330 Acquisition Co., LLC v Regency Savings Bank, F.S.B.

330 Acquisition Co., LLC v Regency Sav. Bank, F.S.B. 2004 NY Slip Op 07996 [12 AD3d 214] November 9, 2004 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2005

330 Acquisition Co., LLC, Respondent,
v
Regency Savings Bank, F.S.B., Appellant.

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Order, Supreme Court, New York County (Leland DeGrasse, J.), entered July 18, 2003, which approved an order of the special referee pursuant to CPLR 3104 (d), unanimously affirmed, with costs.

There is no basis for dismissal of the appeal; under the circumstances, it is not moot and the relief sought is not barred. Supreme Court properly exercised its discretion, based on its realistic appreciation of the nonparty's interlocking relationship with plaintiff, in finding that the communications between plaintiff and the nonparty were subject to the attorney-client common interest privilege. This was properly based on the special referee's finding of their common legal interest (see In re Megan-Racine Assoc., Inc., 189 BR 562, 570 [ND NY 1995]), even with respect to prebankruptcy communications (see generally United States v Schwimmer, 892 F2d 237, 244 [2d Cir 1989]), despite the fact that they were debtor and creditor.

We have considered defendant's other contentions and find them unavailing. Concur—Sullivan, J.P., Ellerin, Williams, Gonzalez and Catterson, JJ.