Blaustein v. Blaustein

143 A.D.2d 214, 532 N.Y.S.2d 16, 1988 N.Y. App. Div. LEXIS 15131

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 22, 1988
• Status: Published

Opinion

In a matrimonial action in which the parties were divorced by a judgment of the Supreme Court, Queens County (Levine, J.H.O.), dated May 6, 1987, the defendant wife appeals from an order of the same court, dated July 8, 1987, which denied her motion to resettle the judgment.

Ordered that the appeal is dismissed, without costs or disbursements.

In the course of an action for divorce, the parties entered into a stipulation of settlement. A judgment was entered thereon, and thereafter, the defendant moved to resettle the decretal paragraphs of the judgment on the ground that it failed to conform to the terms of the stipulation. The court denied this motion, and the defendant now appeals. As an order denying a motion to resettle the decretal paragraphs of a judgment is not appealable (see, Hatsis v Hatsis, 122 AD2d 111), this appeal must be dismissed.

In any event, although pursuant to CPLR 5019 (a) a trial or appellate court may correct a mistake, in the instant case the trial court had no revisory or appellate jurisdiction to correct an error in substance affecting the judgment. "Clerical errors or a mistake in the entry of the judgment or the omission of a right or relief to which a party is entitled as a matter of course may alone be corrected by the trial court through an amendment” (Herpe v Herpe, 225 NY 323, 327). The alleged error to which the defendant objects does not fall into any of the above categories. Therefore, the court was not empowered to amend the alleged error. Kooper, J. P., Sullivan, Harwood and Balletta, JJ., concur.