HOWARD ROSENGARTEN v. HOTT (2008)

Order, Supreme Court, New York County, (Judith J. Gische, J.), entered June 8, 2006, which, upon plaintiff's motion to strike defendant's answer and to enter a default judgment against him for failure to comply with a discovery order in this action involving an alleged agreement to share legal fees in three personal injury cases, compelled defendant to produce his client files relating to this action, and order, same court and Justice, entered January 22, 2007, which, to the extent appealable, denied defendant's motion to renew, unanimously affirmed, with costs.

Defendant's contention that the materials sought are protected by the attorney-client privilege was not raised in opposition to the original motion to compel disclosure, and accordingly, it is not preserved (see e.g. Murray v. City of New York, 195 A.D.2d 379, 381, 600 N.Y.S.2d 234 [1993] ).   Were we to consider the argument, we would find that the subject documents are material and necessary to the resolution of the instant action (see CPLR 3101[a];  Allen v. Crowell-Collier Pub. Co., 21 N.Y.2d 403, 406, 288 N.Y.S.2d 449, 235 N.E.2d 430 [1968] ), and that defendant failed to sustain his burden of establishing that the documents are entitled to protection under the privilege (see Spectrum Systems Intl. Corp. v. Chemical Bank, 78 N.Y.2d 371, 377, 575 N.Y.S.2d 809, 581 N.E.2d 1055 [1991];  Matter of Priest v. Hennessy, 51 N.Y.2d 62, 69, 431 N.Y.S.2d 511, 409 N.E.2d 983 [1980] ), or a federal court sealing order, or settlement agreements.

Defendant's motion to renew was properly denied where he provided no reasonable justification for failing to present the facts on renewal on the original motion (see Diaz v. Ford Motor Co., 29 A.D.3d 339, 340, 814 N.Y.S.2d 606 [2006] ).

We have considered defendant's remaining arguments and find them unavailing.