Stephen M. Clement, et al., respondents,
Millbrook Central School District, et al., appellants. Index No. 3313/13
Argued-May 8, 2017
Corbally, Gartland and Rappleyea, LLP, Poughkeepsie, NY
(Allan B. Rappleyea of counsel), for appellants.
Butts & Wise LLP, Millbrook, NY (Joshua E. Mackey and
Rebecca A. Valk of counsel), for respondents.
C. DILLON, J.P., JEFFREY A. COHEN, COLLEEN D. DUFFY,
FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
by the defendants from an order of the Supreme Court,
Dutchess County (Maria G. Rosa, J.), dated August 14, 2015.
The order, insofar as appealed from, upon denying that branch
of the plaintiffs' motion which was to hold the
defendants in contempt, directed the defendants to comply
with an order of that court dated August 7, 2013, and granted
the plaintiffs leave to renew the contempt motion if the
defendants failed to comply within 90 days.
that the order dated August 14, 2015, is affirmed insofar as
appealed from, with costs.
plaintiffs are the owners of real property adjacent to
property owned by the defendant Millbrook Central School
District (hereinafter the School District). In 2004, the
defendant Millbrook Board of Education (hereinafter the
Board) entered into an agreement with the plaintiffs to
permit the construction of school facilities on a portion of
the District's property that was otherwise precluded by a
restrictive covenant, excluding a "buffer area"
extending 200 feet from the plaintiffs' property line. In
May 2013, the plaintiffs commenced this action to enjoin the
defendants from undertaking or continuing any construction
activities within the "buffer area." Thereafter,
the parties entered into a stipulation of settlement, which
was incorporated into an order dated August 7, 2013. Pursuant
to the stipulation, the defendants were permitted to continue
construction of athletic facilities within the buffer area,
in exchange for agreeing to certain restrictions on the use
of the District's property outside the buffer area. The
parties agreed to execute an "amended deed
restriction" in accordance with the terms of the
2015, the plaintiffs moved, inter alia, to hold the
defendants in contempt for failing to comply with the order
dated August 7, 2013. The plaintiffs alleged that the
defendants "materially changed" the terms of the
stipulation by adding a "cure provision" to
terminate the restrictions imposed by the stipulation of
settlement in the event the defendants removed the structures
from the buffer area that violated the original agreement. In
an order dated August 14, 2015, the Supreme Court determined
that the defendants improperly attempted to "insert a
term that was not negotiated, agreed upon nor part of the
stipulation of settlement, " but declined to hold the
defendants in contempt, based on the plaintiffs'
"fail[ure] to demonstrate prejudice." Thereupon,
the court directed the defendants to comply with the order
dated August 7, 2013, by "execut[ing] an amended deed
restriction consistent with the stipulation" (excluding
the cure provision), and denied that branch of the
plaintiffs' motion which was to hold the defendants in
contempt with leave to renew the contempt motion if the
defendants failed to comply within 90 days. The defendants
appeal from that portion of the order dated August 14, 2015.
stipulations are judicially favored, and will not be set
aside absent fraud, overreaching, mistake, duress, or
unconscionability" (Tarone v Tarone, 25 A.D.3d
779, 780). "Like any contract, such 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 A.D.3d 1044, 1045, quoting Matter of 166
Mamaroneck Ave. Corp. v 151E. Post Rd. Corp., 78 N.Y.2d
88, 91). Here, the parties, represented by counsel, entered
into a stipulation in open court, which was incorporated into
the order dated August 7, 2013, and the defendants do not
claim any grounds to set it aside. As the Supreme Court
correctly observed, "[n]owhere was it discussed or did
the parties agree that the limitations to which the school
district consented . . . were contingent upon it maintaining
the structures plaintiffs allowed it to build inside the
buffer zone." Moreover, at the time the stipulation was
entered into, the defendants "'must have foreseen
the contingency'" that they might remove the
offending structures in the buffer area, which were the
subject of the underlying controversy, but they did not
mention the cure provision at that time (Bethea v
Thousand, 127 A.D.3d 798, 799, quoting Reiss v
Financial Performance Corp., 97 N.Y.2d 195, 199).
Contrary to the defendants' contention, the stipulation
was "sufficiently definite, " since it included a
method for resolving certain outstanding issues that could
not be addressed at the time of the stipulation (Carr v
Sheehan, 148 A.D.3d 1618, 1619).
the defendants' contention that they are entitled to a
declaration that the restrictions imposed by the stipulation
of settlement are invalid, and that the restrictions
"should be discharged from the public record, " is
not properly before this Court, since the defendants did not
move for such affirmative relief in this action (see
Aurora Loan Servs., LLC v Reid, 132 A.D.3d 788, 788;
E.R. Furniture Delivery, Inc. v Budget Rent A Car Sys.,
Inc., 62 A.D.3d 939, 940; Fischer v RWSP Realty,
LLC, 53 A.D.3d 594, 595; Gayz v Kirby, 41
A.D.3d 782, 783). The defendants' remaining contentions
are not properly before this Court.
the Supreme Court did not err in directing the defendants to
comply with the order dated August 7, 2013, by executing an
amended deed restriction excluding the cure provision, and in
granting the plaintiffs leave to renew ...