Gartner v. Unified Windows, Doors and Siding, Inc.

• Decision Date: 08 December 2009
• Docket Number: 2009-04070
• Citation: 890 N.Y.S.2d 608,68 A.D.3d 815,2009 NY Slip Op 9186
• Parties: MICHELE LIPPA GARTNER et al., Respondents, v. UNIFIED WINDOWS, DOORS AND SIDING, INC., Appellant, et al., Defendants. (Action No. 1.) MICHELE LIPPA GARTNER, Respondent, v. CHRIS COLBERT et al., Defendants, and UNIFIED WINDOWS, DOORS AND SIDING, INC., Appellant. (Action No. 2.)
• Court: New York Supreme Court — Appellate Division

68 A.D.3d 815

2009 NY Slip Op 9186

890 N.Y.S.2d 608

MICHELE LIPPA GARTNER et al., Respondents, v. UNIFIED WINDOWS, DOORS AND SIDING, INC., Appellant, et al., Defendants. (Action No. 1.)

MICHELE LIPPA GARTNER, Respondent, v. CHRIS COLBERT et al., Defendants, and UNIFIED WINDOWS, DOORS AND SIDING, INC., Appellant. (Action No. 2.)

2009-04070

Appellate Division of the Supreme Court of New York, Second Department.

Decided December 8, 2009.

In related actions to recover damages for wrongful death, the defendant Unified Windows, Doors and Siding, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Rosengarten, J.), entered March 19, 2009, as, upon a decision of the same court entered July 28, 2008, denied those branches of its motion which were to compel Dora Lillian Alvarado Hernandez, a plaintiff in action No. 1, and the infant children of David Leonard Coy-Sanchez and Elquin Astaiza Ceballos, the decedents in both actions, to appear for depositions upon oral examination in New York, and granted the cross motion of the plaintiffs in action No. 1 pursuant to CPLR 3108 and 3110 to compel it to conduct any depositions of Dora Lillian Alvarado Hernandez and the infant son of David Leonard Coy-Sanchez in Bogota, Colombia.

Ordered that the order is affirmed insofar as appealed from, with costs.

While depositions of the parties to an action are generally held in the county where the action is pending (see CPLR 3110 [1]), if a party demonstrates that conducting his or her deposition in that county would cause undue hardship, the Supreme Court can order the deposition to be held elsewhere (see LaRusso v Brookstone, Inc., 52 AD3d 576, 577 [2008]; Hoffman v Kraus, 260 AD2d 435, 437 [1999]). Here, the Supreme Court providently exercised its discretion in denying the appellant's motion to compel Dora Lillian Alvarado Hernandez, a plaintiff in action No. 1, and the infant children of David Leonard Coy-Sanchez and Elquin Astaiza Ceballos, the decedents in action Nos. 1 and 2, respectively, to appear in New York for depositions upon oral examination. The Supreme Court further providently exercised its discretion in granting the cross motion of the plaintiffs in action No. 1 to compel the appellant to take any deposition upon oral examination of Hernandez and Coy-Sanchez's infant son (hereinafter the infant son) in Colombia, or to take the depositions of those persons upon written questions, when it determined that the infant son and Hernandez, the wife of the decedent in action No. 1—who are the next of kin and the real parties in interest—were...