Two non-party witnesses, William H. Kelly, IV ("Kelly") and Frankie Perrone ("Perrone"), move to quash subpoenas served upon them pursuant to CPLR §2304. Movants assert that neither of them may be compelled to testify at a deposition because the subject of their testimony is privileged pursuant to CPLR §4503. [*2]

CPLR §4503 precludes a client from being compelled to disclose a confidential communication between the client and an attorney. In the instant circumstances, the issued subpoenas seek information regarding the witnesses' communications with defendant DeCrescenzo. It is alleged in the complaint that after defendant left plaintiff's employ, she contacted one of the plaintiff's clients, William Kelly, IV or his mother, Frankie Perrone, after Kelly had decided to remain plaintiff's client. It is alleged that defendant then induced Kelly to discharge plaintiff and to retain the law firm of Stenger, Roberts, Davis & Diamond, LLP ("Stenger firm") with whom defendant has a professional relationship. The record indicates that on April 6, 2013, Kelly executed a consent to change attorney after meeting with a partner of the Stenger law firm in the presence of his mother, Frankie Perrone.

It is well established that:

"The burden of proving that the attorney-client privilege applies rests not with the party contesting the privilege, but with the party asserting it." (Weil v. Investment/Indicators, Research & Management, 647 F2d 18, 25 [9th Cir. 1981]; see also Priest v. Hennessy, 51 NY2d 62 [1980].)

On this application, neither Kelly nor Perrone has affirmatively asserted the privilege. The Court has been presented only with the affirmation of an attorney from the Stenger firm purporting to assert the privilege on behalf of both of them. Counsel avers that "Mr. Kelly has not waived this privilege", but the court notes that he has not affirmatively asserted it. While the consent to substitute attorneys may be prima facie evidence that the Stenger firm represents Kelly in a separate and distinct personal injury action, there is no evidence that the firm has been retained to represent either Kelly or Perrone in the instant action. Nonetheless, in the court's discretion and interest of justice, this Court will consider the application as if Kelly and/or Perrone actually asserted the privilege.

CPLR §4503 protects confidential communications between a client and a lawyer whose legal advice the client has sought. The complaint alleges that defendant, while no longer serving as Kelly's lawyer, solicited him in an effort to induce him to retain the Stenger law firm to represent him in the personal injury action. Such a communication is well-outside the parameters of CPLR §4503 and would not be a protected communication. Defendant was not then Kelly's lawyer. Thus, no privilege could attach. Kelly may be compelled to testify about any communication with defendant which took place prior to the April 6, 2013 meeting.

It is not even alleged that Perrone was ever represented by the defendant or the Stenger firm with respect to the personal injury litigation. There cannot even arguably be a claim of privilege with regard to any communications with her by defendant or any member of the Stenger firm. Perrone may be compelled to testify regarding any communications with any of those attorneys.Counsel seeks to preclude any testimony regarding a meeting between Stenger firm attorney Thomas Davis and Kelly which resulted in the substitution of counsel. Counsel states that Perrone was present during an April 6, 2013 meeting with attorney Davis "which ultimately resulted in the signing of the Consent to Change Attorney." It is settled that communications made between a client and lawyer in the presence of a third party are not privileged. (People v. Osorio, 75 NY2d 80, 84 [1989].) None of the recognized exceptions are applicable to the instant motion. No evidence has been adduced on this motion that Perrone was [*3]an agent of either the Stenger firm or Kelly at any time during which the purported communications took place. Counsel avers that "no one is suggesting that Mr. Kelly was totally incapable by reason of his injury to make a decision." Perrone was not a court-appointed guardian or agent; she was not a translator; and, it is uncontradicted that she was not an employee of the Stenger firm. She was a third party who Kelly voluntarily invited into his meeting with attorney Davis. This Court finds that Kelly has waived any privilege pursuant to CPLR §4503 regarding the April 6, 2013 meeting. Another way to view the meeting is that since it took place willingly in the presence of a third party, none of the communications which occurred in the meeting were confidential, thereby obviating the application of CPLR §4503. In other words, neither Kelly nor Perrone have established the requisite showing to assert the privilege. Counsel has also failed to establish the requisite showing on their behalf.

For the foregoing reasons, it is ordered that the application to quash subpoenas duces tecum served on William H. Kelly, IV and Frankie Perrone is denied.

The Court read and considered the following documents upon this application:

PAGES NUMBERED

1.Order to Show Cause......................1-2

Affirmation-Stenger.................1-6

Exhibit.............................A

Affirmation of Compliance-Stenger...1

Exhibit.............................A

2.Affirmation in Opposition-Wirth..........1-8

Exhibits............................A-E

3.Reply Affirmation-Stenger...............1-5

4.Sur Reply Affirmation ^[FN1]-Wirth.............1-3

The foregoing constitutes the decision and order of the Court.

Dated:Poughkeepsie, New York

June 18, 2013

ENTER

HON. JAMES D. PAGONES, A.J.S.C. [*4]