2012-223
Stipulation of Discontinuance, a copy of which is attached as Exhibit "A", and in accordance
with the Grant of Permanent Easement for Maintenance of Storm water Drainage Facilities, a
copy of which is attached as Exhibit "B".
NOW, THEREFORE, BE IT RESOLVED, as follows:
1. The recitations above set forth are incorporated in this Resolution as if fully set
forth and adopted herein.
2. The Town Board hereby determines, after weighing all of the facts and
circumstances surrounding this matter, that the terms and conditions set forth in
the Stipulation of Discontinuance, attached as Exhibit "A", and the terms and
conditions of the Grant of Permanent Easement for Maintenance of Stormwater
Drainage Facilities, attached as Exhibit "B", are reasonable and acceptable and
the Town Board hereby agrees to be bound by the terms and conditions stated
therein.
3. The Town Board hereby authorizes the Attorney to the Town, Albert P. Roberts,
to execute the Stipulation of Discontinuance in the form annexed hereto, marked
and designated as Exhibit "A", by and on behalf of the Town of Wappinger and
have same filed with the Supreme Court, and the Town Board hereby agrees to be
bound by the terms and conditions stated therein.
4. As a condition of the Stipulation of Discontinuance, the Town Board agrees to
accept the terms and conditions of the Grant of Permanent Easement for
Maintenance of Stormwater Drainage Facilities, in the form attached hereto as
Exhibit "B", which Grant of Easement is to be executed by the Defendants
Mazochi and the Defendants Howe and recorded in the Dutchess County Clerk's
Office as soon as practicable.
5. The Town Board further authorizes Highway Superintendent Graham Foster, or
his designee, to negotiate any further terms to the Grant of Permanent Easement
for Maintenance of Stormwater Drainage Facilities he deems necessary to
facilitate the free flow of surface or stormwater away from Adams Street.
The foregoing was put to a vote which resulted as follows:
BARBARA GUTZLER, SUPERVISOR
WILLIAM H. BEALE, COUNCILMAN
VINCENT F. BETTINA, COUNCILMAN
ISMA Y CZARNIECKI, COUNCIL WOMAN
MICHAEL KUZMICZ, COUNCILMAN
Voting:
Voting:
Voting:
Voting:
Voting:
AYE
AYE
AYE
AYE
AYE
Dated: Wappingers Falls, New York
8/13/2012
The Resolution is hereby duly declared adopted.
bu~7~
CHRISTINE FULTON, TOWN CLERK
EXHIBIT "A"
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
______________________________________________________------------------}C
TOWN OF WAPPINGER,
Inde}C No.: 2011/6925
Plaintiff,
-against-
STIPULATION OF
DISCONTINUANCE
DONALD A. MAZOCHI, CATHERINE 1. MAZOCHI,
RICHARD 1. HOWE and THERESA C. HOWE,
Defendants.
______________________________________________________------------------}C
WHEREAS, the undersigned are the attorneys of record for all parties to the above-
entitled action; and
WHEREAS, no party hereto is an infant or incompetent person for whom a committee
has been appointed; and
WHEREAS, no person not a party has an interest in the subject matter of the action; and
WHEREAS, the parties hereto acknowledge that certain improvements have been made
to the e}Cisting contours of the various properties in question, which improvements have
alleviated the flooding and ponding condition that caused the commencement of this action; and
WHEREAS, the Town of Wappinger has agreed to accept a Grant of Permanent
Easement for Maintenance of Stormwater Drainage Facilities which will permit the Town, or its
agents, to enter onto the property of the Defendants in the event the Defendants do not maintain
drainage swales to remove surface or stormwater away from Adams Street.
NOW THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and between
the undersigned, that the recitations above set forth are incorporated as if fully set forth and
recited herein.
1
IT IS HEREBY FURTHER STIPULATED AND AGREED, that the above-entitled
action be, and the same is discontinued, with prejudice, and without costs to any party as against
the other; and
IT IS HEREBY FURTHER STIPULATED AND AGREED, that this stipulation may be
signed in counterparts, with each such counterpart constituting an original and all such
counterparts constituting one and the same document; and
IT IS HEREBY FURTHER STIPULATED AND AGREED, that this Stipulation may be
filed without further notice with the Clerk of the Court.
Dated:
,2012
Dated:
,2012
Albert P. Roberts, Esq.
VERGILIS, STENGER, ROBERTS, DAVIS
& DIAMOND, LLP
Attorneys for Plaintiff
1136 Route 9
Wappingers Falls, NY 12590
Kevin A. Denton, Esq.
Denton & McLaughlin, PC
Attorneys for the Mazochis
One Memorial Avenue
P.O. Box 418
Pawling, New York 12564
Dated:
,2012
Donald Cappillino, Esq.
Cappillino & Rothschild LLP
Attorneys for the Howes
Seven Broad Street
P.O. Box 390
Pawling, New York 12564-0390
2
EXHIBIT liB n
GRANT OF PERMANENT EASEMENT FOR MAINTENANCE OF
STORMW ATER DRAINAGE FACILITIES .
TffiS INDENTURE, made the _ day of August, 2012, between
RICHARD J. HOWE and THERESA C. HOWE
of and residing at 17 Adams Street, Wappingers Falls, NY 12590
(hereinafter referred to collectively as "HOWE" or "GRANTORS"),
DONALD A. MAZOCm and CATHERINE J. MAZOCHI
of and residing at 18 Adams Street, Wappingers Falls, NY 12590
(hereinafter referred to collectively as "MAZOCHI" or "GRANTORS"),
and
TOWN OF WAPPINGER
(hereinafter referred to as the "TOWN" or "GRANTEE"),
a municipal subdivision with its offices located at
Town Hall, 20 Middlebush Road,
Wappingers Falls, NY 12590.
W!INE~~~TH:
WHEREAS, HOWE are the owners of a certain parcel of property, commonly referred to
as 17 Adams Street, Wappingers Falls, Dutchess County, New York, 12590, tax parcel
identification no. 135689-6157-01-299923-0000, which is more particularly described in a
certain Deed dated November 29, 1990 from Richard Howe to Richard 1. Howe and Theresa C.
Howe, recorded in the Dutchess County Clerk's Office on December 3, 1990 in Liber 1880 of
Deeds at Page 73 (hereinafter referred to as the "HOWE PARCEL"); and
WHEREAS, MAZOCHI are the owners of a certain parcel of property, commonly
referred to as 18 Adams Street, Wappingers Falls, Dutchess County, New York, 12590, tax
parcel identification no. 135689-6157-01-296912-0000, which is more particularly described in a
certain Deed dated March 27, 1995 from Michael A. Mazochi to Donald A. Mazochi and
O:\Wappinger\Town Board\Mazochi - Adams Street Drainage\Easement . HOWE and MAZOCHI ONLY - Clean Version.doc
Catherine J. Mazochi, recorded in the Dutchess County Clerk's Office on March 29, 1995 in
Liber 1959 of Deeds at Page 120 (hereinafter referred to as the "MAZOCHI PARCEL"); and
. WHEREAS, the HOWE PARCEL, and the MAZOCHI PARCEL are contiguous each to
the other and share a common boundary; and
WHEREAS, the property owned by HOWE is improved by a swale which is located
immediately adjacent to the property line shared by HOWE and MAZOCHI as shown on a plat
entitled "As Built" map of survey made for R and T Howe dated April 17, 1991 and annexed
hereto and made apart hereof as Exhibit "A" (MAZOCHI property is shown as now or formerly
LeGuillo) on Exhibit "A"; and
WHEREAS, the aforedescribed swale was designed to drain surface and storm water
away from Adams Street to a rivulet located on the Mazochi parcel which discharges to Hunter's
Creek as shown on the Exhibit "A"; and
WHEREAS, the swale on the HOWE property drains on to the MAZOCHI property and
eventually into a swale as shown on a drawing tilted "As-Built Plan for Donald A. and Catherine
K. Mazochi" dated December 9, 2004 a copy of which is annexed hereto and made apart hereof
as Exhibit "B"; and
WHEREAS, the parties to this Grant of Easement have agreed to enter into it for the
purpose of maintaining a continuous and uninterrupted flow of surface or stormwater away from
Adams Street over the properties of HOWE and MAZOCHI to Hunter's Creek as shown on their
respective plat plans approved for the construction of their respective single-family homes.
NOW, THEREFORE, the parties hereto agree as follows:
1. RECITATIONS INCORPORATED: The recitations above set forth are
incorporated in this Easement as if fully set forth and recited herein.
2
2. GRANT OF PERMANENT EASEMENT AND RIGHT-OF-WAY: HOWE and
MAZOCHI each hereby grant unto the TOWN a PERMANENT EASEMENT AND RIGHT-OF-
WAY in, on, under and through that portion of each of their parcels, hereinafter described and
called the PERMANENT EASEMENT AREAS, for the transportation and disposal of surface,
storm or ground water and to maintain, repair, reconstruct, and inspect the same as the TOWN may
deem necessary or appropriate for the purposes set forth herein under the terms of this Grant of
Easement. HOWE and MAZOCHI each hereby expressly acknowledge that said surface or
stormwater will be discharged into a water course and/or rivulet located on the eastern portion of
the MAZOCHI PARCEL, which eventually discharges into Hunter's Creek.
3. HOWE PERMANENT EASEMENT AREA: The PERMANENT EASEMENT
AREA on the HOWE property contains the swale and runs parallel to the boundary which HOWE
and MAZOCHI share, as shown on the annexed Exhibit "A", and is five feet in width extending on
to the HOWE property, running parallel with the northerly boundary with MAZOCHI.
4. MAZOCHI PERMANENT EASEMENT AREA: The PERMANENT
EASEMENT AREA for MAZOCHI is described as the swale area shown on Exhibit "B", together
with a general and undescribed area that is reasonably and seasonably required to allow the flow of
surface and stormwater from Adams Street over the HOWE swale and into the swale as shown on
Exhibit "B".
5. MAINTENANCE: HOWE and MAZOCHI, their successors in interest, shall be
responsible for maintaining the PERMANENT EASEMENT AREA located on each of their
respective properties as shown respectively on Exhibit "A" and Exhibit "B". Maintenance of the
PERMANENT EASEMENT AREA shall require HOWE and MAZOCHI to undertake such work
3
n_______ ..._.__~.._.__.__._,....._._____,__~.____~~._----,-,-,.-:...,,....,.----,---,-.~--,.--~-'""'.-.,...... ...-----.---...'.'.....--
as is reasonably necessary to give effect to the purpose of this Grant of Easement. In the event that
either, or both, HOWE or MAZOCHI shall fail to perform their obligation under the terms of this
easement agreement, then the Town of Wappinger, in its sole discretion, and without the obligation,
to perform such maintenance work at the expense of HOWE or MAZOCHI or both, as the case
may be. In that event, any expense incurred by the Town of Wappinger shall become and deemed a
lien against the land upon which the work has been performed, together with any cost incurred by
the Town in this exercise and with interest at a rate of 12% per annum and including reasonable
legal fees, HOWE and MAZOCHI, by this agreement, do hereby grant the Town of Wappinger a
general easement of ingress and egress over each of their respective properties for the purpose of
maintaining the permanent easement areas as described in this agreement.
5. PROHIBITION/LIMITATIONS OF STRUCTURES: HOWE and MAZOCHI each
are hereby prohibited from planting any trees or shrubs or constructing and/or maintaining any type
of permanent or temporary structure and/or from constructing/installing any type of underground
pipes or conduits in, on, or over the PERMANENT EASEMENT AREA, or to otherwise impede
the flow of drainage over the easements, except upon the written approval of the Town of
Wappinger Highway Superintendent and upon the recommendation of the Town of Wappinger
Engineer. Notwithstanding the foregoing, HOWE shall be permitted to maintain a fence within the
PERMANENT EASEMENT AREA, as it presently exists. In the event that the fence installed by
HOWE within the PERMANENT EASEMENT AREA is required to be removed in order for the
TOWN to exercise its rights under this Agreement, the TOWN shall be permitted to remove any
portion or portions of the fence reasonably necessary to that exercise without liability. Re-
installation of the fence shall be the sole responsibility of HOWE, should HOWE choose to
reinstall same.
4
6. BINDING EFFECT: The terms, covenants, and agreements herein contained shall
inure to the benefit of, and be binding upon the parties hereto and their respective heirs,
distributees, legal representatives, successors and assigns and ALL COVENANTS HEREIN
SHALL RUN WITH THE LANDS AFFECTED THEREBY AND SHALL BE PERPETUAL
IN DURATION.
IN WITNESS WHEREOF, HOWE, MAZOCHI, and the TOWN have executed
this instrument as of the date first set forth above.
Richard J. Howe, Grantor
Theresa C. Howe, Grantor
Donald A. Mazochi, Grantor
Catherine A. Mazochi, Grantor
TOWN OF WAPPINGER
BY:
Barbara Gutzler, Supervisor
5
ACKNOWLEDGMENTS
STATE OF NEW YORK )
) ss.:
COUNTY OF DUTCHESS )
On the _ day of , 2012 before me, the undersigned, a notary public in and for
said state, personally appeared RICHARD J. HOWE, personally known to me or proved to me on
the basis of satisfactory evidence to be the individual whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his capacity, and that by his
signature on the instrument, the individual, or the person upon behalf of which the individual acted,
executed the instrument.
NOTARY PUBLIC
STATE OF NEW YORK )
) ss.:
COUNTY OF DUTCHESS )
On the _ day of ,2012 before me, the undersigned, a notary public in and for
said state, personally appeared THERESA C. HOWE, personally known to me or proved to me on
the basis of satisfactory evidence to be the individual whose name is subscribed to the within
instrument and acknowledged to me that she executed the same in her capacity, and that by her
signature on the instrument, the individual, or the person upon behalf of which the individual acted,
executed the instrument.
NOTARY PUBLIC
6
. ' .
STATE OF NEW YORK )
) ss.:
COUNTY OF DUTCHESS )
On the _ day of ,2012 before me, the undersigned, a notary public in and for
said state, personally appeared DONALD A. MAZOCHI, personally known to me or proved to me
on the basis of satisfactory evidence to be the individual whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his capacity, and that by his
signature on the instrument, the individual, or the person upon behalf of which the individual acted,
executed the instrument.
NOTARY PUBLIC
STATEOFNEWYORK )
) ss.:
COUNTY OF DUTCHESS )
On the _ day of ,2012 before me, the undersigned, a notary public in and for
said state, personally appeared CA THERlNE A. MAZOCHI, personally known to me or proved to
me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within
instrument and acknowledged to me that she executed the same in her capacity, and that by her
signature on the instrument, the individual, or the person upon behalf of which the individual acted,
executed the instrument.
NOTARY PUBLIC
7
~ ' ~ c.
STATE OF NEW YORK. )
) ss.:
COUNTY OF DUTCHESS )
On the _ day of ,2012, before me personally came BARBARA A. GUTZLER to
me known, who, being by me duly sworn, did depose and say that she resides in the Town of
Wappinger; that she is the Supervisor of the Town of Wappinger, the municipality described in and
which executed the above instrument; and that she signed her name thereto by authority of the
Town Board of the Town of Wappinger.
NOTARY PUBLIC
8
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"AoS BUILT"
J-MAP t:JF .sURVEY MA:JJE FOR
RAND T. Howe
SITUATE lA/THE TOWN OF WAPPINGCll
DUTCHLSS CO.. N. Y: 17 A 'PR.. 199/
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FINAL PLOT PlAN FOR MAZOCHIIADAMS STREET - SITE NOT FIELD VERIFIED 12122/04-
CONDITIONAL ACCEPTANCE:
1. Stabilization of all newly d1stullMod a.... or..crow account In tha amount of '1,500.00
to be m.lntalnad with Iha Town.
1\160
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2. Complation of pavemant of the driveway aa grad.. ax.- 6% 0' aacrvw account In Iha
amount of '1,000.00 to be malntalnad wtIh Iha Town.
3. Re-gradlng and ahaplng of dl1ch .. ahown on Iha Prallmlnary Plot Plan and Flied Map to
be completed aa _lha' a11owa. Eocl'OW account In the amount of '1,500.00 to be
malntainod with tho Town to lnaure lhatthla work be done.
4. Mapping of sanitary _, and wo.., "Mco on FInal PIal Plan to be aubm_to tho
Town. Th......' Invert aIovation shOuld be ahown to lna..... v." par fool elope. Thla
could be varined by tho Building lnapoctor and tho Pial Plan noed no1 be ro-clnlu_
to thia office if proper elope exists.
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T.M.# 6157-01-296912
Doc. 2002-2276
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EXHIBIT "B" - 2
I
2012-223
Resolution Authorizing Execution of a Stipulation of Discontinuance and Acceptance of
Grant of Permanent Easement for Maintenance of Stormwater Drainage Facilities in
Connection with Litigation Commenced Against Mazochi and Howe
At a regular meeting of the Town Board of the Town of Wappinger, Dutchess County,
New York, held at Town Hall, 20 Middlebush Road, Wappingers Falls, New York, on August
13,2012.
The meeting was called to order by Barbara Gutzler, Supervisor, and upon roll being
called, the following were present:
PRESENT: Supervisor
Councilmembers
Barbara Gutzler
William H. Beale (Arrived at 7:31PM)
Vincent F. Bettina (Arrived at 7:47 PM)
Ismay Czarniecki
Michael Kuzmicz
ABSENT:
The following Resolution was introduced by Councilman Beale and seconded by
Councilman Bettina.
WHEREAS, the Town of Wappinger brought an action in State of New York, Supreme
Court, Dutchess County, against Donald A. Mazochi and Catherine A. Mazochi (hereinafter
collectively referred to as "Mazochi") and Richard J. Howe and Theresa C. Howe (hereinafter
collectively referred to as "Howe"), property owners on Adams Street, for failure to maintain the
contours on their property as required on their approved Final Plot Plans submitted in connection
with the construction of single-family residences on their respective properties located on Adams
Street in the Town of Wappinger; and
WHEREAS, the failure to maintain the approved contours on their respective properties
has resulted in an accumulation of water or "ponding" on Adams Street, to the detriment of the
Town and neighboring property owners; and
WHEREAS, by Resolution dated June 25, 2012, the Town Board authorized a settlement
of the aforementioned Supreme Court action, however, two ofthe Defendants rejected this
settlement proposal; and
WHEREAS, after much deliberation and negotiation, the Town, Mazochi and Howe
have agreed to settle their differences by entering into a Stipulation of Discontinuance, which,
among other things, requires Mazochi and Howe to Grant a Permanent Easement for
Maintenance of Stormwater Drainage Facilities to the Town which requires both Howe and
Mazochi to maintain swales on their respective properties to drain surface and stormwater away
from Adams Street to a rivulet located on the Mazochi parcel, which rivulet in turn discharges
into Hunter's Creek, and upon the failure of Howe or Mazochi to properly maintain the swales,
the Town, or its agents, may enter onto the property of either Howe or Mazochi, as the case may
be, to maintain the free flow of surface or stormwater and charge the costs thereof to the
respective property owners, in accordance with the terms and conditions as stated in the