The Decision Controls. Fix with CPLR § 5019(a)

CPLR § 5019 Validity and correction of judgment or order; amendment of docket.

Hernandez v Willoughby Walk Apts. Corp., 2010 NY Slip Op 01923 (App. Div., 2nd, 2010)

At this juncture, the Supreme Court properly, in effect, denied that branch of the motion of the third-party defendant Rotech Enterprises, Inc. (hereinafter Rotech), which was for summary judgment dismissing the third-party causes of action for contractual indemnification and to recover damages for breach of contract to procure insurance insofar as asserted against it. In this regard, Rotech made its motion prior to the depositions of the parties and while substantial discovery remained outstanding (see Ramos v DEGI Deutsche Gesellschaft Fuer Immobilienfonds MBH, 37 AD3d 802, 803; Great S. Bay Family Med. Practice, LLP v Raynor, 35 AD3d 808, 809-810).

We note that, at the oral argument on the motion, the Supreme Court indicated that the denial thereof was "without prejudice to renew." However, the Supreme Court failed to indicate the [*2]same in the order appealed from. Where there is an inconsistency between an order and the decision upon which it is based, the decision controls (see Matter of Stewart, 65 AD3d 634, 635). Such an inconsistency may be corrected either by way of motion for resettlement or on appeal (see CPLR 5019[a]; Scheuering v Scheuering, 27 AD3d 446, 447). We therefore modify the order accordingly.

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