| Lue v Finkelstein & Partners, LLP |
| 2009 NY Slip Op 08128 [67 AD3d 1187] |
| November 12, 2009 |
| Appellate Division, Third Department |
| Kevin Lue, Respondent, v Finkelstein & Partners, LLP, etal., Appellants. |
—[*1] Wein, Young, Fenton & Kelsey, P.C., Guilderland (Paul H. Wein of counsel), forrespondent.
Lahtinen, J. Appeal from an order of the Supreme Court (Catena, J.), entered January 12,2009 in Montgomery County, which, among other things, denied defendants' motion to compelthe deposition of plaintiff.
Plaintiff fell from a scissor lift while working for his employer, an electrical contractor, at awarehouse owned by K-Mart Corporation. He retained defendant Finkelstein & Partners, LLP,and that law firm allegedly failed to properly preserve his personal injury claim against K-Martduring the company's chapter 11 bankruptcy proceeding. Thereafter, plaintiff's new attorneys,Wein, Young, Fenton & Kelsey, P.C. (hereinafter Wein), commenced an action alleging, amongother things, a Labor Law § 240 claim against K-Mart and claims of products liability andnegligence against United Rentals, Inc., the lessor of the scissor lift. The Labor Law § 240claim (an absolute liability cause of action) against K-Mart was dismissed on the grounds ofcollateral estoppel and res judicata as a result of the failure to preserve the claim in thebankruptcy proceeding. The claim against United Rentals survived and was settled on the eve oftrial for $235,000.[*2]
Plaintiff, represented by Wein, brought this malpracticeaction against defendants with regard to the dismissed Labor Law claim. He asserted that hesettled for an amount that did not fully compensate him because of the loss of the absoluteliability cause of action. During the deposition upon oral questions of plaintiff, defendantssought to question him regarding his discussions with Wein regarding the settlement of theaction against United Rentals. Plaintiff asserted the attorney-client privilege as to thoseconversations. Defendants moved to, among other things, compel plaintiff to answer questionsregarding communications between himself and Wein regarding settlement of the claim againstUnited Rentals. Supreme Court held that plaintiff had not waived the attorney-client privilegeand thus denied defendants' request for disclosure of the settlement communications. Defendantsappeal.
Defendants contend that plaintiff's duty to mitigate his damages and the fact that he settledhis claim against United Rentals for less than the total available insurance coverage creates asituation where his discussions with his attorney regarding that settlement should be disclosed inthis malpractice action. "Trial courts are granted broad discretion in overseeing the disclosureprocess, and appellate courts will not intervene absent a clear abuse of that discretion" (Wilson v Metalcraft of Mayville, Inc.,13 AD3d 794, 795 [2004] [citation omitted]; see Ruthman, Mercadante & Hadjis vNardiello, 288 AD2d 593, 594 [2001]; Saratoga Harness Racing v Roemer, 274AD2d 887, 888 [2000]). There is no dispute that plaintiff's discussions with Wein regardingsettlement of the action against United Rentals fall within the scope of the attorney-clientprivilege and, as such, are not subject to disclosure unless the privilege was waived by plaintiff(see CPLR 4503 [a] [1]; Raphael v Clune White & Nelson, 146 AD2d 762, 763[1989]; Jakobleff v Cerrato, Sweeney & Cohn, 97 AD2d 834, 835 [1983]). In a casesimilar to this one involving an effort to obtain confidential information between a client and theattorneys who had obtained a settlement that allegedly was inadequate because of the priorattorneys' malpractice, the Second Department held that "[b]y commencing suit against hisformer attorneys, the plaintiff has not placed in issue privileged communications with his. . . attorneys" who represented him in the settlement (Raphael v Clune White &Nelson, 146 AD2d at 763). We are unpersuaded that the presence of a settlement for lessthan the full amount of insurance, or any of the other circumstances asserted by defendants,compels a contrary conclusion in this case.
Mercure, J.P., Kane, McCarthy and Garry, JJ., concur. Ordered that the order is affirmed,with costs.