

Rotter v Ripka (2016 NY Slip Op 03070)





Rotter v Ripka


2016 NY Slip Op 03070


Decided on April 21, 2016


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on April 21, 2016

Sweeny, J.P., Renwick, Gische, Kahn, JJ.


877 600609/06

[*1]Seth R. Rotter, Plaintiff-Appellant,
vAlan S. Ripka, et al., Defendants-Respondents.


Pavlounis & Sfouggatakis, LLP, Brooklyn (Andrew Sfouggatakis of counsel), for appellant.
Rubin Law, PLLC, New York (Denise A. Rubin of counsel), for respondents.

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.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: APRIL 21, 2016
CLERK


