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DEFENDANT DID NOT HAVE AN OPPORTUNITY TO BE HEARD ON THE SEXUAL PREDATOR DESIGNATION WHICH THE JUDGE IMPOSED SUA SPONTE, DESIGNATION DELETED (SECOND DEPT).

The Second Department determined there defendant was not given the opportunity to be heard on whether he should be designated a sexual predator and deleted the designation:

… [T]he Supreme Court erred in, sua sponte, designating the defendant a sexual predator. Neither the Board of Examiners of Sex Offenders nor the People had recommended such a designation, and the defendant was never afforded an opportunity to be heard on the issue of whether he should be so designated (see Correction Law § 168-n[3]…). Accordingly, we modify the order so as to delete the provision thereof designating the defendant a sexual predator. People v Medina, 2018 NY Slip Op 07162, Second Dept 10-24-18

CRIMINAL LAW (DEFENDANT DID NOT HAVE AN OPPORTUNITY TO BE HEARD ON THE SEXUAL PREDATOR DESIGNATION WHICH THE JUDGE IMPOSED SUA SPONTE, DESIGNATION DELETED (SECOND DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (DEFENDANT DID NOT HAVE AN OPPORTUNITY TO BE HEARD ON THE SEXUAL PREDATOR DESIGNATION WHICH THE JUDGE IMPOSED SUA SPONTE, DESIGNATION DELETED (SECOND DEPT))/SEXUAL PREDATOR (DEFENDANT DID NOT HAVE AN OPPORTUNITY TO BE HEARD ON THE SEXUAL PREDATOR DESIGNATION WHICH THE JUDGE IMPOSED SUA SPONTE, DESIGNATION DELETED (SECOND DEPT))

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REVERSING SUPREME COURT THE THIRD DEPT NOTED THAT SUMMARY JUDGMENT MAY BE AWARDED ON THE BASIS OF AN UNPLEADED CAUSE OF ACTION AND DID SO IN FAVOR OF THE TOWN IN THIS ZONING AND BUILDING CODE VIOLATION CASE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the complaint in this zoning and building code violation case should not have been dismissed by the court sua sponte, and the court should not have awarded summary judgment to the defendant property owner. The Third Department noted that summary judgment may be awarded on an upleaded cause of action in the absence of prejudice and awarded summary judgment in favor of the town (plaintiff):

… [P]laintiff established the material facts through an affidavit by its Code and Zoning Enforcement Officer, who detailed the zoning and building code violations found on defendant’s property and averred that defendant had not remedied them after being served with orders to do so. The statements in the affidavit were corroborated by documentary and photographic evidence, and defendant submitted no opposition that might have raised material questions of fact. Supreme Court correctly observed that the complaint did not name a cause of action or identify the legal basis for the relief requested, and plaintiff’s motion papers suffered from the same problem. Plaintiff now points to authority for the relief sought by it (see Executive Law § 382 [3]; Village Law § 7-714 …), however, and summary judgment may be granted on an unpleaded cause of action “where the proof supports such a cause of action and the opposing party has not been misled to its prejudice” … . The evidence substantiates plaintiff’s entitlement to the relief sought — relief that plaintiff has consistently sought and was narrowed in its notice of motion for summary judgment — and there is no indication that defendant was prejudiced by the failure to identify the statutes authorizing it sooner. Thus, we grant plaintiff’s motion for summary judgment and remit so that Supreme Court may fashion an appropriate remedial order. Village of Sharon Springs v Barr, 2018 NY Slip Op 07022, Third Dept 10-18-19

 

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JUDGE CONDUCTED EXCESSIVE QUESTIONING OF WITNESSES, NEW TRIAL WITH A DIFFERENT JUDGE ORDERED (SECOND DEPT).

he Second Department ordered a new trial because the judge conducted excessive questioning of trial witnesses:

… [T]here must be a new trial, before a different justice, because the Supreme Court conducted excessive and prejudicial questioning of trial witnesses. Although defense counsel did not object to most instances of judicial interference, we reach this contention in the exercise of our interest of justice jurisdiction (see CPL 470.15[6][a]…). “While neither the nature of our adversary system nor the constitutional requirement of a fair trial preclude a trial court from assuming an active role in the truth-seeking process,' the court's discretion in this area is not unfettered” … . The principle restraining the court's discretion is that a trial judge's “function is to protect the record, not to make it” … . Indeed, when the trial judge interjects often and indulges in an extended questioning of witnesses, even where those questions would be proper if they came from trial counsel, the trial judge's participation presents significant risks of prejudicial unfairness … . Accordingly, while a trial judge may intervene in a trial to clarify confusing testimony and facilitate the orderly and expeditious progress of the trial, the court may not take on “the function or appearance of an advocate” … .

Here, the Supreme Court interjected itself into the questioning of multiple witnesses, elicited step-by-step details about how the defendant was identified by witnesses as a suspect, and generally created the impression that it was an advocate for the People. Under the circumstances, the court's improper interference deprived the defendant of a fair trial, and a new trial before a different justice is warranted … . People v Sookdeo, 2018 NY Slip Op 06040, Second Dept 9-12-18

CRIMINAL LAW (JUDGE CONDUCTED EXCESSIVE QUESTIONING OF WITNESSES, NEW TRIAL WITH A DIFFERENT JUDGE ORDERED (SECOND DEPT))/JUDGES (CRIMINAL LAW, JUDGE CONDUCTED EXCESSIVE QUESTIONING OF WITNESSES, NEW TRIAL WITH A DIFFERENT JUDGE ORDERED (SECOND DEPT))

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ALTHOUGH SUPREME COURT PROPERLY DEEMED SERVICE COMPLETE DESPITE LATE FILING OF THE AFFIDAVIT OF SERVICE, DEFENDANT’S MOTION TO VACATE THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN DENIED, RATHER DEFENDANT SHOULD HAVE BEEN GIVEN EXTRA TIME TO FILE AN ANSWER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined Supreme Court properly deemed service complete despite the late filing of the affidavit of service, but further determined Supreme Court should not have denied defendant's motion to vacate the default judgment. Rather service should have been deemed complete when the court ruled on it and defendant should have been given 30 days from that point to file an answer:

Here, the affidavit of service was not filed within 20 days of either the mailing or affixing; thus, service was never completed … . Since service was never completed, the defendant's time to answer the complaint had not yet started to run and, therefore, she could not be in default … .

However, the “failure to file proof of service is a procedural irregularity, not a jurisdictional defect, that may be cured by motion or sua sponte by the court in its discretion pursuant to CPLR 2004″… . Thus, we agree with the Supreme Court's determination to deem the affidavit of service timely filed, sua sponte, pursuant to CPLR 2004.

In granting this relief, however, the court must do so upon such terms as may be just, and only where a substantial right of a party is not prejudiced (see CPLR 2001 …). The court may not make such relief retroactive, to the prejudice of the defendant, by placing the defendant in default as of a date prior to the order… , “nor may a court give effect to a default judgment that, prior to the curing of the irregularity, was a nullity requiring vacatur” … . Rather, the defendant must be afforded an additional 30 days to appear and answer after service upon her of a copy of the decision and order … . First Fed. Sav. & Loan Assn. of Charleston v Tezzi, 2018 NY Slip Op 05826, Second Dept 8-22-18

CIVIL PROCEDURE (ALTHOUGH SUPREME COURT PROPERLY DEEMED SERVICE COMPLETE DESPITE LATE FILING OF THE AFFIDAVIT OF SERVICE, DEFENDANT'S MOTION TO VACATE THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN DENIED, RATHER DEFENDANT SHOULD HAVE BEEN GIVEN EXTRA TIME TO FILE AN ANSWER (SECOND DEPT))/CPLR 2004 (ALTHOUGH SUPREME COURT PROPERLY DEEMED SERVICE COMPLETE DESPITE LATE FILING OF THE AFFIDAVIT OF SERVICE, DEFENDANT'S MOTION TO VACATE THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN DENIED, RATHER DEFENDANT SHOULD HAVE BEEN GIVEN EXTRA TIME TO FILE AN ANSWER (SECOND DEPT))

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JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED A FORECLOSURE COMPLAINT AND SHOULD NOT HAVE ADDRESSED THE ISSUE OF STANDING, WHICH IS NOT JURISDICTIONAL AND COULD NOT BE RAISED BY A DEFAULTING DEFENDANT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge should not have, sua sponte, dismissed a foreclosure complaint based upon an alleged failure of a condition precedent, and the judge should not have addressed the issue of standing, which was not a jurisdictional issue and was not, and could not be, raised by defendant, who had defaulted:

“A court's power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal” … . Here, the Supreme Court was not presented with any extraordinary circumstances warranting a sua sponte dismissal of the complaint… . The plaintiff's alleged failure to satisfy a condition precedent in the mortgage by failing to provide the defendant with 30 days' written notice of his default in making mortgage payments, even if true, did not deprive the court of jurisdiction to enter a judgment of foreclosure and sale … .

To the extent that the Supreme Court addressed the issue of the plaintiff's standing in the order appealed from, a party's lack of standing does not constitute a jurisdictional defect and does not warrant a sua sponte dismissal of the complaint by the court Moreover, since the defendant defaulted in appearing or answering the complaint, and failed to move to vacate his default, he is precluded from asserting lack of standing as a defense … . Countrywide Home Loans, Inc. v Campbell, 2018 NY Slip Op 05749, Second Dept 8-15-18

FORECLOSURE (JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED A FORECLOSURE COMPLAINT AND SHOULD NOT HAVE ADDRESSED THE ISSUE OF STANDING, WHICH IS NOT JURISDICTIONAL AND COULD NOT BE RAISED BY A DEFAULTING DEFENDANT (SECOND DEPT))/CIVIL PROCEDURE (FORECLOSURE, JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED A FORECLOSURE COMPLAINT AND SHOULD NOT HAVE ADDRESSED THE ISSUE OF STANDING, WHICH IS NOT JURISDICTIONAL AND COULD NOT BE RAISED BY A DEFAULTING DEFENDANT (SECOND DEPT))

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OWNER PROPERLY FOUND RESPONSIBLE FOR REFUNDING OVERCHARGES COLLECTED BY THE PRIME TENANT WHICH HAD CREATED AN ILLUSORY TENANCY TO CIRCUMVENT THE NYC RENT STABILIZATION LAW (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Singh, determined that the NYC Department of Housing and Community Renewal (DHCR) had the authority to sua sponte vacate a nonfinal order under the Rent Stabilization Code and DHCR correctly found that petitioner 333 East 49th Partnership, LP (the owner) was responsible for refunding the overcharge collected by the prime tenant, on the grounds that the prime tenant created an illusory tenancy. The opinion is complex and comprehensive and cannot be fairly summarized here:

Section 2529.9 of the Rent Stabilization Code * * * authorizes DHCR to reopen, sua sponte, a proceeding at any time upon a finding of irregularity of vital matters, fraud or illegality, upon notice to the parties … . * * *

The rent stabilization laws [RSL] are designed “to prevent exactions of unjust, unreasonable and oppressive rents and rental agreements and to forestall profiteering, speculation and other disruptive practices … . The Rent Stabilization Code expressly provides that the legal regulated rents and other requirements “shall not be evaded, either directly or indirectly, in connection with the renting or leasing or the transfer of a lease for housing accommodations” … .

An illusory tenancy exists when the prime tenant rents an apartment for the sole purpose of re-leasing it, at a profit, or otherwise subverts the protections of the RSL … .

DHCR’s finding that the owner may be held accountable for the overcharge is not irrational or arbitrary and capricious. DHCR is not restricted, as the owner argues, to only take into account whether the owner overcharged the subtenant and actually collected rent in excess of the lawful stabilized rent. Rather, DHCR may consider that the owner “derived substantial benefits from the scheme and was aware of the nature of [the prime tenant’s] activities” … . * * *

Rent Stabilization Code 2526.1(a)(1) imposes treble damages upon owners who “have collected any rent . . . in excess of the legal regulated rent” … . However, as noted above, RSL 26-511(c)(12)(e) merely states that “where a tenant violates the provisions of subparagraph (a)” with regard to overcharging a subtenant, “the subtenant shall be entitled to damages of three times the overcharge” … . DHCR’s interpretation of these statutes to impose treble damages upon the owner, under these circumstances, is rational and thus, entitled to deference … .  Matter of 333 E. 49th Partnership, LP v New York State Div. of Hous. & Community Renewal, 2018 NY Slip Op 05735, First Dept 8-9-18

LANDLORD-TENANT (RENT STABILIZATION LAW, OWNER PROPERLY FOUND RESPONSIBLE FOR REFUNDING OVERCHARGES COLLECTED BY THE PRIME TENANT WHICH HAD CREATED AN ILLUSORY TENANCY TO CIRCUMVENT THE RENT STABILIZATION LAW (FIRST DEPT))/MUNICIPAL LAW (NYC, RENT STABILIZATION LAW, OWNER PROPERLY FOUND RESPONSIBLE FOR REFUNDING OVERCHARGES COLLECTED BY THE PRIME TENANT WHICH HAD CREATED AN ILLUSORY TENANCY TO CIRCUMVENT THE RENT STABILIZATION LAW (FIRST DEPT))/RENT STABILIZATION LAW (NYC, OWNER PROPERLY FOUND RESPONSIBLE FOR REFUNDING OVERCHARGES COLLECTED BY THE PRIME TENANT WHICH HAD CREATED AN ILLUSORY TENANCY TO CIRCUMVENT THE RENT STABILIZATION LAW (FIRST DEPT))/ILLUSORY TENANT (RENT STABILIZATION LAW, OWNER PROPERLY FOUND RESPONSIBLE FOR REFUNDING OVERCHARGES COLLECTED BY THE PRIME TENANT WHICH HAD CREATED AN ILLUSORY TENANCY TO CIRCUMVENT THE RENT STABILIZATION LAW (FIRST DEPT))

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JUDGE SHOULD NOT HAVE, SUA SPONTE, RAISED THE STATUTE OF LIMITATIONS DEFENSE, IF THE DEFENSE IS NOT RAISED IN THE PLEADINGS IT IS WAIVED, JUDGE CANNOT TAKE JUDICIAL NOTICE OF IT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge should not have, sua sponte, raised the statute of limitations defense in this foreclosure action:

Supreme Court erred in sua sponte raising the affirmative defense of the statute of limitations and directing the dismissal of the complaint on that ground. The statute of limitations is an affirmative defense which is waived by a party unless it is raised either in a responsive pleading, or by motion prior to the submission of a responsive pleading (see CPLR 3211[e]…). “A court may not take judicial notice,’ sua sponte, of the applicability of a statute of limitations if that defense has not been raised” … . Here, the defendant neither answered the complaint nor submitted a pre-answer motion which raised the statute of limitations defense. 352 Legion Funding Assoc. v 348 Riverdale, LLC, 2018 NY Slip Op 05662, Second Dept 8-8-18

CIVIL PROCEDURE (STATUTE OF LIMITATIONS, JUDGE SHOULD NOT HAVE, SUA SPONTE, RAISED THE STATUTE OF LIMITATIONS DEFENSE, IF THE DEFENSE IS NOT RAISED IN THE PLEADINGS IT IS WAIVED, JUDGE CANNOT TAKE JUDICIAL NOTICE OF IT (SECOND DEPT))/STATUTE OF LIMITATIONS ( JUDGE SHOULD NOT HAVE, SUA SPONTE, RAISED THE STATUTE OF LIMITATIONS DEFENSE, IF THE DEFENSE IS NOT RAISED IN THE PLEADINGS IT IS WAIVED, JUDGE CANNOT TAKE JUDICIAL NOTICE OF IT (SECOND DEPT))/JUDGES (SUA SPONTE, JUDGE SHOULD NOT HAVE, SUA SPONTE, RAISED THE STATUTE OF LIMITATIONS DEFENSE, IF THE DEFENSE IS NOT RAISED IN THE PLEADINGS IT IS WAIVED, JUDGE CANNOT TAKE JUDICIAL NOTICE OF IT (SECOND DEPT))/FORECLOSURE (STATUTE OF LIMITATIONS, JUDGE SHOULD NOT HAVE, SUA SPONTE, RAISED THE STATUTE OF LIMITATIONS DEFENSE, IF THE DEFENSE IS NOT RAISED IN THE PLEADINGS IT IS WAIVED, JUDGE CANNOT TAKE JUDICIAL NOTICE OF IT (SECOND DEPT))

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COURT EXCEEDED ITS AUTHORITY WHEN IT VACATED AN ARBITRATION AWARD, COURT DID NOT ACQUIRE PERSONAL JURISDICTION OVER A POLICE OFFICER SEEKING MUNICIPAL LAW 207-c BENEFITS BECAUSE THE OFFICER NEVER AUTHORIZED THE UNION ATTORNEY TO REPRESENT HER (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a dissent, determined Supreme Court exceeded its authority when it vacated an arbitration award and the court did not acquire personal jurisdiction over the police officer (Lee) seeking Municipal Law 207-c benefits in another arbitration proceeding handled by a union lawyer:

Lee established that the court failed to acquire personal jurisdiction over her in the proceeding to confirm the arbitration award … because the City never properly served her … . Nor did the court acquire personal jurisdiction over Lee by the unauthorized appearance of the Union’s attorney “on behalf of Katherine Lee.” Contrary to the City’s contention, there is no evidence that Lee expressly or implicitly authorized the Union’s attorney to represent her at any stage of the proceedings. …

We further conclude that the court erred in sua sponte vacating its prior order and judgment, which confirmed the arbitration award … , and directing further arbitration. … A court has authority to “vacate its own judgment for sufficient reason and in the interests of substantial justice” … . That authority, however, is not unlimited… . “A court’s inherent power to exercise control over its judgments is not plenary, and should be resorted to only to relieve a party from judgments taken through [fraud,] mistake, inadvertence, surprise or excusable neglect” … .

In vacating the order and judgment, … the court “exceeded the narrow bounds within which courts are authorized to alter [arbitration] awards” … . None of the bases in CPLR 7511 (b) or (c) for vacating or modifying an arbitration award applies to the arbitrator’s failure to award the City a specific dollar amount for the value of benefits received by Lee, and the court had no power to disturb the award apart from the grounds set forth in those subdivisions  … . Matter of City of Syracuse (Lee), 2018 NY Slip Op 05077, Third Dept 7-6-18

​ARBITRATION (MUNICIPAL LAW, COURT EXCEEDED ITS AUTHORITY WHEN IT VACATED AN ARBITRATION AWARD, COURT DID NOT ACQUIRE PERSONAL JURISDICTION OVER A POLICE OFFICER SEEKING MUNICIPAL LAW 207-c BENEFITS BECAUSE THE OFFICER NEVER AUTHORIZED THE UNION ATTORNEY TO REPRESENT HER (FOURTH DEPT))/MUNICIPAL LAW (COURT EXCEEDED ITS AUTHORITY WHEN IT VACATED AN ARBITRATION AWARD, COURT DID NOT ACQUIRE PERSONAL JURISDICTION OVER A POLICE OFFICER SEEKING MUNICIPAL LAW 207-c BENEFITS BECAUSE THE OFFICER NEVER AUTHORIZED THE UNION ATTORNEY TO REPRESENT HER (FOURTH DEPT))/ATTORNEYS (MUNICIPAL LAW, COURT EXCEEDED ITS AUTHORITY WHEN IT VACATED AN ARBITRATION AWARD, COURT DID NOT ACQUIRE PERSONAL JURISDICTION OVER A POLICE OFFICER SEEKING MUNICIPAL LAW 207-c BENEFITS BECAUSE THE OFFICER NEVER AUTHORIZED THE UNION ATTORNEY TO REPRESENT HER (FOURTH DEPT))/CIVIL PROCEDURE (ARBITRATION,  COURT EXCEEDED ITS AUTHORITY WHEN IT VACATED AN ARBITRATION AWARD, COURT DID NOT ACQUIRE PERSONAL JURISDICTION OVER A POLICE OFFICER SEEKING MUNICIPAL LAW 207-c BENEFITS BECAUSE THE OFFICER NEVER AUTHORIZED THE UNION ATTORNEY TO REPRESENT HER (FOURTH DEPT))

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DEFENDANT DID NOT HAVE NOTICE OF OR A CHANCE TO OBJECT TO A 20 POINT ASSESSMENT MADE BY THE JUDGE SUA SPONTE, NEW HEARING ORDERED (THIRD DEPT).

The Third Department, ordering a new SORA hearing, determined defendant did not have notice of or an opportunity to object to a 20 point assessment made by the judge sua sponte:

“A defendant has both a statutory and constitutional right to notice of points sought to be assigned to him or her so as to be afforded a meaningful opportunity to respond to that assessment” … . To that end, SORA requires the People to provide defendant with written notice, at least 10 days prior to the hearing, if they intend to seek a presumptive risk level classification that differs from the Board’s recommendation along with their reasons for doing so… . Similarly, “a court’s sua sponte departure from the Board’s recommendation at the hearing, without prior notice, deprives the defendant of a meaningful opportunity to be respond” … . People v Maus, 2018 NY Slip Op 04796, Third Dept 6-28-18

CRIMINAL LAW (SEX OFFENDER REGISTRATION ACT (SORA), DEFENDANT DID NOT HAVE NOTICE OF OR A CHANCE TO OBJECT TO A 20 POINT ASSESSMENT MADE BY THE JUDGE SUA SPONTE, NEW HEARING ORDERED (THIRD DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (DEFENDANT DID NOT HAVE NOTICE OF OR A CHANCE TO OBJECT TO A 20 POINT ASSESSMENT MADE BY THE JUDGE SUA SPONTE, NEW HEARING ORDERED (THIRD DEPT))

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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))

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