Howard Rosengarten, P.C. v. Hott

Appellate Division of the Supreme Court of New York

Howard Rosengarten, P.C. v. Hott

49 A.D.3d 328, 854 N.Y.2d 687

Appellate Division of the Supreme Court of the State of New York·Decided March 11, 2008·Published·Cited by 8 cases

Opinion

Defendant’s contention that the materials sought are protected by the attorney-client privilege was not raised in opposi[329] tion to the original motion to compel disclosure, and accordingly, it is not preserved (see e.g. Murray v City of New York, 195 AD2d 379, 381 [1993]). Were we to consider the argument, we would find that the subject documents are material and necessary to the resolution of the instant action (see CPLR 3101 [a]; Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]), and that defendant failed to sustain his burden of establishing that the documents are entitled to protection under the privilege (see Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 377 [1991]; Matter of Priest v Hennessy, 51 NY2d 62, 69 [1980]), or a federal court sealing order, or settlement agreements.

Defendant’s motion to renew was properly denied where he provided no reasonable justification for failing to present the facts on renewal on the original motion (see Diaz v Ford Motor Co., 29 AD3d 339, 340 [2006]).

We have considered defendant’s remaining arguments and find them unavailing. Concur—Tom, J.P., Buckley, Sweeny and Moskowitz, JJ.

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Defendant’s contention that the materials sought are protected by the attorney-client privilege was not raised in opposi[329] tion to the original motion to compel disclosure, and accordingly, it is not preserved (see e.g. Murray v City of New York, 195 AD2d 379, 381 [1993]). Were we to consider the argument, we would find that the subject documents are material and necessary to the resolution of the instant action (see CPLR 3101 [a]; Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]), and that defendant failed to sustain his burden of establishing that the documents are entitled to protection under the privilege (see Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 377 [1991]; Matter of Priest v Hennessy, 51 NY2d 62, 69 [1980]), or a federal court sealing order, or settlement agreements.

Defendant’s motion to renew was properly denied where he provided no reasonable justification for failing to present the facts on renewal on the original motion (see Diaz v Ford Motor Co., 29 AD3d 339, 340 [2006]).

We have considered defendant’s remaining arguments and find them unavailing. Concur—Tom, J.P., Buckley, Sweeny and Moskowitz, JJ.

Howard Rosengarten, P.C. v. Hott, 49 A.D.3d 328, 854 N.Y.2d 687 (N.Y. Ct. App. 2008).

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Opinion

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