Jakobleff v. Cerrato, Sweeney and Cohn

• Decision Date: 28 November 1983
• Citation: 97 A.D.2d 834,468 N.Y.S.2d 895
• Parties: Gloria JAKOBLEFF, Respondent, v. CERRATO, SWEENEY AND COHN, et al., Defendants Third-Party Plaintiffs-Appellants; William A. Jakobleff, Third-Party Defendant; Norman Essner, Third-Party Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 895

468 N.Y.S.2d 895

97 A.D.2d 834

Gloria JAKOBLEFF, Respondent, v. CERRATO, SWEENEY AND COHN, et al., Defendants Third-Party Plaintiffs-Appellants William A. Jakobleff, Third-Party Defendant Norman Essner, Third-Party Defendant-Respondent.

Supreme Court, Appellate Division Second Department.

Nov. 28, 1983.

Rider, Drake, Sommers & Loeb, P.C., Newburgh, N.Y. (Joseph A. Catania, Jr. of counsel), for defendants third-party plaintiffs-appellants.

Baum, Essner and Karpel, Hartsdale, N.Y. (Kenneth N. Karpel of counsel), for plaintiff-respondent and third-party defendant respondent Essner (one brief filed).

Before TITONE, J.P., and THOMPSON, BRACKEN and RUBIN, JJ.

MEMORANDUM BY THE COURT.

In a legal malpractice action, defendants third-party plaintiffs appeal from an order of the Supreme Court, Westchester County, entered October 22, 1982, which granted that branch of third-party defendant Norman Essner's motion for a protective order which sought to vacate an amended notice to take a deposition upon oral examination insofar as it applied to him.

Order affirmed, without costs or disbursements.

This legal malpractice action was brought by plaintiff Gloria Jakobleff against her former attorneys to recover damages for losses allegedly sustained as the result of their negligence while representing her in a divorce action. Specifically, plaintiff alleged that the judgment of divorce entered in November, 1979 failed to include a provision requiring her husband to pay the premiums for her health insurance, even though a prior separation agreement had expressly required the husband to do so. Plaintiff sought to recover for hospital and medical expenses incurred in April, 1981, as well as for projected insurance premium costs in the future.

In their answer, defendants asserted that: (1) plaintiff had failed to commence a breach of contract action against her former husband; (2) plaintiff had failed to seek a resettlement of the judgment of divorce; and (3) plaintiff had failed to obtain medical insurance prior to her illness in order to mitigate her damages. In addition, by third-party complaint, defendants impleaded plaintiff's former husband, as well as her present attorney, Norman Essner. Defendants alleged that Mr. Essner was negligent in failing to seek a resettlement of the judgment of divorce so as to accurately reflect the parties' separation agreement, and by failing to bring an action against the former husband for breach of his contractual duties under the separation agreement.

Defendants thereafter sought to depose plaintiff and her present attorney. Mr. Essner moved to strike that portion of the amended notice to take a deposition pertaining to him upon the ground that the matters upon which he would be examined were privileged (CPLR 4503) and not subject to disclosure. Special Term granted his motion.

There is no dispute that the attorney-client privilege attached to the communications sought to be discovered. In substance, defendants' inquiry would have encompassed whether Mr. Essner had advised plaintiff of possible remedial actions which could have been taken, whether he advised her not to proceed with any such actions, or whether plaintiff, having been advised to proceed with such actions, had refused to do so. These communications were made between the attorney and client in the course of professional employment for the purpose of obtaining legal advice, and therefore fell within the privilege (CPLR 4503, subd. [a]; People v. Belge, 59 A.D.2d 307, 309, 399 N.Y.S.2d 539). As such, they are not discoverable (CPLR 3101, subd. [b]; Cirale v. 80 Pine St. Corp., 35 N.Y.2d 113, 359 N.Y.S.2d 1, 316 N.E.2d 301) unless the privilege is deemed to have been waived by the client (CPLR 4503, subd. [a] ).

A client who voluntarily testifies to a privileged matter (People v. Shapiro, 308 N.Y. 453, 126 N.E.2d 559; People v. Patrick, 182 N.Y. 131, 74 N.E. 843, app. dsmd. 203 U.S. 602, 27 S.Ct. 783, 51 L.Ed. 335; People v. Marsh, 59 A.D.2d 623, 398 N.Y.S.2d 166; People v. Northrop, 29 A.D.2d 895, 287 N.Y.S.2d 987), who publicly discloses such matter (People v. O'Connor, 85 A.D.2d 92, 447 N.Y.S.2d 553; Liberty...