New York Attorney Malpractice Blog

New York Attorney Malpractice Blog

Bedrock Legal Principles in a Shaken Foundation Case

Posted in Legal Malpractice Cases

Cohen v Sive, Paget & Riesel, P.C.   2017 NY Slip Op 32295(U)   October 27, 2017 Supreme Court,   New York County Docket Number: 154650/2013   Judge: Jennifer G. Schecter applies black-letter law to a shaken foundation legal malpractice case, leaving the legal malpractice claims standing, and the ancillary causes of action dismissed.

“In 2004, the Cohens’ neighbors–the Habers–did extensive excavation on their property as they planned to construct a house with two basement levels (Memorandum in Opposition [Opp] at 1). In August 2004, during the early stages of the excavation, the Cohens became concerned with vibrations and possible damage to their home and contacted the Habers’ contractor and the New York City Department of Buildings (DOB). ”

“On September 30, 2004, DOB inspectors determined that there was damage to the Cohens’ property that was caused by the Habers’ work (Opp, Exs 4-5) .

Days later, on October 4, 2004, plaintiffs retained SPR to represent them on issues related to the excavation, including the damage to their home (Supp at 9; Opp at 2) . Steven Barshov, a vice-president of SPR, was the Cohens contact at the firm (Supp at 5).

Over a year later, in December 2005, the Cohens made a claim with their insurance company. In a January 2006 letter, which was sent to plaintiffs and SPR, the Cohens’ insurer denied coverage because the Cohens were aware of damage to their home as early as September 21, 2004, yet failed to give “prompt notice” under the policy (Opp, Ex 8). ”

“To recover for legal malpractice, a plaintiff must demonstrate that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused actual and ascertainable damages (Darby & Darby, P.C. v VSI Inern., Inc., 95 NY2d 308 [2000]; Soni v Pryor, 139 AD3d 841, 842 [2d Dept 2016]; Global Bus. Inst. v Rivkin Radler LLP, 101 AD3d 651, 651 [1st Dept 2012]; Sabalaza v Salgado, 85 AD3d 436, 437 [1st Dept 2011]). SPR has not met its heavy burden of establishing entitlement to summary judgment here. It failed to demonstrate that had plaintiffs submitted an insurance claim at the time SPR was retained, coverage would have definitively been denied (see Soni, 139 AD3d at 844 [affirming denial of summary judgment to attorneys who allegedly failed to advise their clients about the availability of insurance as they did not show that it would be “impossible” for plaintiffs to establish that had they given notice to their insurer, it would have complied with the policy’s condition precedent that notice be given “as soon as practicable”]) . 2 Significantly, in disclaiming coverage, the Cohens’ insurer explained that the Cohens were on notice of damage as of September 21, 2004, which is only two weeks before SPR was retained. Because SPR has not demonstrated that, as a matter of law, notice would have been untimely or that any potential negligence on its part could not have been the proximate cause of the plaintiffs’ loss of coverage, its motion for summary judgment is denied. “

Case Not Saved by Stipulation

Posted in Legal Malpractice Cases

A stipulation which stated that the statute of limitations would not be asserted failed to stop the assertion of the statute of limitations in Dineen v Pratt  2017 NY Slip Op 07590  Decided on November 1, 2017  Appellate Division, Second Department the first half of which we reported on yesterday.

“In a consolidated action and proceedings, inter alia, to recover damages for legal malpractice and to compel a trust accounting, the plaintiff appeals from an order of the Supreme Court, Westchester County (Jamieson, J.), dated January 5, 2017, which granted the motion of the defendant Barbara J. Pratt to dismiss so much of the consolidated action and proceedings as sought to compel an accounting of a testamentary trust created under the last will and testament of John F. Wilkens and to remove her as the trustee of that testamentary trust, and granted the motion of the defendant Randall Pratt for summary judgment dismissing the cause of action to recover damages for legal malpractice.

ORDERED that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.”

“Regarding the motion of the defendant Randall Pratt, “[a] defendant moving for summary judgment in a legal malpractice action on the ground that it is untimely must make a prima [*2]facie showing that the malpractice action was commenced more than three years after the date on which the cause of action accrued” (Farage v Ehrenberg, 124 AD3d 159, 164). “If the defendant does make such a prima facie showing, the burden then shifts to the plaintiff to raise triable issues of fact” (id. at 165). Here, Dineen alleged that Pratt performed legal services which were completed as of September 2, 2011. Pratt satisfied his initial burden of demonstrating, prima facie, that the cause of action alleging legal malpractice against him was untimely, as this action and consolidated proceedings was commenced in July 2015. In opposition, Dineen failed to raise a triable issue of fact (see Tantleff v Kestenbaum & Mark, 131 AD3d 955). Contrary to Dineen’s contention, the parties’ stipulation in a prior shareholder’s derivative action that the statute of limitations would not be asserted as a defense to any claims or counterclaims was limited to claims or counterclaims asserted in the Surrogate’s Court.”

Behind Every Great Fortune Lies Years of Sibling Litigation

Posted in Legal Malpractice Cases

Reading legal malpractice cases brings up a wealth of sociological issues.  Sibling v. Sibling and Parent v. Child issues in families with significant assets are recurring themes.  Dineen v Wilkens
2017 NY Slip Op 07589  Decided on November 1, 2017  Appellate Division, Second Department is a prime example.  Dad amassed a large farm, and tried to bequeath it to his children.  What followed was internecine war.  Its probably not what he wanted.

” This litigation arises out of a dispute among family members regarding ownership and control of Wilkens Farm (hereinafter the farm), a large family-owned farm located in Yorktown Heights, New York. The farm contains two parcels of land, one consisting of approximately 105 acres and the other consisting of approximately 76 acres. In 1988, the owner, John F. Wilkens (hereinafter John Wilkens), transferred the larger parcel to the Wilkens Family Farm, Inc., a corporation in which his children and some of their spouses were shareholders. In 1995, John Wilkens’s two daughters, Patricia C. Dineen and Barbara Pratt, formed Appleseed Ventures, Inc. (hereinafter Appleseed), for the purposes of operating and managing the farm. Dineen and Pratt each owned a 50% share of Appleseed. John Wilkens leased the 76-acre parcel to Dineen and Pratt, who then assigned the lease to Appleseed. Sometime thereafter, the lease to the 105-acre parcel was also assigned to Appleseed.

A testamentary trust (hereinafter the trust) created under John Wilkens’s will governed the distribution of the farm after his death. The 76-acre parcel was placed in the trust, and John Wilkens’s wife, Barbara J. Wilkens (hereinafter Barbara Wilkens), was named as a life estate [*2]beneficiary. Pratt was named the sole trustee of the trust, with the discretion to terminate the trust and to distribute it to her mother, Barbara Wilkens, the sole income beneficiary. Furthermore, John Wilkens’s will provided that Barbara Wilkens could exercise a power of appointment under her own will and bequeath the 76-acre parcel to one or more of her children.

John Wilkens passed away in 1997. In May 2011, Pratt and her husband, an attorney, formed White Hill Orchards, Inc. (hereinafter White Hill), after which the trust leased the 76-acre parcel to White Hill for the purpose of operating the farm. In 2011, Barbara Wilkens exercised the power of appointment under her will and bequeathed the 76-acre parcel to Pratt. Shortly thereafter, Dineen commenced a shareholder’s derivative action in the Supreme Court, Westchester County, against Pratt, Pratt’s husband, and White Hill, which was later discontinued. In 2014, Dineen commenced two proceedings in the Surrogate’s Court, Westchester County, seeking a compulsory accounting of the trust and to remove Pratt as trustee of the trust. In 2015, Pratt terminated the trust and distributed its assets, including the 76-acre parcel, to Barbara Wilkens, who subsequently waived a formal accounting of the trust. In August 2016, Dineen commenced this action against Barbara Wilkens and Pratt’s attorneys, Daniel Hollis III and Shamberg Marwell Hollis Andreycak & Laidlaw, P.C. (hereinafter together the Shamberg attorneys). As is relevant to this appeal, the Supreme Court granted those branches of the defendants’ motion which were to dismiss, pursuant to CPLR 3211(a)(7), all the causes of action insofar as asserted against the Shamberg attorneys. Dineen appeals.”

“The Supreme Court properly granted that branch of the defendants’ motion which was to dismiss the fourth cause of action to recover damages for breach of a fiduciary duty insofar as asserted against the Shamberg attorneys. A cause of action to recover damages for breach of fiduciary duty must be pleaded with particularity (see CPLR 3016[b]). The elements of that cause of action are (1) the existence of a fiduciary duty, (2) misconduct by the defendant, and (3) damages directly caused by the defendant’s misconduct (see Saul v Cahan, 153 AD3d 947). Dineen alleges only that Pratt—who is not a defendant in this action—not the Shamberg attorneys, breached fiduciary duties owed to Appleseed. Similarly, the court properly directed dismissal of the sixth cause of action, which alleges the aiding and abetting of a breach of fiduciary duty, for failure to state a cause of action. ” A claim for aiding and abetting a breach of fiduciary duty requires: (1) a breach by a fiduciary of obligations to another, (2) that the defendant knowingly induced or participated in the breach, and (3) that [the] plaintiff suffered damages as a result of the breach” (Tri-Star Light. Corp. v Goldstein, 151 AD3d 1102, 1107, quoting Kaufman v Cohen, 307 AD2d 113, 125). Here, the allegations that the Shamberg attorneys aided and abetted Pratt in breaching certain fiduciary duties are conclusory and fail to allege facts from which it could be inferred that the Shamberg attorneys participated in any such conduct.

Finally, the Supreme Court properly directed dismissal of the third cause of action sounding in legal malpractice, as it failed to allege any acts or omissions by the Shamberg attorneys that would support such a claim (see Rhodes v Honigman, 131 AD3d 1151).”

Attorneys Move From Place To Place

Posted in Legal Malpractice Cases

Attorneys and cases move from law firm to law firm.  How does that affect the statute of limitations for legal malpractice when attorney takes on case, moves to law firm 2 and then leaves the case behind there?  Cordero v Koval Retjig & Dean PLLC  2017 NY Slip Op 05036 [151 AD3d 587]
June 20, 2017 Appellate Division, First Department  partially answers the question.

“The claim for malpractice accrued when defendants failed to timely file a notice of claim (see General Municipal Law § 50-e) upon the City of New York and the New York City Department of Transportation after plaintiff was allegedly injured in a fall from his motorcycle because he struck a defectively-placed construction plate in the road (see generally Glamm v Allen, 57 NY2d 87, 93 [1982]). However, the evidence raised triable issues whether the malpractice statute of limitations (CPLR 214 [6]) was tolled under the continuous representation doctrine. Mark Koval, an attorney formerly employed by defendant law firm, joined another law firm at or about the time plaintiff’s personal injury case was transferred to such new law firm. Defendants admit that plaintiff’s case was transferred to the new firm, and Koval does not deny having worked on the case at either the old or new firm (see generally Antoniu v Ahearn, 134 AD2d 151 [1st Dept 1987]; HNH Intl., Ltd. v Pryor Cashman Sherman & Flynn LLP, 63 AD3d 534, 535 [1st Dept 2009]). Although Koval claims he subsequently left the new firm and did not take plaintiff’s case with him, there is no evidence that plaintiff was ever informed of, or had [*2]objective notice of, Koval’s departure such as to end the continuous representation circumstance and the tolling of the statute of limitations (see Shumsky v Eisenstein, 96 NY2d 164, 167-169, 170 [2001]).”

One Can’t Wait Too Long To Amend

Posted in Legal Malpractice Cases

Amendments should be freely given, yet in Daniel R. Wotman & Assoc., PLLC v Chang
2017 NY Slip Op 02141 [148 AD3d 571]  March 23, 2017  Appellate Division, First Department the court below correctly decided not to exercise its discretion when the proposed amendment comes far into the case.

“In this action commenced by plaintiff to recover legal fees, defendant asserted a counterclaim for legal malpractice. Plaintiff moved for summary judgment dismissing that counter-claim and in response, defendant cross-moved for leave to amend the counterclaim to expand and alter her theory of recovery.

Supreme Court providently exercised its discretion in denying defendant leave to amend her legal malpractice counterclaim. The motion for leave to amend came years after the counterclaim was first asserted and well after the conclusion of discovery. Moreover, defendant failed to articulate a reasonable excuse for her delay in amending the counterclaim and was unquestionably in possession of all the facts she needed to seek leave at an earlier time in the litigation (see Holliday v Hudson Armored Car & Courier Serv., 301 AD2d 392 [1st Dept 2003], lv dismissed, lv denied 100 NY2d 636 [2003]).”

The Issue Is Raised, But No Decision is Issued

Posted in Legal Malpractice Cases

Judiciary Law 487 is tantalizingly raised, but not resolved in Solomon v Silverstein 
2017 NY Slip Op 51400(U)   Decided on October 11, 2017  Supreme Court, Richmond County
Minardo, J., the story of two sisters feuding over the care and assistance of their mother.  Mom deposited $ 40,000 and the question is whether the two daughters share or one takes all.

They litigated in Surrogate’s Court and now are litigating in Supreme Court.  If they are paying attorneys by the hour, surely the fees have overtaken the $ 40,000.  Here, defendant counterclaimed for JL § 487 because plaintiff’s attorney verified the complaint.  Supreme Court noted and ignored the motion to dismiss this counterclaim.

“Turning to the cross motion which is presently before the Court, plaintiff seeks an order [*5](1) pursuant to CPLR §§ 3124 and 3126, striking the counterclaim of defendant, [FN2] (2) striking defendant’s affirmative defenses for failure to adequately respond to plaintiff’s demand for bill of particulars and notice for discovery and inspection, (3) precluding defendant from offering evidence at trial in defense of this action for failing to timely and adequately respond to the above demands, (4) for sanctions against defendant for her frivolous, libelous and baseless counterclaim, and (5) enlarging plaintiff’s time to e-file her affidavit of service in this action.

Without addressing the merits of defendant’s purported counterclaim, this Court will not impose the penalties sought pursuant CPLR § 3126 (2) and (3) absent a showing by plaintiff that defendant wilfully failed to disclose information or refused to obey an order for disclosure. As such, the branch of the cross motion which seeks this relief and sanctions must be denied without prejudice. The branch of the cross motion which is to compel disclosure pursuant to CPLR § 3124 is granted solely to the extent that this matter shall be set down for a compliance conference on ______”

Footnote 2:Defendant’s counterclaim to recover damages in the amount of $100,000.00 is predicated upon her attorney’s alleged violation of the Judiciary Law § 487 and the doctrine of respondeat superior. Defendant asserts that the verification of the complaint by plaintiff’s attorney is patently false and made with the intent to deceive the court, which constitutes “wrongful and morally culpable conduct” for which plaintiff is responsible.”

Arbitration Is So Final

Posted in Legal Malpractice Basics

The jury system, along with the CPLR structure of motions and appeals can be cumbersome, long, but ultimately comforting.  In contrast, the arbitration system plays to a single individual or tribunal, with no margin for reassessment.  So went a case reported in the New York Law Journal, and sometime in the future will be determined by a court decision, albeit on very limited grounds.

Investment Fund Challenges Ruling in Herrick Malpractice Fight is the story of a legal malpractice by an investment company against Herrick Feinstein in a legal malpractice case, involving a former  NY Court of Appeals judges as an expert witness.

From Christine Simmons :“Gordon Group said it retained Herrick Feinstein in late 2009 after it was defrauded by a rogue bond trader who made unauthorized purchases of stock “in an elaborate pump and dump scheme.” Gordon Group said Herrick promptly filed in state court tort and other claims against the trader and others, but waited 13 months before considering the timeliness of the client’s contract claim against Fortis Investment Services, a clearing broker that was acquired by BNP Paribas. The claim against Fortis was subject to arbitration before the Financial Industry Regulatory Authority.

Herrick did not seek a tolling agreement with Fortis or tell Gordon Group that Herrick’s delay was destroying the value of its Fortis claim, Gordon Group claims. Gordon Group said it was advised by then-Herrick attorneys David Feuerstein and John Goldman.

Herrick, it claims, finally brought a FINRA arbitration against Fortis in March 2011, and argued then that its damages were $23.4 million plus interest, totaling $45 million. A FINRA panel in November 2015 awarded Gordon Group $11.3 million in compensatory damage but did not explicitly grant or deny interest.

In a legal malpractice arbitration brought against Herrick last year, Gordon Group argued the FINRA award was only based on the unauthorized trades that cleared Fortis inside the statute of limitations timeframe and a 9 percent statutory interest. Gordon Group’s expert witness at the malpractice arbitration, Robert Smith, a former judge of the New York Court of Appeals, testified that it was “very likely” that the FINRA panel credited the statute of limitations defense asserted in the FINRA arbitration as a result of Herrick’s inaction, Gordon Group said.

In a July decision, the arbitrator, Davidson, found Herrick’s “failure to assure” that the statute of limitations on the Fortis claim was tolled or that the client was fully informed of the danger in waiting to bring a claim “fell below the ordinary and reasonable skill and knowledge” commonly possessed by a member of the profession. However, in considering damages, Davidson found “the truth of the matter is that no one knows how the arbitrators [in the FINRA action] came up with their number.”

Gordon Group’s petition, filed Tuesday, argues that the arbitrator applied the wrong standard of proof and the ruling resulted in an unfair arbitration process. Its petition seeks to vacate the award and send the parties back to arbitration to establish damages.”

Several Straightforward Lessons from the First Department

Posted in Legal Malpractice Cases, Uncategorized

O’Neal v Muchnick Golieb & Golieb, P.C.  2017 NY Slip Op 03125 [149 AD3d 636]  April 25, 2017  Appellate Division, First Department is notable for several terse lessons.  They were set forth in bullet fashion in the opinion:

“The allegation that, while representing plaintiff in the assignment-of-lease negotiations, counsel secretly represented the counterparty so as to obtain favorable terms for the counterparty, which resulted in a lower-than-market price for the assignment, states a claim for legal malpractice (see Leggiadro, Ltd. v Winston & Strawn, LLP, 119 AD3d 442 [1st Dept 2014]).

Defendants’ decision not to oppose summary judgment in the action by the bank creditor does not constitute malpractice. The decision was a strategic choice made in light of the lack of a meritorious defense (see Dweck Law Firm v Mann, 283 AD2d 292 [1st Dept 2001]). Moreover, the fact that replacement counsel was able to re-open the briefing and submit opposition to the motion and still lost demonstrates the lack of a causal connection between defendants’ decision not to oppose and any alleged damages.

The breach of fiduciary duty claim is not duplicative of the malpractice claims, since it is based on actions taken after the termination of the representation (see Dinhofer v Medical Liab. Mut. Ins. Co., 92 AD3d 480 [1st Dept 2012], lv denied 19 NY3d 812 [2012]).

The allegation that defendants advised plaintiff to transfer her assets, in violation of a court order about which they had not informed her, to draw the ire of creditors so that they would seek collection against her before pursuing her co-defendants is sufficient to state a claim under Judiciary Law § 487 (see generally Kurman v Schnapp, 73 AD3d 435 [1st Dept 2010]).”

Not Judiciary Law 487, Not GBL 349, Not Dismissible

Posted in Uncategorized

Legal malpractice cases traditionally hew to the Legal Malpractice – Breach of Contract – Breach of Fiduciary axis.  Outlier cases add in some exotic causes of action. Gleyzerman v Law Offs. of Arthur Gershfeld & Assoc., PLLC 2017 NY Slip Op 07200  Decided on October 12, 2017  Appellate Division, First Department is a overbilling case, with multiple causes of action.  GBL § 349 and Judiciary Law § 487 as well as conversion and fraudulent inducement all fail.  Nevertheless, poor quality billing records are insufficient for dismissal.

“Defendants failed to demonstrate conclusively that the value of the services they rendered in connection with the first and third retainers equals or exceeds the fees that plaintiffs paid. Their self-serving accounting, which identified the number of hours spent on tasks but not the dates on which the work was done and the time spent on each of those dates, does not constitute irrefutable, documentary evidence that no unearned fees remain. However, defendants demonstrated that no unearned fees remain under the second retainer, which provided that the flat fee would cover “only the superseding arraignment appearance” (caps and boldface deleted); Gershfeld appeared with Anna on that arraignment.

The conversion cause of action alleges no facts independent of those underlying the breach of contract cause of action and was therefore correctly dismissed as duplicative (see Jeffers v American Univ. of Antigua, 125 AD3d 440, 443 [1st Dept 2015]). The unjust enrichment cause of action is precluded by the existence of the retainer agreements (see Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 388 [1987]).

Anna’s cause of action for fraudulent inducement fails to allege the requisite “knowing misrepresentation of material present fact” intended to deceive her and induce her to enter into the first retainer (GoSmile, Inc. v Levine, 81 AD3d 77, 81 [1st Dept 2010], lv denied 17 NY3d 782 [2011]). Defendants’ alleged assurance that her case would not go to trial is at odds with the clear language of the first retainer and, at most, represents a promise about the future (see Eastman Kodak Co. v Roopak Enters., 202 AD2d 220, 222 [1st Dept 1994]) — which in any event [*2]was kept. As the superseding indictment had yet to be filed when the first retainer was entered into, no material fact then existed as to that indictment.

Tatyana’s cause of action for fraudulent inducement alleges that defendants made several misrepresentations of present fact intended to induce her into entering into the second and third retainers, but fails to allege with particularity the distinct damages resulting from that inducement (see Deerfield Communications Corp. v Chesebrough-Ponds, Inc., 68 NY2d 954 [1986]; CPLR 3016[b]).

The causes of action alleging violations of General Business Law § 349(a) were correctly dismissed because the alleged misconduct is related to private agreements between the parties and is not consumer-oriented (see Oswego Laborers’ Local 214 Pension Fund v Marine Midland Bank, 85 NY2d 20, 25 [1995]).

The allegations in the complaint fail to establish the existence of a chronic and/or extreme pattern of legal delinquency that caused damages in support of the cause of action under Judiciary Law § 487 (see Chowaiki & Co. Fine Art Ltd. v Lacher, 115 AD3d 600, 601 [1st Dept 2014]).”

Suing The Expert When It All Goes Wrong

Posted in Legal Malpractice Cases

The expert comes into trial and is subject to cross-examination.  When that cross-examination hits home, and the court precludes some of the expert testimony, or fails to qualify the expert, or the expert has to admit that it did not examine or consider some piece of evidence, then things will not go well for the proponent.  What does the proponent then do?

Toaspern v Laduca Law Firm LLP  2017 NY Slip Op 07374  Decided on October 19, 2017
Appellate Division, Third Department is the example of what happens when the expert sues for an unpaid fee.  There are qualified privileges and limits in cases against experts.

“Defendants — an attorney and his law firm — represented a married couple in an action against the Harley-Davidson Motor Company Group in relation to an accident that occurred when the couple’s motorcycle lost power (see Smalley v Harley-Davidson Motor Co. Group LLC, 134 AD3d 1490 [2015]; Smalley v Harley-Davidson Motor Co., Inc., 115 AD3d 1369 [2014]). In connection with that action, defendants retained plaintiff, an accident reconstructionist, to provide expert services and testimony. Plaintiff intermittently consulted with defendants between 2006 and 2013. During the trial of that action, plaintiff testified that he had examined a motorcycle similar to the one at issue but had not disclosed this inspection as a basis for his expert opinion. That testimony prompted Supreme Court to grant Harley-Davidson’s motion for a mistrial.

Following the mistrial, defendants refused to pay the remainder of plaintiff’s bill, prompting him to commence this action to recover the fees for his expert services. Defendants served an answer containing two counterclaims. The first counterclaim alleged that plaintiff “failed to both review and understand [the] records provided to him,” which resulted in plaintiff being “unable to answer critical questions posed to him regarding the electrical testing conducted [*2]by Harley[-]Davidson,” which in turn resulted in Supreme Court deeming a portion of the trial evidence inadmissible. The second counterclaim alleged that plaintiff referred to precluded evidence during his testimony, despite warnings from the court that he could not do so. The second counterclaim further alleged that plaintiff testified that a few weeks before trial he viewed a motorcycle similar to the one at issue, but he did not include in his expert disclosure that examination of a motorcycle formed part of the basis for his opinion testimony. Plaintiff moved to dismiss defendants’ counterclaims, arguing, among other things, that the doctrine of absolute witness immunity shielded him from liability for damages arising from his trial testimony. Defendants cross-moved for partial summary judgment.”

“A “witness at a judicial or quasi-judicial proceeding enjoys an absolute privilege with respect to his or her testimony,” as long as the statements made are material to the issues to be resolved therein (Pfeiffer v Hoffman, 251 AD2d 94, 95 [1998]; accord Martinson v Blau, 292 AD2d 234, 235 [2002]; see Youmans v Smith, 153 NY 214, 219 [1897]; Wilson v Erra, 94 AD3d 756, 756-757 [2012]). The purposes of this privilege are to further the truth-seeking process at trial and encourage cooperation of witnesses, particularly with regard to expert witnesses, so that they can discharge their public duty freely “with knowledge that they will be insulated from the harassment and financial hazard of subsequent litigation” (Tolisano v Texon, 144 AD2d 267, 271 [1988, Smith, J., dissenting], revd for reasons stated in dissent 75 NY2d 732 [1989]; see Rehberg v Paulk, 566 US 356, 367 [2012]).

Defendants argue that the witness privilege does not bar actions against a party’s own expert for breach of contract or malpractice, just as a party can proceed against his or her attorney for legal malpractice based upon conduct that occurred during a trial. Plaintiff argues that an expert witness is absolutely immune from liability for claims that arise out of his or her testimony provided in prior litigation.

We conclude that a party cannot hold its own expert liable for the content of his or her testimony in prior litigation, but may pursue claims for negligence, professional malpractice, breach of contract or similar causes of action due to the expert’s alleged failure to properly prepare for the trial or to perform agreed-upon litigation-related services. Although an expert may not be held liable for the substance of his or her prior testimony or the opinions expressed therein, such testimony may be used as evidence in connection with these other types of causes of action. As the Court of Appeals recently stated when addressing the witness privilege in another context, “[t]he test is ‘whether the plaintiff can make out the elements of his [or her] . . . claim without resorting to the . . . testimony. If the claim exists independently of the . . . testimony, it is not “based on” that testimony . . . [but] if the claim requires the . . . testimony, the defendant enjoys absolute immunity'” (De Lourdes Torres v Jones, 26 NY3d 742, 770 [2016], quoting Coggins v Buonora, 776 F3d 108, 113 [2d Cir 2015], cert denied 575 US ___, 135 S Ct 2335 [2015]; cf. Rehberg v Paulk, 566 US at 370 n 1). Stated otherwise, a plaintiff may not assert a claim that is entirely based on the expert’s prior testimony — and nothing more — but may assert a claim that is viable apart from, but supported by, that testimony (see De Lourdes Torres v Jones, 26 NY3d at 770 [precluding the subjection of a witness to potential liability for prior testimony [*3]”alone”]).”

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