Tovolo Restaurant, Inc. v. Barbuto's Ristorante, Ltd. , 47 A.D.2d 640 ( 1975 )

Appeal by plaintiff from an order of the Supreme Court, Nassau County, entered September 4, 1974, which granted defendants’ motion to permit their attorney to turn over to defendants certain money held by him in escrow and denied plaintiff’s cross motion “ for an order re-settling ” a previous order which had directed defendant Robert Barbuto to appear for examination before trial. Order reversed, without costs, defendants’ motion denied and plaintiff’s cross motion granted. The examination before trial of defendant Robert Barbuto shall proceed at the place directed in the order dated May 17, 1974 at a time to be specified in a written notice of not less than 10 days, to be given by plaintiff, or at such other time and place as may be agreed by the parties. We disagree with Special Term’s denial of plaintiff’s cross motion based on its finding that the parties had entered into a stipulation settling the action. Based on the record before us, we find that there was never a valid stipulation of settlement in effect and therefore there is still a viable action pending. In the light of this finding we believe that .the funds being held in escrow should not be removed until there has been a determination of the action. Hopkins, Acting P. J., Martuscello, Brennan, Benjamin and Shapiro, JJ., concur.