Opinion
July 10, 1995
Appeal from the Supreme Court, Kings County (Vinik, J.).
Ordered that the order dated February 25, 1994, is reversed insofar as appealed from, without costs or disbursements, and the plaintiff's motion is denied; and it is further,
Ordered that the order dated September 19, 1994, is modified by (1) deleting the provision thereof which granted the plaintiff's motion to reschedule the deposition of Chadwick Lundy and substituting therefor a provision denying the motion, and (2) deleting the provision thereof which denied the branch of the appellants' cross motion which was to direct the plaintiff to conduct a limited deposition of Chadwick Lundy on written questions and substituting therefor a provision granting that branch of the cross motion; as so modified the order dated September 19, 1994, is affirmed, without costs or disbursements.
Ample notice of six weeks was provided to the plaintiff Mount Vernon Fire Insurance Company (hereinafter Mount Vernon) that on August 20, 1993, the appellant Chadwick Lundy (hereinafter Lundy) would be in New York for the taking of a deposition in the underlying personal injury action and would be available to Mount Vernon's counsel in the declaratory judgment action for questioning. Counsel did not avail itself of that opportunity. A short time later, counsel moved to compel Lundy to travel to New York a second time for the purpose of being deposed. Even though Mount Vernon, through its counsel, was requesting the deposition and was in the superior economic position, it did not offer to defray non-resident Lundy's travel expenses.
The court erred in granting Mount Vernon's motion. Under the circumstances, it should have granted the branch of appellants' cross motion permitting Lundy's deposition to be conducted out-of-State upon written questions (CPLR 3103 [a]; 3108). Thompson, Santucci, Altman and Hart, JJ., concur.
I respectfully disagree with the majority and vote to affirm the orders directing the appellant Chadwick Lundy (hereinafter Lundy) to appear for a deposition in Kings County.
As a general rule, a party will be required to submit to a deposition upon oral questions conducted within the county in which the action is pending unless it is shown that "hardship" would result (see, CPLR 3110; Carella v. King, 198 A.D.2d 567; Bristol-Myers Squibb Co. v. Chen, 186 A.D.2d 999; Levine v. St. Luke's Hosp. Ctr., 109 A.D.2d 694; Goldenstein v. Upjohn Co., 60 A.D.2d 568).
Here, Lundy failed to offer any proof of hardship. His opposition to the plaintiff's motion to compel his presence at a deposition to be held in Kings County consisted solely of an attorney's affirmation containing only conclusory allegations of hardship (see, Foley v. Haffmeister, 156 A.D.2d 541; Boylin v Eagle Telephonics, 130 A.D.2d 538). Moreover, it can hardly be said that requiring Lundy to come to Kings County from Philadelphia constitutes either a hardship or an undue burden (see, Weisgold v. Kiamesha Concord, 51 Misc.2d 456).