Opinion
January 29, 1988
Appeal from the Supreme Court, Onondaga County, Miller, J.
Present — Doerr, J.P., Green, Pine, Balio and Davis, JJ.
Order unanimously reversed on the law without costs, and defendant's motion denied, in accordance with the following memorandum: Plaintiff commenced an action to vacate certain oral and written stipulations of settlement and to vacate the divorce decree into which the stipulations were incorporated, but not merged. Special Term erred in granting defendant's motion for summary judgment because issue had not been joined (CPLR 3212 [a]; Woodworth v Woodworth, 135 A.D.2d 1143; Republic Natl. Bank v Luis Winston, Inc., 107 A.D.2d 581, 582; Miller v Nationwide Mut. Fire Ins. Co., 92 A.D.2d 723, 724; cf., Duell v Hancock, 83 A.D.2d 762, 763). Our determination is without prejudice to defendant's renewal of the motion after service of an answer.