ADAMS v. GEORGE T. CANTRELLO, INC

Order of the Supreme Court, Rockland County, dated December 16, 1966, reversed, on the law, without costs, and respondent's motion to settle a stipulation which had been made previously denied, without prejudice to the institution of a plenary suit by respondent, if it be so advised. No questions of fact were considered on this appeal. A motion must be addressed to a pending action ( Matter of Jetter, 78 N.Y. 601, 605). In the instant case, the action was effectively terminated by the foreclosing of the mortgages. Therefore, respondent's sole remedy was to bring a plenary suit rather than to seek an order to settle the stipulation ( Yonkers Fur Dressing Co. v. Royal Ins. Co., 247 N.Y. 435; American Progressive Health Ins. Co. of N Y v. Chartier, 6 A.D.2d 579; see, 2 Weinstein-Korn-Miller, N Y Civ. Prac., par. 2104.06). Christ, Acting P.J., Brennan, Rabin, Hopkins and Munder, JJ., concur.