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CPLR 3113

When a non-party witness is deposed, is there any place in the deposition room for the witness’ counsel? In two cases, Thompson v Mather, and Sciara v Surgical Assoc., the Fourth Department took a hard line against any participation by counsel for the witness. The court read CPLR 3113 as denying counsel any right to participate in any way, and as most definitely denying counsel any right to object on any ground, whether based on privilege or otherwise.

Effective September 23, 2014, CPLR 3113 (c) has now been amended so as to overrule this line of cases. A new sentence has been added, allowing counsel for a non-party deponent to participate in the deposition and make objections on behalf of the deponent in the same manner as counsel for a party. Read More

Mohel v Gavriel Plaza, Inc.,

___ AD3d ___, ___ NYS2d ___, 2014 NY Slip Op 08508 [1st Dept., 2014]
This terse decision prompts a review of the rules governing the deposition site of out-of-state parties, as well as of depositions by video conference. The nature of the action is not stated, but the defendant Highland was a Limited Liability Company with one member, a resident of Israel. The Appellate Division affirmed Supreme Court’s order conditionally striking Highland’s answer unless it produced that member for deposition in New York. The court observed that the plaintiff did not have to consent to the member’s deposition by video conference. (See, CPLR 3113 [d])
The general rule is that absent a showing of hardship, a party to an action in our courts must be deposed in New York, and must bear its own expenses in coming here. Compare Criscenti v Verizon, 72 A.D.3d 464, where a corporate party showed no hardship and had to come to New York for deposition; with Gartner v Unified Windows, Doors & Siding, Inc., 68 A.D.3d 815, where a decedent’s next of kin lived in Colombia and could not come to New York without hardship. Alternatives to a New York deposition were allowed and listed.
Two recent cases illustrate the point.  Read More