On dismissals and 5019

B & H Fla. Notes LLC v Ashkenazi, 182 AD3d 525 [1st Dept. 2020]

Defendant Amit Louzon argues correctly that the court’s vacatur of its April 9, 2019 order dismissing the action with prejudice and issuance of an order dismissing the action without prejudice was procedurally improper, because the substitution of “without prejudice” for “with prejudice” is a substantive revision (see CPLR 5019 [a]; Johnson v Societe Generale S.A., 94 AD3d 663, 664 [1st Dept 2012]). However, on appeal from the judgment (which brings up for review the order [CPLR 5501]), the parties dispute whether the action should be dismissed with or without prejudice, and we find that the action was correctly dismissed without prejudice, because the dismissal is based on lack of standing, not on the merits (Landau, P.C. v LaRossa, Mitchell & Ross, 11 NY3d 8, 13-14 [2008]; Wells Fargo Bank, N.A. v Ndiaye, 146 AD3d 684 [1st Dept 2017]).

CPLR § 5019 and substantive rights

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

Mount Sinai Hosp. v Country Wide Ins. Co., 2011 NY Slip Op 01008 (App. Div., 2nd 2011)

The hospital then entered judgment against the insurer in satisfaction of that claim in the total sum of $25,327.50. The judgment consisted of benefits due the hospital for services rendered in the sum of $14,105.50, interest in the sum of $9,772, an attorney's fee in the sum of $850, and costs and disbursements in the sum of $600.

Thereafter, the insurer moved pursuant to CPLR 5019(a) to modify the amount of the judgment, belatedly asserting that the judgment exceeded the coverage limit of the subject policy due to payments previously made under the policy to other health care providers. The Supreme Court granted the insurer's motion, and ordered a hearing to determine the amount remaining on the policy. The plaintiffs appeal.

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 (see Gutierrez v State of New York, 58 AD3d 805, 807; Dugan v Crown Broadway, LLC, 33 AD3d 656, 656; Buywise Holding, LLC v Harris, 31 AD3d 681, 682).

The bold is mine.


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.