Emma Kershen, Appellant, v. Charles Hoffman, Defendant, and Ahmed Gaber, Respondent

Emma Kershen, Appellant, v Charles Hoffman, Defendant, and Ahmed Gaber, Respondent. [619 NYS2d 656] [MAJORITY] —In an action to recover damages for medical malpractice, etc., the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Kutner, J.), dated April 6, 1993, as denied her motion to vacate a stipulation discontinuing the action against the defendant Ahmed Gaber and for leave to serve the defendant Ahmed Gaber by publication. Ordered that the order is modified, on the law and as a matter of discretion, by deleting the provision thereof which denied that branch of the motion which was to vacate the stipulation of discontinuance and substituting therefor a provision granting that branch of the motion and vacating the stipulation of discontinuance; as so modified, the order is affirmed insofar as appealed from, with costs to the appellant. The record clearly established that the plaintiff’s attorney forwarded the stipulation of discontinuance, signed by the plaintiff, to the defendant Ahmed Gaber’s attorney on the express condition that the parties exchange releases. This condition was not met by the defendant Ahmed Gaber. Thus, the stipulation of discontinuance should have been vacated (see, Matter of Frutiger, 29 NY2d 143). We have reviewed the plaintiff’s remaining contentions and conclude that they are without merit. Bracken, J. P., Balletta, Ritter, Pizzuto and Florio, JJ., concur.