| Galasso, Langione & Botter, LLP v Liotti |
| 2015 NY Slip Op 02725 [127 AD3d 688] |
| April 1, 2015 |
| Appellate Division, Second Department |
[*1]
| Galasso, Langione & Botter, LLP, et al.,Respondents, v Thomas F. Liotti, Defendant/Third-Party Plaintiff-Appellant.Frederick K. Brewington, Third-PartyDefendant-Respondent. |
Thomas F. Liotti, Garden City, N.Y., defendant/third-party plaintiff-appellant prose.
Langione, Catterson & LoFrumento, LLP, Garden City, N.Y. (Jeffrey L.Catterson of counsel), for plaintiffs-respondents and third-partydefendant-respondent.
In an action, inter alia, to recover damages for defamation, the defendant/third-partyplaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court,Nassau County (Cozzens, Jr., J.), dated January 9, 2013, which denied his motion, ineffect, to vacate a stipulation of settlement and two judgments imposing sanctions againsthim.
Ordered that the order is affirmed, with one bill of costs.
The Supreme Court properly denied that branch of the appellant's motion which was,in effect, to vacate a stipulation of settlement entered into between the parties. Since, bystipulation, the underlying action was discontinued with prejudice, no action existed inwhich to file a motion, in effect, to vacate the stipulation of settlement. Rather, one whowishes to set aside a settlement made in an action that has been discontinued mustproceed by plenary action (see D'Amico v Nuzzo, 194 AD2d 761 [1993]; cf.Teitelbaum Holdings v Gold, 48 NY2d 51 [1979]). In any event, the appellant failedto demonstrate a basis for vacating the stipulation of settlement (see Yan Ping Liang v Wei XuanGao, 118 AD3d 696 [2014]).
The Supreme Court also properly denied that branch of the appellant's motion whichwas, in effect, to vacate two judgments imposing sanctions against him, made on thegrounds of newly-discovered evidence or fraud. The appellant failed to present eithernewly-discovered evidence which, if introduced at trial, would have produced a differentresult (see CPLR 5015 [a] [2]), or any evidence of fraud on the part of theplaintiffs or the third-party defendant (see CPLR 5015 [a] [3]). Leventhal, J.P.,Hall, Maltese and Barros, JJ., concur.