Opinion
Index No. 512749/2021
01-06-2022
HK CAPITAL LLC, Plaintiffs, v. RISE DEVELOPMENT PARTNERS LLC, d/b/a Rise Development Partners LLC and Lawrence Rafalovich, Defendants
Counsel for Plaintiff: MOULINOS & ASSOCIATES Address: 150 E 58th St Fl 25, New York, NY 10155-0002 Counsel for defendant: William Pager : Law Offices of William Pager Address: 205 Kings Highway, Brooklyn, NY 11223
Counsel for Plaintiff: MOULINOS & ASSOCIATES Address: 150 E 58th St Fl 25, New York, NY 10155-0002
Counsel for defendant: William Pager : Law Offices of William Pager Address: 205 Kings Highway, Brooklyn, NY 11223
Leon Ruchelsman, J.
The plaintiff has moved seeking to hold defendant's counsel William Pager Esq., in contempt for failing to comply with information subpoenas served. Mr. Pager has cross-moved seeking a protective order on the grounds the information sought is protected by the attorney client privilege. Papers were submitted by the parties and arguments held. After reviewing all the arguments this court now makes the following determination.
The plaintiff HK Capital LLC obtained a judgement against the defendants in the amount of $782,590.78. The plaintiff also obtained additional judgements against the same defendants in amounts of $313,378.10 and $378,816.22. Pursuant to CPLR § 5224 defendant's counsel William Pager Esq., was served with information subpoenas and has not answered them at all. This motion seeking contempt has now been filed. Mr. Pager filed a motion seeking a protective order asserting he need not disclose any information since all information is protected by the attorney client privilege.
Conclusions of Law
In Kapon v. Koch , 23 NY3d 32, 988 NYS2d 559 [2014] the court held that third party subpoenas may be served whenever the information sought is ‘material and necessary’ "of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity" (id.). The court noted that "so long as the disclosure sought is relevant to the prosecution or defense of an action, it must be provided by the nonparty" (id.). Thus, "disclosure from a nonparty requires no more than a showing that the requested information is relevant to the prosecution or defense of the action" (see , Bianchi v. Galster Management Corp. , 131 AD3d 558, 15 NYS3d 189 [2d Dept., 2015], CPLR § 3103(a) ). A party seeking to vacate or quash a third party subpoena has a burden establishing the information is "utterly irrelevant" or "the futility of the process to uncover anything legitimate is inevitable or obvious" ( Anheuser-Busch Inc., v. Abrams , 71 NY2d 327, 525 NYS2d 816 [1988] ).
In this case the plaintiff seeks documents from Mr. Pager to assist in the enforcement of any judgement and seeks information about the defendant's assets, bank accounts and any asset transfers. It is well settled that "absent special circumstances, retainer agreements, a client's identity, invoices and the payment of fees are not subject to the attorney client-privilege" (see , First Capital Estate Investments LLC v. SDDCPO Brokerage Advisors LLC , 2020 WL 353100 [S.D.NY 2020] ). Indeed, any communication that does not have any direct relevance to any legal advice is collateral and not privileged (see , Sarfati v. Bertino , 24 Misc 3d 13(A), 890 NYS2d 371 [Supreme Court Appellate Term 2009] ). In Aurateq Systems International Inc., v. Black-NYC LLC , 21 Misc 3d 1142(A), 880 NYS2d 222 [Supreme Court, New York County 2008] the court explained, citing earlier authority, that "a client cannot assert the attorney-client privilege as to documents in the lawyer's possession if they were not prepared for litigation or for the purpose of seeking or imparting legal advice and they are not otherwise subject to a privilege against disclosure. The mere circumstance that the documents were revealed in confidence to a lawyer does not of itself transform the papers into privileged communications" (id.). The court further noted that the information sought pursuant to an information subpoena, similarly sought in this case "is commonly found in either bank or other financial records and in documents submitted to governmental agencies. A corporation cannot "funnel" its records and documents into the hands of its attorneys and then claim privilege" (id.). Individuals are likewise barred from employing the same expedient to avoid divulging information pursuant to a valid subpoena. Mr. Pager asserts that "the law offices of William Pager's interactions with the named defendants have been limited to strictly to legal advice, legal consultations and legal work involving the above described litigation" (see , Affirmation in Support of Cross-Motion, ¶11). While that may be true the information sought pursuant to the information subpoenas is not legal advice and is not protected by the attorney client privilege. Therefore, the cross-motion seeking a protective order is denied. Mr. Pager will have twenty days from receipt of this order, and upload to the NYSCEF is considered sufficient receipt, in which to respond to the information subpoenas. The plaintiff's motion is held in abeyance pending the court's specific order contained herein that all the information sought in the information subpoenas must be disclosed by Mr. Pager.
So ordered.