Depositions usually are scheduled and taken without undue turmoil.  Recent changes to the rules concerning the behavior of counsel at depositions have further regulated the proceedings.  Counsel may no longer make talking objections, may not direct their client not to answer, except in rare circumstances, and must be polite.  We’ve not heard of any more "barking dog" depositions in which one attorney baits the other.

Where the deposition takes place is rarely a question of anything other than "your office or mine?" but in this case defendants demanded an in-person deposition of the plaintiff who could not travel to the US anymore.  Here, in Koch v. Sheresky, Aronson & Mayefsky LLP, 112337/07
Decided: May 13, 2010 we see how Justice Goodman solved the problem:
 

"Presumably based upon the document from the American Embassy, plaintiff contends that under the Immigration and Naturalization Act (8 USC §1182 [a] [9]), a new application for admission to the country can only be entertained toward the end of 2010. Defendants offer no proof to contest this statement.

Thus, all of the cases relied on by defendants in support of their motion to require plaintiff to submit to an examination in New York, are inapposite and in those cases travel to New York was within the power and control of the party whose deposition was sought.

Courts have often directed the deposition of a party by video-conference, where the party had difficulty obtaining, or had been denied, a visa, or because of stringent U.S. travel restrictions with respect to the country of residence of the party to be deposed. See Doherty v. City of New York, 24 AD3d 275 (1st Dept 2005) (affirming an order to take deposition in Ireland, where plaintiff was denied necessary visa, and directing plaintiff to pay costs of defendant’s travel-related expenses); Semenov v. Semenov, 24 Misc 3d 1241(A), 2009 NY Slip Op 51836(U) (Sup Ct, Richmond County 2009)(granting application for live video-conference deposition of plaintiff and permission to use videotape at trial, where there were restrictive travel policies and stringent visa requirements for Latvian residents); Matter of Singh, 22 Misc 3d 288 (Sur Ct, Bronx County 2008)(permitting deposition of petitioner and other witnesses residing in India by video-conference, where affidavit submitted by attorney indicating that visa applications were denied by U.S. Embassy); Kirama v. New York Hospital, 13 Misc 3d 1246(A), 831 NYS2d 360, 2006 NY Slip Op 52356(U) (Sup Ct, NY County 2006) (ordering deposition by video conference in Morocco, where plaintiff could not obtain a visa and, thus, could not legally travel to the United States, despite her efforts and those of her counsel, her relatives and even the court). As in Kirama v. New York Hospital, plaintiff did not absent herself from New York in order to evade being deposed in New York, rather, she was required to leave the state because of the change in her immigration status (here, her conditional permanent resident status had expired).

Even assuming that, at some time in the future, plaintiff can obtain a visa to enter the United States her appearance will be completely dependent on the administrative process of the American Embassy and/or the Attorney General, who may grant exceptions to the normal requirements of the immigration law. 8 USC §1182 (d). Moreover, should the United States government again deny plaintiff’s request for a visa, thereby precluding her appearance in New York for deposition and/or trial, her ability to proceed with this litigation could be severely hampered, despite the fact that her complaint survived defendants’ motion to dismiss. Thus, it is preferable, for all parties, and for the court as well, that a reasonable process be provided to enable the oral examination of plaintiff by defendants to proceed, without the uncertainty involved in the visa application process.

In recent correspondence, counsel for plaintiff has offered to assume the costs of setting up a video-conference deposition, and to accommodate defendants’ schedules, in light of the time difference between New York and Prague. Counsel for plaintiff has also offered to pay travel costs of counsel for defendants, should they agree to depose plaintiff in person in the Czech Republic. The court will offer defendants a number of alternatives, which would avoid any undue prejudice. See Wygocki v. Milford Plaza Hotel, 38 AD3d 237 (1st Dept 2007) (because a deposition in New York would impose an undue hardship on an elderly resident of Ireland, the alternatives of a deposition on written questions, a deposition in Ireland, a deposition by telephone or video deposition, or deposition in New York 30 days before trial avoided any undue prejudice to defendant)."

 

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Andrew Lavoott Bluestone

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened…

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened his private law office and took his first legal malpractice case.

Since 1989, Bluestone has become a leader in the New York Plaintiff’s Legal Malpractice bar, handling a wide array of plaintiff’s legal malpractice cases arising from catastrophic personal injury, contracts, patents, commercial litigation, securities, matrimonial and custody issues, medical malpractice, insurance, product liability, real estate, landlord-tenant, foreclosures and has defended attorneys in a limited number of legal malpractice cases.

Bluestone also took an academic role in field, publishing the New York Attorney Malpractice Report from 2002-2004.  He started the “New York Attorney Malpractice Blog” in 2004, where he has published more than 4500 entries.

Mr. Bluestone has written 38 scholarly peer-reviewed articles concerning legal malpractice, many in the Outside Counsel column of the New York Law Journal. He has appeared as an Expert witness in multiple legal malpractice litigations.

Mr. Bluestone is an adjunct professor of law at St. John’s University College of Law, teaching Legal Malpractice.  Mr. Bluestone has argued legal malpractice cases in the Second Circuit, in the New York State Court of Appeals, each of the four New York Appellate Divisions, in all four of  the U.S. District Courts of New York and in Supreme Courts all over the state.  He has also been admitted pro haec vice in the states of Connecticut, New Jersey and Florida and was formally admitted to the US District Court of Connecticut and to its Bankruptcy Court all for legal malpractice matters. He has been retained by U.S. Trustees in legal malpractice cases from Bankruptcy Courts, and has represented municipalities, insurance companies, hedge funds, communications companies and international manufacturing firms. Mr. Bluestone regularly lectures in CLEs on legal malpractice.

Based upon his professional experience Bluestone was named a Diplomate and was Board Certified by the American Board of Professional Liability Attorneys in 2008 in Legal Malpractice. He remains Board Certified.  He was admitted to The Best Lawyers in America from 2012-2019.  He has been featured in Who’s Who in Law since 1993.

In the last years, Mr. Bluestone has been featured for two particularly noteworthy legal malpractice cases.  The first was a settlement of an $11.9 million dollar default legal malpractice case of Yeo v. Kasowitz, Benson, Torres & Friedman which was reported in the NYLJ on August 15, 2016. Most recently, Mr. Bluestone obtained a rare plaintiff’s verdict in a legal malpractice case on behalf of the City of White Plains v. Joseph Maria, reported in the NYLJ on February 14, 2017. It was the sole legal malpractice jury verdict in the State of New York for 2017.

Bluestone has been at the forefront of the development of legal malpractice principles and has contributed case law decisions, writing and lecturing which have been recognized by his peers.  He is regularly mentioned in academic writing, and his past cases are often cited in current legal malpractice decisions. He is recognized for his ample writings on Judiciary Law § 487, a 850 year old statute deriving from England which relates to attorney deceit.