In this recent decision, the court considered the placement of a comma in a settlement agreement.
Erie Boulevard Hydropower v. State of New York
From the settlement agreement:
The intent and purpose of the agreement being so to operate the Hinckley State Reservior [sic] that, after serving the canal uses and purposes, of the State, it may so far as practicable, be fully used for the storage of water and the regulations of the flow of West Canada Creek below the same for the benefit of the power property and riparian lands of [claimant] on West Canada Creek below the Hinckley State Reservior [sic]. Provided, [h]owever, that during periods of extradordinary [sic] or unusual drought, flood or emergency caused by the temporary failure of other sources of water supply for the canal use, . . . the Superintendent of Public Works or other officer . . ., without the payment of any damages to [claimant], . . . may temporarily vary or entirely suspend the operation of th[e] said dam and reservior [sic] as described and laid down in the operating diagram aforesaid during the periods of such extraordinary or unusual drought, flood or emergency caused by the temporary failure of other sources of [water] supply for the canal use . . . .
The explanation by the court:
The key phrase at issue here addresses the parties’ intent that defendants operate the reservoir such that, “after serving the canal uses and purposes, of the State,” the reservoir may be fully used to store water and regulate its flow for the benefit of claimant’s power facility and riparian rights. Defendants contend that they may operate the reservoir for any State purpose – including protection of a local supply of drinking water – in the first instance. On the other hand, claimant contends that defendants may only consider the State’s canal uses and canal purposes before fully using the reservoir for claimant’s needs, after which defendants may consider other uses or purposes. Defendants’ interpretation would be accurate if the comma was placed after the word “uses” rather than after “purposes” (see A.J. Temple Marble & Tile v Union Carbide Marble Care, 87 NY2d 574, 581 [1996]; cf. Valleylab, Inc. v New York City Health & Hosps. Corp., 228 AD2d 180, 181 [1996]). As written, “canal” -4- 516510 modifies the entire phrase “uses and purposes,” and the phrase “canal uses and purposes” is modified by the ensuing phrase “of the State” (see People v Case, 42 NY2d 98, 101 [1977]).
