Opinion
November 20, 2001.
Order, Supreme Court, New York County (Karla Moskowitz, J.), entered May 2, 2001, which granted in part defendant's motion to compel plaintiff's production of certain documents, unanimously modified, on the law and the facts, to deny the motion in its entirety, and otherwise affirmed, without costs.
Jean-Marie L. Atamian, for plaintiff-appellant-respondent.
Mitchell A. Karlan, for defendant-respondent-appellant.
Before: Nardelli, J.P., Williams, Mazzarelli, Lerner, Friedman, JJ.
In its April 24th letter, plaintiff expressly conditioned defendant's pre-production review of 175 boxes of documents on plaintiff's reservation of the attorney/client and work product privileges. While defendant did not expressly agree to the reservation of privilege in its May 3rd letter, its silence on that obviously important aspect of plaintiff's proposal was "deceptive and beguiling", and therefore should be deemed an acquiescence (see, Russell v. Raynes Assocs. Ltd. Partnership, 166 A.D.2d 6, 15). The existence of an agreement was confirmed by defendant's remarks in correspondence, upon completing several days of document review, that it expected plaintiff to review the documents "for privilege" (see, Sani Distribs. v. Toyoshima Co., 27 A.D.2d 920). The motion court so held, but then erred in concluding that defendant validly repudiated the agreement with respect to defendant's remaining pre-production document review. Since plaintiff had performed by providing the documents and there was no meeting of the minds or consideration for a modification of the agreement, defendant's attempted unilateral repudiation of the agreement was invalid (see, First Monroe v. Regency Manor Assocs., 221 A.D.2d 1023), and we modify accordingly.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.