QUESTION
Can a party file a motion to dismiss with stipulation of settlement in effect?
Asked on Jun 10th, 2019 on Civil Litigation - New York
More details to this question:
1. My case was settled by stipulation of settlement. The opposing party attorney told me it would change from active to disposed status but that never happened. Is that supposed to happen? 2. In any case, it has remained active. I never waived my right to bring motions in future when signing stip. As long as the case is still active, is a party barred from filing motions with a stipulation in effect if he did not waive his right to do so? I want to motion to dismiss on the ground that the party asserting the cause of action has not legal capacity to sue pursuant to CPLR 3211 and I did set this forth as an affirmative defense in my answer. I realize now I should have motioned to dismiss instead of answering when service of the responsive pleading was required but didn't know to do so but the right is not waived according to CPLR 3211(e). Given case is still active status and pre-trial, any reason I would be barred from filing my motion to dismiss now that stip is in place?
2 ANSWERS
1 Award
A stipulation is like an order. You are bound, and cannot move to dismiss now. As to the clerk's markings, those are not dispositive of anything.
Answered on Jun 18th, 2019 at 11:51 AM
Automobile Accidents Attorney serving New York, NY
Partner at
Kramer, Dunleavy & Ratchik, PLLC
4 Awards
Your case is probably still marked "active" because no one has filed a stipulation of discontinuance with the clerk's office (and paid the $35 fee to do so). Having settled the case, there is really no benefit to filing a motion to dismiss - it's moot by virtue of the settlement. Provided you've fulfilled the terms of the settlement, you should have the other side execute a stipulation of discontinuance and file it with the clerk's office.
Answered on Jun 17th, 2019 at 10:37 AM