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SECURITIZED ASSET FUNDING 2011-2, LTD. v. CANADIAN IMPERIAL BANK OF COMMERCE

Index No. 653911/15. Appeal No. 13098N. Case No. 2020-01807.

191 A.D.3d 486 (2021)

138 N.Y.S.3d 309

2021 NY Slip Op 00815

Securitized Asset Funding 2011-2, Ltd., Appellant, v. Canadian Imperial Bank of Commerce, Respondent/Counterclaim Plaintiff-Respondent. Securitized Asset Funding 2011-2, Ltd., et al., Counterclaim Defendants-Appellants.

Appellate Division of the Supreme Court of New York, First Department.

Decided February 9, 2021.

Attorney(s) appearing for the Case

Selendy & Gay PLLC, New York ( Philippe Z. Selendy of counsel), for appellants.

Skadden, Arps, Slate, Meagher & Flom LLP, New York ( Jay B. Kasner of counsel), for respondent.

Concur—Manzanet-Daniels, J.P., Gische, González, Shulman, JJ.

The court properly found that CIBC has not waived its attorney-client privilege concerning the material and testimony Cerberus seeks to compel by placing them at issue. CIBC has disavowed any intention to use privileged documents to prove the relevant defense or counterclaim and, as the motion court found, the invasion of the privilege is not necessary to determine their validity (see IDT Corp. v Morgan Stanley Dean Witter & Co., 107 A.D.3d 451...

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