Melcher v. Apollo Medical Fund Management, L.L.C.

Appellate Division of the Supreme Court of New York

Melcher v. Apollo Medical Fund Management, L.L.C.

37 A.D.3d 217, 829 N.Y.S.2d 483

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

DecidedFebruary 8, 2007

StatusPublished

Cited by2 cases

This text of 37 A.D.3d 217 (Melcher v. Apollo Medical Fund Management, L.L.C.) 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.

Bluebook

Melcher v. Apollo Medical Fund Management, L.L.C., 37 A.D.3d 217, 829 N.Y.S.2d 483 (N.Y. Ct. App. 2007).

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Opinion

Order, Supreme Court, New York County (Herman Cahn, J.), entered December 1, 2005, which, to the extent appealed from, directed the production of certain cover letters and invoices issued to plaintiff by his former counsel, Patterson Belknap, subsequent to his retention of his present counsel, unanimously reversed, on the law and the facts, without costs, and the direction vacated. Order, same court and Justice, entered January 25, 2006, which to the extent appealable and appealed from, denied plaintiffs cross motion seeking to compel responses to deposition questions and document requests from defendant Fradd and his counsel, Mr. Governale, unanimously reversed, on the law and the facts, without costs, insofar as to vacate the finding that defendant Fradd had not waived attorney-client privilege by virtue of his affidavit and deposition testimony, to substitute therefor the finding that the affidavit and deposition testimony did effect a waiver of Fradd’s conversations with Governale respecting the formation of Apollo Offshore Ltd., and to grant the cross motion to the extent permitted by that waiver. Appeal from order, same court and Justice, entered on or about September 11, 2006, unanimously dismissed, without costs.

The Patterson Belknap invoices, issued after plaintiff retained his present attorney, Mr. Jannuzzo, were ordered disclosed to enable defendants to ascertain whether plaintiffs trial counsel was a “branch” of Patterson Belknap. The court abused its discretion by ordering such disclosure for that purpose.

The record establishes that defendant Fradd waived the attorney-client privilege with respect to his conversations with Mr. Governale, relating to the formation of Apollo Medical Offshore Ltd. Not only did Fradd testify that he relied only upon the advice of Mr. Governale in setting up Apollo Offshore as he did, but he selectively disclosed the portions of those communications most beneficial to his position in an affidavit and in his deposition testimony (see Orco Bank v Proteinas Del Pacifico, 179 AD2d 390 [1992]). Concur—Saxe, J.E, Marlow, Nardelli, Sweeny and Catterson, JJ.

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Order, Supreme Court, New York County (Herman Cahn, J.), entered December 1, 2005, which, to the extent appealed from, directed the production of certain cover letters and invoices issued to plaintiff by his former counsel, Patterson Belknap, subsequent to his retention of his present counsel, unanimously reversed, on the law and the facts, without costs, and the direction vacated. Order, same court and Justice, entered January 25, 2006, which to the extent appealable and appealed from, denied plaintiffs cross motion seeking to compel responses to deposition questions and document requests from defendant Fradd and his counsel, Mr. Governale, unanimously reversed, on the law and the facts, without costs, insofar as to vacate the finding that defendant Fradd had not waived attorney-client privilege by virtue of his affidavit and deposition testimony, to substitute therefor the finding that the affidavit and deposition testimony did effect a waiver of Fradd’s conversations with Governale respecting the formation of Apollo Offshore Ltd., and to grant the cross motion to the extent permitted by that waiver. Appeal from order, same court and Justice, entered on or about September 11, 2006, unanimously dismissed, without costs.

The Patterson Belknap invoices, issued after plaintiff retained his present attorney, Mr. Jannuzzo, were ordered disclosed to enable defendants to ascertain whether plaintiffs trial counsel was a “branch” of Patterson Belknap. The court abused its discretion by ordering such disclosure for that purpose.

The record establishes that defendant Fradd waived the attorney-client privilege with respect to his conversations with Mr. Governale, relating to the formation of Apollo Medical Offshore Ltd. Not only did Fradd testify that he relied only upon the advice of Mr. Governale in setting up Apollo Offshore as he did, but he selectively disclosed the portions of those communications most beneficial to his position in an affidavit and in his deposition testimony (see Orco Bank v Proteinas Del Pacifico, 179 AD2d 390 [1992]). Concur—Saxe, J.E, Marlow, Nardelli, Sweeny and Catterson, JJ.

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Bluebook (online)

37 A.D.3d 217, 829 N.Y.S.2d 483, Counsel Stack Legal Research, https://law.counselstack.com/opinion/melcher-v-apollo-medical-fund-management-llc-nyappdiv-2007.

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