Key Points

  • The First Department unanimously dismissed Fordham University's appeal from a February 25, 2026, order directing it to produce certain documents with portions unredacted.
  • The court held that the record contained no admissible evidence supporting Fordham's attorney-client and work-product privilege claims, so it could not review whether the trial court providently exercised its discretion.
  • Counsel's representations in appellate briefs could not be considered because they were unsupported by the record, and appellate briefs are not sworn or affirmed under penalties of perjury.
  • Even an attorney affirmation would not have sufficed, because an attorney's affirmation without personal knowledge of the matter has no evidentiary value.
  • The appeal was dismissed without costs for failure to perfect it in the proper manner; the court did not decide whether the documents were privileged.

A New York appeals court on Tuesday dismissed Fordham University's challenge to a trial judge's order requiring it to unredact portions of documents in a lawsuit against the university and the Archdiocese of New York. The court held that the record contained no admissible evidence backing Fordham's privilege claims and that its lawyers' assertions in appellate briefs could not fill the gap.

The Appellate Division, First Department, unanimously dismissed the appeal, in a case brought by plaintiff Jose Vega, in an unsigned decision and order. The panel consisted of Justices Moulton, Mendez, Gesmer and Parker-Raso, with Justice Moulton presiding. The ruling leaves in place a February 25, 2026, order by Justice Sabrina Kraus of Supreme Court, New York County, that directed Fordham to produce certain documents with portions of them unredacted.

The panel did not decide whether the documents were in fact privileged. It held instead that it could not review the question at all, because "there is no admissible evidence in the record supporting Fordham's assertions of the attorney-client and work-product privileges." Under the decision, a party that wins permission to appeal a privilege ruling cannot rely on its lawyers' descriptions of the documents. The factual basis for the privilege must already be in the record in admissible form.

The fight began as a discovery dispute that the parties conducted by email, according to the decision. Justice Kraus responded by ordering an in camera inspection of documents Fordham had produced in redacted form. Fordham gave the court the documents and a privilege log.

After that review, Justice Kraus sustained some of Fordham's redactions. She ordered the university to disclose certain other documents with specified portions unredacted. Fordham then asked the First Department for leave to appeal under CPLR 5701(a)(2), the decision states, and the court granted leave in an earlier order.

Had the panel reached the merits, it would have asked whether Justice Kraus's ruling was a provident exercise of discretion. The record did not allow that inquiry. "The record is inadequate to enable this Court to render an informed decision on whether Supreme Court's rejection of Fordham's privilege claims was a provident exercise of its discretion," the panel wrote.

Fordham's appellate briefs offered three grounds for protecting the redacted material. Counsel represented that the documents were prepared by counsel or at counsel's direction, reflected counsel's selection and organization of material related to a legal matter, or were intended as legal advice. Fordham invoked two privileges: the attorney-client privilege and the work-product privilege. The decision does not summarize Vega's arguments in response.

The panel gave three reasons for refusing to credit Fordham's representations. First, it wrote, "we cannot consider counsel's representations, as they are unsupported by the record." For that point it cited Schoonheim v Schoonheim, a 1983 decision of the First Department.

Second, the panel noted that "appellate briefs are not sworn or affirmed to be true under penalties of perjury." It cited a rule of the Chief Administrator of the Courts and provisions of the practice rules that govern all departments of the Appellate Division.

Third, the panel held that converting the briefs into sworn statements would not have changed the result. Even if the briefs had been submitted through an attorney affirmation, the court wrote, "the affirmation of a party's attorney who demonstrates no personal knowledge of the matter has no evidentiary value." It relied on two decisions: Matter of Jaime v City of New York, decided in 2024, and Zuckerman v City of New York, decided in 1980.

The panel concluded that "the record is inadequate to permit meaningful appellate review of whether Fordham properly asserted the attorney-client and work-product privileges." Rather than affirm or reverse Justice Kraus's order, it dismissed the appeal "without costs, for failure to perfect the appeal in the proper manner."

That disposition treats the missing evidence as a defect in how Fordham presented its appeal, not as a ruling on whether the documents deserve protection. The decision does not describe the contents of the documents, identify which redactions Justice Kraus sustained, or describe the claims in Vega's lawsuit.

Fordham was represented on appeal by Nicole A. Donatich of Cullen and Dykman LLP. Vega was represented by Tatiana Akhund of Pfau Cochran Vertetis Amala.

The trial court case is Index No. 950409/20 in Supreme Court, New York County, where the Archdiocese of New York and other defendants are also named. The First Department's decision, reported as 2026 NY Slip Op 06270, is uncorrected and subject to revision before publication in the Official Reports.