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TIMOTHY MAKARA, Respondent, v. KELLY MAKARA, Appellant. KAREN KHAN, Nonparty Appellant; RAYLENE SHAYO, Nonparty Respondent.

Ordered that the appeal from the order dated June 10, 2008 is dismissed; and it is further,

Ordered that the orders dated April 8, 2008, December 3, 2008, and December 12, 2008 are affirmed insofar as appealed from; and it is further,

Ordered that the judgment dated August 8, 2008 is affirmed; and it is further,

Ordered that the respondents are awarded one bill of costs.

The appeal from the order dated June 10, 2008 must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment dated August 8, 2008 ( see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order dated June 10, 2008 are brought up for review and have been considered on the appeal from the judgment dated August 8, 2008 ( see CPLR 5501 [a] [1]).

A challenge to a stipulation of settlement which is incorporated but not merged into a judgment of divorce must be made by plenary action, and not by motion ( see Candela v Kiel, 33 AD3d 833, 834; Spataro v Spataro, 268 AD2d 467, 468; Matter of Scalabrini v Scalabrini, 242 AD2d 725, 726). Here, the defendant sought to set aside the stipulation of settlement by motion rather than by plenary action. Consequently, the Supreme Court properly denied her request for relief ( see Reiter v Reiter, 39 AD3d 616).

The remaining contentions of the defendant and nonparty Karen Khan either are not properly before this Court, refer to matter dehors the record, or are without merit.

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TIMOTHY MAKARA v. KELLY MAKARA
(Sep 8, 2009)