Opinion
109859/01.
Decided on December 5, 2006.
Plaintiff moves both for a protective order pursuant to CPLR Section 3101, requiring defendants to take the deposition of the plaintiff, residing in Morocco, by video conferencing and also for an order extending plaintiff's time to file a Note of Issue. Defendants cross move for an order requiring plaintiff to appear in New York County for deposition as well as for 1) an independent medical examination under pain of dismissal of the action for non-compliance and 2) requiring plaintiff to post $500 security for costs. Defendants argue, in part, that the Court does not have the power to order a video conference and does not have the power to order such video conference to be held outside the state.
Plaintiff alleges negligence while proving prenatal care and during her admission to New York Hospital between November 13, 1998 and December 29, 1998 for the delivery of her fifth child, by cesarean section. She claims that the cesarean section was improperly performed causing a perforated uterus and an infection which made her gravely ill, and resulted in pain and suffering, scarring, adhesions and an otherwise unnecessary hysterectomy. This action was commenced almost 2 and one half years later, on or about May 14, 2001. Answers were served by September, 2001, with discovery demands. Some of the persons listed in the caption have never been served. Over a year later, on about November 11, 2002, plaintiff served identical bills of particulars on the appearing defendants and responses to defendants' discovery demands.
Procedural Background
A preliminary conference was held on January 30, 2003, at which an order was signed requiring plaintiff to appear for deposition on June 9, 2003, as well as provide authorizations for certain prior and subsequent treating records within thirty days. In March 2003, defendants' counsel requested, by letter, the authorizations, including the records of the doctor or facility that prescribed insulin to the plaintiff on August 25, 1998, as noted in the New York Hospital chart. A total of ten compliance conferences have been held since the preliminary conference. Plaintiff's counsel indicated an inability to contact plaintiff and initially failed to provide any authorizations or medical records. At some point in time it appears that plaintiff returned to Morocco. At the January 29, 2004 compliance conference plaintiff's counsel was directed to provide the plaintiff's prior and subsequent medical records from Morocco. It may be noted that the orders at the preliminary conference and the compliance conferences were based upon agreements of the parties that were then "so ordered" by the Court.
In August, 2004, plaintiff's counsel sent defense counsel a one page statement from Dr. Moussa Ezzahraoni, evidently an OB-GYN who treated the plaintiff in Morocco. Plaintiff provided authorizations for the records of Dr. Ezzahroani and Dr. Aicha Elhardoui, but counsel for defendants have not be successful in obtaining those records, and have asked plaintiff's counsel on several occasions to produce such records.
At the request of the parties, I sent a letter on September 1, 2004 to the Moroccan Consulate in New York requesting a visa to allow plaintiff to travel to New York for her deposition and stating that plaintiff must provide copies of all of her Moroccan medical records no later than 45 days before her arrival in New York. Plaintiff's counsel wrote to the court advising that the letter to the Moroccan Consulate had been sent to the wrong address, and upon agreement I sent a similar letter to the American Consulate in Casablanca, Morocco.
At a compliance conference on March 17, 2005, I extended plaintiff's time to serve a Note of Issue through July 15, 2005. On March 29, 2005, defendants served a notice pursuant to Rule 3216 CPLR to resume prosecution of the action and file a Note of Issue within 90 days. Counsel agreed to extend that 90 day deadline to July 15. On or about July 8, 2005, plaintiff's counsel served an order to show cause seeking an extension of the July 15 deadline. Defendants served a cross motion to dismiss pursuant to CPLR Section 3126 which has been adjourned until the submission of this motion.
At a compliance conference on October 27, 2005, plaintiff's counsel indicated that they had lost contact with the plaintiff and sought leave to withdraw. I directed that the application to withdraw include a notice to the client to be published in the national Moroccan newspaper "Le Matin" that her case would be dismissed if she didn't contact her counsel by February 4, 2006. (Plaintiff's motion, Exhibit "D"). Plaintiff apparently read the advertisement and her brother appeared with counsel at the conference on February 4, 2006. Mr. Stephen Kirama said he was helping his sister in her efforts to secure a temporary visa. Plaintiff and her counsel have been unsuccessful in their efforts to secure a visa and are unable to state when a visa may be granted (Moving affirmation, ¶ 21).
DISCUSSION
CPLR Section 3110 (1) declares that a deposition will ordinarily be held in the county where the action is pending. However, plaintiff argues that when the party to be deposed demonstrates that being deposed in that county would constitute a hardship, the deposition may be held elsewhere. Plaintiff cites Hoffman v Krauss, 260 AD2d 435 (2nd Dept, 1999), in which the defendant was a resident of Hungary, over 70 years old, and in failing health. In Zilken v Leader, 23 AD2d 645 (1st Dept, 1965), Special Term granted the motion of plaintiff, a resident of West Germany, to have his deposition taken on written questions and denied defendant's application to have him deposed on oral questions in New York County, without prejudiced to renewal if defendants were not satisfied with the facts adduced on such examination. The First Department modified by adding that if plaintiff came to the United States before trial or for the trial, he must promptly notify defendants of his arrival and submit to an oral examination within a reasonable time, but not later than five days before trial. Plaintiff also relies on a First Department decision for the proposition that when the deponent is a non-resident of New York, hardship to the deponent permits an order allowing the deposition to be held by video conference. Thus, in Rogovin v Rogovin, 3 AD3d 353 (1st Dept, 2004), a video conference ebt was permitted where the defendant-deponent was the sole caregiver for her ailing nonagenarian mother and had a special needs 10 year old daughter.
Defendants cite cases holding that no hardship exists justifying a deposition outside of New York State. Those cases are all readily distinguishable because clearly no hardship circumstances existed. For example, in Farrakhan v N.Y.P. Holdings, 226 AD2d 133 (1st Dept, 1996) the court held that plaintiff frequently traveled to New York so that it could not be concluded that his safety would be jeopardized by a deposition here which would not involve the type of public exposure and risk which he assumed at his highly publicized appearances. In Rodriguez v Infinity Insurance Co., 283 AD2d 970 (4th Dept, 2001), the court held that conclusory allegations of hardship did not establish that travel to New York would constitute a hardship.
By way of contrast, plaintiff has the extreme hardship that she cannot legally travel to New York because she cannot secure a visa, despite the efforts of counsel, plaintiff and her relatives, and even the Court. Defendants' argument that her situation does not present a hardship because she voluntarily returned to Morocco at some time after her release from the defendant hospital is without merit. Plaintiff's counsel's assertion in his reply affirmation that she left because her visa was soon to expire misses the point How the hardship was created is irrelevant here since there is no indication, for example, that she left the United States to return to her home in Morocco for the purpose of evading being deposed in New York County or New York State.
Defendants' remaining argument is that the legislative history, and the plain language of CPLR Section 3113(d) restricts video teleconferencing to cases in which both sides stipulate to the procedure, is unavailing. Granted the legislative history provided indicates that the earlier proposed version of the statute would have permitted video teleconferenced depositions on stipulation and upon court order, whereas the later version, which became law, only speaks to stipulations. Nonetheless, the First Department has spoken, and its holding is binding on this court. The Rogovin (supra) Court not only found a hardship to exist but it affirmed the directing of a deposition by video conferencing even though it must be assumed that there was no stipulation to do so (if there were a stipulation, there would not have been an appeal). Defendants' claim of prejudice because the deposition would be held by video conferencing is also unavailing. Precisely those same make weight generalized and conclusory claims of prejudice would have been present in Rogovin, supra, but did not deter the ordering of the out-of-state deposition.
The branch of defendants' motion seeking security for costs is granted. Although opposed, no specific reason is given to justify the opposition. Accordingly, plaintiff shall post security for costs in the sum of $500.
The Court defers consideration of the issue of an independent medical examination until a conference with lawyers from both sides who are fully familiar with the case and the chart of plaintiff's stay at New York Hospital. The claim is of a perforation, and an infection, which resulted in a hysterectomy and an otherwise unnecessarily prolonged hospital stay. Full information with respect to those events is in the chart. Defendants do not state why they want a physical examination or of what it would consist. Accordingly the request for an order directing an independent medical examination is denied without prejudice to renewal after said conference and upon papers that address the issues raised in this paragraph.
Settle order.