North State Autobahn, Inc., et al., appellants, v Progressive Insurance Group, et al., respondents. v. <<

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

North State Autobahn, Inc., et al., appellants, v Progressive Insurance Group, et al., respondents.

2010–06633 (Index No. 2761/07)

Decided: May 31, 2011

DANIEL D. ANGIOLILLO, J.P. ANITA R. FLORIO ARIEL E. BELEN SHERI S. ROMAN, JJ. Medina, Torrey, Mamo & Camacho, P.C., New York, N.Y. (Richard Paul Stone of counsel), for appellants. Nelson Levine de Luca & Horst, LLC, New York, N.Y. (Michael R. Nelson and Kymberly Kochis of counsel), for respondents.

Submitted—May 10, 2011

DECISION & ORDER

In an action, inter alia, to recover damages for fraud, the plaintiffs appeal from so much of an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered May 25, 2010, as granted that branch of the defendants' motion which was for a protective order precluding the plaintiffs from compelling defense witness Victor Politzi to answer certain questions at his deposition on the ground of attorney-client privilege.

ORDERED that the order is reversed insofar as appealed from, on the facts and in the exercise of discretion, without costs or disbursements, and the matter is remitted to the Supreme Court, Westchester County, for an in camera inspection of answers, to be supplied by Victor Politzi in writing, that are responsive to the disputed deposition questions posed by the plaintiffs' counsel at the prior deposition of Victor Politzi regarding a certain letter dated July 3, 2007, and for a new determination thereafter of the defendants' motion for a protective order.

The Supreme Court improvidently exercised its discretion in granting the defendants' motion for a protective order precluding the plaintiffs from compelling defense witness Victor Politzi to answer certain questions posed to him by the plaintiffs' counsel during his deposition on the ground of attorney-client privilege.  “In order to make a valid claim of privilege, it must be shown that the information sought to be protected from disclosure was a confidential communication made to the attorney for the purpose of obtaining legal advice or services” (Matter of Priest v. Hennessy, 51 N.Y.2d 62, 69 [internal quotation marks omitted];  see Cross Bay Contr.   Corp. v Town of Islip Resource Recovery Agency, 238 A.D.2d 461, 462).   In the instant case, the defendants failed to establish that the answers sought by the plaintiffs during their questioning of Politzi in connection with a letter dated July 3, 2007, are “primarily or predominantly of a legal character” (Rossi v Blue Cross & Blue Shield of Greater N.Y., 73 N.Y.2d 588, 594;  cf.  Cooper–Rutter Assoc. v Anchor Natl. Life Ins. Co., 168 A.D.2d 663).   Although an attorney's affidavit supplied by defense counsel states that “[t]he questions presented involve items about which [the attorney] provided legal advice to” unnamed employees, a large number of the questions posed by the plaintiffs' counsel sought information about Politzi's own personal knowledge.   Accordingly, the matter must be remitted to the Supreme Court, Westchester County, for an in camera inspection of answers, to be supplied by Politzi in writing, that are responsive to the disputed deposition questions posed by the plaintiffs' counsel at Politzi's deposition regarding the letter dated July 3, 2007, and for a new determination thereafter of the defendants' motion for a protective order.

ANGIOLILLO, J.P., FLORIO, BELEN and ROMAN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court

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