VEGA v. Fordham University, Defendant–Appellant. (2026)

Appeal from order, Supreme Court, New York County (Sabrina Kraus, J.), entered February 25, 2026, which directed defendant Fordham University to produce certain documents with portions of those documents unredacted, unanimously dismissed, without costs, for failure to perfect the appeal in the proper manner.

After a discovery dispute arose between the parties via email, Supreme Court ordered an in camera inspection of certain documents that Fordham had produced in redacted form.  Fordham produced the documents and a privilege log for the court's review.  After its review, the court sustained some of Fordham's redactions and ordered it to disclose certain other documents with specified portions unredacted.  Fordham sought leave to appeal to this Court in accordance with CPLR 5701(a)(2), and leave was granted (Vega v. Archdiocese of New York, 2026 N.Y. Slip Op 66696[U] [1st Dept 2026] ).

The record is inadequate to enable this Court to render an informed decision on whether Supreme Court's rejection of Fordham's privilege claims was a provident exercise of its discretion because there is no admissible evidence in the record supporting Fordham's assertions of the attorney-client and work-product privileges.  Although counsel represents in Fordham's appellate briefs that the documents are protected by the privileges because they were prepared by counsel or at counsel's direction, reflect counsel's selection and organization of material related to a legal matter, or were intended as legal advice, we cannot consider counsel's representations, as they are unsupported by the record (see Schoonheim v. Schoonheim, 92 A.D.2d 474, 475 [1st Dept 1983] ).  In addition, appellate briefs are not sworn or affirmed to be true under penalties of perjury (see Rules of Chief Admr of Cts [22 NYCRR] § 130–1.1–a;  Rules of App.Div., All Depts [22 NYCRR] §§ 1250.1[d];  1250.8[g][1], [j] ).  In any event, even if the briefs were submitted by an attorney affirmation, the affirmation of a party's attorney who demonstrates no personal knowledge of the matter has no evidentiary value (see Matter of Jaime v. City of New York, 41 NY3d 531, 542 [2024];  Zuckerman v. City of New York, 49 N.Y.2d 557, 563 [1980] ).  Accordingly, the record is inadequate to permit meaningful appellate review of whether Fordham properly asserted the attorney-client and work-product privileges.