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THE MOTION TO RESETTLE REQUESTED A SUBSTANTIVE CHANGE IN THE PARTIES’ RIGHTS WHICH CANNOT BE ADDRESSED BY RESETTLING AN ORDER; A MOTION TO RESETTLE IS MEANT TO ADDRESS CLERICAL ERRORS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to resettle the court’s order requested a substantive change in the parties’ rights which can not be addressed by resettling an order:

… [T]he court … granted that branch of the plaintiff’s motion which was to resettle the order … and thereupon deleted the provision directing that the defendant shall receive $284,069.66 of the proceeds from the sale of the subject property before the remainder is split equally between the plaintiff and the defendant.  * * *

“Resettlement is generally intended to remedy clerical errors or clear mistakes in an order or judgment when there is no dispute about the substance of what that order or judgment should contain” … . “It may be used where the order improperly reflects the decision or fails to include necessary recitals, but [it] cannot be used to obtain a ruling not adjudicated on the original motion or to modify the decision which has been made” … . …

The court’s determination … to reform the parties’ open court stipulation upon its finding that the parties did not intend to agree to the monetary award effectuated a substantive change in the parties’ rights, rather than the correction of a clerical error. Renaud v Renaud, 2021 NY Slip Op 04624, Second Dept 8-4-21

 

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