Urso v. Panish

94 A.D.2d 701, 462 N.Y.S.2d 55, 1983 N.Y. App. Div. LEXIS 18131

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 2, 1983
• Status: Published

Opinion

— Appeals from (1) an order of the Supreme Court, Queens County (Giaccio, J.), dated April 6, 1982, which granted the respondents’ motion for leave to enter a judgment against appellant in the principal sum of $9,000, pursuant to a stipulation of settlement, and (2) a judgment of the same court dated April 26, 1982, which was entered thereon. Appeal from the order dismissed, without costs or disbursements (see Matter of Aho, 39 NY2d 241, 248). Judgment reversed, on the law, without costs or disbursements, and respondents’ motion denied, without prejudice to the institution of a plenary action, if respondents be so advised. A motion must be addressed to a pending action (Adams v George I. Cantrello, Inc., 29 AD2d 559). The actions commenced by the respondents were terminated by a stipulation of discontinuance, dated February 26, 1981. Consequently, their sole remedy is to bring a plenary action to enforce the terms of the stipulation settling said actions (see Teitelbaum Holdings v Gold, 48 NY2d 51; Yonkers Fur Dressing Co. v Royal Ins. Co., 247 NY 435; Sanchez v Brendza, 62 AD2d 953; American Progressive Health Ins. Co. ofN. Y. v Chartier, 6 AD2d 579; 2A Weinstein-Korn-Miller, NY Civ Prac, par 2104:06). Bracken, J. P., Brown, Rubin and Boyers, JJ., concur.