Petra Mortgage Capital Corp. v. Amalgamated Bank

Appellate Division of the Supreme Court of New York

Petra Mortgage Capital Corp. v. Amalgamated Bank

94 A.D.3d 671, 942 N.Y.S.2d 786

Appellate Division of the Supreme Court of the State of New York·Decided April 26, 2012·Published

Opinion

Order, Supreme Court, New York County (Barbara R. Kapnick, J), entered November 28, 2012, which denied plaintiffs’ motion to compel the production of all communications between defendant and its attorneys in a prior legal action, unanimously affirmed, with costs.

Defendant’s commencement of an action as plaintiffs’ agent pursuant to an “Intercreditor and Servicing Agreement” did not create an attorney-client relationship between defendant’s attorney and plaintiffs (see Bank of N.Y. v River Terrace Assoc., LLC, 23 AD3d 308, 311 [2005]; see also In re Colocotronis Tanker Sec. Litig., 449 F Supp 828 [SD NY 1978]). Nor were defendant and plaintiffs fiduciaries merely because they participated in the same loans (see 330 Acquisition Co. v Regency Sav. Bank, 306 AD2d 154 [2003]).

Plaintiffs failed to demonstrate the applicability of the crime-fraud exception to the attorney-client privilege (see Horizon Asset Mgt., Inc. v Duffy, 82 AD3d 442 [2011]; Galvin v Hoblock, 2003 WL 22208370, *4-5, 2003 US Dist LEXIS 16704, *12-15 [SD NY 2003]). Concur — Andrias, J.P., Saxe, Catterson, Renwick and Román, JJ.

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Order, Supreme Court, New York County (Barbara R. Kapnick, J), entered November 28, 2012, which denied plaintiffs’ motion to compel the production of all communications between defendant and its attorneys in a prior legal action, unanimously affirmed, with costs.

Defendant’s commencement of an action as plaintiffs’ agent pursuant to an “Intercreditor and Servicing Agreement” did not create an attorney-client relationship between defendant’s attorney and plaintiffs (see Bank of N.Y. v River Terrace Assoc., LLC, 23 AD3d 308, 311 [2005]; see also In re Colocotronis Tanker Sec. Litig., 449 F Supp 828 [SD NY 1978]). Nor were defendant and plaintiffs fiduciaries merely because they participated in the same loans (see 330 Acquisition Co. v Regency Sav. Bank, 306 AD2d 154 [2003]).

Plaintiffs failed to demonstrate the applicability of the crime-fraud exception to the attorney-client privilege (see Horizon Asset Mgt., Inc. v Duffy, 82 AD3d 442 [2011]; Galvin v Hoblock, 2003 WL 22208370, *4-5, 2003 US Dist LEXIS 16704, *12-15 [SD NY 2003]). Concur — Andrias, J.P., Saxe, Catterson, Renwick and Román, JJ.

Petra Mortgage Capital Corp. v. Amalgamated Bank, 94 A.D.3d 671, 942 N.Y.S.2d 786 (N.Y. Ct. App. 2012).

Pincite

94 A.D.3d 671 (Petra Mortgage Capital Corp. v. Amalgamated Bank) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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