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ONCE A STIPULATION OF DISCONTINUANCE WAS FILED SUPREME COURT LACKED ANY SUPERVISORY CONTROL OVER THE PROCEEDING AND THE MOTION PRACTICE SEEKING TO SET ASIDE THE SETTLEMENT SHOULD HAVE BEEN DENIED ON THAT GROUND; A PLENARY ACTION WAS REQUIRED (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined once the stipulation of discontinuance was filed Supreme Court lacked any supervisory control over the proceedings. So the subsequent motions dealing with the allocation of settlement proceeds to the plaintiffs and their attorney should have been denied. After the stipulation of discontinuance a plenary action was required to enforce or set aside the settlement:

As contemplated by the stipulation and order, counsel for the parties executed a stipulation of discontinuance that was filed with the Albany County Clerk (see CPLR 3217 [a] [2]). The filing occurred before any of the motion practice at issue and, as a result, a plenary action was required “to enforce [or set aside] the settlement since the court does not retain the power to exercise supervisory control over previously terminated actions and proceedings” … . Indeed, “[w]hen an action is discontinued, it is as if it had never been,” and Supreme Court lacked authority to grant any of the requested relief … . It follows that both motions should have been denied in their entirety. DeLap v Serseloudi, 2020 NY Slip Op 03443, Third Dept 6-18-20

 

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