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FAMILY COURT DID NOT HAVE THE AUTHORITY TO, SUA SPONTE, AMEND A DISMISSAL ORDER FROM “WITHOUT PREJUDICE” TO “WITH PREJUDICE” (THIRD DEPT).

The Third Department noted that Family Court did not have the authority to, sua sponte, amend a dismissal order from “without prejudice” to “with prejudice:”

… Family Court erred in sua sponte amending its October 13, 2020 dismissal order from “without prejudice” to “with prejudice.” Family Court may, in its discretion, correct or amend an order, so as to cure mistakes, defects or irregularities in the order that do not affect a substantial right of a party (see CPLR 5019 [a] …) or to resolve any ambiguity in the order to make it comport with what the court’s holding clearly intended … . However, in the absence of a motion pursuant to CPLR 2221 (d) or 5015 (a), Family Court lacks the authority to issue an amended or corrected order that alters its dismissal of a petition from “without prejudice” to “with prejudice,” as such alteration is one of substance … . Matter of Brian W. v Mary X., 2021 NY Slip Op 07332, Third Dept 12-23-21

 

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