Opinion
2008-1430 S C.
Decided June 29, 2009.
Appeal from an order of the District Court of Suffolk County, Sixth District (Howard M. Bergson, J.), dated June 30, 2008. The order, insofar as appealed from, denied so much of non-party appellant Nassau/Suffolk Law Services' motion as sought to quash question 5 of an information subpoena.
Order, insofar as appealed from, affirmed without costs.
PRESENT: RUDOLPH, P.J., MOLIA and NICOLAI, JJ.
Landlords Jacob Sarfati and Pearl Sarfati commenced a nonpayment proceeding against tenant Iris Bertino, who was represented by Nassau/Suffolk Law Services. Pursuant to a stipulation of settlement, a final judgment awarding landlords possession and the principal sum of $4,400 was entered on April 21, 2008. Thereafter, landlords' counsel served Nassau/Suffolk Law Services with an information subpoena seeking the answers to various questions regarding Ms. Bertino, in order to enable landlords to enforce the unsatisfied money judgment. Nassau/Suffolk Law Services moved to quash the information subpoena on the ground that the information requested was protected by the attorney-client privilege. The District Court granted the motion to quash, except as to question 5, which requested the name, address and telephone numbers of any of Ms. Bertino's employers that were on file with Nassau/Suffolk Law Services. The instant appeal by Nassau/Suffolk Law Services ensued.
CPLR 4503 (a) (1) codifies the attorney-client privilege, and provides, in pertinent part: "Unless the client waives the privilege, an attorney or his or her employee, or any person who obtains without the knowledge of the client evidence of a confidential communication made between the attorney or his or her employee and the client in the course of professional employment, shall not disclose, or be allowed to disclose such communication." The attorney-client privilege rests on the policy of encouraging "persons needing professional advice to disclose freely the facts in reference to which they seek advice, without fear that such facts will be made public to their disgrace or detriment by their attorney" ( Hurlburt v Hurlburt, 128 NY 420, 424). The privilege is not limitless, however, and where the privilege constitutes an obstacle to the truth-finding process, its invocation "should be cautiously observed to ensure that its application is consistent with its purpose" ( Matter of Jacqueline F., 47 NY2d 215, 219; see also Matter of Priest v Hennessy, 51 NY2d 62, 68). No clear rule of general application can be simply articulated ( see Matter of Priest, 51 NY2d at 68), and "much ought to depend on the circumstances of each case" ( Matter of Jacqueline F., 47 NY2d at 222).
CPLR 5223 permits a judgment creditor to utilize an information subpoena to compel disclosure of "all matter relevant to the satisfaction of the judgment." Certain information, however, which is privileged, is exempt from disclosure, and the attorney-client privilege may therefore be invoked to protect such information from post-judgment disclosure. The burden of proving the attorney-client privilege is on the party asserting it, who has the burden of showing, inter alia, "that the information sought to be protected from disclosure was a confidential communication made to the attorney for the purpose of obtaining legal advice or services" ( Matter of Priest, 51 NY2d at 69). A communication which has no direct relevance to the legal advice to be given, unlike a communication which relates to the subject matter of the attorney's professional employment, is a collateral matter, which is not privileged ( id.).
Although Nassau/Suffolk Law Services urges that the attorney-client privilege is applicable in the instant case because the information sought regarding Ms. Bertino's employers was provided by Ms. Bertino "in the course of professional employment" (CPLR 4503), in our opinion, such information has no direct relevance to the legal advice given and does not relate to the subject matter of the attorney's professional employment ( see Matter of Priest, 51 NY2d at 69). As the information involves a collateral matter, it is not subject to the privilege, and the District Court therefore properly denied so much of Nassau/Suffolk Law Services' motion as sought to quash question 5 of the information subpoena. Accordingly, the order, insofar as appealed from, is affirmed.
Rudolph, P.J., Molia and Nicolai, JJ., concur.