Steinbrecher v. Wapnick

Breitel, J. (dissenting).

This appeal raises an issue of first impression. There is no disagreement among the court that a plaintiff may waive the privilege against self incrimination by bringing an action concerning the privileged matter (Levine v. Bornstein, 7 AD 2d 995, affd. 6 N Y 2d 892; 3 Weinstein-KornMiller, N. Y. Civ. Prac., § 3126.15). Nor is there any disagreement that, in merely defending an action, the privilege of a defendant need not be waived, and, indeed, is not waived by such defense alone. Thus, it has been held that a defendant need not verify his pleading if self…