2013-2252013-225
Resolution Authorizing Entering Into A Stipulation of Discontinuance 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 October
15, 2013.
The meeting was called to order by Barbara Gutzler, Supervisor, and upon roll being
called, the following were present:
PRESENT: Supervisor
Councilmembers
ABSENT:
Barbara Gutzler
William H. Beale
Vincent F. Bettina
Ismay Czarniecki
Michael Kuzmicz
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"), 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 of Defendants to maintain the approved contours on their
respective properties had resulted in an accumulation of water or "ponding" on Adams Street, to
the detriment of the Town and neighboring property owners; and
WHEREAS, since the filing of the Town's lawsuit, certain improvements have been
made to the existing contours of the properties in question, which improvements have alleviated
the flooding and ponding condition that caused the commencement of this action; and
WHEREAS, specifically, a Swale has been constructed along the southern boundary of
the Howe property, and that this swale adequately carries the stormwater runoff from the
southeast terminus of Adams Street to the existing "rivulet" or watercourse that flows from north
to south through the easterly portion of the lands of Mazochi, substantially as set forth in the
sketch plan that is attached as Exhibit A to the proposed Stipulation of Discontinuance and made
an integral part thereof; and
WHEREAS, the parties acknowledge that this swale adequately drains the stormwater
from the southeast terminus of Adams Street that had previously been ponding at the end of the
street; and
WHEREAS, after much deliberation and negotiation, the parties have agreed to settle their
differences by entering into a Stipulation of Discontinuance of the litigation, which, among other
things, requires the maintenance of the "status quo" of the contours of the Defendants' respective
properties, including the swale as presently constructed; in the alternative, if the swale is not
maintained as presently constructed, the parties agree that each of the Defendants will comply
with the approved Final Plot Plans submitted in connection with the construction of single-
family residences on their respective properties, such plans being attached as Exhibit E
(Mazochi) and Exhibit J (Howe) to the Complaint in this action; and
WHEREAS, the Attorney to the Town recommends that the Town enter into the Stipulation of
Discontinuance on the terms set forth therein.
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 hereto as Exhibit "A" are reasonable
and acceptable and the Town Boaxd 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,
Esq., 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, provided that counsel for the Defendants in the action, and the
Defendants, have previously executed the Stipulation, and further authorizes the
Attorney to the Town to have the same filed with the Clerk of the Supreme Court,
and the Town Board hereby agrees to be bound by the terms and conditions stated
therein.
The foregoing was put to a vote which resulted as follows:
BARBARA GUTZLER, SUPERVISOR Voting: AYE
WILLIAM H. BEALE, COUNCILMAN Voting: AYE
VINCENT F. BETTINA, COUNCILMAN Voting: AYE
ISMAY CZARNIECKI, COUNCILWOMAN Voting: AYE
MICHAEL KUZMICZ, COUNCILMAN Voting: AYE
Dated: Wappingers Falls, New York
10/15/2013
The Resolution is hereby duly d lar d adopted.
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~~~~~~
MIC AEL J. L A ,TOWN CLERK
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
------------------------------------------------------------------------x
TOWN OF WAPPINGER,
Plaintiff,
-against-
DONALD A. MAZOCHI, CATHERINE J. MAZOCHI,
RICHARD J. HOWE and THERESA C. HOWE,
Defendants.
--------------------------------------------x
Index No.: 2011/6925
STIPULATION OF
DISCONTINUANCE
WHEREAS, the undersigned are the attorneys of record for all parties to the above-
entitled action and all parties thereto; 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 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, attached as Exhibits
"E" and "J" to the Complaint, submitted in connection with the construction ofsingle-family
residences on their respective properties located on Adams Street in the Town of Wappinger; and
WHEREAS, the failure of Defendants to maintain the approved contours on their
respective properties had resulted in an accumulation of water or "ponding" on Adams Street, to
the detriment of the Town and neighboring property owners; and
WHEREAS, since the filing of the Town's lawsuit, certain improvements have been
made to the existing contours of the properties in question, which improvements have alleviated
the flooding and ponding condition that caused the commencement of this action; and
WHEREAS, specifically, a Swale has been constructed along the southern boundary of
the Howe property, and that this Swale adequately carries the stormwater runoff from the
southeast terminus of Adams Street to the existing "rivulet" or watercourse that flows from north
to south through the easterly portion of the lands of Mazochi, substantially as set forth in the
sketch plan that is attached hereto as Exhibit A, which sketch plan shall be deemed an integral
part hereof; and
WHEREAS, the parties acknowledges that this Swale adequately drains the stormwater
from the southeast terminus of Adams Street that had previously been ponding at the end of the
street; and
WHEREAS, each of the Defendants has agreed to maintain the "status quo" of the
contours of their respective properties, including the swale as presently constructed; in the
alternative, if the Swale is not maintained as presently constructed, the parties agree that
each of the Defendants will abide by the terms and conditions of the Subdivision Plat approval,
deed restriction and/or Final Plot Plan approvals for the construction of the houses on their
respective properties, as applicable, for as long as they shall own the property, such Final Plot
Plans being attached as Exhibit E (Mazochi) and Exhibit J (Howe) to the Complaint in this
action,
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. .
IT IS HEREBY FURTHER STIPULATED AND AGREED, that the above-entitled
action be, and the same hereby 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 shall be
binding upon the parties hereto and their heirs, executors, agents, successors and assigns; 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
2
IT IS HEREBY FURTHER STIPULATED AND AGREED, that this Stipulation may be
filed without further notice with the Clerk of the Court.
Dated: , 2013 Dated: , 2013
Albert P. Roberts, Esq. Kevin A. Denton, Esq.
STENGER, ROBERTS, DAVIS Denton & McLaughlin, PC
& DIAMOND, LLP Attorneys for the Mazochi Defendants
Attorneys for Plaintiff One Memorial Avenue
1136 Route 9 P.O. Box 418
Wappingers Falls, NY 12590 Pawling, New York 12564
Dated: , 2013
Donald Cappillino, Esq.
Cappillino & Rothschild LLP
Attorneys for the Howe Defendants
Seven Broad Street
P.O. Box 390
Pawling, New York 12564-0390
So ordered:
Hon. Maria Rosa, J.S.C.
DONALD A. MAZOCHI CATHERINE J. MAZOCHI
STATE OF NEW YORK
COUNTY OF DUTCHESS
ACKNOWLEDGEMENTS
ss..
On the day of , in the year 2013, 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 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
STATE OF NEW YORK
COUNTY OF DUTCHESS
On the day of
ss..
in the year 2013, before me, the undersigned, a
Notary Public in and for said State, personally appeared CATHERINE J. 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
4
RICHARD J. HOWE THERESA C. HOWE
STATE OF NEW YORK
COUNTY OF DUTCHESS
ACKNOWLEDGEMENTS
ss..
On the day of , in the year 2013, 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 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
STATE OF NEW YORK
COUNTY OF DUTCHESS
ss..
On the day of , in the year 2013, 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
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