Opinion
June 29, 1998
Appeal from the Supreme Court, Nassau County (Goldstein, J.).
Ordered that the order is modified, on the law, by deleting the words "without prejudice to defendant's right to bring a plenary action to rescind the stipulation"; as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiff.
Where, as here, an action has not been terminated, a challenge to a stipulation entered into during the course of the litigation need not be made by commencing a plenary action, but may be made by motion ( see, Zeppelin v. Zeppelin, 245 A.D.2d 504; see also, Teitelbaum Holdings v. Gold, 48 N.Y.2d 51, 56). Accordingly, the Supreme Court erred in concluding that the defendant could challenge the stipulation only by commencing a plenary action.
However, upon review of the merits of the defendant's motion, we find that he failed to demonstrate entitlement to vacatur of the stipulation ( see, Lazich v. Lazich, 233 A.D.2d 425; Cavalli v. Cavalli, 226 A.D.2d 666; Ferraiulo v. Ferraiulo, 221 A.D.2d 412; Morris v. Kavaky, 210 A.D.2d 383).
Ritter, J.P., Thompson, Altman and McGinity, JJ., concur.