Objectant in executor’s accounting proceeding entitled to order permitting deposition to be conducted by video conference

Objectant in executor’s accounting proceeding entitled to order permitting deposition to be conducted by video conference

Matter of Herman 30 Misc. 3d 1215A, 2011 N.Y. Misc. LEXIS 100, 2011 NY Slip Op 50072U (Sur. Ct. Nassau County 2011), Decided January 20, 2011 [enhanced version available to lexis.com subscribers]

In an executor's accounting proceeding, the objectant moved for an order permitting his deposition to be conducted by video conference.  The objectant, an attorney living and practicing in Florida, averred that it would create an undue hardship on him to require his attendance in New York for his deposition, claiming that his office was devoted to the burgeoning and time-sensitive practice of mortgage foreclosure defense.  He claimed that the recent departure of two members of the firm placed even more responsibility on him, further limiting his ability to travel out of state.  The court, in granting the motion, noted that the parties' pretrial conference order was silent on the issue of video deposition, despite the petitioner's attorney's representation that the attorneys had agreed between themselves not to utilize video conferencing.  Also, while CPLR 3113(d) provides for video deposition by agreement among the parties, the court cited case law precedent authorizing the court to order video depositions in appropriate circumstances.  Here, the movant had established that requiring his attendance in New York would create an undue hardship and the petitioner had been unable to establish that any prejudice would result from granting the motion.  That being so, the motion was granted.

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