        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

917
CA 11-02065
PRESENT: SMITH, J.P., PERADOTTO, CARNI, LINDLEY, AND MARTOCHE, JJ.


THOMAS A. ELDRIDGE, DANIEL L. ELDRIDGE,
DAVID T. ELDRIDGE AND PETER A. ELDRIDGE,
PLAINTIFFS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

VINCENT P. SHAW AND MARTHA M. SHAW,
DEFENDANTS-RESPONDENTS.
(APPEAL NO. 1.)


CARL J. DEPALMA, AUBURN, FOR PLAINTIFFS-APPELLANTS.

THE THURSTON LAW OFFICE, P.C., AUBURN (EARLE E. THURSTON OF COUNSEL),
FOR DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Cayuga County (Thomas
G. Leone, A.J.), entered January 28, 2011. The order, inter alia,
granted the motion of defendants to enforce a stipulation of
settlement and denied the cross motion of plaintiffs to vacate the
stipulation of settlement.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiffs, who own property adjoining defendants’
property, commenced this action seeking a determination establishing
the location of the common boundary line between those properties.
Before the scheduled trial date, the parties entered into an oral
stipulation of settlement in open court (stipulation), wherein they
agreed that a June 2005 survey map prepared by defendants’ surveyor
(defendants’ survey) established the location of the boundary between
their properties. The parties acknowledged that they had reviewed the
defendants’ survey, and defendants’ attorney later prepared a written
settlement agreement consistent with the stipulation. Plaintiffs,
however, refused to sign the agreement on the ground that the
defendants’ survey inaccurately depicted the location of the boundary
line. In appeal No. 1, plaintiffs appeal from an order that, inter
alia, granted defendants’ motion to enforce the stipulation and denied
plaintiffs’ cross motion to vacate the stipulation. In appeal No. 2,
plaintiffs appeal from an order denying their motion to settle the
record, wherein plaintiffs sought to include the pleadings. We affirm
in both appeals.

     With respect to appeal No. 1, we conclude that plaintiffs failed
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                                                         CA 11-02065

to establish by clear and convincing evidence that a mutual mistake
existed at the time the parties entered into the stipulation. “In
order to vacate a stipulation of settlement on the ground of mutual
mistake, the [movant must] demonstrate, by clear and convincing
evidence . . . , that a mutual mistake existed at the time the
stipulation was entered into, and that the mistake was so substantial
that the stipulation failed to represent a true meeting of the
parties’ minds” (Matter of Steger, 81 AD3d 737, 738; see Asset Mgt. &
Capital Co., Inc. v Nugent, 85 AD3d 947, 948; Walker v Walker, 67 AD3d
1373, 1374-1375). “[M]atters extrinsic to the [stipulation] may not
be considered when the intent of the parties can be gleaned from the
stipulation itself” (Myles v Snorac, Inc., 298 AD2d 969, 969-970
[internal quotation marks omitted]).

     Here, the intent of the parties can be gleaned from the
stipulation, wherein they unambiguously agreed that the boundary line
between their properties “would be established as the line designated
in the [defendants’] survey.” The fact that plaintiffs’ surveyor
found a second iron post on the western boundary of defendants’
property approximately four months after the date on which the
stipulation was entered does not establish that a mutual mistake
existed at the time of the stipulation. The belief of plaintiffs and
their surveyor that the defendants’ survey may be inaccurate “[is]
irrelevant in light of [their] express reference to the [defendants’]
survey in the stipulation of settlement. In short, the time to
dispute the adequacy of that survey has long since passed” (French v
Quinn, 243 AD2d 792, 794, lv dismissed 91 NY2d 1002). To the extent
that plaintiffs contend that the stipulation should be vacated on the
ground of fraud, that contention was not advanced before the motion
court and thus is unpreserved for our review.

     We reject plaintiffs’ further contention that the stipulation
should be rescinded on the ground that defendants materially breached
its terms and conditions by refusing to have their surveyor examine
ancient markers allegedly discovered by plaintiffs’ surveyor after the
parties had entered into the stipulation. “Where, as here, a
stipulation is entered into the record pursuant to CPLR 2104, ‘courts
should construe [the stipulation] as an independent contract subject
to settled principles of contractual interpretation’ ” (Edgewater
Constr. Co., Inc. v 81 & 3 of Watertown, Inc. [appeal No. 2], 24 AD3d
1229, 1230, quoting McCoy v Feinman, 99 NY2d 295, 302). “As a general
rule, rescission of a contract is permitted for such a breach as
substantially defeats its purpose. It is not permitted for a slight,
casual[ ] or technical breach, but . . . only for such as are material
and willful, or, if not willful, so substantial and fundamental as to
strongly tend to defeat the object of the parties in making the
contract” (WILJEFF, LLC v United Realty Mgt. Corp., 82 AD3d 1616, 1617
[internal quotation marks omitted]).

     Here, plaintiffs are essentially contending that defendants
materially breached the stipulation by refusing to modify it after
plaintiffs’ surveyor allegedly found ancient markers that establish a
location of the boundary different from that shown in the defendants’
survey. That contention is untenable for the obvious reason that
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                                                         CA 11-02065

defendants’ refusal to modify the stipulation does not constitute a
breach of the stipulation.

     We also reject plaintiffs’ contention that the stipulation should
be rescinded on the ground that defendants materially breached its
terms and conditions by spraying weed killer and creating an earth
berm on plaintiffs’ property. Even assuming, arguendo, that
defendants engaged in those actions, we conclude that those alleged
breaches would not provide a basis to rescind the stipulation because
they are not “material and willful,” nor are they “so substantial and
fundamental as to strongly tend to defeat the object of the parties in
making the contract,” i.e., to establish the placement of the boundary
line (WILJEFF, LLC, 82 AD3d at 1617; see Links at N. Hills v Baker,
226 AD2d 279, 279; Babylon Assoc. v County of Suffolk, 101 AD2d 207,
215).

     In appeal No. 2, although we agree with plaintiffs that the
pleadings should have been included in the record on appeal (see 22
NYCRR 1000.4 [a] [2]), dismissal of the appeal from the order in
appeal No. 1 is not warranted. The absence of the pleadings does not
“render[] meaningful appellate review impossible” inasmuch as this
appeal concerns the enforceability of the stipulation, not the merits
of plaintiffs’ causes of action (Mergl v Mergl, 19 AD3d 1146, 1147).




Entered:   October 5, 2012                      Frances E. Cafarell
                                                Clerk of the Court
