Supreme Court, New York County, September 21, 2021

Thomas J. Hillgardner, Jamaica, for plaintiffs

Wenig Saltiel LLP, Brooklyn (Howard Bonfield of counsel), for A.J. Muste Memorial Institute, Inc., defendant.

{**73 Misc 3d at 1121}Plaintiffs sue for breach of an executed lease by the remaining defendant A.J. Muste Memorial Institute, Inc., for commercial premises for plaintiff Global Revolution TV's operations at 165 Canal Street, New York County, or for promissory estoppel, after defendant accepted plaintiffs' security deposit for the premises. Defendant counterclaims for rent owed.

Plaintiffs move for a determination of the branch of their prior cross motion that sought to strike defendant's answer due to its willful noncompliance with the order dated October 9, 2019, which gave defendant 30 days after the order to produce: "All records, or an affidavit, indicating whether plaintiff's security deposit was returned, or retained by defendants." (Affirmation in opp of Howard S. Bonfield, exhibit A [emphasis added]; see CPLR 3126 [3].) Plaintiffs seek bank records showing the disposition of plaintiffs' security deposit that plaintiff Teichberg tendered to defendant's executive director Heidi Boghosian.

Plaintiffs complain that, in a subsequent order dated June 4, 2021 (Cannataro, J.), the court overlooked the branch of their cross motion that sought to strike defendant's answer due to its noncompliance with the prior order to produce either records or an affidavit indicating whether defendant returned or retained plaintiffs' security deposit. In that June 2021 order, the court acknowledged that plaintiffs cross-moved "pursuant to CPLR 3126 to strike defendants [sic] answer," but did not address that branch of plaintiffs' cross motion further. (Affirmation of Thomas J. Hillgardner, exhibit 3 at 1.) On the same day as the order was entered, June 4, 2021, plaintiffs served notice of entry of the order.

Whether Justice Cannataro left a branch of plaintiffs' cross motion undecided and still pending, requiring a determination as plaintiffs contend, or that branch of the cross motion is considered denied when the court did not address the issue (Harlem Capital Ctr., LLC v Rosen & Gordon, LLC, 145 AD3d 579, 580 [1st Dept 2016]; Genger v Arie Genger 1995 Life Ins. Trust, 84 AD3d 471, 472 [1st Dept 2011]), plaintiffs' current motion is a motion to reargue the branch of the cross motion that was either overlooked or denied. The exception is only when, unlike here, the court explicitly declines to address a branch of a motion, reserving a determination until later. (Henderson-Jones v City of New York, 120 AD3d 1123, 1124 [1st Dept 2014].){**73 Misc 3d at 1122}

Plaintiffs did not serve their current motion until July 31, 2021, well past the 30 days to move to reargue their prior cross motion to strike defendant's answer. (CPLR 2221 [d] [3]; Ramirez v 2917 Grand Concourse, 195 AD3d 477, 478 [1st Dept 2021].) Nevertheless, even though plaintiffs' motion is untimely, the court retains jurisdiction to reconsider the court's prior orders during the action's pendency "without regard to the statutory time limits for motions to reargue." (Luebke v MBI Group, 122 AD3d 514, 514 [1st Dept 2014]; see Bayo v 626 Sutter Ave. Assoc., LLC, 106 AD3d 648, 649 [1st Dept 2013]; Profita v Diaz, 100 AD3d 481, 481 [1st Dept 2012]; Kleinser v Astarita, 61 AD3d 597, 598 [1st Dept 2009].)

[1] Reconsideration yields the determination that defendant has complied with the October 2019 order, albeit late. Defendant produced only one internal document, part of defendant's ledger for the relevant period, and no bank records showing the disposition of plaintiffs' deposit, but has produced Boghosian's affidavit dated August 16, 2021, with its exhibit A, the ledger excerpt previously produced December 17, 2019, indicating that defendant retained plaintiffs' security deposit. If plaintiffs seek further details or other specific records regarding defendant's disposition of the deposit, plaintiffs may ask for that information at Boghosian's deposition or serve a further document request, but defendant has produced all that the October 2019 order required.

Although defendant produced the ledger excerpt 39 days after the October 2019 order's deadline of November 8, 2019, and Boghosian's affidavit another eight months later, that lateness does not warrant the ultimate penalty of striking defendant's answer, and plaintiffs seek no lesser penalty. (Merrill Lynch, Pierce, Fenner & Smith, Inc. v Global Strat Inc., 22 NY3d 877, 880 [2013]; Parkinson v Fedex Corp., 184 AD3d 433, 433-434 [1st Dept 2020]; Han v New York City Tr. Auth., 169 AD3d 435, 435 [1st Dept 2019]; Vizcaino v Western Beef, Inc., 161 AD3d 632, 633 [1st Dept 2018].) Nor do they show any prejudice from the late production. (Corinno Civetta Constr. Corp. v City of New York, 67 NY2d 297, 319 [1986]; Michaluk v New York City Health & Hosps. Corp., 169 AD3d 496, 496 [1st Dept 2019]; Liberty Petroleum Realty, LLC v Gulf Oil, L.P., 164 AD3d 401, 408 [1st Dept 2018]; Lee v 13th St. Entertainment LLC, 161 [*3]AD3d 631, 632 [1st Dept 2018].) They sought the records or affidavit preparatory to their deposition of Boghosian, which has been delayed by plaintiffs' failure to produce Teichberg for his{**73 Misc 3d at 1123} deposition, not by defendant's failure to produce either records or an affidavit.

Plaintiffs separately move to compel plaintiff Teichberg's deposition within 30 days and Boghosian's deposition within 30 days after plaintiffs receive the bank records sought showing the disposition of plaintiffs' security deposit. (CPLR 3107, 3124.)

A. Administration of the Oath to Plaintiff Teichberg

While ordinarily plaintiffs would not move to compel one of their own depositions, they do so because they seek to dispense with the requirements for administration of an oath to Teichberg, who is to be deposed via videoconference in Spain. Under CPLR 3113 (a) (3), in a foreign country, a "diplomatic or consular agent or representative of the United States, appointed or accredited to, and residing within, the country, or a person appointed by commission or under letters rogatory, or an officer of the armed forces authorized to take the acknowledgment of deeds" must administer the oath to a deponent. (See Semenov v Semenov, 24 Misc 3d 1241[A], 2009 NY Slip Op 51836[U] [Sup Ct, Richmond County 2009].) Despite these various alternatives, plaintiffs request that a notary public in New York administer the oath to Teichberg in Spain via the videoconference platform to be used for the deposition.

Plaintiffs point to CPLR 3113 (b), which provides that "[t]he officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by someone acting under his direction, record the testimony." Although this provision allows stenographers recording the testimony to administer the oath, assuming they otherwise are authorized (CPLR 2309 [a]), they may do so only when "physically present at the place of the deposition," as CPLR 3113 (d) requires, unless "otherwise stipulated to by the parties." (CPLR 3113 [d]; see Matter of Smith, 29 Misc 3d 832, 834 [Sur Ct, Bronx County 2010].) Executive Law § 135, moreover, authorizes New York notaries to administer oaths only within the state.

[2] The requirement for physical presence impresses on the deponent the gravity of his oath, which plaintiffs acknowledge. (CPLR 2309 [b]; Matter of MacKenzie v Ghartey, 131 AD3d 638, 638 [2d Dept 2015]; Matter of Liebler v Friedman, 54 AD3d 697, 698 [2d Dept 2008].) Interpreting "the place of the deposition" conducted via videoconference (CPLR 3113 [d]) as the{**73 Misc 3d at 1124} place where the stenographer is recording the testimony would contravene the oath's objective. For similar reasons, plaintiffs' proposed alternative administration of the oath is more than an "irregularity" that the court may permit, as plaintiffs suggest. (CPLR 2001.) Plaintiffs' proposed alternative violates both CPLR 3113 (a) (3) and (d) and Executive Law § 135.

Finally, plaintiffs suggest that the court dispense with the oath at the outset of the deposition entirely and permit Teichberg simply to subscribe and affirm the truth of the deposition transcript under penalties for perjury as he would an affirmation under CPLR 2106 (b). This alternative would negate altogether the separate requirements for swearing to deposition testimony under CPLR 3113.

Here, defendant does not stipulate under CPLR 3113 (d) to plaintiffs' proposed alternatives, perhaps at least in part because plaintiffs utterly fail to demonstrate why it is unduly burdensome for them to comply with CPLR 3113 (a) (3). They have not shown any efforts to comply whatsoever. In the time and with the resources plaintiffs have expended on this motion, [*4]surely they could have secured a person authorized under section 3113 (a) (3).

B. Costs of Teichberg's Deposition

CPLR 3116 (b) provides that "[u]nless the court orders otherwise, the party taking the deposition shall bear the costs thereof." (See Swiskey v Lamotta, 224 AD2d 274, 274-275 [1st Dept 1996]; Matter of Frizziola, 2019 NY Slip Op 32944[U], *4-5 [Sur Ct, Richmond County, Aug. 21, 2019]; Matter of Grunwald, 2019 NY Slip Op 32943[U], *4-5 [Sur Ct, Richmond County, Aug. 21, 2019].) Therefore defendant ordinarily would bear the costs of taking plaintiff Teichberg's deposition. (Swiskey v Lamotta, 224 AD2d at 274-275; Matter of Smith, 29 Misc 3d at 834.) When a party requests a deposition via videoconference, however, the requesting party bears any additional costs attributable to the remote deposition. (CPLR 3113 [d]; Matter of Frizziola, 2019 NY Slip Op 32944[U], *4-6; Matter of Grunwald, 2019 NY Slip Op 32943[U], *4-6.)

[3] Here, the court (Cannataro, J.) granted plaintiffs' motion to conduct Teichberg's deposition in Spain via videoconference over defendant's opposition. Therefore plaintiffs shall bear any additional costs of Teichberg's deposition attributable to conducting it via videoconference in Spain. (Gartner v Unified Windows, Doors & Siding, Inc., 68 AD3d 815, 816 [2d Dept 2009]; Koch v Sheresky, Aronson & Mayefsky, LLP, 2010 NY{**73 Misc 3d at 1125}Slip Op 31206[U], *6 [Sup Ct, NY County, May 19, 2010]; Semenov v Semenov, 24 Misc 3d 1241[A], 2009 NY Slip Op 51836[U], *4 [2009]; Matter of Singh, 22 Misc 3d 288, 291 [Sur Ct, Bronx County 2008].) Defendant consents to plaintiffs' arranging for the stenographer who will record the testimony via videoconference, but shall bear the ordinary costs of Teichberg's deposition were it conducted in person in New York. (CPLR 3116 [b]; Matter of Frizziola, 2019 NY Slip Op 32944[U], *4-5; Matter of Grunwald, 2019 NY Slip Op 32943[U], *4-5.)

The administration of the oath by a person authorized under CPLR 3113 (a) (3) is also a cost attributable to conducting Teichberg's deposition in Spain. (See Doherty v City of New York, 24 AD3d 275, 275-276 [1st Dept 2005]; Boatswain v Boatswain, 3 Misc 3d 803, 807 [Sup Ct, Kings County 2004].) Therefore plaintiffs shall arrange for and bear any costs associated with the administration of the oath. Plaintiffs shall secure a "diplomatic or consular agent or representative of the United States, appointed or accredited to, and residing within" Spain "or an officer of the armed forces authorized to take the acknowledgment of deeds" to administer the oath to Teichberg. Alternatively, plaintiffs may request the court to issue a commission to a person fluent in English and authorized to administer oaths in Spain. (CPLR 3113 [a] [3]; see 3108; Boatswain v Boatswain, 3 Misc 3d at 806-807.) Plaintiffs shall notify defendant in advance of Teichberg's deposition regarding the identity and qualifications of the person who will administer the oath.

For all the reasons explained above, the court denies plaintiffs' current motion to strike defendant's answer (CPLR 3126 [3]) and denies plaintiffs' separate motion to compel depositions to the extent it seeks to alter the requirements for administration of an oath to plaintiff Teichberg at his deposition. (CPLR 3113 [a] [3].) The court grants the latter motion to the extent of ordering Teichberg's deposition by October 15, 2021, on the following conditions. (CPLR 3107, 3124.) Plaintiffs shall arrange for the deposition via videoconference, bear any costs for the videoconference above the ordinary costs of the deposition, arrange and bear any [*5]costs for administration of the oath to Teichberg, and notify defendant in advance who will administer the oath. (CPLR 3113 [a] [3]; [d]; 3116 [b].) Since the court has denied plaintiffs' motion to strike defendant's{**73 Misc 3d at 1126} answer due to defendant's nonproduction of bank records showing the disposition of plaintiffs' security deposit, the court grants plaintiffs' motion to compel Boghosian's deposition only to the extent of ordering her deposition within 20 days after Teichberg's deposition. (CPLR 3107, 3124.) The court denies any further relief sought by plaintiffs' two motions.