In re Ruth S.
| Decision Date | 25 February 2015 |
| Citation | 2015 N.Y. Slip Op. 01645,125 A.D.3d 978,5 N.Y.S.3d 135 |
| Parties | In the Matter of RUTH S. (Anonymous). Integral Guardianship Services, et al., respondents; Sharon S. (Anonymous), et al., appellants. |
| Court | New York Supreme Court — Appellate Division |
Stein & Ott, LLP (Pollack, Pollack, Isaac & DeCicco, New York, N.Y. [Brian J. Isaac and Harris J. Zakarin ], of counsel), for appellants.
Thomas J. Pellegrino, LLC, Mamaroneck, N.Y., for respondent Integral Guardianship Services.
Robinson McDonald & Canna, LLP, New York, N.Y. (Jayne S. Robinson, K. Ann McDonald, and Brett G. Canna of counsel), for respondent Bonnie S.
PETER B. SKELOS, J.P., CHERYL E. CHAMBERS, COLLEEN D. DUFFY, and HECTOR D. LaSALLE, JJ.
In a consolidated guardianship proceeding pursuant to Mental Hygiene Law article 81, and action, inter alia, to recover damages for fraud, Sharon S. and Judith N. appeal (1), as limited by their brief, from stated portions of an order of the Supreme Court, Kings County (Baily–Schiffman, J.), dated May 14, 2012, which, inter alia, denied their motion to sever the fraud causes of action asserted on behalf of their father's estate and to return those causes of action to New York County for trial, granted that branch of Bonnie S.'s motion which was to recover from the appellants her reasonable attorney's fees in the fraud/forensic tracing portion of the litigation, granted certain other applications for fees, and granted that branch of Bonnie S.'s motion which was to impose a sanction upon them pursuant to 22 NYCRR 130–1.1, and (2) a judgment of the same court dated May 23, 2012, which, upon the order, is in favor of the incapacitated person and against them in the principal sum of $418,090.83.
ORDERED that one bill of costs is awarded to the respondents.
The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the consolidated proceeding and action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment.
“Stipulations of settlement are judicially favored, will not lightly be set aside, and ‘are to be enforced with rigor and without a searching examination into their substance’ as long as they are ‘clear, final and the product of mutual accord’ ” (Peralta v. All Weather Tire Sales & Serv. Inc., 58 A.D.3d 822, 822, 873 N.Y.S.2d 111, quoting Bonnette v. Long Is. Coll. Hosp., 3 N.Y.3d 281, 286, 785 N.Y.S.2d 738, 819 N.E.2d 206 ; see Town of Warwick v. Black Bear Campgrounds, 95 A.D.3d 1002, 943 N.Y.S.2d 608 ; Cooper v. Hempstead Gen. Hosp., 2 A.D.3d 566, 768 N.Y.S.2d 371 ). “Where the stipulation's terms are unambiguous, the parties' intent must be gleaned from the plain meaning of the words used by the parties” (Vider v. Vider, 46 A.D.3d 673, 674, 846 N.Y.S.2d 666 ; see Fukilman v. 31st Ave. Realty Corp., 39 A.D.3d 812, 835 N.Y.S.2d 343 ). Contrary to the appellants' contention, the stipulation dated March 3, 2009, which was incorporated into an order and judgment dated March 17, 2009, clearly and unambiguously encompassed the assets of both their mother and their father and provided that the parties were to be bound by the determination of the forensic accountant as to any misappropriation by any party during the analysis period. Thus, the determination of the forensic accountant disposed of the fraud causes of action asserted by the appellants on behalf of their father's estate in the action portion of this consolidated proceeding and action, which was commenced in New York County. Accordingly, the Supreme Court properly denied the appellants' motion to sever the fraud causes of action and to return those causes of action to New York County for trial.
The stipulation further provided for the allocation of attorneys' fees based upon the determination of the forensic accountant. As the forensic accountant determined that there was no misappropriation of any assets by Bonnie S. during the analysis period, the Supreme Court properly granted that branch of Bonnie S.'s motion which was to recover from the appellants her reasonable attorneys' fees in the fraud/forensic tracing portion of the litigation (see Sweeney v. Sweeney, 71 A.D.3d 989, 992, 898 N.Y.S.2d 560 ).
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