                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered:    October 30, 2014               517633
                                                       517634
________________________________

In the Matter of ALFRED
   BEMIS JR. et al.,
                    Appellants,
      v

TOWN OF CROWN POINT et al.,
                    Respondents.

(Proceeding No. 1.)
________________________________
                                            MEMORANDUM AND ORDER
In the Matter of ALFRED
   BEMIS JR. et al.,
                    Appellants,
      v

EDMUND CUMMINGS,
                      Respondent.

(Proceeding No. 2.)

(And Two Related Actions.)
________________________________


Calendar Date:   September 8, 2014

Before:   McCarthy, J.P., Rose, Egan Jr., Devine and Clark, JJ.

                             __________


      Cory E. Friedman, Crown Point and Lemery Greisler, LLC,
Albany (James E. Braman of counsel), for appellants.

      Stafford, Piller, Murnane, Plimpton, Kelleher & Trombley,
PLLC, Plattsburgh (Justin R. Meyer of counsel), for Town of Crown
Point and others, respondents.
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      Breedlove & Noll, LLP, Clifton Park (Brian H. Breedlove of
counsel) and Viscardi, Howe & Rudgers, LLP, Ticonderoga (Dominic
J. Viscardi of counsel), for Edmund Cummings, respondent.

                           __________


Clark, J.

      Appeals from an order of the Supreme Court (Meyer, J.),
entered December 26, 2012 in Essex County, which, among other
things, dismissed petitioner's application, in proceeding No. 2
pursuant to Judiciary Law § 756, to hold respondent in contempt.

      These appeals involve cases that have been ongoing since
1996 and concern a longstanding dispute between petitioners1 and
respondent Edmund Cummings over the use and status of a road
known as "Narrowtown Road" located in the Town of Crown Point,
Essex County. The road, which traverses Cummings' property, is
an efficient means of ingress and egress for petitioners to
access their undeveloped real property parcel. Despite the
lengthy history of litigation in this matter, there has yet to be
a judicial determination regarding ownership of the road or the
respective rights of petitioners and Cummings.

      By way of background, in August 1996, petitioners commenced
action No. 1 by filing a complaint and an amended complaint




    1
        Petitioner Alfred Bemis Jr. passed away on January 7,
2014. By operation of law, however, his wife, petitioner
Glendine L. Bemis, became the sole owner of the share she
previously owned with him (see Matter of Violi, 65 NY2d 392, 395
[1985]). "Accordingly, the [proceedings] can proceed without a
substitution with the death simply being noted on the record"
(Thibodeau v Martin, 119 AD3d 1015, 1015 n 1 [2014] [internal
quotation marks and citations omitted]). References in this
decision to petitioners will include Alfred Bemis Jr.
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against Cummings and Sylvia Caldwell2 seeking a judgment
establishing that they had a prescriptive easement over the road
or, in the alternative, that they had a right to use the road,
pursuant to Highway Law § 205, because it had been abandoned by
respondent Town of Crown Point.

      In December 1997, petitioners sought and obtained a
resolution from the Town's board declaring that Narrowtown Road
was, in fact, a town road. In March 1999, after Supreme Court
had denied their application for a preliminary injunction in
action No. 1, petitioners commenced proceeding No. 1, pursuant to
CPLR article 78, against the Town and some of its employees
(hereinafter collectively referred to as respondents), seeking to
compel respondents to maintain the subject road. Soon thereafter
petitioners and respondents executed a stipulation of settlement
(hereinafter referred to as the 1999 stipulation) wherein
respondents agreed to, among other things, map Narrowtown Road as
a town highway and repair a portion of it. The 1999 stipulation
was subsequently so-ordered by Supreme Court.

      Thereafter, the Town commenced action No. 2 against
Cummings seeking to enjoin him from preventing petitioners'
access, use and maintenance of the road. Cummings, among other
things, answered, filed third-party complaints against
petitioners and moved, by order to show cause, to intervene in
the then-concluded proceeding No. 1, vacate the underlying 1999
stipulation and obtain injunctive relief. Supreme Court denied
Cummings' requested relief in all respects. An appeal by
Cummings ensued and this Court affirmed (Town of Crown Point v
Cummings, 300 AD2d 873, 874 [2002]).

      In March 2010, petitioners   commenced proceeding No. 2,
pursuant to Judiciary Law § 756,   seeking to hold Cummings in
contempt for his failure to obey   the settlement agreement issued
by Supreme Court in 1999 and for   his interference therewith (see


     2
        In 1999, Caldwell conveyed her interest in the property
to Cummings rendering him the sole owner. Caldwell is not a
party to the instant appeals.
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Judiciary Law § 756). In Cummings' answer, he moved to dismiss
the petition and cross-moved for, among other things, a
declaratory judgment establishing that the eight-foot-wide road
traversing his property is not, and was never, a town road.

      As is relevant to the instant appeals, in reviewing the
actions and proceedings, Supreme Court considered five motions
that were pending in proceeding Nos. 1 and 2 and action No. 2.3
Specifically, Supreme Court reviewed (1) petitioners' motion in
proceeding No. 1 to hold respondents in contempt for purportedly
violating the 1999 stipulation, (2) a cross motion by respondents
to consolidate proceeding No. 1 and action No. 2, (3) petitioners'
motion for summary judgment dismissing Cummings' affirmative
defenses and counterclaims in action No. 2, (4) respondents' cross
motion in action No. 2 for summary judgment dismissing Cummings'
counterclaims, and (5) the application by petitioners in
proceeding No. 2 to hold Cummings in contempt for his alleged
willful and intentional interference with respondents' attempt to
comply with the 1999 stipulation. First, Supreme Court denied
petitioners' summary judgment motion in action No. 2 as moot.
Second, in granting respondents' cross motion to consolidate, the
court did not merely consolidate proceeding No. 1 and action No.
2, but, rather, consolidated all four unresolved matters for
purposes of trial. Last, Supreme Court denied petitioners'
contempt motion against both respondents in proceeding No. 1, the
application for an order of contempt against Cummings in
proceeding No. 2 and respondents' cross motion for summary
judgment in action No. 2. Only petitioners appeal.

      Initially, petitioners' notices of appeal only reference
the index numbers for proceeding Nos. 1 and 2 and, as such, this
Court's review is limited to only the issues raised therein.
Specifically, only the issues raised in connection with
petitioners' applications to hold respondents and Cummings in


    3
        In its   decision, Supreme Court identified the matters
pending before   it simply as actions 1 through 4. Inasmuch as
"action 2" and   "action 4" are actually proceedings, this Court
has identified   the matters differently for accuracy.
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contempt, as well as respondents' cross motion to consolidate,
are properly before this Court.4 Further, to the extent that
petitioners have now abandoned any challenges that they may have
had to the order granting the cross motion to consolidate by
failing to raise any arguments regarding the order in their
brief, that issue also escapes our review (see Matter of
Birchwood Neighborhood Assn. v Planning Bd. of the Town of
Colonie, 112 AD3d 1184, 1185 n 2 [2013]; Matter of Smith v
O'Donnell, 107 AD3d 1311, 1312 n [2013]). Thus, despite the
complex procedural history of these proceedings and actions as a
whole, the issues before this Court are limited.

      Petitioners contend that the doctrine of res judicata bars
respondents and Cummings from asserting their defenses to
petitioners' contempt motion and petition because the 1999
stipulation resolved these issues. In general, the doctrine of
res judicata precludes a party from litigating "a claim where a
judgment on the merits exists from a prior action [or proceeding]
between the same parties involving the same subject matter"
(Matter of Hunter, 4 NY3d 260, 269 [2005]). Under New York's
transactional approach to this rule, "once a claim is brought to
a final conclusion, all other claims arising out of the same
transaction or series of transactions are barred, even if based
upon different theories or if seeking a different remedy"
(O'Brien v City of Syracuse, 54 NY2d 353, 357 [1981]). Even
though a stipulation of settlement represents a decision between
the parties to forgo judicial resolution of the issues (see
Dunleavy v First Am. Tit. Ins. Co. of N.Y., 117 AD2d 952, 953


    4
        In 2008, Cummings filed for bankruptcy. At an auction
for the sale of certain assets of the bankruptcy estate in
January 2011 (see 11 USC §§ 363 [b], [f]), petitioners purchased,
among other things, the affirmative claims that Cummings filed in
action No.1, proceeding No. 1 and proceeding No. 2. While
petitioners ask this Court to review that part of the trial
court's order that interpreted the impact that said purchase has
on Cummings' arguments regarding his property rights, this issue
does not directly impact the motions and application being
appealed from and, therefore, it will not be addressed herein.
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[1986]), where such a settlement discontinues the action or
proceeding with prejudice, as it did here, it may have a
preclusive effect in future litigation (see Biggs v O'Neill, 41
AD3d 1067, 1068 [2007]). Significantly however, a future action
or proceeding will not be subject to res judicata if the identity
of the parties engaging in the litigation is not identical (see
City of New York v Welsbach Elec. Corp., 9 NY3d 124, 127 [2007];
Matter of LaRocco v Goord, 43 AD3d 500, 500 [2007]).

      Here, because petitioners failed to raise the issue of res
judicata before Supreme Court in connection with their motion for
an order of contempt against respondents in proceeding No. 1,
this argument is only preserved for review as it concerns
Cummings (see Matter of Fleming v Goord, 28 AD3d 972, 973 [2006];
Matter of Monaco Coach Corp. [Brandt], 281 AD2d 787, 789 [2001]).
As to Cummings, inasmuch as he was not a party to the 1999
stipulation and did not have an opportunity to litigate the
issues of the road's ownership and status, we reject petitioners'
contention that the court erred in refusing to hold him in
contempt based upon the doctrine of res judicata (see Comi v
Breslin & Breslin, 257 AD2d 754, 757 [1999]). Moreover, the 1999
stipulation did not, and could not, finally resolve the issues of
ownership and status of the road, issues that were already
pending before Supreme Court in action No. 1.5 Thus, res
judicata is inapplicable. Further, to the extent that Supreme
Court dismissed petitioners' application for contempt against
Cummings in terms of the theory of collateral estoppel rather
than res judicata, we likewise determine that the 1999
stipulation does not collaterally estop the arguments now raised
(see Kaufman v Eli Lilly & Co., 65 NY2d 449, 456-457 [1985];


    5
        It is important to note that Cummings' inability to
intervene in proceeding No. 1 does not have any bearing on his
ability to litigate the issues raised herein (see generally
Matter of Reilly v Reid, 45 NY2d 24, 28-29 [1978]). To be clear,
this Court affirmed Supreme Court's denial of the forms of relief
that Cummings sought as an intervenor solely on the ground that
his motion was untimely and not on the merits of his substantive
claims (Town of Crown Point v Cummings, 300 AD2d at 874).
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Matter of Howard v Stature Elec., Inc., 72 AD3d 1167, 1169
[2010], affd 20 NY3d 522 [2013]; 1829 Caton Realty v Caton BMT
Assoc., 225 AD2d 599 [1996]).

      Additionally, it is well settled that a party may be held
in civil contempt when he or she has failed to obey a current
"'lawful judicial order expressing an unequivocal mandate'"
(Matter of Upper Saranac Lake Assn. v New York State Dept. of
Envtl. Conservation, 263 AD2d 916, 917 [1999], quoting McCain v
Dinkins, 84 NY2d 216, 226 [1994]; see Judiciary Law § 753 [A]
[3]; Matter of McCormick v Axelrod, 59 NY2d 574, 583 [1983],
amended 60 NY2d 652 [1983]; Levy v Morgan, 92 AD3d 1118, 1121
[2012]). The burden of proving contempt by clear and convincing
evidence rests with the proponent of the application (see Matter
of Yeager v Yeager, 110 AD3d 1207, 1210 [2013]).

      Here, Cummings cannot be held in contempt of the 1999
stipulation because he was not a party to it and was not
otherwise bound by it (see generally Power Auth. of State of N.Y.
v Moeller, 57 AD2d 380 [1977], lv denied 42 NY2d 806 [1977];
State Univ. of N.Y. v Denton, 35 AD2d 176 [1970]). Thus,
petitioners were unable to meet their prima facie burden and
Supreme Court properly dismissed the application with respect to
Cummings. Likewise, we find no basis upon which to reverse the
court's denial of petitioners' motion to hold respondents in
contempt given that the main issues of this dispute have remained
unresolved – i.e., the ownership and status of Narrowtown Road –
and respondents may or may not have a legal right to enter and
maintain the road (see Greenberg v Polansky, 140 App Div 326, 328
[1910]). In this regard, respondents cannot be held in contempt
for violating the 1999 stipulation until their legal authority
with respect to the road has been established (see generally
Pereira v Pereira, 35 NY2d 301, 308-309 [1974]; Matter of Augat v
Hart, 244 AD2d 800, 802 [1997]). Petitioners' remaining
contentions, to the extent they are preserved, have been
considered and found to be without merit.

     McCarthy, J.P., Rose, Egan Jr. and Devine, JJ., concur.
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ORDERED that the order is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
