| Matter of Joseph J.L. (Claire H.\MFrank L.) |
| 2010 NY Slip Op 00516 [69 AD3d 858] |
| January 19, 2010 |
| Appellate Division, Second Department |
| In the Matter of Joseph J.L., a Person Alleged to be Incapacitated.Claire H., Appellant; Frank L., Respondent. |
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In a guardianship proceeding pursuant to Mental Hygiene Law article 81, Claire H. appeals,as limited by her brief, from so much of a judgment of the Supreme Court, Westchester County(Rosato, J.), entered June 9, 2008, as failed to accurately incorporate various provisions of theparties' stipulation of settlement entered on the record in open court on April 15, 2008.
Ordered that the judgment is reversed insofar as appealed from, on the law, without costs ordisbursements, and the matter is remitted to the Supreme Court, Westchester County, for theissuance of a new judgment which shall accurately reflect the provisions of the stipulation datedApril 15, 2008.
When a party alleges that a judgment does not accurately incorporate the provisions of astipulation of settlement, the preferred remedy is to move in the trial court to resettle or vacatethe judgment, rather than to appeal (seeCharos v Charos, 3 AD3d 467 [2004]; Fitzgerald v Fitzgerald, 302 AD2d 356[2003]; Matter of Gesvantner v Dominguez, 273 AD2d 383 [2000]). Nevertheless, wehave examined the stipulation and the judgment appealed from in this matter and find that thelatter does not conform to the former in several key respects regarding the appellant's futurereceipt of tax planning gifts, the propriety of her past expenditures and receipt of past paymentsin connection with her father's care, and her ability to seek appointment as a coguardian of herfather's property in the future. Accordingly, the matter must be remitted to the Supreme Court,Westchester County, to issue a new judgment which accurately reflects the terms of the parties'stipulation dated April 15, 2008 (seePage v Page, 31 AD3d 1172, 1173 [2006]; Charos v Charos, 3 AD3d at 468;Matter of Gesvantner v Dominguez, 273 AD2d 383 [2000]; Pizzuto v Pizzuto,162 AD2d 443 [1990]). Rivera, J.P., Leventhal, Belen and Austin, JJ., concur.