Kozak v Marshall

[*1] Kozak v Marshall 2005 NY Slip Op 51540(U) [9 Misc 3d 1114(A)] Decided on July 7, 2005 Supreme Court, Suffolk County Sgroi, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 7, 2005
Supreme Court, Suffolk County

Jennifer Kozak, Plaintiff,

against

Timothy Marshall, Defendant.



7293 -2005



Attorney for Plaintiff

9B Montauk Highway

Blue Point, New York 11715

AGOGLIA, HOLLAND & AGOGLIA, P.C.

Attorneys for Defendant

500 North Broadway, Suite 237

Jericho, New York 11753

Sandra L. Sgroi, J.

ORDERED that the Defendant, Timothy Marshall, shall be made available for a deposition to be conducted by video conference, deposition on written questions, interrogatories or such other method as the parties may agree upon within forty five days of the date of this order and if the [*2]Defendant visits New York State for any reason before the trial, he must promptly notify the attorney for the Plaintiff of his arrival and make himself available for oral examination by them in Suffolk County within a reasonable time thereafter, and in any event not later than two days before the date set for the trial; and it is further

ORDERED that the Defendant shall bear the additional costs of conducting a deposition by video conferencing if that method of discovery is chosen by the Plaintiff.

This is an action for breach of an alleged oral contract that occurred when the Plaintiff, Jennifer Kozak, and the Defendant, Timothy Marshall, resided in an apartment together on Long Island. The attorney for the Defendant alleges that after the Defendant left the State to return to his residence in California, the Plaintiff commenced this law suit in 1993. According to the affidavit submitted by the Defendant, he is currently employed in California and traveling to New York at this time would present a personal and financial hardship. The attorney for the Defendant has offered to pay any additional costs resulting from using video conferencing.

The attorney for the Plaintiff alleges that the Defendant has not shown that it would be a financial hardship for him to travel to New York. However, in that same affirmation, the attorney for the Plaintiff states that the Defendant was unemployed for most of the two years that the Plaintiff and the Defendant were living together in New York and that the alleged employment of the Defendant would be the first "gainful employment" in the last four years (Affirmation of Catherine Cavanagh,Esq., 6/13/05). The Plaintiff does not dispute that the Defendant resides in California.

Where, as here, the Defendant resides outside of New York, the convenience of that party will be considered by the Court and the Court can utilize CPLR §3110 to adjust the venue of the deposition(see, New York Practice § 355, David D. Siegel, ; see generally Nama Air Cargo Co. v. Unitrans Consol., 208 AD2d 604, 617 N.Y.S.2d 367; Zilken v. Leader, 23 AD2d 644, 257 NYS2d 185). Further, it is not disputed that the Defendant has limited financial resources and the affirmation of the attorney for the Plaintiff has actually confirmed that the Defendant does not have significant financial resources derived from recent employment.

The Court notes that video conferencing is a method being utilized by both Courts and other tribunals as a viable method in lieu of physical appearance (see, Rogovin v. Rogovin, 3 AD3d 352, 770 N.Y.S.2d 342; Mack v. Travis, 283 AD2d 700, 723 N.Y.S.2d 905; Cargill Ferrous Intern. v. SEA PHOENIX MV, 325 F.3d 695; Lalwani v. Zaken, 2003 WL 22287472, 2003 NY Slip Op. 51289(U)). In this case, the Plaintiff has failed to show that it would be prejudiced by using this method in lieu of an actual physical appearance of the Defendant for a deposition.

Under these circumstances the Court will direct that Timothy Marshall shall be made available for a deposition to be conducted by video conference, deposition on written questions, interrogatories or such other method as the parties may agree upon within forty five days of the date of this order and if the Defendant visits New York State for any reason before the trial, he must promptly notify the attorney for the Plaintiff of his arrival and make himself available for oral examination by them [*3]in Suffolk County within a reasonable time thereafter, and in any event not later than two days before the date set for the trial and that the Defendant shall bear the additional costs of conducting a deposition by video conferencing if that method of discovery is chosen by the Plaintiff.

Dated: SANDRA L. SGROI, J. S. C.