Adams v. George T. Cantrello, Inc.

• Decision Date: 20 December 1967
• Citation: 286 N.Y.S.2d 128,29 A.D.2d 559
• Parties: Harry A. ADAMS, Appellant, v. GEORGE T. CANTRELLO, INC., Respondent et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 128

286 N.Y.S.2d 128

29 A.D.2d 559

Harry A. ADAMS, Appellant, v. GEORGE T. CANTRELLO, INC., Respondent et al., Defendants.

Supreme Court, Appellate Division, Second Department.

Dec. 20, 1967.

Elman & Ornstein, New York City, for plaintiff-appellant, Cassrell Greenberg, New York City, of counsel.

Milton B. Shapiro, Spring Valley, for defendant-respondent.

Before CHRIST, Acting P.J., and BRENNAN, RABIN, HOPKINS and MUNDER, JJ.

MEMORANDUM BY THE COURT.

Order of the Supreme Court, Rockland County, dated December 16, 1966, reversed, on the law, without costs, and respondent's motion to settle a stipulation which had been made previously denied, without prejudice to the institution of a plenary suit by respondent, if it be so advised. No questions of fact were considered on this appeal.

A motion must be addressed to a pending action (Matter of Jetter, 78 N.Y. 601, 605). In the instant case, the action was effectively terminated by the foreclosing of the mortgages. Therefore, respondent's sole remedy was to bring a plenary suit rather than to seek an order to settle the stipulation (Yonkers Fur Dressing Co. v. Royal Ins. co., 247 N.Y. 435, 160 N.E. 778; American Progressive Health Ins. Co. of N.Y. v. Chartier, 6 A.D.2d 579, 180 N.Y.S.2d 181; see, 2 Weinstein-Korn-Miller, N.Y.Civ.Prac., 2104.06).