Opinion
Index No. 31645/2017E
09-20-2019
BRENDA MARZAN, Plaintiff, v. SHANEL T. SPELLER, SHANEL T. SMITH, CARLOS B. BIBILONI and MARIA V. ORTIZ, Defendants.
Unpublished Opinion
John R. Higgitt, J.
DECISION AND ORDER
John R. Higgitt, A.J.S.C.
Upon the August 12, 2019 notice of motion of defendant Shanel T. Smith, also sued herein as Shanel T. Speller, and the affirmation, affidavit and exhibits submitted in support thereof; plaintiffs September 17, 2019 affirmation in opposition; and due deliberation; the moving defendant's motion to vacate so much of the August 9, 2019 order as directed the moving defendant to appear for deposition "in person" and warned that the failure to do so would result in her preclusion, and for a protective order with respect to her "in person" deposition in favor of a remote video deposition, is granted in part.
On August 9, 2019, plaintiffs motion to strike defendants' answers was resolved by the order of the undersigned which, among other things, directed the moving defendant to appear for deposition "in person" and warned that the failure to do so would result in her preclusion. The moving defendant now asserts that those portions of the order should be vacated, a protective order should issue for her in-person deposition and she should be permitted to appear for deposition via videoconference (see CPLR 3103[a], 3113[b]; 22 NYCRR § 202.15[c]).
Plaintiff first asserts that the moving defendant has failed to avail herself of CPLR 2221, having moved neither for leave to renew nor for leave to reargue the August 9, 2019 order. Even though not specifically denominated as such, the court treats the motion as one for leave to renew the prior order (see CPLR 2001), given the submission of the moving defendant's affidavit, which was not provided on the prior motion (see CPLR 2221 [e][2]; Kase v H.E.E. Co., 95 A.D.3d 568 [1st Dept 2012]). Although the moving defendant has not met the technical requirements for a motion for leave to renew, "courts have discretion to relax [these requirements] and grant such a motion in the interest of justice ... to achieve substantial fairness" (Palisades Collection, LLC v Estepan, 39 Misc.3d 150[A], 2013 NY Slip Op 50960[U], at *1 [App Term 1st Dept 2013]; see also Arthur v Liberty Mut. Auto & Home Servs. LLC, 169 A.D.3d 554 [1st Dept 2019]; Hines v N.Y.C. Transit Auth., 112 A.D.3d 528 [1st Dept 2013]). Here, the integrity of the moving defendant's defense of the action is at stake, and the moving defendant has demonstrated, albeit belatedly, a willingness to be deposed. Accordingly, and in the interest of the resolution of actions on their merits, the court entertains the merits of the motion in the interests of justice (see e.g. Matter o/Frazier v N.Y.C. Hous. Auth., 161 A.D.3d 516 [1st Dept 2018]; Kaszar v Cho, 160 A.D.3d 501 [1st Dept 2018]).
The moving defendant asserts that it would be an extreme hardship for her to travel to New York for the deposition. She avers that she resides in Georgia and has no reason to travel to New York other than for the deposition. She also avers that she and her husband are the primary caregivers for their four children, aged one to 10 years old, and that the youngest child is still nursing. She further avers that her husband works nights and they have no one to care for the children overnight. The moving defendant further avers that neither she nor her husband has any remaining paid leave time from their work, and that their projected expenses are allocated to an impending move to a new apartment.
A non-resident party's deposition is generally to be conducted in the county where the action is pending (see CPLR 3110[1]; Hoffman v Kraus, 260 A.D.2d 435, 437 [1999]) unless the witness demonstrates hardship (see Rogovin v Rogovin, 3 A.D.3d 352 [1st Dept 2004]; see also Swiss Bank Corp. v Geecee Exportaciones, Ltda., 260 A.D.2d 254 [1st Dept 1999]). Furthermore, plaintiff is under no obligation to consent to a remote video deposition in the absence of a court order (see Mohel v Gavriel Plaza, Inc., 123 A.D.3d 464 [1st Dept 2014]). Given the court's wide latitude in resolving discovery disputes, the court may "adjust disclosure requirements to balance justice on both sides" (Oneto v Hotel Waldorf-Astoria Corp., 65 A.D.2d 520, 521 [1st Dept 1978]) to "obviate any of the problems alleged to be of moment" (Cooper v Met Merch., 54 A.D.2d 859, 860 [1st Dept 1976]; see also CPLR 3103).
Plaintiff asserts that the hardship described by the moving defendant is not of the kind contemplated by the relevant caselaw. The hardship described by the moving defendant, however, does not appear to be self-imposed (cf. Weinstein v Gindi, 92 A.D.3d 526 [1st Dept 2012]), or the result of an unspecified "inability" to travel to New York (cf. Criscenti v Verizon, 72 A.D.3d 464 [1st Dept 2010]). While "a trip from Florida to New York in this day of modern transportation is not such a hardship as to warrant the protective order sought" (Cooper, 54 A.D.2d at 860), here it is not merely the need for travel that the moving defendant asserts as a hardship, nor is it merely the "inconvenien[ce] and expens[e]" of such a trip (Oneto, 65 A.D.2d at 521). The hardship described here is similar to that asserted in Rogovin, supra, wherein the defendant demonstrated that out-of-state travel for a deposition would result in significant disruption to not only defendant's home life, but of those who were dependent upon her for care, and sufficiently established hardship warranting conducting defendant's deposition by video.
Plaintiff also asserts that the moving defendant's affidavit did not comply with CPLR 2309(c) because it was not accompanied by a certificate of conformity in compliance with Real Property Law § 299-a(1), and would ordinarily not be admissible as evidence (see Elizabeth R.E. v Doundley A.E., 44 A.D.3d 332 [1st Dept 2007]). The failure to include an authenticating certificate with the submission of an affidavit notarized outside New York State, however, is a defect or irregularity that may be corrected nunc pro tunc (see Raynor v Raynor, 279 AD 671, 671 [2d Dept 1951]). Denial of the motion on the basis of this remediable defect would merely delay resolution of the issues (see Moccia v Carrier Car Rental, Inc., 40 A.D.3d 504 [1st Dept 2007]).
As to the merits of the prior motion, "[t]he drastic sanction of striking pleadings is only justified when the moving party shows conclusively that the failure to disclose was wilful, contumacious or in bad faith" (Christian v City of New York, 269 A.D.2d 135, 137 [1st Dept 2000]). Willfulness and contumacy may be established by the violation of multiple court orders without reasonable excuse (see Watson v City of N.Y., 157 A.D.3d 510 [1st Dept 2018]). The sanction of preclusion may be imposed even where the failure to disclose was neither willful nor contumacious (see Vandashield Ltd v Isaacson, 146 A.D.3d 552 [1st Dept 2017]). To avoid the imposition of a sanction, the non-disclosing party must set forth a reasonable excuse for the failure to disclose (see Sage Realty Corp. v Proskauer Rose LLP, 275 A.D.2d 11 [1st Dept 2000]). While the moving defendant asserts that certain adjournments of her deposition were caused by plaintiffs failure to provide medical records and authorizations and a motion for joint trial, the moving defendant failed to explain other adjournments. The moving defendant has failed to demonstrate to the court's satisfaction that a preclusion sanction was not appropriate (see e.g. Vandashield, supra).
The court retains broad discretion in supervising discovery (see Crooke v Bonofacio, 147 A.D.3d 510 [1st Dept 2017]), and any CPLR 3126 sanction imposed should be commensurate with and proportionate to the nature and extent of the disobedience (see Merrill Lynch, Pierce, Fenner & Smith, Inc. v Global Strat Inc., 22 N.Y.3d 877 [2013]; Christian, supra). Given the nature and extent of the moving defendant's disobedience, the penalty imposed below is appropriate (see Rivera v City of N.Y., 128 A.D.3d 567 [1st Dept 2015] [conditionally striking the complaint for plaintiffs failure to appear for deposition despite six orders issued over two years]).
A protective order "shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts" (CPLR 3103[a]). The moving defendant's showing herein was sufficient to warrant a protective order directing that her deposition be conducted by remote video (see Feng Wang v A & W Travel Inc., 130 A.D.3d 974 [2d Dept 2015]).
Plaintiff did not assert that a remote video deposition of the moving defendant would be prejudicial, unwarranted or otherwise ill-advised. Under the circumstances, and in the interest of expediency, a video deposition will be ordered. The parties are reminded that the party taking the deposition bears the expense thereof (see CPLR 3116[d]), and the cost of videotaping or audio recording is borne by the party requiring the recorded deposition (see 22 NYCRR § 202.15[k]).
Accordingly, it is
ORDERED, that the motion the moving defendant's motion to vacate so much of the August 9, 2019 order as directed the moving defendant to appear for deposition "in person" and warned that the failure to do so would result in her preclusion, and for a protective order with respect to her "in person" deposition in favor of a remote video deposition, is granted solely to the extent that the moving defendant shall appear for remote video deposition within 45 days after service of a copy of this decision and order with written notice of its entry, and that if the moving defendant fails to so appear, she will be precluded from offering affidavits with respect to liability on dispositive motions and from testifying at trial with respect to liability; and it is further
ORDERED, that the motion is otherwise denied; and it is further
ORDERED, that within 30 days after service of a copy of this order with written notice of its entry, the moving defendant's counsel shall pay to plaintiffs counsel the sum of $100.00 as costs on the motion (see CPLR 8106, 8202).
The parties are reminded of the December 20, 2019 compliance conference before the undersigned.
This constitutes the decision and order of the court.