June 14, 2013
CAMBRIDGE INTEGRATED SERVICES GROUP, INC., PLAINTIFF-APPELLANT,
BRIAN J. JOHNSON, DEFENDANT-RESPONDENT, AND KENNETH P. BERNAS, DEFENDANT.
Appeal from an order of the Supreme Court, Erie County (Paula L. Feroleto, J.), entered April 13, 2012. The order granted the motion of defendant Brian J. Johnson to compel plaintiff to comply with the release agreement entered into by the parties.
BARTH SULLIVAN BEHR, BUFFALO (LAURENCE D. BEHR OF COUNSEL), FOR PLAINTIFF-APPELLANT.
GROSS, SHUMAN, BRIZDLE & GILFILLAN, P.C., BUFFALO (KATHERINE M. LIEBNER OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the motion is denied.
Memorandum: Supreme Court erred in granting the motion of Brian J. Johnson (defendant) to compel plaintiff to comply with the release agreement between plaintiff and defendants. Defendant brought his motion after the related third-party action was settled and an unconditional stipulation of discontinuation as to him with respect to this action was signed by the attorneys for plaintiff and defendant and filed. Although a trial court has the power "to exercise supervisory control over all phases of pending actions and proceedings" (Teitelbaum Holdings v Gold, 48 N.Y.2d 51, 54), it lacks jurisdiction to entertain a motion after the action has been "unequivocally terminated... [by the execution of] an express, unconditional stipulation of discontinuance" (id. at 56; see Yonkers Fur Dressing Co. v Royal Ins. Co., 247 NY 435, 444; DiBella v Martz, 58 A.D.3d 935, 937; Germanovich v Bethlehem Steel Corp. [appeal No. 1], 270 A.D.2d 863, 863).