| Neuman v Frank |
| 2011 NY Slip Op 02215 [82 AD3d 1642] |
| March 25, 2011 |
| Appellate Division, Fourth Department |
| David Neuman, Respondent, v Stuart A. Frank, Appellant,et al., Defendant. |
—[*1] Harris Beach PLLC, Rochester (Douglas A. Foss of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Onondaga County (Anthony J. Paris, J.), enteredMarch 25, 2010. The order, inter alia, directed defendant Stuart A. Frank to produce certaindocuments.
It is hereby ordered that the order so appealed from is unanimously modified on the law bydenying in part the motion for leave to renew and vacating the directives that defendant Stuart A.Frank disclose his unredacted cellular telephone records for the period from October 1, 2004 toDecember 31, 2007 and his unredacted tax returns for the years 2004 through 2007 and asmodified the order is affirmed without costs and the matter is remitted to Supreme Court,Onondaga County, for further proceedings with respect to those cellular telephone records andtax returns in accordance with the following memorandum: Plaintiff commenced this actionalleging, inter alia, that Stuart A. Frank (defendant), a partner in defendant law firm, committedlegal malpractice and breached his fiduciary duty to plaintiff during the course of representinghim by acting in a manner that conflicted with plaintiff's interests. Plaintiff moved for leave torenew his motion seeking to compel discovery by defendant and in addition sought a protectiveorder striking defendant's demands for supplemental interrogatories and for the production ofdocuments. Defendant cross-moved for an order compelling plaintiff to respond to his discoverydemands, and both defendants cross-moved for partial summary judgment dismissing the firstcause of action, for breach of fiduciary duty, as duplicative of the second cause of action, forlegal malpractice.
Addressing defendants' cross motion for partial summary judgment, we conclude thatSupreme Court properly denied the cross motion with respect to defendant, the sole appellant. "Acause of action for legal malpractice must be based on 'the existence of an attorney-clientrelationship at the time of the alleged malpractice' " (TVGA Eng'g, Surveying, P.C. vGallick [appeal No. 2], 45 AD3d 1252, 1256 [2007]; see Compis Servs., Inc. v Greenman, 15 AD3d 855 [2005], lvdenied 4 NY3d 709 [2005]). The fiduciary duty of an attorney, however, "extends both tocurrent clients and former clients and thus is broader in scope than a cause of action for legalmalpractice" (TVGA Eng'g, Surveying, P.C., 45 [*2]AD3d at 1256; see Greene v Greene, 47 NY2d 447, 453[1979]). Thus, a cause of action for legal malpractice based upon alleged misconduct occurringduring the attorney's representation of the plaintiff is not duplicative of a cause of action forbreach of fiduciary duty based upon alleged misconduct occurring after the termination of therepresentation (see Country ClubPartners, LLC v Goldman, 79 AD3d 1389, 1391 [2010]; Kurman v Schnapp, 73 AD3d 435,435-436 [2010]). Although plaintiff alleged in the amended complaint that defendant'smisconduct occurred during the period from October 2004 to May 2005, when defendantrepresented plaintiff in transactions related to the development of a shopping center, defendanttestified at his deposition that he withdrew from representing plaintiff at some point prior toApril 11, 2005. Therefore, based on defendant's own deposition testimony, defendants failed tomeet their initial burden of establishing that the breach of fiduciary duty cause of action isduplicative of the legal malpractice cause of action for the period between May 2005 and the asyet unspecified date prior to April 11, 2005 when defendant ceased to represent plaintiff (seeCountry Club Partners, LLC, 79 AD3d at 1391; Kurman, 73 AD3d at 435-436).
Contrary to defendant's further contention, plaintiff's motion for leave to renew with respectto discovery was based upon facts unavailable at the time of the prior motion (see CPLR2221 [e] [2]). Also contrary to defendant's contention, the court did not abuse its broad discretionto supervise discovery by ordering defendant to produce unredacted financial records (seegenerally CPLR 3101 [a]; Cain vNew York Cent. Mut. Fire Ins. Co., 38 AD3d 1344 [2007]). We further conclude,however, that the court erred in ordering defendant to disclose his unredacted cellular telephonerecords for the period from October 1, 2004 to December 31, 2007 without first submitting thoserecords to the court for an in camera review, to determine which cellular telephone calls "arematerial and related to" this action and to protect the confidentiality of defendant's other clients(Carter v Fantauzzo, 256 AD2d 1189, 1190 [1998]). In addition, the court erred inordering defendant to produce his unredacted tax returns for the years 2004 through 2007 withoutfirst conducting "an in camera review of the tax returns in question to determine whether fulldisclosure is required and to minimize the intrusion into [defendant's] privacy" (id.).Plaintiff made "the requisite showing that those tax returns were indispensable to this litigationand that relevant information possibly contained therein was unavailable from other sources"(Lauer's Furniture Stores v Pittsford Place Assoc., 190 AD2d 1054 [1993]; seeCarter, 256 AD2d at 1190) but, as noted, defendant nevertheless was entitled to an in camerareview before producing those tax returns. We therefore modify the order accordingly, and weremit the matter to Supreme Court to determine those parts of the motion for leave to renewfollowing an in camera review of the cellular telephone records and tax returns at issue.
Finally, we conclude that the court properly granted that part of plaintiff's motion for aprotective order and properly denied defendant's cross motion seeking to compel furtherdiscovery. Defendant's discovery demands were duplicative of prior discovery demands, and"[defendant] ha[s] not demonstrated that [plaintiff] has been nonresponsive or that a furtherresponse is needed" (Ranne v Huff,11 AD3d 952, 953 [2004]; see generally CPLR 3101 [a]; M&T Bank Corp. v Gemstone CDO VII,Ltd., 78 AD3d 1664 [2010]). Present—Scudder, P.J., Centra, Carni, Sconiers andGreen, JJ.