, “[a] court has no power to reduce or increase the amount of [a] judgment when there is no clerical error” ( Matter of Schlossberg v. Schlossberg, 62 Misc.2d 699, 701, 309 N.Y.S.2d 631;see Bolger, 127 A.D.2d at 979, 513 N.Y.S.2d 54;Fleming v. Sarva, 15 Misc.3d 892, 895, 833 N.Y.S.2d 887;see generally Herpe, 225 N.Y. at 327, 122 N.E. 204).
Unlike the cases relied upon by the husband, this case does not involve an inconsistency between the judgment and an...
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