BOARD OF MANAGERS OF PHILIP HOUSE CONDOMINIUM v. [And Other Third–Party Actions]. (2024)

Order, Supreme Court, New York County (Lyle E. Frank, J.), entered July 1, 2024, which, insofar as appealed from, denied plaintiff's motion to compel defendants 141 East 88th Street, LLC and The Cheshire Group, L.L.C. to produce outstanding discovery, unanimously modified, on the law, the motion granted to the extent of compelling production of documents designated “business confidential,” and the matter remanded to Supreme Court for an in camera review to address plaintiff's challenges to defendants’ remaining privilege assertions, and otherwise affirmed, without costs.

Defendants do not dispute that the documents designated on their privilege logs as “business confidential” were improperly withheld from production.  Thus, defendants must produce any documents withheld under that designation.

As to the documents that defendants withheld on the basis of other privileges, Supreme Court, in light of the sheer breadth of plaintiff's document requests, properly denied plaintiff's request for a “wholesale rejection” of defendants’ privilege assertions and an immediate and full production of all the withheld documents.  Nevertheless, plaintiff's motion to compel raised valid questions about certain designations on defendants’ privilege logs, which listed more than 19,000 documents over 938 pages of entries, and defendants failed to oppose plaintiff's motion with additional details sufficient to explain the basis for their privilege assertions (see e.g. Gama Aviation Inc. v. Sandton Capital Partners, L.P., 99 A.D.3d 423, 424, 951 N.Y.S.2d 519 [1st Dept. 2012]).  As a result, defendant has not made a proper showing that all the documents were properly withheld as privileged.  Plaintiff is entitled to in camera review of those documents so that Supreme Court can address its challenges to the privilege assertions (see Fragin v. First Funds Holdings, LLC, 150 A.D.3d 410, 410, 51 N.Y.S.3d 394 [1st Dept. 2017];  NAMA Holdings, LLC v. Greenberg Traurig LLP, 133 A.D.3d 46, 50, 18 N.Y.S.3d 1 [1st Dept. 2015]).