| Eastman v Steinhoff |
| 2008 NY Slip Op 01700 [48 AD3d 738] |
| February 26, 2008 |
| Appellate Division, Second Department |
| John W. Eastman et al., Respondents, v Duane Steinhoff etal., Appellants. Maria Osterman et al., Intervenors-Respondents. |
—[*1] Citak & Citak, New York, N.Y. (Donald L. Citak of counsel), forintervenors-plaintiffs-respondents.
In an action, inter alia, pursuant to RPAPL article 15 to determine the rights of the parties tocertain real property, the defendants appeal, as limited by their brief, from so much of an order ofthe Supreme Court, Queens County (Schulman, J.), dated September 8, 2006, as denied thatbranch of their motion which was pursuant to CPLR 2104 to enforce a settlement agreement.
Ordered that the order is reversed insofar as appealed from, on the law and the facts, withcosts, and that branch of the defendants' motion which was pursuant to CPLR 2104 to enforce thesettlement agreement is granted.
In February 2003 the plaintiff John W. Eastman commenced this action against thedefendants Duane Steinhoff and Laura Steinhoff, inter alia, to determine a claim to real propertypursuant to RPAPL article 15. The parties disputed a certain boundary line between theirneighboring properties. The defendants appeared and answered and, following the completion ofdiscovery, Eastman filed a note of issue and a certificate of readiness on April 29, 2004. In orabout January 2005 Eastman and the defendants reached an agreement to settle the litigationwherein the defendants would pay Eastman the sum of $5,000, a new survey would be performedof the property in question, and, based upon the new survey, a boundary line agreement would bedrafted.
The new survey was subsequently conducted by the firm of Kulhanek and Plan and theboundary line agreement was drafted. However, unbeknownst to the defendants, Eastman hadpreviously conveyed fee title of the disputed area to the intervenor Maria Osterman by deed [*2]dated September 30, 2004. Concurrent with the transfer of title,Eastman and Osterman executed a written escrow agreement which authorized Eastman to"resolve" the "boundary line litigation regardless of the outcome." The escrow agreementexpressly provided that the successors and assigns of Osterman were also bound by suchagreement.
Despite the terms of the written escrow agreement, Osterman refused to execute theboundary line agreement Eastman negotiated and accepted on her behalf to settle the action. Inthe order appealed from, the Supreme Court, among other things, denied that branch of thedefendants' motion which was to enforce the settlement agreement. We reverse the order insofaras appealed from.
To be enforceable, stipulations of settlement must conform to the requirements of CPLR2104 (see Starr v Rogers, 44 AD3d646 [2007]; DeVita v Macy's E.,Inc., 36 AD3d 751 [2007]; Marpe v Dolmetsch, 256 AD2d 914 [1998]).Pursuant to CPLR 2104, a stipulation of settlement is not enforceable unless it is made in opencourt and entered, or contained in a writing subscribed by the parties or their attorneys (see Bonnette v Long Is. Coll. Hosp., 3NY3d 281, 285 [2004]; Starr vRogers, 44 AD3d 646 [2007]).
Here, the record contains writings subscribed by the attorneys for both Eastman and thedefendants agreeing to settle the action. These writings satisfy the requirements of CPLR 2104and demonstrate that the settlement incorporates the terms and conditions of the boundary lineagreement and an instrument survey conducted by Kulhanek and Plan dated August 15, 2005 (see Bonnette v Long Is. Coll. Hosp., 3NY3d 281 [2004]). Moreover, the written escrow agreement between Eastman andOsterman clearly and unambiguously appointed Eastman as Osterman's special agent for thepurpose of resolving the boundary line litigation"regardless of the outcome." Osterman, anundisclosed principal, was therefore bound by the settlement made on her account by Eastman(see J.P. Endeavors v Dushaj, 8AD3d 440 [2004]; Restatement [Second] of Agency § 186). In addition, Osterman'ssuccessor-in-interest, the intervenor Fabrice Schneider-Maunoury, is also bound by Eastman'ssettlement of the action pursuant to the terms of the written escrow agreement which boundOsterman's successors and assigns. Rivera, J.P., Spolzino, Carni and McCarthy, JJ., concur.