In Constructive Trust Action, Berkman Henoch Secures Order Compelling Attorney to Appear for Deposition Following Determination Defendant Waived Her Attorney-Client Privilege By Placing The Parties’ Intent In Issue

In an action seeking to void a deed transferring real property and the imposition of a constructive trust, Berkman Henoch, on behalf of the plaintiff, sought an order compelling the attorneys who prepared the deed for the transferee/defendants to appear at a deposition.  Plaintiff maintains that the deed at issue was prepared for convenience purposes and conditionally delivered to defendants solely to demonstrate defendants’ and their children’s residency in the local school district.  Defendants on the other hand, contend that the deed was in fact intended to effectuate a transfer of the real property.

In granting the motion, the Supreme Court, Nassau County determined that based on the defenses asserted by defendants, they “placed all parties’ intent in issue, including the defendants’ intent in directing [their prior attorneys] to prepare the subject Deed, and the plaintiffs’ intent in executing the subject Deed . . .”  Because defendants placed in issue the parties’ intent and their understanding with respect to the transaction in question, the court concluded that defendants waived the attorney/client privilege and directed defendants’ attorneys to appear for a deposition and answer questions relating to the preparation of the deed and the circumstances surrounding the alleged transfer of the real property.

The plaintiff was represented by Joseph E. Macy, Esq. and Nicholas S. Tuffarelli, Esq. –members of Berkman Henoch’s Litigation Department.

A copy of the decision:  Decision and Order Granting Plaintiffs’ Motion to Compel Pursuant to CPLR §§ 3124 and 2308