Opinion
November 19, 1998
Appeal from the Supreme Court, New York County (Stuart Cohen, J.).
The motion court erred to the extent that it required defendants and the nonparty appellant law firm to make disclosures concerning defendant auction house's communications with counsel, i.e., the nonparty firm, retained by it in connection with its appearance as a witness in litigation respecting the estate of Andy Warhol ( see, Matter of Warhol, 165 Misc.2d 726). Since all of the consultations at issue were for the purpose of giving legal advice to the auction house, the matters communicated during the consultations, including incidental, not otherwise privileged matters, are shielded from disclosure by the attorney-client privilege ( see, Spectrum Sys. Intl. Corp. v. Chemical Bank, 78 N.Y.2d 371, 378-380). Defendants did not waive the privilege as to these communications by making disclosures in the affidavit of defendant Hambrecht in the Warhol litigation or in published statements, because the legal advice in question was given after the two appraisals that were the subject of each of those statements, and that advice therefore has no bearing on defendants' state of mind at the time that the two appraisals were rendered ( see, Raphael v. Clune White Nelson, 146 A.D.2d 762, 763). Otherwise, we do not find that the motion court's orders constituted an improvident exercise of discretion ( see, e.g., Pontas Renovation v. Kitano Arms Corp., 224 A.D.2d 349, lv dismissed in part and denied in part 88 N.Y.2d 914). We note in particular that, properly read, the provision in the order dealing with documents concerning defendants' appraisal in the Warhol matter requires production only of those documents made in the ordinary course of business and responsive to the six categories identified in plaintiff's 17th through 19th and 23rd through 26th disclosure requests. Because respondent nonparty attorney Lipsky did not join in plaintiff's cross appeal, we do not reach plaintiff's arguments respecting disclosure of a telephone conversation among the nonparty attorney, defendant's former appraiser and representatives of the nonparty Foundation. Even if plaintiff's argument on this point had merit, it would not be appropriate to grant relief exclusively benefitting a non-appealing party ( cf., Citnalta Constr. Corp. v. Caristo Assocs. Elec. Contrs., 244 A.D.2d 252, 254). We have considered the parties' remaining arguments for affirmative appellate relief made on the appeal and cross appeal and find them unavailing.
Concur — Rosenberger, J. P., Ellerin, Wallach and Saxe, JJ.