| Clark v Schuylerville Cent. School Dist. |
| 2008 NY Slip Op 09685 [57 AD3d 1145] |
| December 11, 2008 |
| Appellate Division, Third Department |
| mLinda Clark, Appellant, v Schuylerville Central School District et al.,Respondents. |
—[*1] Girvin & Ferlazzo, P.C., Albany (Patrick J. Fitzgerald of counsel), for respondents.
Mercure, J.P. Appeal from that part of an amended order of the Supreme Court (Ferradino, J.),entered March 20, 2008 in Saratoga County, which denied plaintiff's cross motion to compel testimonyand document production.
The underlying facts of this action are more fully set forth in our prior decision reinstating plaintiff'scause of action for defamation (24 AD3d 1162 [2005]). Briefly stated, plaintiff, a teacher at defendantSchuylerville Central School District, was placed on administrative leave after showing an "R" rated filmto students. At that time, defendant Thomas S. Martin, principal of Schuylerville Junior/Senior HighSchool, stated to Jeffrey Honeywell, an attorney retained by the District to provide legal advice andcounsel, that plaintiff had shown the film in violation of the District's policies and procedures.[FN*]Plaintiff thereafter commenced this [*2]action, alleging defamation andintentional infliction of emotional distress; all claims have been dismissed except her cause of action fordefamation with regard to Martin's statement (id. at 1164). Upon this appeal, plaintiffchallenges a Supreme Court order denying her motion to compel defendants and Honeywell to giveadditional deposition testimony.
We affirm. Although extensive deposition testimony has been taken from Reed, Honeywell andMartin, plaintiff seeks to compel additional testimony regarding, among other things, the statementallegedly made by Martin to Honeywell on June 4, 2004. As Supreme Court concluded, however,defendants met their burden of establishing that the attorney-client privilege attached here through theaverments of Martin, Reed and Honeywell that defendants were seeking legal advice from Honeywellrelating to the management of the District's teaching staff, and that their conversations with Honeywellwere confidential and private (see Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371,378-380 [1991]; Matter of Clouse, 292 AD2d 675, 676 [2002]; cf. Bertalo's Rest. vExchange Ins. Co., 240 AD2d 452, 454 [1997], lv dismissed 91 NY2d 848 [1997]).Inasmuch as defendants demonstrated "that the information sought to be protected from disclosure wasa 'confidential communication' made to the attorney for the purpose of obtaining legal advice orservices" (Matter of Priest v Hennessy, 51 NY2d 62, 69 [1980]) and there is no merit toplaintiff's assertion that Reed or Martin engaged in conduct from which a waiver of the privilege couldbe inferred, Supreme Court properly concluded that Martin's June 4, 2004 conversation withHoneywell was privileged (see Matter of Saxton, 219 AD2d 85, 91-92 [1996]; Jakobleffv Cerrato, Sweeney & Cohn, 97 AD2d 834, 835-836 [1983]; cf. Matter of Clouse, 292AD2d at 676). Furthermore, we note that, beyond a question regarding the privileged communicationson June 4, 2004, plaintiff "failed to specify any particular question to which the witness[es] hadimproperly refused to respond" and, thus, Supreme Court properly denied her motion to compel(American Reliance Ins. Co. v National Gen. Ins. Co., 174 AD2d 591, 593 [1991]).
Plaintiff's remaining arguments have been considered and found to be lacking in merit.
Spain, Rose, Kane and Stein, JJ., concur. Ordered that the amended order is affirmed, with costs.
Footnote *: Although plaintiff initially alleged thatMartin made this statement to Leon Reed, the District Superintendent (24 AD3d at 1162), she nowmaintains that the statement was made to Honeywell, an attorney—significantly changing theposture of the case. In that regard, we note that the action is not now before us on a motion forsummary judgment, but plaintiff nonetheless concedes that without the requested deposition testimonyherein, it will be "extremely difficult for [her] to establish her case and rebut the defenses."