| Palmieri v Town of Babylon |
| 2008 NY Slip Op 09371 [56 AD3d 740] |
| November 25, 2008 |
| Appellate Division, Second Department |
| Paul Palmieri, Appellant, v Town of Babylon,Respondent. |
—[*1] Kral, Clerkin, Redmond, Ryan, Perry & Girvan, LLP, Mineola, N.Y. (Nicole Licata-McCordand Andrew J. Mihalick of counsel), for respondent.
In an action, inter alia, to recover damages for trespass, the plaintiff appeals from an order ofthe Supreme Court, Suffolk County (Cohalan, J.), dated June 11, 2007, which granted thedefendant's motion to vacate a so-ordered stipulation of settlement of the action dated July 17,2004, and to restore the action to the calendar.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion tovacate a so-ordered stipulation of settlement of the action dated July 17, 2004, and to restore theaction to the calendar is denied.
The plaintiff commenced this action against the defendant, Town of Babylon, after the Townallegedly agreed, and failed, to construct a fence to prevent trespassers from entering upon theplaintiff's beachfront property from an adjacent parcel of land owned by the Town which adjoinsthe shore of the Great South Bay. The parties thereafter entered into a stipulation of settlement,pursuant to which the Town agreed to construct a fence which would cut off public access to thesubject waterfront parcel. Two years later, the Town moved to set aside the stipulation ofsettlement as illegal and/or violative of public policy. The Supreme Court granted the Town'smotion. We reverse.
While "[s]tipulations of settlement are favored by the courts and not lightly cast aside"(Hallock v State of New York, 64 NY2d 224, 230 [1984]; see Matter of Galasso,35 NY2d 319, 320 [1974]), a stipulation of settlement may be set aside on the grounds ofillegality and/or a violation of public [*2]policy (see e.g.Matter of Weis v Lefkowitz, 261 AD2d 480 [1999]). Here, the Town relied on the legalprinciple that an owner of land may not unreasonably interfere with the public's right to make useof navigable waters for the purposes of navigation and fishing (see Douglaston Manor vBahrakis, 89 NY2d 472 [1997]; People v Vanderbilt, 26 NY 287 [1863]; Melby vDuffy, 304 AD2d 33 [2003]; Smith v State of New York, 153 AD2d 737 [1989]).However, the fence does not restrict access to the use of Great South Bay. Rather, it restrictsaccess to land on the shore of Great South Bay owned by the Town. Accordingly, the Town didnot establish that the stipulation at issue is unlawful or violative of a public policy, warranting itsvacatur. Therefore, the Supreme Court erred in granting the motion to vacate the so-orderedstipulation of settlement.
In view of the foregoing, the parties' remaining contentions need not be reached. Florio, J.P.,Angiolillo, McCarthy and Chambers, JJ., concur.