Opinion
June 28, 1993
Appeal from the Supreme Court, Nassau County (Murphy, J.).
Ordered that on the court's own motion, the appellant's notice of appeal is treated as an application for leave to appeal, and leave to appeal is granted (see, CPLR 5701 [c]); and it is further,
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the motion is denied.
The underlying action was discontinued with prejudice by stipulation dated November 16, 1988. Therefore, no action presently exists to ground the motion made by the nonparty respondent. One who wishes to set aside a settlement made in an action which has been discontinued must proceed by plenary action, and not by motion (see, Coyle v. Barker, 173 A.D.2d 756; cf., Teitelbaum Holdings v. Gold, 48 N.Y.2d 51). Rosenblatt, J.P., Copertino, Pizzuto and Joy, JJ., concur.