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Doe v. Poe

92 N.Y.2d 864 Court N.Y. Decision date 1998-07-01 English

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p. 864
[700 NE2d 309, 677 NYS2d 770]
John Doe, Plaintiff, v Peter Poe et al., Defendants. Ronnie Weil, Nonparty Respondent; Bank in Federal Action et al., Nonparty Appellants.
Argued June 4, 1998;
decided July 1, 1998
p. 866
APPEARANCES OF COUNSEL
Milbank, Tweed, Hadley & McCloy, New York City (Scott A. Edelman, Russell E. Brooks and Mitchell E. Epner of counsel), for nonparty appellants.
Amrod & Ricci, L. L. P., Garden City (<John Amrod and Robert F. Van der Waag of counsel), for nonparty respondent.
p. 867
OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

The facts relevant to this appeal are set forth in an opinion in an earlier appeal to the Appellate Division (see, Doe v Poe, 189 AD2d 132 ), and in the Appellate Division’s memorandum decision in this appeal ( 244 AD2d 450 ).

Supreme Court’s refusal to unseal the record of the hearing it conducted in the earlier related proceeding was premised on the erroneous assumption that the record may contain privileged information. The Appellate Division correctly determined that the communications and documents in question are not protected by the attorney-client privilege inasmuch as an attorney, Mr. P., attended the meetings in a nonrepresentative capacity. Communications between a client and an attorney made in the presence of third parties are not privileged (see, People v Harris, 57 NY2d 335 , 343, cert denied 460 US 1047 ). Appellants, in opposition to the application to unseal the record at Supreme Court, failed to submit any proof to support their claim that Mr. P. was acting as an attorney or an agent for the bank at either of the meetings in question. We have reviewed appellants’ remaining contentions and conclude that they are without merit.

Chief Judge Kaye and Judges Titone, Bellacosa, Smith, Levine, Ciparick and Wesley concur.

Order affirmed, with costs, in a memorandum.

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