Amending, Correcting and Changing Court Orders and Judgments in New York
By. J. Douglas Barics
Revised August 2019
"I think the court made a mistake in my divorce.. Can I have the judgment modified?"
"I was never served with papers and missed my court date, and the case went to trial without me. Can I appeal this decision?"
"I settled my support case but think I made a mistake. How can I fix this?"
"I recently discovered new information on my case and want to show it to the court. Can I file for a modification?"
"My custody order has the names mixed up. Can this mistake be fixed without a new hearing?"
All too often procedural issues raise the most questions, and questions such as the above are very common in virtually all proceedings. There are a number of ways to change an existing order, but the appropriate method will depend on how the initial order was derived what change is being requested.
1. Orders and Judgments
A judgement is a final determination issued at the end of a case in Supreme Court. An order is a non final determination if it is issued in Supreme Court before the judgment. If it is issued by the Family Court it is likely a final determination. When a post judgment motion is made in Supreme Court, an order acts like a final determination on a new matter.
2. The Three Ways Judgments or Orders are Issued
There are three ways a judgment or order can come about. How an order or judgment is derived will determine how it can be corrected, amended or modified.
- The parties reach an agreement
- The Court makes a decision after both sides participate
- One side defaults
a. Correcting, amending and modifying Orders and Judgments based on a settlement
When a settlement is reached, the parties are deciding the outcome and not the Court. By definition, both sides have appeared, and have waived their right to a trial or judicial determination.
These orders may be:
- Appealed, limited to the difference between the order and the agreement
b. Correcting, amending and modifying Orders and Judgment which have been litigated
(1) Motion Practice
A litigated motion means the motion was fully briefed and both sides submitted supporting or opposing papers. If required, both sides made oral argument on the motion.
A fully litigated motion may be
- Resettled if the court issued a decision and not a final order or judgment
- Modified by a later proceeding
(2) Fully Litigated Orders or Judgments issued after a Hearing or a Trial
A litigated hearing or trial means both sides appeared, participated and called witnesses, submitted evidence, and conducted cross examination
At the end of a litigated matter, the Court will issue a decision, order or judgment. A fully litigated trial or hearing may be
- Set aside by a post judgment motion for judgment or a new trial
- Resettled if the court issued a decision
- Modified by a later proceeding
(3) Orders or Judgments which are dismissed for failure to appear or on default
When the Plaintiff or moving party defaults, or fails to prosecute their case, the order which disposes of the matter may be:
- Vacated by a motion
- Restored by a motion
When a Defendant or non moving party defaults or fails to appeal, an order or judgment may be issued on default. This default order may be:
- Vacated by a motion
3. The Means of Changing Orders and Judgments
The following is a summary of each of the means listed above
a. Resettling a judgment or order
"Settling" an order has nothing to do with a settlement or agreement. "Settling" an order is the term used to describe the process under which final judgment is prepared. When a court issues a decision, it often contains the reasons behind it. A corresponding judgment is prepared that matches to "ordered" portions but omits the discussion and rational behind it.
When a decision or an agreement exists, the process to submit a judgment is similar. In the best circumstances, both sides work to prepare a single judgment. When that is not possible, each side can submit a proposed judgment whose terms match the agreement or decision. This process is known as "settling"
"Resettling" as its name implies, is simply "settling" a judgment for a second time. It is commonly used to correct typographical errors, or if the terms of the judgment do not match the decision or agreement.
A "settled" judgement cannot add or omit terms. The judgment (or order) must mirror the court's decision or the stipulation between the parties. This process of giving notice is called settling an order on notice.
If an existing order has a ministerial mistake, such as an misspelled name, swapping the parties, or an arithmetic mistake, the proper remedy to submit a corrected judgment by means of resettlement (i.e. resigning). Resettling a judgment is often done by motion, but some judges will allow it on consent.
b. Motion to reargue under CPLR 2221(d)
A motion to reargue under CPLR 2221(d) applies to orders arising from a prior motion. CPLR 2221 does not apply to trial decisions. A motion to reargue is not based on any new facts. Instead, it is used when the Court misapplies the law or misunderstood an existing fact.
A motion to reargue has two elements. It requests that reargument be granted, and second, that upon reargument, it requests for a different outcome.
If the court denies reargument, no appeal can be taken from that denial. But if the Court grants reargument, an appeal may be taken, even if the Court adheres to its original decision after reargument. See CPLR 5701(a)(2)(viii). which provides "an appeal may be taken ... from an order ... made on notice and it .... grants a motion for leave to reargue..."
c. Motion to renew under CPLR 2221(e)
A motion to renew under CPLR 2221(e) also applies only to orders arising from a prior motion. A motion to renew is based on new facts not offered in the initial motion, and the statute requires three elements:
- It must be indemnified as a motion to renew
- It must offer new facts not initially presented or a change in the law
- It must allege that a different outcome would result from the new facts or the change in the law.
While not listed in the statute, there also must be a reasonable justification why the new facts were not presented in the initial motion.
The failure to present new facts will result in the court treating the motion as a motion to reargue. The failure to offer a reason why the new facts were not presented initially will result in a denial of the motion to renew, as the failure to exercise due diligence in the initial motion is not sufficient for a motion to renew. See Elder v Elder 2005 NY Slip Op 06897 [21 AD3d 1055], Cioffi v S.M. Foods, Inc. 129 AD3d 888. "[T]he Supreme Court lacks discretion to grant renewal where the moving party omits a reasonable justification for failing to present the new facts on the original motion'" See also Central Mortgage v Resheff. In Resheff, the lower court granted a motion to renew and upon renewal, issued a judgment of foreclosure. The Second Department reversed the foreclosure judgment, on the basis that while new information was presented, the lender failed to offer reasonable justification why the new information was not initially presented.
Just a a motion to reargue, a motion to renew is decided in two steps. First is the decision whether to grant renewal or not, and if renewal is granted, a decision based on the new evidence.
An order granting or denying renewal may be appealed pursuant to CPLR 5701(a)(2)(viii) which provides "an appeal may be taken ... from an order ... made on notice and it .... determines a motion for leave to renew..."
d. A motion to restore
If a plaintiff fails to appear for a trial in Supreme Court or is otherwise unable to proceed, the matter may be marked off calendar. A motion to restore can be made, but only if the note of issue has been filed. Absent a note of issue, no relief to restore exists and instead, a motion to vacate must be made.
e. Motion to vacate default or vacate a dismissal due to non appearance
If a party fails to appear for a trial or fails to oppose a motion and a default is issued, that default may be challenged. A default order may not be appealed pursuant to CPLR 5511. In order to challenge a default, the remedy is to make a motion pursuant to CPLR 5015(a) seeking the vacate the default. This motion consists of two elements, both of which must be met. (a) excusable default existed in missing the trial, and (b) there is a meritorious cause of action or defense. See Wade v Village of Whitehall 2007 NY Slip Op 10449 [46 AD3d 1302], Matter of Joosten v Joosten 2006 NY Slip Op 06858 [32 AD3d 1030]
There is no appeal from a default order under CPLR 5511. However, an order resulting from a motion to vacate a default judgment may be appealed as of right pursuant CPLR 5701(a)(3).
f. Vacating a consent agreement
To vacate a consent order, a motion seeking to vacate the agreement must be made before the agreement is reduced to a final judgment. In order to prevail, the party must show that the stipulation was arrived at by fraud, duress, undue influence, or some other extreme fact. See Christian v Christian. 42 N.Y.2d 63 (1977).
Once the agreement has been reduced to a judgment, the remedy is to bring a plenary action under a new index number which seeks to set aside the agreement, but does not disturb the judgment.
There is no appeal from a consent order. However, an order resulting from a motion to vacate a stipulation may be appealed, as can an order or judgment from a plenary action to set aside a stipulation.
An appeal is available only for judgments or orders issued by the court following a full trial where both sides appeared and were heard. See CPLR 5701 and CPLR 5501. Pursuant to CPLR 5512, only appealable papers may be appealed, and only by a party who is aggrieved under CPLR 5511. No new evidence may be presented in an appeal, it is a request to a have a higher court review the trial on the basis that the trial court made mistakes that would affect the outcome. Such mistakes could be a mistake in deciding a fact or in applying the law. The procedure for appeals is rather complex, and different rules apply for each of the four judicial departments.
A modification seeks a new order based on new circumstances that exist now but did not exist when the original order was made. It does not seek change an old order retroactively.
About J. Douglas Barics
J. Douglas Barics is an attorney located in Commack NY who regularly represents individuals in all divorce and family law matters.
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