MOLNER v. MOLNER (2024)

Order, Supreme Court, New York County (Michael L. Katz, J.), entered on or about January 26, 2024, which, to the extent appealed from, directed defendant wife's counsel to comply with the subpoena duces tecum served by pro se plaintiff husband, unanimously affirmed, without costs.

The motion court properly denied the wife's assertion of attorney-client privilege over communications involving her parents requested in a subpoena served upon her counsel by the husband.  Communications in the known presence of a third party are generally not 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]).  Although “an exception exists for one serving as an agent of either attorney or client” (id. [internal quotation marks omitted]), conclusory statements of nonwaiver, without an indication of how the purported agent facilitated communications, cannot preserve the privilege (see Nacos v. Nacos, 124 A.D.3d 462, 462–463, 1 N.Y.S.3d 90 [1st Dept. 2015]).

Here, as the motion court noted, the wife is an educated, practicing physician, and neither she nor her parents provided any evidence, including for example an affidavit, demonstrating that the wife's parents were “deemed necessary to enable the attorney-client communication” to warrant extending attorney-client privilege (Spicer v. GardaWorld Consulting [UK] Ltd., 181 A.D.3d 413, 414, 120 N.Y.S.3d 34 [1st Dept. 2020] [internal quotation marks omitted], lv dismissed 37 N.Y.3d 1084, 155 N.Y.S.3d 391, 177 N.E.3d 587 [2021];  compare Stroh v. General Motors Corp., 213 A.D.2d 267, 623 N.Y.S.2d 873 [1st Dept. 1995]).  Under these circumstances, the wife's expectation that all communications involving her parents would remain confidential is unreasonable.

The wife's argument that the husband's subpoena should be stricken as overly broad and burdensome is improperly raised for the first time on appeal, and we decline to review it (see 324 E. 9th St. Corp. v. Acordia Northeast–N.Y., 29 A.D.3d 367, 367, 815 N.Y.S.2d 498 [1st Dept. 2006]).

Motion to strike plaintiff husband's brief, denied.