Opinion
December 4, 1989
Appeal from the Supreme Court, Dutchess County (Jiudice, J.).
Ordered that the judgment is modified, on the law, by deleting therefrom the provision which awarded the plaintiff damages; as so modified, the judgment is affirmed, without costs or disbursements.
We conclude that the findings of fact made by the trial court are fully supported by the weight of the evidence. The plaintiff proved that the defendants conveyed the property in question to her by virtue of a deed recorded in the office of the Dutchess County Clerk on June 17, 1981. We further find, contrary to the defendants' contention, that the conveyance of this property to the plaintiff was unaffected by fraud, duress or coercion, and was otherwise lawful.
The judgment appealed from, which was evidently settled on notice, also contains a provision which awards the plaintiff the principal sum of $5,000. This does not conform with the terms of the trial court's decision dated December 21, 1987, which states that "[t]here is insufficient evidence in the record * * * to sustain the [plaintiff's] claim for monetary damages". We agree with the holding of the trial court in its decision.
When there is an inconsistency between a judgment and the decision upon which it is based, the decision controls (see, Littlefield v Goldome Bank, 142 A.D.2d 978, 979; Di Prospero v Ford Motor Co., 105 A.D.2d 479, 480; Rowlee v Dietrich, 88 A.D.2d 751, 752; Siegel, N Y Prac § 250, at 308; 2 Carmody-Wait 2d, NY Prac § 8:91, at 113). Such an inconsistency may be corrected either by way of motion for resettlement or on appeal (CPLR 2221, 5019 [a]; Young v Casabonne Bros., 145 A.D.2d 244, 248; Rowlee v Dietrich, supra; Matter of Perry v Zarcone, 77 A.D.2d 881, 882; 5 Weinstein-Korn-Miller, N Y Civ Prac ¶ 5019.05). Bracken, J.P., Lawrence, Rubin and Balletta, JJ., concur.