Well, Country Wide got away with this once. St. Barnabas Hosp. v. Country Wide Ins. Co., 79 A.D.3d 732 (2d Dept. 2010): “We note that, in affirming the Supreme Court’s order, we do not pass upon the propriety of the procedural mechanism utilized by the defendant, to wit, CPLR 5019 (a), to which the plaintiff did not object”
Not this time.
Mount Sinai Hosp. v Country Wide Ins. Co., 2011 NY Slip Op 01008 (2d Dept. 2011)
“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 (see Kiker v Nassau County, 85 NY2d 879, 880-881; Herpe v Herpe, 225 NY 323, 327; Rotunno v Gruhill Constr. Corp., 29 AD3d 772, 773; Haggerty v Market Basket Enters., Inc., 8 AD3d 618, 618-619; Novak v Novak, 299 AD2d 924, 925; Tait v Lattingtown Harbor Dev. Co., 12 AD2d 966, 967; see also Minnesota Laundry Serv., Inc. v Mellon, 263 App Div 889, 890, affd 289 NY 749; Fleming v Sarva, 15 Misc 3d 892, 895; Matter of Schlossberg v Schlossberg, 62 Misc 2d 699, 701). Here, in seeking to modify the amount of the judgment on the ground that the policy limits were nearly exhausted, the insurer was not seeking to correct a mere clerical error. Rather, it sought to change the judgment with respect to a substantive matter. As such, CPLR 5019(a) was not the proper procedural mechanism by which to seek such modification. Although the hospital raises this issue for the first time on appeal, we may review the issue because it presents a question of law which could not have been avoided if brought to the Supreme Court’s attention at the proper juncture”
Doh.
4 Responses
Doh?
You tried to “CPLR 5019(a)” me a couple of years back!!!!
The court said it was improper way back. Thus, I make those types of motions pursuant to the courts inherent power to do justice, etc. By the way, have I made those types of motions against you recently? The answer would be no. Could I have? Well, you know the answer.
That appeal wasn’t directed to you per se – well maybe it was. Anyway, you won that one, although the case did give me some ammunition should I need to load the shotgun up again.
Stop that learning and stuff at my expense.
Two way street amigo 🙂