| Palmieri v Town of Babylon |
| 2011 NY Slip Op 06254 [87 AD3d 625] |
| August 16, 2011 |
| Appellate Division, Second Department |
| Paul Palmieri, Respondent, v Town of Babylon,Appellant. |
—[*1] Eric M. Cahalan, P.C., Huntington, N.Y., for respondent.
In an action, inter alia, to recover damages for trespass, the defendant appeals, as limited byits brief, from so much of an order of the Supreme Court, Suffolk County (Cohalan, J.), datedAugust 6, 2010, as denied those branches of its motion which were pursuant to CPLR 3211 (a)(5) and (7) to dismiss the complaint and, in effect, denied that branch of its motion which was inthe alternative, in effect, for summary judgment dismissing the complaint pursuant to CPLR3211 (c) and 3212.
Ordered that the order is affirmed insofar as appealed from, with costs.
On July 17, 2004, the parties settled this action by entering into a so-ordered stipulation ofsettlement (hereinafter the stipulation). In a previous appeal from an order vacating thestipulation, this Court reversed the order and denied the motion of the defendant Town ofBabylon to vacate the stipulation and to restore the action to the calendar (see Palmieri v Town of Babylon, 56AD3d 740, 741 [2008]).
Rather than comply with its obligations under the stipulation, after the prior appeal wasdecided, the Town filed a motion in the Supreme Court, inter alia, pursuant to CPLR 3211 (a) (5)and (7) to dismiss the complaint as time-barred and for failure to state a cause of action,alternatively requesting that the court treat the motion as one for summary judgment dismissingthe complaint. The Town contended that the complaint should be dismissed because the plaintifffailed to include the allegations required by General Municipal Law § 50-i (1) (b), that 30days have elapsed since the service of a notice of claim pursuant to General Municipal Law§ 50-e and adjustment or payment of the claim has been neglected or refused. Since thecomplaint did not contain these allegations, the Town further contended that the action wastime-barred pursuant to General Municipal Law § 50-i (1) (c), as the plaintiff has neverfiled a statutorily compliant pleading. It is not disputed, however, that the plaintiff did serve theTown with a timely notice of claim pursuant to General Municipal Law § 50-e more than30 days before the commencement of the action and the claim was [*2]not adjusted or paid prior to the commencement of the action. TheSupreme Court, relying upon the order of this Court in the prior appeal, denied the Town'smotion to dismiss, stating "there is no action before the Court upon which relief may be granted."
Although we denied the Town's motion to restore the action to the active calendar of theSupreme Court in the prior appeal, the action has not been discontinued by stipulation or courtorder (see CPLR 3217). "A settlement agreement entered into by parties to a lawsuit doesnot terminate the action unless there has been an express stipulation of discontinuance or actualentry of judgment in accordance with the terms of the settlement. Absent such termination, thecourt retains its supervisory power over the action and may lend aid to a party who had movedfor enforcement of the settlement" (Teitelbaum Holdings v Gold, 48 NY2d 51, 53[1979]; see Church Extension Plan vHarvest Assembly of God, 79 AD3d 787, 788-789 [2010]).
In support of those branches of its motion which were to dismiss the complaint, or, in effect,for summary judgment dismissing the complaint, the Town failed to establish any legal basis forthe Supreme Court to ignore the parties' stipulation, which settled the dispute between them asalleged in the complaint. The pleading requirements of General Municipal Law § 50-i are"procedural rather than jurisdictional" (Matter of Shannon v Westchester County Health Care Corp., 76 AD3d680, 682 [2010]; see Commissioners of State Ins. Fund v Board of Educ., ArlingtonCent. School Dist. No. 1, 301 AD2d 555, 556 [2003]). Parties are free to chart their ownprocedural course by stipulation (see Kass v Kass, 91 NY2d 554, 568 n 5 [1998];Cullen v Naples, 31 NY2d 818, 820 [1972]; Morrison v Budget Rent A Car Sys.,230 AD2d 253, 257 [1997]). Under the circumstances here, by entering into the stipulation, theTown waived its defenses based upon the procedural defect in the complaint due to the plaintiff'sfailure to include the allegations required by General Municipal Law § 50-i (cf. Option One Mtge. Corp. v Daddi,60 AD3d 920 [2009]; Sidney B.Bowne & Son, LLP v Parr Dev. Corp., 13 AD3d 607, 607-608 [2004]; Lomando vDuncan, 257 AD2d 649 [1999]). A so-ordered stipulation is a contract between the partiesand binding upon them (see Alshawhativ Zandani, 82 AD3d 805, 807 [2011]; Aivaliotis v Continental Broker-Dealer Corp., 30 AD3d 446[2006]; Nishman v De Marco, 76 AD2d 360, 366 [1980]). Accordingly, the Town wasnot entitled to dismissal of, or summary judgment dismissing, the complaint in this action, whichwas settled by the parties' stipulation.
On the record presented, we decline to impose sanctions against the Town pursuant to 22NYCRR 130-1.1 as requested by the plaintiff. The parties' remaining contentions are withoutmerit. Angiolillo, J.P., Dickerson, Hall and Roman, JJ., concur.