                            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
