ALCALA v. BRACE (2025)

ORDERED that the order is affirmed, without costs.

In February 2021, plaintiff commenced an action alleging that defendant, who was hired by plaintiff's apartment building's management company, Landau Management, to paint plaintiff's apartment, broke plaintiff's bureau. That action was dismissed and plaintiff commenced the instant small claims action in May 2023 seeking to recover plaintiff's costs in the first action, as he was forced to serve three separate summonses in the first action, after defendant had allegedly lied about his address and claimed that he had never been served.

A notice of discontinuance of the instant small claims action was signed by plaintiff and filed with the court on August 25, 2023. In it, plaintiff affirmed that the parties had reached a settlement wherein Landau Management would give plaintiff a credit towards his rent and plaintiff would file a discontinuance. There is no dispute that Landau Management credited plaintiff's rent. Plaintiff thereafter moved to restore the action to the calendar on the ground that defendant had failed to comply with the settlement. In an order entered May 14, 2024, the Civil Court (Javier Ortiz, J.) denied the motion.

A motion must be addressed to a pending action and a court lacks jurisdiction to entertain a motion after the action has been “ ‘unequivocally terminated ․ [by the execution of] an express, unconditional stipulation of discontinuance’ ” (Beneficial Homeowner Serv. Corp. v Francis, 209 AD3d 957, 959 [2022], quoting Cambridge Integrated Servs. Group, Inc. v Johnson, 107 AD3d 1588, 1589 [2013] [internal quotation marks omitted]; see Teitelbaum Holdings v Gold, 48 NY2d 51 [1979]). Consequently, the Civil Court here lacked jurisdiction to entertain plaintiff's motion to restore the action to the calendar based on defendant's alleged breach of the settlement agreement, as the action had been discontinued (see Riccio v Kukaj, 219 AD3d 1540 [2023]; Deutsche Bank Natl. Trust Co. v Goltz, 200 AD3d 646 [2021]). Thus, the relief requested by plaintiff was not available by way of a motion, and could only be sought through the commencement of a plenary action (see Teitelbaum Holdings v Gold, 48 NY2d 51).

Accordingly, the order is affirmed.

TOUSSAINT, P.J., and MUNDY, J. concur. OTTLEY, J., taking no part