Able v. Able

Appellate Division of the Supreme Court of New York

Able v. Able

209 A.D.2d 972, 619 N.Y.S.2d 461, 1994 N.Y. App. Div. LEXIS 11977

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 16, 1994

StatusPublished

Cited by4 cases

This text of 209 A.D.2d 972 (Able v. Able) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Able v. Able, 209 A.D.2d 972, 619 N.Y.S.2d 461, 1994 N.Y. App. Div. LEXIS 11977 (N.Y. Ct. App. 1994).

Pincite

Opinion

-—Order unanimously reversed on the law without costs, cross motion denied and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: Supreme Court erred in granting plaintiff’s cross motion, characterized as one to reargue, thereby agreeing to reconsider the issues of maintenance and support arrears as determined in the judgment of divorce. The court was not authorized to grant that relief. A final judgment, made after trial, is not subject to a motion to reargue under CPLR 2221 (see, Siegal, NY Prac § 532, at 836 [2d ed]). Additionally, plaintiff’s cross motion may not be characterized as one to resettle the judgment. A motion to resettle is used to correct errors or omissions in form and may not be used to effect a substantive change in a prior decision (see, Foley v Roche, 68 AD2d 558, 566). Furthermore, plaintiff’s cross motion may not be characterized as one to vacate the judgment pursuant to CPLR 5015 (a).

Lastly, the court erred in staying resolution of defendant’s motion pending "reargument”. Therefore, upon remittitur, Supreme Court must address defendant’s motion seeking enforcement of the judgment of divorce. (Appeal from Order of Supreme Court, Erie County, Notaro, J.—Spousal Maintenance.) Present—Pine, J. P., Balio, Callahan, Davis and Boehm, JJ.

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-—Order unanimously reversed on the law without costs, cross motion denied and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: Supreme Court erred in granting plaintiff’s cross motion, characterized as one to reargue, thereby agreeing to reconsider the issues of maintenance and support arrears as determined in the judgment of divorce. The court was not authorized to grant that relief. A final judgment, made after trial, is not subject to a motion to reargue under CPLR 2221 (see, Siegal, NY Prac § 532, at 836 [2d ed]). Additionally, plaintiff’s cross motion may not be characterized as one to resettle the judgment. A motion to resettle is used to correct errors or omissions in form and may not be used to effect a substantive change in a prior decision (see, Foley v Roche, 68 AD2d 558, 566). Furthermore, plaintiff’s cross motion may not be characterized as one to vacate the judgment pursuant to CPLR 5015 (a).

Lastly, the court erred in staying resolution of defendant’s motion pending "reargument”. Therefore, upon remittitur, Supreme Court must address defendant’s motion seeking enforcement of the judgment of divorce. (Appeal from Order of Supreme Court, Erie County, Notaro, J.—Spousal Maintenance.) Present—Pine, J. P., Balio, Callahan, Davis and Boehm, JJ.

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Bluebook (online)

209 A.D.2d 972, 619 N.Y.S.2d 461, 1994 N.Y. App. Div. LEXIS 11977, Counsel Stack Legal Research, https://law.counselstack.com/opinion/able-v-able-nyappdiv-1994.

Opinion

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