Opinion
07-05-2016
BEW PARKING CORP., et al., Plaintiffs–Appellants, v. APTHORP ASSOCIATES LLC, Defendant–Respondent.
The Baez Law Firm, PLLC, New York (José Anibal Báez of counsel), for appellants. Marc E. Elliott, P.C., New York (Marc E. Elliott of counsel), for respondent.
The Baez Law Firm, PLLC, New York (José Anibal Báez of counsel), for appellants.
Marc E. Elliott, P.C., New York (Marc E. Elliott of counsel), for respondent.
SWEENY, J.P., ACOSTA, FEINMAN, KAHN, JJ.
Opinion
Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered on or about March 25, 2015, which, to the extent appealed from as limited by the briefs, denied plaintiffs' motion to compel the production of certain documents withheld as protected by the attorney-client privilege, unanimously affirmed, without costs.
Defendant, which has no employees, established, through specific affidavits of persons with knowledge, that its counsel had to communicate with defendant's agents in order to provide legal advice regarding, among other things, the repairs to the garage it owned and the vacate order regarding the garage. Further, the averments of counsel and the context of the communications demonstrate that there was an expectation by defendant that the communications would be held in confidence. As such, defendant established that the communications at issue were privileged (see Gama Aviation Inc. v. Sandton Capital Partners, L.P., 99 A.D.3d 423, 424, 951 N.Y.S.2d 519 [1st Dept.2012] ). Defendant did not waive the privilege by producing nonprivileged documents related to the same issues (see Deutsche Bank Trust Co. of Ams. v. Tri–Links Inv. Trust, 43 A.D.3d 56, 64, 837 N.Y.S.2d 15 [1st Dept.2007] ). A waiver occurs when the privileged information itself is placed at issue (id.; see also Orco Bank v. Proteinas Del Pacifico, 179 A.D.2d 390, 577 N.Y.S.2d 841 [1st Dept.1992] ); such a waiver did not occur here.