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Motion to Resettle Not Proper Vehicle for Substantive Change to Order

In determining a motion to resettle pursuant to CPLR 5019(a) was not the proper vehicle for seeking the reinstatement of a cause of action the court had dismissed, the Second Department explained:

“CPLR 5019(a) provides a court with the discretion to correct a technical defect or a ministerial error, and may not be employed as a vehicle to alter the substantive rights of a party” … . Where a movant seeks to change an order or judgment in a substantive manner, rather than correcting a mere clerical error, CPLR 5019(a) is not the proper procedural mechanism to be employed, and relief should be sought through a direct appeal or by motion to vacate pursuant to CPLR 5015(a) … . Chmelovsky v Country Club Homes, Inc, 2013 NY Slip Op 07927, 2nd Dept 11-27-13

 

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