Pivnick v. Fraley Realty Corp. , 549 N.Y.S.2d 394 ( 1990 )

—Order and judgment (one paper), Supreme Court, New York County (Myriam Altman, J.), entered March 7, 1989, which vacated a judgment of the Supreme Court, New York County (Amos Bowman, J.), entered September 21, 1987, and permitted resettlement of that judgment, unanimously affirmed, with costs.

In his decision of May 29, 1985, rendered after trial, Justice Bowman determined that, inter alia, "Upon delivery of a fully executed lease the plaintiff shall tender to the defendant-landlord any outstanding rentals at the prevailing rate, together with applicable interest”, and directed that a judgment be settled thereon. The original proposed judgment, notice of which was not served upon the defendant, omitted to direct plaintiff to tender to defendant landlord the outstanding rentals. The argument that Justice Bowman intended not to provide for the outstanding rentals in the judgment has no support in the record.

Plaintiff improperly submitted a proposed judgment without affording defendant an opportunity to submit a cross judgment to accurately reflect the court’s decision. It was thus proper for Justice Altman, who was substituted for Justice Bowman upon his death, to resettle the judgment to conform to the decision. (Stormville Mountain Homes v Zurhorst, 35 AD2d 562.)

Accordingly, we affirm the judgment appealed. Concur— Ross, J. P., Asch, Milonas, Rosenberger and Ellerin, JJ.