State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 8, 2016 522575 

________________________________

R. CRAIG JENKINS,

Appellant,

v MEMORANDUM AND ORDER

E. KENT JENKINS, as Trustee of

the MARTHA JENKINS FAMILY 

TRUST,

Respondent.

________________________________

Calendar Date: October 19, 2016

Before: Peters, P.J., Garry, Egan Jr., Rose and Mulvey, JJ.

__________

Martin, Shudt, Wallace, DiLorenzo & Johnson, Troy (Robert

L. Adams of counsel), for appellant.

Cooper Erving & Savage LLP, Albany (Susan C. Picotte of

counsel), for respondent.

__________

Egan Jr., J.

Appeal from an order of the Supreme Court (McGrath, J.),

entered April 9, 2015 in Rensselaer County, which granted

defendant's motion to dismiss the complaint.

In May 1997, Martha Jenkins (hereinafter decedent) created

the Martha Jenkins Family Trust, designated plaintiff and

defendant – two of her four children – as cotrustees and conveyed

her personal residence located in the Town of Brunswick,

Rensselaer County to the trust. Plaintiff previously had moved

in with decedent to assist with her care and, in March 2007,

commenced a proceeding pursuant to Mental Hygiene Law article 81

seeking to have decedent adjudicated to be an incapacitated
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person and to be appointed as the guardian of her person and her

property. Defendant and his remaining siblings opposed the

requested relief. Thereafter, in or about June 2007, the parties

and their siblings entered into a stipulation of settlement,

pursuant to the terms of which plaintiff was appointed as

decedent's personal guardian, and defendant was appointed as the

guardian of her property. Insofar as is relevant here, the

stipulation provided that, once decedent no longer occupied the

premises, the property would be sold at fair market value, but

that plaintiff would have "the right of first refusal to purchase

said residence at said value" – subject to certain enumerated

terms and conditions. If plaintiff failed to exercise that right

in accordance with the terms of the stipulation, he would be

required to vacate the premises within 90 days of the issuance of

the appraisal report for the property.

Following decedent's death in October 2012, plaintiff's

attempt to purchase the home in conformity with the terms of the

foregoing stipulation was unsuccessful. When plaintiff failed to

vacate the premises as required, defendant commenced a summary

holdover proceeding against plaintiff in Brunswick Town Court. 

In May 2013, the parties entered into a stipulation of settlement

in open court that, among other things, afforded plaintiff a

second opportunity to purchase the premises – again subject to

certain specific conditions.1 In conjunction therewith, Town

Court executed a judgment awarding defendant possession of the

premises and a warrant of eviction directing plaintiff's removal

therefrom, both of which defendant agreed to hold in abeyance

pending plaintiff's purchase of the property. In anticipation

thereof, the parties discussed possession of and access to the

property going forward and agreed that, "other than [as]

expressly provided for in the rest of the stipulation[],

[plaintiff would] have exclusive use and possession of the real

estate involved." The parties further agreed, however, that

plaintiff would allow an appraiser, defendant and his remaining

1 The transcript of this proceeding is dated July 30, 2013,

but counsel for defendant represented at oral argument – without

contradiction – that the resulting stipulation was reached on May

8, 2013.
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siblings access to the premises for the purpose of inventorying

and appraising decedent's personal property and, ultimately,

identifying which personal effects each of decedent's children

wished to acquire.

Plaintiff does not dispute that he thereafter denied his

family members access to the property,2 in response to which

defendant commenced a turnover proceeding in Rensselaer County

Surrogate's Court seeking, among other things, a decree granting

him and the remaining beneficiaries access to the premises. 

After plaintiff failed to appear for the scheduled inquest,

Surrogate's Court ordered, among other things, that plaintiff

deliver all of decedent's personal property to defendant, whom

Surrogate's Court also designated as decedent's preliminary

executor.

In June 2014, plaintiff commenced this action seeking to

compel defendant to convey title to the subject premises, as well

as specific performance of the 2013 open court stipulation of

settlement and money damages. Defendant apparently continued to

pursue an amicable resolution of the underlying disputes – one

that would afford plaintiff yet another opportunity to purchase

the subject premises – but, when those efforts were unsuccessful,

defendant filed a pre-answer motion to dismiss the complaint

pursuant to CPLR 3211 (a) (1), (2), (3), (4) and (7), as well as

upon res judicata and collateral estoppel grounds (relying upon

2 The stipulation permitted family members access to the

property on two distinct occasions – specifically, they were

entitled to accompany the appraiser during his or her scheduled

visit, and they also were permitted to return to and access the

premises at a later date. According to plaintiff, access on the

latter of these two occasions was expressly contingent upon his

siblings generating a list of the items that they wished to

acquire. As only defendant accompanied the appraiser at the time

of the May 28, 2013 inventory/inspection, and as the remaining

family members purportedly did not generate the "required" list,

plaintiff insisted that he was justified in barring his siblings'

June 11, 2013 attempt to access the premises.
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the prior proceedings in Town Court).3 Supreme Court, relying

upon the terms of the parties' 2013 open court stipulation of

settlement, granted defendant's motion to dismiss the complaint

pursuant to CPLR 3211 (a) (1). This appeal by plaintiff ensued.4

We affirm. Although plaintiff relies upon the "liberal

construction" standard afforded to a complaint on a motion to

dismiss pursuant to CPLR 3211 (a) (7), Supreme Court did not

grant defendant's motion to dismiss upon CPLR 3211 (a) (7)

grounds and, in any event, "[t]his liberal standard . . . will

not save allegations that consist of bare legal conclusions or

factual claims that are flatly contradicted by documentary

evidence or are inherently incredible" (Hyman v Schwartz, 127

AD3d 1281, 1283 [2015] [internal quotation marks and citations

omitted]; see Maldonado v DiBre, 140 AD3d 1501, 1505 [2016], lv

denied ___ NY3d ___ [Nov. 21, 2016]). To that end, dismissal of

a complaint under CPLR 3211 (a) (1) – the sole ground upon which

Supreme Court granted defendant the requested relief here – "is

appropriate where the documentary evidence utterly refutes the

plaintiff's . . . allegations, conclusively establishing a

defense as a matter of law" (Benetech, Inc. v Omni Fin. Group,

Inc., 116 AD3d 1190, 1192 [2014] [internal quotation marks,

brackets and citations omitted], lv denied 23 NY3d 909 [2014];

see Maldonado v DiBre, 140 AD3d at 1505; Ganje v Yusuf, 133 AD3d

954, 956 [2015]; Trask v Tremper Prop. Assn., Inc., 122 AD3d

1206, 1207 [2014]). In this regard, "it is clear that judicial

records, as well as . . . any other papers, the contents of which

are essentially undeniable, would qualify as documentary evidence

in the proper case" (Fontanetta v John Doe 1, 73 AD3d 78, 84-85

[2010] [internal quotation marks and citation omitted]; see Ganje

v Yusuf, 133 AD3d at 956-957).

3 In the interim, Town Court denied plaintiff's motion to

stay the warrant of eviction, and plaintiff was evicted from the

premises in May 2014.

4 According to counsel for defendant, the subject premises

were sold to plaintiff in January 2015.
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The crux of plaintiff's argument upon appeal is that he

satisfied the only portion of the parties' 2013 open court

stipulation of settlement directly pertaining to the

preconditions that he had to fulfill in order to purchase the

subject premises and, therefore, defendant has no defense to his

subsequent failure to convey the property. The flaw in

plaintiff's argument on this point lies in his piecemeal reading

of the parties' agreement. Stipulations of settlement are

subject to the same well-settled principles that govern the

interpretation of a contract (see H.K.S. Hunt Club v Town of

Claverack, 222 AD2d 769, 769 [1995], lv denied 89 NY2d 804

[1996]; Matter of Frye v Brown, 189 AD2d 1031, 1033 [1993]) –

namely, to construe the agreement in accordance with the parties'

intent, which may "be gleaned not only from the literal language

of the agreement, but also from whatever reasonably may be

implied therefrom" (Matter of Frye v Brown, 189 AD2d at 1033;

accord Matter of Shatraw, 66 AD3d 1293, 1294 [2009]; see Vega v

Papaleo, 119 AD3d 1139, 1139 [2014]), and to read the agreement

as a whole – avoiding a construction that would render any

provision thereof meaningless (see Maldonado v DiBre, 140 AD3d at

1506).

Applying these principles to the stipulation before us, it

is readily apparent that the provisions of the stipulation

governing defendant's and his siblings' access to the premises

for the purpose of inventorying, appraising and earmarking

decedent's personal property were part and parcel of the parties'

global agreement relative to plaintiff's purchase of the property

and the proposed settlement of the proceeding and disputes then

pending in Town Court. Indeed, counsel for plaintiff indicated

at the outset that the stipulation had been reached "with the

understanding that the parties agree[d] to be bound by all the

terms that [were] put on the record" (emphasis added) – not just

those provisions directly governing plaintiff's planned purchase

of the property. Further, a plain reading of the parties'

agreement makes clear that plaintiff's anticipated and otherwise

exclusive use and possession "of the real estate involved" was

subject to the provisions embodied in "the rest of the

stipulation[]," which included plaintiff's obligation to allow

access to the premises for the purpose of inventorying and

appraising decedent's personal property – specifically, to permit
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plaintiff's siblings "access to the premises at the same time as

the appraiser to identify those items which they would like to

acquire from the estate," as well as to afford them subsequent

access to the premises "at a duly appointed time, on reasonable

notice to [plaintiff]." Finally, there is no question that the

judgment and warrant of eviction issued by Town Court in favor of

defendant would not be vacated until "all the conditions laid

before the court" had been satisfied (emphasis added).

Simply put, plaintiff's strained and selective

interpretation of the parties' stipulation, whereby defendant

would be compelled to convey the property to plaintiff despite

plaintiff's admitted failure to permit his siblings access

thereto, does not comport with the terms of the parties'

agreement as a whole (see e.g. H.K.S. Hunt Club v Town of

Claverack, 222 AD2d at 770), which clearly evidences the parties'

intent to reach an integrated resolution of the disputes then

pending between them. Further, adopting plaintiff's construction

of the agreement would render meaningless the provisions thereof

outlining the circumstances under which the judgment and warrant

of eviction would be vacated, as Town Court plainly would be

unable to evict the fee owner of the premises. Finally,

plaintiff's attempts to justify or excuse his conduct are, in our

view, insufficient to create an ambiguity in the stipulation

where one does not otherwise exist. In short, inasmuch as

defendant's documentary evidence conclusively established that

plaintiff failed to comply with all of the terms and conditions

set forth in the parties' 2013 stipulation of settlement, Supreme

Court properly granted defendant's motion to dismiss pursuant to

CPLR 3211 (a) (1). In light of this conclusion, we need not

consider defendant's alternative grounds for affirmance, and

plaintiff's remaining contentions, to the extent not specifically

addressed, have been examined and found to be lacking in merit.

Peters, P.J., Garry, Rose and Mulvey, JJ., concur.
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ORDERED that the order is affirmed, with costs.

ENTER:

Robert D. Mayberger

Clerk of the Court