Opinion
2001-09380
Submitted May 10, 2002.
June 25, 2002.
In an action to recover a real estate broker's commission, the defendants appeal from a judgment of the County Court, Suffolk County (Cacciabaudo, J.), entered January 3, 2001, which, after a nonjury trial, is in favor of the plaintiff and against them in the principal sum of $20,000.
Thomas T. McVann, Jr., Westhampton, N.Y., for appellants.
James McManmon, Riverhead, N.Y., for respondent.
Before: SONDRA MILLER, J.P., ROBERT W. SCHMIDT, THOMAS A. ADAMS, SANDRA L. TOWNES, JJ.
ORDERED that the judgment is affirmed, with costs.
The defendants failed to establish each element of the attorney-client privilege which they assert should have prevented the introduction of the testimony of the attorney who represented them during the transaction in question (see Spectrum Sys. Int'l Corp. v. Chemical Bank, 78 N.Y.2d 371; Matter of Priest v. Hennessy, 51 N.Y.2d 62). The testimony elicited did not concern a "confidential communication" made to the attorney for the purpose of obtaining legal advice or services (see CPLR 4503[a]; Rossi v. Blue Cross and Blue Shield of Greater New York, 73 N.Y.2d 588; Matter of Priest v. Hennessy, supra; Erljur Assocs. v. Weissman, 134 A.D.2d 321; Poteralski v. Colombe, 84 A.D.2d 887). Moreover, the defendants waived any privilege they may have had by squarely placing the matter in issue (see New York TRW Title Ins. v. Wade's Canadian Inn Cocktail Lounge, 225 A.D.2d 863, 864; Jakobleff v. Cerrato, Sweeney Cohn, 97 A.D.2d 834, 835; Erljur Assocs. v. Weissman, 134 A.D.2d at 322). Therefore, the trial court properly overruled the defendants' objections to the introduction of the attorney's testimony regarding whether the defendants instructed him as to the mortgage contingency clause and their stated reasons for refusing to execute the contract of sale. "The assertion of the privilege would have been an obstacle to the truth-finding process at the trial but would not have had any real value in protecting the appellants' confidential communications with their attorney" (Erljur Assocs. v. Weissman, 134 A.D.2d at 322; see Matter of Priest v. Hennessy, 51 N.Y.2d at 68; Matter of Jacqueline F., 47 N.Y.2d 215, 219).
S. MILLER, J.P., SCHMIDT, ADAMS and TOWNES, JJ., concur.