         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
291
CA 10-00933
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND GREEN, JJ.


DAVID NEUMAN, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

STUART A. FRANK, DEFENDANT-APPELLANT,
ET AL., DEFENDANT.


COSTELLO, COONEY & FEARON, PLLC, SYRACUSE (CHRISTOPHER G. TODD OF
COUNSEL), FOR DEFENDANT-APPELLANT.

HARRIS BEACH PLLC, ROCHESTER (DOUGLAS A. FOSS OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Onondaga County
(Anthony J. Paris, J.), entered March 25, 2010. The order, inter
alia, directed defendant Stuart A. Frank to produce certain documents.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying in part the motion for
leave to renew and vacating the directives that defendant Stuart A.
Frank disclose his unredacted cellular telephone records for the
period from October 1, 2004 to December 31, 2007 and his unredacted
tax returns for the years 2004 through 2007 and as modified the order
is affirmed without costs and the matter is remitted to Supreme Court,
Onondaga County, for further proceedings with respect to those
cellular telephone records and tax returns in accordance with the
following Memorandum: Plaintiff commenced this action alleging, inter
alia, that Stuart A. Frank (defendant), a partner in defendant law
firm, committed legal malpractice and breached his fiduciary duty to
plaintiff during the course of representing him by acting in a manner
that conflicted with plaintiff’s interests. Plaintiff moved for leave
to renew his motion seeking to compel discovery by defendant and in
addition sought a protective order striking defendant’s demands for
supplemental interrogatories and for the production of documents.
Defendant cross-moved for an order compelling plaintiff to respond to
his discovery demands, and both defendants cross-moved for partial
summary judgment dismissing the first cause of action, for breach of
fiduciary duty, as duplicative of the second cause of action, for
legal malpractice.

      Addressing defendants’ cross motion for partial summary
judgment, we conclude that Supreme Court properly denied the cross
motion with respect to defendant, the sole appellant. “A cause of
action for legal malpractice must be based on ‘the existence of an
                                 -2-                           291
                                                         CA 10-00933

attorney-client relationship at the time of the alleged malpractice’ ”
(TVGA Eng’g, Surveying, P.C. v Gallick [appeal No. 2], 45 AD3d 1252,
1256; see Compis Servs., Inc. v Greenman, 15 AD3d 855, lv denied 4
NY3d 709). The fiduciary duty of an attorney, however, “extends both
to current clients and former clients and thus is broader in scope
than a cause of action for legal malpractice” (TVGA Eng’g, Surveying,
P.C., 45 AD3d at 1256; see Greene v Greene, 47 NY2d 447, 453). Thus,
a cause of action for legal malpractice based upon alleged misconduct
occurring during the attorney’s representation of the plaintiff is not
duplicative of a cause of action for breach of fiduciary duty based
upon alleged misconduct occurring after the termination of the
representation (see Country Club Partners, LLC v Goldman, 79 AD3d
1389, 1391; Kurman v Schnapp, 73 AD3d 435, 435-436). Although
plaintiff alleged in the amended complaint that defendant’s misconduct
occurred during the period from October 2004 to May 2005, when
defendant represented plaintiff in transactions related to the
development of a shopping center, defendant testified at his
deposition that he withdrew from representing plaintiff at some point
prior to April 11, 2005. Therefore, based on defendant’s own
deposition testimony, defendants failed to meet their initial burden
of establishing that the breach of fiduciary duty cause of action is
duplicative of the legal malpractice cause of action for the period
between May 2005 and the as yet unspecified date prior to April 11,
2005 when defendant ceased to represent plaintiff (see Country Club
Partners, LLC, 79 AD3d at 1391; Kurman, 73 AD3d at 435-436).

     Contrary to defendant’s further contention, plaintiff’s motion
for leave to renew with respect to discovery was based upon facts
unavailable at the time of the prior motion (see CPLR 2221 [e] [2]).
Also contrary to defendant’s contention, the court did not abuse its
broad discretion to supervise discovery by ordering defendant to
produce unredacted financial records (see generally CPLR 3101 [a];
Cain v New York Cent. Mut. Fire Ins. Co., 38 AD3d 1344). We further
conclude, however, that the court erred in ordering defendant to
disclose his unredacted cellular telephone records for the period from
October 1, 2004 to December 31, 2007 without first submitting those
records to the court for an in camera review, to determine which
cellular telephone calls “are material and related to” this action and
to protect the confidentiality of defendant’s other clients (Carter v
Fantauzzo, 256 AD2d 1189, 1190). In addition, the court erred in
ordering defendant to produce his unredacted tax returns for the years
2004 through 2007 without first conducting “an in camera review of the
tax returns in question to determine whether full disclosure is
required and to minimize the intrusion into [defendant’s] privacy”
(id.). Plaintiff made “the requisite showing that those tax returns
were indispensable to this litigation and that relevant information
possibly contained therein was unavailable from other sources”
(Lauer’s Furniture Stores v Pittsford Place Assoc., 190 AD2d 1054; see
Carter, 256 AD2d at 1190) but, as noted, defendant nevertheless was
entitled to an in camera review before producing those tax returns.
We therefore modify the order accordingly, and we remit the matter to
Supreme Court to determine those parts of the motion for leave to
renew following an in camera review of the cellular telephone records
and tax returns at issue.
                                 -3-                           291
                                                         CA 10-00933

     Finally, we conclude that the court properly granted that part of
plaintiff’s motion for a protective order and properly denied
defendant’s cross motion seeking to compel further discovery.
Defendant’s discovery demands were duplicative of prior discovery
demands, and “[defendant] ha[s] not demonstrated that [plaintiff] has
been nonresponsive or that a further response is needed” (Ranne v
Huff, 11 AD3d 952, 953; see generally CPLR 3101 [a]; M&T Bank Corp. v
Gemstone CDO VII, Ltd., 78 AD3d 1664).




Entered:   March 25, 2011                       Patricia L. Morgan
                                                Clerk of the Court
