| Matter of Torpey v Town of Colonie, N.Y. |
| 2013 NY Slip Op 04085 [107 AD3d 1124] |
| June 6, 2013 |
| Appellate Division, Third Department |
| In the Matter of Daniel J. Torpey et al., Appellants, v Townof Colonie, New York, Respondents. |
—[*1] Michael C. Magguilli, Town Attorney, Newtonville (John A. Spath of counsel), forrespondents.
Spain, J. Appeal from an order of the Supreme Court (McDonough, J.), entered July6, 2012 in Albany County, which, in a proceeding pursuant to CPLR article 78, deniedpetitioners' motion to resettle and/or clarify a prior judgment.
In April 2011, petitioners were terminated from their long-term employment withrespondent Town of Colonie as fire protection specialist and civil engineer on the groundthat they were public officers who were required to but did not meet the residencyrequirement of the Public Officers Law, relying upon our decision in Matter of Ricket v Mahan (82AD3d 1565 [2011]). Thereafter, petitioners accepted laborer position employmentwith the Town, for which there is no residency requirement. Petitioners commenced theunderlying CPLR article 78 proceeding against respondents alleging that theirterminations were arbitrary and capricious and affected by error of law and, accordingly,should be annulled. Petitioners sought to be reinstated to their former positions "with fullback pay, benefits and emoluments of employment."
Supreme Court determined that petitioners had been erroneously terminated, findingthat respondents had not shown that they were public officers subject to the residency[*2]requirements. The court granted thepetition,[FN*] concluding that petitioners were "entitled to be reinstated to their former positions and toall back pay and associated benefits to which they would have been entitled had they notbeen improperly terminated." Respondents did not appeal from that judgment.Thereafter, a dispute arose among the parties regarding, among other things, the meaningof the court's directive that petitioners were entitled to "all back pay," i.e., whether theback pay awards must be offset against petitioners' earnings while employed by the Townas laborers, as respondents urged, or whether they were entitled to full back pay withoutsuch offset, as petitioners claimed (see Civil Service Law §§ 75, 77).Petitioners moved in Supreme Court in February 2012 to resettle and/or clarify thecourt's prior judgment regarding back pay. The court denied the motion, finding itrepresented an improper attempt to amplify and expand upon its prior decision.Petitioners now appeal.
Petitioner's motion was one to resettle and/or clarify Supreme Court's prior judgmentregarding back pay. Such a motion is designed "not for substantive changes [in, or toamplify a prior decision of, the court], but to correct errors or omissions in form, forclarification or to make the [judgment] conform more accurately to the decision" (Simon v Mehryari, 16 AD3d664, 666 [2005]; see Elson v Defren, 283 AD2d 109, 113 [2001];Gannon v Johnson Scale Co., 189 AD2d 1052, 1052 [1993]; see also Miller vLanzisera, 273 AD2d 866, 867-868 [2000], appeal dismissed 95 NY2d 887[2000]). Such motions rest on the inherent power of courts to " 'cure mistakes, defectsand irregularities that do not affect substantial rights of [the] parties' " (Bennett v Bennett, 99 AD3d1129, 1129 [2012], quoting Kiker v Nassau County, 85 NY2d 879, 881[1995]; see Matter of Owens v Stuart, 292 AD2d 677, 678 [2002]).
Here, petitioners' motion sought, unsuccessfully, to amplify and substantively amend,not merely to clarify, Supreme Court's prior judgment relating to back pay, by invokingfor the first time Civil Service Law provisions in support of their argument that the backpay award should not be offset by earnings as Town employees during the period inwhich they had been improperly terminated, points which should have been raised andargued before a determination was rendered on their petition (see Gannon v JohnsonScale Co., 189 AD2d at 1052). Such an offset would directly affect the amount ofback pay owed by the Town and, as such, would clearly have "alter[ed] [a] substantialright[ ] of the parties" (Bennett v Bennett, 99 AD3d at 1130; see Gannon vJohnson Scale Co., 189 AD2d at 1052; Tidball v Tidball, 108 AD2d 957,958 [1985]).
Under established precedent, no appeal lies from the " 'denial of a motion to resettle[or clarify] a substantive portion of an order' " (Matter of Biasutto v Biasutto, 75 AD3d 671, 672 [2010],quoting Tidball v Tidball, 108 AD2d at 958; cf. Stevenson v Lazzari, 16 AD3d 576, 578 [2005] [orderdenying motion for resettlement is appealable because the motion merely sought toamend the judgment to reflect the undisputed fact that all claims had been dismissed];Bullion v Metropolitan Transp. Auth., 161 AD2d 168, 168 [1990] [denial ofmotion to resettle which does not modify any substantive portion of judgment isappealable]). Moreover, even were we to view petitioners' motion as one to reargue,which Supreme Court indicated would have been untimely (see CPLR 2221 [d][3]), the motion was not "identified specifically as such" (CPLR 2221 [d] [1]), asrequired, and, in any event, no appeal lies from the denial of a motion to reargue (see Reynolds v Reynolds, 92AD3d 1109, 1110 [2012]). The motion likewise was not [*3]denominated as one seeking renewal (see CPLR2221 [e] [1]) and was not based upon "new facts" or "a change in the law" (CPLR 2221[e] [2]). Accordingly, the appeal must be dismissed.
Stein, J.P., Garry and Egan Jr., JJ., concur. Ordered that the appeal is dismissed,without costs.
Footnote *: Supreme Court deniedpetitioners' request for counsel fees, costs and disbursements.