Miranda v. Miranda

• Citation: 584 N.Y.S.2d 818,184 A.D.2d 286
• Parties: Arthur MIRANDA, Plaintiff-Appellant, v. Elizabeth MIRANDA, Defendant-Respondent.
• Decision Date: 11 June 1992
• Court: New York Supreme Court — Appellate Division

Page 818

584 N.Y.S.2d 818

184 A.D.2d 286

Arthur MIRANDA, Plaintiff-Appellant, v. Elizabeth MIRANDA, Defendant-Respondent.

Supreme Court, Appellate Division,

First Department.

June 11, 1992.

Before MURPHY, P.J., and ROSENBERGER, WALLACH, SMITH and RUBIN, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, Bronx County (Barry Salman, J.), entered on or about November 27, 1991, which, inter alia, ordered the deposition of plaintiff, including inquiry into his relationship with a prior attorney, and ordered the non-party deposition of that attorney, unanimously affirmed, without costs.

The burden of satisfying each element of the attorney-client privilege rests on the party asserting it (John Blair Communications, Inc. v. Reliance Capital Group, 182 A.D.2d 578, 582 N.Y.S.2d 720). 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, 477 N.Y.S.2d 210). The court should not accept a mere assertion by counsel that specific information fits within the privilege (see, Matter of Civ. Serv. Employees Assn. v. Ontario County Health Facility, 103 A.D.2d 1000, 1001, 478 N.Y.S.2d 380; lv. dismissed, 64 N.Y.2d 816, 486 N.Y.S.2d 926, 476 N.E.2d 325).

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, Inc. v. Evans Dev. Corp., 169 A.D.2d 690, 565 N.Y.S.2d 489). 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, 559 N.Y.S.2d 493, 558 N.E.2d 1030). 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.