Opinion
January 29, 1982
In a matrimonial action, Alan P. Rosefielde, a nonparty witness, appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Spatt, J.), dated July 20, 1981, as, upon denying defendant's motion to punish him for contempt, directed him to appear for a further examination before trial and to answer certain questions. Order affirmed insofar as appealed from, with $50 costs and disbursements. The examination shall proceed at the place designated in the order under review, at a time to be fixed in a written notice of not less than 10 days, to be given by defendant, or at such other time and place as the parties may agree. A review of the record reveals that at his examination before trial, the plaintiff, whenever asked about various aspects of his finances, authorized counsel for the defendant to obtain the information from his attorney, Alan P. Rosefielde, the appellant herein. However, at the appellant's deposition, he refused, inter alia, to answer questions as to whether plaintiff has assets of any kind outside of the United States, and as to whether he has knowledge of any tax free income received by plaintiff. Special Term held that "it is clear that the plaintiff Norman Ostrin has waived any attorney-client privilege as to transactions between himself and attorney Rosefielde." We agree. A review of the record reveals that the plaintiff gave the defendant express authorization to examine Rosefielde as to all of plaintiff's financial transactions and to obtain all pertinent documents. At the very least, the questions involved on this appeal relate either directly or indirectly to matters concerning which the plaintiff has opened the door (see Hamlin v. Hamlin, 224 App. Div. 168, 173). In any event, we hold that the matters under inquiry are not protected by the privilege. They merely concern information concerning the finances of the plaintiff and will not require disclosure of any confidential communications which arise in the context of an attorney-client relationship (see, e.g., Matter of Levinsky, 23 A.D.2d 25, 31; Mutual Life Ins. Co. of N.Y. v. Tailored Woman, 276 App. Div. 144; Matter of Circle Floor Co. v. Siltan Corp., 36 Misc.2d 634). Appellant has failed to meet his burden of establishing that the information sought to be protected from disclosure was a "confidential communication" made to him by the plaintiff for the purpose of obtaining legal advice or services (see Matter of Priest v. Hennessy, 51 N.Y.2d 62, 68-69). Cohalan, J.P., Thompson and Bracken, JJ., concur.
Contrary to Special Term's determination, the excerpts of the examinations before trial of plaintiff and the nonparty witness appellant (plaintiff's tax attorney) reveal that plaintiff's repeated authorizations to defendant's attorney to obtain from appellant information contained in specific business and personal documents held by appellant did not amount to a general waiver of the attorney-client privilege (see CPLR 3101, subd [b]; 4503). The information which plaintiff agreed to have his attorney supply was not privileged because it was not intended to be confidential in relation to appellant's role as an attorney as distinguished from his other apparent roles as custodian, business advisor and agent (see Colton v. United States, 306 F.2d 633, cert den 371 U.S. 951; United States v. Merrell, 303 F. Supp. 490, 492-493; Matter of Creekmore, 1 N.Y.2d 284, 296; People v. Belge, 59 A.D.2d 307; Matter of Levinsky, 23 A.D.2d 25, 31; Avery v. Lee, 117 App. Div. 244, 247-248; Randy Int. v. Automatic Compactor Corp., 97 Misc.2d 977; Matter of Le Fever v. Lefkowitz, 18 Misc.2d 278, app dsmd 6 A.D.2d 998; Rieser Co. v. Loew's, Inc., 194 Misc. 119). The mere fact that the plaintiff testified to his finances did not operate as a waiver of confidential conversations about that subject with his attorney (see People v. Lynch, 23 N.Y.2d 262, 271; People v. Marsh, 59 A.D.2d 623; People v. Moore, 42 A.D.2d 268, 271-272; Hamlin v. Hamlin, 224 App. Div. 168, 172-173; Rosentiel v. Rosentiel, 43 Misc.2d 462, 463-464, revd on other grounds 21 A.D.2d 635, affd 16 N.Y.2d 64, cert den 384 U.S. 971). Furthermore, on this record, defendant insufficiently challenged appellant's position that his knowledge of plaintiff's finances (apart from that contained in the disclosed books and papers) was obtained confidentially in his role as an attorney. Therefore, I vote to reverse the order insofar as appealed from.