Petra Mtge. Capital Corp., LLC v Amalgamated Bank

Petra Mtge. Capital Corp., LLC v Amalgamated Bank 2012 NY Slip Op 03275 Decided on April 26, 2012 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 April 26, 2012
Andrias, J.P., Saxe, Catterson, Renwick, Román, JJ.
7489 651861/10

[*1]Petra Mortgage Capital Corp., LLC, et al., Plaintiffs-Appellants,

v

Amalgamated Bank, etc., Defendant-Respondent.




Pryor Cashman LLP, New York (Todd E. Soloway of counsel),
for appellants.
Arnold & Porter, LLP, New York (Charles G. Berry of
counsel), for respondent.

Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered November 28, 2012, which denied plaintiffs' motion to compel the production of all communications between defendant and its attorneys in a prior legal action, unanimously affirmed, with costs.

Defendant's commencement of an action as plaintiffs' agent pursuant to an "Intercreditor and Servicing Agreement" did not create an attorney-client relationship between defendant's attorney and plaintiffs (see Bank of N.Y. v River Terrace Assoc., LLC, 23 AD3d 308, 311 [2005]; see also In re Colocotronis Tanker Sec. Litig., 449 F Supp 828 [SD NY 1978]). Nor were defendant and plaintiffs fiduciaries merely because they participated in
the same loans (see 330 Acquisition Co. v Regency Sav. Bank, 306 AD2d 154 [2003]).

Plaintiffs failed to demonstrate the applicability of the crime-fraud exception to the attorney-client privilege (see Horizon Asset Mgt., Inc. v Duffy, 82 AD3d 442 [2011]; Galvin v Hoblock, 2003 WL 22208370, *4-5, 2003 US Dist LEXIS 16704, *12-15 [SD NY 2003]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 26, 2012

CLERK