New York State Court of Claims

New York State Court of Claims

FERNANDEZ, B. v. STATE OF NEW YORK, #2008-039-090, Claim No. 109323, Motion No. M-73305


Claimant’s motion to compel disclosure of various documents granted in part and denied in part following the Court’s in camera review. Defendant opposed the application on various grounds including the public interest privilege, collateral estoppel and the attorney-client privilege.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

James H. Ferreira
Claimant’s attorney:
O’Connell and Aronowitz, P.C.
By: Jeffrey J. Sherrin, Esq. Yvonne E. Marciano, Of Counsel
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Michael W. FriedmanAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 21, 2008

Official citation:

Appellate results:

See also (multicaptioned case)

This matter relates to a previous decision and order of this Court dated December 21, 2007 (Fernandez v State of New York,
18 Misc 3d 1123(A) [2007], wherein a motion to compel discovery of documents by claimant Benito Fernandez, the owner of Brooklyn Manor Home (hereinafter “Brooklyn Manor”), an adult care facility, was adjourned pending the Court’s in camera review of documents identified in defendant’s two privilege logs. The first privilege log identifies 108 documents (Log 1) and the second privilege log (Log 2) identifies 689 documents.[1] Pursuant to the Court’s decision, on or about March 4, 2008, defendant provided the Court with several documents. Notably, the December 21, 2007 decision, which related to an amended claim filed October 2006, also granted, in part, defendant’s motion to dismiss and directed claimant to file an amended claim in conformity with the decision and order. Claimant subsequently filed a second amended claim on or about January 22, 2008, which alleged tortious interference with business relations, defamation and negligence.
The allegations underlying this proceeding arise from enforcement actions taken by the New York State Department of Health (hereinafter “DOH”) against Brooklyn Manor. Briefly stated, claimant avers that inspection reports prepared by defendant violated DOH regulations and that these reports formed the basis of allegedly improper enforcement proceedings including, inter alia, the denial of the facility’s operating certificate, the attempt to remove the facility’s administrator, the suspension of claimant’s operating certificate, the appointment of a temporary operator and an attempt to appoint a permanent receiver. Claimant further alleges that the enforcement proceedings were used as a pretext to divert admissions, deny the facility funding under New York’s Quality Incentive Payment (“QUIP”) program and financially ruin claimant and his business.
Defendant asserts that the disclosure of the documents identified on the privilege logs would violate the public interest privilege and/or the attorney-client privilege.[2] Defendant’s opposing papers indicate that 24 documents in Log 1were withheld based upon the public interest privilege, and that 18[3] documents in Log 2 were withheld solely on the basis of deliberative privilege.[4]
Claimant contends that collateral estoppel bars defendant from asserting the public interest privilege, and that even if collateral estoppel does not apply, the public interest privilege is inapplicable in this case. Regarding the attorney-client privilege asserted by defendant, claimant argues that the communications were not legal in nature and were made to advance a tortious scheme. Claimant asserts further that use of the attorney-client privilege in these circumstances violates public policy.
CPLR §3101 (a) provides that “ [t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” Indeed, “the words, ‘material and necessary’, are . . . to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason” (Allen v Crowell-Collier Pub. Co., 21 NY2d 403, 406 [1968]).
While the Allen court construed the phrase “material and necessary” to mean “relevant” (see id. at 406-407), certain confidential communications are vested by law with a privilege against disclosure. The CPLR establishes categories of protected materials such as privileged material and attorney work product (see CPLR §3101[b], [c]; see also CPLR §4503. The determination of what is material and necessary, and therefore discoverable, is left to the sound discretion of the lower courts (Andon v 302-304 Mott St. Assocs., 94 NY2d 740, 746 [2000]; see also American Assn. of Bioanalysts v New York State Dept. of Health, 12 AD3d 868, 869 [2004]; Nitz v Prudential-Bache Securities, 102 AD2d 914, 915 [1984]). “[T]he burden of establishing any right to protection is on the party asserting it; the protection claimed must be narrowly construed; and its application must be consistent with the purposes underlying the immunity” (Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 377 [1991]).

Public Interest Privilege
Defendant contends that the public interest privilege precludes disclosure of approximately 40 documents identified in the privilege logs. Claimant asserts that defendant is barred from asserting this privilege under the doctrine of collateral estoppel. Specifically, claimant argues that the public interest privilege was previously litigated in an administrative proceeding concerning DOH’s efforts to remove Diane Walker as the administrator of Brooklyn Manor.
“Collateral estoppel or issue preclusion gives conclusive effect to an administrative agency’s quasi-judicial determination when two conditions are met: (1) the issue sought to be precluded is identical to a material issue necessarily decided by the administrative agency in a prior proceeding; and (2) there was a full and fair opportunity to contest the issue in the administrative tribunal” (see Jeffreys v Griffin, 1 NY3d 34, 39 [2003]; see also Ryan v New York Tel. Co., 62 NY2d 494 [1984]). “The equitable doctrine of collateral estoppel ‘precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity’ ” (Church v New York State Thruway Auth., 16 AD3d 808, 809 [2005], quoting Ryan v New York Tel. Co., supra at 500). “[P]reclusive effect is limited to only those ‘issues that were actually litigated, squarely addressed and specifically decided’ ” (id. at 810, quoting Ross v Medical Liab. Mut. Ins. Co., 75 NY2d 825, 826 [1990]). Moreover, “a determination will generally not be given preclusive effect unless the resolution of the issue was ‘essential’ to the decision rendered in the first action or proceeding” (id.).
“The party seeking application of collateral estoppel bears the burden of showing that the decisive, identical issue was ‘necessarily decided’ in the prior action, while the party opposing the application of the doctrine must demonstrate the absence of a full and fair opportunity to contest the prior determination” (id. at 809-810, quoting Buechel v Bain, 97 NY2d 295, 304 [2001], cert denied 535 US 1096 [2002]). “The question of whether a litigant had a full and fair opportunity to contest the prior determination on those issues requires a case-by-case analysis of the realities of the prior litigation, ‘including the context and other circumstances which . . . may have had the practical effect of discouraging or deterring a party from fully litigating the determination’ ” (id. at 810, quoting Ryan v New York Tel. Co., supra at 501). Notably, when the subject of issue preclusion arises from determinations of administrative agencies, the doctrine “ ‘is applied more flexibly’ ” (Jeffreys v Griffin, supra at 40; see also Allied Chem. v Niagara Mohawk Power Corp., 72 NY2d 271 [1988], cert denied 488 US 1005 [1989] .
The prior administrative ruling relied on by claimant as precluding defendant from asserting the public interest privilege in this action arises from an administrative proceeding before New York State Department of Health Administrative Law Judge (“ALJ”) John P. Wiley concerning defendant’s effort to remove Diane Walker from her position as Administrator of Brooklyn Manor. An excerpt of the transcript from that hearing indicates that the public interest privilege was asserted, and that the ALJ opined that the documents labeled “public interest” should be disclosed.
Under these circumstances, the Court is not persuaded that defendant is barred from invoking the public interest privilege. Claimant proffers no support to show that resolution of the issue was “essential” (see Ryan v New York Tel. Co., supra at 500) or “decisive” (Church v New York State Thruway Auth., supra at 809) to the decision rendered by the ALJ. The testimony excerpts from the hearing before ALJ Wiley, purportedly on this point, are neither relevant nor instructive as to how critical resolution of the public interest privilege issue was to the prior administrative determination. In addition, claimant has not met his burden of showing that the identical issue was decided in the prior proceeding. While ALJ Wiley ruled that the public interest privilege did not apply to certain documents, the materials relevant to the ALJ’s ruling were not included as part of the motion papers. Claimant acknowledges that he sought “similar” documents at the hearing and that, while certain documents were disclosed following the ALJ’s holding, the documents sought with respect to this motion were not produced at the earlier hearing. Thus, the Court is unable to determine based on this record whether the documents barred from disclosure under the public interest privilege in the previous administrative proceeding are the same documents now before the Court. Hence, claimant has not met its “burden of establishing that the identical issue was necessarily decided in the administrative proceeding” (Akgul v Prime Time Transp., Inc., 293 AD2d 631, 633 [2002]).
Having determined that collateral estoppel does not apply, the Court turns to whether assertion of the public interest privilege was applicable to the documents submitted for in camera review. The public interest privilege is a common law creation intended to bar the disclosure of “confidential communications between public officers, and to public officers, in the performance of their duties, where the public interest requires that such confidential communications or the sources should not be divulged” (Matter of World Trade Ctr. Bombing Litig., 93 NY2d 1, 8 [1999,] quoting Cirale v 80 Pine St. Corp., 35 NY2d 113, 117 [1974]). The privilege protects certain official confidential information in the care and custody of governmental entities from ordinary disclosure as an exception to liberal discovery rubrics (see Matter of World Trade Ctr. Bombing Litig., supra at 8). The rationale for the privilege is that the public interest would be harmed or jeopardized if “extremely sensitive material were to lose this special shield of confidentiality.” (id.; see also Matter of Klein v Lake George Park Commn., 261 AD2d 774 [1999]; Lowrance v State of New York, 185 AD2d 268 [1992])
Mere assertion of the privilege is insufficient; whether it attaches in a particular case is a fact-specific determination requiring a court to balance the interests of the party seeking the disclosure against the governmental-public interest at stake should the sought-after materials lose their “shield of confidentiality” (Matter of World Trade Ctr. Bombing Litig., supra at 8-9; Cirale v 80 Pine St. Corp., supra at 118-119; Matter of Labarbera v Ulster County Socy. for Prevention of Cruelty to Animals, 277 AD2d 672, 673 [2000]). Since the term “public interest” and what constitutes “sufficient potential harm” are “necessarily and inherently flexible concepts” assessing whether the privilege applies is a judicial determination based on the facts of each case (Matter of World Trade Ctr Bombing Litig., supra at 8). To obtain the privilege, the agency claiming some governmental-public interest must “demonstrate the specific public interest that would be jeopardized by an otherwise customary exchange of information” (id. at 8; Cirale v 80 Pine Street Corp., supra at 119; see also Matter of Labarbera v Ulster County Socy. for Prevention of Cruelty to Animals supra at 673; Parker v State of New York, 269 AD2d 255 [2000]). Evaluation of this threatened public interest must be considered in light of the societal interests in redressing private wrongs and allowing fair adjudication of private litigation (see Matter of World Trade Ctr. Bombing Litig., supra at 8).
Hence, the court must balance these competing objectives and weigh the harmful effect of disclosure to the specific public interest asserted against the potential injury imposed on the party seeking the requested information if such were deemed undiscoverable. Where shown that disclosure would be more harmful to the interests of the government than the interest of the party seeking the information, the overall public interest would then be better served by nondisclosure (see id). Factors the court may balance include the encouragement of candor in policy development against the degree the public interest may be served by elucidating the government action in question, the availability of the information from other public sources, and the extent to which any overarching goals shared by the parties may be accomplished by nondisclosure (see id).
[5] In most instances, the documents do not raise any “specific public interest that would be jeopardized” if disclosure occurred (Matter of World Trade Ctr. Bombing Litig., supra at 8. More pointedly, no potential harm arising from disclosure is articulated, such as a threat to public security (id., supra at 6 [disclosure of report on security system vulnerabilities] ); or a danger to a confidential informant (Brady v Ottaway Newspapers, 97 AD2d 451, 452 [1983] affd 63 NY2d 1031[1984] [disclosure could subject source to reprisals]) or the harm to the integrity of an internal investigation (Lowrance v State, supra [disclosure of files of an Inspector General investigator concerning an inmate’s grievance]).
Defendant contends that the need for agency personnel “to candidly discuss issues and exchange ideas and information without concern that those discussions and ideas will be subject to the scrutiny of others including those entities that are regulated . . . outweighs the need of an individual plaintiff to pursue a claim for monetary compensation.” While defendant’s reliance on Martin A. v Gross, 194 AD2d 195 [1993] is not entirely misplaced, that decision does not provide an absolute bar to disclosure of communications between agency officials and staff. In Martin A., supra, the Appellate Division held that an internal report prepared by the New York City Human Resources Administration’s Child Fatality Review Panel relative to the death of a foster child, and that was sought by the child’s siblings in an action seeking monetary, injunctive and declaratory relief against the City of New York, was not discoverable. The Appellate Court found that the broader goal shared by the plaintiffs and the municipal defendants - improving the child welfare system - outweighed the monetary relief interests of plaintiffs and would not be advanced if the defendants did not have the ability to conduct a “frank analysis” of child fatalities and engage in candid and confidential conversations with families and caseworkers during preparation of the report (id. at 203, 204). While the court acknowledged the need for candor among public officials, its discussion of that need was in the context of the open dialog that was necessary to prepare a report after a tragedy had occurred and how to ensure such fatalities would not occur again (see id).
Conversely, in the instant case, most of the communications marked by defendant as protected by the public interest privilege do not reflect a post incident evaluation of actions taken and “how to prevent similar occurrences in the future” (Cirale v 80 Pine Street Corp., supra at 118 [court upheld nondisclosure of report of public board convened to inquire into cause of deadly steam pipe explosion for purpose of formulating remedial legislation or regulations to prevent such incidents from happening again]). The communications at issue are, in large part, about the status or history of the facility, incidents at the facility, press coverage, funding or budget issues, or summaries of meetings. Accordingly, the documents do not fall within the ambit of protection provided by the public interest privilege.
In the few instances where this Court has found the public interest privilege applicable, the communications were part of the dialogue that a regulatory agency would necessarily engage in as administrative enforcement was considered and implemented. The need for agency officials to be able to have those types of open and frank discussions to foster informed decision making regarding regulatory compliance at adult care facilities is an important public mission, and outweighs claimant’s interest in access to these documents to assist in the pursuit of a private claim for monetary relief (see e.g., Matter of Klein v Lake George Park Commn., supra at 777 [Court finds public interest privilege bars disclosure of source of allegation that person had discharged wastewater into Lake George as petitioners’ interest in filing civil action does not outweigh public’s interest in protecting the environment]).
Attorney-Client Privilege
Several other documents claimant seeks have been withheld by defendant on the ground of attorney-client privilege. As many as 19 attorneys employed by defendant either sent or received communications for which the attorney-client privilege has been asserted. In addition, some of the communications were sent or received by employees and agents of New York Hospital Medical Center of Queens (hereinafter “NY Hospital”), which was appointed by the NYSDOH Commissioner in an order dated May 23, 2005 as the temporary operator of Brooklyn Manor. Defendant contends that these communications are also privileged because, as of May 23, 2005, NY Hospital became “the Commissioner’s agent for matters relating to Brooklyn Manor and communications between the Department’s attorneys and Department agents are ... privileged” (Bierman Affirmation, ¶ 18). Claimant opposes defendant’s use of the attorney-client privilege principally on the grounds that the communications were not in the nature of legal advice and that the communications were part of a tortious scheme to revoke claimant’s operating license.
[6] (see Rossi v Blue Cross & Blue Shield of Greater N.Y., 73 NY2d 588, 592 [1989]). “For the privilege to apply when communications are made from client to attorney, they ‘must be made for the purpose of obtaining legal advice and directed to an attorney who has been consulted for that purpose.’ [citations omitted] By analogy, for the privilege to apply when communications are made from attorney to client - whether or not in response to a particular request - they must be made for the purpose of facilitating the rendition of legal advice or services, in the course of a professional relationship [citations omitted]” (id. at 593).
While “the communication itself must be primarily or predominantly of a legal character” (Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 377-378 [1991]; Rossi v Blue Cross & Blue Shield, supra at 594), the privilege is not lost by mere reference to certain nonlegal matters so long as the communication is principally legal in nature (see Rossi v Blue Cross & Blue Shield, supra at 594; Bertalo’s Rest. v Exchange Ins. Co., 240 AD2d 452, 454 [1997] lv dismissed 91 NY2d 848 [1997]). Communications dealing with the substance of imminent litigation generally fall into the “area of legal rather than business or personal matters,” and the fact that a communication does not reflect legal research is not determinative “where the communication concerns legal rights and obligations and where it evidences other professional skills such as a lawyer’s judgment and recommended legal strategies” (Rossi v Blue Cross & Blue Shield, supra at 594). “[W]hether a particular document is or is not protected [by this privilege] is necessarily a fact-specific determination (Spectrum Sys. Intl. Corp. v Chemical Bank, supra at 378.
Finally, it bears mention that the privilege can “also encompass[ ] communications between attorney and a client’s agent or representative provided that the communications are intended to facilitate the provision of legal services by the attorney to the client” (Delta Fin. Corp. v Morrison, 17 Misc 3d 1113(A), 2007 NY Slip Op 51955 [U] at 3]). For purposes of the privilege, there is no distinction to be drawn between communications with an organization’s in-house counsel or its outside counsel (see Quail Ridge Assocs. v Chemical Bank, 174 AD2d 959, 962 [1991]; see also Matter of Morgan v New York State Dept. of Envtl. Conservation, 9 AD3d 586 [2004] [communications between the Attorney General's Real Property Bureau and agency’s employees, made for the purpose of facilitating the rendering and obtaining of legal advice or services, were properly withheld as privileged materials]).
In this case, the attorney-client privilege is invoked by defendant as the basis for withholding from disclosure over 700 of the documents listed in defendant’s two privilege logs. While this Court is certainly mindful of the concern that the privilege not be used as a device to shield discoverable information “lest the mere participation of an attorney be used to seal off disclosure” (Rossi v Blue Cross & Blue Shield of Greater N.Y., supra at 593), following an in camera review of the documents, the court concludes that assertion of the attorney-client privilege as a basis for nondisclosure was proper.
The context of this case is an enforcement action commenced by a state regulatory agency against an adult care facility that provides long term care to residents. The allegations are, in essence, that the inspections and enforcement measures taken by defendant against claimant were negligent and defamatory, and tortiously interfered with claimant’s business relations. The documents designated by defendant as barred by the attorney-client privilege consist of e-mails, memoranda, correspondence and other materials. These documents reflect a vigorous and contested dispute as to whether or not statutory and regulatory violations at the facility warranted, inter alia, denial of the renewal of claimant’s operating certificate, the suspension of claimant’s operating certificate, the appointment of a temporary operator and the appointment of a permanent receiver. The Court finds that the subject matter of each of these documents is predominantly legal. There are numerous exchanges between in-house agency counsel, between in-house agency counsel and agency staff, and between agency staff, in-house agency counsel and the agency’s outside counsel, the Office of the Attorney General. The content of these documents runs the legal gamut and includes, inter alia, seeking or offering legal advice, responding to discovery requests, assessing which regulatory or statutory provisions of the Social Services Law have been allegedly violated, determining proper legal strategies at administrative hearings or in Supreme Court actions, reporting on legal developments related to the facility and answering legal questions from agency staff. The documents further include draft legal documents, such as drafts of affidavits, pleadings, legal opinion letters and statements of charges, which in many instances include handwritten notes and edits made by in-house attorneys or the Attorney General’s office.
In this Court’s view, the documents reflect the type of candid communication between lawyers and their clients that is the foundation of an attorney-client relationship, as well as the type of open discussion between attorneys and their clients arising from matters destined for or in the midst of litigation.
Claimant further contends that defendant is barred from invoking the attorney-client privilege because of alleged “tortious conduct” by defendant. The Court’s in camera review finds no merit in this assertion. It is well settled that the attorney-client privilege set forth in CPLR 4503 may not be utilized where it involves “client communications that may have been in furtherance of a fraudulent scheme . . . or an accusation of some other wrongful conduct” (Superintendent of Ins. of the State of N.Y. v Chase Manhattan Bank, 43 AD3d 514, 516 [2007], quoting Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 1 AD3d 223, 224 [2003]). The party seeking to overcome the privilege bears the burden of showing there exists “a factual basis for a showing of probable cause to believe that a fraud or crime has been committed, and that the communications in question were in furtherance of such fraud or crime” (id. quoting Matter of Grand Jury Subpoena, 1 AD3d 172, 173 [2003]).
Here, even if the Court were to determine that claimant met its burden of establishing a factual basis for a showing of probable cause that a fraud or crime had been committed, after conducting an in camera review, the Court is not persuaded that the communications at issue were made in furtherance of a fraud. As previously noted, the documents reflect the legal dialog and discussion that accompanies litigation that is complex and sharply contested.
Thus, for the above stated reasons, the Court finds that certain documents identified by defendant in the privilege logs as protected from disclosure solely by the public interest privilege shall, as prescribed below, be disclosed to movant, and that the documents identified in the privilege logs as protected by the attorney-client privilege are properly withheld from disclosure.

Accordingly, it is hereby
ORDERED that claimant’s motion to compel (M-73305) is granted in part and denied in part in accordance with the Court’s foregoing decision; and it is further
ORDERED that defendant shall disclose to claimant the following documents, as prescribed herein, within 20 days from the filing date of this decision and order:
1. From Privilege Log 1: Documents 5,10 (with portion not concerning Brooklyn Manor redacted), 28, 31, 35, 36, 53, 66-72, 77, 78, 80, 96, and
2. From Privilege Log 2: Exhibits 45, 63, 72, 130, 131, 189, 190, 249, 280-283, 331-334, 340 and 512.

August 21, 2008
Albany, New York

Judge of the Court of Claims

Papers Considered:
  1. 1. Notice of Motion to Compel dated May 2, 2007;2. Affirmation In Support of Motion to Compel by Jeffrey J. Sherrin, Esq. dated May 2, 2007 with exhibits;3. Notice of Cross Motion to Dismiss dated June 14, 2007; 4. Affirmation in Opposition to Motion to Compel and In Support of Cross Motion to Dismiss by Michael W. Friedman, AAG dated June 14, 2007 with exhibits; and
  1. 5. Submission from Michael W. Friedman, AAG dated March 4, 2008 enclosing documents submitted for in camera review.

[1].In total, 797 documents were provided for a total of 1286 pages. Each page is date stamped and numbered from 000001 - 001286. The Court notes that the two privilege logs referenced in defendant’s March 4, 2008 correspondence are attached as Exhibit E to Claimant’s Motion to Compel filed May 3, 2007. The documents provided correlate with these two privilege logs.
[2].The Court notes that both privilege logs also include documents withheld on the grounds of attorney work product and material prepared for litigation. To the Court’s knowledge, claimant has raised no objections to the invocation of these privileges by defendant.
[3].Upon review, the Court notes that, in fact, 19 documents in Log 2 were withheld solely on deliberative privilege grounds.

[4].Defendant attests that “[t]he term deliberative privilege as used in the second privilege log was intended to be synonymous with the public interest privilege.” (Bierman Affirmation, ¶ 5, June 1, 2007). Accordingly, the Court has reviewed the in camera submissions only in the context of whether invocation of the public interest privilege was proper. However, while the deliberative process privilege “is similar to that of the public interest privilege, to ‘protect the deliberative process of the government by ensuring that persons in an advisory role would be able to express their opinions freely to agency decision makers’ ” (Pinks v Turnball, 13 Misc 3d 1204A, 2006 NY Slip Op 51687 (N.Y. Sup., N.Y. Co. 2006) quoting Matter of Xerox Corp. v Town of Webster, 65 NY2d 131, 132 [[1985] [citations and internal quotations omitted]), the Court notes that the two privileges are different. As for the “deliberative process privilege”, although there is sparse authority regarding its application in New York, when it is discussed, the context is ordinarily a challenge under the New York Freedom of Information Law Act, Public Officers Law § 87(2)(g) (“FOIL”), seeking access to governmental inter-agency or intra-agency communications, which under FOIL may be exempted from disclosure (see Tuck-It-Away Assoc., L.P. v Empire State Dev. Corp., __ 861 NYS 2d 51, 2008 WL 2732309 [1st Dept]; Kheel v Ravitch, 93 AD2d 422 [1983],

62 NY2d 1 [1984]).
[5] Upon applying the above stated principles to the approximately 40 documents withheld by defendant solely on the grounds of public interest privilege, the Court finds that the vast majority of the documents should be disclosed..As noted earlier, defendant attests that its use of the deliberative privilege in the second log “was intended to be synonymous with the public interest privilege.” The Court’s analysis has thus proceeded on that ground, namely, whether the public interest privilege was properly invoked.
[6] The attorney-client privilege fosters the open and candid dialog between lawyer and client that is deemed essential to effective representation (see Matter of Vanderbilt, 57 NY2d 66 [1982]). The privilege is designed to allow one seeking legal advice to “be able to confide fully and freely in his attorney, secure in the knowledge that his confidences will not be later exposed to public view to his embarrassment or legal detriment” (Priest v Hennessy, 51 NY2d 62, 68 [1980]). The privilege can apply to confidential communications from client to attorney or from attorney to client.Claimant does not appear to contend that the communications were not confidential, a threshold requirement for the attorney-client privilege to attach (see CPLR 4503 [a] [1]). In any event, the Court’s in camera review finds that the communications were intended to be made in confidence or with a reasonable expectation of privacy in the course of a professional relationship. (see e.g., Matter of Vanderbilt (Rosner-Hickey), 57 NY2d 66, 76[1982]; Charter One Bank v Midtown Rochester, 191 Misc 2d 154, 158 [2002]; E.B. Metal Indus. v State of New York, 138 Misc 2d 698, 702 [1988]).