601 v. Conway, Farrell, Curtin & Kelly, P.C., et al., appellants, et al., defendants (and a third-party action). (2010)

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

601 Realty Corp., et al., respondents, v. Conway, Farrell, Curtin & Kelly, P.C., et al., appellants, et al., defendants (and a third-party action).

2008-11370 (Index No. 9103 /07)

Decided: June 22, 2010

PETER B. SKELOS, J.P. DANIEL D. ANGIOLILLO THOMAS A. DICKERSON JOHN M. LEVENTHAL, JJ.

McManus, Collura & Richter, P.C., New York, N.Y. (Scott C. Tuttle of counsel), for appellants. Gleich, Siegel & Farkas, Great Neck, N.Y. (Jonathan H. Freiberger of counsel), for respondents. Under the circumstances of this case, the appellants' motion to compel the plaintiffs to respond to items 3 and 6 in their notice for discovery and inspection dated January 11, 2008, should have been granted. The invasion of the attorney-client privilege with respect to the subject communications and documents is required in order for the appellants to assert their defense to the action at trial (see Orco Bank v Proteinas Del Pacifico, 179 A.D.2d 390, 390-391; Jakobleff v Cerrato, Sweeney & Cohn, 97 A.D.2d 834, 835; Goldberg v Hirschberg, 10 Misc.3d 292, 295).

Argued-May 28, 2010

DECISION & ORDER

In action to recover damages for legal malpractice, the defendants Conway, Farrell, Curtin & Kelly, P.C., Angela Pantony, and Richard W. Dawson appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Phelan, J.), dated November 7, 2008, as denied their motion to compel the plaintiffs to respond to items 3 and 6 in their notice for discovery and inspection dated January 11, 2008.

ORDERED that the order is reversed insofar as appealed from, on the law, on the facts, and in the exercise of discretion, with costs, and the appellants' motion to compel the plaintiffs to respond to items 3 and 6 in their notice for discovery and inspection dated January 11, 2008, is granted.

The parties' remaining contentions either need not be addressed in light of our determination, have been rendered academic, or are without merit.

SKELOS, J.P., ANGIOLILLO, DICKERSON and LEVENTHAL, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

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