Opinion
File No. 2017-98/C
08-21-2019
In the Matter of the Estate of ANTHONY FRIZZIOLA, a/k/a ANTHONY G. FRIZZIOLA, SR. Deceased.
Petitioner moved to adjourn the SCPA 1404 examinations of the attorney-draftsman and the witness to the will, and to hold the same by electronic means. By stipulation dated March 6, 2019, the SCPA 1404 examinations were agreed to be held on May 6 and 7, 2019.
When attempting to schedule the examinations, petitioner confirmed that Matthew Dickson, Esq., the attorney-draftsman, currently resides in Colorado, yet maintains a practice in New York. Petitioner also confirmed that the witness to the will, William S. Graebe, currently resides in Naples, Florida, with no remaining business or personal connection to New York.
Petitioner contacted both deponents and both are willing to be examined for this proceeding by electronic means but have not consented to voluntarily appearing in New York for examinations.
In her attorney's affirmation, petitioner affirmed that Dickson maintains a busy law practice in Colorado and has small children; therefore, according to petitioner, travel to New York for a deposition would be an undue hardship. In his affirmation, Dickson affirms that he is married with three children, high school age and younger, residing in Evergreen, Colorado. He also attested to the drafting of the will and pour over trust of Anthony G. Frizziola, Sr. Dickson affirms that travel to New York would be a "tremendous burden and expense" and would yield no more information than what was presented in his affirmation.
Petitioner also confirmed that Graebe is currently over seventy years of age and residing in Naples, Florida, with no known current connection to New York.
Respondent has opposed the motion, alleging that the evidence adduced does not meet the threshold of "undue hardship." As for Graebe, a non-party and witness to the will, respondent argues that the only undue hardship alleged is age and geographic distance. Dickson, a resident of Colorado is however, a registered member of the New York Bar and as such, is subject to the jurisdiction of this state and this Court.
I. Examinations by Electronic Means
CPLR 3113 (d) provides that "[t]he parties may stipulate that a deposition be taken by telephone or other remote electronic means and that a party may participate electronically." A unilateral request for a deposition by electronic means will only be granted where an "undue hardship" is created by holding the deposition in the jurisdiction where the action is pending. In re Estate of Singh, 22 Misc 3d 288, 289 (Sur Ct, Bronx 2008). The party requesting the deposition by electronic means must submit evidence, such as an affirmation from the deponent, proving the existence of undue hardship. A showing of mere inconvenience is not enough. Id.
In Singh, the Surrogate found that sufficient evidence was presented to show undue hardship that the deponent, and petitioner, was unable to obtain a visa to travel from India to the United States for his deposition. Id. In contrast, In the Matter of Arum, (42 Misc 3d 1224[A], 2013 NY Slip Op 52295[U], *1 [Sur Ct, Nassau 2013]), the Surrogate denied the motion that sought a deposition by remote means. In Arum, the objectant claimed that her residence in Canada and poor health prevented her from traveling to the jurisdiction. Id. The Surrogate found that without an affirmation from a physician, or an affidavit from the objectant herself, the standard of undue hardship was not met. Id. However, in Rogovin v. Rogovin (3 AD3d 352, 353 [1st Dept 2004]), the court held there was undue hardship where a deposition was sought of a Kansas-residing defendant who was the sole caregiver for her ailing nonagenarian grandmother, as well as for her child with special needs. The Appellate Division of the First Department held that requiring the deponent to travel to New York for the deposition would be an undue burden on the defendant. Id. Therefore, the Court unanimously deemed a video deposition proper and found it was a reasonable "substitute for live testimony... under the circumstances." Id.
The facts of the present case are dissimilar to Matter of Singh. Most notably, in Matter of Singh, the petitioner was physically unable to enter the United States to be deposed due to his inability to obtain a visa following the terror attacks of September 11, 2001. In the present case, Dickson faces no such difficulty since he only needs to travel within the United States for the deposition. The issue of travel difficulties does not rise to the level of Matter of Singh; therefore, requiring Dickson to travel from Colorado to New York does not constitute undue hardship.
Although somewhat similar to In re Estate of Herman, (30 Misc 3d 1215[A], 2011 NY Slip Op 50072[U], *2 [Sur Ct, Nassau County 2011]), where the Surrogate of Nassau County held that the objectant who had an active law practice in Florida which dealt with time sensitive matters would suffer an undue hardship if forced to travel to New York for the deposition. The court also reasoned that the proponent failed to show that he would be prejudiced by the objectant's use of video conference for the deposition. Id. Consequently, the court in Herman granted the objectant's request for a video deposition. Id. Unlike Herman, Dickson maintains both a license to practice law as well as a law office in New York State. Therefore, Dickson would not be faced with undue hardship by traveling to New York for a deposition.
Dickson affirms that the only information he recalls regarding the Anthony Frizziola Will and Family Trust, is delineated in his affirmation. He further affirms that he would not be able to provide any further information than that written at the time of an examination. Thus, although the parties have requested his examination, from the filed papers it appears unlikely to this court that any additional information will be gained, despite the costs to all parties and the witness for the examination. Despite this showing, respondent has opposed the motion and continues to request an examination in person, in the state of New York. This Court is therefore unable to order his examination by electronic means due to the opposition, and Dickson's current status as a member of the New York State bar.
Mr. Graebe, however, is no longer a resident of the state of New York he maintains no known contact with the state and is a permanent resident of the state of Florida. As such, unless he is willing to travel to the state for his examination, or the parties are willing to travel to Graebe, the court will permit his examination be held by electronic means.
II. Costs related to the use of video depositions
CPLR 3116 (d) states that "[u]nless the court orders otherwise, the party taking the deposition shall bear the expense thereof." However, when a party moves for a video deposition, CPLR 3113 (d) governs who shall bear the cost. CPLR 3113 (d) states that "[u]nless otherwise stipulated to by the parties... the additional costs of conducting the deposition by telephonic or other remote electronic means, such as telephone charges, shall be borne by the party requesting that the deposition be conducted by such means."
In the present case, since the petitioner requests an examination by electronic means, CPLR 3113 (d) governs. As there is no other stipulation agreed to by both parties regarding the cost of conducting the deposition via electronic means, CPLR 3113 (d) mandates that the party requesting the electronic deposition shall pay for the cost of the examination. In Matter of Smith, (29 Misc 3d 832, 834, [Sur Ct, Bronx County 2010]), the Surrogate directed the respondent, who moved for a video deposition that the proponent sought to waive, to pay the costs and arrange the deposition via video conference or in-person in Florida. Similarly, in In re Haupt, (23 Misc 3d 1115[A] *1, 2009 NY Slip Op 50756[U], [Sur Ct, Richmond County 2009]), the petitioner sought to vacate letters testamentary granted to the respondent. The respondent sought to depose the non-resident petitioner and the Surrogate held that the cost of the video conference shall be borne by the petitioner. Id. at *2.
Likewise, petitioner herein would be responsible for the costs of arranging and conducting the examinations of Dickson and Graebe by electronic means or otherwise. Travel costs if necessary, however, will be borne by the individual parties.
III. Conclusion
Accordingly, it is hereby
ORDERED, that the motion of petitioner to hold the examination of Matthew Dickson, Esq., by electronic means is denied, and may only be held by electronic means by consent of all parties; and it is further
ORDERED, that the motion of petitioner to hold the examination of William S. Graebe by electronic means is denied, and may only be held by electronic means by consent of all parties, otherwise the parties will have to travel to Graebe in Florida unless Grebe is willing to submit to an examination in New York; and it is further
ORDERED, that the costs of the examinations are to be borne by the petitioner, and travel costs borne by the parties individually.
This shall constitute the decision and order of the court. Dated: August 21, 2019
/s/_________
MATTHEW J. TITONE