Opinion
May 22, 1967
Appeal from an order of the Supreme Court, Ulster County, vacating a stipulation of discontinuance in the action. Respondents' former attorney signed a stipulation of discontinuance terminating the action. Respondents assert that the attorney was authorized to do so only if there would be no adverse effect on respondent Helen A. Gardner's continued receipt of workmen's compensation benefits. The respondent further contends since such was not the case, benefits being suspended as soon as the board was apprised of the discontinuance, the discontinuance should be vacated as unauthorized. The sole issue raised here by appellant is that respondent's remedy, if any, was available only by plenary suit and not by summary motion. Such is the general rule on the grounds that there remains no action pending in which the court can assert its power ( Manufacturers Mut. Fire Ins. Co. v. Associated Gas Elec. Co., 176 Misc. 220, 226-227, affd. 262 App. Div. 731, affd. 288 N.Y. 668; Yonkers Fur Dressing Co. v. Royal Ins. Co., 247 N.Y. 435, 445-446; Cohen v. Cohen, 4 A.D.2d 880; Bruck v. Contos, 24 Misc.2d 1093; 4 Weinstein-Korn-Miller, N.Y. Civ. Prac., par. 3217.05). Cases which would appear to be an exception to this general rule are noted (e.g., Horodeckyi v. Horodniak, 9 A.D.2d 732; Sperb v. Metropolitan El. Ry. Co., 10 N.Y.S. 865, affd. 123 N.Y. 659), especially where stipulations have been entered into in open court ( Fasano v. City of New York, 22 A.D.2d 799; Silver v. Parkdale Bake Shop, 8 A.D.2d 607; Bruder v. Schwartz, 260 App. Div. 1048), but in our opinion, this stipulation, clearly valid and operable on its face, should not have been vacated without a trial and this is additionally true here where the appellant would clearly be unable to refute by affidavit the respondents' allegations as to what transpired with their attorney. Accordingly, the order should be denied without prejudice to respondents bringing a plenary suit for the same relief. Order reversed, on the law and the facts, and motion denied, without costs, and without prejudice to respondents to bring plenary suit. Herlihy, J.P., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Reynolds, J.