Cite as Fezell v. N.R.A., - Misc.2d - (1998) SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY : IAS PART 10 HOWARD J. FEZELL, JOHN C. KRULL, JERRY Index No. 600211/98-001 L. ALLEN, FRANK M. SAWBERGER, LARRY R. RANKIN, JOHN GUEST, WILLIAM DOMINGUEZ, cal. #5 - 1/26/98 EFF KNOX, KIM STOLFER, JOHN H. TRENTES, Plaintiffs, -against- NATIONAL RIFLE ASSOCIATION OF AMERICA, Defendant. BEATRICE SHAINSWIT, J.: Plaintiffs move, pursuant to CPLR 6301 and 6311, for an order preliminarily enjoining defendant National Rifle Association of America (NRA) from printing any type of designation in the 1998 Ballot Issue of the NRA'S three official journals, and on the official ballot of the NRA, as to whether a candidate for election to the Board of Directors of the NRA (the Board) was nominated by petition of NRA members or by the present Boards Nominating Committee in any form, including paid advertisements. Plaintiffs contend that such designation would be in violation of Article VIII, Section 3(e) of the NRA'S bylaws, and that the NRA'S actions in printing said designations will deny plaintiffs a fair corporate election. Defendant NRA cross-moves to dismiss the complaint, pursuant to CPLR 3211(a)(1) and (7). FACTUAL ALLEGATIONS Pursuant to Article VIII of the NRA bylaws, a candidate for election to the Board can be nominated either by the Nominating Committee or by members petition. The incumbent Board elects the members of the Nominating Committee. The NRA conducts the Board election by paper ballot, sent by U.S. mail to the eligible voting members of the NRA at least 15 days prior to the Annual Meeting of Members. It has been the practice of the NRA to send the ballot for the Board election to the eligible voting members as part of the Ballot Issue of the three official journals of the NRA (American Rifleman, American Guardian, and American Hunter). This year, the 1998 Ballot Issue will be the March issue of the official journals. Plaintiffs rely on Article VIII, Section 3(e) of the nra bylaws, which states in bold italic typeface: In both the official journal and on the official ballot, no persons nominated by petition nor by the nominating committee shall be so designated. (Id. at p. 33). According to plaintiffs, Article VIII, Section 3(e) was actually adopted in 1979, following the amendment of the bylaws in 1977 to allow, for the first time, candidates to be nominated by members petition, if said petition is signed by 250 members eligible to vote. This 1977 amendment had also provided as follows: In addition to the persons selected by the Nominating Committee in accordance with Section 3(c) of this Article, the Nominating Committee shall cause the names and biographical sketches of persons nominated by petition to be published in the official journal; however, in both the official journal and on the official ballot, persons nominated by petition shall be so designated. (Land 1/23/98 Aff., Ex. A; emphasis added). In the 1978 and 1979 Board elections, candidates for election were designated, in the biographical sketches in the official journals and on the official ballot, as having been nominated by the Nominating Committee, with a "1" next to their names, and as having been nominated by petition, with a "2" next to their names. Plaintiffs contend that it was the experience in the 1978 and 1979 NRA board elections that the Nominating Committee candidates had an advantage over the petition candidates because the members tended to vote for the candidates designated as committee candidates. Allegedly in direct response to the experience of these two elections, the bylaws were amended to prohibit any designations in the official journals and on the official ballot. On December 19, 1997, NRA Director Ronin Colman sent a letter to NRA Secretary Edward J. Land, Jr., requesting that the report of the NRA Nominating Committee not be printed in the 1998 Ballot Issue of the official journals. Secretary Land denied the request on the ground that the Nominating Committee Report has been published continuously in the Official Journal since 1985, pursuant to a Board resolution adopted in September of 1984. Plaintiffs argue that since, pursuant to Article XV, Section 5, the provisions of Article VIII, Section 3(e) cannot be repealed or amended by board action, the board policy of printing the Nominating Committee's report constitutes a violation of the NRA bylaws. Plaintiff Howard J. Fezell was nominated to be a candidate for election to the Board of Directors of the NRA by members petition. On December 17, 1997, he wrote a letter to Secretary Land requesting that any designation as to the manner in which plaintiff Fezell was nominated as a candidate be removed from his biography to be published in the Ballot Issue of the official journals. He further requested that the NRA notify all candidates whose biographical sketches contain any reference to the method of their nomination that such designations are not permitted by Article VIII, Section 3(e) of the bylaws. Lastly, he sought an assurance that the report of the Nominating Committee listing that committees nominees would not be printed in the 1998 Ballot Issue of the official journals. When plaintiff Fezell received no response to his letter, this action was commenced. The remaining plaintiffs were nominated to be candidates for election to the Board by members petition in the Fall of 1997, and are all presently candidates for the 1998 election. The complaint alleges two causes of action: (1) a request for judicial oversight of enforcement of corporate bylaws pursuant to Not-for-Profit corporation Law (N-PCL) 618; and (2) Breach of fiduciary duty by the officers and board of the NRA. Plaintiffs seek preliminary injunctive relief, attorneys fees and costs. The NRA opposes the motion and cross-moves for dismissal of the complaint. It contends that publication of the report of the Nominating Committee in the official journals does not violate Article VIII, Section 3(e) of the bylaws. This is because it would not constitute a designation within the meaning of the bylaws; rather the word designated in Article VIII, Section 3(e) was adopted only to end the numerical designation (1, 2, or both) of the method of designation in both the official ballot and the biographical sketches. This numerical designation was allegedly disfavored by the NRA membership because they felt that voters were casting their vote based simply upon a number "1" or "2" next to the candidates name, and that the voters should take the time to read the candidates biographical sketch for a more informed vote. Defendant NRA further contends that the biographical sketches in the 1980 election, the first to follow the adoption of Article VIII, Section 3(e), contained words stating the method of nomination of individual nominees. Individual nominees were able to state, nominated by Nominating Committee, without running afoul of Article VIII, Section 3(e), because the prohibition against being designated was well understood to apply only to the numerical designations that first implemented the amendment allowing nomination by members petition. Finally, defendant points out that the report of the Nominating Committee has been published in every succeeding official journal since 1985 without protest. The NRA relies, inter alia, on the following documentary evidence: (a) a copy of plaintiff Fezell's biographical sketch for the 1994 Board election in which he described himself as a Committee nominee; (b) a copy of the biographical sketch of Francis Winters for the 1993 Board election, in which he described himself as both a petition and Committee candidate; and (c) the 1980 biographical sketches for the election of directors, showing that many of the candidates chose to reveal how they were nominated. DISCUSSION Defendants Cross Motion to Dismiss Defendant NRA cross-moves to dismiss the complaint, pursuant to CPLR 3211(a)(7), for failure to state a cause of action. The first cause of action states a cause of action pursuant to N-PCL 618, which empowers the Supreme Court to intervene in and oversee elections for the Board of Directors of a not-for-profit corporation as justice may require. (see, Sun Wei Assn. v. Wong, 222 AD2d 203 [1st Dept 1995]; see also, Ohrbach v. Kirkeby, 3 AD2d 269, 272 [1st Dept 1957] [court issued a preliminary injunction to postpone election of directors]). The second cause of action properly states a cause of action for breach of fiduciary duty by the present NRA board as a result of its alleged purposeful and willful violation of Article VIII, Section 3(e) of the NRA bylaws and by impeding plaintiffs right to a fair corporate election (see, N-PCL 102[a][2], 602, 717; see also, Fitzgerald v. The National Rifle Association of America, 383 F.Supp 162, 165 [SDNY 1974]). Defendant argues that the intent behind the adoption of Article VIII, Section 3(e) was only to eliminate the 1, 2 numerical designation system, and that this intent is unequivocally established based on the documentary evidence it has submitted, and thus that the complaint should be dismissed, pursuant to CPLR 3211(a)(1). The rules of contract interpretation are generally applicable to the interpretation of corporate bylaws (14 NY Jur 2d, Business Relationships, contract is to be interpreted to give effect to the intention of the parties as expressed in the unequivocal language employed (Bread v. Insurance Co. of North America, 46 NY2d 351, 355 [1978]; American Express Bank Ltd. v. Uniroyal, 164 AD2d 275, 277 [1st Dept 1990]). It is well settled law of this State that courts may not fashion a new contract under the guise of contract construction (Slatt v. Slatt, 64 NY2d 966, 967 [1985]; see also, 85th Street Rest. Corp. v. Sanders, 194 AD2d 324, 326 [1st Dept 1993]). As the Court of Appeals explained in W.W.W. Associates, Inc. v. Giancontieri, 77 NY2d 157, 162 (1990), when parties set down their agreement in a clear, complete document, their writing should as a rule be enforced according to its terms. Evidence 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. (Citations omitted.) Likewise, the conduct of the parties over the intervening years to ascertain their intent with respect to a contract provision is only relevant if the contract provision is ambiguous, of doubtful meaning, or where there is claimed waiver (Slatt v. Slatt, supra, 67 NY2d, at 967 [citation omitted]). Based upon the foregoing principles of law, the court can reach only one conclusion with respect to the bylaw at issue. It says what it says in very unambiguous terms, i.e., that no person nominated by petition or by Nominating Committee shall be so designated in both the official journals of the NRA or on the official ballot. Defendant's interpretation of the bylaw as only prohibiting the 1, 2 numerical designation system utilized for the 1978 and 1979 Board elections might be reasonable if the bylaw had prohibited designation of candidates on the official ballot only, thereby forcing voting members of the NRA to read the biographical sketches published in the official journals to learn how a candidate had been nominated. But it is not so limited; rather, it clearly and unequivocally says that candidates cannot be so designated in both the official journal and on the official ballot. Therefore, defendant's evidence of a different intent behind adoption of the bylaw in 1979 and its subsequent interpretation by NRA Boards, members, and candidates for the past 20 years is inadmissible. Preliminary Injunctive Relief Plaintiffs motion for a preliminary injunction must be granted. Plaintiffs have shown a strong likelihood of success on the merits, irreparable harm absent the grant of an injunction, and a balancing of equities in their favor (W. T. Grant Co. v. Srogi, 52 NY2d 496, 517 [1981]). As to the merits of the case, the language of Article VIII, Section 3(e) of the NRA bylaws is unambiguous and supports plaintiffs claim that the present board is presently about to disseminate election materials, the content of which clearly violates Article VIII, Section 3(e) of the association's bylaws. The second prong of the test is also easily met since plaintiffs, as petition candidates for election to the NRA Board, will suffer immediate and irreparable injury if this Court does not grant them temporary injunctive relief. Lastly, the balance of equities favors the plaintiffs because, regardless of past construction by NRA Boards, members and candidates, plaintiffs, as duly-nominated candidates for election to the NRA Board, are entitled to participate in an election conducted in the manner chosen by the members of the NRA as expressed in the unambiguous language of its bylaws. The fact that plaintiff Fezell and others described themselves as Nominating Committee candidates in earlier elections should not defeat plaintiffs request for preliminary injunctive relief. CONCLUSION For the foregoing reasons, plaintiffs motion for a preliminary injunction is granted and the parties are directed to settle an order on one days notice directly to Chambers, accompanied by affidavits addressed to the amount of the undertaking to be set by the court. Defendants cross motion for dismissal of the complaint is denied. Dated: February 5, 1998 ENTER: ___________________________________________ J.S.C.