LEVENTHAL v. BAYSIDE CEMETERY (2018)

Order, Supreme Court, New York County (Debra A. James, J.), entered May 15, 2017, which denied plaintiff's motion to vacate a status conference order to the extent it denied his request for the disclosure of certain documents, unanimously affirmed, without costs.

Plaintiff seeks documents that defendants Bayside Cemetery and Congregation Shaare Zedek claim are subject to the attorney-client privilege on the ground that defendants have been committing a crime or fraud by commingling monies and diverting Bayside Cemetery's perpetual care trust monies for Shaare Zedek's benefit since the 1960s, and deceptively solicited his purchase price of a perpetual care trust fund in 1985 for three graves with the intent not to fulfill their perpetual care obligations.

On the prior appeal, we found that plaintiff failed to establish a claim of fraud because he alleged only that defendants entered into the perpetual care agreements with no intent to perform (Lucker v. Bayside Cemetery, 114 A.D.3d 162, 175, 979 N.Y.S.2d 8 [1st Dept. 2013], lv denied 24 N.Y.3d 901, 2014 WL 4357433 [2014] ).  Therefore, plaintiff's argument that the crime-fraud exception applies to pierce the attorney-client privilege is barred by the doctrine of law of the case (see Matter of McGrath v. Gold, 36 N.Y.2d 406, 413, 369 N.Y.S.2d 62, 330 N.E.2d 35 [1975]; Carmona v. Mathisson, 92 A.D.3d 492, 492–493, 938 N.Y.S.2d 300 [1st Dept. 2012];  Politi v. Irvmar Realty Corp., 13 A.D.2d 469, 469, 212 N.Y.S.2d 444 [1st Dept. 1961] ).

In any event, plaintiff failed to show a factual basis for a finding of probable cause to believe that defendants committed a fraud or crime either when the perpetual care trust fund was created in 1985 or thereafter (see United States v. Zolin, 491 U.S. 554, 572, 109 S.Ct. 2619, 105 L.Ed.2d 469 [1989];  Matter of New York City Asbestos Litig., 109 A.D.3d 7, 10, 966 N.Y.S.2d 420 [1st Dept. 2013], lv dismissed 22 N.Y.3d 1016, 981 N.Y.S.2d 347, 4 N.E.3d 357 [2013];  Ulico Cas. Co. v. Wilson, Elser, Moskowitz, Edelman & Dicker, 1 A.D.3d 223, 767 N.Y.S.2d 228 [1st Dept. 2003] ).

Plaintiff seeks production of the subject documents on the additional ground that defendants waived the attorney-client privilege by requesting legal advice from the Attorney General.  In the letter making this request, defendants sought advice about financing Bayside Cemetery.  As we determined on the prior appeal that plaintiff's only viable claim is to enforce the charitable trust (114 A.D.3d at 175, 979 N.Y.S.2d 8), the financial records and perpetual care contracts submitted with the request for advice about financing are not material and plaintiff is not entitled to their production (see IDT Corp. v. Morgan Stanley Dean Witter & Co., 107 A.D.3d 451, 452, 967 N.Y.S.2d 51 [1st Dept. 2013];  Surgical Design Corp. v. Correa, 21 A.D.3d 409, 410, 799 N.Y.S.2d 584 [2d Dept. 2005] ).