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Heinrich R. Vonritter v. City of Hudson

State of New York Supreme Court, Appellate Division Third Judicial Department


January 26, 2012

HEINRICH R. VONRITTER, APPELLANT,
v.
CITY OF HUDSON, RESPONDENT.

Appeals from an order and an amended order of the Supreme Court (Czajka, J.), entered September 27, 2010 and October 1, 2010 in Columbia County, which, among other things, denied plaintiff's motion and cross motion for an award of damages.

The opinion of the court was delivered by: Lahtinen, J.

MEMORANDUM AND ORDER

Calendar Date: November 22, 2011

Before: Mercure, Acting P.J., Peters, Rose, Lahtinen and Garry, JJ.

Plaintiff commenced this action in 2003 alleging damages to his property caused by defendant's storm sewer. A jury determined that defendant was partially responsible for the condition of the storm sewer, but found that plaintiff had not sustained any money damages. A judgment thereafter entered in February 2007 directed defendant to repair the storm sewer system by August 2007. Defendant was unable to complete the work by the time set forth in the judgment and, in March 2009, the parties entered into a stipulation setting forth a process for defendant to purchase plaintiff's property.

Disputes arose regarding the March 2009 stipulation and, without commencing an action to enforce the stipulation, the parties each made motions regarding its terms. Defendant moved to compel plaintiff to comply and plaintiff cross-moved alleging a breach. At an appearance before Supreme Court in March 2010, the parties resolved some of their disputes, however, further disputes developed, resulting in defendant moving for an order confirming its appraisal pursuant to the March 2009 stipulation and plaintiff seeking damages for defendant's alleged breach of the stipulation. Supreme Court denied all the motions. Plaintiff appeals.

The action between the parties was commenced in 2003 and ended with the entry of a judgment in 2007 following a jury trial. The judgment, among other things, dismissed plaintiff's causes of action for money damages. The motions by plaintiff underlying the current appeals were not made to enforce the judgment, but instead seek to have a court construe, enforce and award money damages regarding the separate stipulation entered into in March 2009. There is no action pending regarding that stipulation and "[a] motion must be addressed to a pending matter" (Matter of Village of Greenwood Lake v Mountain Lake Estates, 189 AD2d 987, 987 [1993], lv dismissed 81 NY2d 1006 [1993]). Accordingly, we affirm the denial of plaintiff's motions, albeit on a different ground than Supreme Court.

Mercure, Acting P.J., Peters, Rose and Garry, JJ., concur.

ORDERED that the order and amended order are affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20120126

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