                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 23, 2015                     519226
________________________________

JOHN SALVADOR JR. et al.,
                    Appellants,
      v

TOWN OF LAKE GEORGE ZONING
   BOARD et al.,                            MEMORANDUM AND ORDER
                    Defendants,
      and

RICHARD HYMAN et al.,
                    Respondents.
________________________________


Calendar Date:   May 29, 2015

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

                             __________


     Madeline Sheila Galvin, Delmar, for appellants.

      Stafford Carr & McNally, PC, Lake George (Brian S.
Reichenbach of counsel), for respondents.

                             __________


Clark, J.

      Appeal from an order of the Supreme Court (Aulisi, J.),
entered January 31, 2014 in Warren County, which, among other
things, denied plaintiffs' motion to enforce a stipulation.

      In 1998, plaintiffs and Top of the Mountain Associates
(hereinafter TMA), adjacent landowners, entered into a boundary
line agreement that fixed a common boundary line through the
center of a roadway known as Shaw Road Extension, a private
roadway serving as an extension of Shaw Road in the Town of Lake
George, Warren County. In addition, the boundary line agreement
                              -2-                519226

between plaintiffs and TMA provided each party – including their
heirs, successors and assigns – a reciprocal right-of-way for
ingress and egress on each party's portion of the roadway.

      In 1999, defendants Richard Hyman and Diane Hyman
(hereinafter collectively referred to as defendants) purchased
several lots from TMA that included the right of ingress and
egress over Shaw Road and Shaw Road Extension. At some point
after purchasing their property, defendants made several attempts
to repair Shaw Road Extension and, allegedly, plaintiffs have
interfered with these attempts. In 2005, plaintiffs commenced
this action seeking declaratory relief regarding, among other
things, the legal status of defendants' land. Defendants
counterclaimed, seeking, among other things, a declaratory
judgment that they had an easement over plaintiffs' property for
ingress and egress and that they had the ability to maintain and
improve Shaw Road Extension.

      In 2006, the parties participated in a settlement
conference before Supreme Court in order to address the parties'
claims, which concluded without an agreement; however, following
the conference, the parties engaged in further discussions and
agreed on the terms negotiated on the record of the conference.
The parties then entered into a written "settlement stipulation,"
which incorporated the transcript of the settlement conference
and indicated that each and every term of the settlement was
included in such transcript. The parties further agreed that
"both the action in chief and all counterclaims are hereby
discontinued and all motions are hereby withdrawn, all with
prejudice." The stipulation, which represented a "full and final
settlement of all claims . . . and counterclaims" of the parties,
was filed and recorded with the Warren County Clerk's office on
April 12, 2006.

      In 2013, plaintiffs filed a motion in this action seeking,
among other things, to enforce the stipulation. Specifically,
plaintiffs alleged that defendants had failed to construct the
road according to the terms of the stipulation indicated in the
transcript of the settlement conference. Supreme Court denied
plaintiffs' motion, finding that the action had been terminated
by the stipulation of settlement and that plaintiffs were
                              -3-                  519226

required to bring a plenary action to enforce the terms of the
stipulation. Plaintiffs now appeal.

      Where, as here, a settlement agreement contains an express
stipulation of discontinuance or actual entry of judgment in
accordance with the terms of the settlement, commencement of a
plenary action is necessary to enforce the settlement since the
court does not retain the power to exercise supervisory control
over previously terminated actions and proceedings (see
Teitelbaum Holdings v Gold, 48 NY2d 51, 54-55 [1979]). Inasmuch
as the parties here have unequivocally executed and entered "an
express, unconditional stipulation of discontinuance" (id. at 56;
compare Aaron v Aaron, 2 AD3d 942, 943-944 [2003]), Supreme Court
properly denied plaintiffs' motion (see DiBella v Martz, 58 AD3d
935, 936-937 [2009]; Cooley v CNYE Realty Corp., Inc., 16 AD3d
871, 872 [2005]).

     Plaintiffs' remaining arguments are without merit.

     McCarthy, J.P., Egan Jr. and Devine, JJ., concur.



     ORDERED that the order is affirmed, with costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
