Christopher v Christopher

Christopher v Christopher 2007 NY Slip Op 05062 [41 AD3d 1305] June 8, 2007 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 15, 2007

Patricia Christopher, Appellant, v Samuel Christopher, Respondent.

—[*1] Law Office of Evelyne A. O'Sullivan, Amherst (Evelyne A. O'Sullivan of counsel), for plaintiff-appellant.

Appeal from an order of the Supreme Court, Erie County (John F. O'Donnell, J.), entered February 10, 2006. The order denied plaintiff's motion to vacate an order entered October 21, 2003.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted, the order entered October 21, 2003 is vacated and the matter is remitted to Supreme Court, Erie County, for further proceedings in accordance with the following memorandum: Supreme Court erred in denying plaintiff's motion seeking to vacate the "Stipulated Order" issued by the court and entered October 21, 2003. Plaintiff established that neither she nor her attorney consented to the terms of the "Stipulated Order" (see CPLR 2104; Stern v Stern, 273 AD2d 298 [2000]; Matter of Hicks v Schoetz, 261 AD2d 944 [1999]). We therefore reverse the order, grant plaintiff's motion, vacate the "Stipulated Order" and remit the matter to Supreme Court to determine plaintiff's underlying motion to enforce certain terms of the divorce judgment (see Stern, 273 AD2d at 298-299; Menzel v Enzien, 252 AD2d 726, 727 [1998]). Plaintiff's request for legal fees should be addressed to the trial court (see O'Connor v O'Connor, 207 AD2d 334 [1994]). Finally, we note that there was no basis for converting plaintiff's vacatur motion into one for leave to renew (cf. 219 E. 7th St. Hous. Dev. Fund Corp. v 324 E. 8th St. Hous. Dev. Fund Corp., 40 AD3d 293 [2007]). Present—Hurlbutt, J.P., Martoche, Smith, Fahey and Green, JJ.