103 A.D.2d 827 | N.Y. App. Div. | 1984
Lead Opinion
— In a proceeding pursuant to CPLR article 78, the appeal is from a judgment of the Supreme Court, Nassau County (Velsor, J.), dated July 14, 1983, which directed that the appellants furnish petitioners access to a particular document, pursuant to section 87 of the Public Officers Law. H Judgment reversed, on the law, with costs, and proceeding dismissed on the merits. 11 The appellant County of Nassau retained independent counsel to evaluate the possibility of recovery in a particular civil lawsuit. Counsel submitted a written report to the County Attorney, and appellant Purcell announced that on the basis of the
Concurrence Opinion
An examination of the document in question indicates rather clearly that the materials contained therein do not fall within any of the three exceptions set forth in section 87 (subd 2, par [g]) of the Public Officers Law and I therefore concur with my confreres of the majority that Special Term erred in its finding that the document is not intra-agency material which is exempt from disclosure. That issue was long ago decided by this court in Matter of Sea Crest Constr. Corp. v Stubing (82 AD2d 546). 1 Moreover, in my opinion, to compel disclosure of the contents of this communication between the appellants and their attorneys would do violence to the entire purpose and intent of CPLR 4503. Special Term found that the document falls clearly within the attorney-client privilege of that section and none of the parties challenge or contest that conclusion. K The issue, therefore, is whether appellants waived the protection of the statute. 11 Let us take a quick look at the background of the case. 11 In December, 1982 the appellant County of Nassau retained special outside counsel to report on the feasibility of civil recovery under the Federal RICO statute (Racketeer Influenced and Corrupt Organizations Title of the Federal Organized Crime Control Act of 1970) from various insurance brokers who shared in commissions paid to the county’s former broker of record. The research and conclusions of counsel were incorporated in a 13-page, single-spaced, approximately 4,300-word written report buttressed by seven pages of