Yu Hui Chen v. Chen Li Zhi

• Decision Date: 15 February 2011
• Citation: 916 N.Y.S.2d 525,81 A.D.3d 818
• Parties: YU HUI CHEN, appellant, v. CHEN LI ZHI, respondent.
• Court: New York Supreme Court — Appellate Division

916 N.Y.S.2d 525
81 A.D.3d 818

YU HUI CHEN, appellant,
v.
CHEN LI ZHI, respondent.

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

Feb. 15, 2011.

Wade T. Morris, New York, N.Y. (Kenneth J. Gorman of counsel), for appellant.

Marshall Conway Wright & Bradley, P.C. (Gannon, Rosenfarb & Moskowitz, New York, N.Y. [Lisa L. Gokhulsingh], of counsel), for respondent.

81 A.D.3d 818

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Schneier, J.), dated October 9, 2009, as, in effect, denied his cross motion for a protective order pursuant to CPLR 3103(a) directing that his deposition be conducted by remote electronic means and stayed all proceedings in the action until he returns to the United States for his deposition.

ORDERED that the order is reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs, and the plaintiff's cross motion for a protective order pursuant to CPLR 3103(a) directing that his deposition be conducted by remote electronic means is granted.

While depositions of 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

81 A.D.3d 819

Gartner v. Unified Windows, Doors & Siding, Inc., 68 A.D.3d 815, 890 N.Y.S.2d 608; LaRusso v. Brookstone, Inc., 52 A.D.3d 576, 577, 860 N.Y.S.2d 179). Here, the Supreme Court improvidently exercised its discretion in denying the plaintiff's cross motion for a protective order pursuant to CPLR 3103(a) directing that his deposition be conducted by remote electronic means. The plaintiff demonstrated that traveling from China to the United States for his deposition would cause undue hardship ( see Gartner v. Unified Windows, Doors & Siding, Inc., 68 A.D.3d at 815-816, 890 N.Y.S.2d 608; Wygocki v. Milford Plaza Hotel, 38 A.D.3d 237, 831 N.Y.S.2d 381; Rogovin v. Rogovin, 3 A.D.3d 352, 353, 770 N.Y.S.2d 342; Matter of Singh, 22 Misc.3d 288, 865 N.Y.S.2d 902; see also Hoffman v. Kraus, 260 A.D.2d 435, 437, 688 N.Y.S.2d 575; cf. Matter of Albarino, 27 A.D.3d 556, 810 N.Y.S.2d 352).

In light of our determination that the plaintiff's deposition may be conducted by remote electronic means, the Supreme Court improvidently exercised its...