Order unanimously modified on the law and as modified affirmed with costs to defendant and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: We affirm that part of the order that denied plaintiffs motion to reopen the parties’ stipulation of settlement for the reasons stated in the decision at Supreme Court.
Given the lack of merit of plaintiffs motion and also of plaintiffs appeal, the court should have granted defendant’s cross motion for counsel fees on plaintiffs motion and we award defendant counsel fees on the appeal. We remit the matter to Supreme Court for a hearing to determine reasonable counsel fees for defendant both on the motion and on the appeal. (Appeals from Order of Supreme Court, Monroe County, Frazee, J. — Counsel Fees.)