| Howard Rosengarten, P.C. v Hott |
| 2008 NY Slip Op 02027 [49 AD3d 328] |
| March 11, 2008 |
| Appellate Division, First Department |
| Howard Rosengarten, P.C., Respondent, v Richard Hott,Appellant. |
—[*1] Marc Bogatin, New York City, for respondent.
Order, Supreme Court, New York County, (Judith J. Gische, J.), entered June 8, 2006,which, upon plaintiff's motion to strike defendant's answer and to enter a default judgmentagainst him for failure to comply with a discovery order in this action involving an allegedagreement to share legal fees in three personal injury cases, compelled defendant to produce hisclient files relating to this action, and order, same court and Justice, entered January 22, 2007,which, to the extent appealable, denied defendant's motion to renew, unanimously affirmed, withcosts.
Defendant's contention that the materials sought are protected by the attorney-client privilegewas not raised in opposition to the original motion to compel disclosure, and accordingly, it isnot preserved (see e.g. Murray v City of New York, 195 AD2d 379, 381 [1993]). Werewe to consider the argument, we would find that the subject documents are material andnecessary to the resolution of the instant action (see CPLR 3101 [a]; Allen vCrowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]), and that defendant failed to sustainhis 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 ofPriest v Hennessy, 51 NY2d 62, 69 [1980]), or a federal court sealing order, or settlementagreements.
Defendant's motion to renew was properly denied where he provided no reasonablejustification for failing to present the facts on renewal on the original motion (see Diaz v Ford Motor Co., 29 AD3d339, 340 [2006]).[*2]
We have considered defendant's remaining argumentsand find them unavailing. Concur—Tom, J.P., Buckley, Sweeny and Moskowitz, JJ.