Toaspern v. Laduca Law Firm LLP, 524322.

• Decision Date: 19 October 2017
• Docket Number: 524322.
• Citation: 63 N.Y.S.3d 128,154 A.D.3d 1149
• Parties: Dennis A. TOASPERN, Respondent, v. LaDUCA LAW FIRM LLP et al., Appellants. (And Another Related Action.).
• Court: New York Supreme Court — Appellate Division

154 A.D.3d 1149
63 N.Y.S.3d 128

Dennis A. TOASPERN, Respondent,
v.
LaDUCA LAW FIRM LLP et al., Appellants. (And Another Related Action.).

524322.

Supreme Court, Appellate Division, Third Department, New York.

Oct. 19, 2017.

63 N.Y.S.3d 129

LaDuca Law Firm LLP, Rochester (Michael Steinerg of counsel), for appellants.

Hinman, Howard & Kattell, LLP, Binghamton (Daniel R. Norton of counsel), for respondent.

Before: McCARTHY, J.P., GARRY, CLARK, MULVEY and RUMSEY, JJ.

McCARTHY, J.P.

Appeal from that part of an order of the Supreme Court (Tait Jr., J.), entered October 3, 2016 in Broome County, which partially granted plaintiff's motion to dismiss defendants' counterclaims.

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 A.D.3d 1490, 23 N.Y.S.3d 770 [2015] ; Smalley v. Harley–Davidson Motor Co., Inc., 115 A.D.3d 1369, 983 N.Y.S.2d 707 [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 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

63 N.Y.S.3d 130

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.

Supreme Court partially granted plaintiff's motion to dismiss the first counterclaim, "to the extent it is based on [plaintiff's] testimony at trial [,] and denied [the motion] to the extent it alleges a breach of contract independent from his trial testimony." The court dismissed the second counterclaim, holding that plaintiff was entitled to an absolute privilege because that "claim is ‘premised’ on his testimony." Additionally, the court denied defendants' motion for summary judgment. On defendants' appeal, we modify the order.

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 A.D.2d 94, 95, 674 N.Y.S.2d 32 [1998] ; accord Martinson v. Blau, 292 A.D.2d 234, 235, 738 N.Y.S.2d 572 [2002] ; see Youmans v. Smith, 153 N.Y. 214, 219, 47 N.E. 265 [1897] ; Wilson v. Erra, 94 A.D.3d 756, 756–757, 942 N.Y.S.2d 127 [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 A.D.2d 267, 271, 533 N.Y.S.2d 874 [1988, Smith, J., dissenting], revd. for reasons stated in dissent 75 N.Y.2d 732, 551 N.Y.S.2d 197, 550 N.E.2d 450 [1989] ; see Rehberg v. Paulk, 566 U.S. 356, 367, 132 S.Ct. 1497, 182 L.Ed.2d 593 [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...