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Keywords

depositiontrialmotionvisarespondent
jurisdictiondepositiontrialvisa

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In re Estate of Singh, 22 Misc.3d 288, 865 N.Y.S.2d 902, 2008 N.Y. Slip Op. 28422

Facts

The petitioner, the decedent's father, initiated proceedings to recover funds distributed from the decedent's estate. He resides in India and faced significant challenges in traveling to New York for a deposition, including health issues and visa denials from the U.S. Embassy. Despite attempts to obtain visas in previous years, the petitioner was unable to secure permission to enter the United States, which he attributed to the restrictive travel policies post-September 11, 2001.

The petitioner now moves, pursuant to CPLR 3101 (a), for an order directing that his deposition and those of other witnesses who also reside in India be conducted by telephone or video conference and, pursuant to CPLR 3117 (a)(3), for authorization to use said depositions at trial in lieu of the appearance of the petitioner and those other witnesses.

Issue

Whether the court should allow the petitioner's deposition to be conducted by telephone or video conference instead of requiring his physical presence in New York.

Whether the court should allow the petitioner's deposition to be conducted by telephone or video conference instead of requiring his physical presence in New York.

Rule

CPLR 3113 (d) allows parties to stipulate to conduct depositions by electronic means, but a unilateral request may be denied unless the requesting party demonstrates undue hardship.

CPLR 3113 (d) provides that the parties 'may stipulate' to conduct a deposition by electronic means.

Analysis

The court considered the petitioner's health and the impracticality of traveling to the U.S. for the deposition, especially given the visa issues he faced. It noted that the petitioner should not be penalized for the U.S. government's travel restrictions and that the respondent's doubts about the genuineness of the visa applications did not outweigh the petitioner's demonstrated hardship.

Here, putting aside the issue of whether the petitioner's health might preclude his traveling to this jurisdiction to be deposed, he is in no way responsible for this country's more restrictive travel policies arising from the events of September 11, 2001.

Conclusion

The court granted the petitioner's motion to conduct depositions via video conference, allowing them to be used at trial, while also ensuring the respondent's right to have the deposition conducted before a consular agent with an acceptable interpreter.

Accordingly, for the reasons stated above, the court, in the exercise of its discretion, finds that it would create an undue hardship to preclude the petitioner from pursuing his claim because he cannot obtain a visa to travel to this country.

Who won?

The petitioner, the decedent's father, prevailed because the court recognized the undue hardship he faced in traveling to New York and allowed for alternative means of deposition.

The petitioner should not be barred from seeking relief in this jurisdiction because our government prevents his entry into this country for reasons which might be prudent but are unrelated to the conduct of the petitioner.

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