                           State of New York
                    Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: December 8, 2016                    522575
________________________________

R. CRAIG JENKINS,
                     Appellant,
     v                                       MEMORANDUM AND ORDER

E. KENT JENKINS, as Trustee of
   the MARTHA JENKINS FAMILY
   TRUST,
                    Respondent.
________________________________


Calendar Date:   October 19, 2016

Before:   Peters, P.J., Garry, Egan Jr., Rose and Mulvey, JJ.

                              __________


      Martin, Shudt, Wallace, DiLorenzo & Johnson, Troy (Robert
L. Adams of counsel), for appellant.

      Cooper Erving & Savage LLP, Albany (Susan C. Picotte of
counsel), for respondent.

                              __________


Egan Jr., J.

      Appeal from an order of the Supreme Court (McGrath, J.),
entered April 9, 2015 in Rensselaer County, which granted
defendant's motion to dismiss the complaint.

      In May 1997, Martha Jenkins (hereinafter decedent) created
the Martha Jenkins Family Trust, designated plaintiff and
defendant – two of her four children – as cotrustees and conveyed
her personal residence located in the Town of Brunswick,
Rensselaer County to the trust. Plaintiff previously had moved
in with decedent to assist with her care and, in March 2007,
commenced a proceeding pursuant to Mental Hygiene Law article 81
seeking to have decedent adjudicated to be an incapacitated
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person and to be appointed as the guardian of her person and her
property. Defendant and his remaining siblings opposed the
requested relief. Thereafter, in or about June 2007, the parties
and their siblings entered into a stipulation of settlement,
pursuant to the terms of which plaintiff was appointed as
decedent's personal guardian, and defendant was appointed as the
guardian of her property. Insofar as is relevant here, the
stipulation provided that, once decedent no longer occupied the
premises, the property would be sold at fair market value, but
that plaintiff would have "the right of first refusal to purchase
said residence at said value" – subject to certain enumerated
terms and conditions. If plaintiff failed to exercise that right
in accordance with the terms of the stipulation, he would be
required to vacate the premises within 90 days of the issuance of
the appraisal report for the property.

      Following decedent's death in October 2012, plaintiff's
attempt to purchase the home in conformity with the terms of the
foregoing stipulation was unsuccessful. When plaintiff failed to
vacate the premises as required, defendant commenced a summary
holdover proceeding against plaintiff in Brunswick Town Court.
In May 2013, the parties entered into a stipulation of settlement
in open court that, among other things, afforded plaintiff a
second opportunity to purchase the premises – again subject to
certain specific conditions.1 In conjunction therewith, Town
Court executed a judgment awarding defendant possession of the
premises and a warrant of eviction directing plaintiff's removal
therefrom, both of which defendant agreed to hold in abeyance
pending plaintiff's purchase of the property. In anticipation
thereof, the parties discussed possession of and access to the
property going forward and agreed that, "other than [as]
expressly provided for in the rest of the stipulation[],
[plaintiff would] have exclusive use and possession of the real
estate involved." The parties further agreed, however, that
plaintiff would allow an appraiser, defendant and his remaining


    1
        The transcript of this proceeding is dated July 30, 2013,
but counsel for defendant represented at oral argument – without
contradiction – that the resulting stipulation was reached on May
8, 2013.
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siblings access to the premises for the purpose of inventorying
and appraising decedent's personal property and, ultimately,
identifying which personal effects each of decedent's children
wished to acquire.

      Plaintiff does not dispute that he thereafter denied his
family members access to the property,2 in response to which
defendant commenced a turnover proceeding in Rensselaer County
Surrogate's Court seeking, among other things, a decree granting
him and the remaining beneficiaries access to the premises.
After plaintiff failed to appear for the scheduled inquest,
Surrogate's Court ordered, among other things, that plaintiff
deliver all of decedent's personal property to defendant, whom
Surrogate's Court also designated as decedent's preliminary
executor.

      In June 2014, plaintiff commenced this action seeking to
compel defendant to convey title to the subject premises, as well
as specific performance of the 2013 open court stipulation of
settlement and money damages. Defendant apparently continued to
pursue an amicable resolution of the underlying disputes – one
that would afford plaintiff yet another opportunity to purchase
the subject premises – but, when those efforts were unsuccessful,
defendant filed a pre-answer motion to dismiss the complaint
pursuant to CPLR 3211 (a) (1), (2), (3), (4) and (7), as well as
upon res judicata and collateral estoppel grounds (relying upon



    2
        The stipulation permitted family members access to the
property on two distinct occasions – specifically, they were
entitled to accompany the appraiser during his or her scheduled
visit, and they also were permitted to return to and access the
premises at a later date. According to plaintiff, access on the
latter of these two occasions was expressly contingent upon his
siblings generating a list of the items that they wished to
acquire. As only defendant accompanied the appraiser at the time
of the May 28, 2013 inventory/inspection, and as the remaining
family members purportedly did not generate the "required" list,
plaintiff insisted that he was justified in barring his siblings'
June 11, 2013 attempt to access the premises.
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the prior proceedings in Town Court).3 Supreme Court, relying
upon the terms of the parties' 2013 open court stipulation of
settlement, granted defendant's motion to dismiss the complaint
pursuant to CPLR 3211 (a) (1). This appeal by plaintiff ensued.4

      We affirm. Although plaintiff relies upon the "liberal
construction" standard afforded to a complaint on a motion to
dismiss pursuant to CPLR 3211 (a) (7), Supreme Court did not
grant defendant's motion to dismiss upon CPLR 3211 (a) (7)
grounds and, in any event, "[t]his liberal standard . . . will
not save allegations that consist of bare legal conclusions or
factual claims that are flatly contradicted by documentary
evidence or are inherently incredible" (Hyman v Schwartz, 127
AD3d 1281, 1283 [2015] [internal quotation marks and citations
omitted]; see Maldonado v DiBre, 140 AD3d 1501, 1505 [2016], lv
denied ___ NY3d ___ [Nov. 21, 2016]). To that end, dismissal of
a complaint under CPLR 3211 (a) (1) – the sole ground upon which
Supreme Court granted defendant the requested relief here – "is
appropriate where the documentary evidence utterly refutes the
plaintiff's . . . allegations, conclusively establishing a
defense as a matter of law" (Benetech, Inc. v Omni Fin. Group,
Inc., 116 AD3d 1190, 1192 [2014] [internal quotation marks,
brackets and citations omitted], lv denied 23 NY3d 909 [2014];
see Maldonado v DiBre, 140 AD3d at 1505; Ganje v Yusuf, 133 AD3d
954, 956 [2015]; Trask v Tremper Prop. Assn., Inc., 122 AD3d
1206, 1207 [2014]). In this regard, "it is clear that judicial
records, as well as . . . any other papers, the contents of which
are essentially undeniable, would qualify as documentary evidence
in the proper case" (Fontanetta v John Doe 1, 73 AD3d 78, 84-85
[2010] [internal quotation marks and citation omitted]; see Ganje
v Yusuf, 133 AD3d at 956-957).




     3
        In the interim, Town Court denied plaintiff's motion to
stay the warrant of eviction, and plaintiff was evicted from the
premises in May 2014.
     4
        According to counsel for defendant, the subject premises
were sold to plaintiff in January 2015.
                              -5-                522575

      The crux of plaintiff's argument upon appeal is that he
satisfied the only portion of the parties' 2013 open court
stipulation of settlement directly pertaining to the
preconditions that he had to fulfill in order to purchase the
subject premises and, therefore, defendant has no defense to his
subsequent failure to convey the property. The flaw in
plaintiff's argument on this point lies in his piecemeal reading
of the parties' agreement. Stipulations of settlement are
subject to the same well-settled principles that govern the
interpretation of a contract (see H.K.S. Hunt Club v Town of
Claverack, 222 AD2d 769, 769 [1995], lv denied 89 NY2d 804
[1996]; Matter of Frye v Brown, 189 AD2d 1031, 1033 [1993]) –
namely, to construe the agreement in accordance with the parties'
intent, which may "be gleaned not only from the literal language
of the agreement, but also from whatever reasonably may be
implied therefrom" (Matter of Frye v Brown, 189 AD2d at 1033;
accord Matter of Shatraw, 66 AD3d 1293, 1294 [2009]; see Vega v
Papaleo, 119 AD3d 1139, 1139 [2014]), and to read the agreement
as a whole – avoiding a construction that would render any
provision thereof meaningless (see Maldonado v DiBre, 140 AD3d at
1506).

      Applying these principles to the stipulation before us, it
is readily apparent that the provisions of the stipulation
governing defendant's and his siblings' access to the premises
for the purpose of inventorying, appraising and earmarking
decedent's personal property were part and parcel of the parties'
global agreement relative to plaintiff's purchase of the property
and the proposed settlement of the proceeding and disputes then
pending in Town Court. Indeed, counsel for plaintiff indicated
at the outset that the stipulation had been reached "with the
understanding that the parties agree[d] to be bound by all the
terms that [were] put on the record" (emphasis added) – not just
those provisions directly governing plaintiff's planned purchase
of the property. Further, a plain reading of the parties'
agreement makes clear that plaintiff's anticipated and otherwise
exclusive use and possession "of the real estate involved" was
subject to the provisions embodied in "the rest of the
stipulation[]," which included plaintiff's obligation to allow
access to the premises for the purpose of inventorying and
appraising decedent's personal property – specifically, to permit
                              -6-                522575

plaintiff's siblings "access to the premises at the same time as
the appraiser to identify those items which they would like to
acquire from the estate," as well as to afford them subsequent
access to the premises "at a duly appointed time, on reasonable
notice to [plaintiff]." Finally, there is no question that the
judgment and warrant of eviction issued by Town Court in favor of
defendant would not be vacated until "all the conditions laid
before the court" had been satisfied (emphasis added).

      Simply put, plaintiff's strained and selective
interpretation of the parties' stipulation, whereby defendant
would be compelled to convey the property to plaintiff despite
plaintiff's admitted failure to permit his siblings access
thereto, does not comport with the terms of the parties'
agreement as a whole (see e.g. H.K.S. Hunt Club v Town of
Claverack, 222 AD2d at 770), which clearly evidences the parties'
intent to reach an integrated resolution of the disputes then
pending between them. Further, adopting plaintiff's construction
of the agreement would render meaningless the provisions thereof
outlining the circumstances under which the judgment and warrant
of eviction would be vacated, as Town Court plainly would be
unable to evict the fee owner of the premises. Finally,
plaintiff's attempts to justify or excuse his conduct are, in our
view, insufficient to create an ambiguity in the stipulation
where one does not otherwise exist. In short, inasmuch as
defendant's documentary evidence conclusively established that
plaintiff failed to comply with all of the terms and conditions
set forth in the parties' 2013 stipulation of settlement, Supreme
Court properly granted defendant's motion to dismiss pursuant to
CPLR 3211 (a) (1). In light of this conclusion, we need not
consider defendant's alternative grounds for affirmance, and
plaintiff's remaining contentions, to the extent not specifically
addressed, have been examined and found to be lacking in merit.

     Peters, P.J., Garry, Rose and Mulvey, JJ., concur.
                        -7-                  522575

ORDERED that the order is affirmed, with costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
