37 W. 46th St. Realty Corp. v KS Homes NY Inc.

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37 W. 46th St. Realty Corp. v KS Homes NY Inc. 2022 NY Slip Op 32936(U) August 30, 2022 Supreme Court, New York County Docket Number: Index No. 656254/2020 Judge: Arlene P. Bluth Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 656254/2020 FILED: NEW YORK COUNTY CLERK 08/30/2022 04:23 PM NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 08/30/2022 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. ARLENE P. BLUTH Justice ---------------------------------------------------------------------------------X 37 WEST 46TH STREET REALTY CORP., INDEX NO. MOTION DATE Plaintiff, MOTION SEQ. NO. 14 656254/2020 08/29/2022 004 -vKS HOMES NY INC., KEWON SONG aka KAY SONG, DECISION + ORDER ON MOTION Defendants. ---------------------------------------------------------------------------------X KS HOMES NY INC., KEWON SONG aka KAY SONG Third-Party Index No. 596022/2020 Plaintiffs, -againstPAULA BOKSIL LEE aka BOKSIL P. LEE and JOSEPH LEE Defendants. --------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 004) 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111 were read on this motion to/for PROTECTIVE ORDER . The motion by the third-party defendants for inter alia a protective order precluding the deposition of third-party defendant Paula Boksil Lee is granted only to the extent that there shall be a virtual deposition of this witness. In this case, plaintiff (a property owner) sued defendants (real estate brokers), claiming, among other things, breach of fiduciary duty. Defendants claim plaintiff is just trying to get out of paying the commission due and also brought a third-party action against plaintiff’s principal, Mrs. Lee and her son, Joseph Lee. Joseph Lee appeared as a representative for plaintiff at 656254/2020 37 WEST 46TH STREET REALTY vs. KS HOMES NY INC. Motion No. 004 [* 1] 1 of 4 Page 1 of 4 FILED: NEW YORK COUNTY CLERK 08/30/2022 04:23 PM NYSCEF DOC. NO. 112 INDEX NO. 656254/2020 RECEIVED NYSCEF: 08/30/2022 plaintiff’s deposition. This motion is in regard to Mrs. Lee’s deposition as a third-party defendant. Background The third-party defendants insist that Mrs. Lee is unable to appear for a deposition because she is “living in an independent living facility due to her declining health” (NYSCEF Doc. No. 89 at 2). They point to a letter from her physician that asserts that she “is not likely able to cooperate adequately or give reliable information under deposition due to the current state of her progressing cognitive decline. Furthermore, it is likely that the stress of this type of encounter could cause significant anxiety and agitation and be injurious to her cognitive function” (NYSCEF Doc. No. 93). As stated above, Ms. Lee is not just a third-party defendant; she is also the president of plaintiff (a corporate entity that owned the property that forms the basis of this dispute). The parties disagree about defendants’ role as brokers who tried to sell the property; defendants insist they are owed a broker’s commission while plaintiff says defendants breached their fiduciary duties as brokers. Movants assert that they will agree to stipulate that Mrs. Lee be precluded from testifying at trial and observe that her son testified on behalf of plaintiff. They claim that defendants have refused to agree to this proposed solution. In opposition, defendants claim that Mrs. Lee is the president of plaintiff and she initiated this lawsuit against defendants. They assert that third-party defendants/plaintiff have failed to provide adequate copies of medical records to demonstrate that Mrs. Lee is incapable of appearing for a deposition. 656254/2020 37 WEST 46TH STREET REALTY vs. KS HOMES NY INC. Motion No. 004 [* 2] 2 of 4 Page 2 of 4 INDEX NO. 656254/2020 FILED: NEW YORK COUNTY CLERK 08/30/2022 04:23 PM NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 08/30/2022 In reply, third-party defendants insist that Mrs. Lee has had a number of strokes and her condition is deteriorating. They ask that in the absence of a protective order preventing Mrs. Lee’s deposition, the Court should issue a protective order compelling a virtual deposition and “gentle questioning.” Discussion The Court grants the motion to the extent that it grants plaintiff’s request (made in the alternative) for a virtual deposition because it is clearly the best solution. Mrs. Lee lives in Washington State and although the extent of her medical issues is unclear (for example, the vague doctor’s submission is only a letter, not even an affirmation), there is no reason to force her to travel across the country for a deposition on the record before the Court. The Court declines to grant the branch of the motion that seeks a protective order precluding the entire deposition of Mrs. Lee. The letters from the medical providers are not notarized or affirmed and, even if they were admissible, they only suggest a deposition might not be productive. There is nothing on this record that shows Mrs. Lee is incapable of appearing for a deposition. Given the fact that she is president of plaintiff and a third-party defendant, defendants are entitled to do a virtual deposition of her. Accordingly, it is hereby ORDERED that the motion by third-party defendants is granted only to the extent that the deposition of Mrs. Lee shall occur virtually and it must occur on or before September 22, 2022; and it is further 656254/2020 37 WEST 46TH STREET REALTY vs. KS HOMES NY INC. Motion No. 004 [* 3] 3 of 4 Page 3 of 4 INDEX NO. 656254/2020 FILED: NEW YORK COUNTY CLERK 08/30/2022 04:23 PM NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 08/30/2022 ORDERED that the date for filing a note of issue shall remain October 17, 2022 but plaintiff may not file the note of issue before the subject deposition is completed. 8/30/2022 $SIG$ ARLENE P. BLUTH, J.S.C. DATE CHECK ONE: CASE DISPOSED GRANTED DENIED X NON-FINAL DISPOSITION X GRANTED IN PART APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 656254/2020 37 WEST 46TH STREET REALTY vs. KS HOMES NY INC. Motion No. 004 [* 4] 4 of 4 • • OTHER REFERENCE Page 4 of 4

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