| Hamilton v Murphy |
| 2010 NY Slip Op 08831 [79 AD3d 1210] |
| December 2, 2010 |
| Appellate Division, Third Department |
| Robert H. Hamilton et al., Respondents-Appellants, v David Murphy,Appellant-Respondent. |
—[*1] Walter & Mishler, P.C., Albany (Lanny E. Walter of counsel), forrespondents-appellants.
Peters, J. Cross appeals from an order of the Supreme Court (McGill, J.), entered January 14,2010 in Clinton County, which, among other things, awarded plaintiffs judgment upon finding defendantin civil contempt.
The parties are owners of properties on Mountaineer Drive in the Town of Ausable, ClintonCounty. In order to access their respective properties, plaintiffs must travel down Ausable Beach Roadand make a sharp, nearly 90-degree turn onto Mountaineer Drive. After defendant placed a large logon the edge of the roadway where Ausable Beach Road and Mountaineer Drive intersect, plaintiffscommenced this action alleging that defendant interfered with their right-of-way over Mountaineer Driveand impeded their ability to freely and safely bring large vehicles, such as boats and campers, down totheir properties. In July 2008, the parties, each represented by counsel, entered into a "So-Ordered"stipulation whereby they agreed to settle the dispute. The stipulation established, by reference to anAugust 2002 survey prepared by Carey Surveying Company, a 16½-foot right-of-way in favorof plaintiffs. As depicted in the 2002 survey, within that right-of-way runs a gravel roadway as well asstrips of land that border each side of the gravel road. The stipulation also required defendant toremove all impediments to the right-of-way and refrain from placing any other obstructing obstacleswithin it.[*2]
Defendant thereafter removed the log in compliance with thestipulation, but subsequently installed "no trespassing" metal signs within inches of where the log hadbeen. Plaintiffs then had the right-of-way resurveyed, which located the metal signs within theagreed-upon right-of-way, and sent correspondence along with the resurvey to defendant advising himthat his placement of the signs was in violation of the stipulation and requesting that he remove them.When defendant failed to do so, plaintiffs moved to hold him in contempt. Defendant cross-moved tovacate the stipulation and to dismiss plaintiffs Robert H. Hamilton and Patricia J. Hamilton from theaction. Supreme Court denied defendant's cross motion and, following an evidentiary hearing, founddefendant in civil contempt and ordered him to pay $6,330.24 in fees and disbursements. These crossappeals ensued.[FN*]
Supreme Court properly declined to vacate the stipulation. Stipulations of settlement are favoredby the courts and will not lightly be set aside (see Hallock v State of New York, 64 NY2d224, 230 [1984]; Springer v Winney, 295 AD2d 845, 846 [2002]). "Consequently, [o]nlywhere there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, willa party be relieved from the consequences of a stipulation made during litigation" (Robison vBorelli, 239 AD2d 656, 657 [1997] [internal quotation marks and citations omitted]; see Canino v Electronic Tech. Co., 49AD3d 1050, 1051 [2008]; French v Quinn, 243 AD2d 792, 793 [1997], lvdismissed 91 NY2d 1002 [1998]). No such showing has been made here.
Defendant was represented by counsel throughout the settlement negotiations and agreed to thestipulation in lieu of litigating the matter. Both defendant and his attorney had an opportunity to reviewthe terms of the stipulation, as well as the 2002 survey depicting the right-of-way, and correspondenceexchanged between the parties prior to its execution clearly reveals that they had a full understanding ofthe nature, size and location of the right-of-way that they were agreeing to and their respective rightswith regard thereto. Defendant asserts that, because the deeds of those plaintiffs which grant theright-of-way do not specify its dimensions, the width of the right-of-way should have been limited tothat of the gravel roadway. Yet defendant agreed to a 16½-foot right-of-way and, howeverimprovident he may now view that decision, such second thoughts are insufficient to set aside anotherwise valid agreement (see Fox v Merriman, 307 AD2d 685, 686-687 [2003]; Turk vTurk, 276 AD2d 953, 955 [2000]; Robison v Borelli, 239 AD2d at 657; Vermilyea vVermilyea, 224 AD2d 759, 761 [1996]). Nor do we find merit in defendant's assertion that hewas coerced into signing the stipulation due to the threat of legal action that plaintiffs lawfullycommenced (see Matter of Stearns vStearns, 11 AD3d 746, 747-748 [2004]). Furthermore, as a stipulation of settlement, beingcontractual in nature, may create new rights between the parties and/or settle future claims betweenthem, plaintiffs' prior title rights to the right-of-way are irrelevant (see e.g. Matter of Ossining UrbanRenewal Agency v Lord, 60 NY2d 845, 847-848 [1983]; Chase Manhattan Bank v State ofNew York, 13 AD3d [*3]873, 874 [2004]; Honeywell, Inc. vTechnical Bldg. Servs., 103 AD2d 433, 435 [1984]). Thus, defendant is bound by the stipulation.
Nor did Supreme Court abuse its discretion in finding defendant in civil contempt. To warrant sucha finding, "it must be established that there was a lawful court order in effect that clearly expressed anunequivocal mandate, that the person who allegedly violated the order had actual knowledge of itsterms, and that his or her actions or failure to act defeated, impaired, impeded or prejudiced a right ofthe moving party" (Beneke v Town of SantaClara, 61 AD3d 1079, 1080 [2009] [internal quotation marks and citations omitted];see Judiciary Law § 753 [A] [3]; McCain v Dinkins, 84 NY2d 216, 226[1994]; Town of Copake v 13 LackawannaProps., LLC, 73 AD3d 1308, 1309 [2010]).
Here, despite defendant's assertions to the contrary, the so-ordered stipulation is not ambiguous asto the parameters of the right-of-way. It clearly states that the boundaries of the right-of-way aredefined by the 16½-foot-wide area outlined in the 2002 survey map, not, as defendant suggests,the gravel roadway which meanders through the right-of-way. Furthermore, each paragraph of thestipulation setting forth the rights and obligations of the parties does so with specific reference to theright-of-way, rather than the gravel road. Plaintiffs demonstrated that the signs installed by defendantwere within the boundaries of the right-of-way and impeded their right of free and unobstructed travelto their properties over the right-of-way. Defendant's contention that he did not knowingly violate thestipulation, but rather made an "honest mistake," is belied by evidence of his continued defiance of itsdirectives and refusal to remove the posts even after he was made aware that the surveyor hadconfirmed that they were located within the right-of-way. Moreover, defendant's claim that he reliedupon the advice of counsel in placing the signs was neither developed at trial nor justifies his violation(see Erie Ry. Co. v Ramsey, 45 NY 637, 654 [1871]; Stolts v Tuska, 82 App Div81, 84 [1903]; New York Mail & Newspaper Trans. Co. v Shea, 30 App Div 374, 377[1898]). Under these circumstances, we cannot say that Supreme Court abused its discretion in holdingdefendant in civil contempt.
Finally, we address plaintiffs' challenge to the amount of counsel fees and costs awarded. Where,as here, no actual damages have been established as a result of the contempt, Judiciary Law §773 permits an aggrieved party to recover those costs and expenses, including reasonable counsel fees,from the offending party which are directly related to the contemptuous conduct (see Matter ofLembo v Mayendia-Valdes, 293 AD2d 789, 790 [2002]; Matter of Daniels v Guntert,256 AD2d 940, 942 [1998]). Here, Supreme Court awarded plaintiffs the costs of the resurvey, whichwas conducted to confirm the contemptuous location of the metal signs, as well as counsel fees andexpenses incurred from the time the hearing was scheduled on the contempt application until the date ofits decision and order finding defendant in contempt. Contrary to plaintiffs' assertion, Supreme Courtdid not abuse its discretion in declining to award the fees and expenses incurred prior to the executionof the stipulation, as well as those related to answering defendant's cross motion and cross complaint,as they were unrelated to the contemptuous conduct. With respect to the costs incurred for thepreparation of the contempt motion, which did flow directly from defendant's contemptuous conduct(see Matter of Meier v Key-Meier, 36AD3d 1001, 1004 [2007]; Matter ofAhmad v Naviwala, 14 AD3d 819, 821 [2005], lv dismissed 5 NY3d 783 [2005]),the court explicitly stated in the order that it was awarding these costs to plaintiffs, but neither specifiedthe amount thereof nor included them as part of the judgment awarded. Thus, we remit the matter toSupreme Court for a recalculation of counsel fees and disbursements so as to include all costs incurredby plaintiffs in preparing the contempt motion.[*4]
The parties' remaining contentions, to the extent not specificallyaddressed herein, have been fully reviewed and found to be unpersuasive.
Mercure, J.P., Rose, Malone Jr. and Egan Jr., JJ., concur. Ordered that the order is modified, onthe facts, by reversing so much thereof as awarded plaintiffs counsel fees and disbursements in theamount of $4,251.24; matter remitted to the Supreme Court for further proceedings not inconsistentwith this Court's decision; and, as so modified, affirmed.
Footnote *: Defendant's appeal from the May2009 order denying his motion to vacate was dismissed by this Court on the ground that the right ofdirect appeal from that order terminated with the entry of the final order (see Matter of Aho,39 NY2d 241, 248 [1976]). Since the May 2009 order necessarily affected the final order, the issuesraised on appeal from that intermediate order are properly brought up for review on this appeal fromthe final order (see CPLR 5501 [a] [1]).