Tricham Hous. Assoc., L.P. v Klein,
113 A.D.3d 432, 978 N.Y.S.2d 162 [1st Dept., 2014]
Where is the line in compensating a fact witness?
“In an attempt to settle the claims and counterclaims between them, plaintiff and defendant Emanuel Panitz entered into a Memorandum of Understanding (MOU) pursuant to which Panitz’s legal fees would be paid, provided that the claims of defendants Allan Klein, Lobby Design Group, and Steeltech SA (the LDG defendants, collectively) failed. In exchange for this, Panitz assigned plaintiff his remaining cross claims against the LDG defendants. This agreement is void and unenforceable as against public policy. Although his claims against plaintiff have been settled, Panitz is still a witness in this action. Permitting the MOU to stand as it is, with the payment of Panitz’s legal fees conditioned on the failure of his former co-defendants’ claims, creates an incentive for Panitz to falsify his testimony, an incentive that has long been disfavored.”
In 2013, we saw Caldwell v Cablevision Sys. Corp., where the Court of Appeals allowed a fact witness, who happened to be a physician, to demand and collect a fee of $10,000 for one hour of testimony. 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