Matter of Arum

[*1] Matter of Arum 2013 NY Slip Op 52295(U) Decided on December 19, 2013 Sur Ct, Nassau County McCarty III, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 19, 2013
Sur Ct, Nassau County

In the Matter of the Judicial Settlement of the Account of proceedings of Eugene Arum, as Trustee of the David Arum Living Trust dated October 19, 2006, and, as Trustee of the trust created under Article IV of the David Arum Living Trust for the benefit of Susan M. Arum, in the Estate of David Arum, Deceased.



2011-366132/A



Michael Brescia, Esq.

50 Route 111, Suite 218

Smithtown, NY 11787

(for objectant)

Dr. Eugene Arum

(Pro Se, Trustee)

Syosset, NY 11791

Edward W. McCarty III, J.

In this contested trustee's accounting proceeding, the objectant moves the court for a protective order permitting her deposition to be taken by telephone or video conference, rather than requiring her attendance in court for her deposition. The motion is opposed by the trustee.

In support of the motion is an affirmation of the objectant's attorney wherein he avers that it would impose a hardship on his client to require her attendance in court for her deposition as she resides in Canada, is in poor health, is unable to afford the trip to New York, and has no passport.

The trustee, who is the objectant's brother counters that his sister was able to come to New York two years ago for a school reunion when she stayed with friends and evidently had a passport. He also disputes the claim that his sister is in poor health and points out that the instant motion is not supported by the affirmation of a physician. Finally, the trustee argues that not having the objectant present to observe body language and other non-verbal cues would be prejudicial to his examination of her, counsel's argument to the contrary notwithstanding.

CPLR 3113(d) provides that the parties may stipulate that a deposition be taken by telephonic or video conference. Despite the absence of statutory authority to compel the taking of a deposition outside the county by telephone or video conference, the courts have been willing to do so over the objection of one of the parties where it has been established that the party to be deposed would suffer a genuine hardship if required to appear for deposition in the county where the court sits (Matter of Singh, 22 Misc 3d 288 [Sur Ct, Bronx County 2008]; Matter of Herman, [*2]30 Misc 3d 1215A [Sur Ct, Nassau County 2011]).

Here, however, the objectant has failed to meet that standard. As indicated above, the allegation regarding the objectant's poor health is not supported by an affirmation from her physician. Furthermore, the motion is not even supported by an affidavit of the objectant herself, only counsel's affirmation is offered and it is a basic tenet of New York practice that an affidavit made by an attorney with no personal knowledge of the facts is of no probative value (CRD Creances S.A.S. v Cohen, 2009 NY Slip Op 33051U [Sup Ct, Nassau County 2009]). Genuine hardship, rather than mere inconvenience, is the required showing to warrant granting an application for a deposition by video conference over the objection of another party (Gover v Savyon, 2010 NY Slip Op 33582U [Sup Ct, Nassau County 2010]).

For the foregoing reasons, the motion for protective order is denied.Dated: December 19, 2013

EDWARD W. McCARTY III

Judge of the

Surrogate's Court