Opinion
100397/05.
Decided August 26, 2009.
Upon the foregoing papers, plaintiff's motion for an extension of time within which to conduct EBTs (No. 990) is granted to the extent indicated; in all other respects, the balance of the motions and cross motions are denied in their entirety.
Plaintiff Igor Semenov commenced this action against his ex-wife to partition certain real property located at 571 Johnston Terrace, Staten Island, New York, which he maintains is owned jointly by the parties following their divorce. Plaintiff has resided in Republic of Latvia since in or about 1997, where he obtained a divorce from defendant in 1998. Defendant Natalie Semenov claims that "because [plaintiff] hoped to have a quick, no-hassle divorce", he conveyed his interest in the marital property to her in a quitclaim deed dated September 20, 1997. Plaintiff has submitted an affidavit challenging the validity of this deed, and denies having executed and delivered same to defendant. The parties have also submitted conflicting reports by certain purported handwriting experts concerning whether or not plaintiff's signature on the subject deed is forged or genuine. The testimony of a handwriting expert is not determinative of whether or not plaintiff signed the quitclaim deed, but merely raises an issue of fact since plaintiff categorically denies signing it.
Here, plaintiff moves (1) to modify so much of this Court's Order dated February 26, 2009 as directed that all parties be deposed during the week of March 23, 2009 by extending the time within which to conduct his deposition, (2) pursuant to CPLR 3101(a) and CPLR 3113(d), for an order directing that his deposition be conducted by live video conference and (3) pursuant to CPLR 3117(a)(3), for authorization to use said video deposition at trial. In support, plaintiff claims that "it is next to impossible for [him] to travel to the United States in [the] near future." By way of explanation, plaintiff claims that on February 12, 2009, he was assaulted in Latvia and sustained stabbing wounds to his hand from which he is not fully recovered and that he requires additional medical attention. It is his belief that his ex-wife was responsible for "orchestrating" the attack, and fears "for [his] life and safety in the United States." He further claims that the stabbing is presently under criminal investigation in Latvia, and that his presence there is required. To the extent relevant, plaintiff alleges that "due to his failing health and mental anguish, [the] more than a 12 hour flight [to the Unites States] can worsen [his] health," and points to the "restrictive travel policies and stringent visa requirements of the U.S. Embassy for the Latvian residents" as an additional impediment. Finally, plaintiff contends that he is "experiencing financial difficulties and [has] no funds to pay [the] costly expenses related to [a] flight and stay[ing] in the United States." In support of these assertions, plaintiff submits a translated copy of a certain "Clinical Hospital Extract", i.e., out-patient medical records.
Plaintiff's counsel has been unable to obtain the consent of defendant's counsel to conduct Mr. Semenov's deposition by video conference ( see CPLR 3113[d]).
Further, lacking any basis to dispute plaintiff's claim that he would encounter stringent travel restrictions in attempting to travel from the Republic of Latvia to the United States, this Court is inclined to modify its prior Order dated February 26, 2009 to the extent of allowing plaintiff to be deposed by live video conference as authorized by CPLR 3113(a)(3) before any diplomatic or consular agent or representative of the United States appointed or accredited to and residing within the country of Latvia or a person appointed by commission or under letters rogatory, or an officer of the armed forces authorized to take the acknowledgment of deeds. All arrangements and expenses of the live video conferenced deposition shall be borne by the plaintiff.
Accordingly, plaintiff's application for an order directing that his deposition be conducted by live video conference (CPLR 3101[a]) and for authorization to use said deposition at trial (CPLR 3117[a][3]) is granted ( cf. Rogovin v Rogovin , 3 AD3d 352, 353; Rodriguez v Infinity Ins. Co., 283 AD2d 969, 970; Hoffman v Kraus, 260 AD2d 435, 437).
Turning to the motion and cross motion for summary judgment, in view of the plaintiff's affidavit denying his signing of the quitclaim deed and the conflicting opinions of the parties' handwriting experts, a triable issue of fact exists as to the validity of plaintiff's signature on the challenged deed ( see Karan v Hoskins , 22 AD3d 638 , 639). The cross motion for summary judgment must, therefore, be denied for the same reasons.
The parties' remaining contentions have been considered and are without merit.
Accordingly, it is
ORDERED, that plaintiff's motion to modify this Court's Order dated February 26, 2009 is granted to the extent that plaintiff's live video conference deposition must be conducted within ninety (90) days of the signing of this Order. Failure of the plaintiff to comply with this Order shall result in preclusion and dismissal of this case; and it is further
ORDERED, that the balance of that and the other motions and the cross motions are denied.