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Appeal from an order of the Supreme Court, Oswego County ■ (Norman W. Seiter, Jr., J.), entered January 27, 2006. The order, among other things, denied that part of defendant’s motion for an order directing plaintiff to comply with an oral stipulation of the parties made in open court and to transfer certain real property to defendant.
It is hereby ordered that the order so appealed from be and the same hereby is reversed on the law without costs and the matter is remitted to Supreme Court, Oswego County, for a hearing in accordance with the following memorandum: Defendant moved by order to show cause for an order, inter alia, directing plaintiff to comply with an oral stipulation of the parties made in open court, incorporated but not merged in their judgment of divorce, concerning the division of a parcel of real property. We agree with defendant that Supreme Court erred in ordering that the parcel be divided in accordance with a survey map procured by plaintiff. “An oral stipulation of settlement that is made in open court and stenographically recorded is enforceable as a contract and is governed by general contract principles for its interpretation and effect” (Argento v Argento, 304 AD2d 684, 684-685 [2003]). “The role of the court is to determine the intent and purpose of the stipulation based on the examination of the record as a whole” (id. at 685; see Gentile v Gentile, 31 AD3d 1158, 1159 [2006]), and “[w]e conclude that a hearing is required to enable the court to determine the intent of the parties with respect to the [division of the parcel in question]” (Gentile, 31 AD3d at 1159). Here, the stipulation provides that defendant “would be entitled to one-half or 37V2 acres off the westerly side of that parcel of 75 acres.” We conclude that the stipulation is ambiguous because there is no mechanism by which to determine how much of defendant’s 37x/2 acres must be from the “westerly side” of the parcel. Stated otherwise, the stipulation provides no basis from which to discern a dividing line. Because the stipulation uses the disjunctive term “or,” we
*929 are unable to agree with our dissenting colleague that the stipulation unambiguously provides that all of defendant’s 3772 acres must be located on the westerly side of the parcel. Because there is no evidence in the record concerning the parties’ intent at the time of the stipulation with respect to the division of the parcel, “it was premature for the court to undertake construction of the clause without inquiring into the expectations of the parties at a hearing” (Stukalin v Stukalin, 147 AD2d 632 [1989]). Based on the record before us, we cannot conclude as a matter of law that the court’s division of the parcel was in accordance with the intent of both parties. We therefore reverse the order and remit the matter to Supreme Court for a hearing to determine the intent of the parties at the time of the stipulation with respect to the division of the parcel in question.All concur except Scudder, EJ., who dissents in part in accordance with the following memorandum.
Document Info
Citation Numbers: 42 A.D.3d 928, 840 N.Y.S.2d 260
Judges: Scudder
Filed Date: 7/6/2007
Precedential Status: Precedential
Modified Date: 10/19/2024