| Goldberger v Eisner |
| 2011 NY Slip Op 09271 [90 AD3d 835] |
| December 20, 2011 |
| Appellate Division, Second Department |
| Erno Goldberger, Also Known as Abe Goldberger and Others, etal., Respondents, v Benjamin Eisner, Appellant, et al.,Defendant. |
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In an action, inter alia, for a judgment declaring that the assignment of a judgment from thedefendant Benjamin Eisner to the defendant Sholom Eisner was a fraudulent conveyance, thedefendant Benjamin Eisner appeals from an order of the Supreme Court, Kings County (F.Rivera, J.), dated May 23, 2008, which denied his motion pursuant to CPLR 2001 and 5019 (a) toamend a judgment of the same court dated December 5, 2007, so as to delete a declaration thatthe assignment of a judgment from the defendant Benjamin Eisner to the defendant SholomEisner was a fraudulent conveyance.
Ordered that the order is affirmed, without costs or disbursements.
In 1991 the defendant Benjamin Eisner (hereinafter Benjamin) obtained a judgment in hisfavor in the sum of $288,667.50 (hereinafter the Eisner Judgment). In 1992, Benjamin assignedthe Eisner Judgment to his brother, Sholom Eisner (hereinafter Sholom). The plaintiffscommenced the instant action against the Eisners in 2002, alleging that the assignment of theEisner Judgment was a fraudulent conveyance, and seeking, inter alia, a declaratory judgment tothat effect. The plaintiffs also alleged that they were entitled to a judgment offsetting the EisnerJudgment with another judgment and awarding them the difference between the two, and thatthey were entitled to an injunction restraining the Eisners from enforcing the Eisner Judgmentagainst them. On December 5, 2007, the Supreme Court entered a default judgment in favor ofthe plaintiffs and against Sholom, which, inter alia, declared that the assignment of the EisnerJudgment from Benjamin to Sholom was a fraudulent conveyance. The Supreme Court alsogranted the plaintiffs' application to discontinue the action insofar as asserted against Benjamin.
Benjamin moved, pursuant to CPLR 2001 and 5019 (a), to amend the judgment so as todelete the declaration that the assignment of the Eisner Judgment from Benjamin to Sholom wasfraudulent. In the order appealed from, the Supreme Court denied Benjamin's motion. We affirm.
The provisions in CPLR 2001 and 5019 (a) are only used to correct errors in judgmentswhere the corrections do not affect a substantial right of the parties (see Kiker v NassauCounty, 85 NY2d 879, 881 [1995]; Patrician Plastic Corp. v Bernadel Realty Corp.,25 NY2d 599, 608 [1970]). Since the "correction" proposed by Benjamin here would havedeleted the very declaratory relief that [*2]the plaintiffs hadsought, it would clearly have affected their substantial rights. Thus, the Supreme Court properlydenied the motion.
Moreover, at a hearing before the Supreme Court, Benjamin agreed to the entry of the defaultjudgment against Sholom as a condition precedent to the plaintiffs discontinuing the actioninsofar as asserted against him. In doing so, he waived his right to object to that judgment(see generally Mitchell v New York Hosp., 61 NY2d 208, 214 [1984]; Salesian Socy.v Village of Ellenville, 41 NY2d 521, 525-526 [1977]).
The appellant's remaining contentions are without merit. Rivera, J.P., Balkin, Hall andCohen, JJ., concur.