Kleinberg, Kaplan, Wolff & Cohen, P.C. v Ria R Squared, Inc. 2024 NY Slip Op 34315(U) December 6, 2024 Supreme Court, New York County Docket Number: Index No. 152115/2023 Judge: Emily Morales-Minerva is an attorney fee case against a former client. Question: where may the president of the former client be deposed in this fee-malpractice case? Answer: NYC.
“In this breach of contract action to recover unpaid legal fees, plaintiff KLEINBERG, KAPLAN, WOLFF & COHEN, P.C. moves (motion sequence 007), pursuant to CPLR § 3110, for an order (1) compelling David Kang, the President, and Chief Executive Officer (CEO), of defendant RIA R SQUARED, INC., to appear in New York County for an in-person deposition, and (2) staying discovery pending decision on this motion.”
“For the reasons set forth below, the court grants plaintiff’s motion (seq. no. 007) to the extent that it seeks to compel deposition testimony in New York, New York, and the court denies the motion to the extent that it seeks a stay of discovery pending a decision on this motion.”
“Plaintiff served a Notice of Deposition on defendant, wherein plaintiff demanded to depose defendant’s President and Chief Executive Officer (CEO), David Kang, in New York County, on May 30, 2023 (see NYSCEF Doc. No. 105, Notice of Deposition). Defendant then informed plaintiff that said officer was not available on the proposed date, and that it would be in touch regarding future availability (see NYSCEF Doc. No. 106, E-mail Exchange). Thereafter, on June 26, 2024, the parties met and conferred to discuss outstanding discovery issues, including David Kang’s deposition (see id.). In that meeting, defendant asserted that the deposition of its president and CEO needed to be held “in Los Angeles, California [in-person], or remotely” (see id.)”
“Rule 3110 of the CPLR governs where a deposition on notice is to be taken within the State of New York. It is, therefore, black letter law, that “when [as here] the person to be examined is an officer, director, member or employee of a party,” a deposition on notice “shall” be taken “within the county [a] in which he resides or has an office for the regular transaction of business in person or [b] where the action is pending” ( CPLR 311 o [ 1] [emphasis added] ) .
“The parties may stipulate that a deposition [otherwise] be taken by telephone or other remote electronic means and that a party may participate electronically. [However, t]he stipulation shall designate reasonable provisions to ensure that an accurate record of the deposition is generated; shall specify, if appropriate, reasonable provisions for the use of exhibits at the deposition; shall specify who must and who may physically be present at the deposition; and shall provide for any other provisions appropriate under the circumstances. Unless otherwise stipulated to by the parties, the officer administering the oath shall be physically present at the place of deposition and the additional costs of conducting the deposition by telephonic or other remote means, such as telephone charges, shall be borne by the party requesting that the deposition be conducted by such means.” (CPLR 3113 (d] emphasis added])
“Absent [as here] a stipulation between the parties to conduct a deposition remotely, a party seeking the remote deposition must demonstrate that the party would encounter undue hardship from submitting to an in-person deposition in New York State” (Rubin v Sabharwal, 70 Misc3d 1216[A] [Sup Ct, NY Cnty 2021] [emphasis added] citing Rogovin v Rogovin, 3 AD3d 352 [1st Dept 2004]; see Yu Hui Chen v Chen Li Zhi, 81 AD3d 818 [2d Dept 2011]; V.M. v M.M., 74 Misc3d 1205 [A] [Sup Ct, Kings Cnty 2022] citing Chen, 81 AD3d at 818]). Here having conceded that it “is headquartered and regularly conducts business in New York County” (NYSCEF Doc. No. 40, NYSCEF Doc. No. 40, Answer with Counterclaims, p 5) defendant fails to demonstrate undue hardship from its president and CEO submitting to an in-person deposition in New York, New York.”