New York State Court of Claims

New York State Court of Claims

VRIESENDORP v. STATE OF NEW YORK, #2007-018-560, Claim No. 109507, Motion No. M-72593


Synopsis


Defendant’s motion to quash subpoena is denied.

Case Information

UID:
2007-018-560
Claimant(s):
HUIBERT M. VRIESENDORP, M.D.
Claimant short name:
VRIESENDORP
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109507
Motion number(s):
M-72593
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
ABRAMS, FENSTERMAN, FENSTERMAN, EISMAN, GREENBERG, FORMATO & EINIGER, LLPBy: Sarah C. Lichtenstein, Esquire
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New York
By: Patricia M. Bordonaro, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 28, 2007
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Defendant brought a motion, by Order to Show Cause, to quash a non-party subpoena

served by Claimant to take the deposition testimony of a former “in-house” attorney for the State University of New York Upstate Medical University (hereinafter SUNYUMU). Claimant opposes the relief.

The claim seeks damages for breach of contract, breach of the implied covenant of good faith and fair dealing, and wrongful discharge.[1] The Claimant alleges that he was forced to resign from his employment as “Clinical Investigator” for the Research Foundation of the State University of New York (hereinafter Foundation) and as Assistant Professor at SUNYUMU and withdraw his application for medical staff privileges at the State University of New York Upstate Medical University (hereinafter University Hospital). Claimant maintains that he was offered a faculty appointment with SUNYUMU and a position as “Clinical Investigator” with the Foundation in a letter dated November 5, 2003, from Dr. Chung T. Chung, Chair of the Department of Radiation Oncology, at SUNYUMU. Claimant accepted the offer. By letter dated February 13, 2004, Dr. Gregory Eastwood, President of SUNYUMU, made Claimant an official offer of employment as a “Clinical Investigator” with the Foundation and as an Assistant Professor in the Department of Radiation Oncology at a total salary of $220,000. Claimant accepted this offer on March 1, 2004. Prior to this, Claimant also applied for medical staff privileges at University Hospital.

On March 11, 2004, Dr. Chung allegedly advised Claimant that his application for medical staff privileges was going to be denied and the denial would have to be reported to the New York State Office of Professional Medical Conduct. Claimant attempted to provide additional information to the Credentialing Committee, but on April 5, 2004, Claimant’s counsel was advised that the additional information was unnecessary because the Credentialing Committee had already reached its decision. Dr. Chung also spoke with Claimant and allegedly told him that the Executive Committee was scheduled to review and finalize the Credentialing Committee’s decision the next day and he should have withdrawn his application for medical staff privileges. Claimant then wrote letters to the Director of Medical Staff Services and the Credentialing Committee dated April 5, 2004, withdrawing his request for medical staff privileges. Claimant alleges Dr. Chung contacted him the next day and advised that the Credentialing Committee would only accept the withdrawal of his application for medical staff privileges if, “within one hour,” he also resigned his positions as Clinical Investigator with the Foundation and as an Assistant Professor with SUNYUMU. Claimant’s attorney confirmed his required resignation with Molly C. Zimmermann, Esq., then Associate Counsel for SUNYUMU. Thereafter, by letter dated April 6, 2004, Claimant resigned his employment with the Foundation and his faculty position with SUNYUMU. Claimant asserts that the threatened reporting of a denial of medical staff privileges to the New York State Office of Professional Medical Conduct was unjustified, depriving him of his employment contract and due process rights and procedures.

Claimant’s attorney served Molly Zimmermann, Esq., on November 16, 2006, with a subpoena for her deposition testimony, as Ms. Zimmermann is no longer employed by the State. The subpoena is dated November 10, 2006, and the deposition was scheduled for November 29, 2006.

Defendant seeks to quash the subpoena pursuant to CPLR 2304 on two grounds.[2] First, Ms. Zimmermann was, at the time of the incidents alleged in the claim, an associate attorney with SUNYUMU, and Defendant asserts that any information she has surrounding this matter was the result of her legal representation of SUNYUMU and is protected by the attorney-client privilege. Any documents involving this case were created in anticipation of litigation or involve attorney work-product and are not subject to disclosure. Secondly, Defendant argues that the service of the subpoena and notice of deposition were untimely in that the required 20 days’ notice pursuant to CPLR 3107 and 3106 was not given.

Claimant’s counsel, in opposition, indicates that as early as June 2006 she tried to work with Defendant and Ms. Zimmermann to accommodate a voluntary appearance for the deposition, but was not advised until November 6, 2006, that Ms. Zimmermann would have to be subpoenaed. Since the discovery order in place directed that all depositions were to be completed by November 30, 2006, she attempted to schedule a deposition prior to that date. It is Claimant’s position that the deposition seeks to inquire into a telephone conversation that Ms. Zimmermann had with Claimant’s former counsel from Wisconsin. Claimant argues that conversation is not privileged; not everything that Ms. Zimmermann did or information that she received is privileged. Claimant further argues that the attorney-client privilege cannot be asserted in advance of questions.

The attorney-client privilege is a protection provided by statute (CPLR 4503[a]) to ensure that one seeking legal advice can expound freely to his attorney with confidence that the details provided will not later be exposed or used to his disadvantage (see Matter of Priest v Hennessy, 51 NY2d 62, 67-68). Yet, not all communications between an attorney and client are privileged. Only information that is a “‘confidential communication’ made to the attorney for the purpose of obtaining legal advice or services” is protected by the privilege (Rossi v Blue Cross & Blue Shield of Greater N.Y., 73 NY2d 588; Priest, 51 NY2d at 69) The privilege does not apply to information obtained from or communicated to third parties (see Marten v Eden Park Health Services, Inc., 250 AD2d 44; Eisic Trading Corp. v Somerset Marine, 212 AD2d 451), or where the information sought is primarily related to a non-legal business transaction which does not involve confidential communications between an attorney and a client (see Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371; Rossi, 73 NY2d at 588). The burden of proving each element of the privilege is upon the party seeking its protection (Priest, 51 NY2d at 69).

Here, Defendant seeks to hold the attorney-client privilege as a shield from even appearing for the deposition. The privilege provides no such protection (cf. 305-7 West 128th Street Corp. v Gold, 178 AD2d 251, [where attorney for Department of General Services was part of negotiations for a lease, she was subject to deposition and could raise privilege objection to specific questions if necessary]). Instead, as Claimant articulates, the attorney-client privilege may be raised in the context of the questions or documents sought (see Ocean-Clear, Inc. v Continental Cas. Co., 94 AD2d 717, 719; Verschell v Pike, 65 AD2d 622). Here, Defendant may certainly raise the privilege in response to specific inquiries by Claimant; however, no blanket protection is provided by the attorney-client privilege. Defendant must be mindful in making objections that it bears the burden to establish that the information sought is protected confidential communications between Ms. Zimmermann and SUNYUMU.

Accordingly, Defendant’s motion is DENIED.[3] Defendant has now had ample notice that Ms. Zimmermann’s deposition is sought and a new date for the deposition should be scheduled no sooner than 25 days after the date this Decision and Order is filed with the Clerk of the Court. Since the timing of this motion has stayed all other discovery, the prior Preliminary Conference Stipulation and Order dated December 16, 2004, and the Amended Preliminary Conference Orders dated August 16, 2006 and November 21, 2006, are hereby modified only to the extent set forth herein:

ORDERED that all depositions in this matter shall be completed on or before June 1, 2007; and it is further

ORDERED, that all other disclosure shall be completed on or before June 15, 2007; and it is further

ORDERED that a note of issue and certificate of readiness be filed on or before June 22, 2007.



February 28, 2007
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following documents in deciding this motion:


Order to Show Cause.........................................................................................1


Affirmation of Patricia M. Bordonaro, Esquire, Assistant Attorney General

in support, with exhibits attached thereto...............................................2


Affidavit of Sarah C. Lichtenstein, Esquire, sworn to December 4, 2006,

in opposition with exhibits attached thereto............................................3


Claimant’s Memorandum of Law in support dated December 4, 2006...............4


attached thereto

[1]. The claim originally set forth additional causes of action which were dismissed on motion (Motion Nos. M-69703 and CM-69908).
[2].Defendant also makes a peripheral argument that any information regarding the credentialing process would be protected by Public Health Law § 2805-j,k,m. There was insufficient information before the Court to address this issue.
[3]. Claimant, in his affidavit in opposition, requests $25 for costs incurred as a result of the stay of the Zimmermann deposition. This request is not properly before the Court and has not been considered.