Order unanimously modified on the law and as modified affirmed with costs to defendant and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: We affirm that part of the order that denied plaintiff's motion to reopen the parties' stipulation of settlement for the reasons stated in the decision at Supreme Court.
Given the lack of merit of plaintiff's motion and also of plaintiff's appeal, the court should have granted defendant's cross motion for counsel fees on plaintiff's motion and we award defendant counsel fees on the appeal. We remit the matter to Supreme Court for a hearing to determine reasonable counsel fees for defendant both on the motion and on the appeal. (Appeals from Order of Supreme Court, Monroe County, Frazee, J. — Counsel Fees.)