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LaRusso v. Brookstone, Inc.

Supreme Court of New York, Appellate Division, Second Department

June 10, 2008, Decided

2007-04765

Opinion

 [*577]  [**179]   In an action to recover damages for personal injuries, etc., the defendant Salvatore Rizzo appeals from an order of the Supreme Court, Suffolk County (Weber,  [**180]  J.), dated April 18, 2007, which granted the motion of the defendant Brookstone, Inc., for a protective order pursuant to CPLR 3103, and the plaintiffs separately appeal from the same order.

Ordered that the appeal by the plaintiffs is dismissed as abandoned (see 22 NYCRR 670.8 [e]); and it is further,

Ordered that the order is reversed, on the law and the facts, and the motion by the defendant Brookstone, Inc., for a protective order is denied; and it is further,

Ordered that one bill of costs is awarded to the defendant Salvatore Rizzo payable by the defendant Brookstone, Inc.

Generally, when a party to the action is to be deposed, the deposition should take place "within the  [***2] county . . . where the action is pending" (CPLR 3110 ). An exception to this rule is where a party demonstrates that examination in that county would cause "undue hardship" (Rodriguez v Infinity Ins. Co., 283 AD2d 969, 970, 723 NYS2d 741 [2001]; Farrakhan v N.Y.P. Holdings, 226 AD2d 133,  [****2] 135, 640 NYS2d 80 [1996]; cf. Rogovin v Rogovin, 3 AD3d 352, 770 NYS2d 342 [2004]; Hoffman v Kraus, 260 AD2d 435, 437, 688 NYS2d 575 [1999]). In this case, the defendant Brookstone, Inc., which is headquartered in Merrimack, New Hampshire, failed to demonstrate that the appearance for a deposition in Suffolk County constituted an undue hardship. Therefore, it was not entitled to a protective order. Rivera, J.P., Lifson, Miller, Carni and Eng, JJ., concur.

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52 A.D.3d 576 *; 860 N.Y.S.2d 179 **; 2008 N.Y. App. Div. LEXIS 5425 ***; 2008 NY Slip Op 5484 ****

 [****1]  Daniel LaRusso et al., Appellants, v Brookstone, Inc., Respondent, and Salvatore Rizzo, Appellant.

Prior History: LaRusso v. Brookstone, 2007 N.Y. Misc. LEXIS 3971 (2007)

CORE TERMS

protective order, undue hardship, deposition