Adams v. George T. Cantrello, Inc.

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 letter, 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 Go. v. Boyal Ins. Go., 247 N. Y. 435; American Progressive Health Ins. Go. of N. Y. v. Ghartier, 6 A D 2d 579; see, 2 Weinstein-Korn-Miller, N. Y. Civ. Frac., par. 2104.06). Christ, Acting P. J., Brennan, Rabin, Hopkins and Munder, JJ., concur.