Rohan v Barasch & McGarry, P.C.

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Rohan v Barasch & McGarry, P.C. 2012 NY Slip Op 31702(U) June 21, 2012 Supreme Court, New York County Docket Number: 104763/10 Judge: Judith J. Gische Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] * J SUPREME COURT OF THE 8TATE OF N-EWYORK NEW YORK c o u m PART Index Number ; 10476W2OlO ROHAN, ROBERT VS. - BARASCH SEQUENCE NUMBER : 003 COMPEL - Upsn the forqphtg papr), It h ordered that thiq mdbn k i Dated: JUN 2 I 2012 [* 2] Supreme Court of the State of New York County of New Yo&: IAS 10 X _ I _ _ _ _ Robert Rohan, Decision/Order Plaintiff, Index#104763/10 Mot. Seq. # 003 -againstBarasch & McGarry, P.C. d/b/a Barasch McGarry Salrman & Penson, and Michael Barasch, Esq., Defendants 1 1 1 1 1 1 1 1 1 1 1 -__-_-_ FILED -_---_- JUN 28 ZU'l2 X Gische, J: NEW YORK Pursuant to CPLR 2219(A) the following numbered papers were c o n s i d e r e d w w i CLERKS OFFICE court on this motion: PAPERS NUMBER Notice of Motion, KJE affirm., exhibits.................................................. 1 ILN affirm. in opp................................................................................... 2 KJG reply affirm ..................................................................................... 3 ._ ._ . - .~ . _ Upon the foregoing papers the decision and order of the court is as follows: Plaintiff brought this malpractice actlon against defendants. Plaintiff alleges that on or about May 15,2009, he retained defendants (sometimes "BMSP'I),as attorneys, to represent him in connection with personal injuries he sustained on March 2, 2009, after a step stool he was standing on collapsed. The locatlon where the injuries took place, 16 Hopper Street, Brooklyn, New York, is was owned by plaintiffs employer, the New York City Fire Department and the City of New York (collectively "the Cttf). The basis for the malpractice claim is that although the deadtine for the Notice of Claim wa8 June 1, 2009, the defendants failed to timely ale such Notice. It is further alleged that defendants advised plaintiff that they would no longer represent him on June 17, 2009. Plaintiff thereafter, on September 21, 2009, retained Page 1 of 4 [* 3] Baron Associates P.C., ( Baron ) to pursue a personal injury case against the Gib, based on the March 2, 2000 incident. He alleges that upon the retention of Baron he first learned that the time to file a Notice of Claim had passed. Baron brought a motion to file a late Notice of Claim, which was denied on February 17, 2010. Plaintiff appeared for deposition in this case on November 14, 2011, During the deposition plaintiff asserted attorney client privilege when asked questions abwt Baron s legal representation of him in connection with the underlying personal injury claim and related motion to file a late Notice of Claim. In this motion, defendants seek an order compelling plaintiff to answer questions regarding plaintiff 9 legal representation by [Baron] in the underlying personal injury matter; the circumstances surrounding the motion by Order to Show Clause filed by Baron seeking leave to file a late notice of claim against the New York City Fire Department and City of New York ... in the underlying personal injury matter; any discussion andlor correspondence between plaintiff and Baron regarding the content, arguments and/or evidence used in the underlying Order to Show Cause motion, any discussion andlor correspondence between plaintiff and Baron regarding the likelihood of success of the underlying Order to Shaw Cause motion, any discussion and/or correspondence between plaintiff and Baron regarding the subject step stool, its location andlor condition, and photographs of same; [and] any discussion and/or correspondence concerning an appeal of the underlying decision denying leave to file a late Notice of Claim. (See: Glenn 1130/12 affirm. 72). Defendants claim that while the Information they seek involves plaintWs communications with counsel, which would othewise be protected by the attorney Page 2 of 4 [* 4] client privilege, the privilege has been waived because the subject matter has beesn put at issue in this malpractice action against them. For the reasons that follow, the court rejects this argument and denies the motion to compel disclosure. At issue waiver of a privilege occurs where a party affirmative4 places the subject matter of its own privileged communication at iswe in the litigation, so that the invasion of the privilege is required to determine the validity of the claim or defense of the party asserting the privilege, and the application of the privilege would deprive the adversary of vital information. Pautsche Bank Trust Csrnna nv of Arne rims v. fri -Link Investment Trust, 43 AD3d 56 (1 dept. 2007). The fact that a privileged communication contains information relevant to issues the parties are litigating does not, without more, place the contents of the privileged communication itself at issue in the lawsuit. Rather, at issue waiver occurs when a party has asserted a claim or defense that he intends to prove by use ofthe prlvllegd conversations and/or materials. AMBA C Assurance m gration v. DLJ Mortqaqa Capital. lnc,, 92 AD3d 451 (l dept. 2012); ~ u t s c e Baqk Trust CQmRanv of Americas v, Tri-Link8 lnvsstrnent h Trust, supra. Generally, no at issue waiver will be found where the party asserting the privilege does not need the privileged documents to sustain its cause of action. AMBAC Assuran-oration v, DLJ Mortqaqe Canbl, Inc., supra. In thls regard, plaintiffs lawsuit against defendants rests primarily on his claim that when they were still acting as his attorneys, they failed to timely file a Notice o f Claim on his behalf. In order to prove his case against defendants, plaintiff does not need to rely on any advice he was later given by Baron about the personal injury claim. Plaintiff does not claim that any part of any advice Baron provided to him regarding the Page 3 of 4 [* 5] personal injury matter is necessary to prove that defendants committed malpractice. Although ptalntiff alleges that it was Baron that first told him that the Notice of Claim had not been timely filed, those statements are irrelevant to the causes of action asserted, because the time for filing the Notice of Claim had allegedly passed before defendants ceased their representation of plaintiff. Defendants' argument, that plaintiff has put the otherwise privileged communications with successor counsel "at issue" simply because plaintiff claims defendants committed malpractice, is not an accurate statement of the law. Jaaoblaff Y . Cerrato. $wee nv and C Qn,~97 AD2d 834 (2"6 dept. 1983). The fact that defendants think the information will be useful to them is not a sufflcient reason to make it discoverable or to find that there has been a waiver of the privilege. In accordance herewith it.is hereby ORDERED that the motion far an order compelling plaintiff to appear for a second deposition Is denied and it is further ORDERED that this constitutes the decision and order of the court. Dated: New York, NY June 21, 2012 SO ORDERED: FILED JUN282M2 . NEW YORK COUNTY CLERKS OFFICE Page 4 of 4

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