Opinion
6963N Index 653300/16
06-21-2018
ELMROCK OPPORTUNITY MASTER FUND I, L.P., Plaintiff–Appellant, v. CITICORP NORTH AMERICA, INC., et al., Defendants–Respondents.
Kaplan Fox & Kilsheimer LLP, New York (Gregory K. Arenson of counsel), for appellant. Goodwin Procter LLP, New York (Samuel J. Rubin of counsel), for respondents.
Kaplan Fox & Kilsheimer LLP, New York (Gregory K. Arenson of counsel), for appellant.
Goodwin Procter LLP, New York (Samuel J. Rubin of counsel), for respondents.
Richter, J.P., Tom, Mazzarelli, Gesmer, Moulton, JJ.
Order, Supreme Court, New York County (Barry R. Ostrager, J.), entered November 8, 2017, to the extent it permitted defendant to withhold from disclosure under the common interest doctrine communications between defendants or their representatives or attorneys and nonparty LDVF I LA Power LLC or nonparty Fortress Investment Group, LLC, or either of their representatives or attorneys, that do not relate solely to the contemplation or prosecution of litigation, unanimously affirmed, with costs.
The record demonstrates that the common interest agreement was entered into in reasonable anticipation of litigation (see Ambac Assur. Corp. v. Countrywide Home Loans, Inc., 27 N.Y.3d 616, 620, 36 N.Y.S.3d 838, 57 N.E.3d 30 [2016] ). Indeed, plaintiff alleges that defendants breached their duty to protect its interests by failing to "commence litigation to establish" the parameters of the appraisers' valuation determinations. While defendants did not commence such a suit, they entered into the Supplemental Appraisal Protocols, which provided for judicial review of the precise question urged by plaintiff. Plaintiff can hardly claim that litigation that it demanded, and that defendants provided for, could not reasonably have been anticipated. It is of no consequence that defendants ultimately settled the dispute without filing suit.