J. Litigation; pending litigation or other attorney-client privileges.

An executive session may be conducted in order to discuss proposed, pending or current litigation. N.Y. Pub. Off. Law § 105(1)(d) (McKinney 1988). Communications subject to the attorney-client privilege are exempt from the provisions of the OML. N.Y. Pub. Off. Law § 108(3) (McKinney 1996). See Gernatt Asphalt Products v. Sardinia, 87 N.Y.2d 668, 664 N.E.2d 1226, 642 N.Y.S.2d 664 (1996), (executive session permitted to obtain legal opinion from town's counsel about adoption of proposed amendments and to discuss pending litigation); McGovern v. Tatten, 213 A.D.2d 778, 623 N.Y.S.2d 370 (3d Dep't 1995) (executive session to discuss abandonment of road was in violation of OML); Shibley v. Miller, 212 A.D.2d 799, 623 N.Y.S.2d 283 (2d Dep't 1995) (executive session to obtain advice of counsel does not require vacatur of subsequent determination); Roberts v. Town Bd. of Carmel, 207 A.D.2d 404, 615 N.Y.S.2d 725 (2d Dep't 1994) (discussion of redesign work pursuant to a consent order was under the "litigation" category); Young v. Bd. of Appeals, 194 A.D.2d 796, 599 N.Y.S.2d 632 (2d Dep't 1993) (confidential communications between board and counsel were exempt from OML); Weatherwax v. Town of Stony Point, 97 A.D.2d 840, 468 N.Y.S.2d 914 (2d Dep't 1983) (belief that action taken at a meeting "would almost certainly lead to litigation" cannot justify an executive session); Matter of Concerned Citizens to Review the Jefferson Mall v. Town Bd., 83 A.D.2d 612, 441 N.Y.S.2d 292 (2d Dep't 1981), appeal dismissed, 54 N.Y.2d 957, 429 N.E.2d 833, 445 N.Y.S.2d 154 (1981) (the authorization to hold an executive session to discuss litigation should not be used to shield private discussions between a public body and a private litigant; the purpose of the exception is to enable a public body to discuss pending litigation privately, without baring its strategy to its adversary); Kloepfer v. Comm'r of Educ., 82 A.D.2d 974, 440 N.Y.S.2d 785 (3d Dep't 1981), aff'd, 56 N.Y.2d 687, 436 N.E.2d 1334, 451 N.Y.S.2d 732 (1982) (executive session held to discuss authorization of an appeal to commissioner was not in violation of the OML, but executive session should first be authorized at an open meeting); Cioci v. Mondello, No. 28261/90, (Sup. Ct., Nassau County, March 18, 1991) (discussions with the County Attorney relating to pending litigation are exempt from OML, however, the presence of a third party represents a waiver of the privilege); Previdi v. Hirsch, 138 Misc.2d 436, 524 N.Y.S.2d 643 (Sup. Ct. 1988) (executive session improper where school board failed to identify with particularity the current litigation and counsel for litigant suing board was present); Lakeville Journal v. Village Bd., No. 3769/85 (Sup. Ct., Dutchess County, Dec. 6, 1985) (the litigation exception does not permit confidential discussion simply because the village attorney is present and legal advice is sought); Kopald v. Planning Bd., No. 5001, 1983 (Sup. Ct., Orange County, Feb. 24, 1984) ("potential" litigation is not an appropriate topic for discussion in executive session; Daily Gazette Co. v. Town Bd., 111 Misc.2d 303, 444 N.Y.S.2d 44 (Sup. Ct. 1981) (while discussion of "proposed" litigation was an appropriate matter for inclusion on the agenda of an executive session, the closed session was not properly convened when the public body failed to identify with particularity the proposed litigation to be discussed); Smothers v. Bd. of Educ., No. 11050/81 (Sup. Ct., Westchester County, Aug. 26, 1981) (executive session held to discuss "threatened" litigation with counsel was not in violation of the OML); Brander v. Town of Warren Town Bd., 18 Misc.3d 477, 847 N.Y.S.2d 450 (Sup. Ct. 2007) (held, general discussion of negotiations with an attorney are not a valid basis for an executive session).