DEFENDANTS-APPELLANTS REPLY CHALLENGE TO
PLAINTIFF-RESPONDENT'S ARGUMENT
POINT IV
--------
CPLR 5019 (a) ALLOWS FOR AN ORDER TO BE AMENDED
WITHOUT THE FORMALITIES OF A MOTION WHEN
THAT ORDER CONTAINS AN ERROR WHICH DOES NOT
AFFECT A SUBSTANTIAL RIGHT OF A PARTY
-------------------------------------
their stated caption:
Under Respondent's own caption which reads "..not affecting a
substantial right of the party..." and that Defendants suffered more
than a substantial right, as shown below as Plaintiff attempts to
hide under CPLR 5019 (a) to avoid having had to file a proper
motion.
Defendants-Appellants submit the following rules:
"CPLR 5019 permits the court to correct or cure ministerial
mistakes, defects or irregularities which do not effect
substantial rights of the parties. Haggerty v. Market Basket
Enterprises, Inc., 8 A.D.3d 618 (2 Dept. 2004). See also,
Herpe v. Herpe, 225ndN.Y. 323 (1919).
In Siegel, New York Practice 4 Section 420, makes it perfectly
clear as stated: "CPLR 5019 is not designed to permit the court to
exercise discretion or make new findings of fact." And that is
exactly what was done. The Amended Decision and Order completely
changed and eliminated findings of fact from the Original Decision
and Order that constituted a major change against Defendants by
shifting $150,000.00 that the Lower Court said was consolidated, and
prejudiced Defendants by that that amount. Plaintiff- Respondents
have claimed that their perceived "error" was "merely" "de minimus"
in several affidavits, which cannot rise to the level requiring
judicial intervention. By Plaintiff's own admissions, there really
was a motion to notify the Lower Court to amend the original
decision as Plaintiff's Brief states for the Preliminary Statment
that shows:
"Judge O'Rourke signed the amended decision and order
on August 27, 2007. (R. at A-19 - A-22). That order
granted the exact same relief as the previous order."
This admission that Plaintiff was granted relief by the new
order, speaks for its self. Plaintiff clearly was seeking relief
from a law of the case Decision and Order, and wanted to be relieved
of its findings of fact. And this kind of relief can only be
granted by way of a motion.
Additional prejudice against Defendants by the Amended Decision
by way of the the illegal motion, prevented Defendants due process
of law to challenge Plaintiffs request via a proper CPLR 2221 motion
to reargue, including a cross challange asserting laches.
Plaintiff-Respondents' Brief makes vague and deceiptful
statements of their pure opinion that the letter was not a motion,
to even stating what Judge O'Rourke was thinking.
"Judge O'Rourke surely weighed their opinions and decided
that the clarification was minor and did not affect a
substantial right of either party."
(Respondent's Brief, page 19 paragraph 2)
Nowhere in their letter or in any of their affidavits or Brief,
did Plaintiff attempt to explain the dropping of the critical
statements as detailed in Defendants-Appellants Brief at POINT VII
at page 23.
"Here, correction of the clerical eror in the April 27,
2007 order did not affect the substantial right of
either party. The letter that Wells Fargo's counsel sent
to Judge O'Rourke was not a motion. (R. at A-308) It
was routine correspondence sent to clarify a mistake.
(Respondent's Brief, page 19 paragraph 1)
If this constitutes "routine correspondence", and the Amended
Decision based merely on a letter sent by a legal assistant, then no
decision is safe in the Second Department after the 30 day notice of
entry has been filed (as Plaintiff did), and the law and decisions
become merely a suggestion for someone to make major alterations.
This activity clouds and undermines the entire legal system,
and cannot be allowed to stand.
Plaintiff-Respondents' following statement is a complete lie:
"It made no argument and it requested no relief other than
which had already been granted. ... Moreover, the
Websters actually responded to the letter (R. at A-288 -
A-289) They had an opportunity to voice their opinion
regarding the clarification of a detail in the original
decision and order."
(Respondent's Brief, page 19 paragraph 2)
Changing a Decision that was the law of the case as presented in
Plaintiffs's Brief that the letter "requested no relief other than
which had already had been granted" is totally false, as it involved
the shifting of $150,000.00 in Plaintiff's favor, by the dropping of
findings of fact, and major alterations to other statements.
And how would Plaintiff, or the attorneys know whether Judge
O'Rourke "surely weighed" Defendants-Appellants "opinions" or not
without ex parte communications, which Defendants asserted in their
faxed letter strenously objecting to the request of the Plaintiff's
letter, clearly a motion.
"In New York, it is well settled that "[c]lerical errors
or a mistake in the entry of a judgemenmt or the omission
of a right to relief to which a party is entitled as a
matter of course may alone be corrected by the trial
court through an amendment."
Defendants agree with the above that Plaintiff-Respondent's cite
"... may alone be corrected by the trial court through an amendment"
which requires the filing of a motion (see Siegal on motions to
amend). Judge O'Rourke never even made a sua sponte motion, or
confirmed or stated that a clerical error was the reason for his
signing Plaintiff's own created and authored Amended Decision and
Order.
Defendants-Appellants' rights were clearly and substantially
violated by the request sent to Court Chambers by a mere legal
assistant, Sherri Beals.
Defendants-Appellants' letter in opposition, (R. A-289) clearly
stated regarding Plaintiffs own Amended Decision "Had your Decision
held otherwise, we would have appealed it on various grounds based
upon the documents we presented to this Honorable Court in our
Affidavits in support of our Cross Motion and in Reply. ... The
instant informal motion by Plaintiff is not a mere ''correction''
but a major challenge to the findings of the Court."
Defendants-Appellants clearly show in their Brief for POINTs VII
(page 23) that Plaintiff's letter to Amended Decision and Order was
clearly a motion, POINT VIII (page 25) that Plaintiff's claim of a
"de minimus" error did not rise to the level requiring judicial
intervention, and that in POINTS IX (page 27), X (page 28), XI (page
30), and XII (page 31) that the Amended Decision violated
substantial rights of Defendants-Appellants in violation of CPLR
5019 (a), and that in POINT XIII the Lower Court completely ignored
the doctrine of starre decisis (page 33).
Because Plaintiff and the Lower Court violated Defendants rights
by not following the rules of the CPLR, that Defendants were denied
a defense of laches, and cite the following:
"Finally, we note that laches of a party making an
application for relief under CPLR 5019(a) may always be
considered. In this case, however, plaintiff has made no
showing of prejudice attributable to the delay of the County
in seeking to correct this error."
(85 N.Y.2d 879, 649 N.E.2d 1199, 626 N.Y.S.2d 55 (1995). rch 23,
Plaintiff-Respondents' failure to clearly state the true nature
and need to change the original Decision, and additionally witheld
the obvious prejudice its request was against Defendants-
Appellants. And it is totally false where their Brief states "As
mentioned before, the orders grant the exact same relief". If this
was true, Plaintiff would have had no reason to seek the relief
whatsoever.
Additionally according to Siegal Section 253 "Motions Affecting
Prior Order which states: "Many kinds of motions qualify as motions
''affecting'' a prior order. Specifically included in CPLR 2221 are
motions to renew or reargue the prior motion, or to stay, vacate or
modify the order entered on it..."
Defendants-Appellants direct the Court to their Brief for the
Points stated above, and this Court should, at the very least,
vacate or overturn the Amended Decision and Order, in order
to protect the integrity of the legal system, starre decisis,
and the law of the case from future case law cites.
Copyright © 2008 by WebstersWebsites (tm) all rights reserved.