Opinion
October 5, 1998
Appeal from the Supreme Court, Suffolk County (Costello, J.).
Ordered that the order dated June 6, 1997, is reversed, with costs, the plaintiffs motion to "vacate and rescind" the order dated January 22, 1996, is denied, the order dated January 22, 1996, is reinstated, and the matter is remitted for a hearing to determine the defendant's application to set aside the judgment of divorce and the stipulation of settlement.
This record does not establish that the parties agreed that their stipulation of settlement was to survive entry of the judgment ( cf., Nicoletti v. Nicoletti, 43 A.D.2d 699; see also, Cooper v. Cooper, 179 A.D.2d 1035, 1036). Contrary to the conclusion of the Supreme Court, we do not find that the defendant is relegated to a plenary action to set aside the stipulation and the judgment entered thereon ( cf., Riley v. Riley, 179 A.D.2d 750). The ordered hearing should go forward to resolve that question, among others, such as the defendant's unresolved motion, inter alia, to vacate the judgment of divorce on the ground that it was untimely submitted to the court for its signature ( see, 22 NYCRR 202.48).
Mangano, P.J., Bracken, Krausman and McGinity, JJ., concur.