Opinion
December 14, 1987
Appeal from the Supreme Court, Queens County (Zelman, J.).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the motion is denied in its entirety.
Contrary to the conclusion of the Supreme Court, the parties' stipulation of September 26, 1985 expressly provided for the discontinuance of the instant action for divorce brought by the plaintiff husband unless he placed the matter on the Inquest Calendar within six months of that date. It is undisputed that he failed to satisfy the condition and, therefore, in accordance with the terms of the stipulation, the action was terminated. Since the action was no longer pending, the court was without jurisdiction to entertain the plaintiff's application (see, Teitelbaum Holdings v Gold, 48 N.Y.2d 51; Urso v Panish, 94 A.D.2d 701). Any relief which the plaintiff seeks to obtain, either with regard to the parties' separation agreement or their marital status, must be obtained by way of a plenary action. Brown, J.P., Weinstein, Kooper and Sullivan, JJ., concur.