| Hodge v Development at Helderberg Meadows, LLC |
| 2014 NY Slip Op 01368 [114 AD3d 1122] |
| February 27, 2014 |
| Appellate Division, Third Department |
| Christopher M. Hodge et al., Appellants, v Development atHelderberg Meadows, LLC, et al., Respondents, et al.,Defendant. |
—[*1] Donald Zee, PC, Albany (Christopher A. Priore of counsel), for Development atHelderberg Meadows, LLC and others, respondents.
Rose, J. Appeal from an order of the Supreme Court (Reilly Jr., J.), entered June 12,2013 in Schenectady County, which granted a motion by defendants Development atHelderberg Meadows, LLC, Brookview Court, Inc., Dennis E. Digesare and VanessaDigesare for clarification and/or modification of a prior so-ordered stipulation betweenthe parties.
Plaintiffs commenced this action for declaratory and injunctive relief pursuant toRPAPL article 15 to determine title to a disputed strip of real property located south oftheir premises and running in an east-west direction along the northern end of asubdivision lot owned by defendants Dennis E. Digesare and Vanessa Digesare. Theparties reached a temporary agreement to maintain the status quo with respect to thedisputed area pending final resolution of the action, and their interim stipulation was "soordered" by Supreme Court. The agreed-upon order permitted the parties to utilize thedisputed area for ingress and egress to their respective premises and provided that theywould not inhibit or restrict each other's rights of access over it. As part of the order, theparties were not to place any temporary or permanent structures in the disputed area,including any "survey 'pins' or 'stakes.' "[*2]
The Digesares utilized the disputed area to accesstheir subdivision lot for the purpose of completing the construction of their residence, butthey were unable to obtain a certificate of occupancy from defendant Town of Rotterdamwithout the placement of surveyors' pins and caps on the corners of the lot. Whenplaintiffs objected to the placement of pins and caps in the disputed area, the Digesares,along with defendants Development at Helderberg Meadows, LLC and BrookviewCourt, Inc., applied to Supreme Court for permission to modify the terms of thestipulated order. In support of their motion, they represented that they were seeking suchpins and caps solely for the purpose of obtaining a certificate of occupancy allowingthem to take up residence in the newly constructed home on the undisputed portion oftheir premises, the pins and caps would be placed flush to the ground where they wouldnot inhibit ingress or egress, and they would not rely upon the placement of the pins andcaps as any evidence of their right to the disputed area. Supreme Court granted theplacement of the pins and caps, conditioned upon these representations. Plaintiffs appeal.
We affirm. A court has the common-law authority to, in its discretion, grant relieffrom a judgment or order in the interest of justice, considering " 'the facts of theparticular case, the equities affecting each party and others affected by the judgment ororder, and the grounds for the requested relief' " (Nash v Port Auth. of N.Y. & N.J., 22 NY3d 220, 226[2013], quoting Weinstein-Korn-Miller, NY Civ Prac ¶ 5015.03 at 50-284; seeWoodson v Mendon Leasing Corp., 100 NY2d 62, 68 [2003]; Ladd vStevenson, 112 NY 325, 332 [1889]; B.U.D. Sheetmetal v Massachusetts BayIns. Co., 248 AD2d 856, 856 [1998]; Siegel, NY Prac § 426 at 750 [5th ed2011]). Even if the stipulation had not merged into an order of the court, the court hasthe "discretionary power to relieve parties from the consequences of a stipulationeffected during litigation" (Teitelbaum Holdings v Gold, 48 NY2d 51, 54 [1979];see McCoy v Feinman, 99 NY2d 295, 302 [2002]; Hallock v State of NewYork, 64 NY2d 224, 230 [1984]).
Here, Supreme Court correctly noted that it had the authority to modify its ownorder. The court reasonably concluded that modification was warranted because theresidence under construction at the time of the stipulation had been completed and theplacement of the pins and caps would not impede access to the disputed parcel orotherwise affect the parties' positions with respect to the underlying dispute.Accordingly, we find that the court properly exercised its discretion here (see Matterof Frutiger, 29 NY2d 143, 149-150 [1971]; Graubard Mollen HorowitzPomeranz & Shapiro v 600 Third Ave. Assoc., 234 AD2d 49, 49-50 [1996], lvdismissed 89 NY2d 1086 [1997]; Stansky v Mallon, 133 AD2d 392,394-395 [1987], lv dismissed 70 NY2d 927 [1987], lv denied 71 NY2d807 [1988]).
McCarthy, J.P., Garry and Egan Jr., JJ., concur. Ordered that the order is affirmed,with costs.