Waldman v. State of New York

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: June 16, 2016 521792
________________________________
PETER WALDMAN,
Appellant,
v MEMORANDUM AND ORDER
STATE OF NEW YORK,
Respondent.
________________________________
Calendar Date: April 21, 2016
Before: McCarthy, J.P, Egan Jr., Lynch, Devine and Mulvey, JJ.
__________
Law Office of Henry Stanziale, Mineola (Henry Stanziale of
counsel), for appellant.
Eric T. Schneiderman, Attorney General, Albany (Owen Demuth
of counsel), for respondent.
__________
Mulvey, J.
Appeal from an order of the Court of Claims (McCarthy, J.),
entered December 19, 2014, which denied claimant's motion to
compel defendant to answer interrogatories.
In 2007, Luis Rodriguez robbed claimant and Marni Ludwig at
gunpoint in a bar in Brooklyn. Charged with robbery and weapons
possession, Rodriguez was tried and convicted and sentenced to 25
years in prison. In mid-2011, claimant was notified by the
Office of Victim Services (hereinafter OVS) that the New York
City Comptroller had agreed to pay Rodriguez a settlement of
$110,000 for his excessive force claim against the City of New
York, adjusted to $65,459.74 after payment of counsel fees.
Claimant and Ludwig then informed OVS that they intended to
pursue distribution of the funds as victims of Rodriguez's
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crimes. OVS, represented by the Attorney General, commenced a
proceeding in Albany County to prevent dissipation of Rodriguez's
assets (see CPLR art 63; Executive Law §§ 63, 622, 623, 632-a).
An injunction was granted in July 2011, preventing the
distribution of any funds that Rodriguez received from his
settlement with the City.
Ludwig commenced an action against Rodriguez and obtained a
judgment in the amount of $156,825 in July 2012. She presented
it to OVS, which successfully moved to lift the preliminary
injunction. Ludwig was thereafter paid the entire sum of
Rodriguez's settlement funds. Claimant also commenced an action
against Rodriguez, yet he did not obtain a judgment until April
2013. Upon learning that the Rodriguez settlement funds had been
exhausted, claimant commenced this action against defendant in
July 2013, alleging that OVS violated Executive Law §§ 632-a (2)
and 633 by failing to preserve Rodriguez's assets once it had
notice that he intended to commence a civil action against
Rodriguez.
In July 2014, claimant served defendant with a demand for
interrogatories, pursuing information about communications
between the Attorney General and OVS in relation to the 2011
injunction and the payment of Rodriguez's assets to Ludwig. OVS
declined to answer certain interrogatories, invoking the
attorney-client privilege with respect to its communications with
the Attorney General. Claimant moved to compel answers to those
interrogatories, arguing that the Attorney General also
represented him personally and waived that attorney-client
privilege. In December 2014, the Court of Claims denied the
motion, determining that Executive Law §§ 632-a (7) and 633 did
not permit the disclosure of attorney-client communications in
general, and that claimant was not a client of either OVS or the
Attorney General. Claimant appeals.
We affirm. The Court of Claims properly determined that,
pursuant to Executive Law § 63, claimant was not a client of the
Attorney General and that, pursuant to Executive Law § 633,
claimant could not seek disclosure of attorney-client
communications between the Attorney General and OVS. Executive
Law § 63 (1) establishes the attorney-client relationship between
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the Attorney General and state agencies and offices, providing,
in relevant part, that the Attorney General "shall . . .
[p]rosecute and defend all actions and proceedings in which the
state is interested, and have charge and control of all the legal
business of the departments and bureaus of the state, or of any
office thereof which requires the services of attorney or
counsel, in order to protect the interest of the state" (see
Matter of Morgan v New York State Dept. of Envtl. Conservation, 9
AD3d 586, 587 [2004]; Matter of Cliff v Vacco, 267 AD2d 731, 732
[1999], lv denied 94 NY2d 762 [2000]). Executive Law § 623 (4)
provides that, for the purpose of offering services to crime
victims, OVS may request from state and local departments and
agencies or public authorities, including the Attorney General,
"such assistance and data as will enable the office to carry out
its functions and duties," and further authorizes such
departments and public authorities to provide assistance and data
to OVS (see Executive Law § 622). While the Attorney General has
the authority to commence civil actions to enforce state laws or
protect the public interest (see Executive Law § 63 [8], [15]),
such authority does not "extend[] to the representation of
private individuals . . . in matters involving the enforcement of
private rights" (Matter of Cliff v Vacco, 267 AD2d at 732; accord
Grant v Harvey, 2012 WL 1958878, *3, 2012 US Dist LEXIS 75634,
*6-7 [SD NY, May 24, 2012, No. 09-Civ-1918 (LTS) (KNF)]). Where
an attorney-client relationship exists, communications therein
are protected from disclosure unless the privilege is waived by
the client (see CPLR 4503 [a] [1]). As to OVS, Executive Law
§ 633 (3) further provides that "[a]ny report or record obtained
by [OVS], the confidentiality of which is protected by any other
law or regulation, shall remain confidential subject to such law
or regulation."
In this matter, nothing in the record evidences that
claimant was a client of OVS — or, by extension, the Attorney
General (see Executive Law § 63 [1]; Grant v Harvey, 2012 WL
1958878 at *3, 2012 US Dist LEXIS 75634 at *6-7; Matter of Morgan
v New York State Dept. of Envtl. Conservation, 9 AD3d at 587;
Matter of Cliff v Vacco, 267 AD2d at 732). Indeed, OVS may not
substitute itself for a crime victim and commence a plenary
action against a convicted person; cf. New York State Crime
Victims Bd. v T.J.M. Prods., 265 AD2d 38, 47 [2000]; see
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Executive Law §§ 63, 632-a). In pursuing Rodriguez's assets,
claimant was represented by his own counsel, which OVS duly
acknowledged in its response to claimant's demand for
interrogatories. When responding to claimant's demand for
interrogatories, OVS relied on the attorney-client privilege for
its declination to answer interrogatories that requested either
certain information about communications between OVS and the
Attorney General or understandings of the Attorney General
relative to Executive Law § 632-a. Although claimant relies upon
Executive Law § 632-a (7) in his motion to compel, we find such
reliance misplaced as the circumstances ultimately resulting in
the instant action are not those to which Executive Law §
632-a (7) applies.
McCarthy, J.P., Egan Jr., Lynch and Devine, JJ., concur.
ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court