It is conceded by the United States Attorney that as a result of this hearing additional facts were developed which were not before the court at the time of sentence, and that such facts might ordinarily be sufficient to motivate the court to a favorable exercise of discretion in behalf of the defendant to the end that <mask> would not be recommended. However, although I wish to be merciful, I must give forthright obedience to the patent provisions of the statutes involved and the appellate decisions made thereunder. These are inviolate, inexorable and unalterable as far as they affect this court, this even though unmerited hardship may result therefrom.


The Supreme Court declined to adopt a per se rule that a defendant with no viable defense cannot show prejudice from the denial of his right to trial. See id. Instead, the Lee court utilized the Hill standard to determine whether Lee was prejudiced by his counsel's incorrect advice regarding the <mask> consequences of his guilty plea. Id. at 1965. The Supreme Court explained,


Defendant, a lawful permanent resident of this country, argues that the no-plea provision of the diversion statute should apply to him because, as a noncitizen, a plea to the charge in the indictment would make him deportable. He essentially argues that the possibility of <mask> resulting from a plea is a severe collateral consequence and that this qualifies as an exceptional circumstance under the statute.


A very brief analysis of section 1421 et seq. of title 8 of the United States Code — Nationality through Naturalization— reveals that section 1421 confers jurisdiction to naturalize upon the New York State Supreme Court by virtue of its being a court of record and having jurisdiction in actions at law and equity. Sections 1424 and 1425 bar subversives and deserters, respectively, from naturalization, and section 1426 disqualifies those aliens who have been relieved of military service. Subdivision (e) of section 1427 imposes upon the petitioner “ the burden of establishing good moral character ”, and subdivision (f) thereof denies naturalization to one who is an adherent of an organization against whom registration proceedings are pending for registration as subversive. Under section 1429, the burden of proof is imposed upon the petitioner to show that “he entered the United States lawfully and it then proceeds to bar naturalization to any person “ against whom there is outstanding a final finding of deportability pursuant to a warrant of arrest ”, i.e., a Federal warrant. Similarly, if there are <mask> proceedings, pursuant to a warrant of arrest pending against the applicant, that, too, precludes naturalization.


Denying Eva Jimenez-Sandoval’s petition for review of a decision of the Board of Immigration Appeals that denied her motion to reopen an in absentia <mask> order, the panel rejected Jimenez-Sandoval’s contention that, because she was actually a minor when she was released on her own recognizance without notice of her hearing to a reasonable adult, the notice provided her was inadequate.


Morales also declared he had recently been counseled that his 2002 conviction barred him from "ever" having his U visa application granted. He contended that a U visa would not be granted to a noncitizen who was "inadmissible" under federal immigration law for his drug offense, citing section 214.1(a)(3)(I) of volume 8 of the Code of Federal Regulations, and section 1182, subdivision (a)(2)(A)(i)(II) of volume 8 of the United States Code. He also declared that in 2002 neither his attorney nor the court told him his conviction would cause him to be deported or bar him from ever *507coming into the United States again, and that he would not have entered his no contest plea if he had known his conviction would cause his <mask>. He further contended he had properly brought his motion under section 1473.7 even though he was not a subject of removal proceedings.


Among other material offered in support of his motion, Perez submitted multiple self-declarations.2 In one such declaration, Perez indicated that he did not understand what was happening at the hearing at which he pled guilty. He claimed that his attorney did not explain other options or the immigration consequences if he pled guilty. Perez further declared that he only pled guilty because he was not aware of and did not understand all the consequences of his guilty plea. Moreover, he asserted that, despite the presence of a Spanish interpreter, he still did not "completely comprehend what [he] was initialing because, [he] only ha[s] an elementary education and [was] not familiar with technical legal terms in Spanish and [he] did not have meaningful understanding of the documents." Finally, Perez insisted that he would not have signed the plea form had he known he would have been deported, but instead, he would have been willing to serve a longer prison sentence to avoid <mask>.


Hernandez also established resultant prejudice. Hernandez, a legal permanent resident, has lived in the United States since she was three years old. She is the single parent of three minor children (their father has passed away) who are all citizens, one of whom has serious medical issues. She has been gainfully employed as a medical assistant. She had no prior criminal record other than traffic infractions. Shortly after she pleaded guilty and served 43 days in jail, she was taken into custody by federal immigration officials. Instead of signing the form presented to her stating her agreement to <mask>, she refused to sign and remained in immigration custody for eight months before being released on bond. Her conduct shows a contemporaneous strong preference to remain in this country, albeit in custody, over a shorter criminal sentence and deportation. Our record does not show the case against Hernandez for possessing methamphetamine for sale was strong.


The Martinez court concluded that because "the defendant's decision to accept or reject a plea bargain can be profoundly influenced by the knowledge, or lack of knowledge, that a conviction in accordance with the plea will have immigration consequences ..., and because the test for prejudice considers what the defendant would have done, not what the effect of that decision would have been, a court ruling on a section 1016.5 motion may not deny relief simply by finding it not reasonably probable the defendant by rejecting the plea would have obtained a more favorable outcome." ( Martinez , supra , 57 Cal.4th at p. 564, 160 Cal.Rptr.3d 37, 304 P.3d 529.) Instead, the defendant may show prejudice by "convinc[ing] the court [that he] would have chosen to lose the benefits of the plea bargain despite the possibility or probability <mask> would nonetheless follow." ( Id . at p. 565, 160 Cal.Rptr.3d 37, 304 P.3d 529 ; see also Lee v. United States (2017) --- U.S. ----, 137 S.Ct. 1958, 198 L.Ed.2d 476 ( Lee ); Ogunmowo , supra , 23 Cal.App.5th at pp. 78-80, 232 Cal.Rptr.3d 529.)


In Padilla, supra, 559 U.S. at page 370, 130 S.Ct. 1473, the United States Supreme Court held that a criminal defense counsel's Sixth Amendment obligations include properly advising as to the immigration consequences of a guilty or no contest plea. The court acknowledged that federal immigration law is often complex and that, in some cases, the likelihood of <mask> as a consequence of a conviction is neither clear nor certain. ( Id. at p. 369, 130 S.Ct. 1473.) In those cases, the court held, the most the Sixth Amendment may require of defense counsel concerning immigration consequences is a warning that a criminal conviction " 'may' have adverse immigration consequences." ( People v. Patterson (2017) 2 Cal.5th 885, 897-898, 216 Cal.Rptr.3d 95, 391 P.3d 1169 ( Patterson ), quoting Padilla, supra, 559 U.S. at p. 375, 130 S.Ct. 1473.)


The defendant has lastly contended that his ignorance of the possible consequence of <mask> as a result of his conviction, and the failure of the court to advise him of the same, is a violation of section 335-b of the Code of Criminal Procedure. The length and breadth of that section encompasses only additional punishment prescribed by State law as a result of a previous conviction. Defendant’s contention of ignorance of the possible penalties under the Immigration and Naturalization Act avails him nothing and in fact such contention has been judicially rejected (United States ex rel. Durante v. Holton, 228 F. 2d 827, 829; Joseph v. Esperdy [S. D. N. Y.], Docket No. 66 Civil 1555, [July 1, 1966] Tenney, J.) There was no obligation on this court to advise the defendant in regard to the possibility of deportation. Motion denied.


. In People v Peque (22 NY3d at 196), a sharply divided Court of Appeals most recently reaffirmed the direct/collateral framework for analyzing the scope of a trial court’s duty to warn defendant of the consequences of pleading guilty and strongly suggested that this rubric is useful, if not required, when analyzing the scope of an attorney’s obligation to inform her client of the consequences of pleading guilty. Likewise, in Padilla v Kentucky (559 *583US 356 [2010]), the Court, while struggling with how to classify <mask>, strongly suggested that the direct/collateral framework was viable for analyzing a Sixth Amendment claim of ineffective assistance of counsel and that if a consequence of a criminal conviction is collateral it is removed from the ambit of the Sixth Amendment’s right to counsel. (See Chaidez v United States, 568 US —, —, —, 133 S Ct 1103, 1108, 1112 [2013] [in Padilla, although the Court found the direct/collateral framework ill-suited to classify deportation, the Court stated that it “did not eschew the direct-collateral divide across the board”].)


The District Attorney first argues that the parties must have known of the possibility of <mask>, and since the fact that the defendant was an immigrant was contained in the probation report. But none of the parties could have believed that this was an intentional act involving moral turpitude, since no Judge and certainly no District Attorney would agree to a two- to six-year sentence for a killing that was either intentional or the result of depraved behaviour. Not only is it obvious from the two- to six-year disposition that the shooting was accidental, but the victim’s mother submits an affidavit in support of his application by the defendant, in which she agrees that the shooting was accidental. Therefore, this analysis assumes that all parties viewed this as a tragic accident that required punishment of two years in prison, but the parties never contemplated that the act involved moral turpitude or that the plea would lead to the defendant’s deportation. On that assumption the question becomes, what is the consequence of the failure to tell a 19 year old who accidentally shoots his girlfriend that a plea to manslaughter, as opposed to the lesser included plea of criminally negligent homicide, would result in his deportation.


The Sixth Amendment guarantees the right to the reasonably effective assistance of counsel in criminal prosecutions. U.S. CONST . amend. VI ; Garcia v. State , 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). In Padilla v. Kentucky , the United States Supreme Court reasoned that, as a matter of federal law, "<mask> is an integral part-indeed, sometimes the most important part-of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes" and warranted recognition of Sixth Amendment protections in this context. 559 U.S. 356, 364-66, 130 S.Ct. 1473, 1480-81, 176 L.Ed.2d 284 (2010). And the court held that the Sixth Amendment requires a criminal defendant's attorney to provide advice about the risk of deportation arising from a guilty plea. Id. at 366, 130 S.Ct. at 1482.


There is no dispute here that the crime to which Hernandez pleaded guilty, possession of methamphetamine in violation of section 11378, subjected her to mandatory <mask>. Currier was therefore obligated under Padilla to advise her, before she pleaded guilty, of that specific consequence. Hernandez stated in her declarations that Currier did not so advise her. True, Hernandez initialed the paragraph on the Tahl form stating she understood that if she were not a citizen, her *907"conviction for the offense charged will have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States." (Italics added.) The Tahl form, however, did not advise that her specific plea would result in mandatory deportation. Although the Tahl form contains the word "will" and not "may," it, standing alone, is akin to the "generic advisement" required of the court under Penal Code section 1016.5, subdivision (a) addressed in Patterson, supra, 2 Cal.5th at page 898, 216 Cal.Rptr.3d 95, 391 P.3d 1169, and it similarly "is not designed, nor does it operate, as a substitute for such advice" of defense counsel regarding the applicable immigration consequences in a given case. ( Ibid. )


Defendant’s initial motion was filed by predecessor counsel in January 2010, prior to the Supreme Court’s issuance of its decision in Padilla v Kentucky (559 US —, 130 S Ct 1473 [2010]), and was based upon claims of ineffective assistance on both federal and state constitutional grounds, as well as her claim that she was actually innocent. On that motion, defendant argued that her conviction should be vacated due to her plea counsel’s alleged failure to advise her that her conviction would lead to automatic <mask>. She further claimed that she would not have pleaded guilty had she known that she would be subject to mandatory deportation as a result.


entering his no contest plea “freely and voluntarily and with the full understanding of all the matters set forth in the [information] and in this form.” Among the advisements on the plea form checked and initialed by defendant was the following: “I understand that if I am not a citizen of the United States, the conviction for the offense charged may have the consequences of <mask>, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.” In signing the plea form, defendant verified he had discussed each of the form’s advisements with counsel. Defendant’s attorney also signed the form, declaring he had explained “each” of the form’s advisements to defendant. At the plea hearing, as memorialized by a resulting minute order, defendant was advised in similar terms about the immigration consequences of his plea: “If you are not a citizen, you are hereby advised that a conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of denial of naturalization pursuant to the laws of the United States.” The trial court accepted defendant’s plea and sentenced defendant to three years, but suspended the sentence. The court placed defendant on formal probation for three years and ordered him to serve 270 days in county jail.


In 2002, Garcia was charged with possession of cocaine of at least four grams but less than 200 grams of cocaine with intent to deliver, a first-degree felony. The State offered Garcia a plea bargain of 10 years' confinement probated for 10 years and a $500 fine. Garcia asked his attorney whether there would be adverse immigration consequences if he took the plea offer *229because he was a lawful permanent resident, and counsel responded that he "would probably be okay" and that "the charge would probably not result in <mask>." Garcia pled guilty and was sentenced to ten years' imprisonment. His sentence of confinement was suspended, and he was placed on community supervision for ten years and assessed a $500 fine. He was eventually deported before returning to the United States and filing an application for a writ of habeas corpus.


denying his motion to reopen based on its finding of no changed country con- ditions. Singh further posits that the BIA abused its discretion in refusing to apply equitable tolling to his motion to reopen based on his claims of ineffec- tive assistance of counsel (“IAC”). “This [c]ourt reviews the denial of a motion to reopen under a highly deferential abuse-of-discretion standard.” Barrios-Cantarero v. Holder, 772 F.3d 1019, 1021 (5th Cir. 2014) (internal quo- tation marks and citation omitted). “Showing changed country conditions requires making a meaningful comparison between the conditions at the time of the removal hearing and the conditions at the time the alien filed [his] motion to reopen.” Nunez v. Sessions, 882 F.3d 499, 508 (5th Cir. 2018). Neither Singh’s motion to re- open before the BIA nor his brief provides any meaningful comparison of country conditions since his 1989 in absentia <mask> order. Though Singh contends that the reports in Exhibit F attached to his motion to reopen address “the country conditions in place over a historical period[,] including 1989,” those reports show that conditions for Sikhs in India have generally improved since he was ordered deported. The BIA did not abuse its discre- tion in refusing to reopen Singh’s deportation proceedings based on changed country conditions. See Barrios-Cantarero, 772 F.3d at 1021. Singh also urges that the BIA did not perform a meaningful analysis of his evidence of changed country conditions. That theory is not supported by the record. The BIA specifically referred to Exhibit F when concluding that Singh had failed to demonstrate changed country conditions. The BIA also acknowledged that the new materials in Exhibit F showed “evidence of prob- lems that Sikhs face in India, particularly in the Punjab region, and that there had been an upswing in Khalistan-related terrorism in recent years.” None- theless, the BIA concluded that there was “no evidence of the conditions for Sikhs, or anyone else similarly situated to [Singh], at the time of his 1989 in absentia proceeding.”


In addition, the Ford Court held in a footnote (supra, at 404) that failure to warn defendant of the possibility of <mask> did not render a plea allocution improper. It indicated that, notwithstanding the language of the New York Sentencing Reform Act of 1995, failure to warn the defendant of the possibility of deportation does not affect the voluntariness of the plea.


The Department of Correctional Services, the Executive Office for Immigration Review and the Immigration and Naturalization Service have instituted an institutional hearing program at Department of Corrections Reception Centers which permits a foreign-born inmate to meet with an immigration officer more quickly than possible in most I.N.S. district offices. The goal of the institutional hearing program is to complete <mask> hearings before an inmate is released from the custody of Corrections. Prior to the programs’ restructuring in 1994, there were inmates who were released before a decision was made as to their status by an Immigration Judge. However, since restructuring in 1994, 751 deportation orders were lodged against foreign-born inmates through the institutional hearing program. Thus New York State is attempting to structure its laws in order to implement Federal policy and insure prompt deportation hearings.


In the midst of all these trials and tribulations, abandoned and alone, her dreams of a second chance at happiness rudely shattered, the spectre of <mask> to Nazi Germany hanging over her head, Jane Doe suffered a mental breakdown. I will make no judgment as to whether Jane’s breakdown was caused by her tragic situation, or whether it was only precipitated by it. Suffice it to say that on June 6, 1941 she was committed to Kings Park State Hospital as being an insane person.


Mejia testified that his attorney never discussed the possible immigration consequences of his guilty plea. Mejia said that his attorney did not explain to him that a drug sales crime is considered an aggravated felony under federal law, which requires <mask>. When asked, "had your attorney explained to you in 1993 that this case would result in deportation, would you have taken the deal?" Mejia responded, "I would have never accepted it if I had known that this would harm me in the future." Mejia said that "at the time I had one child, one wife, absolutely nothing in Mexico. My father was deceased. I wanted to live a full life here, not three months in jail. It could be six months, but my life here." When asked, "Just to clarify, you would have accepted a longer sentence for an assurance you could stay in the United States?" Mejia responded, "I would prefer that to live here with my family than be separated from them." Mejia testified that he was still married to his wife, and now had two grown children.


While codifying the United States Supreme Court's holding in Padilla , supra , 559 U.S. 356, 130 S.Ct. 1473, our Legislature also expressed an intent to "encourage the growth of such case law in furtherance of justice ...." (§ 1016.2, subd. (h).) Consistent with that legislative intent, we agree with the Camacho court's analysis that the focus of the inquiry in a section 1473.7 motion is on the "defendant's own error in ... not knowing that his plea would subject him to mandatory <mask> and permanent exclusion from the United States." (See Camacho, supra , 32 Cal.App.5th at p. 1009, 244 Cal.Rptr.3d 398, italics added.)


Conduct that subjects a child to a life of uncertainty and instability endangers the child's physical and emotional well-being. Jordan , 325 S.W.3d at 723 ; In re R.W ., 129 S.W.3d 732, 739 (Tex.App.-Fort Worth 2004, pet. denied). <mask> of a parent, standing alone, does not constitute an endangering course of conduct, but it may be relevant to the issue of endangerment if it exposes the child to instability. See In re E.N.C. , 384 S.W.3d at 805. The commission of criminal conduct by a parent may support termination under Section 161.001(b)(1)(E) because it exposes the child to the possibility that the parent may be imprisoned. See In re M.C. , 482 S.W.3d 675, 685 (Tex.App.-Texarkana 2016, pet. denied) ; In re A.W.T. , 61 S.W.3d 87, 89 (Tex.App.-Amarillo 2001, no pet.) (intentional criminal activity which exposes the parent to incarceration is relevant evidence tending to establish a course of conduct endangering the emotional and physical well-being of the child). While criminal violations and incarceration are not enough to show endangerment by themselves, they can be evidence of endangerment *652if shown to be part of a course of conduct that is endangering to the child. Texas Department of Human Services v. Boyd , 727 S.W.2d 531, 533-34 (Tex. 1987) ; Perez v. Texas Department of Protective and Regulatory Services , 148 S.W.3d 427, 436 (Tex.App.-El Paso 2004, no pet.). Likewise, a fact finder may infer that a parent's lack of contact with the child and absence from the child's life endangered the child's emotional well-being. See In re U.P. , 105 S.W.3d 222, 236 (Tex.App.-Houston [14th Dist.] 2003, pet. denied).


The People argue that these three requirements underscore that section 1473.7 is to be applied prospectively only. To support their position, the People offer a hypothetical involving a defendant who pled guilty after the effective date of the statute, was placed on probation, and six months later, Immigration and Customs Enforcement (ICE) officials take him into custody and begin <mask> based on the plea and conviction. Under this scenario, the People assert the hypothetical defendant can seek relief under section 1473.7. Further, the People argue that their hypothetical illustrates that the application of section 1473.7 only on a prospective basis is consistent with the statute's purpose.


From the proof adduced at the <mask> hearings and from the proof adduced at the resumption of the naturalization hearings in November of 1966, the nature and extent of petitioner’s homosexual activities were more clearly established. From 1950 until February of 1963 petitioner lived with, successively, some six women, with all of whom she engaged regularly in homosexual practices. These women all had prior homosexual experiences and the acts were committed within petitioner’s home and never resulted from open solicitation.


Defendants argue the District Attorney's "decision to ignore the immigration consequences ... in furtherance of no true state purpose was arbitrary, capricious and irrational." They contend that because the USAO had "essentially followed the same guidelines" as those enunciated in section 1016.3 and had agreed to a plea avoiding collateral immigration consequences, it was *648"irrational, arbitrary, and capricious for [the District Attorney] to insist on a felony conviction for human trafficking" resulting in defendants' <mask>. These contentions are speculative and do not provide a basis to overturn the judgments.


The evidence showed that Appellant engaged in drug trafficking with G.B. while she was pregnant with R.A.G., and they were both arrested. As a result, Appellant was incarcerated for the first four years of R.A.G.'s life and R.A.G. lived with Appellant's mother for about a year and a half until G.B. was released from custody. Following his release from prison, Appellant was deported to Mexico. It is understandable that Appellant, as a result of his <mask>, has been unable to visit with R.A.G. in person in the United States, but the evidence showed that Appellant has not had any other type of contact with R.A.G. during the years following his deportation. According to Appellant's sister, G.A., Appellant is a college professor in Mexico, and he has maintained the same telephone number and Facebook account since his release from prison in 2012, yet he made no effort to contact R.A.G. even after he learned that the child had been removed from G.B.'s care. Appellant has been absent from R.A.G.'s life to the extent that R.A.G. did not even know that Appellant is his father. While incarceration and deportation are not sufficient, standing alone, to support a finding under Section 161.001(b)(1)(E), these facts are part of Appellant's overall course of conduct. We conclude that the evidence is legally and factually sufficient to establish a firm conviction or belief in the mind of the trier of fact that Appellant engaged in conduct that endangered R.A.G.'s physical or emotional well-being under Section 161.001(b)(1)(E). See Walker v. Texas Department of Family and Protective Services , 312 S.W.3d 608, 617-18 (Tex.App.-Houston [1st Dist.] 2009, pet. denied) ; In re U.P. , 105 S.W.3d at 236. Issue Two is overruled. Because the evidence is sufficient to support one of the four predicate termination grounds found by the trial court, it is unnecessary to address Issues One, Three, and Four.


On the whole sordid record developed at two extended and stormy hearings before me the conclusion is inescapable that petitioner resorted to this court not so much for needed support as to vent her jealous and hurt feelings against respondent when his pending appeal to the Board of Immigration Appeals had, temporarily at least, blocked her design to cause respondent’s <mask> to Italy. “Hell hath no fury like a woman scorned. ’ ’


According to Mario and his mother, he has had no direct contact with his father since his father’s arrest and subsequent <mask> to Mexico. Since that time, he has resided either with his mother or at Lincoln Hall, and his mother and OCFS have provided for his well-being and needs. Mario’s father has not provided financial or emotional support for the child or other members of the family, and the father has apparently expressed little concern for Mario’s well-being or his future.


The trial court found the motion premature because no <mask> proceedings had been initiated against defendant, and denied the motion for that *1004reason.3 The trial court also denied the motion on the basis of its finding that counsel's representation did not fall below the standards of what was reasonably expected under the customs and practices at the time. The court noted that Padilla v. Kentucky4 was decided the same year as defendant's plea. The court noted defendant's concern was not getting jail time, and found no facts indicating prejudice. The court concluded that there was no prejudice to defendant even if trial counsel had not provided reasonable representation with regard to immigration consequences, adding that it found no evidence to support defendant's current counsel's claim that there could have been an "immigration-safe" plea.


The court also asked Gonzalez if he read and understood his change of plea form. Gonzalez answered, "Yes." Gonzalez's change of plea form appears in the record. As pertinent here, the form states: "I understand that if I am not a citizen of the United States a plea of Guilty or No Contest can or will result in removal or <mask>, exclusion from admission to this country, and denial of naturalization." Gonzalez's initials appear in the box next to that statement.


The motion to resettle the order and decree on remittiturs of the Court of Appeals and for a new trial on the ground of newly-discovered evidence is denied. No legal reason for <mask> has been shown in the moving papers. Nor is there any ground for the reopening of the order and decree because of alleged newly-discovered evidence under subdivision 6 of section 20 of the Surrogate’s Court Act. (Collins v. Central Trust Co., 226 App. Div. 486; Matter of Sielcken, 162 Misc. 54, 64.)


The plaintiff contends that defendant is estopped from seeking <mask> of the judgment of divorce because she failed to so move in the context of an 1984 modification proceeding in this court. By order to show cause dated June 3, 1984 the defendant sought various relief modifying the parties’ judgment of divorce and separation agreement. That application and a cross application by the plaintiff were settled pursuant to a stipulation placed on the record in open court on December 6, 1984 which resulted in the transfer of title of the former marital residence to the defendant. All other provisions of the separation agreement remained in full force and effect.


By order to show cause dated October 6, 1958 plaintiffs move 1) for leave to serve a supplemental complaint, in form as annexed to the moving papers, alleging, in substance, fraud and deceit in the solicitation and obtaining of proxies; in which complaint judgment is sought voiding, setting aside and enjoining the voting of said proxies; 2) for reargument of the motion for a temporary injunction which had been denied by this court or, in the alternative, 3) for <mask> of said order so as to provide that the meeting of stockholders scheduled for October 7, 1958 be kept open for the purpose of permitting the counting and voting of proxies mailed in by stockholders for a specified period subsequent to October 7, 1958 not exceeding *104610 days, and 4) for an order invalidating all proxies solicited and procured by two of the named defendants upon the grounds that same were procured by false and fraudulent representations.


The first possibility that comes to mind is anticipatory breach by the city. But clearly that possibility has to be rejected (Tenavision, Inc. v Neuman, 45 NY2d 145, 150; Gittlitz v Lewis, 28 Misc 2d 712, mot for <mask> den 29 Misc 2d 134; Doyle Dane Bernbach, Inc. v Avis, 526 F Supp 117; 11 Williston, Contracts [3d ed], § 1300 et seq.; 22 NY Jur 2d, Contracts, § 387 et seq.).


Sometime in 2005, Mother left the children in the care of her mother in El Salvador and unlawfully entered the United States. She settled in Saline County, Missouri. Ten years later, in April 2015, Son unlawfully entered the country to reunify with Mother. Son was apprehended by immigration officials and placed in the custody of the Department of Health and Human Services' Office of Refugee <mask>. In May 2015, Son was released into Mother's custody pending disposition of his immigration case.


It has been recently held by the Appellate Division, Fourth Department, that <mask> is permissible only for inclusion in a judicial pronouncement of a provision which was initially omitted through inadvertence and is a procedure of correction or clarification and not one to change or amplify the direction of the court. (Matter of Bausch, 281 App. Div. 544.) By the same token, resettlement is permissible for the elimination from a judicial pronouncement of a provision which was initially included through inadvertence. Indeed, in Judy’s Confections v. A. & A. Constr. Corp. (275 App. Div. 674), the Appellate Divi*10sion of the Second Department directed the resettlement of the court’s decision by striking therefrom findings which were immaterial to issues presented by the pleadings and which decided questions not at issue. So, in the case at bar, this court inadvertently signed an order removing a case from an inferior court to this court under sections 110 and 110-a of the Civil Practice Act which included a provision granting a trial preference, permissible only on motion made pursuant to the provisions of rule 151 of the Rules of Civil Practice.


Both motions for reargument are denied. Defendant made no objection to the direction for the foreclosure of the vendee’s lien as contained in the findings proposed by the plaintiff, and the <mask> of the judgment that was granted by default merely corrected the inadvertent omission from the judgment of the necessary provisions to enforce said vendee’s lien. Inasmuch as the court’s formal decision, dated April 23, 1957, directed the foreclosure of the vendee’s lien, resettlement of the judgment was permissible to include directions for such enforcement which were initially omitted through inadvertence. (Matter of Bausch, 281 App. Div. 544.)


It further appears that the learned justice who presided at the trial of this action, having held the cause under advisement, seemingly arrived at the conclusion that the plaintiff was entitled to judgment, and signed and filed the findings of fact and conclusions of law, and judgment was entered upon them after due notice to the defendants. Some days afterward the justice granted an order *351to show cause why the judgment should not be vacated and the findings resettled, and upon the return of the order vacated the judgment and directed such <mask>, which was made by finding the facts as they were, but making the conclusions of law thereupon as requested by the defendants, and upon this decision the final judgment was entered from which the plaintiff appeals.


The defendant contends that the provision in said order sought to be eliminated in effect granted the plaintiffs a preference under rule 151 of the Rules of Civil Practice to which they were not entitled and for which there was no basis in the record. The plaintiffs, on the other hand, urge that there was a waiver of this objection since the order of October 11, 1954, containing the objectionable provision was settled on 14 days’ notice and defendant interposed no objection thereto or a counterorder; that in any event, <mask> is a procedure of correction or clarification and not one to change or amplify the direction of the court and consequently there is no jurisdiction for the change sought by this application.


It is generally held that <mask> of an order should not he utilized to enlarge, or change in some substantial manner, a previous direction of the court (see Matter of Bausch, 281 App. Div. 544, 545; 8 Carmody-Wait, New York Practice, p. 512, and cases there cited). However, the relief sought in the instant motion affects only the procedure to be followed in the event of future dispute concerning defendant’s actions, lection 218-a of the Qivil Practise Act provides that the parties to a civil action may utilize the simplified procedure by following the applicable rules (see Rules Civ. Prac., rules 304-306), Section 218-b of the Civil Practice Act provides that parties to a written contract may stipulate therein to utilize the simplified procedure. It appears clear that this court would be bound to enforce this stipulation, regardless qf its exclusion from thg consent decree entered (Gilbert v. Burnstine; 255 N. Y. 348; Matter of Malloy, 278 N. Y. 429; Banbury v. Rubinstein, 271 App. Div. 322, and, 297 N. Y. 510) . There is no doubt that this court has jurisdiction over both the subject matter of this proceeding, and the parties. This being trig, it appears that resettlement of the ’ consent decree to "include the provision *11omitted would effect merely an amplification of the prior decree and not a substantive change thereof, and would be proper (Matter of Bausch, supra). Even if the procedure utilised is technically improper, the motion may be considered as one to vacate the order, and to enter another, and as such wonld be proper,


The plaintiff contends that the order of Judge Garrity should be resettled, because it does not reflect the disposition which was indicated in the memorandum decision made by Judge Garrity, prior to the signing of the order. That memorandum decision stated that plaintiff’s recourse must be by appeal from the judgment entered in the City Court in the action, subsequent to the making of the order, and directed the dismissal of the appeal. The plaintiff, consequently, urges that the order of Judge Garrity be resettled to provide for dismissal, rather than affirmance of the order of the City Court. At the present time, Judge Garrity is no longer in office, and cannot entertain the motion for <mask> (Civ. Prac. Act, § 79; Salina Constr. Supply Co. v. Richards Constr. Co., 200 Misc. 796; People v. Poole, 133 N. Y. S. 2d 465).


Clearly, the execution of the leases was within the power of the administrator. An article 7-A "administrator is authorized and empowered in accordance with the direction of the court * * * to rent or lease for terms not exceeding three years any part of said premises, however, the court may direct the administrator to rent or lease commercial parts of said premises for terms that the court may approve.” (RPAPL 778 [1].) The order of appointment here, at paragraph (6) (d), specifically authorizes the administrator "to rent or lease commercial parts of subject premises for terms not exceeding ten years”. The owner’s objection to the execution of the leases is rejected. If the owner has problems resulting from provisions of the order, the remedy is to seek its amendment or <mask>, not to challenge actions taken by third parties in reliance on it. For example, for an owner concerned about long-term leases, an order can be written to provide that a lease of commercial space for more than five years would require advance approval by the court on notice to the owner.


This problem of expressing the opinion in proper form by means of <mask> by me does not amount to my entering an original order upon the opinion or decision of another judge. (Bules Civ. Prac., rule 70.) It is also clear that this is not one of the acts which Judge Fauelli, though now out of office, would nevertheless have power to do. (Civ. Prac. Act, § 79.) Nor am I in any manner reviewing or setting aside the order, which is certainly beyond my power. Section 78 of the Civil Practice *839Act, cited by defendants, relates only to special proceedings, and is inapplicable to this action.


Plaintiff, opposing, asserts that the order is full, accurate and correct, needing no <mask>, that defendants, did, as the order recites, make the motion, and that they could appeal ‘ ‘ from each and every part of said order ’ ’ without difficulty. Plaintiff strenuously objected to the proposed resettled order which recited that it was on motion of plaintiff’s attorney, who had not made, but only defended, a motion made by his opponent.


The last issue concerns DSS’ request for <mask>. The County argues that by not satisfying its lien prior to the transfer of the personal injury proceeds to the SNT, the court is effectively vacating the lien. It contends this is so because the lien attaches to only one form of property (i.e., said proceeds) and not any other form, such as trust assets. Whether the court’s finding that the lien need not be satisfied technically constitutes vacatur thereof may be a question of semantics. However, DSS’ point that its lien may not attach to trust assets is well taken. We are not aware of any authority for the transference of this type of lien to another form of property. Of course, by the terms of the trust (see, supra, at 594), DSS will be entitled to recover from the remaining trust assets for the medical assistance covered by the lien, together with all other medical assistance provided. Nonetheless, we deem it appropriate to amend the subject order to more accurately reflect the technical legal consequences of the court’s ultimate determination.


*581The application could not be allowed even if it were to be assumed that German law was incorrectly applied. If that were in fact the case at best it amounted to a mistake of law, however, and as such may be rectified only on appeal (Matter of Bartlett, 164 Misc. 524; Wolf v. Bell, 180 Misc. 587). For the reasons stated, the motion for <mask> is denied (Cummings v. Deutsche Bank, 300 U. S. 115). Submit order on notice.


Therefore, in order to accord full protection to both parties and, especially the small claims claimant, who might otherwise be deprived of the more liberal small claims procedure, the order directing a joint trial should be conditioned upon Victoria’s stipulating and agreeing to have both actions tried in the regular parts of the court, under the more flexible procedural rules and "substantial justice” standard applicable to small claims, which would have controlled had the case proceeded to trial in the more usual nighttime forum. Although no express authority has been cited or found and, to that extent, the disposition is novel, I find this to be a rational accommodation of the various competing factors present here. In my view, the condition may be imposed, consistent with the *561court’s inherent power under CPLR 602 (a) to condition consolidation or joint trial to effect the interests of justice and judicial economy (cf., Gordon v Lifschitz, 10 AD2d 669, <mask> denied 11 AD2d 938; Hershman v De Meo, 34 Misc 2d 1051).


The plaintiff, now a resident of this city, and claiming to be one of the victims covered by the foregoing agreements, has brought this suit in which he charges the defendant with breaches of its fiduciary duties. He alleges that it has shown improper favoritism among the beneficiaries entitled to relief *356and. asks that the court determine what is fair and proper provision for his own rehabilitation and that the sum so ascertained be adjudged a lien on the funds recovered by the defendant from Germany. He asks further for judgment for $20,000 or for such amount as the court determines should have been paid to him for his <mask>. The complaint prays for additional relief. The foregoing statement of its contents is, however, sufficient for present purposes.


Even if it is true, as claimed by the residuary legatees, that this estate has suffered a loss by reason of the release of t'he mortgagor by Mr. Wiggln, adherence to the principle declared in Adair v. Brimmer, seems to require my approval of the executor’s readjustment of his claims. But it is by no means apparent that the estate has sustained any actual injury whatever. My conclusion is that the bond of indemnity should be surrendered to Mr. • Wiggin, and that the executors should be credited with the mortgages transferred to him and the cash paid him upon the <mask> of his demands as legatee. He now asks, also, for the payment of interest on such portion of his legacy as he was not permitted to enjoy while he held the Boston mortgage. This is allowed, together with the amount he disbursed as taxes, and §40 which he paid to his attorney for searching title.


Evans V. Brewster, S. In this proceeding the administratrix of decedent’s estate seeks approval of a compromise of an action for legal malpractice arising out of the prosecution of a wrongful death action, the settlement of which was approved by order of this court on June 14,1971. Petitioner also seeks a <mask> of the order of June 14, 1971 to permit the distribution of the additional funds and to judicially settle her account as administratrix.


*882The gist of each action is that the appropriation above the 246 elevation was for the purpose of using the property so acquired for sale or lease to private individuals, and for residential, recreational, business, commercial and other private purposes. More specifically, the complaints, with the exception of the Stewart action, allege the Power Authority intends to use the property above 246 as part of a real estate project to be known as the “ Wilson Hill Development ”. It is further alleged, in detail, the Authority proposes to lay out and lease to private individuals numerous lots, furnish space for commercial enterprises, an area for <mask> of dispossessed campers and permanent residents, for the construction of roads, public parks, water and sewage facilities, and a causeway to the newly created island; that all these proposals are “useless” and “ unnecessary ” for navigation, commerce, and power, and as such, violate the eminent domain and due process clauses of our State and Federal Constitutions.


In Fish v. Wood (2 Abb. Pr. 419, Genl. T. Com. Pleas, 1856), this court refused to grant an order sending the case back to the referee for <mask>, so as to state the facts found by him on the evidence, and for a finding upon a particular issue, the court saying that after argument and decision of an appeal, the party should not be allowed to have the whole proceedings set aside, in order to enable him to make anew case; that there might be cases where an error had. occurred by misstatement, but that case was not such a one.


Írm tbe judgment entered on tbe report of tbe referee, and upon e case so made, to tbe general term of tbis court; and after the argument thereof, and before tbe court had given a decision thereon, and on tbe 23d of March, 1854, Raymond, one of tbe defendants, died. On tbe first of April following, tbe general term affirmed tbe judgment, and tbe judgment of affirmance was, by order of tbe court, entered as of a day during tbe lifetime of Raymond. On tbe 18th of June, 1855, on application of bis administrators, an order was made reviving tbe action in their names, for tbe purposes of an appeal to tbe Court of Appeals, and on tbe same day a proposed bill of exceptions was served, on their behalf, on tbe plaintiff’s attorney, containing exceptions in manuscript not appearing in tbe case as made and settled, and to which tbe plaintiff proposed an amendment striking out such manuscript exceptions, and wbicb amendment was allowed. Tbe defendants then moved for an order for tbe <mask> of tbe exceptions proposed, and of tbe amendments thereto proposed, and for an order that tbe amendment proposed to tbe bill of exceptions be disallowed, and tbe exceptions proposed be allowed. The order of tbe 5th of December above mentioned denied such motion.


Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered November 19, 2019, which deemed a motion by defendant Carol Hayden as a motion to vacate a judgment of foreclosure and sale, and denied the motion, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered July 24, 2019, which granted plaintiff's motion to vacate a judgment of foreclosure and sale granted on May 12, 2016, to direct the County Clerk to enter the <mask> of judgment of foreclosure and sale granted on March 13, 2018, and to extend the time in which to conduct a foreclosure sale (the July Order), unanimously dismissed, without costs.


I am of the opinion that the Special Beferee properly heard testimony with respect to the rents collected for the month of July, 1962, particularly in view of the language contained in the order of July 20, 1962, which refers to the approximate amount of rents collected for the month of July, 1962, and the order to show cause, dated August 1, 1962, which clearly sought to punish Harry Silverman for contempt of court in collecting the *550rents from the tenants of the apartment house under foreclosure for that month. To have sustained the objection of Mr. Silver-man’s attorney, the Special Referee would not only have aborted the hearing contemplated by the court, but would have unnecessarily inconvenienced the 48 witnesses, who were in the courtroom under subpoena at the first hearing, and of whom 47 testified that day only to be hailed back after the technical defect in the order had been corrected by <mask>. Form cannot be exalted over substance when, as here, the defendant Silverman was in no way prejudiced nor any of his substantial rights affected.


<mask> of an order, unlike an application for reargument or renewal (CPLR 2221), is an established procedure designed to correct errors or omissions as to form or for clarification. (See, Foley v Roche, 68 AD2d 558, 566 [1979].) As observed by Professor Siegel, “a resettlement contemplates an endeavor to reflect the disposition more accurately.” (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C2221:7, at 183.) It may not be used to amplify the prior decision or to effect a substantive change in the original order (Foley v Roche).


The petitioner is Prince Giovanni del Drago. He is a coexecutor of the estate, the husband of the testatrix, and the life tenant of the residuary trust. Extensive testimony has been taken upon the question of the existence of any of the grounds set forth in subdivision 6 of section 20 of the Surrogate’s Court Act which are required to be shown to justify the opening or modification or <mask> of a decree. As the trier of the facts, the surrogate holds that no ground for even the slightest modification or *385resettlement has been proved. On the contrary it has been conclusively shown that the petitioner here and his attorney, Ludwig M. Wilson, originated the plan to rehabilitate the property. As a result of their urging, del Drago induced his coexecutor to join with him in a petition to authorize the expenditure of a large sum of money from the personal property within the estate for the purpose of rehabilitating the real property which formed part of the trust created for his benefit. Six properties located in the borough of Manhattan were involved, one a business building and the others old-fashioned tenements or apartments. Approximately $120,000 was spent upon the improvements. As an inducement to his coexecutor and to the special guardian of the infant remaindermen and in order to procure the approval of the surrogate of the plan of rehabilitation, del Drago offered to contribute to the amortization of the expenses of rehabilitation out of his income. He was about seventy-eight years old at the time and, estimated upon his expectancy of life, his total contribution would have been a relatively small part of the whole cost. His motive was plainly to increase his income by the enhanced rentals which would be derived from the rehabilitated property.


A dispute arose concerning the time for payment of plaintiffs’ attorneys’ fees and plaintiffs moved for reargument. The court granted reargument and declared that the proposed hourly fee of plaintiffs’ attorneys is fair and reasonable. That was error. The reasonableness of the proposed counsel fees should not have been determined upon reargument because that issue involves new proof (see, Taub v Colonial Coated Textile Corp., 54 AD2d 660; Siegel, Practice Commentaries, McKinney’s Cons Law of NY, Book 7B, CPLR C2221:7, at 182) and a prayer for relief that was not part of the original motion (see, 2 Carmody-Wait 2d, NY Prac § 8:78, at 408). Similarly, if plaintiffs’ motion is construed as one for <mask> of the judgment (see, Gormel v Prudential Ins. Co., 167 AD2d 829; Ross v Ross, 140 AD2d 683, 683-684), the reasonableness of counsel’s proposed hourly fee may not properly be *963determined because that issue was not litigated in the original declaratory judgment action (see, Gormel v Prudential Ins. Co., supra).


However, it is well settled that <mask> is permissible only for the inclusion of a judicial pronouncement of some recital or provision which was initially omitted through inadvertence. It is a “ procedure of correction or clarification, not one to change or to amplify the direction of the court” (Ruland v. Tuthill, 187 App. Div. 314, 315) or to ‘ ‘ change the judgment in matter of substance ”. (Herpe v. Herpe, 225 N. Y. 323, 327.) “ Such result may not be accomplished indirectly by a motion, purportedly made in the action, after the court’s judicial authority therein has been exhausted ”. (Tait v. Lattingtown Harbor Dev. Co., 12 A D 2d 966.) The rule would seem to hold particularly true where, as here, the judgment has been entered upon a limited stipulation of the parties (Medhart Mfg. Co, v. Rafferty, *136243 App. Div. 632) and the plaintiffs were unable to establish their cause of action for damages (cf. Cooley v. Lobdell, 153 N. Y. 596, 603; Switzer v. Commissioners for Loaning Certain Moneys, 134 App. Div. 487, 489).


Such is the situation in the case at bar. The averment of events which occurred subsequent to the service of the complaint in the first action and which are substantially of the same general character, does not, in this court’s opinion, render the actions different from each other. They are between the same parties for identical relief and predicated upon the same general theory. (Cipolla v. Cipolla, 255 App. Div. 789.) The whole effect of the second suit may be attained in the first. (Parker v. Selye, 3 App. Div. 149, 153.) This, in effect, was recognized by the plaintiffs, themselves, when they moved on August 12, 1957, to punish the defendants for contempt of court for violating the restraining order of December 14, 1956, or, in the alternative, to resettle that order so as to extend its restraint until such time as the National Labor Relations Board has certified a collective bargaining agent of plaintiffs’ employees. Upon that motion the issue, among others, as to whether that order expired on July 30,1957, the termination date of the collective bargaining agreement between the plaintiffs and Local 122, was tendered by the *484plaintiffs. Mr. Justice Pette, who heard that motion held: “ All of these matters cannot be summarily disposed of and require a plenary hearing. In view of the foregoing disposition, the court has no occasion to pass upon the alternative branch of the motion. In any event, the order cannot be resettled except by the justice who made the original, and whether there is any basis for <mask> depends upon the determination of thé question whether that order still subsists.” (N. Y. L. J., Aug. 27, 1957, p. 7, col, 1.)


The motion is granted accordingly, and the examination will proceed at Special Term, Part II, of this court on April 21, 1958, at 10:30 a.m., unless the parties otherwise stipulate. In the event any of the parties desires the examination to proceed before a referee, <mask> of this order may be duly applied for to that effect. In either case, relevant books, records and papers will be produced for use pursuant to section 296 of the Civil Practice Act.


In the order of June 8, 1976, wherein this court directed a hearing as to the reasonable market value of the subject property, this court directed plaintiffs to serve a copy of the notice of motion papers for a deficiency judgment, together with a copy of the order directing the hearing, upon the defendants by registered or certified mail within 10 days from the entry of the aforesaid order. Subsequently, the plaintiffs were unable to comply with the order and, therefore, moved for <mask> of the order to afford them an opportunity to comply with the direction of the court. By order dated October 20, 1976, this court granted resettlement and again directed service of copies of the motion papers for a deficiency judgment, and the order directing the hearing on the defendants by certified or registered mail. Although the defendants deny receiving the motion papers or the notice of the hearing, the plaintiffs have submitted documents evidencing compliance with the court’s directive of October 20, 1976.


On July 27,1937, an application was made by the special guardian for the <mask> of the decree so as to provide for the inclusion therein of a recital of his participation and also for the fixation of his. allowance in the sum of $300. This does not appear to have been served upon any one, but attached to the affidavits of the special guardian is a document signed by the discharged attorneys for the proponent in which they purport to “ consent to and waive notice of application for the re-settlement of the decree ” and consent to the insertion therein of the $300 allowance for the special guardian. It is a somewhat significant circumstance that this purported waiver and consent is undated. It is wholly obvious, however, that it was executed by the former attorneys after their dismissal by reason of the fact that it is backed with the affidavits, and refers to the application seeking resettlement of the decree, which are verified on the twenty-seventh day of July, which was eight days subsequent to their discharge.


Respondent Peter B. Edelman (New York State Division of Youth Director) moves under CPLR 2221 seeking: (1) reargument of this court’s decision dated September 9, 1977 (92 Misc 2d 485) to permit the court to consider respondent’s opinion that, under Codd v Velger (429 US 624) the sole purpose of affording a hearing to a probationary employee terminated in the face of charges which may have the effect of damaging the employee’s reputation is to clear his name, not to consider *490whether the employee should be reinstated with back pay; (2) <mask> of the order and judgment dated September 30, 1977 as overly broad in that it requires respondent to afford a hearing to petitioner Dave E. Hill, Jr., prior to imposing any discipline, whereas, respondent believes the decision addressed itself solely to the situation in which the accused employee faced termination if the charges made against him were found true; and (3) permission to answer the petition, as the original motion was a CPLR 7804 (subd [g]) motion to dismiss upon objections in point of law, which, if denied, affords respondent an opportunity to answer.


■ As to the remaining portion of the decision, the pleadings are not before us, and it does not appear what the allegation of special damage in the complaint was, but there is nothing in the record to show that the plaintiff would be prejudiced by furnishing the items of disbursements thus far incurred. The plaintiff’s remedy lay in <mask> and not in appeal. ' The appeals will be- dismissed, without costs, and the order appealed from remitted to Special Term for resettlement.


As properly employed, this term implies merely the reopening of an order or decree for the purpose of including therein some recital or provision which was initially omitted therefrom through inadvertence and which should have been included. As is pointed out by the Appellate Division of this Second Department in Ruland v. Tuthill (187 App. Div. 314, 315): “ <mask> of an order is a procedure of correction or clarification, not one to change or to amplify the direction of the court.”


In this cause now here, Onesime Robitaille shortly before his final removal to his domicile of origin, as it appears, had an apoplectic seizure, which for a time at least deprived him of self-control, if not of his mind. For some while before this affliction Onesime Robitaille had, however, contemplated a reversion to his domicile of origin, and with a view to that end he had actually sold out some of his belongings in New York and had packed up his household stuff and furniture, intending to make a final <mask> in his native place among his own people living in or about Ancienne Lorette, province of Quebec. His declarations were competent on this point. Matter of New-comb, 192 N. Y. 238. The surrogate has little doubt that this fixed and established intention on the part of Onesime Robitaille was frustrated, if at all, only by his illness mentioned. Before the late Mr. Robitaille could himself consummate his intention to domicile himself in Quebec (Lower Canada) he was deprived to some extent of the power so to do by disease and loss of his senses. But his committee thereafter acted in accordance with his expressed intention, and took him to Lower Canada to his domicile of origin, which continued at least his de facto domicile until he died.


The application whereas denominated one to “ resettle,” is in reality to vacate the prior determination. <mask> is permissible only for the inclusion in a judicial pronouncement of some recital or provision which was initially omitted through inadvertence. It is a “ procedure of correction or clarification, not one to change *426or amplify the direction of the court.” (Ruland v. Tuthill, 187 App. Div. 314, 315; Matter of Bartlett, 164 Misc. 524, 525; Pringle v. Edenwald Realty Corp., 175 id. 137, 138.) It is unavailable in a situation where the object sought is an alteration of the decision actually made. (Butterfield v. Bennett, 56 Hun, 640; Deutermann v. Pollock, 36 App. Div. 522, 523; Matter of Putnam, 173 Misc. 151, 152; Butler N. Y. Surrogate Law & Practice, § 749.) To attain such an end, there must be an actual vacatur of the order or decree in question. The only grounds for such an application are those enumerated in subdivision 6 of section 20 of the Surrogate’s Court'Act. Here there was, to be sure, an error of law on the part of the executor in the evaluation of the legal validity of the claims. Such an error is not one which may form the basis for a vacatur of a judicial determination. (Bohlen v. Metropolitan Elev. R. Co., 121 N. Y. 546, 551; Matter of Ungrich, 201 id. 415, 418; Kamp v. Kamp, 59 id. 212, 215, 216; Heath v. N. Y. Bldg. L. B. Co., 146 id. 260, 263; People ex rel. Bankers Trust Co. v. Graves, 270 id. 316, 320; Matter of White, 170 Misc. 657, 659; Matter of Brady, 147 id. 613, 615.) The executor could not himself successfully seek relief by reason of it and the present applicant does not stand in. any superior position. His sole remedy was in personam against the executor for negligent action in the premises.


The voluminous papers presented to the court establish that the plaintiff instituted a prior action in the United States Bis-trict Court, Southern Bistrict, in 1949 against the individual defendants herein and others, but not against the defendant corporation. After considerable delay in the prosecution of the action plaintiff, in 1953, served notices for the taking of the depositions of the defendants, who appeared but were not examined. Thereafter the action remained inactive and in fact was marked off the calendar. In 1957 the plaintiff restored the action to the calendar and again served notices to examine the individual defendants herein before trial. By notice of motion the individual defendants moved to vacate the notice of examination before trial and plaintiff, by cross motion, moved for judgment. The Judge before whom the motion and cross *275motion, came on to be heard, by order dated May 1, 1957 provided for the taking of the depositions of the defendant De Mornay on the morning of June 3,1957 and to continue for not more than two days and that within six days of the taking of the deposition the plaintiff was to furnish the defendant a copy of the testimony to be signed by the defendant within two days; that the deposition of the defendant Witty was to be taken on the day following the conclusion of the testimony and signing by the defendant De Mornay. Pursuant to rule 77 (subd. [d]) of the Federal Rules of Civil Procedure the clerk of the court entered the order and mailed such notice to the parties on May 3, 1957. Defendants’ attorneys further allege that on May 28, 1957 they received a telephone call from the Justice who had signed the order to the effect that the plaintiff’s attorney had appeared before him ex parte to discuss the <mask> of the order. Since the defendants were on their way to New York State from Florida and California, respectively, they opposed any resettlement and so informed the court by letter dated May 28, 1957. In reply to this letter the court then directed the examination to proceed in accordance with the time schedule set forth in the order. Predicated thereon both defendants appeared on the return date, but the plaintiff instead of proceeding with the examination served the individual defendants with the summonses under attack, as well as a summons on the defendant De Mornay as president of the defendant corporation. It is interesting to note that the summonses were dated March 26, 1957, the very day that counsel for the plaintiff was arguing to sustain their application for the examination before trial.


The order of January 19, 1976, which vacates the default judgment is modified on the facts and the law, striking therefrom the following: "That John Lo Pinto, Esq., attorney for the defendants herein pay to the plaintiffs”. While this court may find that attorney Lo Pinto is not subject to the costs assessed, it cannot substitute its discretion for that of Judge Rector. All proceedings on the motion of defendant to vacate the default judgment are remanded to the said Town Justice Court for further proceeding on the <mask> of the said order with respect to terms and conditions for vacating judgment, in keeping with this decision. (CPLR 5015, 5522.)


A motion was now made to set aside, vacate or open the judgment recovered in favor of George Greer, and for a new trial; or that the defendants be permitted to renew their motion for a new trial upon the minutes of the court, and for a <mask> of the case prepared for the appeal, by inserting therein the evidence given on the trial, and for a re-argument thereof.


Por that reason, and to afford an opportunity to contest these allowances, an application was made for the <mask> of the order either reducing this allowance to its original amount or striking out all the allowances provided for by its terms. IJpon the hearing of this application all the counsel were again before the court and it resulted in a decision denying the application. From that determination the present appeal was taken, and it is sufficient under the circumstances to bring the propriety of these allowances all before the court. Neither the counsel nor the parties in whose behalf the other allowances have been made have appeared for.the purpose of maintaining them. And if they had done so it conl^ *462as the law has been settled, have produced no change in the disposition which should be made of the appeal.


The facts of the occurrence as here alleged demonstrate affirmatively that the act of the court in the award of the allowance of $300 to the special guardian at which the present complaint is directed was a deliberate act of adjudication and is consequently incapable of reconsideration and alteration through the medium of “ <mask>.” If remediable at all, it must be on one of the *526grounds specified in subdivision 6 of section 20 of the Surrogate’s Court Act, which permits the reopening of an order or decree “ for fraud, newly discovered evidence, clerical error, or other sufficient cause.”


*1040Instead of this matter being disposed of in Special Term, Part I in 15 minutes on January 10, 1962, it was not submitted for disposition until October 7, 1963 at Trial Term, Part XII and then, according to the terms of the order decision upon the motion for a stay final submission must still be made in Special Term, Part I. As a result the referral caused the necessity of settling orders on notice for reference to an Official Referee, a subsequent motion for <mask> of the order when the office of the Official Referee was eliminated, the resettlement of the orders thereon, the payment of a calendar fee by an attorney for the trial of a simple issue raised on a motion, the necessity of attendance by attorneys in Trial Term, Part I for several days before the matter could be sent to a Trial Term, a trial in Trial Term and finally the submission of the decision of Trial Term to Special Term, Part I for ultimate disposition.


The case was resettled on the 20th of May, 1863; judgment had been entered on the verdict for the plaintiff, and the judgment-roll filed on the 28th of February previous. The case was served on the 30th of March last, and also a notice of appeal from the judgment. Amendments were proposed to such case, on the 2d of April last.- The case was originally settled on the 2d of May, and notice of argument served by the plaintiff for the present term, on the 4th of May last. Notice of <mask> was given on the 9th of May last. After the 20th ' of May, a new notice of argument was served by the plaintiff, and also a notice thajzhe would receive his copies of the case as late as the 29th of May last. Such notices of argument never were returned. Ho order ever was obtained allowing the judgment to be entered to stand as security merely; consequently it was absolutely entered; no motion having been made for a new trial at special term, on a case or exceptions.


The proposed settlement was approved as to amount by a Justice of the Supreme Court and the administratrix now seeks the consent of this court to the compromise of the action for legal malpractice and <mask> of the order of June 14, 1971. When the wrongful death action was settled in 1971, the proceeds after counsel fees and disbursements, were to be distributed among the widow and four minor children in stated percentages. Three of the children are now adults and have consented to the compromise of the action for legal malpractice and the distribution of funds in accordance with the percentages applied to the distribution in 1971. The petitioner joins in seeking the same percentage distribution. The interest of the minor child is protected by a guardian ad litem who joins in the request for a distribution of the proceeds of the settlement in accordance with the previously ordered percentages.


Since the issue of “Contractual Indemnification” was held in abeyance pursuant to the order of the court dated January 22, 1981, the present decision shall be deemed to supplement such latter mentioned order. Therefore, a <mask> of such latter order is appropriate and is herewith required, on notice to all parties in the action, to be submitted expeditiously since the trial of this action is presently very imminent.


In Jakobleff (supra), a woman terminated her relationship with a law firm that represented her in a marital dissolution action, and hired a new attorney. The new attorney endeavored *610to rectify what the client viewed as errors on the part of the predecessor, which effort included representing the woman in a lawsuit against it. The former firm commenced a third-party action against the new attorney, alleging that he negligently failed to seek a <mask> of the judgment of divorce, and it sought discovery against him on the ground that he was believed to possess information regarding the extent of the client’s damages. The Court granted the new attorney’s motion for a protective order, finding that there was no waiver of the attorney-client privilege because:


The court takes judicial notice of the fact that from ancient to modern times and continuing to the present there has been and unfortunately is, persecution of Jewish people in some “ Christian, Moslem, Nazi, Fascist or Communist countries”, by reason of which many fine, talented and deserving people have become of necessity “scapegoat refugees” in need of *476“ relief and resettlement”. This in our opinion is a lawful purpose for which a trust in real property may be created. The Legislature by Session Laws of 1962, chapter 145, effective September, 1, 1962, added new subdivision 8 to section 96 of the Beal Property Law, setting forth additional purposes for which an express trust in real estate may be created, as follows: ‘ ‘ 8. To effect and carry out any purpose for which a contract may. lawfully be made.” It is worthy of note that the Legislature in 1964 repealed section 96 in its entirety and in its place broadened the scope of the purpose for which a trust might be created to include “ any lawful purpose ”. However, subdivision 8 was in effect on the date of decedent’s death and is therefore controlling in the construction of decedent’s will. It would seem to be beyond the necessity of illustration or citation of authority to hold that the relief and <mask> of refugees as directed in the will of decedent would be a proper and lawful purpose for which a legal and binding contract might be made, and hence, under the statute, a proper and lawful purpose for which a lawful trust may be established.


Despite the apparent lack of understanding of Justice Schreiber’s order there was no reargument or <mask> and no appeal taken. The record before the arbitrators, subsequent to the order as well as before it, is replete with testimony antedating the 1947 agreement. Each side initiated such testimony on direct and pursued it on cross and they were assisted in this pursuit by all the arbitrators. Nevertheless, there were tipies when they stood on the supposed meaning of the order, i.e., that *69nothing relating to the pre-1947 agreement be allowed in evidence.


<mask> is not a procedure for changing or modifying the decision of a court. Resettlement of an order is a procedure of clarification or correction, not to modify or change the relief granted (2 Carmody-Wait 2d, New York Practice, § 8:125; 10 Carmody-Wait 2d, New York Practice, § 70:44); nor to make unclear the decision which the trial court must follow.


The District Attorney for Rensselaer County has applied to the Appellate Division, Third Department, for a reconsideration of the decision rendered July 26, 1965, and for a <mask> of the order dated July 30, 1965, on the ground that the opinion of the court indicated that the judgment of conviction was reversed on the law only. This application is now pending.


Hayden makes no arguments as to why the 2016 judgment should not have been vacated, why the 2018 <mask> should not have been entered, or why plaintiff should not have been granted 120 days to hold the sale. Hence, she has abandoned her appeal from the July Order (see 400 E. 77th Owners, Inc. v New York Eng'g Assn., P.C., 122 AD3d 474, 475 [1st Dept 2014]).


The purpose of a <mask> order is to correctly express the decision of the court (White v. White, 175 Misc. 66; Polo v. Stern, 249 App. Div. 817; Matter of Suede Pillow Novelty Co. v. Dworsky, 250 App. Div. 48). The directory portion of an order recites “ the determination or direction in such detail as the judge deems proper.” Moreover, “the order should be sufficiently specific to enable him clearly to understand his duty ” (2 Carmody-Wait 2d, New York Practice, § 8:90).


By section 114 of the Domestic Relations Law, the “ judge or surrogate of the court in which the order of adoption was made may open, vacate or set aside such order of adoption for fraud, newly discovered evidence or other sufficient cause ” in the same manner as courts of general jurisdiction exercise such powers. Under this authority, the petitioner seeks to have this court vacate the orders of adoption, maintaining that the court was without jurisdiction to enter orders prior to March 26,1967, that date being six months from the time of presentation of the petitions. He also contends the required six months’ residence of the children with the foster parents could not have been completed until February 27, 1967 and that such requirement was jurisdictional. The respondent claims such noncompliance as to the residency period was held to be a mere irregularity in the *892Matter of Martin (269 App. Div. 437, 439). In that matter the Surrogate on a motion to amend an order of adoption so as to insert a recital to the effect that the court had dispensed with the six months’ period of residence, granted the same and resettled the order to contain such recital. The appellate court held that such <mask> was valid, alleging that it was apparent that the court had dispensed with the residence requirement but had simply omitted the recital in its order. It was the omission of this recital that was held to be a mere irregularity. Matter of Martin is not controlling in the case at hand, since none of the papers before the court requested the dispensation of the residency period or the shortening of the waiting period and no reasons for the same were ever given to the court. In the Martin case, it may be presumed that the request was made to the Surrogate for dispensing with the six months’ residence requirement and the reason given for the same was the fact that the child’s mother was married to the petitioner. The fact that the petitioner, in this case, is the spouse of the natural mother is not sufficient reason or good cause for shortening the waiting period, pursuant to section 116 of the Domestic Relations Law. That section clearly provides a waiting period in such case unless the child has resided with the foster parents six months. While the court obtained jurisdiction to entertain the proceedings for the adoptions, it lacked jurisdiction to enter the orders of adoption on November 4, 1966.


"The population of Westchester County is approximately one million. In spite of the County’s high average income, the percentage of people in the poverty group is about that of the nation as a whole. "The Developmental Centers at Wassaic, Letchworth and Willowbrook are providing residential care to more than 750 Retarded Citizens from Westchester County. It is a top-priority, unmet need that these persons be provided with <mask> residential programs and community services within their own county. "The Whitehill Institute* will serve only the residents of Westchester County. Residents of other counties will be considered for admission only during those times when, and if, there are no applicants from the County of Westchester. "As a residential school for Severely-to-Moderately Mentally Retarded Adults of both sexes, between the ages of 21 and 35 at the time of admission, the facility will provide residential, respite, and community habilitative services. Although this is a large facility, the programming is geared to the utilization of, and coordination with, all community services of the *34Westchester Developmental Network, avoiding an institutional environment. "The overall objective of the individualized plan of care is to attain or maintain the optimal, physical, intellectual, emotional, social, and vocational functioning of which the client is presently or potentially capable. "The resident population will not exceed one hundred (100) without the prior approval of Westchester Developmental Services and the Department of Mental Hygiene.” (b) "Such program proposal for petitioners’ school will provide comprehensive care, treatment, training, and education of the mentally retarded residents and can in no way be considered merely a custodial institution. The program includes briefly, psychiatric and medical diagnosis, treatment, and counseling, remedial education principally in the areas of language and motor abilities, self-care and prevocational and work training, and recreational programs for meeting and developing social and emotional needs, all to be provided by qualified staff personnel, and all described in greater detail in such Program Proposal.”


Finally, the court denies, without prejudice, plaintiffs’ request for an order directing the allocation of $200,000 of the net proceeds of the settlement agreement in this action to the derivative claims of plaintiff Monica Samerson. The stipulation of settlement entered on the record and agreed to by all parties present contained no such provision. Where the parties enter into a stipulation recorded in the minutes of the court, the settlement agreement terminates the claims of parties theretofore made in the action, and the agreement becomes enforceable as a contract binding on the parties (Gaetano Constr. Corp. v Citizens Developers, 175 AD2d 465 [1991]). The settlement agreement may be set aside or modified only upon such grounds as would permit such relief to be granted in a contract matter. Absent such grounds, the agreement must be strictly *236enforced (Furgang v Epstein, 106 AD2d 609 [1984]). Plaintiffs may not unilaterally alter the terms of the settlement agreement and the court finds no basis to support plaintiffs’ requested modification of that agreement. Plaintiffs must obtain the consent of the defendants to a <mask> of the agreement, or commence a plenary contract action for modification of that agreement.


At the outset, we note that, contrary to plaintiff’s argument on appeal, so much of the January 10, 2013 order as denied <mask> is appealable, as defendant did not seek to change the substantive or decretal portions of the September 15, 2010 order, but rather to, in essence, correct a factual recitation of that order (see Matter of Lewin v New York City Conciliation & Appeals Bd., 88 AD2d 516 [1982]; Bergin v Anderson, 216 App Div 844 [1926]; see also 4 NY Jur 2d, Appellate Review § 57; 10 Carmody-Wait 2d § 70:31).