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Changing New York Court Orders and Judgments
By. J. Douglas Barics
Revised January 2008
 "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?"
Divorce and family law cases are confusing enough, but all too often procedural issues raise the most questions. Questions such as the above are very common, who for a number of reasons want to change an existing court order. There are a number of ways to change an existing order, but the appropriate one will depend on how the initial order was arrived at and what change is being requested.
1. THREE WAYS JUDGMENTS AND ORDERS ARE ARRIVED AT
(a) Both sides participated in the trial
In this type of case, both sides are present at trial, were able to testify, call witnesses, conduct cross examination, and present any other evidence. The court will make a final decision after both sides have presented their case.
These orders may be:
(b) When one party defaults, resulting in either a dismissal or a judgment on default
When the plaintiff defaults, the case will very often be dismissed, resulting in an order dismissing the case. If the defendant defaults, the plaintiff may proceed alone, and will present their case without anyone opposing it.
These orders may be:
(c) When a settlement is reached
Both sides have appeared, but instead of going to trial, have entered into a mutual agreement settling the case.
These orders may be:
2. MEANS OF CHANGING JUDGMENTS AND ORDERS
(a) Appeal
An appeal is available only for judgments or orders issued by the court following a full trial where both sides appeared and were heard. 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.
The following simple examples will illustrate the difference between a mistake of fact and mistake of law.
Mistake of fact - During a child support hearing, both parents testify they have one child, but the court concludes they have two children but correctly applies the formula for two children.
Mistake of law - During a divorce trial, the plaintiff alleges irreconcilable differences as grounds, and the divorce is granted. As New York does allow a divorce based on irreconcilable differences, the court made a mistake of law.
(b) Modification
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.
(c) Motion to vacate default or vacate dismissal
If a party fails to appear for a trial and wishes to challenge an order resulting from their default, the remedy filing a motion to vacate the default. A motion to vacate a default consists of two elements, (a) excusable default existed in missing the trial, and (b) there is a meritorious cause of action or defense.
Generally, there is no appeal from a default order. However, an order resulting from a motion to vacate a default judgment may be appealed.
(d) Motion to reargue
A motion to reargue under CPLR 2221(d) is similar to an appeal in that both claim the trial court made a mistake. The difference is that a motion to reargue is made before the same judge who heard the case initially, while an appeal is made to a higher court. Most motions to reargue are denied, however some judges prefer that a motion to reargue be made giving them the opportunity to correct a mistake before appealing. However, as there is no appeal from a decision denying reargument, and no extension of time to appeal l is given, care must be taken not to waive the right to appeal
(e) Motion to renew
A motion to renew under CPLR 2221(e) is similar to a motion to reargue in that the same judge who heard the initial case will decide this motion. A motion to renew is based on new facts that were not presented at trial. There must generally be a compelling reason why this new evidence was not presented originally, and that as a result of this new evidence, a different result would have occurred.
(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.
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.
(g) Resettling a judgment or order
Settling an order has nothing to do with reaching a settlement. Settling an order is the terminology used to describe the process under which a judge signs a proposed order. , Most judgments are based on a written decision or a stipulation of settlement, either in writing or read into the record in open court. In these instances, the attorney for one side will prepare a proposed order for the judge to sign, giving the other side advance notice of this order. 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). Sometimes resettlement is done by way of motion.
The article "New York Court Orders and Judgments" is provided as a free educational service by J. Douglas Barics, attorney at law, and does not constitute legal advice. Legal advice may only come from a qualified attorney who is familiar with the facts and circumstances of a specific case.
If you have any questions or comments, please feel free to contact Mr. Barics at lawyer@jdbar.com or (516) 742-2600. For more articles and information, please visit www.jdbar.com.
Copyright © 1998-2011 by J. Douglas Barics, attorney-at-law. All rights reserved.
J. Douglas Barics, Esq. – Divorce, family, matrimonial lawyer in Long Island, New York.
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