Fineberg v. Fineberg

—Order unanimously reversed on the law without costs, and defendant’s motion denied, in accordance with the following memorandum: Plaintiff commenced an action to vacate certain oral and written stipulations of settlement and to vacate the divorce decree into which the stipulations were 932 incorporated, but not merged. Special Term erred in granting defendant’s motion for summary judgment because issue had not been joined (CPLR 3212 [a]; Woodworth v Woodworth, 135 AD2d 1143; Republic Natl. Bank v Luis Winston, Inc., 107 AD2d 581, 582; Miller v Nationwide Mut. Fire Ins. Co., 92 AD2d 723, 724; cf., Duell v Hancock, 83 AD2d 762, 763). Our determination is without prejudice to defendant’s renewal of the motion after service of an answer. (Appeal from order of Supreme Court, Onondaga County, Miller, J.—summary judgment.) Present—Doerr, J. P., Green, Pine, Balio and Davis, JJ.