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

Appellate Division of the Supreme Court of New York

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

12 A.D.3d 214, 783 N.Y.S.2d 805, 2004 N.Y. App. Div. LEXIS 13144

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 9, 2004

StatusPublished

Cited by9 cases

This text of 12 A.D.3d 214 (330 Acquisition Co. v. Regency Savings Bank, F.S.B.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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330 Acquisition Co. v. Regency Savings Bank, F.S.B., 12 A.D.3d 214, 783 N.Y.S.2d 805, 2004 N.Y. App. Div. LEXIS 13144 (N.Y. Ct. App. 2004).

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Opinion

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.

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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.

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12 A.D.3d 214, 783 N.Y.S.2d 805, 2004 N.Y. App. Div. LEXIS 13144, Counsel Stack Legal Research, https://law.counselstack.com/opinion/330-acquisition-co-v-regency-savings-bank-fsb-nyappdiv-2004.

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