June 11, 1992
Appeal from the Supreme Court, Bronx County (Barry Salman, J.).
The burden of satisfying each element of the attorney-client privilege rests on the party asserting it (Blair Communications v. Reliance Capital Group, 182 A.D.2d 578). On this record, plaintiff has made only the most conclusory assertions that the information sought by defendant is protected by the privilege (see, Witt v. Triangle Steel Prods. Corp., 103 A.D.2d 742). The court should not accept a mere assertion by counsel that specific information fits within the privilege (see, Matter of Civil Serv. Employees Assn. v. Ontario County Health Facility, 103 A.D.2d 1000, 1001, lv dismissed 64 N.Y.2d 816).
The explanation for plaintiff's assertion of the privilege, belatedly offered for the first time on this appeal, is entirely dehors the record, and has not been considered by this Court (see, Knolls Coop. Section No. 2 v. Evans Dev. Corp., 169 A.D.2d 690). Were we to consider it, we would nonetheless affirm.
The attorney-client privilege applies only to confidential communications with counsel, and does not immunize the underlying factual information (Niesig v. Team I, 76 N.Y.2d 363, 372). On appeal, counsel for defendant has represented that there will be no inquiry into the contents of any confidential communication between plaintiff and predecessor counsel, and will be expected to comply with that representation.
Concur — Murphy, P.J., Rosenberger, Wallach, Smith and Rubin, JJ.