Opinion
March 26, 1985
Appeal from the Supreme Court, New York County (Seymour Schwartz, J.).
This is a medical malpractice action, and issue has been joined. During the conduct of discovery, Special Term, Part 8A, issued a precalendar conference order (Seymour Schwartz, J.), entered September 22, 1983, which directs in paragraph V, in pertinent part, that "defendant Kalli's deposition * * * be conducted in Georgia or New York if plaintiff pays his reasonable expenses at his option, November 4, 1983." Subsequently, plaintiff moved, by notice of motion, to vacate so much of this paragraph V as requires plaintiff to pay the expenses of defendant Ramana Kalli (Kalli) for traveling to New York for oral deposition. Special Term treated plaintiff's motion as one to reargue and denied it, both on the merits and as untimely. We disagree.
We find that Special Term erred in its conclusion that plaintiff was seeking reargument. As we said in Everitt v. Health Maintenance Center ( 86 A.D.2d 224, 227), since there is no appeal from a precalendar conference order, "[i]f counsel is of the view that appellate review is necessary, counsel should make a formal motion on notice and papers * * * to vacate or modify the precalendar conference order, or particular provisions of it". Our examination of the record indicates that the plaintiff has made a timely motion in the required form for the relief she seeks.
"It is well established that the statutory disclosure provisions apply to nonresidents as well as to residents of the State [citations omitted] and that, absent a showing of hardship, the nonresidence of a defendant does not preclude an examination in the county where the action is pending" ( Gazerwitz v. Adrian, 28 A.D.2d 556, 557). In the instant case, we find that "there is insufficient showing of any hardship which would result from the conduct of the deposition in this State" ( Kahn v. Rodman, 91 A.D.2d 910, 911) of defendant Dr. Kalli. Accordingly, in the exercise of our discretion, we grant plaintiff's motion and modify paragraph V of the precalendar conference order to the extent that we direct that defendant Kalli's deposition be conducted in his counsel's office in New York. In the event that defendant Kalli prevails in this action, he may recover the expense incurred as a taxable disbursement ( B.B. D. Prods. v. Screen Gems, 29 A.D.2d 747).
Concur — Ross, J.P., Carro, Asch and Bloom, JJ.