| Bennett v Bennett |
| 2012 NY Slip Op 07165 [99 AD3d 1129] |
| October 25, 2012 |
| Appellate Division, Third Department |
| Susan M. Bennett, Respondent, v Jeffrey H. Bennett,Appellant. |
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Rose, J.P. Appeal from a second amended judgment of the Supreme Court (Nolan Jr., J.),entered August 18, 2010 in Saratoga County, which partially granted plaintiff's motion to resettlethe parties' amended judgment of divorce.
An amended judgment granting plaintiff a divorce on cruel and inhuman treatment groundswas entered in 2009, and we affirmed (82 AD3d 1294 [2011]). While that appeal was pending,however, plaintiff moved to resettle the amended judgment to, among other things, clarify thatshe was allowed to offset her child support arrears against payments owed to her fromdefendant's pension. Supreme Court granted that portion of the motion to resettle and issued asecond amended judgment, from which defendant now appeals.
We are unpersuaded by defendant's contention that Supreme Court did not have the authorityto issue the second amended judgment. It is well settled that a trial court may "cure mistakes,defects and irregularities that do not affect substantial rights of [the] parties" (Kiker v NassauCounty, 85 NY2d 879, 881 [1995]; see CPLR 5019 [a]; Matter of Glazier v Brightly, 81 AD3d1197, 1199 [2011]; Follender vMaxim, 44 AD3d 1227, 1228-1229 [2007]). This authority includes " 'amend[ing] ajudgment to make it reflect what the court's holding . . . clearly intended' "(Matter of Glazier v Brightly, 81 AD3d at 1199, quoting Matter of Owens vStuart, 292 AD2d 677, 678 [2002]; see Reback v Reback, 73 AD3d 890, 890 [2010]). Here, theoriginal amended judgment provided that the sums owed for the pension payments "may beoff-set against" plaintiff's child support arrears, reflecting language in the court's prior decisionand order. When defendant objected to plaintiff's attempt to claim the offset, Supreme Courtissued the second amended judgement to provide that plaintiff "shall be entitled" to the offset, aswell. [*2]In our view, the second amended judgmentappropriately clarified the intent of the court's original holding (see CPLR 5019 [a];Matter of Glazier v Brightly, 81 AD3d at 1199; Reback v Reback, 73 AD3d at890; Battisti v Battisti, 228 AD2d 803, 804 [1996], lv dismissed 89 NY2d 916[1996]). In doing so, Supreme Court did not affect the amount of child support owed by plaintiffor the amount of defendant's pension to which plaintiff was entitled and, thus, did not alter anysubstantial rights of the parties (see Follender v Maxim, 44 AD3d at 1228-1229;Gerenstein v Gerenstein, 188 AD2d 868, 870 [1992]).
Defendant's additional arguments regarding the alleged invalidity of the original amendedjudgment were previously raised and rejected as part of his appeal from that judgment (82 AD3dat 1296). Accordingly, our prior determination is the law of the case, precluding review of thoseissues on this appeal (see Matter of LTI,Inc. [Commissioner of Labor], 57 AD3d 1067, 1068 [2008]; Oakes v Muka, 56 AD3d 1057,1059 [2008]; Matter of LaBarbera vTown of Woodstock, 55 AD3d 1093, 1094 [2008]).
Spain, Kavanagh, Stein and McCarthy, JJ., concur. Ordered that the second amendedjudgment is affirmed, without costs.