Giaimo v. Phillips

Appellate Terms of the Supreme Court of New York

Giaimo v. Phillips

49 Misc. 2d 954, 268 N.Y.S.2d 744, 1966 N.Y. Misc. LEXIS 2096

CourtAppellate Terms of the Supreme Court of New York

DecidedMarch 16, 1966

StatusPublished

This text of 49 Misc. 2d 954 (Giaimo v. Phillips) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Giaimo v. Phillips, 49 Misc. 2d 954, 268 N.Y.S.2d 744, 1966 N.Y. Misc. LEXIS 2096 (N.Y. Ct. App. 1966).

Pincite

Opinion

Per Curiam.

The stipulation of settlement here involved terminated the action and may not be set aside upon a claim of fraud or overreaching except by way of plenary suit (Yonkers Fur Dressing Co. v. Royal Ins. Co., 247 N. Y. 435; Matter of Hecht, 24 A D 2d 1001). Accordingly, the court no longer has power to grant summary relief by motion and a plenary action is necessary for enforcement of or relief from the terms of the stipulation (Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 2104.06).

The order granting plaintiff’s motion to vacate stipulation of settlement and for related relief should be reversed, without costs, and motion denied without prejudice to the institution of a plenary action, if plaintiff be so advised.

The order denying defendant’s motion to direct plaintiff to execute settlement papers should be modified, by providing that such denial is without prejudice; as so modified, order affirmed without costs.

Hargett, Brenner and -Olliffe, JJ., concur.

Order reversed, etc.

Order modified, etc.

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