Delta Financial Corporation, etc., plaintiff, v. (Action No. 2) (2010)

Supreme Court, Appellate Division, Second Department, New York.

Delta Financial Corporation, etc., plaintiff, v. James E. Morrison, et al., defendants;  Christopher A. Byrne, nonparty-appellant. (Action No. 1) Delta Funding Residual Exchange Company, LLC, et al., plaintiffs, v Delta Financial Corporation, et al., defendants;  Christopher A. Byrne, nonparty-appellant. (Action No. 2)

2008-08876 (Index Nos. 11118 /03, 3084 /04)

Decided: January 12, 2010

MARK C. DILLON, J.P. ANITA R. FLORIO L. PRISCILLA HALL SANDRA L. SGROI, JJ.

Christopher A. Byrne, Washington, D.C., nonparty-appellant pro se. In related actions, inter alia, to recover damages for breach of contract, Christopher A. Byrne, an attorney for the defendants in Action No. 1 and for the plaintiffs in Action No. 2, appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Warshawsky, J.), dated August 12, 2008, as, after a hearing, directed him to pay the sum of $5,000 to the Lawyers' Fund for Client Protection as a sanction pursuant to 22 NYCRR § 130.1-1. During discovery, Christopher A. Byrne, who was an attorney for the defendants in Action No. 1 and for the plaintiffs in Action No. 2, asserted that 55 e-mails were protected from disclosure by the attorney-client privilege, a litigation committee privilege, and/or a common interest privilege.   After an exhaustive in camera review of those 55 e-mails, the Supreme Court determined that Byrne failed to satisfy his burden of establishing that the documents contained confidential communications between an attorney and a client during the course of professional employment for the purpose of obtaining legal advice or services and that they were primarily or predominantly of a legal, rather than a business, nature (see Spectrum Sys. Intl. Corp. v Chemical Bank, 78 N.Y.2d 371;  Rossi v Blue Cross & Blue Shield of Greater N.Y., 73 N.Y.2d 588;  Matter of Priest v Hennessy, 51 N.Y.2d 62).