Matter of Haupt (2009 NY Slip Op 50756(U))

Matter of Haupt

2009 NY Slip Op 50756(U) [23 Misc 3d 1115(A)]

Decided on April 20, 2009

Sur Ct, Richmond County

Gigante, 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This opinion is uncorrected and will not be published in the printed Official Reports.

In this pending proceeding, the petitioner, Charles Haupt, seeks to vacate the Letters Testamentary issued to the respondent, Kenneth Haupt, his brother on March 2, 2007. During the course of the discovery phase of this proceeding, the respondent fiduciary sought to depose his brother, the petitioner. Undeniably, the respondent has an absolute right to such discovery.

The petitioner, however, who resides in Florida, contends that he is currently unemployed, and due to financial constraints cannot afford airfare to attend a deposition in New York. Furthermore, he contends that he is primary care giver of his wife, who is suffering from terminal brain cancer and he cannot leave her unattended in Florida to attend a deposition in New York.

For these reasons, petitioner has moved for an order directing that interrogatories be served upon him in place of conducting an examination before trial in New York. Alternatively, he seeks an order directing that he be deposed by telephone, instead of appearing in New York.

In opposition to the motion, respondent cross-moves for an order denying petitioner's motion, and the scheduling of a Court ordered deposition to take place in New York. Respondent, citing CPLR 3103(a), relies on the general rule that a nonresident party who has invoked the jurisdiction of New York State by bringing suit in its courts must stand ready to be deposed in New York, unless it is shown that undue hardship would result. Respondent contends that the petitioner has failed to demonstrate undue hardship in his papers which contain only conclusory allegations and hearsay.

Furthermore, respondent points out that by being required to utilize interrogatories, he would lose one of the most important dimensions of the deposition - that is that follow up questions often become evident only upon hearing answers to previous questions. Respondent urges that before directing the use of interrogatories, the Court should consider depositions via video conference.

After having reviewed all of the papers heretofore submitted herein, both in support of the motions and in opposition thereto, the Court denies the cross-motion and grants the motion to the following extent. The Court will, indeed, adjust disclosure requirements to balance justice on [*2]both sides. Under all the circumstances, the Court finds little prejudice to respondent, if any, in directing the use of video deposition, the cost of which is to be borne by the petitioner, and directs counsel to cooperate in the scheduling of a deposition by live video conference.

Accordingly, this matter is restored to the calendar of the Court for 9:30 a.m. on April 29, 2009, at which time counsel for both sides are to appear and advise the Court of their efforts to schedule the deposition.