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Roche v. Udell

Supreme Court of New York, Nassau County

August 28, 1992, Decided

INDEX NUMBER 26475/91

Opinion

 [*77]  SHORT FORM ORDER

Present: HON. BERNARD F. McCAFFREY Justice.

Plaintiff, Mary Ellen Roche, underwent a Keller bunionectomy on July 18, 1990. The bunionectomy was performed by defendants, Dr. Elliot Udell and Dr. Bernard F. Martin. Plaintiff's allegations center around an alleged negligent performance of this bunionectomy.

The underlying issue in this medical malpractice action is whether plaintiff may, over the vehement objections of the defendant doctors, conduct their depositions by videotape rather than by regular stenographic means pursuant to CPLR 3103(b).

It appears that initially CPLR 3113(b) was silent as to the taking of depositions by recording devices such as [**2]  audio or videotaping in that the Advisory Committee was concerned that they might not be as accurate and trustworthy as stenographically transcribed depositions (Advisory Comm. Rep. 139-1957). However, over the years familiarity with videotaping has given the Courts much more confidence in its accuracy and reliability as a trustworthy, economic and efficient means of taking depositions.

In this respect it is noted that CPLR 3113(b) ] was amended in 1977 to provide:

"The testimony shall be recorded by stenographic or other means, subject to such rules as may be adopted by the Appellate Division of the department where the action is pending" (underscoring supplied).

The defendants contend that the authority for the issuance of a protective order can be inferred from the absence of caselaw allowing videotape depositions in similar circumstances. That their separate research has not disclosed any case in New York allowing a videotape deposition of a defendant who has affirmed his availability to testify personally at trial and also expressed concern that the presence of a videocamera would affect his ability to testify openly and accurately. Further, by expressly providing [**3]  for a videotape deposition of this defendant where no issue of preservation exists, this Court would, in effect, "open the floodgates" in New York.

Defendants further contend that the issue of videotaped depositions should be of special importance to State Courts particularly where, as here, CPLR 3103 is far more liberal than comparable rules adopted by the Federal Courts. In this respect they refer to Rule 30 of the Federal Rules of Civil Procedure in that it only permits videotape depositions by Court order unless the parties so stipulate.

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588 N.Y.S.2d 76 *; 1992 N.Y. Misc. LEXIS 412 **; 155 Misc. 2d 329

MARY ELLEN ROCHE Plaintiff v. ELLIOT UDELL, BERNARD MARTIN AND MASSAPEQUA GENERAL HOSPITAL Defendants

Notice:  [**1]   EDITED FOR PUBLICATION

Subsequent History: As Amended February 9, 1993.

CORE TERMS

depositions, videotape, stenographic, cases, video, recording, camera, protective order, defendants', copies, videocamera, audiotape, Courts

Civil Procedure, Discovery, Methods of Discovery, General Overview, Depositions, Oral Depositions