Van Ryn v. Goland

• Citation: 137 N.Y.S.3d 546,189 A.D.3d 1749
• Decision Date: 03 December 2020
• Docket Number: 530037
• Parties: Paul W. VAN RYN, Appellant, v. Lois GOLAND, Respondent.
• Court: New York Supreme Court — Appellate Division

189 A.D.3d 1749

137 N.Y.S.3d 546

Paul W. VAN RYN, Appellant,

v.Lois GOLAND, Respondent.

530037

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

Calendar Date: October 14, 2020

Decided and Entered: December 3, 2020

Paul W. Van Ryn, Delmar, appellant pro se.

Tully Rinckey PLLC, Albany (Christine F. Redfield of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Lynch, Clark and Colangelo, JJ.

MEMORANDUM AND ORDER

Garry, P.J. Appeals (1) from an order of the Supreme Court (Platkin, J.), entered August 27, 2019 in Albany County, which, among other things, denied plaintiff's motion to quash a subpoena duces tecum, and (2) from an order of said court, entered September 18, 2019 in Albany County, which quashed a subpoena ad testificandum issued by plaintiff.

Plaintiff and defendant were divorced in 2009. Their separation agreement, incorporated but not merged into the judgment of divorce, provided that plaintiff would receive a Majauskas share in defendant's pension. Following defendant's 2015 retirement, the parties were unable to agree on the amount that plaintiff should receive, and he commenced this action. In December 2017, after extended negotiations, the parties executed a settlement agreement (hereinafter the 2017 agreement), drafted by defendant's counsel, providing that plaintiff would receive a 50 percent Majauskas share in defendant's pension and setting forth a method for calculating this amount. After both parties had executed the 2017 agreement, plaintiff claimed that the calculation method described therein entitled him to a 66 percent share of the pension. Defendant asserted that the parties' true intent was for plaintiff to receive a 33 percent share and that the language on which plaintiff relied arose from a drafting error by her counsel. Plaintiff moved for an order enforcing his interpretation of the 2017 agreement. Defendant opposed and cross-moved for an order confirming her interpretation.

In November 2018, at the conclusion of oral argument, Supreme Court ruled from the bench that the 2017 agreement was ambiguous and that an evidentiary hearing was required to receive extrinsic evidence germane to the issues of mistake and the parties' intentions, including testimony from the parties and their respective counsel. Thereafter, defendant submitted a proposed subpoena duces tecum (hereinafter the January 2019 subpoena) seeking to compel plaintiff's counsel to testify at the evidentiary hearing and to produce all communications between plaintiff and his counsel related to the 2017 agreement. In January 2019, the court issued a letter decision finding that plaintiff had waived the attorney-client privilege as to these matters, and therefore signed the January 2019 subpoena, with certain limitations. Plaintiff's counsel then withdrew from the representation, and plaintiff – an experienced matrimonial attorney – thereafter represented himself.

As pertinent here, plaintiff thereafter moved for reargument of the November 2018 bench decision, the January 2019 letter decision and the January 2019 subpoena itself. He also moved for orders quashing the January 2019 subpoena and disqualifying defendant's counsel. Defendant opposed these motions.¹ The court issued an order (hereinafter the August 2019 order) that partially granted plaintiff's motion for reargument by imposing further limits on the January 2019 subpoena, and denied the remainder of that motion and the other motions. Plaintiff then served Supreme Court with a subpoena ad testificandum (hereinafter the September 2019 subpoena) commanding Supreme Court Justice Richard M. Platkin to appear at the evidentiary hearing as a witness on plaintiff's behalf. Acting sua sponte, the court issued an order (hereinafter the September 2019 order) quashing this subpoena. Plaintiff appeals from the August 2019 and September 2019 orders.

It is well established that no appeal lies from the denial of a motion for reargument (see CPLR 5701[a][2] [viii] ; Matter of Reed v. Annucci, 182 A.D.3d 883, 884 n, 122 N.Y.S.3d 434 [2020], lv denied 35 N.Y.3d 908, 2020 WL 3424362 [2020], lv dismissed and denied 35 N.Y.3d 1075, 130 N.Y.S.3d 433, 154 N.E.3d 19 [2020] ; Budin v. Davis, 172 A.D.3d 1676, 1679, 101 N.Y.S.3d 487 [2019] ; Abele Tractor & Equip. Co., Inc. v Schaeffer, 167 A.D.3d 1256, 1260, 91 N.Y.S.3d 548 [2018] ). Where, as here, a court considers the merits of a motion for reargument in the course of denying the motion, this Court may "deem the court to have granted reargument and adhered to its prior decision" and, thus, permit appellate review ( Cloke v. Findlan, 165 A.D.3d 1545, 1546–1547, 86 N.Y.S.3d 774 [2018] [internal quotation marks and citation omitted]; see CPLR 5701[a][2] [viii] ; Rodriguez v. Jacoby & Meyers, LLP, 126 A.D.3d 1183, 1184, 3 N.Y.S.3d 793 [2015], lv denied 25 N.Y.3d 912, 2015 WL 3952245 [2015] ). That procedure is not available here, however; the November 2018 bench decision, the January 2019 letter decision and the January 2019 subpoena, challenged in plaintiff's reargument motion, were not themselves appealable. Significantly, plaintiff moved in this Court in March 2019 for permission to appeal from the same underlying decisions, and this Court denied the motion ( 2019 N.Y. Slip Op. 67811[U], 2019 WL 1593875 [2019] ; see CPLR 5701[c] ). The November 2018 bench decision was not appealable because it was not reduced to an order (see CPLR 5512[a] ; 5701[a][2]; [c]; Howell v. State of New York, 169 A.D.3d 1208, 1209 n 1, 93 N.Y.S.3d 736 [2019], lv denied 33 N.Y.3d 907, 2019 WL 2440300 [2019] ; Matter of Marc D. v Fulton County Dept. of Social Servs., 79 A.D.3d 1534, 1535, 912 N.Y.S.2d 917 [2010] ). For similar reasons, no appeal could be taken from Supreme Court's January 2019 letter decision (see Gunn v. Palmieri, 86 N.Y.2d 830, 830, 634 N.Y.S.2d 435, 658 N.E.2d 212 [1995] ; Matter of Darrow v. Darrow, 106 A.D.3d 1388, 1390 n 5, 965 N.Y.S.2d 673 [2013] ). Likewise, the January 2019 subpoena was not appealable (see CPLR 5512[a] ; Matter of Boikess v. Aspland, 24 N.Y.2d 136, 138–139, 299 N.Y.S.2d 163, 247 N.E.2d 135 [1969] ; Matter of Zelter v. Nash, 285 App.Div. 1214, 1214, 140 N.Y.S.2d 652 [1955] ). Accordingly, none of plaintiff's arguments challenging the denial of his motion for reargument are properly before this Court, and they will not be addressed.²

Further, to the extent that plaintiff's notice of appeal from the August 2019 order purports to seek appellate review of "decisions and orders [that] denied a[m]otion to [s]ettle/[m]otion for [s]ummary [j]udgment interpreting [the 2017 agreement]," our record does not reveal that any such decisions or orders have been issued. Instead, and critically, Supreme Court has not yet decided the parties' motion and cross motion to confirm and enforce their respective interpretations of the 2017 agreement; this determination will not be made until after the evidentiary hearing. As such, plaintiff's arguments regarding the issues raised in the motion and cross motion – including such matters as mistake, bad faith, the manner in which the 2017 agreement should be interpreted and the share of defendant's pension that plaintiff should receive – are premature and will not be addressed. Thus, the only matters that are properly before this Court upon this appeal are whether Supreme Court properly denied plaintiff's motions to quash the January 2019 subpoena and to disqualify defendant's counsel, and whether the court properly quashed the September 2019 subpoena.

Turning first to the denial of plaintiff's motion to quash the January 2019 subpoena, this relief is granted "only where the futility of the process to uncover anything legitimate is inevitable or obvious or where the information sought is utterly irrelevant to any proper inquiry" ( Matter of Board of Educ. of the City Sch. Dist. of the City of N.Y. v. New York State Dept. of Educ., 182 A.D.3d 664, 665–666, 122 N.Y.S.3d 694 [2020] [internal quotation marks and citations omitted] ). It was plaintiff's burden to establish the existence of such circumstances (see Matter of Kapon v. Koch, 23 N.Y.3d 32, 39, 988 N.Y.S.2d 559, 11 N.E.3d 709 [2014] ). He sought to do so by arguing that his communications with his former counsel were privileged and that no basis existed to abrogate the privilege. However, a client "who permits his [or her] attorney to testify regarding [a] matter is deemed to have impliedly waived the attorney-client privilege" ( Jakobleff v. Cerrato, Sweeney & Cohn, 97 A.D.2d 834, 835, 468 N.Y.S.2d 895 [1983] [internal citation omitted] ).

Here, plaintiff's former counsel submitted two sworn affidavits in support of plaintiff's motion for enforcement of the 2017 agreement in which, among other things, he described his opinions and those expressed to him by plaintiff about certain differences between that agreement and the parties' prior negotiations. Plaintiff's former counsel averred that he and plaintiff "immediately recognized the insertion of new ... language" that differed from the parties' previous negotiations, stated that he advised plaintiff to sign the 2017 agreement, described the reasons expressed by plaintiff for doing so – including the fact that plaintiff would receive a larger share of defendant's pension than had previously been discussed – and denied that he or plaintiff acted in bad faith. We recognize that these communications between plaintiff and his former counsel were privileged, as they were "made for the purpose of obtaining or facilitating legal advice" ( Ambac Assur. Corp. v. Countrywide Home Loans, Inc., 27 N.Y.3d 616, 623, 36 N.Y.S.3d 838, 57 N.E.3d 30 [2016] ; see CPLR 4503[a][1] ). We find, however, that plaintiff waived that privilege when he allowed his counsel to act on his behalf by selectively and voluntarily disclosing some of their communications (see Metropolitan Bridge & Scaffolds Corp. v. New York City Hous. Auth., 168 A.D.3d 569, 572, 92 N.Y.S.3d 248 [2019] ; Hudson Val....