| South Shore D'Lites, LLC v First Class Prods. Group, LLC |
| 2021 NY Slip Op 02121 |
| Decided on April 06, 2021 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided and Entered: April 06, 2021
Before: Gische, J.P., Kapnick, Oing, Moulton, JJ.
Index No. 650827/12 Appeal No. 12523 Case No. 2020-05003
v
First Class Products Group, LLC, et al., Defendants-Appellants.
Fox Rothschild LLP, New York (Brett A. Berman of counsel), for appellants.
The Law Office of Russell D. Morris PLLC, New York (Russell D. Morris of counsel), for respondents.
Amended order, Supreme Court, New York County (Laurence L. Love), entered November 12, 2020, which, inter alia, granted plaintiffs' motion to compel following an in camera review of the subject email, unanimously reversed, on the law, and the motion denied, without costs.
The principle is well settled that a party seeking "to invoke the crime-fraud exception [to the attorney-client privilege] must demonstrate that there is a factual basis for a showing of probable cause to believe that a fraud . . . has been committed and that the communications in question were in furtherance of the fraud . . . ." (Matter of New York City Asbestos Litig., 109 AD3d 7, 10 [1st Dept 2013], lv dismissed 22 NY3d 1016 [2013]).
We note that the email has been produced. The record evidence, including the sublicense agreement, the deposition testimony, and the emails showing that defendants had marked up the price and did not disclose as much to plaintiffs, sufficiently established probable cause as to plaintiffs' fraud allegations. The subject, timing, and text of the email in question, including its references to an exhibit and the pricing of the product, further support the finding of probable cause. Upon a contemporaneous review of the email in its entirety with the other record evidence, we find that it was not in furtherance of the alleged fraud.THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: April 6, 2021