THE MOTION SEEKING A CIVIL CONTEMPT DETERMINATION COULD NOT BE HEARD BECAUSE THE UNDERLYING SUIT HAD BEEN SETTLED BY STIPULATION WITH PREJUDICE, STRIPPING SUPREME COURT OF SUBJECT MATTER JURISDICTION; A SUBJECT-MATTER-JURISDICTION ISSUE CAN BE RAISED FOR THE FIRST TIME ON APPEAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the civil contempt action should have been dismissed because the underlying lawsuit had been settled with prejudice by stipulation. Because the issue relates to a court’s subject matter jurisdiction it can be raised on appeal at any time. The underlying lawsuit was a property dispute and concerned the location of a fence. After the stipulation settling the suit, defendants refused to sign a fence location agreement. Because the underlying suit was discontinued with prejudice the plaintiffs only option is to commence a plenary action:

… [T]he defendants’ assertion, raised for the first time on appeal, that the Supreme Court lacked jurisdiction to entertain the plaintiffs’ motion, is properly before this Court, as a defect in subject matter jurisdiction may be raised at any time … .

“A motion must be addressed to a pending action” … , and a court lacks jurisdiction to entertain a motion after the action has been “‘unequivocally terminated . . . [by the execution of] an express, unconditional stipulation of discontinuance'” … , “or actual entry of judgment in accordance with the terms of the settlement” … .

Here, the Supreme Court lacked jurisdiction to entertain that branch of the plaintiffs’ motion which was to hold the defendants in civil contempt, since the action was unconditionally discontinued with prejudice by the parties’ stipulation, as memorialized in the settlement order … . Thus, the relief requested by the plaintiffs was not available by way of a motion, and could only be obtained by commencing a plenary action … . Riccio v Kukaj, 2023 NY Slip Op 04785, Second Dept 9-27-23

Practice Point: A stipulation settling a suit with prejudice strips the court of subject matter jurisdiction. Therefore a subsequent motion cannot be heard by the court and any further proceedings require a plenary action. A subject-matter-jurisdiction issue can be raised for the first time on appeal.