Opinion
386-13
03-26-2015
GE Capital Retail Bank, Plaintiff, v. Elethia Ebanks, Defendant.
Zwicker & Associates, PC Attorneys for Plaintiff 120 Allens Creek Road Rochester, New York 14618 Elethia Ebanks Defendant Pro Se 318 N. High Street Mount Vernon, New York 10550
Zwicker & Associates, PC
Attorneys for Plaintiff
120 Allens Creek Road
Rochester, New York 14618
Elethia Ebanks
Defendant Pro Se
318 N. High Street
Mount Vernon, New York 10550
Adam Seiden, J.
In this action seeking to recover for breach of a credit agreement, plaintiff moves to amend the judgment to reflect the proper judgment amount owed by the defendant. Defendant has submitted no papers in opposition to the motion.
Plaintiff seeks to amend the judgment amount from $2,158.29 to $2,443.29 so that it correctly reflects the payments made by the defendant pursuant to a Stipulation of Settlement. Plaintiff commenced the instant action against defendant on January 29, 2013. On May 29, 2013 defendant filed a Stipulation of Settlement executed by both parties pursuant to which it was agreed that the matter was settled for the sum of $3,208.29. It was further agreed that the defendant was to pay plaintiff $500.00 by March 28, 2013 and to pay the remaining balance of $2,708.29 in monthly installments of $242.00 each due on the 29th or last business day of the month beginning April 29, 2013 until the balance was paid in full. The Stipulation of Settlement further provided that in the event of a default, a notice of the default would be mailed to the defendant at her last known address and that if the default remained uncured for ten (10) days then the plaintiff was entitled to enter judgment against the defendant for the amount in the complaint plus any costs and disbursements and less any payments by filing an affidavit with the court. Defendant defaulted on her payments pursuant to the stipulation and plaintiff entered a default judgment against her on August 26, 2013.
Plaintiff states that due to an office error the calculation of the judgment amount submitted by the plaintiff to the court upon defendant's default was incorrect. Specifically, when calculating the judgment amount owed plaintiff mistakenly credited the defendant $1,027.00 for partial payments made on the account when it should have been $742.00. Plaintiff attaches a copy of the default notice mailed to the defendant on or about August 8, 2013 in which plaintiff notified the defendant that she was $726.00, or as calculated by the Court three (3) months, in arrears in her payments pursuant to the Stipulation of Settlement. As such, based upon the Court's calculation, the partial payments credited to the defendant were for the initial payment of $500.00 plus one monthly installment of $242.00, presumably paid on or about April 29, 2013, as per the stipulation.
C.P.L.R. § 5019(a) permits the court to cure a "mistake, defect or irregularity" in a judgment as long as the amendment does not affect a substantial right of a party. See Kiker v. Nassau County, 85 NY2d 879 (1995) (holding that amending the interest rate on a judgment to reflect a lower interest rate did not substantially affect the right the plaintiff).
In the case at bar, plaintiff has provided proof that the defendant was improperly credited $1,027.00 for partial payments rather than the $742.00 actually paid by the defendant. Moreover, the defendant has not filed opposition disputing the amount of payments made even though she was served with the motion papers.
The Court finds that amending the judgment amount to properly reflect the partial payments made by the defendant pursuant to the Stipulation of Settlement is correcting a mere clerical error that does not substantively affect the rights of the defendant. As such, plaintiff's motion to amend the judgment amount to $2,443.29 in the instant matter is granted pursuant to C.P.L.R. § 5019(a).
This constitutes the Decision and Order of this Court.
The Court considered the following papers on this motion: Notice of Motion dated January 14, 2015; Affirmation in Support; Exhibits A-D.
Dated:March 26, 2015
Mount Vernon, New York
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HON. ADAM SEIDEN
Associate City Judge of Mount Vernon