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A PLENARY ACTION WAS REQUIRED TO SET ASIDE THE STIPULATION OF SETTLEMENT WHICH WAS INCORPORATED BUT NOT MERGED INTO THE JUDGMENT OF DIVORCE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined Supreme Court did not have the authority to declare certain portions of the stipulation of settlement invalid. A plenary action was necessary:

… [A] plenary action was required to seek to set aside the stipulation of settlement, which was incorporated but not merged into the judgment of divorce … . There are exceptions to this general rule, such as where reformation of a separation agreement is sought to conform the agreement with the intent of the parties … , or where the matrimonial action is still pending and was not terminated with entry of a judgment … , or in certain circumstances where enforcement of child support is sought … . None of these exceptions are applicable here.

In view of the foregoing, those branches of the plaintiff’s cross motion which were to vacate the provisions of the stipulation of settlement concerning equitable distribution and maintenance should have been denied. Jagassar v Deonarine, 2021 NY Slip Op 00549, Second Dept 2-3-21

 

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ALTHOUGH SUPREME COURT PROPERLY DEEMED SERVICE COMPLETE DESPITE LATE FILING OF THE AFFIDAVIT OF SERVICE, DEFENDANT’S MOTION TO VACATE THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN DENIED, RATHER DEFENDANT SHOULD HAVE BEEN GIVEN EXTRA TIME TO FILE AN ANSWER (SECOND DEPT).
ALTHOUGH VACATING A JUDGMENT STEMMING FROM A CONFESSION OF JUDGMENT MUST ORDINARILY BE ACCOMPLISHED BY BRINGING A PLENARY ACTION, A MOTION TO VACATE IS APPROPRIATE WHERE IT IS ALLEGED THE COURT WHICH ENTERED THE JUDGMENT DID NOT HAVE SUBJECT MATTER JURISDICTION; HERE THE MOTION TO VACATE WAS THE CORRECT VEHICLE BUT THE MOTION WAS PROPERLY DENIED ON THE MERITS (SECOND DEPT).
MOTION TO SUBSTITUTE THE ADMINISTRATRIX OF PLAINTIFF’S ESTATE FOR THE DECEASED PLAINTIFF PROPERLY DENIED BECAUSE THE DELAY IN SEEKING SUBSTITUTION WAS NOT EXPLAINED, THE MERITS WERE NOT DESCRIBED, AND THE EXISTENCE OF PREJUDICE WAS NOT REBUTTED, HOWEVER THE ACTION COULD NOT BE DISMISSED ABSENT THE SUBSTITUTION OF A LEGAL REPRESENTATIVE (SECOND DEPT).
HERE PLAINTIFF’S ATTORNEY OFFERED A DETAILED, CREDIBLE EXPLANATION OF THE LAW OFFICE FAILURE WHICH RESULTED IN MISSING THE DEADLINE FOR PROVIDING DISCOVERY, AS WELL AS THE DEMONSTRATION OF POTENTIALLY MERITORIOUS CAUSES OF ACTION; DEFENDANTS’ MOTIONS TO ENFORCE THE PRECLUSION ORDER SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
LANDLORD DID NOT SUBMIT SUFFICIENT PROOF THAT THE LEASE REQUIRED THE TENANT TO REMOVE ICE AND SNOW, THEREFORE THE OUT-OF-POSSESSION LANDLORD’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
DETERMINATION THAT PETITIONER USED MARIJUANA WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, DETERMINATION ANNULLED, RECORD EXPUNGED.
INSURED’S FAILURE TO TIMELY NOTIFY INSURER OF THE ACTION AGAINST THE INSURED RELIEVED THE INSURER OF ANY OBLIGATION TO SATISFY THE JUDGMENT AGAINST THE INSURED.
THE FEDERAL POSSESSION-OF-A-FIREARM-BY-A-FELON STATUTE IS NOT THE EQUIVALENT OF A NEW YORK FELONY BECAUSE THE FEDERAL STATUTE DOES NOT REQUIRE A SHOWING THE WEAPON WAS OPERABLE; DEFENDANT’S SECOND FELONY OFFENDER ADJUDICATION VACATED (SECOND DEPT).

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