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Yu *** Chen v. Chen Li Zhi

Supreme Court of New York, Appellate Division, Second Department

September 11, 2013, Decided

2012-05462

Opinion

 [*816]  [**139]   In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Graham, J.), dated March 23, 2012, which, in effect, denied his motion, inter alia, pursuant to CPLR 3126 to dismiss the complaint and granted those branches of the plaintiff's cross motion which were, in effect, for a protective order pursuant to CPLR 3103 (a) to the extent of directing that the plaintiff's deposition be conducted by the use of "Skype" or other comparable video-conferencing format and that the plaintiff's counsel shall provide a list of five or more doctors "in a city that is practical for the plaintiff to travel" for the purpose of conducting an independent medical examination of the plaintiff.

Ordered that the order is modified, on the facts and in the exercise of discretion, by deleting the provision thereof granting  [***2] that branch of the plaintiff's cross motion which was, in effect, for a protective order pursuant to CPLR 3103 (a) to the extent of directing that the plaintiff's counsel shall provide a list of five or more doctors "in a city that is practical for the plaintiff to travel" for the purpose of conducting an independent medical examination of the plaintiff, and substituting therefor a provision granting that branch of the motion to the extent of directing that the plaintiff shall appear for an independent  [**140]  medical examination by a physician designated by the defendant, at such location and time as the defendant shall specify; as so modified, the order is affirmed, with one bill of costs payable by the plaintiff to the defendant.

On a prior appeal, this Court permitted the plaintiff's deposition to be conducted by remote electronic means (see Yu *** Chen v Chen Li Zhi, 81 AD3d 818, 916 NYS2d 525 [2011]). By directing that the plaintiff's deposition be conducted in this manner, this Court was able to reasonably accommodate the plaintiff's predicament of not being able to travel to New York for the deposition. In light of our determination on that prior appeal, the Supreme Court providently exercised its discretion  [***3] in granting that branch of the plaintiff's cross motion which was, in effect, for a protective order pursuant to CPLR 3103 (a) to the extent of directing that his deposition be conducted by the use of "Skype" or other comparable video-conferencing format (see generally Caro v Marsh USA, Inc., 101 AD3d 1068, 1069, 956 NYS2d 575 [2012]; Ito v Dryvit Sys., 5 AD3d 735, 773 NYS2d 599 [2004]).  [****2] 

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109 A.D.3d 815 *; 971 N.Y.S.2d 139 **; 2013 N.Y. App. Div. LEXIS 5756 ***; 2013 NY Slip Op 5815 ****; 2013 WL 4825050

 [****1]  Yu *** Chen, Respondent, v Chen Li Zhi, Appellant. (And a Third-Party Action.) (Index No. 23416/07)

Prior History: Yu *** Chen v Chen Li Zhi, 81 AD3d 818, 916 NYS2d 525, 2011 N.Y. App. Div. LEXIS 1229 (N.Y. App. Div. 2d Dep't, 2011)

CORE TERMS

independent medical examination, deposition, directing, protective order, cross motion, designate, travel, prior appeal, video-conferencing, accommodate, comparable, conducting, modified, format, costs