| Chmelovsky v Country Club Homes, Inc. |
| 2013 NY Slip Op 07927 [111 AD3d 874] |
| November 27, 2013 |
| Appellate Division, Second Department |
| Rastislar Chmelovsky, Plaintiff, v Country ClubHomes, Inc., Appellant, and SK Home Improvement, LLC, et al., Respondents. (And aThird-Party Action.) |
—[*1] Rende, Ryan & Downes, LLP, White Plains, N.Y. (Roland T. Koke of counsel), forrespondents.
In an action to recover damages for personal injuries, the defendant County ClubHomes, Inc., appeals, as limited by its brief, from so much of an order of the SupremeCourt, Putnam County (Nicolai, J.), dated March 26, 2012, as granted that branch of themotion of the defendants SK Home Improvement, LLC, SK Home Improvement, andStanley Kedzior which was pursuant to CPLR 5019 (a) to resettle an order of the samecourt dated September 3, 2010, so as to, in effect, reinstate the plaintiff's third cause ofaction, asserted against the defendant Country Club Homes, Inc.
Ordered that the order dated March 26, 2012, is reversed insofar as appealed from,on the law, with costs, and that branch of the motion of the defendants SK HomeImprovement, LLC, SK Home Improvement, and Stanley Kedzior which was pursuant toCPLR 5019 (a) to resettle an order of the same court dated September 3, 2010, so as to,in effect, reinstate the plaintiff's third cause of action, asserted against the defendantCountry Club Homes, Inc., is denied.
"CPLR 5019 (a) provides a court with the discretion to correct a technical defect or aministerial error, and may not be employed as a vehicle to alter the substantive rights of aparty" (Mount Sinai Hosp. vCountry Wide Ins. Co., 81 AD3d 700, 701 [2011]; see Kiker v NassauCounty, 85 NY2d 879, 880-881 [1995]; Herpe v Herpe, 225 NY 323, 327[1919]; Greenstein vGreenstein, 65 AD3d 607, 608 [2009]). Where a movant seeks to change anorder or judgment in a substantive manner, rather than correcting a mere clerical error,CPLR 5019 (a) is not the proper procedural mechanism to be employed, and relief shouldbe sought through a direct appeal or by motion to vacate pursuant to CPLR 5015 (a) (see Johnson v Societe GeneraleS.A., 94 AD3d 663, 664 [2012]; Mount Sinai Hosp. v Country Wide Ins.Co., 81 AD3d at 701).
Here, by their motion, the defendants SK Home Improvement, LLC, SK HomeImprovement, and Stanley Kedzior (hereinafter collectively the movants) sought to, interalia, in effect, reinstate the plaintiff's third cause of action, asserted against the defendantCountry Club [*2]Homes, Inc. (hereinafter CountryClub). Contrary to the Supreme Court's determination, the movants did not seek tocorrect a ministerial mistake, defect, or irregularity in the order dated September 3, 2010,but rather, sought to change that order with respect to a substantive matter (see MountSinai Hosp. v Country Wide Ins. Co., 81 AD3d at 701; Haggerty v Market Basket Enters.,Inc., 8 AD3d 618, 619 [2004]; see also Goldberger v Eisner, 90 AD3d 835, 836 [2011]).Accordingly, the Supreme Court should have denied that branch of the movants' motionwhich was pursuant to CPLR 5019 (a) to resettle the order dated September 3, 2010, soas to, in effect, reinstate the plaintiff's third cause of action, asserted against CountryClub.
Country Club's remaining contentions are without merit or need not be reached inlight of our determination. Eng, P.J., Dickerson, Chambers and Hall, JJ., concur.