BEW Parking Corp. v. Apthorp Associates LLC

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. Concur — Sweeny, J.R, Acosta, Feinman and Kahn, JJ.