author: ClPARIGK, J.

text:
    [907 NE2d 276, 879 NYS2d 363]
    Golden Gate Yacht Club, Appellant, v Société Nautique de Genève, Respondent, and Club Náutico Español de Vela, Intervenor-Respondent.
    Argued February 10, 2009;
    decided April 2, 2009

      POINTS OF COUNSEL

      Latham & Watkins LLP, Washington, D.C., and New York City (Maureen E. Mahoney of the District of Columbia bar, admitted pro hac vice, J. Scott Ballenger, Derek D. Smith, James V. Kearney and Aaron Siri of counsel), for appellant.
    I. The Deed of Gift unambiguously requires a Challenger of Record to meet all conditions of eligibility at the time of its challenge. (Mercury Bay Boating Club v San Diego Yacht Club, 76 NY2d 256; New York Life Ins. & Trust Co. v Hoyt, 161 NY 1; Matter of Fabbri, 2 NY2d 236; Eidt v Eidt, 203 NY 325; Howard v Ingersoll, 13 How [54 US] 381; Marconi Wireless Tel. Co. of Am. v National Elec. Signaling Co., 213 F 815; People v Keyes, 75 NY2d 343; Matter of Heintz v Brown, 80 NY2d 998; Dole v Steelworkers, 494 US 26; Evans v Famous Music Corp., 1 NY3d 452.) II. Even if arguendo the Deed of Gift were deemed ambiguous, the relevant extrinsic evidence compels a reading that requires a Challenger of Record to meet all the conditions of eligibility at the time of its challenge. (Evans v Famous Music Corp., 1 NY3d 452; Matter of Flyer, 23 NY2d 579; Rice v Halsey, 156 App Div 802, 215 NY 656; Matter of Erwin, 277 App Div 378; Mercury Bay Boating Club v San Diego Yacht Club, 150 AD2d 82, 76 NY2d 256; Matter of SCM Corp. [Fisher Park Lane Co.], 40 NY2d 788.) III. Golden Gate Yacht Club is the legitimate Challenger of Record. (Levitz v Robbins Music Corp., 17 AD2d 801; Mercury Bay Boating Club v San Diego Yacht Club, 76 NY2d 256.)

      Simpson Thacher & Bartlett LLP, New York City (Barry R. Ostrager, Jonathan K. Youngwood, George S. Wang and Laura D. Murphy of counsel), for respondent.
    I. Club Náutico Español de Vela is the valid Challenger of Record under the Deed of Gift. (Uribe v Merchants Bank of N.Y., 91 NY2d 336; Loblaw, Inc. v Employers’ Liab. Assur. Corp., 57 NY2d 872; Mercury Bay Boating Club v San Diego Yacht Club, 76 NY2d 256; Slatt v Slatt, 64 NY2d 966; Rodolitz v Neptune Paper Prods., 22 NY2d 383; Morlee Sales Corp. v Manufacturers Trust Co., 9 NY2d 16; Bethlehem Steel Co. v Turner Constr. Co., 2 NY2d 456; Breed v Insurance Co. of N. Am., 46 NY2d 351; Lawyers’ Fund for Client Protection of State of N.Y. v Bank Leumi Trust Co. of N.Y., 94 NY2d 398; Suffolk County Water Auth. v Village of Greenport, 21 AD3d 947.) II. Golden Gate Yacht Club cannot force a match race by submitting an invalid Notice of Challenge and boat certificate. (Mercury Bay Boating Club v San Diego Yacht Club, 76 NY2d 256.)

      Debevoise & Plimpton LLP, New York City (David W. Rivkin, Jeremy Feigelson and Catherine M. Doll of counsel), for intervenor-respondent.
    The Appellate Division correctly held that Club Náutico Español de Vela is a qualified Challenger of Record under the Deed of Gift. (Mercury Bay Boating Club v San Diego Yacht Club, 76 NY2d 256; Popkin v Security Mut. Ins. Co. of N.Y., 48 AD2d 46; Geigle v Flacke, 768 F2d 259; Washington Mut. Fin. Group, LLC v Bailey, 364 F3d 260; Shearson/American Express Inc. v McMahon, 482 US 220; Mitsubishi Motors Corp. v Soler Chrysler-Plymouth, Inc., 473 US 614.)

      Carter Ledyard & Milburn LLP, New York City (Jeffrey Boxer, Vincent Monte-Sano and Laura Anne Reeds of counsel), for New York Yacht Club, amicus curiae.
    Club Náutico Español de Vela did not meet the qualifications in the Deed of Gift at the time of its challenge and is therefore ineligible to act as Challenger of Record.

      Sheppard, Mullin, Richter & Hampton LLP, New York City (Elizabeth M. Rotenberg-Schwartz of counsel), for San Diego Yacht Club Sailing Foundation and another, amici curiae.
    In the interests of national and international sailing and its dedicated participants throughout the world, the appeal of Golden Gate Yacht Club must be granted and the decision of the Appellate Division must be reversed.

      Troutman Sanders LLP, San Diego, California, and New York City (Roy Morrow Bell, Aurora Cassirer and Stephen G. Rinehart of counsel), for William I. Koch, amicus curiae.
    The Appellate Division decision not only conflicts with the intent of the donors and the plain language of the Deed of Gift, but the practical result of its decision would forever change the America’s Cup from a competitive and prestigious match between the most prominent members of the sailing community to an unfair and degrading race unjustly dominated by Société Nautique de Geneve.

      Menz Bonner & Komar LLP, New York City (John R. Menz and Patrick D. Bonner, Jr., of counsel), for Team French Spirit and others, amici curiae.
    The trial court’s erroneous interpretation of the Deed of Gift will seriously undermine competition for the America’s Cup.

      Menz Bonner & Komar LLP, New York City (John R. Menz and Patrick D. Bonner, Jr., of counsel), for Deutscher Challenger Yacht Club and others, amici curiae.
    This Court should affirm the Appellate Division’s order.

      Friedman Kaplan Seiler & Adelman LLP, New York City (Lance J. Gotko of counsel), for Reale Yacht Club Canottieri Savoia and another, amici curiae.
    I. The manipulations of Société Nautique de Geneve and its captive “challenger” violate the Deed of Gift’s core mandate that the America’s Cup be a challenge cup. II. Club Náutico Español de Vela was not qualified to be a Challenger of Record because it was not an “organized yacht club . . . , having for its annual regatta an ocean water course on the sea, or on an arm of the sea, or one which combines both.” (Bailey v Fish & Neave, 8 NY3d 523; Matter of Margolin, 259 AD2d 396.)

      Meiselman, Denlea, Packman, Carton & Eberz P.C., White Plains (Christine M. Ford of counsel), for City of Valencia, Spain, amicus curiae.
    The most desirable thing is that the 33rd America’s Cup be held in the city with the greatest number of participants possible.
   OPINION OF THE COURT

ClPARIGK, J.

This appeal involves the preeminent international sailing regatta and match race, the America’s Cup. We had occasion once before to examine the charitable trust that governs the competition. In Mercury Bay Boating Club v San Diego Yacht

Club (76 NY2d 256 [1990]), we strictly construed the provisions of the trust instrument, the Deed of Gift, to allow multihulled vessels to compete in the America’s Cup race. Today, we are called upon to reexamine the Deed of Gift to determine the eligibility criteria for a Challenger of Record—specifically whether the phrase “having for its annual regatta” requires a yacht club to hold an annual regatta on the sea prior to issuing its challenge (Deed of Gift, Oct. 24, 1887, ¶ 4). We conclude that it does.

The story of the America’s Cup begins on August 22, 1851, after the schooner yacht, America, entered a race against British sailing vessels around the Isle of Wight, winning a large silver cup. In honor of the winning boat, the trophy was christened the “America’s Cup,” which became the corpus of a charitable trust created under the laws of New York and donated pursuant to a Deed of Gift to the New York Yacht Club in 1857. The Deed of Gift establishes the rules governing the America’s Cup and provides that the holder of the Cup becomes its sole trustee and is succeeded only by a successful challenger in a race at sea. The original Deed of Gift required only that the challenger be an “organized” yacht club.

During the first 30 years after its inception, problems arose with the administration of the competition. As a result, the America’s Cup was twice returned to George L. Schuyler, the sole-surviving donor, after two disappointing America’s Cup races were sailed by Canadian Great Lakes yacht clubs under the command of Captain Alexander Cuthbert. Neither of the challenging vessels could withstand the rigors of open sea competition. The Countess of Dufferin, the first challenging vessel, was described as having “fresh water written all over her . . . [h]er hull lacked finish, being as rough as a nutmeg grater . . . and she had little of the shipshape appearance expected of a cup challenger.” The Atalanta, the second challenging vessel, was also denounced by critics as being “a new yacht, hastily built, totally untried, and miserably equipped.” To deal with this “unseaworthiness” issue, Schuyler amended the Deed of Gift with the intent of precluding Great Lakes yacht clubs from competing and reconveyed the America’s Cup to the New York Yacht Club to hold in trust. In addition to requiring that a challenger be an “organized” yacht club, the amended Deed of Gift, dated October 24, 1887, added new eligibility requirements that a challenger must meet, including that it be “incorporated, patented, or licensed by the legislature, admiralty, or other executive department, having for its annual regatta an ocean water course” (Deed of Gift, Oct. 24, 1887, ¶ 4). The Deed further provides that the Cup “shall be preserved as a perpetual Challenge Cup for friendly competition between foreign countries.”

The Cup has been defended 32 times and it is the events that occurred after the conclusion of the 32nd America’s Cup held on July 3, 2007, in Valencia, Spain, which give rise to this appeal. Société Nautique de Geneve (SNG) won the Cup on March 2, 2003 in the 31st America’s Cup match and successfully defended its right to continue as trustee of the America’s Cup in the July 3, 2007 race. Club Náutico Español de Vela (CNEV), on that very same day, submitted a Notice of Challenge to SNG for the 33rd America’s Cup, which was accepted.

The Deed of Gift provides that once a Defender accepts a challenge, the two yacht clubs may negotiate and set the conditions of the next America’s Cup competition through their mutual consent. Although not named as such by the Deed of Gift, the sailing community refers to the resulting agreement as the “protocol” and the challenging yacht club with the right to negotiate the protocol is called the Challenger of Record. Since 1970, other yacht clubs that wish to compete in the America’s Cup have been allowed to participate in the race when the Defender and the Challenger of Record agree to such an arrangement and provide in their protocol for such participation. Traditionally, challengers that are allowed to participate based upon the mutual agreement of the Defender and the Challenger of Record pursuant to their resulting protocol are known as Mutual Consent Challengers. However, should the Defender and the Challenger of Record fail to reach an agreement as to the terms under which they will race, the Deed of Gift contains a default match provision for a one-on-one race between the Defender and the Challenger of Record.

On July 5, 2007, SNG as the Defender and CNEV as Challenger of Record published a protocol for the 33rd America’s Cup setting forth the conditions of the competition that includes an arbitration provision to resolve disputes. On July 11, 2007, plaintiff Golden Gate Yacht Club (GGYC), disputing the validity of CNEV’s challenge, primarily on the basis that CNEV was not a bona fide yacht club—formed only a few days before submitting its challenge—and had never held an annual regatta, presented its own Notice of Challenge. SNG rejected GGYC’s challenge on the basis that CNEV’s challenge was first in time and since CNEV’s challenge had already been accepted, no other challenge could be considered until after CNEV’s challenge had been decided.

On July 20, 2007, SNG, seeking to resolve the validity of CNEV’s challenge, initiated an arbitration proceeding pursuant to the dispute resolution mechanism provided for in the 33rd protocol. The 33rd America’s Cup Arbitration Panel invited GGYC to participate in the arbitration. GGYC rejected the invitation and commenced this present litigation because it could participate in the arbitration only by agreeing to the protocol, thereby exposing itself to possible disqualification at SNG’s sole discretion. The Arbitration Panel ultimately found that the Deed of Gift does not require a challenging club to have held an annual regatta prior to issuing its Notice of Challenge and therefore CNEV’s Notice of Challenge was valid. All parties concede that the arbitration decision is not binding upon us.

In the present action, GGYC alleges that SNG breached the Deed of Gift and its fiduciary duty as trustee by accepting CNEV’s challenge because CNEV failed to comply with the challenger eligibility criteria set forth in the Deed of Gift since CNEV was not an organized yacht club and had never conducted an annual regatta. Both sides moved for summary judgment. Although Supreme Court dismissed GGYC’s breach of fiduciary duty claim, it declared that the Notice of Challenge issued by CNEV was indeed invalid because CNEV failed to meet the Deed of Gift’s eligibility requirements as it had not held an annual regatta on an ocean water course prior to submitting its Notice of Challenge to SNG. Supreme Court, strictly interpreting the Deed of Gift, declared GGYC to be the Challenger of Record. A divided Appellate Division reversed, holding the language of the Deed to be ambiguous and declaring the Notice of Challenge issued by CNEV valid, and CNEV the rightful Challenger of Record (55 AD3d 26 [2008]). GGYC appealed pursuant to CPLR 5601 (a) dissent grounds and we now reverse.

In Mercury Bay, where we resolved a dispute regarding a type of vessel that arose relating to the 27th America’s Cup match, we stated that

“[l]ong-settled rules of construction preclude an attempt to divine a settlor’s intention by looking first to extrinsic evidence. Rather, the trust instrument is to be construed as written and the settlor’s intention determined solely from the unambiguous language of the instrument itself. It is only where the court determines the words of the trust instrument to be ambiguous that it may properly resort to extrinsic evidence” (76 NY2d at 267 [citations omitted]).

The relevant provisions of the Deed of Gift to be construed here at paragraph 4 provide that

“[a]ny organized Yacht Club of a foreign country, incorporated, patented, or licensed by the legislature, admiralty, or other executive department, having for its annual regatta an ocean water course on the sea, or on an arm of the sea, or one which combines both, shall always be entitled to the right of sailing a match for this Cup.”

The Deed, in paragraph 10, further provides that “when a challenge from a Club fulfilling all the conditions required by this instrument has been received, no other challenge can be considered until the pending event has been decided.” Finally, paragraph 11 of the Deed states that the trustee “hereby covenants and agrees . . . that it will faithfully and fully see that the foregoing conditions are fully observed and complied with by any contestant.”

Thus, to comply with the eligibility requirements as outlined by the Deed, a challenger must be (1) an organized yacht club, (2) foreign, in that it is not of the same country as the trustee yacht club, (3) incorporated in its local jurisdiction or officially recognized either through a license or patent from its government, (4) and “having for its annual regatta an ocean water course on the sea, or on an arm of the sea, or one which combines both.” It is the last requirement that divided the court below in light of the fact that CNEV had not held an annual regatta on the sea prior to submitting its Notice of Challenge. It is undisputed that the Defender has the obligation to address a challenge only when the challenger is a “Club fulfilling all the conditions required” (Deed of Gift, Oct. 24, 1887, ¶ 10). When such a challenge occurs, all other challenges are foreclosed.

As we stated in W.W.W. Assoc. v Giancontieri (77 NY2d 157, 162 [1990]), “[e]vidence outside the four corners of the document as to what was really intended but unstated or misstated is generally inadmissible to add to or vary the writing.” The Appellate Division majority deemed the phrase, “having for its annual regatta,” ambiguous and therefore found it appropriate to glean the settlor’s intention as to the meaning and purpose of this phrase by looking to extrinsic evidence. We disagree and find the phrase to be unambiguous. As we did in Mercury Bay, we must first examine the plain language of the Deed of Gift and determine, as a matter of law, whether the language can be construed as written and the settlor’s intention determined solely from the unambiguous language of the instrument itself.

In looking at the plain language of the Deed of Gift itself, as we must, we first note that the annual regatta requirement is only one of a list of eligibility requirements set forth in the Deed of Gift. The settlor clearly placed the requirements of “organized” and “incorporated, patented, or licensed” in the past and intended that a challenger would continue to meet these eligibility requirements in the present and future. For example, the term “incorporated” refers both to a past event of incorporation and to a continuing status. We believe that the settlor intended the same to be true for the “annual” regatta requirement. By using the word “annual,” the settlor suggested an event that has already occurred at least once and will occur regularly in the future. Taken as a whole, we conclude that the settlor intended to link the annual regatta requirement to the other eligibility requirements in that the challenging yacht club has in the past and will continue in the future “having” an annual regatta on the sea. Any other interpretation would render the annual regatta requirement a nullity.

The settlor clearly intended that for a challenging yacht club to be within the eligibility requirements, it must have held at least one qualifying annual regatta before it submits its Notice of Challenge to a Defender and demonstrate that it will continue to have qualifying annual regattas on an ongoing basis. Thus, SNG is wrong in its claim that the regatta requirement can be satisfied by race time rather than at the time of challenge. We conclude there is no ambiguity as to the annual regatta clause at issue. When read in the context of the entire Deed of Gift, the challenger must demonstrate that its Notice of Challenge “fulfills] all the conditions required” (Deed of Gift, Oct. 24, 1887, ¶ 10) at the time it submits its challenge.

SNG and CNEV assert that the existing practice among Defenders and Challengers of Record to allow Mutual Consent Challengers to participate in the America’s Cup, even without having held an open sea course regatta, is evidence that the settlor intended that a challenging yacht club is not required to have held a regatta on the open sea prior to issuing its Notice of Challenge. This assertion has no merit because the plain language of the Deed of Gift itself forecloses such an illogical conclusion. Even if the language of the Deed of Gift were ambiguous, evidence of these practices would not qualify as extrinsic evidence of the settlor’s intent in 1887 as these practices emerged much later. Thus, the decision of the Defender and the Challenger of Record to waive the eligibility requirements for yacht clubs seeking to participate as Mutual Consent Challengers has no bearing on whether a yacht club seeking to establish itself as the Challenger of Record must meet the requirements imposed by the Deed of Gift itself.

Since CNEV has failed to show that at the time it submitted its Notice of Challenge it was a “[c]lub fulfilling all the conditions required by” the Deed of Gift, it does not qualify as the Challenger of Record for the 33rd America’s Cup competition and Supreme Court was correct in declaring GGYC to be the valid Challenger of Record.

It has been posited that the right to act as trustee of the America’s Cup should be decided on the water and not in a courtroom. We wholeheartedly agree. It falls now to SNG and GGYC to work together to maintain this noble sailing tradition as “a perpetual Challenge Cup for friendly competition between foreign countries” (Deed of Gift, Oct. 24, 1887, ¶ 3).

Accordingly, the order of the Appellate Division should be reversed, with costs, and the orders of Supreme Court reinstated.

Judges Graffeo, Read, Smith, Pigott and Jones concur; Chief Judge Lippman taking no part.

Order reversed, etc.

      . Winfield M. Thompson and Thomas W Lawson, The Lawson History of the America’s Cup: A Record of Fifty Years, at 78 (Ashford Press Publishing, Southampton 1986) (internal quotation marks omitted).

      . Id. at 88.

      . The Deed has been amended twice by orders of the Supreme Court, New York County, dated December 17, 1956 and April 5, 1985.

      . SNG is a yacht club organized under the laws of Switzerland.

      . CNEV is a Spanish yacht club formed by the members of the Real Federación Española de Vela (RFEV), a Spanish sailing federation, in June 2007.

      . GGYC is a yacht club incorporated in the state of California.

      . CNEV was allowed to intervene in this action.

      . Supreme Court did not decide the question of whether CNEV was “organized” under the Deed and it is not necessary for us to reach this issue to resolve this appeal.

      . The fact that CNEV has since held two ocean course regattas, one in November 2007 and a second in November 2008, is of no moment since none had been held in July 2007 prior to CNEV submitting its Notice of Challenge to SNG.


source: Caselaw Access Project

author: Ciparick, J.

license: Public Domain

text:
    [907 NE2d 286, 879 NYS2d 373]
    The People of the State of New York, Respondent, v Jose Fuentes, Appellant.
    Argued February 12, 2009;
    decided April 7, 2009

      POINTS OF COUNSEL

      Gruvman, Giordano & Glaws, LLP, New York City (Charles T. Glaws of counsel), for appellant.
    I. The trial court erred in denying defendant-appellant’s motion for mistrial in light of the prosecutor’s intentional suppression of the “record of consultation.” (Brady v Maryland, 373 US 83; United States v Bagley, 473 US 667; Giglio v United States, 405 US 150; People v Baxley, 84 NY2d 208; People v Baranek, 287 AD2d 74; People v Rensing, 14 NY2d 210; People v Dudley, 167 AD2d 317; People v Knowell, 127 AD2d 794; People v Gregg, 90 AD2d 812; People v Freshley, 87 AD2d 104.) II. Contrary to the Appellate Division’s decision and order, there was no “meaningful opportunity” to use the Brady material. (People v Cortijo, 70 NY2d 868; People v Myron, 28 AD3d 681; People v Steadman, 82 NY2d 1.) III. The Brady violation in this one-witness case cannot be considered harmless error. (Napue v Illinois, 360 US 264; People v Marzed, 161 Misc 2d 309; People v Wallert, 98 AD2d 47.)

      Charles J. Hynes, District Attorney, Brooklyn (Anne C. Feigus and Leonard Joblove of counsel), for respondent.
    The People were not obligated to disclose the record of the complainant’s consultation with a psychiatrist because there is no reasonable probability that the disclosure of that document would have changed the outcome of the trial. (Brady v Maryland, 373 US 83; Giglio v United States, 405 US 150; Strickler v Greene, 527 US 263; United States v Bagley, 473 US 667; Kyles v Whitley, 514 US 419; People v Vilardi, 76 NY2d 67; People v Hunter, 11 NY3d 1; People v Bryce, 88 NY2d 124; People v Chin, 67 NY2d 22; People v Drake, 7 NY3d 28.)
   OPINION OF THE COURT

Ciparick, J.

In this appeal, we are asked to determine whether the People committed a constitutional violation (see Brady v Maryland, 373 US 83 [1963]) by their nondisclosure to defendant of a “record of consultation” prepared by a hospital psychiatrist who interviewed a rape victim and noted her feelings of depression and minimal marijuana use. Because the undisclosed document is not material, the People’s nondisclosure, while ill-advised, does not constitute a Brady violation.

I

The 22-year-old female victim testified that in the early morning hours of January 27, 2002, she, her friend and her friend’s mother and sister together boarded a Brooklyn-bound train at Times Square, in Manhattan, to return home, after spending the evening at an arcade. The victim, who resided in a different neighborhood than her friends, switched trains and continued her journey alone. As she walked home, she noticed defendant walking closely behind her. He entered the building and while inside the elevator, he placed a knife to her neck and threatened to cut her if she resisted. He then led her to the roof of the building, where he sodomized and raped her.

The victim further testified that, after the rape, defendant forced her to walk with him to the subway. During the walk, he casually conversed with her. Before boarding the train, he took the victim’s cell phone, turned it off and wiped it with his shirt sleeve, while also warning her not to call anyone or to report the crime. Out of fear, she did not call the police at that time, nor tell her mother of the rape when she returned home. However, several hours later, the victim went to her friend’s apartment—the same friend she had been with the night before—and told her and her mother about the rape. She then sought medical attention at a local hospital. Hospital staff performed both a physical and psychiatric examination and prepared a “rape kit,” which yielded a male DNA sample.

The police were notified and they interviewed the victim, who provided details about the rape and a description of the perpetrator. It was not until January 2004, however—nearly two years after the rape occurred—that the medical examiner issued a report stating that the sample taken from the victim matched defendant’s DNA. Further DNA samples taken from defendant confirmed that his DNA matched the DNA extracted from the victim.

Defendant was arrested and indicted for rape in the first degree and sodomy in the first degree (Penal Law § 130.35 [1]; § 130.50 [1]) and the case proceeded to a jury trial. The victim, along with her friend, testified at the trial, describing the January 27th visit to Times Square and the return trip home. The friend testified that the group did not meet defendant that night, either at the arcade or on the subway ride to Brooklyn.

The victim’s medical records had been disclosed to defense counsel under the People’s open file discovery agreement and were admitted into evidence by the People during their direct case. The records noted that there was no external or internal trauma on the victim’s body, but a sexual assault forensic examiner from the treating hospital explained that the absence of such physical trauma in rape cases is common. Included with the medical records admitted into evidence—but not in the copy previously made available to defense counsel—was a one-page record of consultation by a hospital psychiatrist who interviewed the victim as a matter of hospital protocol. Unaware of its existence, defense counsel did not cross-examine any of the People’s witnesses regarding the information contained in the consultation note.

Defendant testified at trial that he met the victim in an arcade in Times Square, where he was socializing with two of his friends, and that she led him on a train ride to her neighborhood in Brooklyn. Upon reaching the victim’s apartment building, defendant claimed that she led him up to the roof. According to defendant, the victim was sexually aggressive and they had consensual sexual intercourse. Afterwards, defendant testified that the victim voluntarily escorted him to the subway. According to defendant, she became enraged when he told her that he was not interested in seeing her again and she threatened him, saying he would come to regret it. He denied turning the victim’s cell phone off, wiping it clean or threatening her.

A private investigator testified for defendant that the victim had previously corroborated defendant’s version of events preceding the alleged rape. According to the investigator, he questioned the victim in her apartment for 5 to 10 minutes and she told him that she met defendant in an arcade in Manhattan, left with him voluntarily and did not mention that she was raped. The investigator admitted that he did not make any record of the interview.

During summation, defense counsel, while leafing through the medical records in evidence, discovered the undisclosed one-page consultation note that had never been turned over to him pursuant to the parties’ open file discovery agreement. Defense counsel demanded a mistrial. The People responded that they did not turn over the document because they believed it to be privileged. At defense counsel’s request, the court removed the document from the medical records, neither side mentioned it to the jury during closing arguments, and the jury never learned of the document. The court reserved decision on defendant’s motion for a mistrial.

The jury found defendant guilty of first-degree rape and first-degree sodomy. Defendant filed a written motion to set aside the verdict (see CPL 330.30 [1], [3]). Supreme Court denied the motion, opining that the contents of the document would not have changed the outcome of the trial as the document did not materially bear on defendant’s guilt or innocence. The court also noted that defendant received the document during trial and had an opportunity to utilize it.

The Appellate Division affirmed, holding that there was no Brady violation because defendant was given a meaningful opportunity to use the document during the trial (48 AD3d 479 [2008]). A Judge of this Court granted defendant leave to appeal (10 NY3d 934 [2008]), and we now affirm, employing a different rationale.

II

The Due Process Clauses of the Federal and State Constitutions both guarantee a criminal defendant the right to discover favorable evidence in the People’s possession material to guilt or punishment (see Brady, 373 US at 87-88; People v Bryce, 88 NY2d 124, 128 [1996]). Impeachment evidence falls within the ambit of a prosecutor’s Brady obligation (see Giglio v United States, 405 US 150, 154-155 [1972]). To establish a Brady violation, a defendant must show that (1) the evidence is favorable to the defendant because it is either exculpatory or impeaching in nature; (2) the evidence was suppressed by the prosecution; and (3) prejudice arose because the suppressed evidence was material (see Strickler v Greene, 527 US 263, 281-282 [1999]).

In New York, where a defendant makes a specific request for a document, the materiality element is established provided there exists a “reasonable possibility” that it would have changed the result of the proceedings (see People v Vilardi, 76 NY2d 67, 77 [1990]). Absent a specific request by defendant for the document, materiality can only be demonstrated by a showing that there is a “reasonable probability” that it would have changed the outcome of the proceedings (see Bryce, 88 NY2d at 128; People v Hunter, 11 NY3d 1, 5 [2008]).

Assuming, here, but without deciding whether the claim should be evaluated under a “reasonable possibility” standard, we turn to the substance of the undisclosed document. In doing so, we agree with Supreme Court that disclosure of this one-page document would not have altered the outcome of the case. Significantly, the document notes that the victim was upset because she placed herself in danger when she walked home from the train by herself in the early morning hours preceding her attack. That information would have undoubtedly strengthened the People’s case by corroborating the victim’s testimony that she walked home alone when defendant accosted her at knifepoint.

Although the document notes that the victim had experienced suicidal thoughts, it is unclear whether these thoughts were the result of having been raped only hours earlier, or due to more general feelings of depression, stemming from a strained relationship with her mother. Further, the record of consultation does not note that the victim was suffering from any serious psychiatric conditions creating hallucinations or delusions; in fact it indicates that the victim had no previous psychiatric history. Thus, contrary to the dissent, this case differs from other cases where the nondisclosure of a witness’s mental illness constituted reversible error (see e.g. People v Reusing, 14 NY2d 210, 212-214 [1964] [sole witness implicating defendant was mentally ill]; People v Dudley, 167 AD2d 317, 319-321 [1st Dept 1990] [the People’s case rested on the sole eyewitness who had a long history of mental illness]).

Defendant argues that the statement in the document noting the victim’s “cannabis abuse” would have changed the outcome of the case. The report explains that the victim only used marijuana twice during the past year, and nowhere does it state that she took any other substances that could have seriously impacted or impaired her perceptions of reality. Therefore, in the context of this case, the value of the undisclosed information as admissible impeachment evidence would have been, at best, minimal.

Moreover, defendant’s version of events was contradicted in several key respects. The friend’s testimony refuted defendant’s version because she testified that the victim left Manhattan and boarded a train with her and her family without defendant ever being present. Further, the victim testified in specific detail regarding how defendant took steps to avoid apprehension, including turning her cell phone off and wiping it clean of fingerprints. It is also contrary to common sense to believe that the victim would have invented a rape and subjected herself to an invasive hospital examination in the hope of getting revenge for defendant’s supposed refusal of her advances. She did not have a way of leading the police to defendant, or any reason to be confident he would ever be caught; he was not identified until the DNA match was found years later.

In reaching our conclusion that the undisclosed consultation note was immaterial and would not have changed the outcome of the trial, we do not condone the People’s decision to withhold the document from defendant or their failure to, at a minimum, inform the trial judge about it and request an in camera inspection to determine its admissibility. Indeed, defense counsel should be able to assume that a medical record is complete in a case, such as this, of open file discovery. Nevertheless, given this document’s extremely limited utility as impeachment evidence and the strength of the People’s case, in conjunction with the implausibility of defendant’s version of events, the nondisclosed document does not meet the materiality standard—the third prong required to establish a Brady violation (see Strickler, 527 US at 281-282)—and the nondisclosure thus does not require reversal.

Accordingly, the order of the Appellate Division should be affirmed.

Jones, J. (dissenting). The defendant by this appeal raises the question of whether his conviction was obtained in violation of Brady v Maryland (373 US 83 [1963]). The majority holds that no Brady violation occurred because the information contained in a nondisclosed medical record of a psychiatric consultation was not “material” and therefore did not constitute Brady material. I disagree and respectfully dissent.

I agree that in order to qualify as Brady material, a document must meet the three-pronged test outlined in Strickler v Greene (527 US 263 [1999]). Strickler holds that one of the tests in determining whether or not a document qualifies under Brady is that the document must be “material.” A document is deemed to be material if there is “a reasonable possibility” that its disclosure would have affected the outcome of the trial (People v Vilardi, 76 NY2d 67, 78 [1990]). The record of psychiatric consultation at issue in this case contained information concerning the condition of the victim during her examination at Woodhull Hospital following the incident. The victim expressed feelings of depression, suicide, family problems, mistreatment by her mother, withdrawal and substance abuse. There is no question that defense counsel would have been obliged to conduct a follow-up investigation of these conditions to determine the extent of the victim’s psychological infirmities. Nondisclosure of psychiatric problems has been held to be a material violation of Brady and has resulted in reversal (see People v Reusing, 14 NY2d 210 [1964]; People v Dudley, 167 AD2d 317 [1990]). In determining whether the document which was deliberately excluded by the Assistant District Attorney was material, the court engages in a selective marshaling of the trial testimony and arrives at the conclusion that disclosure of this document would not have altered the outcome of the case and is therefore not material. I disagree.

The disputed allegations of this case while unusual are straightforward. The defendant concedes that he engaged in sexual intercourse with the victim on the roof of the building in which she resided. He testified that the encounter was consensual and that the victim was a willing and aggressive participant. The victim testified that she was forcibly assaulted at knifepoint. Her version is partially corroborated by a witness who was with her earlier in the evening and to whom the rape was reported nearly seven hours later. The defendant’s account was partially corroborated by the testimony of a private investigator retained by the defense who said that the victim made a statement consistent with defendant’s version of events. In my evaluation of the trial testimony as a whole, I adhere to my position that there are facts which support each side.

With the sharply divergent evidence on the question of consent, the issue of credibility was central to the jury’s consideration of the case. It is within this context that the actions of the Assistant District Attorney in unilaterally removing the record of psychiatric consultation must be evaluated. Although the majority points out that the “defendant’s version of events was contradicted in several key respects” and that “[i]t is . . . contrary to common sense to believe that the victim would have invented a rape” (majority op at 264, 265), there is other evidence which weighs in favor of the defendant, such as the victim walking with the defendant to the subway station after the assault and failing to report the rape until the afternoon. In light of the contradictory evidence in this case, it cannot be said that the removal of the record of psychiatric consultation from the hospital records, which were turned over to defendant pursuant to open file discovery, did not affect the outcome of the trial. Indeed, the fact that the jury deliberated for almost two full days before returning a verdict suggests that serious consideration may have been given to both versions of events. Credibility was clearly at issue.

The majority determines that the impeachment value of this evidence would be limited, but this analysis fails to account for the probability that disclosure of the record of consultation would have likely resulted in a more intense investigation of the victim’s psychological background and history. Such investigation was foreclosed when defendant was misled into thinking that he had a complete record pursuant to the open file discovery process. It is an unfortunate fact that the removal of this document by the People was done without notice to the court or defense counsel.

Open file discovery, admirably adopted by the District Attorney, is intended to streamline the discovery process and ensure a fair trial by eliminating the inappropriate exclusion of evidence to which the defendant is entitled. At the heart of this procedure is a good faith reliance on the fact that nothing has been removed, altered or redacted without court approval and notice to the defendant. The deliberate and unilateral removal of this document undermines the letter and spirit of open file discovery and must not be condoned.

Because I am convinced that a significant Brady violation occurred, I would reverse the order of the Appellate Division and remand for a new trial.

Chief Judge Lippman and Judges Graffeo, Smith and Pigott concur with Judge Ciparick; Judge Jones dissents and votes to reverse in a separate opinion in which Judge Read concurs.

Order affirmed.

       Contrary to the dissent (see dissenting op at 266), we do not engage in a selective marshaling of the evidence. We evaluate the trial testimony as a whole in determining that the nondisclosure of the record of consultation did not meet the materiality standard required for a reversal.


author: Smith, J.

text:
    [907 NE2d 282, 879 NYS2d 369]
    The People of the State of New York, Respondent, v Walkins Contreras, Appellant.
    Argued February 17, 2009;
    decided April 7, 2009

      POINTS OF COUNSEL

      Dewey & LeBoeuf LLP, New York City (Krista M. Chiauzzi of counsel), and Legal Aid Society, Criminal Appeals Bureau (Steven Banks, Richard Joselson and Andrew Fine of counsel), for appellant.
    I. Mr. Contreras was deprived of his right to the assistance of counsel and his right to be present during all material stages of the trial when he was excluded from proceedings regarding whether a note allegedly written by the complainant would be admitted as relevant evidence, in which the complainant offered a critical portion of her testimony regarding the incident, and where his counsel was excluded from an in camera hearing where the complainant testified and was questioned by the trial judge about the note. (People v Frost, 100 NY2d 129; People v Carracedo, 89 NY2d 1059; Strickland v Washington, 466 US 668; Kentucky v Stincer, 482 US 730; People v Morales, 80 NY2d 450; Perry v Leeke, 488 US 272; Snyder v Massachusetts, 291 US 97; People v Williams, 85 NY2d 945; People v Sprowal, 84 NY2d 113; People v Anderson, 16 NY2d 282.) II. The trial court’s order indefinitely barring communication between Mr. Contreras and his counsel concerning a piece of potentially exculpatory evidence deprived Mr. Contreras of his right to counsel, and no exceptional circumstances existed to justify such an extensive ban. (United States v Cronic, 466 US 648; Strickland v Washington, 466 US 668; People v Enrique, 165 AD2d 13, 80 NY2d 869; Geders v United States, 425 US 80; Powell v Alabama, 287 US 45; Perry v Leeke, 488 US 272; Herring v New York, 422 US 853; People v Joseph, 84 NY2d 995; People v Carracedo, 89 NY2d 1059; People v Vargas, 88 NY2d 363.) III. Mr. Contreras was deprived of his right to present a defense and to confront the witnesses against him when the trial court abused its discretion and excluded probative, relevant evidence, which could have created a reasonable doubt as to Mr. Contreras’s guilt, under the theory that Mr. Contreras would have told his counsel about the evidence, or would have spontaneously brought it up while testifying, where the court had banned all communications between attorney and client regarding the evidence at issue. (Chambers v Mississippi, 410 US 284; In re Oliver, 333 US 257; Rosario v Kuhlman, 839 F2d 918; United States v Agurs, 427 US 97; Justice v Hoke, 90 F3d 43; Olden v Kentucky, 488 US 227; People v Gaines, 74 NY2d 358; Henry v Speckard, 22 F3d 1209; Latzer v Abrams, 602 F Supp 1314; Geders v United States, 425 US 80.)

      Robert M. Morgenthau, District Attorney, New York City (Sheila O’Shea and Alan Gadlin of counsel), for respondent.
    The trial court properly handled a note written by the victim that had no relevance to defendant’s case. (People v Inniss, 83 NY2d 653; People v Williams, 81 NY2d 303; People v Umali, 10 NY3d 417; People v Angelo, 88 NY2d 217; People v Martin, 50 NY2d 1029; People v Aska, 91 NY2d 979; People v Arroyo, 77 NY2d 947; People v Scarola, 71 NY2d 769; People v Davis, 43 NY2d 17; People v Aphaylath, 68 NY2d 945.)
   OPINION OF THE COURT

Smith, J.

At the outset of defendant’s trial for kidnapping, rape and other crimes, the prosecution called the court’s attention to notes written by the complainant, defendant’s wife. The court decided that the notes had nothing to do with the case—a conclusion amply justified by the record. Defendant argues, however, that his rights were violated by the procedure the court used in reaching that decision, in that the court initially heard from the prosecution and the complaining witness ex parte; and then held a hearing at which defendant’s lawyer was present, but defendant himself was not, and ordered defendant’s lawyer not to disclose the contents of the notes to his client. We hold that the court’s choice of procedures was a proper exercise of its discretion.

I

Defendant, unhappy about the breakup of his marriage to the complainant and her relationship with another man, forced his way into her apartment and held her and her seven-year-old son captive for three hours. During that time, according to the complainant’s testimony, he raped her twice, threatened repeatedly to kill her, forced her to write a farewell note to her child and choked her with an electric cord. She was finally able to call 911, and the police came and arrested defendant.

After defendant was arrested and the complainant was taken to the hospital, the police found a small pad of paper on the floor of her apartment, with some notes on it in her handwriting. The notes refer to a romantic relationship; some of the language is erotic, and coarse. The person discussed is not named, but from the content of the notes it could hardly have been defendant, complainant’s husband: The notes include the words “get tested,” implying a new relationship, not an old one.

Before jury selection began, the prosecutor told the court, in defense counsel’s presence, that she was requesting in camera review of some “papers of the complainant.” The court, treating the application as one for a protective order (see CPL 240.50), did review the notes in camera, and conducted ex parte proceedings to determine whether the notes were Rosario material (People v Rosario, 9 NY2d 286 [1961]) or Brady material (Brady v Maryland, 373 US 83 [1963]).

During the ex parte proceedings, the prosecutor (relying on what she had learned from the complainant) asserted that the notes had nothing to do with the event at issue in the trial. The court asked to hear from the complainant herself, who testified to the same effect. The complainant said that the notes had been written a month or more before defendant’s attack on her, as notes to herself about her new relationship. She said that when defendant forced his way into her apartment, the contents of her purse, including the notes, fell on the floor. She did not know if defendant had seen the notes.

At this point, the court called in defense counsel and told him the contents of the notes, ordering him not to disclose those contents to his client. The court said that it was “excluding” the notes, on the ground that they had nothing to do with the event at issue and that, if they were evidence of the complainant’s sexual activity, they would be protected by the Rape Shield Law (CPL 60.42). Defense counsel argued that he should be allowed to use the notes at trial, and asked to question the complainant in an effort to demonstrate their relevance. The court allowed counsel to ask the complainant questions, but the questioning did not yield any evidence of a connection between the notes and the event for which defendant was on trial.

The court did not alter its ruling forbidding use of the notes, and the trial proceeded without reference to them. Defendant was convicted on several counts. The Appellate Division affirmed (47 AD3d 411 [2008]), and a Judge of this Court granted leave to appeal (10 NY3d 933 [2008]). We now affirm.

II

It is important to understand at the outset the purpose of the proceedings about which defendant complains. It was to determine whether the notes were either Rosario material (i.e., prior statements of the complainant relating to the subject of her testimony) or Brady material (i.e., evidence favorable to defendant). Nothing in the record suggests that they were either. There is no reason to doubt that they were exactly what the complainant said they were—notes written at a different time on another subject. There is no evidence that defendant ever saw them, much less that they motivated his conduct.

In light of the notes’ apparent irrelevance to the case, defendant did not have a right to any hearing on the Rosario or Brady issue. We have held that, where there is “some basis” to believe that material is subject to Brady, “deference to the prosecutor’s discretion must give way” (People v Andre W., 44 NY2d 179, 184 [1978], quoting People v Consolazio, 40 NY2d 446, 453 [1976], cert denied 433 US 914 [1977]), but this case does not appear to meet even that undemanding test. There would, quite likely, have been no error if the prosecution had decided on its own to withhold the document, and there would surely have been no error if the court, having reviewed the document in camera and heard the prosecutor’s representations about it, had decided without further proceedings that the notes were not subject to either Rosario or Brady. The prosecutor, in submitting the document to the court, and the court, in deciding to hold a hearing on the issue, were erring on the side of caution.

We heartily approve their decisions to do so. Prosecutors and trial judges invite trouble when they push the rules of disclosure to their limit (see e.g. People v Fuentes, 12 NY3d 259 [2009] [decided today]). But where, as here, the prosecutor and the court have wisely chosen to give defendant a procedural opportunity he is not strictly entitled to, they should not be penalized for not being still more generous. Where a court, although not required to do so, chooses to grant a hearing on the issue of whether a particular piece of evidence constitutes Rosario or Brady material, it has broad discretion as to how the hearing should be conducted. This does not mean that the court’s discretion is unlimited, but it does mean that where the trial court has made a reasonable choice among available procedures, that choice will not be second-guessed on appeal.

The trial court’s choice of procedures here was reasonable. The document in question, though irrelevant to the case, had a significant tendency to embarrass the complainant, and she might have been warranted in fearing worse than embarrassment if the contents of the document had been communicated to defendant. Defendant was incarcerated at the time of trial, but no one could guarantee that he would long remain so, and there was ample reason to think he would not react well to a document expressing the complainant’s romantic interest in another man. Because the document was both irrelevant and potentially inflammatory, the trial court was justified in preventing it from coming to defendant’s knowledge.

It is true, as a general matter, that ex parte proceedings are undesirable, and they should be rare (People v Frost, 100 NY2d 129, 132 [2003]). But where the issue to be decided is whether a document should or should not be disclosed to the defense, the initial consideration of the question must be ex parte, almost by its nature; the court can hardly disclose the document before deciding whether to order it disclosed. Also, Criminal Procedure Law § 240.90 (3) expressly permits papers and testimony on a motion for a protective order to be submitted ex parte.

Here, after an ex parte proceeding, the court decided to allow defense counsel to know the contents of the document, to argue for the right to use it at trial and to question the complainant about it, so long as defendant himself was not told what the document said. These rulings were not an abuse of discretion. A defendant is entitled to be personally present at all critical stages of his trial if his presence would contribute to the fairness of the procedure (Kentucky v Stincer, 482 US 730, 745 [1987]; People v Anderson, 16 NY2d 282 [1965]). But that rule is inapplicable here, where the hearing was not only noncritical, but, as a matter of law, unnecessary. And while communication between attorney and client should generally be unrestricted (Geders v United States, 425 US 80 [1976]; People v Enrique, 165 AD2d 13, 16 [1st Dept 1991], affd for reasons stated below 80 NY2d 869 [1992]), there are occasions where restrictions may legitimately be applied (Perry v Leeke, 488 US 272, 283-285 [1989]; Enrique, 165 AD2d at 20-22). The disclosure by lawyer to client of an embarrassing and inflammatory document having nothing to do with the case is not a constitutionally protected communication.

Defendant’s remaining contention is without merit. Accordingly, the order of the Appellate Division should be affirmed.

Judges Ciparick, Graffeo, Read, Pigott and Jones concur; Chief Judge Lippman taking no part.

Order affirmed.


author: Pigott, J.

text:
    [907 NE2d 292, 879 NYS2d 379]
    Norma Gorman et al., Respondents, v Town of Huntington, Appellant.
    Argued February 18, 2009;
    decided April 7, 2009

      POINTS OF COUNSEL

      Jaspan Schlesinger Hoffman LLP, Garden City (Maureen T Liccione, Stanley Harwood and Stanley A. Camhi of counsel), for appellant.
    I. The Town of Huntington’s practices, even if in derogation of local law and statute, do not equitably estop the Town’s written notice defense. (Matter of New York State Med. Transporters Assn. v Perales, 77 NY2d 126; Matter of E.F.S. Ventures Corp. v Foster, 71 NY2d 359; Matter of Parkview Assoc. v City of New York, 71 NY2d 274, 488 US 801; Matter of Wedinger v Goldberger, 71 NY2d 428, 488 US 850; Scruggs-Leftwich v Rivercross Tenants’ Corp., 70 NY2d 849; Matter of City of New York v City Civ. Sew. Commn., 60 NY2d 436; Granada Bldgs, v City of Kingston, 58 NY2d 705; Public Improvements v Board of Educ. of City of N.Y., 56 NY2d 850; Matter of Hamptons Hosp. &

      Med. Ctr. v Moore, 52 NY2d 88; Board of Supervisors of Richmond County v Ellis, 59 NY 620.) II. The limited exception to the rule that estoppel is not available against a municipality is not applicable. (Bender v New York City Health & Hosps. Corp., 38 NY2d 662; Matter of Hamptons Hosp. & Med. Ctr. v Moore, 52 NY2d 88; Matter of Parkview Assoc. v City of New York, 71 NY2d 274; Granada Bldgs. v City of Kingston, 58 NY2d 705; Seif v City of Long Beach, 286 NY 382; Matter of E.F.S. Ventures Corp. v Foster, 71 NY2d 359.) III. The cases upon which the Appellate Division relied are inapposite. (Bender v New York City Health & Hosps. Corp., 38 NY2d 662; Henry Boeckmann, Jr. & Assoc. v Board of Educ., Hempstead Union Free School Dist. No. 1, 207 AD2d 773; Matter of Parkview Assoc. v City of New York, 71 NY2d 274; Seif v City of Long Beach, 286 NY 382; Sagevick v Sanchez, 228 AD2d 488; Granada Bldgs, v City of Kingston, 58 NY2d 705.)

      Thomas J. Lavallee, Hauppauge, for respondents.
    I. Appellant should be estopped from asserting lack of statutory notice when it directed all inquiries of sidewalk defects to its Department of Engineering Services and delegated the record-keeping functions pertaining to sidewalk defects to the Department of Engineering Services rather than the Town Clerk. (Bender v New York City Health & Hosps. Corp., 38 NY2d 662.) II. Equitable estoppel is not applicable against a government agency only when it involves the discharging of statutory duties. (Matter of New York State Med. Transporters Assn. v Perales, 77 NY2d 126; Scruggs-Leftwich v Rivercross Tenants’ Corp., 70 NY2d 849; Matter of Wedinger v Goldberger, 71 NY2d 428, 488 US 850.)

      Corey A. Auerbach, Albany, for the Association of Towns of the State of New York, amicus curiae.
    The decision of the Appellate Division, Second Department is contrary to longstanding rules of statutory construction and leaves municipalities unable to ascertain when their internal practices will vitiate their prior written notice laws. (Doremus v Incorporated Vil. of Lynbrook, 18 NY2d 362; Amabile v City of Buffalo, 93 NY2d 471; Poirier v City of Schenectady, 85 NY2d 310; MacMullen v City of Middletown, 187 NY 37; Conlon v Village of Pleasantville, 146 AD2d 736; Rodriguez v City of Mount Vernon, 51 AD3d 900; Schutz-Prepscius v Incorporated Vil. of Port Jefferson, 51 AD3d 657.)
   OPINION OF THE COURT

Pigott, J.

Plaintiff Norma Gorman and her husband commenced this personal injury action against defendant Town of Huntington claiming that an uneven piece of the Town’s sidewalk in front of a local church caused her to trip and fall. Four months prior to plaintiffs fall, the church’s pastor had written to the Town’s Department of Engineering Services, the department responsible for the Town’s sidewalks, complaining that the sidewalk needed repair.

The Town of Huntington has a prior written notice bylaw— section 174-3, similar in effect to Town Law § 65-a (2)—which provides in relevant part that a civil action may not be maintained against the Town for personal injuries

“sustained by reason of any . . . sidewalk . . . operated or maintained by the town . . . being defective . . . unless written notice of the specific location and nature of such defective . . . condition by a person with first-hand knowledge was actually given to the Town Clerk or the Town Superintendent of Highways in accordance with § 174-5” (Huntington Town Code § 174-3 [A]).

Section 174-5 of the Town Code clearly states that service of the notice on a person other than the Town Clerk or Highway Superintendent “shall invalidate the notice.” The Town Clerk is required to “keep an indexed record ... of all written notices received” (Huntington Town Code § 174-4; see Town Law § 65-a [4]).

Following joinder of issue, the Town sought summary judgment on the ground that it had not received prior written notice of the defect as required by section 174-3 of its ordinance and section 65-a of the Town Law. In support of its motion, the Town submitted affidavits from Town Clerk and Highway Superintendent representatives that no such notice was located in their records.

Concluding that the Town had delegated its statutorily-imposed duty of keeping records pertaining to complaints of sidewalk defects from its Town Clerk and Superintendent of Highways to its Department of Engineering Services, both Supreme Court (2006 NY Slip Op 30216[U]) and the Appellate Division (47 AD3d 30 [2007]) held that the Town had waived strict compliance with its prior written notice law and granted plaintiffs summary judgment dismissing the Town’s affirmative defenses asserting a lack of proper prior written notice under the statute. The Appellate Division then certified to this Court the question whether its opinion and order was properly made. We hold that it was not.

“Prior written notice provisions, enacted in derogation of common law, are always strictly construed” (Poirier v City of Schenectady, 85 NY2d 310, 313 [1995], citing Doremus v Incorporated Vil. of Lynbrook, 18 NY2d 362, 366 [1966]). Although this Court has recognized the existence of two exceptions that can excuse the lack of prior written notice (see Amabile v City of Buffalo, 93 NY2d 471, 474 [1999]), plaintiffs do not claim that either exception applies.

The purpose of a prior written notice provision is to place a municipality on notice that there is a defective condition on publicly-owned property which, if left unattended, could result in injury. This ensures that a municipality, which is not expected to be cognizant of every crack or defect within its borders, will not be held responsible for injury from such defect unless given an opportunity to repair it. The policy behind this rule is to limit a municipality’s duty of care over its streets and sidewalks “by imposing liability only for those defects or hazardous conditions which its officials have been actually notified exist at a specified location” (Poirier, 85 NY2d at 314).

It does not mean, however, that every written complaint to a municipal agency necessarily satisfies the strict requirements of prior written notice, or that any agency responsible for fixing the defect that keeps a record of such complaints has, ipso facto, qualified as a proper recipient of such notice. Simply put, whereas a written notice of defect is a condition precedent to suit, a written request to any municipal agent other than a statutory designee that a defect be repaired is not (see Misek-Falkoff v Village of Pleasantville, 207 AD2d 332, 333 [2d Dept 1994] [claim by plaintiff “that certain other municipal departments may have received notice of the defect” was not sufficient to defeat the municipality’s motion for summary judgment where the prior written notice provision expressly stated that written notice was to be filed with village clerk]; Drzewiecki v City of Buffalo, 51 AD2d 870 [4th Dept 1976] [prior written notice to city engineer, as opposed to the city clerk, who was statutorily designated to receive written notices of defect, found not to be sufficient, even where engineer acknowledged the defect and promised that it would be fixed]; see also Farnsworth v Village of Potsdam, 228 AD2d 79 [3d Dept 1997] [report of defect drafted by superintendent of public works and filed with that entity insufficient to comply with prior written notice of defect statute because it was not brought to the attention of the village clerk as required by the village code]; Wisnowski v City of Syracuse, 213 AD2d 1069 [4th Dept 1995]; Conlon v Village of Pleasantville, 146 AD2d 736 [2d Dept 1989]). Nor can a verbal or telephonic communication to a municipal body that is reduced to writing satisfy a prior written notice requirement (see McCarthy v City of White Plains, 54 AD3d 828 [2d Dept 2008]; Akcelik v Town of Islip, 38 AD3d 483 [2d Dept 2007]; see also Dalton v City of Saratoga Springs, 12 AD3d 899 [3d Dept 2004]; Camenson v Town of N. Hempstead, 298 AD2d 543 [2d Dept 2002]).

Here, it is undisputed that neither the Town Clerk nor Highway Superintendent received prior written notice of the defective sidewalk. Because the Department of Engineering Services is not a statutory designee, notice to that department is insufficient for purposes of notice under Town Law § 65-a and section 174-3 of the Huntington Town Code. We are unpersuaded that the Department of Engineering Services’ practice of recording complaints and repairs warrants a departure from our precedent strictly construing prior written notice provisions. As the entity charged with repairing town sidewalks, it is to be expected that the Department would keep a record of needed repairs and complaints but it cannot be inferred from that conduct that the Town was attempting to circumvent its own prior written notice provision.

We likewise reject the Appellate Division’s holding that the Town was estopped from relying on its prior written notice provision. Even assuming that estoppel could serve as a third exception to excuse lack of prior written notice, there is no evidence that these plaintiffs relied on the correspondence sent by the pastor to the Department of Engineering Services or on any alleged assurances by that Department that it would repair the condition. Plaintiff testified that she did not learn of the pastor’s correspondence until after her accident, demonstrating a lack of reliance.

Accordingly, the order of the Appellate Division should be reversed, with costs, defendant’s motion for summary judgment granted, the complaint dismissed and the certified question answered in the negative.

Ciparick, J. (dissenting). Because I believe there are unresolved questions of fact as to the record-keeping practices of the Town, I would vote to modify the order of the Appellate Division, by reinstating the fourth and fifth affirmative defenses set forth in defendant’s verified answer, and otherwise affirm, and would answer the certified question in the negative.

As stated by the majority, both Town Law § 65-a (2) and Huntington Town Code § 174-3 (A) require that there be notice “to the town clerk or to the town superintendent of highways” before an action for damages arising out of an allegedly defective sidewalk may be maintained against the Town. We have recognized that such prior written notice statutes must be “strictly construed” (see Monteleone v Incorporated Vil. of Floral Park, 74 NY2d 917, 918 [1989]) in all but two circumstances (see Amabile v City of Buffalo, 93 NY2d 471, 474 [1999]), not present here.

Based on their findings that defendant had “delegated” the statutorily-imposed duty of keeping records pertaining to complaints of sidewalk defects from its Town Clerk and Superintendent of Highways to its Department of Engineering Services (DES) (see Town Law § 65-a [3]-[4]; Huntington Town Code § 174-4), both Supreme Court and the Appellate Division held that defendant could not insist on strict compliance with the prior written notice laws under the unique circumstances of this case. In light of existing factual questions, regarding whether defendant indeed sought to usurp the prior written notice provisions of the Town Law and Huntington Town Code by completely transferring all statutory record-keeping duties from its Town Clerk and Superintendent of Highways to DES, I conclude that summary judgment, dismissing the fourth and fifth affirmative defenses alleging failure to comply with the Town’s prior written notice law, was not warranted.

Here, defendant’s cross motion for summary judgment, seeking dismissal of the complaint due to its lack of statutorily-required prior notice of the allegedly defective sidewalk, was supported by affidavits submitted by employees of the Huntington Town Clerk, Superintendent of Highways and DES and deposition testimony of a DES employee. The DES employee confirmed that his duties included maintaining an “index file system” to keep track of “sidewalk complaints” and that a division of DES, as opposed to the Town’s Superintendent of Highways, “took care of curb and sidewalk complaints.” The employee further confirmed that numerous complaints regarding the sidewalk relevant here were present in DBS’s files.

Contrary to the majority’s position, I believe that the DES employee’s affidavit and testimony does create an inference that the Town had supplanted the Town Clerk’s and Superintendent of Highways’ statutory record-keeping responsibilities by instituting a system in which DES would be solely responsible for such record-keeping, and the Town Clerk and Superintendent of Highways affidavits do not negate that inference. Although those affidavits state that no written notices or complaints pertaining to the sidewalk on which plaintiff was allegedly injured are present within the Town Clerk’s or Superintendent of Highways’ files, the affidavits do not definitively state that either the Town Clerk or Superintendent of Highways were discharging their duty to maintain any sidewalk complaint records during the relevant time frame. Instead, the affidavits vaguely refer to the maintenance of records regarding some unspecified category of “complaints” and “written notice[s].” In my view, this factual proffer was insufficient to discharge the Town’s summary judgment burden (see Smalls v AJI Indus., Inc., 10 NY3d 733, 735 [2008], citing Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

The record does not permit summary judgment in favor of plaintiffs, however. A town’s decision to wholly displace the record-keeping duties of town agencies lawfully designated to act in such a capacity is not established as a matter of law by evidence that an employee of an agency such as DES—charged with the repair of sidewalks—maintains an indexed record of sidewalk complaints and that a member of the public relied upon a DES employee’s instruction to submit a written request for potential sidewalk repairs to a DES supervisor. Indeed, I would be remiss to penalize towns by denying them the protection of valid prior written notice statutes based upon such an inconclusive predicate. I recognize, however, that substantial harm to the public could result if a town was permitted to covertly absolve itself of liability by completely altering the statutory record-keeping scheme and transferring all authority from lawfully designated agencies to another arm of town government not specified in the statutes. It is unclear if such a situation occurred here because the Town Clerk and Superintendent of Highways affidavits do not clearly indicate that those agencies were comporting themselves in compliance with the prior written notice provisions of the Town Law and Huntington Town Code. Therefore, I would remit for further factual development on this issue.

If, in fact, the Town has purposefully altered the record-keeping duties prescribed by the relevant statutes in favor of a system in which DES would solely assume those duties, then it would be manifestly unfair for the Town to disclaim the very agency relationship that it deliberately created. As the record fails to definitively establish that the Town engaged in such a nefarious scheme here, the grant of summary judgment dismissing defendant’s fourth and fifth affirmative defenses was not warranted.

Plaintiffs seek to estop the Town altogether from asserting a prior written notice defense. Although the Appellate Division found that estoppel was appropriate, I conclude that such finding was premature in light of the existing factual questions which must be resolved first.

Smith, J. (dissenting). I agree in substance with Judge Ciparick’s dissent, but write separately because I want to say directly what I believe she implies: If plaintiffs prove that the Town’s unlawful conduct prevented the giving of notice pursuant to Huntington Town Code § 174-3 (A), the Town should be estopped from relying on that Code provision to defend this case.

Like all my colleagues, I conclude that the Appellate Division erred in finding that estoppel has been established as a matter of law. It is not clear to me, however, that a basis for estoppel cannot be established. More specifically, it is not clear to me that the Town has complied with its obligations under Town Code § 174-4, which says: “The Town Superintendent of Highways shall transmit all notices of defect received by him or her pursuant to this article to the Town Clerk . . . The Town Clerk shall keep an indexed record, in a separate book, of all written notices received pursuant to this article.”

The record contains affidavits by two town employees, one from the Town Clerk’s office and the other from the office of the Superintendent of Highways. Each employee says that “part of my job duties is to maintain and search for records regarding complaints” (the Town Clerk’s employee adds “and notices of claims”); that the employee has searched for records relating to a sidewalk defect at the location where plaintiff fell; and that the search was fruitless. But neither employee says that the Superintendent of Highways receives and transmits to the Town Clerk, or that the Town Clerk keeps an indexed record of, notices of such defects. In fact, neither employee says that any records of such defects exist, or have ever existed, in either office. There is evidence of one instance where a person concerned about a defect was told to notify the Department of Engineering Services (DES).

For all that appears in this record, DES may be the only town office that has ever kept any record of street or sidewalk defects. If that is the case, the Town is in violation of its obligations under the Town Code, and it should be estopped from asserting a defense which would allow it to benefit from that violation.

To be clear, I do not suggest, and I do not think Judge Ciparick suggests, that an estoppel could exist merely because DES does the actual repair of roads and sidewalks or because, in order to do so, it must maintain a record of where the defects are. The majority is correct in saying that neither of these facts justifies ignoring the requirement of Town Code § 174-3 (A) that written notice of defects be “actually given to the Town Clerk or the Town Superintendent of Highways.” But if DES is the only body in the town that maintains records of such defects, the case is different.

“We have repeatedly made clear that estoppel cannot be invoked against a governmental agency to prevent it from discharging its statutory duties” (Matter of New York State Med. Transporters Assn. v Perales, 77 NY2d 126, 130 [1990]). We have followed that rule even where the results are harsh (Matter of Parkview Assoc. v City of New York, 71 NY2d 274 [1988]; Scruggs-Leftwich v Rivercross Tenants’ Corp., 70 NY2d 849 [1987]). Those cases, however, are different in an important way from this one. In Perales, Parkview and Scruggs-Leftwich, a government agency had, in substance, authorized, invited or acquiesced in a private party’s violation of the law. We held that the agency could not be estopped from changing its mind and enforcing the law strictly. We warned in Perales that to hold otherwise “could easily result in large scale public fraud” (77 NY2d at 130, quoting Matter of E.F.S. Ventures Corp. v Foster, 71 NY2d 359, 370 [1988]). The wisdom of that warning is clear to me, and I do not suggest we should retreat from this line of cases.

But this is not a case in which a government agency has treated, or said it would treat, a private party more favorably than the law permits. If the Town has indeed violated its record-keeping responsibilities, it has acted unlawfully in a way that injures private citizens, to the Town’s advantage. In such a case, there is much less reason to shun the doctrine of estoppel. No one is seeking to prevent the Town from discharging its duties; there is no apparent danger of fraud.

We applied estoppel in Bender v New York City Health & Hosps. Corp. (38 NY2d 662 [1976]), a case bearing more resemblance to this one than those I have previously cited. Bender, like this case, involved a defense of noncompliance with a statute requiring written notice—in Bender, a notice of claim against the New York City Health and Hospitals Corporation (HHC). Plaintiffs in Bender had mistakenly given notice to the City, instead of HHC; they claimed that the City and HHC, represented by the same counsel, had misled them so that they did not correct their error until it was too late. We “specifically adopted the doctrine of estoppel in the notice of claim area” (id. at 668), and remitted the case “for a consideration of evidentiary facts as to whether or not there should be an estoppel” (id. at 669). I think a similar result is warranted here.

Judges Graffeo, Read and Jones concur with Judge Pigott; Judge Ciparick dissents and votes to modify in a separate opinion in which Chief Judge Lippman concurs; Judge Smith dissents in another opinion.

Order reversed, etc.


author: Jones, J.

text:
    [907 NE2d 684, 879 NYS2d 806]
    John R. Consedine, Respondent, v Portville Central School District et al., Appellants.
    Argued February 11, 2009;
    decided April 7, 2009

      POINTS OF COUNSEL

      Hodgson Russ LLP, Buffalo CHugh M. Russ, III, and Julia M. Hilliker of counsel), for appellants.
    I. As a matter of law, the employment contract cannot guarantee the duration of plaintiffs employment. (Matter of Averback v Board of Educ. of New Paltz Cent. School Dist., 147 AD2d 152, 74 NY2d 611; Matter of Tyson v Hess, 109 AD2d 1068; Watson v Gugino, 204 NY 535; Martin v New York Life Ins. Co., 148 NY 117; Chase v United Hosp., 60 AD2d 558; Cartwright v Golub Corp., 51 AD2d 407; Murphy v American Home Prods. Corp., 58 NY2d 293; Weiner v McGraw-Hill, Inc., 57 NY2d 458; Matter of Bergamini v Manhattan & Bronx Surface Tr. Operating Auth., 62 NY2d 897; Matter of Ause v Regan, 59 AD2d 317.) II. Neither party intended to enter into a contract for a guaranteed duration.

      Office of General Counsel, School Administrators Association of New York State, Latham (John F Kershko and Arthur P. Scheuermann of counsel), for respondent.
    I. The Portville Central School District must pay John Consedine’s salary for at least the three-year contract period because it never discontinued his probationary appointment. (Matter of Lezette v Board of Educ., Hudson City School Dist., 35 NY2d 272.) II. The employment contract must be enforced because its terms are clear and unambiguous. (South Rd. Assoc., LLC v International Bus. Machs. Corp., 4 NY3d 272; Vermont Teddy Bear Co. v 538 Madison Realty Co., 1 NY3d 470; W.W.W. Assoc. v Giancontieri, 77 NY2d 157; Jacobson v Sassower, 66 NY2d 991; Reiss v Financial Performance Corp., 97 NY2d 195.) III. The Portville Central School District’s abolishment of John Consedine’s position did not destroy his contractual right to payment of his salary for the specified three-year period. (Flanagan v Board of Educ., Commack Union Free School Dist., 47 NY2d 613; Matter of Board of Educ. of Yonkers City School Dist. v Yonkers Fedn. of Teachers, 40 NY2d 268; Matter of Susquehanna Val. Cent. School Dist. at Conklin [Susquehanna Val. Teachers’ Assn.], 37 NY2d 614; Matter of Averback v Board of Educ. of New Paltz Cent. School Dist., 147 AD2d 152; Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774; Matter of Candor Cent. School Dist. [Candor Teachers Assn.], 42 NY2d 266; Rooney v Tyson, 91 NY2d 685.) IV. The contract must be enforced because the Portville Central School District is accountable for its own agreements and business decisions. (Reiss v Financial Performance Corp., 97 NY2d 195; Vermont Teddy Bear Co. v 538 Madison Realty Co., 1 NY3d 470.)

      Jay Worona, Latham, and Kimberly A. Fanniff for New York State School Boards Association, Inc., amicus curiae.
    I. Statutory law governing the employment of administrators like plaintiff-respondent precludes the formation of employment contracts of fixed duration. (Matter of Averback v Board of Educ. of New Paltz Cent. School Dist., 147 AD2d 152.) II. Employment contracts, like the one herein, between school districts and administrators who are employed under Education Law § 3012 (1) (b) that purport to establish a fixed period of duration impermissibly impair the nondelegable authority of boards of education to consolidate and abolish positions for economic reasons. (Matter of Young v Board of Educ. of Cent. School Dist. No. 6, Town of Huntington, 41 AD2d 966; Matter of Weimer v Board of Educ. of Smithtown Cent. School Dist. No. 1, 76 AD2d 1046; Board of Educ. of Cent. School Dist. No. 1 of Towns of Niagara, Wheatfield, Lewiston & Cambria v Niagara Wheatfield Teachers Assn., 54 AD2d 281, 41 NY2d 801; Matter of Ryan v Ambach, 71 AD2d 719.)
   OPINION OF THE COURT

Jones, J.

This appeal requires us to determine: (1) whether a school district can waive its statutory right to discharge a probationary school administrator at any time during the three-year probationary term (see Education Law § 3012 [1] [b]) by entering into a durational, three-year employment contract; and (2) if so, whether defendant Portville Central School District in fact waived that statutory right by executing the contract at issue here. We conclude that the first question should be answered in the affirmative, but hold, under the facts and circumstances of this case, that defendant school district did not waive its statutory right under section 3012 (1) (b).

In 2002, defendant school district created a new assistant principal position and appointed plaintiff, a tenured teacher in another school district, to the post for a probationary period of three years (January 1, 2003 through December 31, 2005). In December 2002, plaintiff and defendant school district executed an employment contract, which, in relevant part, stated, “[t]he District shall pay [plaintiff] for his services an annual salary of $52,000[,] for the period of January 1, 2003 through December 31, 200[5].” In accordance with the foregoing, plaintiff began working as an assistant principal within the school district. Approximately six months later (in July 2003), defendant school district, citing budget constraints, eliminated plaintiffs assistant principal position and advised him that he would not be working in that capacity in the fall.

After serving a notice of claim, plaintiff commenced this breach of contract action against defendants seeking damages. Motion practice not relevant to resolution of this appeal ensued. After defendants answered, plaintiff moved (1) for summary judgment on his cause of action, (2) to dismiss defendants’ defenses and (3) for sanctions. Defendants likewise moved for summary judgment to dismiss the complaint. Supreme Court denied the motions and ruled that a trial must be held to determine the intent of the parties.

After a bench trial, Supreme Court ruled that the employment contract was unambiguous, rendered judgment in plaintiffs favor and awarded him damages. The court stated, “as a matter of law, . . . the employment agreement between the parties is a contract for a three year period of employment beginning January 1, 2003 and ending on December 31, 2005.” Further, the court stated, “notwithstanding Education Law § 3012, nothing prevented the [Bjoard from extending plaintiff a three year contract . . . [A] school district is free to offer an administrator a three year probationary contract which cannot be terminated until the three years is over, and that is what occurred here.” Supreme Court alternatively ruled that “[e]ven if the court could not make this determination as a matter of law, the verdict would be the same” because “the extrinsic evidence here demonstrates that a three year period was intended.” The Appellate Division affirmed without opinion (49 AD3d 1290 [2008]). This Court granted defendants leave to appeal (10 NY3d 925 [2008]), and we now reverse.

On appeal to this Court, defendants contend that plaintiff cannot maintain a breach of contract claim because Education Law § 3012 (1) (b) expressly prohibits a school district from entering a contract guaranteeing a nontenured administrator employment for a certain duration. Defendants further argue that even if no statutory prohibition existed, the contract at issue does not guarantee plaintiff employment for a set duration. In their view, the contract merely established the terms and conditions of plaintiffs probationary appointment. Countering defendants, plaintiff argues, in spite of the elimination of his position due to budget constraints, that defendant school district must pay plaintiffs annual salary for the specified three year period because the contract, by its plain terms, clearly and unambiguously accords plaintiff the right to such payments.

The current version of Education Law § 3012 (1) (b), enacted in 1975, provides:

“Principals, administrators, supervisors and all other members of the supervising staff of school districts . . . shall be appointed by the board of education . . . upon the recommendation of the superintendent of schools for a probationary period of three years.[] The service of a person appointed to any of such positions may be discontinued at any time during the probationary period on the recommendation of the superintendent of schools, by a majority vote of the board of education.”

In construing a statute,

“[t]he primary consideration of courts ... is to ascertain and give effect to the intention of the Legislature. Of course, the words of the statute are the best evidence of the Legislature’s intent. As a general rule, unambiguous language of a statute is alone determinative. Nevertheless, the legislative history of an enactment may also be relevant and is not to be ignored, even if words be clear. When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no rule of law which forbids its use, however clear the words may appear on superficial examination. Pertinent also are the history of the times, the circumstances surrounding the statute’s passage, and . . . attempted amendments. Varying concerns may bear on the weight to be given legislative history, but they do not justify abandoning this Court’s long tradition of using all available interpretive tools to ascertain the meaning of a statute” (Riley v County of Broome, 95 NY2d 455, 463-464 [2000] [citations and internal quotation marks omitted]; see also Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 [1998]).

Although the language of Education Law § 3012 (1) (b) plainly states that the service of an appointed school administrator may be discontinued by a board of education at any time during his or her probationary period, it does not, as defendants argue, expressly prohibit a board of education from entering into a durational, three-year employment contract with a probationary school administrator. Nor does the legislative history of section 3012 (1) (b) clearly indicate whether the Legislature intended to allow boards of education to (1) enter into durational contracts during the three-year probationary term or (2) waive their statutory right to discontinue a probationary appointee’s service during the probationary term for any reason or no reason.

The legislative history of Education Law § 3012 (1) (b) primarily addresses whether school principals, administrators and supervisory personnel should have tenure. Prior to 1971, teachers, principals and other supervisors had the same tenure rights. Between 1971 and 1975, the Legislature, in an attempt to replace the tenure system, amended the statute three times (see L 1971, ch 116 [boards of education no longer authorized to grant tenure to school administrators]; L 1972, ch 953, § 3 [boards of education have discretion to enter into employment contracts “with any principal, supervisor, or member of the supervising staff for a period of from one to five years”]; L 1974, ch 952 [boards of education required to enter into employment contracts with administrative and supervisory personnel (other than superintendents) for one to three years for the first three years of employment in the position and from three to five years thereafter]).

In 1975, Education Law § 3012 (1) (b) was amended to its current version (see L 1975, ch 468, § 3). These amendments marked the removal of the language relating to employment contracts (id.) and reinstated a tenure-based system. Beyond the general objective of restoring tenure, there is nothing (such as a memorandum from an Assembly or Senate sponsor) to indicate any other legislative purpose of these amendments (see Bill Jacket, L 1975, ch 468). Stated differently, from the legislative history of the 1975 amendments, we cannot glean a clear legislative intent to prohibit school boards and districts from entering durational employment contracts with nontenured, probationary school administrators or supervisors.

After the Legislature adopted the 1975 amendments, the Commissioner of Education issued several decisions stating that Education Law § 3012 (1) (b)—and statutes with identical language pertaining to city school districts—only authorized school boards and districts to contract for terms of employment, not employment for a specific duration (see Matter of Charland, 32 Ed Dept Rep 291, 294 [1992]; Matter of Savino, 18 Ed Dept Rep 485 [1979]; Matter of Hoffman, 18 Ed Dept Rep 466, 468 [1979]). However, we do not view the Commissioner’s decisions as persuasive because (1) the text and legislative history of section 3012 (1) (b) do not clearly support the Commissioner’s conclusions and (2) they either do not reference and/or are inconsistent with this Court’s relevant precedent construing other Education Law provisions (see e.g. Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774 [1976]; Matter of Candor Cent. School Dist. [Candor Teachers Assn.], 42 NY2d 266 [1977]).

In Cohoes, we stated that “[w]hile a [school] board may legally agree to .. . forego its [statutory] right to discharge a probationary teacher during the period of probation, under the Education Law a board cannot surrender its authority to terminate the employment of a nontenured teacher at the end of the probationary period” (40 NY2d at 777 [emphasis added]; see also Candor, 42 NY2d at 272). Although Cohoes resolved a question involving tenure rights of a teacher in the context of collective bargaining, there are important similarities between the statutes involved in Cohoes and the statute relied upon by defendants in this case. Specifically, in Cohoes we made the above-quoted statement regarding a board’s ability to forgo its statutory discharge rights despite statutory provisions relating to teacher tenure rights stating that “[t]he service of a person appointed to any of such positions may be discontinued at any time during such probationary period” (see Education Law § 2509 [1] [a] [applicable to small city school districts]; § 2573 [1] [a] [applicable to large city school districts]; § 3012 [1] [a] [applicable to non-city school districts]). Education Law § 3012 (1) (b)—the statutory provision at issue here—contains the very same operative language as the teacher tenure statutes at issue in Cohoes.

Further, Cohoes implicitly holds that a school board or district may enter into a private employment contract with a teachers’ union without express statutory authority for such action. This position is not only consistent with our precedent (see Board of Educ. of Union Free School Dist. No. 3 of Town of Huntington v Associated Teachers of Huntington, 30 NY2d 122, 129 [1972] [Court rejected school board’s argument “that, absent a statutory provision expressly authorizing a school board to provide for a particular term or condition of employment, it is legally prohibited from doing so”]), it is consistent with common sense: in performing their normal administrative and managerial functions, school boards and districts necessarily enter into different types of contracts that are not expressly authorized by statute.

Because the enforcement of a contract term negotiated by a school district and an individual, as opposed to a union, is at issue, the question we need to resolve is whether the school district could agree not to exercise its statutory right to terminate a school administrator during the probationary period. Based on the foregoing discussion of the statutory text and legislative history of Education Law § 3012 (1) (b), as well as Cohoes, there is no plain and clear restriction on a school district preventing it from entering such an agreement. Thus, we hold that a school district can waive its statutory right to discharge a probationary school administrator at any time during the three-year probationary term. Absent an express waiver, the school district retains the right. We now consider whether the contract at issue established a waiver of defendant school district’s rights under section 3012 (1) (b).

“[W]hen parties set down their [contract] in a clear, complete document, their writing should ... be enforced according to its terms” (Vermont Teddy Bear Co. v 538 Madison Realty Co., 1 NY3d 470, 475 [2004], quoting W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]). A contract should be read as a whole to ensure that undue emphasis is not placed upon particular words and phrases (see South Rd. Assoc., LLC v International Bus. Machs. Corp., 4 NY3d 272, 277 [2005], citing Matter of Westmoreland Coal Co. v Entech, Inc., 100 NY2d 352, 358 [2003]). Courts “may not by construction add or excise terms, nor distort the meaning of those used and thereby make a new contract for the parties under the guise of interpreting the writing” (Vermont Teddy Bear, 1 NY3d at 475, quoting Reiss v Financial Performance Corp., 97 NY2d 195, 199 [2001]). “Whether a contract is ambiguous is a question of law and extrinsic evidence may not be considered unless the document itself is ambiguous” (South Rd. Assoc., 4 NY3d at 278, citing Greenfield v Philles Records, 98 NY2d 562, 569 [2002]).

The contract at issue provides: “The District shall pay the Assistant Principal for his services at an annual salary of $52,000[,] for the period of January 1, 2003 through December 31, 200[5].” Unlike the case at bar, in a private employment contract context where the strictures of the Education Law (or any other statutory scheme providing for probationary periods and/or tenure rights) are not present, this language could arguably be construed as creating a contract with a specific duration. Here, however, the question whether the language amounts to a waiver of rights must be determined in light of the public policy concerns attending the employment of school administrators and supervisors and a school district’s statutory right to discontinue a probationary administrator’s service at any time for any or no reason during the probationary period. Specifically, where, as here, public policy concerns are implicated, a school district will not be deemed to have waived its statutory rights under the Education Law without an explicit agreement between the parties or compelling evidence that the school district made a conscious decision to do so (see Matter of Buffalo Police Benevolent Assn. [City of Buffalo], 4 NY3d 660, 663-664 [2005]).

Applying the foregoing, we hold that the operative contractual language is simply too equivocal to establish that defendant school district consciously and expressly agreed to waive its statutory right under Education Law § 3012 (1) (b). Moreover, the trial testimony did not yield compelling evidence that such a waiver was contemplated by the parties.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the complaint dismissed.

Judges Ciparick, Graffeo, Read, Smith and Pigott concur; Chief Judge Lippman taking no part.

Order reversed, etc.

      . Once the probationary term has expired, the superintendent of schools shall make a written report recommending appointees found to be competent, efficient and satisfactory for appointment on tenure (see Education Law § 3012 [2]). Appointees granted tenure cannot be removed except for cause after a hearing conducted pursuant to Education Law § 3020-a.

      . Because we hold that no waiver occurred here, we express no view on what impact, if any, a school district’s conscious and express waiver of its Education Law § 3012 (1) (b) rights would have on an employee’s rights where the district abolished the employee’s position for economic reasons.