Opinion
15364N, 600918/09.
10-20-2015
Joan BANACH, Plaintiff–Petitioner–Respondent–Appellant, v. The DEDALUS FOUNDATION, INC., Defendant–Respondent–Appellant–Respondent. Bantle & Levy LLP, Nonparty–Respondent. National Employment Lawyers Association/New York, Amicus Curiae.
Pryor Cashman LLP, New York (Perry M. Amsellem of counsel), for appellant-respondent. Bantle & Levy LLP, New York (Lee F. Bantle of counsel), for respondent-appellant. Emery Celli Brinckerhoff & Abady LLP, New York (Jonathan S. Abady of counsel), for respondent-appellant and respondent. Giskan Solotaroff Anderson & Stewart, LLP, New York (Darnley D. Stewart of counsel), for amicus curiae.
Pryor Cashman LLP, New York (Perry M. Amsellem of counsel), for appellant-respondent.
Bantle & Levy LLP, New York (Lee F. Bantle of counsel), for respondent-appellant.
Emery Celli Brinckerhoff & Abady LLP, New York (Jonathan S. Abady of counsel), for respondent-appellant and respondent.
Giskan Solotaroff Anderson & Stewart, LLP, New York (Darnley D. Stewart of counsel), for amicus curiae.
FRIEDMAN, J.P., ACOSTA, MOSKOWITZ, RICHTER, FEINMAN, JJ.
Opinion Order, Supreme Court, New York County (Geoffrey D. Wright, J.), entered October 28, 2014, which, to the extent appealed from, denied defendant's motion to, among other things, reinstate and compel compliance with a subpoena ad testificandum and duces tecum served upon plaintiff's counsel Bantle & Levy, and denied plaintiff's motion for discovery sanctions and to compel disclosure of certain documents and information, unanimously modified, on the law and the facts, to grant plaintiff's motion to compel disclosure, and otherwise affirmed, without costs.
The court properly refused to reinstate a subpoena that it had previously quashed, since the subpoena sought documents and testimony protected by the attorney-client privilege (Bohn v. 176 W. 87th St. Owners Corp., 106 A.D.3d 598, 600, 966 N.Y.S.2d 42 [1st Dept.2013], lv. dismissed in part and denied in part 22 N.Y.3d 909, 975 N.Y.S.2d 729, 998 N.E.2d 392 [2013] ). The record shows that the subpoena sought information from plaintiff's counsel for the improper purpose of impeaching plaintiff (see Melcher v. Apollo Med. Fund Mgt. L.L.C., 52 A.D.3d 244, 245, 859 N.Y.S.2d 160 [1st Dept.2008] ). Moreover, defendant failed to show a sufficient basis for applying the crime-fraud exception to the attorney-client privilege (see Matter of Grand Jury Subpoena, 1 A.D.3d 172, 173, 767 N.Y.S.2d 77 [1st Dept.2003] ).
The court should have compelled disclosure of all materials and information requested by plaintiff, as the requested discovery is relevant to her defense of defendant's counterclaims (see CPLR 3101[a] ). Defendant waived its attorney-client privilege regarding the requested minutes of a board meeting, by using portions of those minutes during a deposition and by placing the contents of the minutes at issue (see Drizin v. Sprint Corp., 3 A.D.3d 388, 389–390, 771 N.Y.S.2d 82 [1st Dept.2004] ; Orco Bank v. Proteinas Del Pacifico, 179 A.D.2d 390, 390, 577 N.Y.S.2d 841 [1st Dept.1992] ). Thus, plaintiff's request for disclosure of the full unredacted minutes of the meeting should have been granted.
Discovery sanctions against defendant are not warranted, as there was no prior order directing the exchange of the items sought, and no evidence of willful or contumacious conduct (see Ayala v. Lincoln Med. & Mental Health Ctr., 92 A.D.3d 542, 938 N.Y.S.2d 437 [1st Dept.2012] ).
We have considered the parties' remaining contentions for affirmative relief and find them unavailing.
The Decision and Order of this Court entered herein on June 9, 2015 is hereby recalled and vacated (see M–4556, 2015 WL 6144399 decided simultaneously herewith).