State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: October 30, 2014 517202 

________________________________

BEVERLY RAINONE et al.,

Respondents,

v MEMORANDUM AND ORDER

PHILLIP DAVENPORT,

Defendant,

and

ANNETTE DAVENPORT,

Appellant.

________________________________

Calendar Date: September 2, 2014

Before: Lahtinen, J.P., Stein, McCarthy, Rose and Devine, JJ.

__________

Faust Oppenheim, LLP, New York City (Petra v.Z. Davenport

of counsel), for appellant. 

Graff Law, LLC, Kingston (Sharon A. Graff of counsel), for

respondents.

__________

Lahtinen, J.P.

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

entered December 21, 2013 in Ulster County, which, among other

things, denied defendant Annette Davenport's motion to vacate a

stipulation of settlement.

Plaintiff Beverly Rainone and defendant Annette Davenport

(hereinafter defendant) own adjacent properties in the Town of
-2- 517202 

Shandaken, Ulster County.1 Defendant's relevant property is

comprised of two parcels, a 2.94-acre parcel adjoined on its west

side by a 2.53-acre parcel. Rainone's property is located west

of defendant's 2.53-acre parcel. Plaintiffs commenced this

action in 2010 seeking, among other things, a declaratory

judgment that they had one or more rights-of-way over defendant's

property. On the scheduled trial date, in October 2011, the

parties entered into a lengthy stipulation of settlement on the

record.

The stipulation referenced a filed survey map which

depicted both a "private driveway" that started near the

southeast corner of defendant's 2.94-acre parcel and ran

generally northwest over defendant's two parcels to Rainone's

parcel, as well as a "work road" to the south of the private

driveway that crossed only a portion of defendant's 2.53-acre

parcel near the southwest corner. The stipulation included,

among other things: a permanent right-of-way over the work road;

a right-of-way personal to plaintiffs over the private driveway,

which would expire when Rainone transferred her property but

would then be replaced by a new permanent right-of-way from

approximately the southwest corner of the 2.94-acre parcel and

running northwest across the 2.53-acre parcel to basically where

the current private driveway entered Rainone's parcel; and a

right of first refusal for plaintiffs should defendant elect to

sell her property.

In August 2012, defendant moved to vacate the stipulation

of settlement. Plaintiffs cross-moved seeking, among other

things, an order compelling defendant to comply with the in-court

stipulation and execute a written stipulation consistent

therewith. Supreme Court, as is relevant here, denied

defendant's motion and partially granted plaintiffs' motion, 

ordering defendant to, among other things, execute a written

stipulation of settlement consistent with the in-court

stipulation of settlement. Defendant appeals.

1 The action as to codefendant Phillip Davenport has been

discontinued. Plaintiffs did not allege that plaintiff G. Thomas

Rainone was an owner of the relevant property.
-3- 517202 

"Stipulations of settlement – particularly ones entered

into in open court – are judicially favored and, as such, will

not be set aside absent grounds sufficient to invalidate a

contract, i.e., fraud, collusion, mistake or accident" (Matter of

McLaughlin, 97 AD3d 1051, 1052 [2012]; see Hallock v State of New

York, 64 NY2d 224, 230 [1984]; Liquori v Liquori, 106 AD3d 1249,

1250 [2013]). Defendant was represented by counsel and the

stipulation was read into the record in her presence. She

confirmed under oath during detailed questioning by Supreme Court

that she had ample time to discuss the terms of the stipulation

with her counsel and that she adequately understood the terms

thereof. Her current contention that her counsel's

representation was less than satisfactory and allegedly negligent 

does not establish a ground to set aside the stipulation under

the circumstances (see Hallock v State of New York, 64 NY2d at

230-231). The record reveals no basis for vacating the

stipulation based on what transpired in open court (see Liquori v

Liquori, 106 AD3d at 1251; Hamilton v Murphy, 79 AD3d 1210, 1212

[2010], lv dismissed 16 NY3d 794 [2011]). 

Defendant further argues that the stipulation is both

unlawful because constructing the new right-of-way may violate

various land use regulations and unenforceable as an agreement to

agree since the precise route of the new right-of-way was not

fully set forth. The eventual purchaser or recipient of

Rainone's property would be the one pursuing construction of the

new right-of-way and would be obligated – absent a specific

agreement otherwise – to obtain necessary governmental approvals

and ensure compliance with applicable regulations. Defendant's

contention that the new right-of-way may violate some uncited

regulations is based totally on speculation and unsupported by

any evidence in the record. Although the precise route of the

entire length of the new right-of-way was not included in the

stipulation, this does not vitiate the stipulation since the

intent to provide a general right of passage from an identified

area of defendant's property to an identified area of Rainone's

property was sufficiently articulated therein (see generally

Lewis v Young, 92 NY2d 443, 449 [1998]).
-4- 517202 

Stein, McCarthy, Rose and Devine, JJ., concur.

ORDERED that the order is affirmed, with costs.

ENTER:

Robert D. Mayberger

Clerk of the Court