Opinion
No. 2011–1269.
04-08-2015
Joyce I. SAMONEK, Plaintiff, v. Christopher S. PRATT and Beth Anne Parker, Defendants.
O'Connell and Aronowitz, P.C., Plattsburgh (Benjamin Barry of counsel), for plaintiff. Fitzgerald Morris Baker Firth P.C., Glens Falls (Martin A. Cohen of counsel), for defendants.
O'Connell and Aronowitz, P.C., Plattsburgh (Benjamin Barry of counsel), for plaintiff.
Fitzgerald Morris Baker Firth P.C., Glens Falls (Martin A. Cohen of counsel), for defendants.
Opinion
ROBERT J. MULLER, J.
Plaintiff owns certain real property located at 1305 Fiske Road in the Town of Chazy, Clinton County. There is a gravel path running along the northern side of this property, which plaintiff uses for vehicular access to her carriage house and fuel port. According to plaintiff, in April 2011, defendants Christopher S. Pratt and Beth Anne Parker—who own the property next door—constructed a fence that “encroached [15] feet onto [her] property, effectively partition[ing] off a portion of [her] lawn and [the] gravel path.” Plaintiff subsequently commenced this action in September 2011 to quiet title to this disputed area. Issue was joined and the parties appeared for a conference in March 2012, at which time the parties entered into a stipulation of settlement on the record in open court. This settlement provided, in pertinent part:
“Plaintiff[ ] and defendants agree that a common boundary line will be constructed pursuant to services conducted by Dean Lashway from 2002 through December 2004 and as is described in [the] survey ... signed on December 22 [ ], 2004.
“Defendants will grant a perpetual easement to plaintiff to run with the lands along the existing gravel driveway located to the north of plaintiff's property for plaintiff's ingress and egress and to access the carriage house located on plaintiff's property.
“Defendants will also grant a perpetual easement to plaintiff to maintain a vegetative area located between the existing gravel driveway and ... common boundary[, as set forth above.]
“In consideration, plaintiff agrees to pay the defendants the sum of $4,500.00, payable on or before August 26, 2012.
“Upon receipt of payment in full, defendant will remove [the] fence within a reasonable period of time not to exceed 30 days.
“Within 14 days of today defendants will remove the fence ... located in front of the carriage house located on plaintiff's property....”
An issue thereafter arose with respect to the width of the vegetative area located between the existing gravel driveway and the common boundary. Specifically, plaintiff requested that the settlement documents describe this area using a linear measurement and defendants refused her request. Plaintiff subsequently moved for an Order which, inter alia, required the settlement documents to describe the vegetative area using a linear measurement and otherwise enforced the terms of the stipulation. This motion was granted by Order entered on January 25, 2013, with the Court directing “that a linear measurement ... be placed on the specific stipulation regarding the width of the vegetative area as set forth in the stipulation of settlement” and that “the linear measurement ... be five (5) feet in width.” The Court further directed “that the terms of the stipulation of settlement placed on the record in open court on March 26, 2012 [otherwise] be complied with forthwith.”
Defendants then filed an appeal and, on December 5, 2013, this Order was modified “by reversing so much thereof as directed a five-foot linear measurement on the disputed easement area” (Samonek v. Pratt, 112 AD3d 1044, 1046 [2013] ), and was otherwise affirmed. The Appellate Division, Third Department found as follows:
“[I]t is the Lashway survey that defines the disputed area, which should be capable of measurement by the parties. However, by injecting a term into the stipulation to which the parties did not agree—namely a five-foot linear measurement—Supreme Court impermissibly extended the scope of the stipulation. As a result, that part of the court's order must be vacated” (id. at 1045–1046 [footnote omitted] ).
The Third Department further found that “the width of the grassy area must be determined as it existed at the time the Lashway survey was completed” (id. at 1045 n4 ] and remitted the matter to this Court “for further proceedings not inconsistent with [its] decision” (id. at 1046 ). Upon remittal, defendants filed a demand for a jury trial. Presently before the Court is plaintiff's motion to strike this demand for a jury trial and defendants' cross motion to void that portion of the stipulation pertaining to the vegetative area and to otherwise mark the matter resolved or, alternatively, to void the stipulation altogether and schedule a trial.
At the outset, the Court denies defendants' cross motion in its entirety. “Under the law of the case doctrine, parties or their privies are preclude[d from] relitigating an issue decided in an ongoing action where there previously was a full and fair opportunity to address the issue' “ (Briggs v. Chapman, 53 AD3d 900, 901 [2008], quoting Town of Massena v. Healthcare Underwriters Mut. Ins. Co., 40 AD3d 1177, 1179 [2007] ); see Webster v. Ragona, 51 AD3d 1128, 1131–1132 [2008] ; Beneke v. Town of Santa Clara, 45 AD3d 1164, 1165 [2007], lv denied 10 NY3d 706 [2008] ). Here, defendants had a full and fair opportunity to address the validity of the stipulation on plaintiff's earlier motion. Indeed, the Third Department discussed the issue at length, stating that “a stipulation will be enforced so long as it is sufficiently definite in its material terms so as to enable a court to determine what in fact the parties have agreed to' “ (Samonek v. Pratt, 112 AD3d at 1045, quoting Matter of 166 Mamaroneck Ave. Corp. v. 151 E. Post Rd. Corp., 78 N.Y.2d 88, 91 [1991] ; see Wilson v. Ledger, 97 AD3d 1028, 1029 [2012] ). The Third Department then stated as follows:
“Here, the identification of the [vegetative] area is clearly a material term of the parties' agreement. While the stipulation did not set forth a linear measurement of its width, we are satisfied that the parties' intent is sufficiently ascertainable so as to permit its enforcement, as the parties explicitly agreed that plaintiff would have an easement to maintain a vegetative area located between the existing gravel driveway and a common boundary' as set forth in the Lashway survey” (Samonek v. Pratt, 112 AD3d at 1045 [footnote omitted] ).
Under the circumstances, defendants are not entitled to void that portion of the stipulation pertaining to the vegetative area, let alone to void the entire stipulation and proceed to trial.
Turning now to plaintiff's motion to strike the demand for a jury trial, defendants entered into a stipulation of settlement on the record in open court three years ago, which stipulation has since been declared enforceable (see Samonek v. Pratt, 112 AD3d at 1045 ). The Court therefore finds that defendants have waived their right to a trial by jury (see J. Marshall, Inc. v. Turner Constr. Co., 207 Misc. 490, 492 [Sup Ct, Dutchess County 1954] ). The Court further notes that a note of issue has not yet been filed and, as such, the demand for a jury trial is without effect in any event (see CPLR 4102 [a] ). Plaintiff's motion to strike the demand for a jury trial is therefore granted in its entirety.
The only issue remaining for determination at this time is the width of the vegetative area as set forth in the Lashway survey. To that end, counsel for the parties are hereby directed to appear for a conference on May 4, 2015 at 10:30 A.M. at the Clinton County Courthouse for the purpose of establishing a hearing date.
Therefore, having considered the Affirmation of Benjamin S. Barry, dated April 4, 2014, submitted in support of the motion; and Affirmation of Martin A. Cohen, dated April 15, 2014, submitted in opposition to the motion and in support of the cross motion, it is hereby
ORDERED that plaintiff's motion to strike defendants' demand for a jury trial is granted in its entirety; and it is further
ORDERED that defendants' cross motion to void that portion of the stipulation pertaining to the vegetative area and to otherwise mark the matter resolved or, alternatively, to void the stipulation altogether and schedule a trial, is denied in its entirety.
The original of this Decision and Order is returned to counsel for plaintiff for filing and service with notice of entry. The Notice of Motion dated April 4, 2014 and Notice of Cross Motion dated April 15, 2014 have been filed by the Court together with the above-referenced submissions.