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Sontag v. Sontag

66 N.Y.2d 554 Court N.Y. Decision date 1986-01-16 English

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p. 554
Lorraine Sontag, Appellant, v Mark Sontag, Respondent.
Submitted December 9, 1985;
decided January 16, 1986
POINTS OF COUNSEL
Robert M. Calica for appellant.
No enforceable stipulation was reached because of plaintiffs refusal to consent, because of its incompleteness of terms, and because it was conditioned upon the parties’ entry into a formal, comprehensive written agreement. (Matter of Frutiger, 29 NY2d 143 ; Hallock v State of New York, 64 NY2d 224 ; Teitelbaum Holdings v Gold, 48 NY2d 51 ; Kleinberg v Ambassador Assoc., 103 AD2d 347 , 64 NY2d 733 ; Matter of Dolgin Eldert Corp., 31 NY2d 1 ; Medallion Chem. Corp. v Chemical Resources, 58 AD2d 808 ; Scheck v Francis, 26 NY2d 466 ; Matter of Municipal Consultants & Publishers v Town of Ramapo, 47 NY2d 144 .)
Steven W. Wolfe for respondent.
I. The stipulation is binding and enforceable since it complies with CPLR 2104. (Owens v Lombardi, 41 AD2d 438 ; Bernstein v Salvatore, 62 AD2d 945 ;
p. 555
Hub Press v Sun-Ray Light. Co., 100 Misc 2d 1055 ; Fuchs v Fuchs, 65 AD2d 595 ; Golden Arrow Films v Standard Club, 38 AD2d 813 ; Tenwood Assoc. v United States Fire Ins. Co., 104 Misc 2d 467 ; Neiman v Springer, 89 AD2d 922 ; Matter of Dolgin Eldert Corp., 31 NY2d 1 ; Scheck v Francis, 26 NY2d 466 ; APS Food Sys. v Ward Foods, 70 AD2d 483 .) II. Appellant has not advanced a satisfactory reason for vacating the stipulation. (Term Indus. v Essbee Estates, 88 AD2d 823 ; Barzack Realty Co. v Legatti & Son, 114 Misc 2d 245 ; Allard v Allard, 27 AD2d 776 ; Kolodziej v Kolodziej, 54 AD2d 228 ; Matter of Narsu v Polsinelli, 74 AD2d 952 ; Veith v ABC Paving Co., 58 AD2d 257 ; Harrington v Harrington, 103 AD2d 356 ; Raphael v Booth Mem. Hosp., 67 AD2d 702 .)

OPINION OF THE COURT

In this matrimonial action, plaintiff seeks leave to appeal from an order of the Appellate Division which unanimously affirmed an order of Supreme Court, Nassau County, which after granting defendant husband’s motion to enforce a stipulation entered into by the parties and incorporating the terms of the stipulation into the order, ordered that "all remaining issues in this litigation are hereby severed for the purposes of trial.”

An order which completely disposes of the claims of one party but leaves pending issues as to another party is final as to the former but not the latter (Cohen and Karger, Powers of the New York Court of Appeals § 20 [rev ed]). An order which finally adjudicates a cause of action which is unrelated to, and independent of, another cause of action in a complaint or counterclaim is final as to the former but not the latter. However, an order such as that in the present case which decides some issues of relief but leaves pending between the same parties other such issues would, in effect, divide a single cause of action and is, therefore, nonfinal (Le Mistral v Columbia Broadcasting Sys., 61 AD2d 491 , appeal dismissed 46 NY2d 940 ; Cohen and Karger, op. cit. § 21, at 92).

The motion for leave to appeal should, therefore, be dismissed for nonfinality.

Judge Hancock, Jr., taking no part.

Motion for leave to appeal dismissed, without costs.

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