Summary
In 305-7 W. 128th St. Corp. v Gold (178 AD2d 251 [1st Dept 1991]), the Court compelled the deposition of the defendant's attorney because she negotiated the commercial lease the plaintiff was seeking to enforce, and had firsthand knowledge of facts and circumstances surrounding the transaction (id. at 251).
Summary of this case from Smyth v. City of New YorkOpinion
December 12, 1991
Appeal from the Supreme Court, New York County (Leonard N. Cohen, J.).
Plaintiff seeks the deposition of defendant's assistant general counsel on the ground that she negotiated the lease that plaintiff would enforce and has firsthand knowledge of facts and circumstances surrounding the transaction. In opposition, she states that as in-house counsel she had no authority to negotiate the lease, and that other persons were the main participants in the transaction. Defendant also asserts that plaintiff failed to exhaust all possible other sources of discovery, and that testimony of its assistant general counsel would invade the attorney-client privilege.
Plaintiff's evidence that defendant's assistant general counsel participated in the negotiations of the lease, suffices to demonstrate the need for her deposition, if not by itself, then certainly when considered in conjunction with the deposition testimony of defendant's assistant commissioner of property management and leases that he would have to consult with her to determine whether a draft of the lease was to be final. Nor does the attorney-client privilege bar discovery, since it is well settled that an attorney who functions as an agent or negotiator in a commercial venture may be examined (Planned Indus. Centers v Eric Bldrs., 51 A.D.2d 586). The attorney-client privilege may be raised by way of objection to specific questions at the time of the examination before trial should inquiry impinge on the privilege (Verschell v Pike, 65 A.D.2d 622).
Concur — Sullivan, J.P., Rosenberger, Wallach, Ross and Smith, JJ.