Malvin v. Schwartz

48 N.Y.2d 693 (1979)

A. Mal Malvin, Appellant,
v.
Marsha Schwartz et al., Respondents, et al., Defendants.

Court of Appeals of the State of New York.

Argued September 4, 1979. Decided October 16, 1979.

Stanford A. Schwartz for appellant.

Jon Emanuel for respondents.

Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur in memorandum.

MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs.

Since the parties had not executed an express stipulation of discontinuance of the action, or entered judgment in accordance with their settlement agreement, the action had not terminated. Thus, the settlement was amenable to enforcement by motion (Teitelbaum Holdings v Gold, 48 N.Y.2d 51). Furthermore, insofar as defendant was relieved from adherence to the letter of the settlement, it cannot be said that there was an abuse of discretion as a matter of law (see, e.g., Barry v Mutual Life Ins. Co., 53 N.Y. 536, 540).

Order affirmed.