CHAIT v. CHAIT (1998)

Order, Supreme Court, New York County (Fern Fisher-Brandveen, J.), entered on or about July 10, 1997, which granted plaintiff's motion to confirm a Special Referee's report finding that the extension of the parties' prenuptial agreement was voidable by plaintiff because he signed it under duress, and denied defendant's cross motion to reject the report, unanimously affirmed, with costs.

 The Special Referee's finding of duress has support in the record (see, Freedman v. Freedman, 211 A.D.2d 580, 621 N.Y.S.2d 610), including, in particular, the evidence that defendant repeatedly threatened to take the parties' child away from plaintiff if he did not sign the extension, a threat she had the means to carry out by resort to her family's considerable wealth.   That plaintiff consulted with two attorneys on the day he signed the agreement does not necessarily negate his claim of duress (compare, Terio v. Terio, 150 A.D.2d 675, 541 N.Y.S.2d 548, with Costanza v. Costanza, 199 A.D.2d 988, 989-990, 608 N.Y.S.2d 14).   Concerning those consultations, in view of the prior unappealed order quashing defendant's subpoenas to take the depositions of plaintiff's attorneys, we decline to reach the issue of whether it was error to hold that plaintiff did not waive his attorney-client privilege (see, Haibi v. Haibi, 171 A.D.2d 842, 843, 567 N.Y.S.2d 778).   In any event, it is clear that plaintiff did not place the subject matter of the communications in issue, and therefore did not waive the privilege (compare, Paruch v. Paruch, 140 A.D.2d 418, 421, 528 N.Y.S.2d 119).   We have considered defendant's other arguments and find them to be without merit.

MEMORANDUM DECISION.