Bemis v. Town of Crown Point

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 petitioners^[1] 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 against Cummings and Sylvia Caldwell^[2] 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 resolu

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 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 applica

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 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

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]; 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]).