Rotter v. Ripka

138 A.D.3d 567, 28 N.Y.S.3d 597

Opinion

Order, Supreme Court, New York County (Debra A. James, J.), entered April 28, 2015, which, insofar as appealed from as limited by the briefs, denied plaintiff’s motion to enforce a stipulation of settlement, and granted defendant Napoli Bern Ripka, LLP’s cross motion to dismiss plaintiff’s motion without consideration of the merits for failure to commence a plenary action pursuant to court order, unanimously affirmed, with costs.

This is the latest in a series of disputes between the parties regarding a stipulation of settlement that was so-ordered by Supreme Court in May 2006. The instant motion by plaintiff to enforce the stipulation of settlement was correctly dismissed, because the stipulation contained an express and unconditional stipulation of discontinuance of the action, which was sufficient to terminate the action (see Teitelbaum Holdings v Gold, 48 NY2d 51 [1979]; Salvador v Town of Lake George Zoning Bd., 130 AD3d 1334 [3d Dept 2015]; DiBella v Martz, 58 AD3d 935 [3d Dept 2009]; Cooley v CNYE Realty Corp., Inc., 16 AD3d 871 [3d Dept 2005]). Indeed, in connection with an earlier fee dispute, the motion court warned that the action had been terminated and any future disputes would require commencement of a plenary action.

Concur — Sweeny, J.P., Renwick, Gische and Kahn, JJ.