McCaffery v. 924 Food Corp.

Jun 11, 2002
Versions:295 A.D.2d 151
743 N.Y.S.2d 453
2002 N.Y. App. Div. LEXIS 5912

—Judgment, Supreme Court, New York County (Helen Freedman, JO, entered June 22, 2001, as amended to reflect defendants’ correct address, and bringing up for review an order, same court and Justice, entered on or about June 15, 1998, and an order, same court and Justice, denominated an “amended judgment,” entered June 22, 2001, granting plaintiff’s motion to amend the judgment, unanimously affirmed, without costs. Appeals from orders entered on or about June 15, 1998 and entered on June 22, 2001, unanimously dismissed, without costs, as subsumed within the appeal from the judgment as amended.

*152Contrary to appellant Tower Insurance Company’s argument, the award, of summary judgment in Tower’s favor in the previously concluded Insurance Law § 3420 action by plaintiffs against Tower was not preclusive of the amendment sought by plaintiffs in the judgment obtained by them in the underlying personal injury action. The court in the Insurance Law action did not, and had no need to, determine that defendants and their premises were not in fact insured by Tower, only that the judgment in the underlying personal injury action, as it then read, was not against Tower’s insureds and thus was not a proper predicate for plaintiffs’ Insurance Law § 3420 action. Inasmuch as it is clear from the record that the defect in judgment was solely attributable to an inadvertent notational error and did not result from or represent the adjudication of a matter of substance, it was precisely the type of “mistake, defect or irregularity in the papers or procedures in the action” the correction of which was properly accomplished pursuant to CPLR 5019 (a) (see, Herpe v Herpe, 225 NY 323; cf, Pjetri v New York City Health & Hosps. Corp., 169 AD2d 100, lv dismissed 79 NY2d 915).

We have considered Tower’s remaining arguments and find them unavailing. Concur—Nardelli, J.P., Mazzarelli, Buckley, Sullivan and Marlow, JJ.