What That Stipulation Actually Means
A stipulation to answer or respond to a complaint covers a motion to dismiss as well as any other possible "response." So the pro-se plaintiff found in Bob v Cohen 2013 NY Slip Op 02499 [105 AD3d 530] April 16, 2013 Appellate Division, First Department. After defendants were permitted to move to dismiss, the AD then affirmed dismissal because the Workers' Compensation Board awarded legal fees to the law firm. Under these circumstances, case over.
"Defendants' motion to dismiss was not untimely, as found by the motion court, since the parties had stipulated, both orally and in writing, to extend defendants' time to "respond" to the complaint to January 31, 2011, and defendants had served and filed their motion to dismiss by that date (see DiIorio v Antonelli, 240 AD2d 537 [2d Dept 1997]; Del Valle v Office of Dist. Attorney of Bronx County, 215 AD2d 258 [1st Dept 1995]; CPLR 320 [a]; 3211 [e]; compare McGee v Dunn, 75 AD3d 624, 625 [2d Dept 2010]). On the merits, defendants were entitled to dismissal of this legal malpractice action commenced by their former client on res judicata grounds. The Workers' Compensation Board's award of legal fees to defendants, imposed as a lien against the ultimate award of compensation to plaintiff (see Workers' Compensation Law § 24), precludes plaintiff's present claim that defendants represented him negligently, a claim that could have been raised in opposition to defendants' fee application (see e.g. Lusk v Weinstein, 85 AD3d 445 [1st Dept 2011], lv denied 17 NY3d 709 ; Zito v Fischbein Badillo Wagner Harding, 80 AD3d 520 [1st Dept 2011]). "