601 Realty Corp. v. Conway, Farrell, Curtin & Kelly, P.C.

In action to recover damages for legal malpractice, the defendants Conway, Farrell, Curtin & Kelly, EC., Angela Pantony, and Richard W Dawson appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Phelan, J.), dated November 7, 2008, as denied their motion to compel the plaintiffs to respond to items 3 and 6 in their notice for discovery and inspection dated January 11, 2008.

Ordered that the order is reversed insofar as appealed from, on the law, on the facts, and in the exercise of discretion, with costs, and the appellants’ motion to compel the plaintiffs to respond to items 3 and 6 in their notice for discovery and inspection dated January 11, 2008, is granted.

Under the circumstances of this case, the appellants’ motion to compel the plaintiffs to respond to items 3 and 6 in their notice for discovery and inspection dated January 11, 2008, should have been granted. The invasion of the attorney-client privilege with respect to the subject communications and documents is required in order for the appellants to assert their defense to the action at trial (see Orco Bank v Proteinas Del Pacifico, 179 AD2d 390, 390-391 [1992]; Jakobleff v Cerrato, Sweeney & Cohn, 97 AD2d 834, 835 [1983]; Goldberg v Hirschberg, 10 Misc 3d 292, 295 [2005]).

The parties’ remaining contentions either need not be addressed in light of our determination, have been rendered academic, or are without merit. Skelos, J.P., Angiolillo, Dickerson and Leventhal, JJ., concur. [Prior Case History: 2008 NY Slip Op 33076(U).]