In this accounting proceeding, the objectant, David W. Herman, moves for an order permitting his deposition to be conducted by video conference. Petitioner, the executor of the estate, Alan M. Herman, opposes the objectant's request. The motion is granted, to the extent set forth herein.

A preliminary conference order dated April 28, 2010 states: "Depositions...to be agreed as to dates and places Alan Herman, Robert Herman, David Herman after document production no later than 8/31/10." The preliminary conference order makes no mention of the use of video conferencing for any of the depositions.

The objectant seeks permission to have his deposition conducted by video conference on the ground that it would create a significant hardship for him to travel from Florida to New York for his deposition in this matter, as he owns and operates an active law practice in Florida involved in the burgeoning and time sensitive area of mortgage foreclosure defense. The objectant's law practice has recently imposed additional demands upon his time and attention with the departure of two of the law firm's employees.

It is especially worthy of note that according to the papers submitted by objectant's counsel on this motion, the objectant has offered to pay for the cost of a video conference of his deposition.

In opposing the objectant's request for a video conference of his deposition, the petitioner claims that both counsel for the petitioner and counsel for the objectant agreed, without argument, that video conferencing would not be utilized. However, as previously noted, the preliminary conference order in this matter fails to make any mention of video conferencing of depositions. Nor is there any mention in the order of any waiver of the right to request video conferencing of the depositions. [*2]

Petitioner further opposes objectant's request for video conferencing of his deposition on the ground that the "prevalent hostility" of the objectant toward the petitioner "teeming in the documents which he has submitted" makes it important that the depositions in this matter be held in the courthouse so that intercession by the court would be available when necessary.

While the Surrogate's Court Procedure Act contains no specific provision regarding the taking of depositions by means of video conferencing, the CPLR governs Surrogate's practice where the Surrogate's Court Procedure Act is silent (SCPA 102). CPLR 3113(d) provides, in relevant part, that "[t]he parties may stipulate that a deposition be taken by telephone or other remote electronic means and that a party may participate electronically." And while the CPLR does not specifically provide for court-ordered video conferencing of depositions, case law does. "[W] here it would create an undue hardship or it is not feasible as a practical matter to conduct the deposition in the venue where the proceeding is pending, the court may exercise its discretion to order that the deposition be conducted by electronic means notwithstanding that one of the parties refuses to so stipulate"(Matter of Singh, 22 Misc 3d 288, 290, [Sur. Ct., Bronx County 2008] ).

The objectant has established to this court's satisfaction that due to the demands of his busy Florida law practice, he would suffer undue hardship if forced to travel to New York for his deposition. Conversely, the proponent has failed to demonstrate that he would be prejudiced by the use of video conferencing for the objectant's deposition, as the issue of obtaining rulings can be managed while utilizing this method of deposition.

The deposition of the objectant, David W. Herman, may proceed by means of video conferencing. Counsel for the parties shall advise the court of the date set for such deposition at least ten days before it is to take place. The officer administering the oath to the objectant shall be physically present at the place of the deposition and the additional costs of conducting the deposition by telephonic or other remote electronic means, such as telephone charges, shall be borne by the objectant. While 22 NYCRR 202.15(d) does not apply to Surrogate's Court, under the circumstances herein, the video conference of objectant's deposition shall be conducted in conformity with the requirements of that rule. If the parties are in need of a ruling from the court during the course of the objectant's deposition, a conference call shall be placed to the law department of this court to obtain such a ruling. However, in conducting this deposition, or any other deposition in this matter, the parties' counsel shall be mindful of 22 NYCRR 221 concerning the conduct of depositions.

The objectant's deposition, as well as the other depositions in this matter, shall all be completed no later than sixty days from the date of this order. This matter shall appear on this court's calendar on Wednesday, March 30, 2011, at 9:30 a.m.to determine the parties' compliance with the terms of this order and to schedule any and all remaining discovery in this matter.

This constitutes the decision and order of this court

No further order need be submitted.

Dated: January 20, 2011

EDWARD W. MCCARTY III

Judge of the

Surrogate's Court