Practice point: Pursuant to CPLR 5015(a), a court may relieve a party from an order or judgment, but only on an interested person's motion and with such notice as the court may direct. Pursuant to CPLR 5019(a), a trial court has the discretion to
correct an order or judgment which contains a mistake, defect, or
irregularity not affecting a substantial right of a party, or is
inconsistent with the decision upon which it is based. However, a trial
court has no revisory or appellate jurisdiction, sua sponte, to vacate
its own order or judgment.
Student note: While a court may grant relief, pursuant to a
general prayer contained in the notice of motion or order to show cause,
other than that specifically asked for, to such extent as is warranted
by the facts plainly appearing in both sides' papers, it may do
so only if the relief granted is not dramatically unlike the
relief sought, and if the proof offered supports it and the court is
satisfied that no one has been prejudiced by the formal omission to
demand it specifically.
Case: Carter v. Johnson, NY Slip Op 06333 (2d Dept. 2013).
Here is the decision.
Tomorrow's issue: Service, and a motion to extend time.
