Opinion
December 22, 1997
Appeal from the Supreme Court, Suffolk County (Henry, J.).
Ordered that the judgment is reversed, on the law, with costs, the order dated February 25, 1997, is vacated, and the matter is remitted to the Supreme Court, Suffolk County, for further proceedings in accordance herewith.
During the pendency of this matrimonial action, the parties entered into a stipulation of settlement resolving the issues of equitable distribution, child support, and maintenance, among others. Before the judgment of divorce was entered, the wife moved to set aside the stipulation as being unconscionable and the result of fraud, undue influence, coercion, etc. By order dated February 25, 1997, the court denied the wife's motion, without prejudice, holding that the wife's remedy was to commence a plenary action. Thereafter, a judgment of divorce was entered incorporating by reference the terms of the parties' stipulation of settlement. On appeal, the wife argues that the court erred in not entertaining her motion on the merits. We agree and remit the matter for further proceedings.
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 a plenary action, but may be made by motion ( Teitelbaum Holdings v. Gold, 48 N.Y.2d 51, 56; see also, Alexander, Practice Commentaries, McKinney's Cons Laws of N.Y., Book 7B, CPLR C2104:3, at 766).
Rosenblatt, J. P., Ritter, Altman and Florio, JJ., concur.