| Carter v Johnson |
| 2013 NY Slip Op 06333 [110 AD3d 656] |
| October 2, 2013 |
| Appellate Division, Second Department |
| Evelyn D. Carter et al., Appellants, v Phyllis B.Johnson et al., Respondents. |
—[*1] John F. Murphy III, Hopewell Junction, N.Y., for respondents.
In an action, inter alia, for the partition of certain real property, the plaintiffs appeal(1), as limited by their brief, from so much of an order of the Supreme Court, KingsCounty (Solomon, J.), dated November 22, 2011, as, sua sponte, in effect, vacated somuch of a prior order of the same court dated September 14, 2010, as denied the motionof the defendant Phyllis B. Johnson to vacate a judgment of the same court dated June17, 2010, which was in favor of the plaintiffs and against her in the principal sum of$200,000, and thereupon restored that motion to the calendar, and added to the calendarthe court's own motion to vacate the same judgment, and (2), as limited by their brief,from so much of an order of the same court dated March 5, 2012, as granted the motionof the defendant Phyllis B. Johnson to vacate the judgment dated June 17, 2010, andgranted the court's own motion to vacate the same judgment.
Ordered that on the Court's own motion, the notice of appeal from so much of theorder dated November 22, 2011, as, sua sponte, in effect, vacated so much of a priororder of the same court dated September 14, 2010, as denied the motion of the defendantPhyllis B. Johnson to vacate a judgment dated June 17, 2010, is deemed to be anapplication for leave to appeal from that portion of the order, and leave to appeal isgranted (see CPLR 5701 [c]); and it is further,
Ordered that the order dated November 22, 2011, is reversed insofar as appealedfrom, on the law, so much of the order dated March 5, 2012, as granted the motion of thedefendant Phyllis B. Johnson and granted the court's own motion to vacate the judgmentdated June 17, 2010, is vacated, and the judgment dated June 17, 2010, is reinstated; andit is further,
Ordered that the appeal from so much of the order dated March 5, 2012, as grantedthe motion of the defendant Phyllis B. Johnson to vacate the judgment dated June 17,2010, and granted the court's own motion to vacate the same judgment, is dismissed asacademic in light of our determination on the appeal from the order dated November 22,2011; and it is further,
Ordered that one bill of costs is awarded to the plaintiffs payable by the defendantPhyllis B. Johnson.
During the course of this action, inter alia, for the partition of certain real property,the plaintiffs and the defendant Phyllis B. Johnson entered into a stipulation of settlementwherein [*2]Johnson agreed, among other things, topurchase the plaintiffs' share of the subject premises for $200,000. Johnson, however,failed to tender performance and the plaintiffs entered a judgment dated June 17, 2010,against her in the principal sum of $200,000.
On July 26, 2010, Johnson moved, by order to show cause, to vacate the judgmentdated June 17, 2010. In an order dated September 14, 2010, the Supreme Court deniedJohnson's motion to vacate the judgment. However the court also, in effect, sua sponte,granted Johnson a life estate in the property. The plaintiffs appealed from so much of theorder dated September 14, 2010, as created the life estate. In a decision and order datedMay 24, 2011, this Court reversed the order on the ground that such sua sponte relief"was not only unwarranted by the facts, but was inconsistent with the relief sought in theorder to show cause" (Carter vJohnson, 84 AD3d 1141, 1142 [2011]).
Upon the return of the matter to the Supreme Court, and despite the fact that theplaintiffs had already entered the judgment dated June 17, 2010, from which Johnson hadnot appealed, Johnson moved, by order to show cause, for the appointment of a receiver,inter alia, to oversee partition of the property and distribute the proceeds, and for a stayof execution of the judgment pending resolution of her motion. The court granted thestay as requested in the order to show cause. The plaintiffs then moved to advance thereturn date of Johnson's motion. The court granted the plaintiffs' motion in part,advancing Johnson's motion, but not to the extent requested.
Although the papers submitted on Johnson's motion focused on whether a receivershould be appointed, upon considering the motion, the Supreme Court reviewed its fileand, in an order dated November 22, 2011, determined that there were "numerous defectsand errors" in the procedural history of the case which had led to the entry of a judgmentwhich contained "a profound flaw." Thus, both "on the court's own motion" and,purportedly, pursuant to the general prayer for relief in the plaintiffs' order to show causeseeking to advance the return date of Johnson's motion, the court, in effect, vacated somuch of the order dated September 14, 2010, as denied Johnson's motion to vacate thejudgment and "restored and reinstated" that motion. In addition, the court "added" to thecalendar "the court's motion to vacate the judgment" and invited further briefing onvacatur of the judgment.
Upon consideration of Johnson's restored motion to vacate the judgment and its ownmotion for the same relief, the court concluded, in an order dated March 5, 2012, that thejudgment was "substantially unjust and manifestly inequitable." Accordingly, "on thecourt's own motion, in the interests of justice and within the court's inherent powers as acourt of equity, and upon [Johnson's] motion to vacate the judgment," the court vacatedthe judgment dated June 17, 2010. The plaintiffs appeal from the orders dated November22, 2011, and March 5, 2012.
Pursuant to CPLR 5015 (a), a court may relieve a party from an order or judgment,but only "on motion of [an] interested person" and "with such notice asthe court may direct" (CPLR 5015 [a] [emphasis added]; see Armstrong Trading, Ltd. vMBM Enters., 29 AD3d 835, 836 [2006]). " 'Pursuant to CPLR 5019 (a), a trialcourt has the discretion to correct an order or judgment which contains a mistake, defect,or irregularity not affecting a substantial right of a party, or is inconsistent with thedecision upon which it is based. However, a trial court has no revisory or appellatejurisdiction, sua sponte, to vacate its own order or judgment' " (JSO Assoc., Inc. v Price, 104AD3d 737, 738 [2013], quoting Adams v Fellingham, 52 AD3d 443, 444 [2008]; see Menardy v Gladstone Props.,Inc., 100 AD3d 840, 842 [2012]; Merriwether v Osborne, 66 AD3d 851, 852 [2009]; Armstrong Trading, Ltd. v MBMEnters., 29 AD3d 835, 836 [2006]; see generally Tirado v Miller, 75 AD3d 153, 158-160[2010]). Likewise, while a court "may grant relief, pursuant to a general prayer containedin the notice of motion or order to show cause, other than that specifically asked for, tosuch extent as is warranted by the facts plainly appearing [in] the papers on both sides," itmay do so only "if the relief granted is not too dramatically unlike the relief sought, andif the proof offered supports it and the court is satisfied that no one has been prejudicedby the formal omission to demand it specifically" (Nehmadi v Davis, 95 AD3d 1181, 1184 [2012] [internalquotation marks omitted]; see Carter v Johnson, 84 AD3d at 1142; HCEAssoc. v 3000 Watermill Lane Realty Corp., 173 AD2d 774 [1991]).
Here, Johnson sought only a stay of execution of the judgment and the appointment[*3]of a receiver to oversee partition of the subjectpremises and included no general prayer for relief in her order to show cause. Moreover,even if Johnson's motion had contained a general prayer for relief, the relief grantedwould have been wholly unrelated to the relief Johnson sought. Likewise, the reliefsought by the plaintiffs in their motion to advance the return date of Johnson's motionwas wholly unrelated to the relief granted by the court in the order dated November 22,2011 (see Carter v Johnson, 84 AD3d at 1142; cf. Nehmadi v Davis, 95AD3d at 1184; HCE Assoc. v 3000 Watermill Lane Realty Corp., 173 AD2d at774). In addition, the plaintiffs had no opportunity to submit argument regarding thepropriety of that relief, which was, in any case, not warranted by the facts (seeCPLR 5015 [a]; 5019 [a]). Accordingly, the Supreme Court improperly, sua sponte,in effect, vacated so much of its prior order dated September 14, 2010, as deniedJohnson's prior motion to vacate the underlying judgment and restored the motion to itscalendar (see JSO Assoc., Inc. v Price, 104 AD3d at 738; Menardy vGladstone Props., Inc., 100 AD3d at 842; Merriwether v Osborne, 66 AD3dat 852; Adams v Fellingham, 52 AD3d at 444-445; Armstrong Trading, Ltd.v MBM Enters., 29 AD3d at 836). Eng, P.J., Rivera, Hall and Lott, JJ., concur.