Opinion
2014-03-19
BORN TO BUILD, LLC, respondent, v. Ibrahim SALEH, et al., defendants, 44 W 37 Street, LLC, et al., appellants.
Xie & Associates, PLLC, New York, N.Y. (Russell L. Porter of counsel), for appellant Alan Chu Yu Mung. Kazlow & Kazlow, New York, N.Y. (Stuart L. Sanders of counsel), for respondent.
Xie & Associates, PLLC, New York, N.Y. (Russell L. Porter of counsel), for appellant Alan Chu Yu Mung. Kazlow & Kazlow, New York, N.Y. (Stuart L. Sanders of counsel), for respondent.
In an action, inter alia, for a judgment declaring that the plaintiff is the sole owner of the defendant 44 W 37 Street, LLC, the defendant Alan Chu Yu Mung appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (DeStefano, J.), dated July 25, 2012, as denied that branch of his motion which was for a protective order pursuant to CPLR 3103(a) directing that his deposition be conducted by remote electronic means, and the defendant 44 W 37 Street, LLC, appeals from the same order.
ORDERED that the appeal by the defendant 44 W 37 Street, LLC, is dismissed as abandoned for failure to perfect the same in accordance with the rules of this Court ( see 22 NYCRR 670.8[c], [e] ); and it is further,
ORDERED that the order is affirmed insofar as appealed from by the defendant Alan Chu Yu Mung; and it is further,
ORDERED that the plaintiff is awarded one bill of costs, payable by the defendant Alan Chu Yu Mung.
The Supreme Court properly denied that branch of the appellant's motion which was for a protective order pursuant to CPLR 3103(a) directing that his deposition be conducted by remote electronic means. The appellant agreed, as part of a so-ordered preliminary conference stipulation and order signed by his attorney (hereinafter the stipulation), to be deposed in New York at the office of the plaintiff's counsel. Such a stipulation constitutes a binding contract ( see CPLR 2104; Kirkland v. Fayne, 78 A.D.3d 660, 915 N.Y.S.2d 270;Utica Mut. Ins. Co. v. Swim Tech Pool Servs., Inc., 37 A.D.3d 706, 830 N.Y.S.2d 662;Aivaliotis v. Continental Broker–Dealer Corp., 30 A.D.3d 446, 447, 817 N.Y.S.2d 365).
While a court may relieve a party of the consequences of a stipulation made during litigation where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake, or accident ( see Hallock v. State of New York, 64 N.Y.2d 224, 230, 485 N.Y.S.2d 510, 474 N.E.2d 1178; Siltan v. City of New York, 300 A.D.2d 298, 750 N.Y.S.2d 323), here, the appellant failed to demonstrate good cause sufficient to invalidate the stipulation ( see Kirkland v. Fayne, 78 A.D.3d at 660, 915 N.Y.S.2d 270;Utica Mut. Ins. Co. v. Swim Tech Pool Servs., Inc., 37 A.D.3d at 706, 830 N.Y.S.2d 662). He also failed to demonstrate that his attorney lacked the authority to enter into the stipulation on his behalf ( see Cooper v. Hempstead Gen. Hosp., 2 A.D.3d 566, 768 N.Y.S.2d 371). In any event, the appellant failed to establish that traveling from his home in Hong Kong to New York to be deposed would cause him undue hardship ( cf. Gabriel v. Johnston's L.P. Gas Serv., Inc., 98 A.D.3d 168, 176–177, 947 N.Y.S.2d 716;Yu Hui Chen v. Chen Li Zhi, 81 A.D.3d 818, 916 N.Y.S.2d 525). RIVERA, J.P., BALKIN, HINDS–RADIX and MALTESE, JJ., concur.