

BEW Parking Corp. v Apthorp Assoc. LLC (2016 NY Slip Op 05350)





BEW Parking Corp. v Apthorp Assoc. LLC


2016 NY Slip Op 05350


Decided on July 5, 2016


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on July 5, 2016

Sweeny, J.P., Acosta, Feinman, Kahn, JJ.


1671N 601155/09

[*1] BEW Parking Corp., et al., Plaintiffs-Appellants,
vApthorp Associates LLC, Defendant-Respondent.


The Baez Law Firm, PLLC, New York (José Anibal Báez of counsel), for appellants.
Marc E. Elliott, P.C., New York (Marc E. Elliott of counsel), for respondent.

Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered on or about March 25, 2015, which, to the extent appealed from as limited by the briefs, denied plaintiffs' motion to compel the production of certain documents withheld as protected by the attorney-client privilege, unanimously affirmed, without costs.
Defendant, which has no employees, established, through specific affidavits of persons with knowledge, that its counsel had to communicate with defendant's agents in order to provide legal advice regarding, among other things, the repairs to the garage it owned and the vacate order regarding the garage. Further, the averments of counsel and the context of the communications demonstrate that there was an expectation by defendant that the communications would be held in confidence.
As such, defendant established that the communications at issue were privileged (see Gama Aviation Inc. v Sandton Capital Partners, L.P., 99 AD3d 423, 424 [1st Dept 2012]). Defendant did not waive the privilege by producing nonprivileged documents related to the same issues (see Deutsche Bank Trust Co. of Ams. v Tri-Links Inv. Trust, 43 AD3d 56, 64 [1st Dept 2007]). A waiver occurs when the privileged information itself is placed at issue (id.; see also Orco Bank v Proteinas Del Pacifico, 179 AD2d 390 [1st Dept 1992]); such a waiver did not occur here.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JULY 5, 2016
DEPUTY CLERK


