Haves v. Longwood Associates

In an action by a receiver in foreclosure to set aside a stipulation of settlement and the judgment entered thereon, the plaintiff appeals from an order of the Supreme Court, Nassau County, dated May 26, 1977, which dismissed the complaint for failure to state a cause of action. Order reversed, with $50 costs and disbursements, and motion denied. The time within which defendants may serve their answer is extended until 20 days after entry of the order to be made hereon. The dismissal of the complaint was improper. Each of the three causes of action alleges facts and legal theories which might result in recovery. Therefore the plaintiff should not be summarily precluded from presenting his case (see Curren v O’Connor, 304 NY 515). In addition, dismissal of the complaint was contrary to the import of our prior decision in Matter of Longwood Assoc, v Board of Assessors of Vil. of Massapequa Park (58 AD2d 581), where we affirmed Special Term’s determination that the stipulation of settlement, discontinuing with prejudice the tax certiorari proceeding for the 1974/1975 tax year, and the judgment entered thereon, could not be set aside by motion because questions of fact which required a plenary action were involved. Damiani, J. P., Hawkins, Suozzi and O’Connor, JJ., concur.