You are here: / / IN THIS DIVORCE PROCEEDING, THE JUDGE HAD THE POWER TO CORRECT AN INCONSISTENCY...
,

IN THIS DIVORCE PROCEEDING, THE JUDGE HAD THE POWER TO CORRECT AN INCONSISTENCY BETWEEN THE JUDGMENT AND THE UNDERLYING DECISION BUT DID NOT HAVE THE POWER TO CHANGE THE JUDGMENT BASED UPON NEW EVIDENCE (SECOND DEPT).

The Second department, reversing (modifying) Supreme Court in a divorce action, determined that the judge properly corrected a mistake in the judgment of divorce, but improperly made a change in the judgment based on new evidence:

… [T]he Supreme Court, sua sponte, directed the parties to appear … . … [T]he defendant and his counsel appeared, but the plaintiff failed to appear. The court expressed its concern about a letter it had received indicating that the defendant had failed to disclose a variable supplemental pension plan. The court further noted that the third decretal paragraph of the judgment did not reflect the intent expressed in the court’s underlying decision, inasmuch as the judgment failed to provide that changes in the value of the retirement assets since the commencement of the action were to be shared equally. An amended judgment was entered thereafter modifying so much of the third decretal paragraph of the original judgment as was necessary to conform the judgment to the underlying decision, and modifying the fourth decretal paragraph of the original judgment to include a reference to the previously undisclosed variable supplemental pension plan. The defendant appeals from the amended judgment.

The Supreme Court had the authority to modify the third decretal paragraph of the original judgment, given the discrepancy between the terms of that decretal paragraph and the underlying decision. “A judgment . . . must conform strictly to the court’s decision. Where there is an inconsistency between a judgment . . . and the decision upon which it is based, the decision controls” …

However, the Supreme Court was without authority, sua sponte, to modify the fourth decretal paragraph of the original judgment to add a reference to the variable supplemental pension plan, as this was a substantive modification based on new evidence that had not previously been submitted to the court. Such a modification goes beyond the court’s inherent authority to correct a “mistake, defect or irregularity” in the original judgment “not affecting a substantial right of a party” … . Mascia v Mascia, 2018 NY Slip Op 03523, Second Dept 5-16-18

​FAMILY LAW (JUDGMENTS, IN THIS DIVORCE PROCEEDING, THE JUDGE HAD THE POWER TO CORRECT AN INCONSISTENCY BETWEEN THE JUDGMENT AND THE UNDERLYING DECISION BUT DID NOT HAVE THE POWER TO CHANGE THE JUDGMENT BASED UPON NEW EVIDENCE (SECOND DEPT))/JUDGMENTS ( IN THIS DIVORCE PROCEEDING, THE JUDGE HAD THE POWER TO CORRECT AN INCONSISTENCY BETWEEN THE JUDGMENT AND THE UNDERLYING DECISION BUT DID NOT HAVE THE POWER TO CHANGE THE JUDGMENT BASED UPON NEW EVIDENCE (SECOND DEPT))/JUDGES (IN THIS DIVORCE PROCEEDING, THE JUDGE HAD THE POWER TO CORRECT AN INCONSISTENCY BETWEEN THE JUDGMENT AND THE UNDERLYING DECISION BUT DID NOT HAVE THE POWER TO CHANGE THE JUDGMENT BASED UPON NEW EVIDENCE (SECOND DEPT))

You might also like
PLAINTIFF IN THIS CHILD VICTIMS ACT CASE RAISED A QUESTION OF FACT WHETHER DEFENDANT SUMMER CAMP WAS AWARE OR SHOULD HAVE BEEN AWARE OF ITS EMPLOYEE’S PROPENSITY FOR SEXUAL ABUSE; THE NEGLIGENT HIRING, RETENTION AND SUPERVISION CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT). ​
PLAINTIFF WAS KNOCKED DOWN WHEN MALL SHOPPERS PANICKED AND FLED BECAUSE A FALLING DISPLAY SOUNDED LIKE GUNSHOTS; QUESTIONS OF FACT CONCERNING THE FORESEEABILITY OF THE PANIC AND THE OPPORTUNITY TO CONTROL THE PANIC PRECLUDED SUMMARY JUDGMENT RE THE OWNERS AND SECURITY COMPANY (SECOND DEPT).
IN THIS FORECLOSURE ACTION, THE BANKRUPTCY STAY DID NOT TERMINATE WHEN DEFENDANT BOUGHT THE SUBJECT PROPERTY FROM THE BANKRUPTCY ESTATE; THE STAY TERMINATED LATER WHEN DEFENDANT RECEIVED A DISCHARGE FROM THE BANKRUPTCY COURT; THE FORECLOSURE ACTION WAS THEREFORE TIMELY (SECOND DEPT).
ALTHOUGH THE QUESTION WHETHER THE NOTICE REQUIREMENTS OF RPAPL 1304 APPLIED ONLY TO HIGH-COST OR SUBPRIME LOANS WAS NOT RAISED BELOW, THE QUESTION WAS CONSIDERED AND REJECTED ON APPEAL; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
INSURER WAIVED THE CONTRACTUAL ISSUE WHETHER PETITIONER WAS A PASSENGER IN THE CAR BY NOT SEEKING A STAY OF ARBITRATION, THEREFORE THE ARBITRATOR EXCEEDED HIS POWERS BY FINDING PETITIONER WAS NOT A PASSENGER AT THE TIME OF THE HIT AND RUN ACCIDENT (SECOND DEPT).
LACROSSE PLAYER JOGGING AROUND LACROSSE FIELD ASSUMED THE RISK OF BEING STRUCK BY A LACROSSE BALL.
THE DEFENDANT IN THIS SLIP AND FALL CASE, WHOSE ANSWER HAD BEEN STRUCK, SHOULD HAVE BEEN ALLOWED TO PRESENT EVIDENCE ON DAMAGES (FIRST DEPT).
PROOF OF DEFENDANTS’ DEFAULT WAS INADMISSIBLE HEARSAY BECAUSE THE UNDERLYING BUSINESS RECORDS WERE NOT SUBMITTED WITH THE SUMMARY JUDGMENT MOTION (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2024 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

AWARD OF ATTORNEY’S FEES AND EXPERT WITNESS FEES IN THIS DIVORCE ACTION... FORECLOSURE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED, PLAINTIFF BANK TOOK PRELIMINARY...