Kane, J. P., and Levine, J., dissent and vote to reverse in a memorandum by Levine, J. Levine, J. (dissenting). We respectfully dissent. The instrument dated October 2, 1987, which defendant seeks to annul for fraud and plaintiff seeks to enforce, was executed during the pendency of the divorce action between the parties, is entitled a stipulation and recites that "the parties intend to settle said pending suit under the terms and conditions hereafter set forth in this stipulation of settlement” (emphasis supplied). The instrument authorizes plaintiff to obtain a default divorce, subject to defendant’s right to receive advance notice and copies of proposed findings of fact and conclusions of law and the proposed judgment. It in fact resolved all disputed issues in the divorce, including those regarding equitable distribution and maintenance.
There does not seem to be any question but that the divorce action has not yet been fully and formally concluded. Therefore, in our view, the stipulation, despite its having many of the earmarks of a separation agreement and the fact that a number of the parties’ obligations thereunder are still executory, is subject to vacatur or enforcement by motion in the still pending action, without the requirement of a plenary suit for such forms of relief. This clearly is the lesson of Teitelbaum Holdings v Gold (48 NY2d 51). It has been applied as to matrimonial litigation stipulations (Handel v Handel, 94 AD2d 696), including those involving executory obligations for disposing of spousal property, which is at the heart of the parties’ dispute here (see, Bezio v Bezio, 79 AD2d 837, lv denied 53 NY2d 601). An evidentiary hearing before Supreme Court is available to resolve any contested issues of fact (see, *650Teitelbaum Holdings v Gold, supra, at 55, n 2; Consolidated Rail Corp. v Industrial Scrap Processing Corp., 97 AD2d 532).
Consequently, we would reverse and remit to Supreme Court for further proceedings to hear and resolve the parties’ cross applications and then, one would hope, finally dispose of this unduly protracted matrimonial litigation.