French v. Quinn

• Decision Date: 09 October 1997
• Citation: 663 N.Y.S.2d 127,243 A.D.2d 792
• Parties: , 1997 N.Y. Slip Op. 8324 Douglas FRENCH et al., Individually and as Parents of Joseph French, an Infant, Respondents, v. John QUINN et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 127

663 N.Y.S.2d 127

243 A.D.2d 792, 1997 N.Y. Slip Op. 8324

Douglas FRENCH et al., Individually and as Parents of Joseph French, an Infant, Respondents, v. John QUINN et al., Appellants.

Supreme Court, Appellate Division,

Third Department.

Oct. 9, 1997.

Robert J. Krzys, Amsterdam, for appellants.

Vincent W. Versaci, Schenectady, for respondents.

Before CARDONA, P.J., and MERCURE, WHITE, PETERS and CARPINELLO, JJ.

CARPINELLO, Justice.

Appeals (1) from an order of the Supreme Court (Best, J.), entered April 4, 1996 in Montgomery County, which, inter alia, enforced a stipulation of settlement entered into between the parties, and (2) from the judgment entered thereon.

The parties are owners of adjoining properties in the City of Amsterdam, Montgomery County. As a result of allegations that defendants' automobile repair business caused noxious fumes to emanate onto their property causing personal and property damages, plaintiffs commenced an action sounding in, inter alia, negligence, trespass and nuisance against defendants. Prior to the trial, the parties entered into a stipulation of settlement on the record in open court (see, CPLR 2104). Referencing a June 1991 survey prepared by C.T. Male Associates, the parties agreed that the shaded triangular parcel of land depicted on the survey "will be owned by these parties with the [p]laintiffs * * * owning the northerly one-half of that triangle and the [d]efendant[s] * * * own[ing] the southerly one-half of the triangle", with defendants' attorney specifically noting that the line of demarcation was to run from the apex of the triangle to an equal division line on Clizbe Avenue. Pursuant to the stipulation, plaintiffs' surveyor would physically divide the Clizbe Avenue frontage by placing a stake in the middle of it and then prepare a legal description of the resultant two parcels. In the event that a disagreement "as to the location of that survey stake" arose, defendants' attorney was to notify plaintiffs' attorney "immediately" to resolve the dispute. It was agreed that the legal descriptions were subject to approval by defendants' surveyor and that, upon such agreement, the parties would execute quitclaim deeds and general releases to each other. Defendants also agreed to install a six-foot wooden fence on the property and pay plaintiffs' attorney $1,500 in legal fees.

In April 1995, approximately six months after the stipulation of settlement, plaintiffs moved to compel defendants to comply with its terms. In May 1995, plaintiffs sought to hold defendants in contempt for their willful failure to comply with the stipulation and for a judgment based on the stipulation. Withholding consideration of the contempt application, Supreme Court ordered defendants to comply with the settlement and entered a judgment in favor of plaintiffs' counsel for $1,500, prompting this appeal.

We affirm. It is beyond cavil that stipulations of settlement will not be lightly cast aside particularly where, as here, they are made in open court (see, Hallock v. State of New York, 64 N.Y.2d 224, 230, 485 N.Y.S.2d 510, 474 N.E.2d 1178; Matter of Dolgin Eldert Corp., 31 N.Y.2d 1, 10, 334 N.Y.S.2d 833, 286 N.E.2d 228; McClain Realty v. Rivers, 144 A.D.2d 216, 217, 534 N.Y.S.2d 530, lv. dismissed 73 N.Y.2d 995, 540 N.Y.S.2d 1006, 538 N.E.2d 358). Only in the event of fraud, collusion, mistake or accident will a party be relieved from the consequences of an in-court stipulation (see, Robison v. Borelli, 239 A.D.2d 656, 657 N.Y.S.2d 783; Javarone v. Pallone, 234 A.D.2d 814, 651 N.Y.S.2d 664, appeals dismissed 89 N.Y.2d 1030, 658 N.Y.S.2d 245, 680 N.E.2d 619, 90 N.Y.2d 884, 661 N.Y.S.2d 827, 684 N.E.2d 276). Defendants have wholly failed to set forth sufficient grounds to set aside the stipulation of settlement; accordingly, they are bound by it (see, Robison v. Borelli, supra).

It is undisputed that plaintiffs had a survey prepared by Michael Contino one week after the stipulation of settlement in which the division of the parcel is clearly marked. It is also undisputed that plaintiffs' coun...