Cascardo v. Cascardo
| Decision Date | 10 February 2016 |
| Parties | Debra CASCARDO, appellant, v. Russell CASCARDO, respondent. |
| Court | New York Supreme Court — Appellate Division |
Debra Cascardo, Armonk, N.Y., appellant pro se.
Vishnick McGovern Milizio LLP, Lake Success, N.Y. (Avrohom Gefen of counsel), for respondent.
REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, SHERI S. ROMAN and COLLEEN D. DUFFY, JJ.
In an action, inter alia, to recover damages for fraud and breach of fiduciary duty, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Richmond County (Troia, J.), dated March 10, 2014, as denied her motion for a protective order pursuant to CPLR 3103(a) directing that her deposition be conducted by written interrogatories, and directed that she appear for oral deposition.
ORDERED that the order is affirmed insofar as appealed from, with costs.
In 2011, the plaintiff commenced this action against her brother seeking damages for, inter alia, fraud and breach of fiduciary duty. Six days before her scheduled deposition, the plaintiff sought to have the deposition adjourned and thereafter moved for a protective order pursuant to CPLR 3103(a) directing that her deposition be conducted by written interrogatories. The plaintiff claimed that due to a traumatic brain injury, she has trouble processing oral information and difficulty in sequencing, accessing language, and recalling information. In an order dated March 10, 2014, the Supreme Court denied the motion, directed the plaintiff to appear for oral deposition, and indicated that the plaintiff could, at her own expense, utilize a "real time" reporting system during the deposition. The plaintiff appeals. We affirm insofar as appealed from.
For a protective order to be issued, the party seeking such an order must make a "factual showing of ‘unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice’ " (Hartheimer v. Clipper, 288 A.D.2d 263, 732 N.Y.S.2d 866, quoting CPLR 3103[a] ). (Brignola v. Pei–Fei Lee, M.D., P.C., 192 A.D.2d 1008, 1009, 597 N.Y.S.2d 250 ).
Here, the Supreme Court providently exercised its discretion in denying the plaintiff's motion and directing that she appear for oral deposition. The papers submitted by the defendant in opposition to the motion demonstrated that the plaintiff was a party in prior unrelated proceedings in other courts in New York, and in...
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