GARRICK AUG ASSOC. STORE LEASING v. SCALI

In this action to recover a brokerage fee, where, after a nonjury trial, the court found that plaintiff was entitled to its commission under either contract theory or quantum meruit, the court erred in amending its judgment to affect defendant Holland's substantive rights while purporting to cure a mere mistake or defect pursuant to CPLR 5019[a] (see,Herpe v. Herpe, 225 N.Y. 323, 327; Kiker v. Nassau Cty., 85 N.Y.2d 879, 881; Blaustein v. Blaustein, 145 A.D.2d 591, 592). The amended judgment rendered Holland, along with her codefendant husband, Scali, jointly and severally liable to plaintiff, after the original judgment had dismissed the complaint as against her, and awarded her costs from plaintiff. The record supports the view that the court did not initially intend to hold Holland liable inasmuch as the court incorporated plaintiffs' proposed findings of fact virtually verbatim into its own except for striking the paragraph that provided a factual basis for Holland's liability, the issue was extensively briefed by the parties prior to entry of the original judgment, and the original judgment not only incorporated Holland's proposed counter-judgment, but included the award of costs from plaintiff as a handwritten addendum.

THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.