Tefoe v. Thompson

• Decision Date: 13 December 2012
• Citation: Tefoe v. Thompson, 101 A.D.3d 1271, 955 N.Y.S.2d 697, 2012 N.Y. Slip Op. 8583 (N.Y. App. Div. 2012)
• Parties: William D. TEFOE Jr. et al., Respondents, v. Emmett THOMPSON et al., Appellants.
• Court: New York Supreme Court — Appellate Division

101 A.D.3d 1271

955 N.Y.S.2d 697

2012 N.Y. Slip Op. 08583

William D. TEFOE Jr. et al., Respondents,

v.Emmett THOMPSON et al., Appellants.

Supreme Court, Appellate Division, Third Department, New York.

Dec. 13, 2012.

Viscardi, Howe & Rudgers, LLP, Ticonderoga (James M. Brooks, Lake Placid, of counsel), for appellants.

John M. Silvestri, Chestertown, for respondents.

Before: PETERS, P.J., ROSE, MALONE JR., STEIN and EGAN JR., JJ.

MALONE JR., J.

Appeals (1) from an amended order of the Supreme Court (Muller, J.), entered January 18, 2011 in Essex County, upon a decision of the court in favor of plaintiffs, and (2) from an order of said court, entered June 8, 2011 in Essex County, which denied defendants' motion for renewal and reargument.

The parties own two adjacent parcels of real property in the Town of North Hudson, Essex County. Plaintiffs commenced this action in January 2006 seeking monetary damages as well as a constructive trust upon certain real property owned by defendants. Defendants filed an answer and counterclaims, alleging that plaintiffs had interfered with their right-of-way and seeking monetary damages. Plaintiffs countered, alleging that defendants were encroaching on the easement and interfering with their right-of-way, which is the only means of access to their property. A nonjury trial was commenced in November 2009 but, before defendant rested, the parties reached a partial settlement on their respective monetary claims by stipulation entered on the record in open court. Supreme Court granted a continuance for the parties to resolve the outstanding issues concerning the easement on the property, including placement thereof and the parties' respective rights and obligations thereto.

When the parties were unable to resolve the outstanding issues, Supreme Court ordered them to submit proposed findings of fact and conclusions of law. Defendants moved to vacate that order and for enforcement of the in-court stipulation of settlement, which they claim disposed of all justiciable issues. Plaintiffs cross-moved seeking, among other things, a declaratory judgment concerning the easement and an order compelling defendants to move the improvements thereon. By amended order entered in January 2011, Supreme Court, among other things, ordered defendants to remove certain improvements within the boundary of the easement and permanently enjoined defendants from any future interference therewith.¹ Supreme Court denied defendants' subsequent motionfor leave to renew and reargue. Defendants now appeal from both that order and the amended order.

Initially, we are unpersuaded by defendants' contention that no justiciable controversy survived the stipulation of settlement. The unambiguous language of the stipulation establishes that only the monetary claims were resolved. Although the parties discussed possibly rerouting the easement, they acknowledged that any resolution of the easement issues was contingent upon the cooperation of certain nonparty adjacent landowners as well as the Adirondack Park Agency (hereinafter APA). As the record reflects, cooperation from the adjoining landowners was not forthcoming, nor did the parties reach any resolution with regard to the easement issues.

That said, we also find no merit in defendants' assertion that, because they had not rested their case, they were denied a full and fair opportunity to be heard prior to Supreme Court rendering a decision. Defendants did not object to the manner in which Supreme Court sought to resolve the matter, and only after an unfavorable decision was rendered did defendants assert that further testimony and evidence was required. Defendants charted their own course in this matter by making the tactical decision that the stipulation of settlement fully resolved all of the parties' claims and that no justiciable controversies...