Getman v. Petro

• Decision Date: 10 November 1999
• Citation: 701 N.Y.S.2d 447
• Parties: 1999 N.Y. Slip Op. 9188 Linda L. GETMAN, Individually and as Administrator of the Estate of Gary Lukaszewski, Deceased, Appellant, v. Thomas K. PETRO, Defendant, and Ward W. Ingalsbe Jr., Respondent.
• Court: New York Supreme Court — Appellate Division

Page 447

701 N.Y.S.2d 447

1999 N.Y. Slip Op. 9188

Linda L. GETMAN, Individually and as Administrator of the Estate of Gary Lukaszewski, Deceased, Appellant, v. Thomas K. PETRO, Defendant, and Ward W. Ingalsbe Jr., Respondent.

Supreme Court, Appellate Division, Third Department, New York.

Nov. 10, 1999.

Gair, Gair, Conason, Steigman & Mackauf (Herman Schmertz of counsel), New York City, for appellant.

De Graff, Foy, Holt-Harris & Kunz (Scott C. Paton of counsel), Albany, for respondent.

Before: MERCURE, J.P., CREW III, PETERS, CARPINELLO and GRAFFEO, JJ.

PETERS, J.

Appeal from an order of the Supreme Court (Torraca, J.), entered September 23, 1998 in Ulster County, which, inter alia, partially granted a motion by defendant Ward W. Ingalsbe Jr. for an order of protection.

Gary Lukaszewski (hereinafter decedent) died on February 26, 1992 due to the fatal effects of an undiagnosed aortic aneurysm soon after his discharge from Kingston Hospital in Ulster County. Plaintiff, decedent's wife, contacted defendant Thomas K. Petro for representation in the administration of decedent's estate. Defendant Ward W. Ingalsbe Jr. thereafter solicited both plaintiff and Petro regarding the commencement of a medical malpractice action. After a meeting in April 1993 among plaintiff, Ingalsbe and Petro, it was agreed that Petro would forward decedent's medical records to Ingalsbe. Ultimately, both plaintiff and Ingalsbe signed a retainer agreement prepared by Ingalsbe.

On August 21, 1994, Ingalsbe and Petro met with plaintiff at which time Ingalsbe explained that after conferring with several doctors, he believed that the wrongful death action had no merit. According to plaintiff, she believed that an action had already been commenced on her behalf. She was later informed by an unnamed source that the Statute of Limitations had expired for the wrongful death action prior to her meeting with Ingalsbe. The record confirms that he first commenced the wrongful death/medical malpractice action on August 22, 1994.

Plaintiff commenced this legal malpractice action against both defendants. After issue was joined, plaintiff served defendants with a notice to produce copies of, inter alia, all written contracts or agreements pertaining to their representation arising from decedent's death as well as correspondence, retainer agreements, memoranda and pleadings. She further sought the original file pertaining to the representation of plaintiff and/or decedent's estate. In addition to characterizing the demand as overbroad, Ingalsbe annexed a "privilege log" detailing 25 items withheld from disclosure based upon a claim of privilege, attorney work product or upon the fact that it was "prepared and/or maintained for the purpose of giving internal review and direction to facilitate the performance of legal services". Defendants thereafter served plaintiff with a demand for a verified bill of particulars requesting 46 numbered items, several with lettered subdivisions. After plaintiff's general objection thereto, Ingalsbe moved for an order of protection pursuant to CPLR 3103 declaring certain material to be nondiscoverable and to compel plaintiff to provide a further bill of particulars. Plaintiff cross-moved for partial summary judgment on the issue of liability.

Supreme Court partially granted Ingalsbe's motion, finding that all of the withheld material constituted attorney work product and that plaintiff was to provide a further bill of particulars with respect to specific areas identified by the court. Plaintiff's cross motion was denied in its entirety. Plaintiff appeals.

It is well settled that a trial court has "broad discretionary power in controlling discovery and disclosure, and only a clear abuse of...