Giaimo v. Phillips

The stipulation of settlement here involved terminated the action and may not be set aside upon a claim of fraud or overreaching except by way of plenary suit (Yonkers Fur Dressing Co. v. Royal Ins. Co., 247 N. Y. 435; Matter of Hecht, 24 A D 2d 1001). Accordingly, the court no longer has power to grant summary relief by motion and a plenary action is necessary for enforcement of or relief from the terms of the stipulation (Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 2104.06).

The order granting plaintiff’s motion to vacate stipulation of settlement and for related relief should be reversed, without costs, and motion denied without prejudice to the institution of a plenary action, if plaintiff be so advised.

The order denying defendant’s motion to direct plaintiff to execute settlement papers should be modified, by providing that such denial is without prejudice; as so modified, order affirmed without costs.

Hargett, Brenner and -Olliffe, JJ., concur.

Order reversed, etc.

Order modified, etc.