In re Hamilton

Appellate Division of the Supreme Court of New York

In re Hamilton

63 A.D.3d 937, 880 N.Y.S.2d 539

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

DecidedJune 16, 2009

StatusPublished

This text of 63 A.D.3d 937 (In re Hamilton) 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

In re Hamilton, 63 A.D.3d 937, 880 N.Y.S.2d 539 (N.Y. Ct. App. 2009).

Pincite

Opinion

In a proceeding to settle an intermediate account of the petitioners as cotrustees of a testamentary trust, the petitioners appeal from an order of the Surrogate’s Court, Chautauqua County (Cass, S.), dated August 19, 2008, which, sua sponte, amended the decretal provision of a prior decree of the same court (Phillips, S.), dated October 22, 1971. By decision and order of the Appellate Division, Fourth Department, entered November 24, 2008, this appeal was transferred to this Court for hearing and determination (see NY Const, art VI, § 4 [i]).

Ordered that on the Court’s own motion, the notice of appeal is deemed to be an application for leave to appeal, and leave to appeal is granted (see CPLR 5701 [c]); and it is further,

Ordered that the order is reversed, on the law, without costs or disbursements.

CPLR 5019 (a) provides a court with discretion to cure a “mistake, defect or irregularity” in a judgment regarding ministerial matters that do not affect the substantial rights of the parties (see Kiker v Nassau County, 85 NY2d 879, 881 [1995]; Crain v Crain, 109 AD2d 1094 [1985]). The record demonstrates that the decree did not contain a “mistake, defect or irregularity” (CPLR 5019 [a]). Accordingly, the Surrogate’s Court lacked the authority to amend the decree’s decretal paragraph pursuant to CPLR 5019 (a) (cf. Matter of Calm Lake Dev. v Town Bd. of Town of Farmington, 213 AD2d 979, 980 [1995]). Spolzino, J.P., Covello, Angiolillo and Dickerson, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

In a proceeding to settle an intermediate account of the petitioners as cotrustees of a testamentary trust, the petitioners appeal from an order of the Surrogate’s Court, Chautauqua County (Cass, S.), dated August 19, 2008, which, sua sponte, amended the decretal provision of a prior decree of the same court (Phillips, S.), dated October 22, 1971. By decision and order of the Appellate Division, Fourth Department, entered November 24, 2008, this appeal was transferred to this Court for hearing and determination (see NY Const, art VI, § 4 [i]).

Ordered that on the Court’s own motion, the notice of appeal is deemed to be an application for leave to appeal, and leave to appeal is granted (see CPLR 5701 [c]); and it is further,

Ordered that the order is reversed, on the law, without costs or disbursements.

CPLR 5019 (a) provides a court with discretion to cure a “mistake, defect or irregularity” in a judgment regarding ministerial matters that do not affect the substantial rights of the parties (see Kiker v Nassau County, 85 NY2d 879, 881 [1995]; Crain v Crain, 109 AD2d 1094 [1985]). The record demonstrates that the decree did not contain a “mistake, defect or irregularity” (CPLR 5019 [a]). Accordingly, the Surrogate’s Court lacked the authority to amend the decree’s decretal paragraph pursuant to CPLR 5019 (a) (cf. Matter of Calm Lake Dev. v Town Bd. of Town of Farmington, 213 AD2d 979, 980 [1995]). Spolzino, J.P., Covello, Angiolillo and Dickerson, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

63 A.D.3d 937, 880 N.Y.S.2d 539, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-hamilton-nyappdiv-2009.

Opinion

Related

Cite This Page — Counsel Stack