| Greenstein v Greenstein |
| 2009 NY Slip Op 06233 [65 AD3d 607] |
| August 18, 2009 |
| Appellate Division, Second Department |
| Jerry Greenstein, Appellant, v Leta Greenstein,Respondent. |
—[*1] Richard J. Feinberg, New City, N.Y., for respondent.
In a matrimonial action in which the parties were divorced by judgment dated June 24, 2003,the plaintiff appeals (1), as limited by his brief, from so much of an order of the Supreme Court,Rockland County (Weiner, J.), dated September 16, 2008, as granted that branch of thedefendant's motion which was, in effect, to amend the judgment of divorce to award thedefendant a right of first refusal to purchase the former marital residence, and (2) from an orderof the same court dated December 2, 2008, which denied his motion for leave to reargue thatbranch of the defendant's motion.
Ordered that the appeal from the order dated December 2, 2008, is dismissed, as no appeallies from an order denying reargument; and it is further,
Ordered that the order dated September 16, 2008, is reversed insofar as appealed from, onthe law, and that branch of the defendant's motion which was, in effect, to amend the judgmentof divorce to award her a right of first refusal to purchase the former marital residence is denied;and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The Supreme Court erred in granting that branch of the defendant's motion, madeapproximately three years after the entry of the judgment of divorce, which was, in effect, toamend the judgment of divorce to award her a right of first refusal to purchase the former maritalresidence. The defendant had not requested that relief as part of equitable distribution, nor wasthe issue litigated by the parties, nor delineated in the decision after trial or judgment of divorce(see Claus v Claus, 37 AD3d517, 518 [2007]; Rotunno v GruhillConstr. Corp., 29 AD3d 772, 773 [2006]; Barclays Bank of N.Y. v Strathmore FiveRealty Co., 245 AD2d 406, 407 [1997]).
While a motion to amend may be used to correct a technical defect, mistake, or irregularityin a judgment or order (see CPLR 5019 [a]; Kiker v Nassau County, 85 NY2d879, 880-881 [1995]), it may not be employed to affect a substantial right of a party (seeHerpe v Herpe, 225 NY [*2]323, 327 [1919]; Haggerty v Market Basket Enters.,Inc., 8 AD3d 618, 619 [2004]; Novak v Novak, 299 AD2d 924, 925 [2002];Matter of Owens v Stuart, 292 AD2d 677, 678-679 [2002]). Since that branch of thedefendant's motion sought a substantive change in the terms and conditions for the sale of theformer marital residence (see Popelaskiv Popelaski, 22 AD3d 735, 738 [2005]; Markopoulos v Markopoulos, 274AD2d 457, 459 [2000]), it should have been denied (see Vollbrecht v Vollbrecht, 246AD2d 793, 794 [1998]; Kivat v Kivat, 232 AD2d 530 [1996]; Baum v Baum, 40AD2d 1000, 1001 [1972]). Rivera, J.P., Dillon, Balkin and Austin, JJ., concur.