HAUCK v. THE STATE OF NEW YORK, #2003-010-025, Claim No. 102861, Motion No.
JANE H. HAUCK
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
Terry Jane Ruderman
GOLDSTEIN, GOLDSTEIN, RIKON & GOTTLIEBBy: Michael Rikon, Esq.
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: J. Gardner Ryan, Assistant Attorney General
July 14, 2003
See also (multicaptioned
The following papers numbered 1-3 were read and considered by the Court on
claimant's motion to vacate or modify a Stipulation of Settlement entered into
in open court:
Notice of Motion, Attorney's Supporting Affirmation and
Attorney's Affirmation in Opposition and
Attorney's Reply Affirmation and
This appropriation claim involves an irregularly shaped parcel of land in
Putnam County which comprised 4 contiguous parcels described on the tax map of
the Town of Carmel, County of Putnam, as lots 65.20-1-1, 65.20-1-3, 65.20-1-4,
65.20-1-9 (hereinafter 1-1, 1-3, 1-4, 1-9). On October 12, 1999, as part of the
Putnam County Bikeway II project to create a bicycle path, the New York State
Department of Transportation (DOT) appropriated 4.41 acres of claimant's
property that had frontage on Weber Hill Road and an access easement over Old
Wood Road to Weber Hill Road. This included all of lot 1-4 and rendered
claimant's remaining contiguous lots 1-1, 1-3, and 1-9 without access to Weber
Hill Road (see Claimant's Ex. C; Defendant's Ex. 2).
Settlement Placed on the Record
On December 10, 2002, a Stipulation of Settlement and the terms of the
settlement were placed on the record in open court by claimant's counsel and
defendant's counsel. It was agreed that defendant would pay $200,000, less the
advance payment already made, with interest at the statutory rate from the date
of the appropriation (Claimant's Ex. D, pp 2-3). Additionally, claimant would
be deeded a 35 foot wide access corridor from Weber Hill Road to lot 1-3. The
corridor would be fenced and the drainage as indicated in the bikeway plans
would be located so as to no longer pass from the bikeway onto claimant's
Claimant Seeks to Amend Settlement
Two days after placing the Stipulation of Settlement on the record, claimant
wrote to Suzanne Bridges, a Real Estate Specialist II and representative of DOT
who had been authorized to negotiate and approve the terms of the settlement on
behalf of DOT (Defendant's Ex. 2). By letter dated December 12, 2002, claimant
sought "to amend the settlement" by extending the 35 foot access "about 200 feet
longer" to end at lot 1-9. Claimant explained that such amendment "would result
in a smooth arc line; reduce angles and reduce cost of fencing. And, it would
give me a little more land towards development *** I would feel reasonably
little more compensated [sic]" (id.) The proposed amendment is
highlighted on a map in Defendant's exhibit 2.
By letter dated March 17, 2003, claimant's attorney informed the Court that
defendant could not extend the agreed upon access road to end at lot 1-9, as
claimant had requested (Court file). Further, claimant's attorney noted that
claimant does not appear to have title to lot 1-1 and there was pending
litigation regarding this issue. Therefore, according to claimant, to end the
access road at lot 1-3 does not provide access to claimant's remaining property,
1-9, because 1-3 is burdened with wetlands. Accordingly, claimant's attorney
sought a conference with the Court to set aside the settlement. The matter was
scheduled for a conference with the Court on May 1, 2003.
Court Hearing Regarding Claimant's Application to Set Aside Settlement
On May 1, 2003, claimant's attorney argued in open court that the settlement
was entered into based upon the assumption that claimant owned lot 1-1 and that
this assumption was a mistake which warrants setting aside the settlement.
Specifically, claimant's attorney referred to the pending litigation in Supreme
Court to quiet title regarding lot 1-1. It was alleged in the Supreme Court
action that Putnam County had incorrectly deeded lot 1-1 in foreclosure to
claimant. By letter dated December 9, 2002, the attorney representing claimant
in the Supreme Court action had informed claimant's attorney in this matter that
a settlement had been proposed to compensate claimant for incorrectly deeding
her lot 1-1. The proposed settlement included a money payment and a deed to lot
1-2 (Claimant's Ex. E). As of the date of this application, the proposed
settlement in Supreme Court has not been accepted by claimant (Claimant's Reply,
Claimant's attorney admittedly knew of the pending litigation in Supreme Court
when the Stipulation of Settlement in this Court was entered into on December
10, 2002. Nonetheless, claimant's attorney argued to this Court that the agreed
to access road, which ends at claimant's lot 1-3, is not workable because it
leaves claimant's lot 1-9 and lot 1-2 (which is part of the proposed settlement
in Supreme Court) without access to Weber Hill Road and access can not be had
via 1-3 because of intervening wetlands on 1-3.
In opposition to the application, defendant's attorney argued that all the
factors recited by claimant's attorney were known to all parties prior to
entering into the settlement on December 10, 2002, i.e., the pending litigation
in Supreme Court regarding the cloud over claimant's title to lot 1-1 and the
presence of wetlands on lot 1-3.
was with such knowledge of these factors that the settlement specifically
provided that the access road would extend to lot 1-3, to which claimant's title
was not in dispute. Defendant argued that there was no "mistake" of fact
warranting setting aside the settlement, rather claimant has merely reconsidered
the terms of the settlement and is now seeking to improve the terms of the
settlement (Claimant's Ex. G, p 7).
Defendant's attorney further argued that claimant's assumption of ownership of
lot 1-2 as part of the proposed settlement in the Supreme Court action is not
relevant in this matter because, even if the access road were extended to lot
1-9, lot 1-2 would be landlocked by lot 1-9 and lot 1-3. The Court also noted
at the hearing that, even if claimant owned 1-1, the terms of the stipulation
did not provide that lot 1-9 would have access to Weber Road, except through lot
1-3 (id. at 14). In response to claimant's request for an extension of
the agreed to access roadway, defendant stated that it would require a
remediation of wetlands within the confines of the bikeway and would require an
alteration of permits issued by the Federal government.
The Court reserved decision on claimant's application and provided the parties
with the opportunity to submit papers to the Court.
Stipulations of Settlement are favored by the Courts and not lightly set aside
(see Hallock v State of New York, 64 NY2d 224, 230). "A
stipulation of settlement, particularly one made in open court, is to be
strictly enforced, and a party will not be relieved from the consequences of a
stipulation unless it establishes cause sufficient to invalidate a contract,
such as fraud, collusion, mistake, or accident" (Quality Ceramic Tile &
Marble Co. v Cherry Val. Ltd. Partnership, 259 AD2d 607). A mutual mistake
sufficient to warrant vacating a Stipulation of Settlement requires proof that
the mistake existed at the time of the stipulation and that it was so
substantial that the stipulation does not represent a true meeting of the minds
(Mahon v New York City Health & Hosps. Corp., 303 AD2d 725;
Gillray L., 287 AD2d 865 [mutual mistake not established where in
hindsight the terms of the settlement are difficult to effectuate]). "Courts
may not rewrite an agreement between parties" (Matter of Evans v Board of
Assessment Review of Town of Catskill, 284 AD2d 753, 755) and "a court
should not, under the guise of interpretation, make a new contract for the
parties" (Sklerov v Sklerov, 231 AD2d 622). Courts will not set aside a
stipulation merely because in "hindsight" a party decides that the terms of the
stipulation were "improvident" (Town of Clarkstown v M.R.O. Pump &
Tank, 287 AD2d 497, 498).
Claimant argues that the Stipulation of Settlement should be vacated on the
ground of mutual mistake because the parties negotiated the settlement on "an
incorrect premise, that is, Claimant being the title owner to [lot 1-1]. ***
Thus, a true meeting of the minds was impossible" (Claimant's Reply
The assertion made by claimant's attorney of mutual mistake is belied by the
record of the hearing before this Court on May 1, 2003 and the papers before the
Court on this application (see Lowinger v Lowinger, 303 AD2d 723
[record belies plaintiff's claim that her attorney did not understand the nature
of the stipulation]). Indeed, the record of the hearing indicates that this
very issue was addressed and effectively refuted by defendant's attorney:
"[a]ll of the factors that [claimant's attorney] now cites were known on
December 10, 2002. It was known at that point that there had been a settlement
in litigation that had been a cloud on [claimant's] title to lot [1-1]. That
was considered as part of the settlement and it was agreed that the access to be
deeded to her would extend from Weber Hill Road to plot [1-3]."
(Claimant's Ex. G, p 6). Claimant's attorney conceded that he was aware of the
ongoing Supreme Court litigation (id. at 8) and it was undisputed that on
December 10, 2002, claimant, claimant's attorney, and defendant's attorney all
knew that claimant "did not own" lot 1-1 and that such factor was considered as
part of the negotiated settlement (id. at 9). It was further unrefuted
that claimant's attorney had received the letter dated December 9, 2002
regarding the Supreme Court action settlement prior to entering into the
stipulation with this Court (id. at 17). The record of the May
hearing so states:
"[Defendant's attorney]: If I may, Your Honor, on December 10, 2002, we
knew that [claimant] did not own [lot 1-1] [emphasis added].
The Court: Who is we, everyone [emphasis added]?
[Defendant's attorney]: Well, [claimant's attorney], myself, [claimant].
it was discussed as part of the negotiations leading to the stipulation that was
placed on the record before you.
And it was agreed that the corridor would extend to the first parcel that
[claimant] did own, and to which her title is not in dispute and that is [lot
(id. at 9-10). Additionally, it was also addressed at the hearing that
any settlement in the Supreme Court action with regard to a conveyance of lot
1-2 did not impact the settlement in this claim, as defendant's attorney
"Her assumption of ownership of [lot 1-2], as [claimant's attorney] just
indicates, doesn't change the access issue at all, because any right of way
along the bikeway would not give her direct access to that parcel. It is
sheltered from the bikeway by her other holdings."
(id. at 10).
It is noteworthy that in the instant case, claimant was represented by counsel
and actively participated in settlement negotiations (see Mullings v
Mullings, 288 AD2d 449 [both parties were represented by counsel and
participated in and agreed to the stipulation that was placed on the record];
Town of Clarkstown v M.R.O. Pump & Tank, 287 AD2d 497, supra
[stipulations not lightly set aside particularly where the terms were read into
the record and the party seeking to set aside was represented by counsel]).
Moreover, there is no evidence that the stipulation of settlement was
"manifestly unfair" (Mullings v Mullings, 288 AD2d 449, supra) or
"so inequitable as to be deemed unconscionable" (Town of Clarkstown v M.R.O.
Pump & Tank, 287 AD2d 497, supra at 498) .
Upon conducting the hearing and considering the papers submitted, the Court
finds that the application made by claimant's attorney for a modification or to
set aside the stipulation is no more than an attempt to improve the terms of the
agreed to stipulation because, when viewed in hindsight, it appears improvident
(see Town of Clarkstown v M.R.O. Pump & Tank, 287 AD2d 497,
supra at 498). The record of the hearing indicates that claimant's
attorney oversimplifies the application without regard to the established law
which sets forth the circumstances under which a court may grant such
application. Claimant's attorney stated at the hearing:
"We are perfectly willing to go along with the settlement. All that we have
asked is that the Department of Transportation extend the corridor so that it
could reach the lot which, or the portion of the property which has been marked
[lot 1-9]. That's all we require, is an extension."
(Claimant's Ex. G, p 11). Claimant's attorney further stated, "[t]he
Department of Transportation, you build thousands of miles of roadway"
(id. at 12).
The Court notes that the hearing was conducted at the request of claimant's
attorney and that claimant also had the opportunity to submit papers in further
support of the application. Nonetheless, claimant's attorney failed to put
forth any concrete evidence substantiating his conclusory allegation that the
wetlands situated on lot 1-3 prevented access from claimant's other lots to
Weber Hill Road via lot 1-3. This was also pointed out at the hearing by
"Your Honor, we have heard no reason why [claimant] cannot have access from this
point to the entirety of her property other than that there are wetlands on her
those wetlands would have to be remediated for any development of this property,
altered in some fashion. So, all we are talking about is the state now giving
her something that will ease her burden for the development of the property,
other than access."
(id. at 13-14).
Accordingly, this Court finds that claimant has failed to establish any basis
for either modifying or setting aside the Stipulation of Settlement.
July 14, 2003
Plains, New York
HON. TERRY JANE RUDERMAN
Judge of the Court of
Defendant's attorney produced a copy of the
letter dated December 9, 2002, which was given to him by claimant's attorney on
December 10, 2002 (Claimant's Exs E;.G, p 17).
Claimant's reliance upon Atco Canton Corp.
, 133 AD2d 949, as set forth in her motion papers and reply papers
is misplaced. In that case, the matter was remitted for an evidentiary hearing
to determine if the attorney had either actual or apparent authority to enter
into the stipulation (id.
at 950). No such issue exists in the instant