Opinion
Argued June 4, 1998
Decided July 1, 1998
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department.
Milbank, Tweed, Hadley McCloy, New York City ( Scott A. Edelman, Russell E. Brooks and Mitchell E. Epner of counsel), for nonparty appellants.
Amrod Ricci, L.L.P., Garden City ( John Amrod and Robert F. Van der Waag of counsel), for nonparty respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs.
The facts relevant to this appeal are set forth in an opinion in an earlier appeal to the Appellate Division (see, Doe v. Poe, 189 A.D.2d 132), and in the Appellate Division's memorandum decision in this appeal ( 244 A.D.2d 460).
Supreme Court's refusal to unseal the record of the hearing it conducted in the earlier related proceeding was premised on the erroneous assumption that the record may contain privileged information. The Appellate Division correctly determined that the communications and documents in question are not protected by the attorney-client privilege inasmuch as an attorney, Mr. P., attended the meetings in a nonrepresentative capacity. Communications between a client and an attorney made in the presence of third parties are not privileged (see, People v. Harris, 57 N.Y.2d 335, 343, cert denied 460 U.S. 1047). Appellants, in opposition to the application to unseal the record at Supreme Court, failed to submit any proof to support their claim that Mr. P. was acting as an attorney or an agent for the bank at either of the meetings in question. We have reviewed appellants' remaining contentions and conclude that they are without merit.
Chief Judge KAYE and Judges TITONE, BELLACOSA, SMITH, LEVINE, CIPARICK and WESLEY concur.
Order affirmed, with costs, in a memorandum.